At the appointed hour the Convention reassembled; President Hall in the chair.
Prayer by Rev. R. V. Dodge, of the Second Presbyterian Church.
Minutes read and approved.
THE PRESIDENT. When the Convention adjourned it had under consideration the adoption of the second section of the report of the Committee of County Organization. The question is on the second clause of the section.
MR. SINSEL. The sentence begins: "They shall also biennially elect one justice of the peace." I move to amend that so that the election shall be every four years instead of two.
A MEMBER. That is not in order.
MR. VAN WINKLE. It was understood, sir, yesterday that this section should be taken up sentence by sentence, and when we closed last evening, we were on the second sentence. The question is now on the adoption of that sentence.
MR. BROWN of Preston. Do I understand that the proposition as amendable? I was about to propose an amendment of this kind. I am dissatisfied myself very much and I believe quite a number of the gentlemen of the Convention are upon the result of the vote fixing the time of the election for these officers. I propose to amend the section in this way so that it will read: "They shall at the first township meeting and annually thereafter" elect, etc., so that there shall be an occasion aside from a small election for the gathering of the voters of the township. I am satisfied that these frequent elections are very disagreeable to the people. Within six months we have had in our county a great many elections. The result has been that the people are becoming very tired of them and that but few comparatively attend these elections and very important and responsible offices are filled by the votes of but few people. My object is to do away with numerous elections; and I cannot see why the voters assembled to attend to their township business at their first meeting and annually after their first meeting cannot hold this election. I do not know that my amendment will exactly meet the case. My idea is that an election shall be held annually after their first meeting. Perhaps amendment would not apply to the first meeting, because there could be no meeting, as a matter of course, without; but that this election shall be held at the meeting for supervisor and these other officers. I will try to reduce my proposition to writing.
MR. VAN WINKLE. If I understand the gentleman from Preston, his object is to have the township election held on the day of the town meeting. Well, that is entirely in accordance with my views; and, as I said last evening, I thought it was so provided. I am not so certain whether the first clause would not make it so, that on that day they "shall transact all such business relating exclusively to their township" as may be required. But the amendment of the gentleman from Preston would make it certain, and I would cheerfully accept it if it were in my power to do so. This would leave the time for holding these annual town meetings not fixed. Perhaps it is better not to fix it in the Constitution, because, once fixed here, it would be inflexible and could not be changed. It would be desirable to have them all on the same day. This might be left to the legislature if not to the supervisors of each county. But so far as it tends to their election on the same day as the town meeting, I am in favor of it.
MR. POMEROY. I have no objections whatever to the amendment of the gentleman from Preston.
MR. BROWN of Preston. I propose, then, to make it read: "They shall annually at a township meeting, elect," so that it may be regulated: so that this election shall be held at the meetings of the townships. And I presume the legislature can fix the time or can carry out any detail as well as we can and it is not necessary to fix any specific time when the election shall be held, only that it be at a township meeting.
MR. VAN WINKLE. Would it not be better to say: "They shall annually on the day of the township meeting?"
MR. BROWN of Preston. That is the proposition.
MR. DILLE. I would suggest to my colleague and also to the gentleman from Wood that it would be better to designate the day for this election; that the amendment should be something like this: "They shall annually, at their stated meeting, on the first Thursday of April," so as to have a definite time for holding this election. It seems to me it would be important.
MR. VAN WINKLE. There is a difference of opinion about fixing the day. If the gentleman would withhold his amendment, let us vote on the proposition of his colleague so as to settle the point that these elections shall be held on the same day, and then the amendment fixing the time for holding the town meeting would reach the case.
MR. DILLE. Yes, sir.
The vote on Mr. Brown's motion was taken, and it was agreed to, Mr. Stevenson of Wood being in the chair.
MR. VAN WINKLE. Does the gentleman from Preston wish to offer that amendment now?
MR. DILLE. If it would be in order to do so.
MR. VAN WINKLE. I was going to suggest that it now reads: "They shall annually on the day of their stated town meeting." You can add there if you choose that it shall be held on the first Thursday of April.
MR. DILLE. That is the amendment I desire.
MR. VAN WINKLE. There is, as I have already stated, a difference of opinion as to the propriety of making it here or leaving it to the legislature to fix it, because any day that is fixed absolutely may be found inconvenient. It has been proposed that it be left for the supervisors to fix it. It does, however, appear to me the day ought to be the same throughout the State.
MR. POMEROY. If that amendment is before the house, I hope it will be adopted. There must be a time for holding the stated township meeting, and I thought it was all covered in the first clause; but as it was thought not to be and was necessary to make it definite, the amendment of the gentleman from Preston has been adopted, and now let us say the first Thursday of April. I am not in favor of leaving all these over to the legislature or board of supervisors. Let us do what we have need to do and let the other bodies do what they have got to do.
MR. DILLE. I would merely remark that I am not particular about the time when these elections shall be held; but it seems to me that there ought to be uniformity throughout the State; and, further than that I do not think we ought to leave the matter to the legislature to change it from time to time. One of the difficulties that I have noticed in reference to these elections is this: that the legislature is continually changing and annoying our people by fixing different times for holding the elections: and that is one of the perplexing things that has annoyed our people more than anything else. And I am not particular, I am free to say, as to. the time, and I think this Convention can in the exercise of a sound judgment agree on some time; and from what appears to me now I think that is probably the most favorable time that can be fixed. But should the Convention determine that otherwise before adjournment we can very easily change the day. Hence I am now in favor of this amendment and I think it important to fix that time whether we subsequently change it or not. If there should be reason for changing, I am willing to change it: but I want the time fixed. I moved to fix it.
MR. VAN WINKLE. I would like to submit to those gentlemen who are more familiar with the habits of the country people than I am living in town, whether if these township meetings, which are mere neighborhood meetings, whether Saturday, as the day of the week, would not suit them better than any other. I know they hold justice courts and things of that kind on Saturdays. I do not know but they might prefer that day.
MR. HERVEY. I would suggest that there are some Seventh Day citizens of this commonwealth.
MR. VAN WINKLE. O, I beg pardon; I did not think of that.
MR. HERVEY. I am not one, but I prefer it remain as it is. I agree with the gentleman from Preston that it would be better to fix the day. The time fixed here suits my views very well.
MR. RUFFNER. I will simply remark, sir, formerly our annual state elections were held in April. Our people being an agricultural people the month of April may be set down perhaps as their busiest month. Hence I suppose that consideration had much to do with changing our elections to the latter part of May, when all the spring crops have been put into the ground. I think myself that it may be found in practice to work very inconveniently to many portions of the country at least to fix the elections at that particular time. Indeed, I question whether this house can with propriety put in the Constitution any fixed day, because you may run against the convenience and perhaps the wishes of the people on that subject and it will be impossible to change it. I believe, sir, it would be better to leave the day of election to the legislature that it may be changed if found necessary; but that it will be on some uniform day I have very little doubt.
MR. VAN WINKLE. These townships, supposing they are arranged on the size of the United States township, which I think will bring them nearly to the size mentioned by Mr. Jefferson and about what has been found a convenient size for them - that is, six miles square, containing an area of from twenty-five to forty miles. Now, if they were six miles square the diagonal would be eight miles; so that no man would have more than eight miles to go. Well, now, supposing the place of the township meeting is fixed in some central position he would not have more than four miles to go. In old times, I believe, everybody used to go away to the courthouse to vote. The election precincts before the present constitution were few and far between, and it really made considerable difference to a voter, for some of them, if they went to the courthouse, had to take two or three days to do it. But I apprehend if the distance is no greater - and I suppose we might say the greatest distance any man would have to travel in the township would not exceed six miles - now that is but a half days ride out and in, and the inconvenience from any day would not be as great as if we were fixing, perhaps; but it would not effect the state elections. There they would not vote in the township, properly, and they might be for state elections divided into more than one precinct, though I suppose a poll in one precinct would be a fair condition. I do not think the same objection lies to a day that did in the old times.
MR. RUFFNER. I would beg the pardon of the gentleman from Wood by stating that I apprehend in counties situated, at least, as ours is that instead of these townships being six miles square, in instances they would have to be twenty miles long and a half mile wide, because almost impassible mountains lie between the creeks, and the settlements are entirely upon them.
MR. STUART of Doddridge. In Doddridge, we have four districts, eight election precincts, and I have no idea we will have eight townships at all. Well, sir, it is a large territory, rough country, and always upon election days it takes the time of the whole people of the county. Now, in thickly settled parts - for instance, Wheeling or Parkersburg, it would be very convenient; but in the agricultural parts of our country it will be very inconvenient to come out in April generally to vote, and it will always be a slim attendance. Just reflect on it. In the Spring, in the most busy seasons possible for farmers. I am a farmer and know how that is. There is scarcely a day in April that the farmer can spare from his farm. And it does seem to me we should adopt some other time. If you must have this election different from general elections, you should fix on some other period.
I believe it is not in order to move to amend the amendment by saying the fourth Thursday of May and if that is not in order I would fix the fourth Thursday of October, with a view of moving to have the general elections at that time also. Our people will be better satisfied and less time lost. They are tired of this thing of so many elections. I do not like to move the fourth Thursday of May from the fact that it might be considered not satisfactory with the test vote last evening; but I move to amend by inserting the fourth Thursday of October.
MR. VAN WINKLE. I believe the gentleman would be perfectly in order to make it the fourth Thursday of May. This third clause has been amended since that vote was taken. It comes up in a different form. I would like to say - for I do not want to be too tenacious in any of these practical matters, though as chairman of the committee I ought to see that the report has a fair chance - that personally I am not tenacious about any merely practical matter and wish them to be arranged to suit the convenience of the people. I am aware that in the more densely populated counties almost anything would be convenient; and it is therefore proper that the convenience of the people inhabiting the sparsely settled districts may be consulted; and I should be pleased to hear from them on every occasion as to what would suit them. The gentleman from Doddridge tells us a large portion of his county is in that situation, and I have no doubt truly so far as he is concerned, but I would suggest to him that in the amendments adopted this morning the township meeting and the township election have been thrown on the same day and that I think the state and Congressional elections had better be thrown on another day. When people come together for their annual township meeting can just deposit their ballots for township officers, and it would be better that all the changes in the township should come up at the same time; that the fiscal and political year of the township - that everything should end on that day and begin with it. I would therefore suggest to my friend whether we had not particularly looked to the advantages of holding these township meetings and elections one day and let the State elections be fixed for another day. It appears to me it would be almost impossible to hold a township meeting, which will take some time, on the same day that we are holding state elections. The same officers might perhaps be wanted to attend to the other business. There would be some inconvenience in it I think.
MR. POMEROY. I just repeat that I know of no state in the whole United States where the township elections and the general election are held on the same day. These township matters must be consulted about. We have already adopted that they shall have a stated meeting for doing so. Then is the time when they should elect their township officers, not when men are asking them to vote for Congress and house of delegates. It is not the time to attend to township matters. I cannot think of a day freer from objection than this first Thursday of April. What time does the farmer have more leisure? They are not ready to sow their oats; they are not ready to plant their corn; and I will venture this, that in the great majority of the townships a man will not lose more than two or three hours to vote. If a man is engaged in working, he will go early; and if he does not wish to do that he will turn out a little earlier at noon and he will go and vote and go back and perhaps make as good a day's work as he could if he had been there all the time. The election used to be the fourth Thursday of April, and this provides for the first, just at the breaking up of the winter season. I hope the amendment of the gentleman from Doddridge will not prevail but the amendment of the gentleman from Preston will.
MR. PAXTON. I was impressed with the views of the gentleman from Kanawha on this subject. It appears to me it would be a great error not leaving it to the legislature to fix this day. If we should and they should fix any day that might be inconvenient, it could be very easily changed, but if we fix a day it might prove a very inconvenient one and there would be no remedy for it.
MR. HAYMOND. I am in favor of the first Thursday of April. I think it would suit our people best.
THE PRESIDENT. Does the gentleman modify his amendment so as to make it May instead of October?
MR. STUART of Doddridge. No, sir; October.
MR. BROWN of Preston. I am not satisfied with either amendment that is before the Convention, because I believe it is restricting the people rather too much; and while I am not in position now to offer a further amendment still I may suggest, I presume, my idea on this subject. It would be that we should fix no particular day of the week and that we also should give some latitude as to the month. My suggestion would be the insertion of the words "which should be held in the month of March or April," so as not to restrict the people to any particular day of the week, which might be objectionable. Let them select their own day; and let them hold this stated meeting, one of their stated meetings, in the month of March or April, and have a little latitude to select their own officers. This is merely a suggestion. I offer it for consideration of the Convention.
MR. POMEROY. That suggestion will have to come in, of course, after these amendments are voted on. I hope the last amendment will be voted down and that the latter will be decided in the affirmative, and that will settle the first Thursday of April.
MR. STUART of Doddridge. I sincerely hope it will not be voted down. If there is any argument in that I desire to have the benefit of it. I am not in favor of the idea suggested by my friend from Preston. I think a day should be general; that whatever day one township meets to elect their officers, every one ought. My object in making the amendment "fourth Thursday of May" is because it is a time when it would better suit the farmers to turn out. I do not like to see these sparsely attended elections. It has the result of electing persons incompetent to fill the offices. That is the truth of it. We have a great many incompetent officers filling these offices, from the fact that they were elected by a vast minority of the people. But if the people turn out to general elections, it will always give us good officers; and unless they do it, these officers elected by certain men carrying their friends to the polls and getting them to vote for them and a jag of liquor will elect most any man because the people do not turn out. If they came out there is always enough good sense in the people to elect the best man. But they cannot spare the time. If you fix this election on the first Thursday of April, which is the most busy season of the year to the farmers and in it every man who is a laboring man is superintending his farm and pressing his work ahead in order to get his crops in. In October they have made their crops and are prepared to go out better than in April. I must admit my object in moving the fourth Thursday in May is in order that the general election may be set for that time also.
I again repeat the argument of the gentleman from Hancock, that I hope it will be adopted (Laughter).
MR. HERVEY. The very last reason offered by the gentleman from Doddridge is the very reason I shall vote against his proposition. I hope this Convention will not consolidate the two elections. Experience differs as to what is the most advantageous season of the year. In our county the slow growers are just in the midst of the hay harvest; and I do not believe this Convention could fix any day which would suit our people less, unless some day in the harvest-time. Besides, sir, I believe the committee had very good reasons. That is a part of this report I shall endorse very cheerfully.
MR. LAMB. Mr. President, I am favorable in general to the township system. It is carrying still further the great principle of our government. We have a government of the United States for all the people for an operation in relation to all matters in which the several states are interested. We have the states, then, for the local concerns of the states. I am willing to carry the general principle still further, to give the counties, upon some regulated system, the management of their local concerns; and still further, to give the township the management of their peculiar interests. But there is one principle in reference to this matter we ought, I think, to bear steadily in mind. It is that this thing is an entire experiment among us. We cannot see exactly how it is going to operate. We have not the necessary information here to prescribe an inflexible rule in all cases for these new operations. I would base the system, therefore, as much as possible by referring it to the legislature who can act in this case or that case as experience may show the necessity of such a provision or another provision; who will be able to act in reference to this matter after the thing is tried by correcting anything that may be found to operate inconveniently. I think it is rather a bold movement on the part of this Convention, with their information on the subject to attempt to prescribe inflexible rules where the thing can with propriety be left to the legislature. Under that view - the motion would not be in order - I shall move if it becomes an order, to strike out "the first Thursday of April" and insert "at a stated township meeting to be held at such time as the legislature shall prescribe." It may be found in practice that one time will operate great inconvenience. It may be found that it would be much better to hold these elections at the same time as the annual election, otherwise it may be found practically that you cannot get out any considerable portion of the vote to attend these township elections. All these are things that we cannot now very well see how they are going to operate; and to act definitely in this matter, it strikes me, we ought as far as possible not put into our Constitution - unnecessarily at least - inflexible rules on any paint, but leave it hereafter to the wisdom of the legislature to act as experience may have shown them after the system is in operation will prove most convenient and for the welfare of these counties and townships.
MR. HAYMOND. I am opposed to referring this to the legislature. It generally has enough to attend to besides matters of this kind. The people would prefer us to fix the day here. They would be better satisfied; and I think the first Thursday of April is as good a time as can be fixed. Let us fix what day we may, they will be satisfied. They can attend one day generally as well as another. They are not so industrious as some people seem to think.
MR. BROWN of Kanawha. I desire to ascertain precisely the question before the house.
The Secretary reported that the language "They shall annually on the day of the stated township meeting" had been adopted; that Mr. Dille had moved to add; "which shall be on the first Thursday of April"; and that Mr. Stuart of Doddridge has moved to amend this by substituting for that date "the fourth Thursday of October."
MR. BROWN of Kanawha. Would it be in order to offer another amendment? My amendment is, to strike out all after the word "elect," without saying when or where and let that be a matter to be defined by law.
THE PRESIDENT. We might dispose of these amendments.
MR. STUART of Doddridge. I will withdraw my motion.
THE PRESIDENT. The gentleman from Doddridge withdraws his amendment.
MR. BROWN of Kanawha. Then I move to make the amendment indicated by striking out all after the word "elect," so it will read "They shall annually elect one supervisor."
MR. VAN WINKLE. That would leave it to the legislature to fix it?
MR. BROWN of Kanawha. Yes, sir. The importance of that matter will I think be found not so inconsiderable when we consider that every unnecessary call on the people to elections is a great evil. I have known the strongest objections - the best I ever heard urged against our militia system, the uselessness of calling on the people of the whole State to muster when they learn that it was a work of supererogation; that all the benefits obtained by the numbering and keeping the militia organized was attained without the mustering, and what was learned by mustering was a day thrown away. And when you compared a million of men assembled to do nothing, or worse than nothing, there to cast away two millions of dollars, it was no inconsiderable tax on your commonwealth. Here you are to call out all the voters of your State, to do what? Why to elect their neighbors, of whose qualifications they are as competent to judge on the day of the general election as any other. And when they come out to vote at the general election they would cast their vote for their neighbors just as well as for their county and state officers. If there were fifty to vote for, a man is as competent to do it on the same day when that is a subject of consideration as if you divide it now, and when another day comes a man if found in his cornfield and says: "This is a trifling matter," and will not go to the polls. Counties that can cast 2000 votes cast perhaps 200. That shows either that your people have lost all interest in their part and disregard the privileges that constitute freemen, or that the elections have fallen into such disrepute that they will not put themselves to any trouble to carry them out. I say that is a great evil, because it tends to lower the estimation in which they hold the elective franchise; to bring it into contempt; tends to place the whole power of the commonwealth in the hands of a few who will from interested motives take efficient means to secure the few friends that they may have to be at the polls on the day, and knowing the fact that the people are careless they will be the more diligent and secure the few friends and have them at the polls. I will admit that in every general election you will have some evil to contend with from the fact of party organization, yet it must be admitted that there is one element of purification in every republic, that while in the very nature of the thing these institutions cannot be had without evils yet these very evils have benefits in them. Every rose has its thorn. When you bring out your people entire, if one party is predominant then it will triumph; and when a result is reached by a clear majority of the whole vote of the county, it is always more satisfactory than if they are triumphant by a partial vote. So that take it in every aspect it is better to have all these elections on one day, or at least the subject to the wisdom of the legislature who can judge, and who if they have judged wrongly can change it as the people may command. It is a strange idea to me that we have suddenly become so perfectly alarmed and apprehensive of our legislature; that the legislature, which is emphatically the representative of the people, who are officers chosen annually for the very fact that they are representing the wishes of the people and that if they do wrong at one time they can be turned out at the next - that it seems to be a studied effort to take from them every possibility of judging as the occasion arises in order that they may decide rightly, and arrogating to this Convention all the wisdom, past and future, like the Medes and Persians by irrepealable law; that what shall be done here is alone right and never shall be altered. If the legislature fix a day that is found inconvenient, they can change it. If you fix it in the Constitution, they cannot change it and have no resort but to submit to the wrong or tear up the Constitution. And whenever a constitution fails to answer the demands of the public, men will commence warfare on it and will never cease to agitate until they tear down the foundations of your government. Wisdom requires that in laying the foundation of your State you should so lay it that the will of the people can be fairly expressed, so that whatever their mandates require may be carried into execution. I hope therefore the fixed day will not be adopted.
MR. HAGAR. I favor the resolution of the gentleman from Kanawha. I have been observing elections for several years. I am very well satisfied with the wisdom and ability of this Convention to discharge all the duties - at least to a great extent - devolving on them; but for one I am not afraid to trust the legislature that it may act in accordance with the Constitution formed by this Convention. I feel satisfied they will better understand what time will satisfy the people to hold the election than we possibly can. It is a new thing with us, this township business, township elections; and when they have some experience in this matter, if it is proper to change the day for the convenience of the people in general throughout the State, no doubt they will do it. They have been changed, as was referred to by some of the gentlemen who have spoken. I recollect when elections were held on the Third Monday in April. All had to go to the courthouse. I remember when Logan County was organized the people came from the far edge of Raleigh to vote. Under the constitution made by the convention held in 1829-30 there were elections precincts that were too large, and people had to go a great ways. We have them now smaller, but while this is a fact that the changes have been a benefit in the past they may be still made an advantage to voters. I favor the motion that it be left blank, that the legislature may fix the time. If the first time they fix does not meet the convenience of the people they can remedy it.
MR. VAN WINKLE. I would like to suggest to the gentleman from Kanawha a little alteration in the form of his amendment but the same in substance. I would like to say: "They shall meet annually," which would make it a town. meeting, "on such day as the legislature may appoint by the general laws." That would imply that the day is to be the same in all the counties.
MR. BROWN of Kanawha. I cannot accept it. I do not think it improves the proposition. The legislature are obliged to pass an election law. That there can be no election held until they do is perfectly certain. The Constitution does not determine elections. They shall annually elect, is simpler, shorter and more satisfactory to my mind. The legislature must pass laws to put this Constitution into effect.
MR. HERVEY. I hope the motion of the gentleman from Kanawha will not prevail; for the first reason, that if you allow the legislature to blend the township and state elections and they should all be held on the same day, you must have as many districts, as many voting places as there are townships. That would be evident. It would complicate the thing. Now, as to the objection of making this provision in the Constitution, why our present constitution has fixed that day. The fourth Thursday of April is fixed in our constitution, and it is a day understood by the whole people. It is not vacillating. I hold, further, that whenever the people of any country become so derelict in duty as to fail or refuse to turn out to sustain their country and the country's interests and support the men who will do it, they do not deserve to be free men. If our project is carried out of combining the township and state elections you must have the points of election for state conveniences, as you will have townships which may in some cases work harshly.
MR. PAXTON. Has not this sentence already been amended once by the gentleman from Preston?
THE PRESIDENT. Yes, sir.
MR. PAXTON. I should like to hear the section read as amended.
The Secretary read the motion offered by Mr. Brown of Preston which was adopted, the sentence reading as amended: "They shall annually on the day of the stated township meeting."
MR. PAXTON. It might make a change in the wording of the gentleman from Preston.
MR. BROWN of Kanawha. I do not see that that would necessarily make any change. This leaves that stated period to the legislature, as I understand.
MR. PARKER. How will it read when amended?
THE SECRETARY. "They shall annually on the day of the township meeting elect one supervisor." Mr. Dille moves to amend by adding: "Which shall be held on the first Thursday of April." The gentleman from Kanawha moves to amend by striking out all after the word "annual" between that and the word "elect."
The vote was taken on the motion of Mr. Brown of Kanawha, and it was agreed to, and it being in the nature of a substitute for Mr. Dille's motion, the question recurred on the adoption of the second clause.
MR. VAN WINKLE. I was going to suggest that by general consent if in case of going through this report there may be any change of officers desired or additional ones appointed this clause would be open for that purpose. We may have that understanding by general consent and then the vote might be taken on it now. If by the adoption of other features not yet part of the report it becomes necessary to change these officers that this clause would be open for that purpose when we get through.
THE PRESIDENT. The question is on the adoption of the clause with that understanding.
The clause was adopted and the Chair stated the question as being on the next clause.
MR. SINSEL. I now move to strike out, beginning in the 15th line, these words: "They shall also biennially elect one justice of the peace; and if the white population of their township exceeds one thousand in number, an additional justice, and as many constables as justices," and insert; "They shall elect one justice for the township, whose term of office shall be four years, and one constable, whose term of office shall be two years." I think two years for the term of magistrate is too short. By the time a man gets an understanding of the business he is out of office. I prefer four years.
MR. BROWN of Kanawha. What is the proposition, Mr. President?
The Secretary reported Mr. Sinsel's motion.
MR. VAN WINKLE. Mr. President, as to changing the length of the term of the justice of the peace, and as he is to be strictly a judicial officer, I do not know that I have any objections, though I think it is a pretty long term for a bad justice of the peace to stay in; and I think the gentleman proposing this amendment may not have fully considered what may be the wants of the people. I am sorry I have not got the documents here but I have it at my room, giving the statistics that were gathered for the election of 1850; and it appeared there, if I mistake not - I wish my friend from Monongalia was able to be here, because he had much to do with the matter - the average was then one justice of the peace for each 381 of population. Now, it is evident that there are several counties here which if divided into townships not exceeding the ratio that has been fixed - that is ten, the largest number of townships allowed in a county, leaving out Ohio, which is a sort of exceptional case; but there are several having 12,000 to 13,000 population. They will, of course have 1200 to 1300 in each township. Now, the question for consideration which I wish to propound is this, whether one justice of the peace is sufficient to do the business for that number of people? I could produce the statistics I spoke of by the afternoon, and I will bring that book down here anyway because although it does not say what has been the condition of things for the last ten years it will show in this very matter statistics compiled for the use of the convention of 1850 what was the state of things previous to that; and, as I have already stated, my impression is that the average was one justice to 381 of population. Now gentleman can tell us better their recent experience with the number of justices they have had to do the justice business of the county and how many inhabitants have been represented by a justice. I apprehend it will vary some in different counties, as the business of the counties unquestionably will vary. We want to vote understandingly on this point. If one justice is enough for a thousand or thirteen hundred people, do not let us have more, but if not we certainly ought to have more. It is a question, I think, that can be determined by the facts. Gentlemen, especially from the large counties, who are more at liberty than the smaller ones, should appoint such a number as best suits their convenience. They can tell what they average to the population. There is another consideration in connection with it: I apprehend more business will be done by the justices hereafter than heretofore. The abolition of the county courts will to some extent necessitate this. I should like to hear from gentlemen what is the state of things in their counties, because it is a question that ought to be determined not from any prior opinions but from the facts and experience in the case; for if we limit the number here, it cannot be changed without an alteration of the Constitution, and whether we had not better risk something on the other side than to make the number too small.
MR. LAMB. I would propose in reference to this matter the inquiry whether these details ought not to be left to the Legislature, to act as convenience may hereafter require; and with that view I would move to insert after the word "one" where it occurs in the amendment of the gentleman the words "or more"; and after the word "one" where it occurs in reference to constables the same word. Then the Legislature will prescribe the number of justices and the number of constables as convenience may be found to require. We have, for instance, in this county, if I recollect aright, eight magisterial districts. Each of these districts elects four justices of the peace. We have thirty-two for this county at present. The gentleman's amendment as it now stands would cut us to eight with a probable increase of the business before justices. I cannot undertake to say eight justices would be competent to discharge the business of this county. At any rate, I think we had better not adopt an inflexible provision with our present lights on the subject.
THE PRESIDENT. The question is on the amendment of the gentleman from Ohio.
MR. STUART of Doddridge. My experience is this in this matter: that the multiplicity of justices is simply for the accommodation of the people, not at all necessary to have them to do the business. One justice in a township is enough for the people to transact their business, and I can assure the gentleman it is amply sufficient. In my county with a population of six thousand one good justice is amply sufficient to do all the business of the county and it is done by one or two justices. When we happen to have a good one, he does the principal business of the whole county. We have four districts in our county. All those four districts center about the court house. Each corner of our court house is in a separate district, and pretty near the entire business of the county is done at the court house, and almost exclusively done by one competent man. We have four justices of the peace in the district - sixteen in the county; and, except during county court business, there are very few of them that do any business at all. I remark again the multiplicity of the justices is for the convenience of the people getting to them. One justice is amply sufficient to do all the business that will arise in any township unless you make them entirely too large. I presume there will be no county but will have at least four townships and four justices of the peace from that up to 10, which I believe is the maximum. Now, sir, if we will adopt the amendment of the gentleman from Taylor, it would give but one justice to a township, and having the one for the township if these justices are paid for the business they perform it may be worth something in the township and will induce some man who is competent to take the office, while if you divide it up and cut it up no man really competent to do the business will take any interest in it, and it will be just as now, offices filled by men totally incompetent to do the business. My experience at least leads me to think the amendment of the gentleman from Taylor ought to be adopted.
MR. BROWN of Preston. I believe, sir, the statute requiring two justices to take the privy examination of femme covert has been repealed and it now requires but one. This seemed to be the necessity for so many justices of the peace, so that justices might not have to travel great distances to get two justices to attend to taking acknowledgments. My county is divided into eight districts, in each of which are four justices, making 32 in all. In the district in which I reside, in which is located the county seat, one justice of the peace does really all the business that is done. We have four but there is no necessity for them. Besides, Mr. President, we contemplate, I believe, to make this office of justice of the peace a rather important office, a permanent office, an office that will require the time and the attention of an officer; that will require him to keep an office; to devote perhaps almost the whole of his time to the discharge of the duties of his office. If so, sir - if this is the purpose designed by the report - I think, sir, one justice in a township is a sufficient number. He is a prominent man and he has a place where he may be found; and, as has been remarked by my friend from Doddridge, if you increase the number of justices you make the office a trifling concern and no man who has the qualifications for the office will seek it. Hence I am in favor of giving to each district one justice.
MR. VAN WINKLE. Will the gentleman tell us how many justices there are in his county, and the population?
MR. BROWN of Preston. There are 32 in the county; the population something over 13,000 - some 1200 to 1500 in a district.
MR. VAN WINKLE. One justice to about four hundred inhabitants.
MR. SINSEL. I have had some experience as a justice of the peace - nearly twelve years as such, in the county of Taylor; and during the construction of the Baltimore & Ohio Railroad we had a large increase of business. Many attachments - hundreds of them - were sued out by individuals. I was the only magistrate that resided at the county seat. A large amount of the business of the county was done there. All these attachments were issued there and tried there. They would come there and consult the lawyers and clerk, and the whole run of the business came there. Well we had at the census of 1850 a population of something over 5,000, I think, and now it is over 7,000. Well, during the construction of that road a large amount of business was done at Pruntytown with no very great inconvenience to myself. I could have transacted three times the amount. And that was done gratis - no pay connected with it; and if you attach a fee to the office hereafter why men would be more ready and willing to devote their time and attention to it. During the construction of the Northwestern Virginia Railroad, the business was still increased again. The business was then done by about three magistrates, one at Fetterman, one at Pruntytown and one at Claysville; and they could have done ten times the amount of business. Now, if you want a competent man to fill the office of justice you must make the office respectable; you must make it a position of honor rather than one of degradation. Then men competent to discharge the duties will accept of it. We have twelve magistrates - three districts; and as a general thing three magistrates, outside of the business done by the county court, transact nearly all the business. The three residing at the little villages do the business. The other country magistrates very seldom come in to do anything; and that only occupies some three or four hours a day at each place. So I think one is abundance.
MR. WARDER. I hope the resolution of the gentleman from Taylor will be adopted. Experience has taught me about what he has said. I have been a justice myself and I find a justice can do an immense amount of business. I have given as many as 70 or 80 judgments a day myself; and I find no inconvenience; and I think it would be proper to make it an office of some honor. I hope the resolution of the gentleman from Taylor will be adopted.
MR. VAN WINKLE. I rise now for the purpose of giving notice that when the question is taken I shall ask for a division of the question, to separate the question of the length of the term from the question of the number of the justices. The remarks of gentlemen have satisfied me that if, as they suppose, these justices are to receive fees for their labors one will be enough for the largest township. If a man can, as it were, make a business of it and be rewarded for it suitably, I apprehend from what the gentlemen have said one will be enough. I am not opposed, either, on the view that justices are to be a strictly judicial officer to increasing the length of their terms.
MR. BATTELLE. Mr. President, I just wish to say one word, and that is, to begin with, that I agree with the gentleman from Doddridge that this matter should be regulated by reference to the convenience of the people. It does seem to me their convenience will not be consulted by making a change so decided and great as is proposed in the amendment now pending. You propose to reduce the number of magistrates just so far as, or as nearly as we can well go. Now, gentlemen tell us that in all these counties they have been accustomed to have four in a magisterial district and on a supposition that townships will be about that size you propose to have but one where you have had four. I am in favor of change where change is desirable, but I think that is a little too strong. I think the convenience of the people would be better consulted by having at least two magistrates in each township. And here is another reason: if you have but one magistrate he will sometimes be sick or absent. His business or other cause will sometimes take him away, and you tie up the people in that township when you compel them to transact all their judicial business before one magistrate and nobody else. It is sacrificing the convenience of the people unduly and unnecessarily. I am in favor, however, of one feature of the amendment of the gentleman from Taylor. I believe the term of service should be lengthened from two to four years and for the reason which he has very clearly and properly stated that when a man who comes from civil life perhaps without previous training, for this work has acquired by study and experience some qualifications for office he should not be so suddenly or soon removed as to deprive the community of his services. I am opposed, however, to the proposition of making in all cases at least but one magistrate for each township. I think there ought to be at least one for every township and two for larger townships; but it would suit me better to have two for every township.
MR. HERVEY. The very fact, sir, that we have had a multiplicity of magistrates heretofore obviates the objection of my friend from Ohio. They have been in training for the last ten years and are better prepared to discharge the duties of the office. I heartily concur in the remarks offered by the majority of the members who have spoken on this question. The district in which I reside has four magistrates. Of course, there was but one docket kept in that district and the magistrate who kept that did business. But I know justices of the peace in our county who have been justices for ten years and have never yet kept a docket. They go to court and discharge the duties there, but they will not keep a docket if it is possible to avoid it. They get no fees. A great many men are very much afraid that they will hurt somebody's feelings by deciding a case and consequently they will ward it off. Like all the other gentlemen who have spoken I have had some experience myself and I know this to be the practical working of it.
MR. VAN WINKLE. I would like to call attention of the Convention to a provision in the 7th section which reads:
"In case of a vacancy in the office of justice or constable in any township having but one, or of the disability to act of the incumbent any other justice or constable of the same county may discharge any of the duties of their respective offices within said township."
The gentleman from Ohio suggests that a justice of the peace might be sick or necessarily absent, and his argument implies that even the smallest township should have two justices. But the inconvenience he supposes is to grow out of it is provided for in this subsequent section. A justice may be sick or called away, and they get a justice from a neighboring township to come into that township and hold his court and do the business. I think that meets the objection of the gentleman from Ohio.
MR. LAMB. If any inconvenience should result from limiting the number of justices to one to each township, that inconvenience will apply just here in Ohio county. You limit the number of townships to ten. We have eight magisterial districts. Fix it as you will, we will have townships of 3,000, 4,000 or 5,000 inhabitants perhaps. If this rule can operate inconveniently in any respect anywhere it is just here. Even on the rule first stated by the gentleman from Taylor that three justices did business conveniently for that county, one would not be sufficient for a township here - for some at least. There ought to be some provision, it strikes me at least allowing the legislature some discretion to regulate this matter according to what experience may show to be the necessity of the case.
MR. VAN WINKLE. Have you not under your city charter a number of justices called "aldermen"?
MR. LAMB. Yes, sir.
MR. VAN WINKLE. This could not interfere if that charter in that respect remains in effect.
MR. LAMB. What we call aldermen here in the city are by the very Constitution of the State declared ex officio justices of the peace. It is by a clause expressed in that manner that they derive their jurisdiction. There ought, then, at least to be as many here. That would prevent this section from repealing that clause of our charter. If that was done, why, it would probably obviate the difficulty so far as we are concerned. But if we had two or more justices to a township I suppose our aldermen might be dispensed with.
MR. VAN WINKLE. The county of Ohio has its population and is so exceptional that of course one single county ought not to rule all the rest, and particularly as there is no occasion that it should; because the gentlemen from that county can easily introduce a provision. We all know its peculiar circumstances, the largest city in the State, by which an exception could be made in favor of that county such as the gentlemen from that county might indicate.
MR. BROWN of Kanawha. I believe, sir, on considering this subject, that the section as it stands is about the best that can be made except in regard to the term. If it be the object in making justices to give them salaries or fees - which amount to the same - to enable them to quit all other business and follow this for a livelihood, then I imagine you are making government too expensive to be borne. The office of justice of the peace in Virginia has ever been one of honor and never of profit, and generally has been filled by gentlemen, more emphatically, perhaps, than in any other state of this Union. The addition of fees and diminution of numbers will not add to the character of the gentlemen who fill the office, in my humble opinion, and very little to the profits, for I do not believe it is profitable to diminish your number of justices so as to do the business of the county so far as to enable the officers that did do it to live by the fees without any other calling. The office of justice is one more for the convenience of the people than for the benefit or support of the officer; and, as was said by the gentleman from Doddridge, one of its great conveniences is its proximity to those who are to ask his services. One of the inconveniences that has been found in dealing with justices of the peace is in getting at them; and the greater the number the greater the convenience. It is very often the case that it is not convenient for them to discharge the duties when called on. Whenever you diminish the number to one absolutely then you place the community of that district entirely at his disposal. Well, sir, it may be said if he fails to discharge his duty you may prosecute him for neglect of duty or remove him from office for some default; but this would be attended with delays, annoyances and difficulties. The better way is not to oblige the community to depend on one man. I have never yet seen any one community where there was not some choice between two men, where there are two; and I think it is wise for every individual in the community to have a choice when that can be done. I am not in favor of increasing the number of the magistrates to any great number, and I believe this section contemplates such an increase is necessary and leaves the balance to the wisdom of the legislature. Now, as has been well remarked, at the court house of every county will always be found to be transacted three-fourths of the business almost of the county; and no doubt a justice who resides at the court house, though his districts or township may not be one-fourth the size or population of other districts in the more remote parts of the county, yet it will be found that justice will have three or four times the business to do because all suits are brought to the court houses where the lawyers reside and do their business and there are continual applications to administer oaths before the justices of the peace for attachments before justices of the peace, and continual applications of everybody, who more or less, have business at the court houses and go where their business calls them and take their wives along to get their acknowledgments of deeds; and all these things are continually recurring more than anywhere else. It arises out of the very nature of our transactions, the very centralization that must exist more or less where the court house is. I will admit, with the gentleman from Doddridge, that one man can do the business if he turns his whole attention to it; and in our own county, which is a large one and has a good deal of business to do, from my own experience I am satisfied an efficient man would do at the court house as much as eight or ten scattered throughout the balance of the county. Magistrates frequently postpone their cases to consult with the magistrate at the court house.
I therefore must oppose the motion of the gentleman, and if in order will move to amend it by striking out the whole of the amendment as proposed and insert in the section as it stands and insert the word every "four" years instead of biennially.
THE CHAIR. There are two amendments already.
MR. BROWN of Kanawha. Then I have no right.
MR. HALL of Marion. The county of Marion has a great reputation for its inclination to litigate. I have had pretty good opportunities of knowing the necessities of that people with reference to their litigation before justices, and if it were not for the object desired of having justices at convenient points such as proposed in the townships I would favor having but one justice in Marion, and I am satisfied he would do the whole business better than five hundred. Just as you multiply the number of justices you destroy their efficiency. I am satisfied, sir, that while it is true, the fees of a justice will not really in any one of these townships occupy the whole time of the justice so as to make his calling an honorable one to live by without attention to other business, yet to the extent that you make it worth more than now and to the extent that you multiply the thing and make it common, you really invite them to elect incompetent men, because they will say; "I will vote for this man; he treats me cleverly, and we will depend on some other man for the justice to do our business." If you say to the people that "you are selecting a justice of the peace to do your business, he is to be the justice," they will see to it that they get a good justice. You are more likely to. It is a notice to people in advance to be careful whom they elect. Some one remarked that if the people would not give proper attention to the selection of their officers, they did not deserve to have officers. If they did not give proper attention to their own interests, I would let them lie on the bed they had made. It will teach them to make a better one next time. We have got to make the people feel the importance of this thing in order to secure proper action in the matter. I trust we will not allow more than one in each township. There is a necessity for that. I trust we will have but one in each township; and then we will be more likely to have a good one; and we will avoid so far as we can the multiplication and addition of officers in the community.
MR. DERING. I am utterly opposed, sir, from my observations, to confining the number of magistrates to one in a township. There are various reasons that might be urged against this restriction. In the first place, as indicated by the gentleman from Kanwha, where you have only one in a township you inaugurate a little despotism there, and the people of that township are necessarily confined to that one man for the disposition of magisterial business of that district. In the second place, sir, there are many cases from which there is no appeal that are brought before a magistrate; and you confine the people of a township to that one person and in many cases you have no appeal from his decision. There are various considerations, sir, why some men in a township would not wish to go before a particular magistrate in order to have their business done. Personal ill feeling, neighborhood bickerings, and various other considerations that would prevent them going to him. But he is the only magistrate in the township and the people must necessarily go to him for redress of their grievances in all cases subject to his jurisdiction. Now, sir, the legislature has been increasing the jurisdiction of our justices, and you go to him with a suit involving $50 - or I believe it has been extended to $100 - and you must go to him to decide the matter. There are many important causes involving considerable amounts brought before him, and you have to rely on that magistrate's decision. From observation and experience magistrates when they have important cases before them, either criminal or civil, have called into their aid a magistrate of another neighborhood to come in and sit on the case. He has the benefit of his counsels and advice; but if you limit it to one in a township, he cannot have that advantage and benefit. There will be in my county some ten townships perhaps. Well, sir, we have now some 32 magistrates. If you cut it down to a magistrate for each township, you will only have ten in the county. Magistrates are cheap, sir, and the litigants will have to pay the piper for the adjudication of their small cases. Let us not then be deterred by this question of economy from giving the people all the facilities they need in order to promote the ends of justice. I am utterly opposed to one and would much prefer three or four.
MR. LAMB. The precise effect of the amendment I propose would be this: not to require that there should be more than one justice in each township but to leave that matter to the discretion of the legislature, who will act with the lights of experience before them. The amendment I proposed was to insert after the word "one" the -words "or more." Then the legislature would regulate this matter as might be found more convenient; probably start with one justice for each township; if it was found that would not work right, they would be at liberty to act in the matter as the convenience of the people might require. The great difficulty in regard to this matter will lie in this county because the townships will necessarily be as large in population as many counties. I do not object, even in that state of the case, peremptorily to the one justice, but I do object to tying us down to that by a rule that admits of no alteration whatever experience may prove to be the result of this system.
MR. HAYMOND. Mr. President, I am decidedly in favor of the amendment of the gentleman from Taylor. I believe one justice is sufficient in a township, I differ from the gentleman from Monongalia, who says he would prefer four. Now, sir, my people are tired of seeing so many justices. They told me when I came here they wanted me to cut down this county court business. I told them, sir, that if I lived to come here I should help to put an end to the county court system; and, sir, as to the business one justice can do it better than a great number. And I will say to the gentleman from Ohio that I have no doubt that one justice can do the business of Wheeling better than ten. If you have but one, you will always find him at his office. If you have ten you will never find any of them. That will be the result exactly. I therefore am decidedly in favor of only one.
MR. HAGAR. One justice of the peace might very well do the business of the township in which this gentleman lives. At the same time one might not be fully able to discharge the duties devolving on them in another township. The people have the right if they see necessity to ask to have another justice. If one is sufficient, that is all the people want. If they want two, let them have two. We should I think remember that, that people should have their choice; should be free. There is a great deal of power vested in this Convention, and we should be very watchful that we do not transcend the right. The people should have power to ask the legislature to make these changes if they see they are needed. If they do not need another justice they will not ask for it. It is for us to say whether that township until another Convention is called shall not have but one justice. That is more than I am willing to say while I am one member of this Convention.
MR. VAN WINKLE. Would it not probably accommodate all the gentlemen, at least all who have expressed themselves, if we adopt the four year term for justices and increase this number; that is, towns having one thousand to 1300 to have one justice; the second justice in the few townships where needed as in the exceptional case of Ohio county. I think that would meet the views of the gentleman from Kanawha, who desires a second justice where the numbers are sufficient. That could be effected as I have indicated. It would embrace the idea of the gentleman from Taylor himself. It would be giving the second justice only in what may be considered purely exceptional cases; and, of course, if we can provide for exceptional cases the same spirit that leads us to attempt to suit the convenience of the people in other respects would lead us to satisfy it in that respect. It seems to me that so far as gentlemen have expressed themselves two alterations would meet the views of everybody.
MR. PAKKER. I have looked through the report, and I do not see any exception made of Wheeling. I had supposed that was excepted from the operation of the township law. I do not find any. I would inquire whether the intention is that the law shall apply to the city of Wheeling. I never knew where there is an incorporated city that the township system was applied to it. I think in a number of states where the numbers in a township become so great that the people cannot act in a body conveniently the practice is for the legislature to grant a charter and they pass from a township to a city. That has been my experience as far as it has extended. I think I never knew an incorporated city to be subject to the general township system. Seems to me there would be great difficulty in applying it to the city of Wheeling. I would inquire if that is the case.
MR. VAN WINKLE. I had drawn up, though I have not got it with me, and intend to offer when we get through this report, some general provision in reference to the incorporation of towns and cities. I do not know that as I have drawn it it would meet the case of the gentleman from Cabell; but I will state here that before this report is disposed of I shall offer as an independent section a provision in reference to incorporated towns and cities; and then any peculiar provisions that are necessary to put in to meet the case could be offered as additions if I did not provide for that case. I think, however, the suggestion I have made when up before will probably meet the views of all so far as the counties outside the cities are concerned; and I presume if the cities are to be divided into townships - if the city of Wheeling is to be divided - it would suit the representatives of that city not only perhaps that the subject of incorporated cities but of future incorporations also should be left to come up as a matter by itself.
THE CHAIR. The question is on the amendment of the gentleman from Ohio: Insert in the amendment of Mr. Sinsel before the word "Justice" the words "or more," and before the word "Constable" the words "or more."
The vote was taken and the proposed amendment was rejected.
THE CHAIR. The question recurs on the amendment of the gentleman from Taylor: To strike all of the third sentence from the beginning to the word "but" and insert: "They shall elect one justice of the peace for the township, whose term of office shall be four years, and one constable, whose term of office shall be two years." There is a division on it.
MR. VAN WINKLE. I will move to amend the amendment by making the term three years instead of four.
THE CHAIR. The question is on the amendment of the gentleman from Wood, to make the term three years instead of four.
MR. BROWN of Kanawha. I prefer four years, decidedly.
The amendment was agreed to.
MR. VAN WINKLE. I believe now I shall feel inclined to vote against the amendment of the gentleman from Taylor, with a view if it is rejected of offering an amendment increasing the number, that is to elect the second justice.
MR. BATTELLE. I wish to say that I am opposed to the amendment as it stands for the reason already given. In addition to that I think one justice to a township should apply only to townships too small to need more. I wish the Convention to understand that I make that objection without any reference to Wheeling, for it is likely some provision can be made by which she can be accommodated. But I do think, for reasons already given, and for others which might be given, that to tie the legislature down to one magistrate for a township would operate most injuriously for the interests of the people, and that is the thing to be consulted here. Now, suppose we have a township ten miles long. It may chance that the person whom the people believe to be the best qualified lives away in one corner of that township. You cannot expect in a township, especially sparsely populated, that a man can keep an office separately from his dwelling in some central part. You then require the people in that other end to ride ten or twelve miles and an equal distance back, to reach a magistrate. There is no necessity for it. A provision granting at least permission to have two does not oppress anybody. It is a question in which the simple point involved is the interest and convenience of the people. If the people want that magistrate to do any business for them they will call for him and pay him for his services; if not, why not, and that is the end of it. Now, will you tie up the legislature so that in cases of that kind they shall absolutely elect but one magistrate for all time, if our Constitution lasts that long? My objection lies not in reference to any particular locality, but in reference to what I conceive to be the convenience of our people thoughout the bounds of the new State. The consideration heretofore offered by myself when I spoke before, and repeated by other gentlemen perhaps in much more forcible shape than I put it that it seems to me in reference to the magisterial or judicial business, you subject the people to a sort of little petty despotism when you say their whole business shall go before one magistrate or anybody else. A man will be sick or absent temporarily on other business. That is to be expected. I have no idea that business in most of the townships will be such as to justify a man in leaving his farm or merchandise to go into some central point to open a magistrate's office. He must be allowed, of course, to exercise his discretion in leaving home occasionally if he wants to. He must be allowed to get sick once in a while if he wants to. In all such cases you require the people to go off into a neighboring township or leave their business unattended to. One of the functions of a magistrate certainly is, a very important one, throughout all our country, is a conservator of the peace. I profess to be somewhat acquainted with western Virginia. My whole life has been spent among its people, and I have tried to keep my eyes open in reference to the workings of these things as well as other things; and I have known instances where the peace of the community, the best interests of society, have suffered merely because no magistrate was accessible to attend to interests that required to be attended to. I do not pretend to say that in every township there should be two magistrates. There may be instances where one, so compactly is it arranged, can do the business. I object to tying down the legislature, however, by saying that there shall absolutely be but one for all time.
MR. STUART of Doddridge. The gentleman from Ohio and myself differ on this question and I know we do honestly. I feel some interest in this matter. Now as to this matter of a despotism if there shall be but one justice in a township, the same objection might be made to our judges of the circuit courts. Why in the world do we embrace a large boundary and ample compensation to judges of the circuit court?
MR. BATTELLE. Will the gentleman permit me one moment to say that there are provisions, always have been, by which if one judge of a circuit is not able to hold a court his neighbor might do it? But even granting that there may be long continued inconvenience to the people in respecting any business he is to do, this is a neighborhood matter, a kind of community affair, and an everyday affair, and the need of a magistrate may arise every day in the year. Not so in reference to the judges of the circuit court, who heretofore have only visited us once in six months.
MR. STUART of Doddridge. Now the argument that in this case where one cannot sit another can be obtained is just exactly the provision in this report of the committee where one of the justices of the peace is not eligible to sit or incompetent, or sick, that a justice of his neighboring district can sit. Now, I have been a good deal acquainted with the operation of justices of the peace in our country. I have paid a great deal of attention to it. I think the interests of a township would be promoted by having one justice and having him in such position that he will keep an office and we will all know when and where to find him. Now, if you have two or three justices of the peace the business may be divided among them. They will not give the same attention to it and have the same interest in the thing, and it is very seldom you can ever find one. They take no interest in the matter. They are not paid for their services, and if you go to one you are likely to go to two or three before you find one. Now I think to have but one the business will justify him keeping at least an office and record of his proceedings, and when you want a justice you will always know where to go and where you will find him. I would rather go four miles where I would have a certainty of finding a justice than two miles without knowing whether I will find him or not or whether I can be accommodated if I do find him.
It strikes me there is this advantage in the amendment of the gentleman from Taylor. I know well, as I before stated, that one justice in the district, even among a population of two thousand - taking the gentleman's county from Ohio, which has a population of 22,000, if there be in it ten townships, even to that extent a justice can do all the business; and if you increase the pay to justices it will only be for a matter of accommodation that the citizens could ask, not to get the business, for it can be done by one; and I hold the accommodation would be much greater to have one who will have such compensation as he will take an interest in the business and be ready to accommodate those who need his services.
MR. DERING. I do not desire, sir, to trouble this Convention with any lengthy remarks on this subject; but, sir, I know my people will be very much disappointed if we confine the number of magistrates and make them so few. In reference to the judges of the superior court, they have their periodical sessions. A few attend there and you can get through and your business done at the sessions of their courts. But not so in reference to justices. They are the conservators of the peace, and there are very frequently riots and sudden outbreaks and violations of the law. And suppose they are sick, or away from home, or suppose they live at some remote corner of the township, why, sir, when you need a sudden remedy for such wrong you are deprived of it entirely. It seems to me you had better leave this to the discretion of the people. If they want more than one, let them apply for it and get it. If they do not - if there are more than 1200 inhabitants according to the amendment of the gentleman from Wood let them have more justices. In a thickly populated township one justice is not sufficient to do the business. It seems to me that in every township in the State - particularly in the large townships - you can find more than one that is competent; so that you will not necessarily be confined to one man. You can take two, and you can certainly select two men that are amply qualified to do the duties of a justice of the peace. It seems to me that every consideration that ought to operate on anybody in the world ought to operate on us to give the people more than one justice of the peace.
MR. VAN WINKLE. I would like to call attention to a clause in the 8th section which provides that criminal jurisdiction of a justice of the peace extends throughout his county, wherever he is in the county. Of course, that has not been acted on, but I properly call attention to it in advance to show the gentleman that the case he suggests is provided for.
The vote was taken on the amendment offered by Mr. Sinsel, and it was rejected.
MR. VAN WINKLE. In accordance with what I said, I will move, if it may be done, by one motion, to insert 1200 instead of 1000.
MR. STUART of Doddridge. In order that it may be discretionary with the district, I would move to amend by saying "may" elect.
Mr. Van Winkle accepted Mr. Stuart's amendment; and the vote being taken on his own motion as thus amended, it was agreed to.
The Secretary asked for the precise amendment.
MR. VAN WINKLE. As amended, it will read: "If the white population of their township exceeds 1200 in number, may elect an additional justice." I move to insert "triennially" instead of "biennially." It will be necessary to thus insert "biennially" again or some other word before "Constables", but let us leave that aside until we settle this.
MR. BROWN of Kanawha. I propose four years, then, sir, as an amendment.
MR. PARKER. That has been passed upon once.
MR. VAN WINKLE. No, sir, only as to an amendment which was defeated.
MR. LAMB. It will be of some interest to know how this great question has been decided in other states. I see in the New England states the terms of justices are generally five years or above it. Virginia, New York, Indiana, Illinois, Michigan, Kentucky have four years.
MR. STEVENSON of Wood. Ohio has four years.
MR. LAMB. No; Ohio has three years. New Jersey and Pennsylvania have also five years. Tennessee has six years; the balance of the states have three years and two years. So far as the majority goes they are in favor certainly of a term at least as long as four years.
MR. BROWN of Kanawha. I would remark that we have fixed the senatorial term at two years. The reports I believe for governor, sheriffs, clerks, prosecuting attorneys and other officers are generally fixed at either double or treble the senatorial term. I should prefer four years. It is double the senatorial term. I think there are many reasons, if you go beyond the senatorial term for the election of justices at all that four years is the better term. Now, it is supposed the justice has learned something about his duty by practice and in consequence he will be better qualified to discharge it the fourth year than he would the third. The term is not too long if he should prove deficient. I can see no reason for three years if you go beyond one year. Take two or four.
The hour for recess having arrived, the Chair was vacated until 3:30 P.M.
At the appointed hour the President resumed the chair, but few members present.
THE PRESIDENT. The question is on the adoption of the amendment offered by the gentleman from Kanawha.
The Secretary reported it: Mr. Van Winkle had moved to make the term of justices of the peace three years instead of two as provided in the report. Mr. Brown of Kanawha had moved to make it four.
MR. VAN WINKLE. I do not think we ought to take a vote on a matter that has been the subject of debate with this small number of members present.
The Convention waited some five minutes, and there was still no quorum.
MR. STUART of Doddridge. Anything before the house?
THE PRESIDENT. The house has under consideration the adoption of the amendment to the amendment. We have been waiting for the members to come in.
MR. STUART of Doddridge. I would move a call of the house, Mr. President.
A MEMBER. Go ahead then.
MR. DERING. There are several members that have left for home. This will account, in some measure, for the scarcity of the members here. But others of them are at the court-house.
THE PRESIDENT. My impression is that where we have a thin house any way -
MR. LAMB. Perhaps we could get through with some business.
MR. VAN WINKLE. Yes, and have it all reconsidered or amended.
MR. STUART of Doddridge. There is certainly a quorum.
THE PRESIDENT. Is there any objection to proceeding?
There being none, the Secretary reported the amendment: The amendment of Mr. Van Winkle to insert "triennially" and that of Mr. Brown of Kanawha to make it "quadriennially."
MR. DERING. Mr. President, it seems to me we had better defer action on this matter at least until the gentleman who offered the amendment is here. It would be premature to take a vote during his absence.
MR. VAN WINKLE. I would inquire of the gentleman from Doddridge if the lower house of the legislature has adjourned?
MR. STUART of Doddridge. No, sir. I find on the last motion or two here to change the hour of meeting, he was one of the prompt men. If that be the case, we ought to go on with the business. The suggestion has been made that the section be postponed until the gentleman from Kanawha comes in. I said we had been extending this courtesy frequently to him; and I find on the last motion or two made with a view of meeting here early and sitting late the gentleman took the ground that we ought to be here early and late. If we do come here, let us go on with the business.
MR. VAN WINKLE. Well, sir, I am willing to pass by this precise sentence and see if we can do anything with the next. If we find we get further hampered and no other gentlemen come in we may as well adjourn. I suggest that we just by general consent pass by this precise question and see what comes next.
MR. STUART of Doddridge. I object to passing by.
MR. VAN WINKLE. I thought I was carrying out the gentleman's object.
The vote was taken on Mr. Brown's amendment and it was agreed to.
MR. VAN WINKLE. The vote taken only adopts the amendment to my amendment. It is not yet voted in the section.
The vote was taken on Mr. Van Winkle's motion as amended, and it was adopted.
MR. LAMB. As the sentence now reads, it would require the constables to be elected every four years. I presume that is not the intention of the Convention. I would move to insert in the 17th line before "as" the words "every two years". Then the section would read: "They shall also every four years elect one justice of the peace; and if the white population of their township exceeds 1200 in number, may elect an additional justice, and every two years shall elect as many constables as justices."
The vote was taken and the amendment adopted.
MR. STUART of Doddridge. I move to strike out after the word "justices" in the 18th line to the word "the" in the 19th line. I move to strike that out - the remainder of the sentence. I do not wish, Mr. President, that this should be retained here. This thing is referred back to the people every two years; and if they have a good constable, one that renders satisfaction to the township, I really do not see why he shall not be entitled to be re-elected if the people so desire. It is very difficult to get good constables. That is my experience in my section of country. If we find a constable that proves to be a good one, I cannot see why it is that he should not be eligible to re-election as often as the people desire to elect him.
MR. DERING. I shall oppose the amendment of the gentleman from Doddridge. It seems to me, sir, from past experience as well as observation in regard to the constables that it is not good policy to keep them in office too long and that it is well for them to return to the people and be out of office a while. Sir, in many instances in my county after a constable once gets to be constable he can perpetuate himself in office almost for an interminable series of years. Some of them have been there for a great many years. The result is that they have a great deal of unfinished and unsettled business on hands. It is almost impossible to get money out of a constable's hands; and there are always a class of voters in most of the districts who will rally to the support at every election and endeavor to keep them in office. A business community desires that they shall settle up sometimes and their business come to a conclusion at some period. There are constables in our county that you cannot get a dime from. They have perpetuated themselves in the office by the lever they have on the classes they had business with and the result is their business is unclosed; you never can get it settled. It seems to me it would be a wise policy after two terms at least that they should close up their business finally. They ought to do that while they are in office, but they have many excuses for not doing it, and the result is that you cannot get any settlement with them. I think it would be much the better plan to place them on the same footing as you place other officers, and let this office have the interregnum that other offices get.
MR. VAN WINKLE. This provision was pressed on the committee from various sources. For myself I received more than one letter and message from friends in the country, not from my own county either, urging some provision like this. The objects of it have been, I think, truly stated by the gentleman from Monongalia, namely: to place the matter in such a situation that the constable would be compelled to close up his business at least once in four years. He is to be elected for two years and may serve for two consecutive full terms. So that if he is allowed, happens, to be elected to fill a vacancy that does not count, but he cannot serve for two consecutive full terms, making four years at least; and then public opinion seems to demand that he should be compelled to go out of office in order that it may become absolutely necessary for him to settle up the business. My impression is, although I have not much practical experience that it would be found rather a valuable provision. If the officer knows the time is coming when he has got to settle up he will perhaps be more prompt in settling up while he continues in office.
MR. STUART of Doddridge. I do not want to detain the Convention only two minutes on this question. I would simply desire to give the Convention my experience in this matter. It is very difficult to get a good constable, I remark again. In the county of Doddridge we have four districts and were in the habit of electing two to a district. In the course of the last six years I do not believe that there has been but two constables in the county that has not in these years broken up themselves and the men who were their securities. There is but two good ones left in the county that would accept it. Now, sir, you say under such circumstances as that the people should not have a right to choose these men who have performed these duties satisfactorily is an arbitrary rule and should not be adopted here. It is not every man you can get to act as constable, and when you get a good man who agrees to take the office, who is elected and proves himself efficient and worthy I again remark I can see no propriety in preventing him from election to the office. The gentleman from Monongalia says it is an impossibility to get money out of the hands of constables. If that is the case I see nothing to gain by a perpetual change in these matters. Perhaps it would be better to retain them and they may finally, in some way, pay over the money. But if you must have a new constable, say every four years the same rule will be carried out and you cannot get money out of a constable anyhow. The only way you can get it would be to force it out of them according to law. But suppose you elect a constable and you find him performing the duty promptly to the hour and then you refused to vote for this man and vote for a man who will be the reverse of that in all probability.
MR. HAGAR. It is true it is pretty hard to get good constables, and it is pretty hard to get bad ones out of office. There seems to be a portion of the people in every county that thinks the constable that hardly ever collects and pays over is the best. Hence he always gets that vote. Most of them have their favorite friends and they go for them. My experience has been, as a general thing, on that subject that the longer a constable stayed in - especially those characters that did not collect and paid over hardly any - the longer they stayed in office the worse; not only broke up their first securities but their second in many instances. I think the probability is that there may be more than one good constable found in every district; and hence it is important I think at least that their term of office should expire at the end of four years anyhow. Try somebody else: if he is not a good one, turn him out. The securities are apt to be good for their conduct for two years. I oppose the amendment.
MR. DERING. The logic of the gentleman from Doddridge is this, that if you get in a constable that will not pay over, who has pockets full of the people's money, why he is full and let him be. But, sir, I am not in favor of such logic. If we get in a constable that doesn't do his duty and the people are groaning under that kind of defalcation, I want to elect a new one and force the old one by law to go out of office at the expiration of two terms and force him to settle and pay over the money he owes those who entrusted him with their collections. I will try some other and will keep on trying until I get an honest constable.
MR. STUART of Doddridge. What will you do with him?
MR. DERING. Why, sir, he will likely turn out a good one. But if the gentleman from Doddridge has only got two men in his county fit to be constables, we can send him some over from Monongalia and will be happy to do it.
MR. SOPER. This, sir, is a very important office - as much so probably as any in the town, and I am ready to admit that the complaints that have been made by some of the gentlemen of the Convention here as to the improper conduct of constables not paying over moneys in their hands is too true. I attribute it, sir, in a great measure, to the laws on this subject. I think the remedy rests with the legislature; and now I will suggest what my own view on this subject is. I will state, in the first instance, the best constable I ever knew in my life was a man who continued in the office, to my knowledge, some fifteen years. To start with, he was an honest man; and in the next place, he was a temperate man; and in the next place, when he got the money he collected he would hardly seem satisfied until he paid it over either to the justice or to the plaintiff.
In the new State, if we should be so fortunate as to get a constable of that description, I submit to the Convention whether he should ever be removed so long as he was willing to hold the place. It appears to me we would all be glad to retain him.
Now, where is the defect in the law? It is this, sir. As the law now stands your constable gives a bond with sureties in the penalty of $2000; and you have no clause in your statute by which you can bring an action before the magistrate on the condition of that bond to compel him to pay over the sum of money. You are bound to go into court to collect it. The way in which business has been conducted in these courts, it will take perhaps a year before you can get your trial or judgment. A man who has say $250 in the hands of a constable does not wish to incur such an expense. My course would be to call on the legislature, in the first place, to alter the shape in which the surety should be given. I would have it a simple undertaking in writing by which the constable and his surety would obligate themselves to pay over to every individual such sums of money as the constable from time to time should become liable to pay. That instrument, sir, I would have filed in the town clerk's office, upon which if the constable collected any money within the jurisdiction of a justice and did not pay it over at the return day of the execution, the plaintiff could go immediately before a magistrate and bring a suit against him and his sureties; and in the due course of six or twelve days, or whatever the time that should be fixed, you would be able to get your judgment. That would be one remedy. I would go still further, sir. Now, sir, it is the law - or ought to be - that when an execution issues it is to be returnable to the magistrate in a certain number of days. I would add to that that the constable should return that execution within five days after the expiration of the return day to the magistrate. He should return it either levied on property, return it if he wanted property, or return it the money in hand. I should compel him to make one of these returns. If he refused to make the return or if he returned he had the money in hand and did not pay it, I would then authorize the party or any individual to make application to one or two magistrates to take away from him his office in case the money was not paid over within ten days.
If the legislature would pass laws such as I have suggested you would hear none of these complaints against improper constables. If the constable knew that it was in the power of the party to remove him from his office for neglect to pay over within ten days after he received the notice he would do it if he wanted to retain the office, and, if he did not, his office would be taken from him and the magistrate who did it would appoint his successor until the next annual election came around. And furthermore the money would be recovered from his securities. I think with proper legislation on this subject the motion of the gentleman from Doddridge a beneficial one.
The question on striking out was put and the motion was agreed to, the yeas and nays, on motion of Mr. Lamb, being recorded as follows:
YEAS - Messrs. John Hall (President), Brown of Preston, Brooks, Battelle, Haymond, Harrison, Hubbs, Irvine, McCutchen, Parsons, Parker, Robinson, Stevenson of Wood, Stephenson of Clay, Stuart of Doddridge, Soper, Taylor, Wilson - 18.
NAYS - Messrs. Chapman, Dering, Dille, Hansley, Hall of Marion, Hagar, Lamb, Powell, Paxton, Sinsel, Simmons, Stewart of Wirt, Van Winkle, Walker, Warder - 15.
MR. VAN WINKLE. Well, sir, the question recurs on this whole sentence, I suppose, as amended.
THE PRESIDENT. The question is on the adoption of the sentence as amended.
The vote was taken and the amended sentence adopted.
MR. VAN WINKLE. I move the adoption, sir, of the remaining sentence of this section, with the simple remark that in providing that the supervisor shall preside at this meeting there was something more intended than to provide a person to do it. It was that through his connection with the county board he would be able to give the town meeting such information as they would unquestionably require.
The remaining portion of the section, which was as follows:
"The supervisor, or in his absence a voter chosen by those present, shall preside at all township meetings and elections, and the clerk shall act as clerk thereof."
was then adopted, as was also the section as a whole.
MR. VAN WINKLE. Well, sir, I propose to take up the following section by sentences.
The Secretary reported the first sentence of the 3rd section as follows:
"The supervisors chosen in the townships of each county shall constitute a board, to be known as "the supervisors of the county of.................," by which name they may sue and be sued and make and use a common seal, and enact ordinances and by-laws."
MR. VAN WINKLE. It may be only necessary to say that the object is the same as in reference to the townships, to make them, as it were, a quasi corporation, a corporation for such purposes as it is necessary that they can sue and be sued and can act by their common name by ordinance and by-laws.
MR. PARKER. It seems to me that an amendment something like this would be desirable: "not inconsistent with the Federal or state Constitution."
MR. VAN WINKLE. It is certainly unnecessary, because if they did such a thing it would be a dead-letter. There can be no objection, except that it is unnecessary.
MR. PARKER. The only difficulty is that this is a fundamental provision. This is the fundamental law. If the legislature should pass a law in contradiction to the Constitution, of course it would be a dead-letter. Otherwise, we clothe the supervisors in the fundamental law with power to enact such ordinances and by-laws as they see fit; and being a part of the fundamental law, they could not be controlled: enact ordinances and by laws "not inconsistent with the provisions of this or the Federal Constitution." I would add likewise this: "or the law of the land." What I mean is that the by-laws and ordinances that this board may pass shall be in conformity with this Constitution, with Federal Constitution and also with the general laws of the land.
MR. LAMB. I would suggest to the gentleman this is certainly unnecessary, to say that it shall not be inconsistent with the Constitution of the United States. We cannot authorize anything to be done that is not consistent with that Constitution; nor is it necessary to say that they should not be inconsistent with our Constitution. That is necessarily implied. But I am not sure that it may not be necessary to say that they shall not be inconsistent with the laws of the State. This is a constitutional provision authorizing them to make ordinances and by-laws without limitation. The same Constitution which gives legislative power to the legislature gives a legislative power to this board. It may be necessary to imply in some way that these laws shall be subordinate to the general laws.
MR. PARKER. I should differ with the gentleman from Ohio. It would strike me that the acts and ordinances of the supervisors under this section would be limited by this Constitution. So far as the Federal Constitution is concerned I admit that all the acts of this Convention or acts of the legislature or board of supervisors, all of them are in subjection to the Federal Constitution. But if the fundamental law authorized a certain body to go on and pass its acts and its ordinances without any limitation, why I do not see where we find anything in the same instrument having any higher power, because no part of this Constitution has any higher power than this clause. This clause clothes this body with power to pass these laws and ordinances without any limitation whatever. Seems to me this clause clothes the board of supervisors with a power without any limit or stint, to nullify and over-ride any clause in this Constitution. What limits them? Is there anything in it that goes to show they shall go so and so or pass such and such ordinances, provided they do not conflict with other provisions of this Constitution? Nothing of that kind. It is without any limitation whatever. Well, now, this clause conferring this power is just as fundamental and controlling as any other part of the Constitution. Therefore it does thus confer on the board of supervisors a certain power extend to over-riding, repealing, altering any other provisions that the Convention has seen fit to put in this Constitution? That certainly cannot be the meaning. It must be that their acts and ordinances are to be within this Constitution.
MR. VAN WINKLE. It seems to me it is preposterous to suppose that any court of justice - for that is where the question must go for decision - if it ever is decided - would deliberately pronounce that a body could go contrary to the very instrument that created it? Now, sir, I cannot see that there is any judge in this State, or elsewhere, that would come to any such conclusion. The clause the gentleman speaks of is frequently introduced. For instance, a railroad is authorizing its board of directors to make bylaws, rules and regulations. There they may very properly say they are authorized to pass the necessary regulations and by-laws not in conflict with the Constitution of the State or the Constitution of the United States. The idea is that this is done to save themselves from the consequences of any illegal or unconstitutional acts by that board. But here in the very instrument that gives them power, it is preposterous to suppose that anything could justify them in acting contrary to that very instrument. When they are appealed to, when any of their acts is questioned, to know by what authority they are acting, they must produce this very Constitution as the only thing that gives them that right; and then how would it do to say, we admit your Constitution to be binding so far as it authorizes us to do anything but we deny its binding force on us in other respects? The mere statement of the case in that way shows that this amendment cannot be necessary. It certainly would not do any harm, but I am very much opposed to introducing unnecessary words into the Constitution.
The vote was taken on Mr. Parker's amendment, and it was rejected.
MR. VAN WINKLE. Well, sir, if no amendments are offered, I will move the adoption of the first clause.
The vote was taken and the clause adopted.
The Secretary reported the second clause:
"They shall transact the business of their county in legislative form, for which purpose they shall meet statedly at least four times in each year at the court house of their county, and may hold special and adjourned meetings."
MR. LAMB. Mr. President, I would prefer the words "in legislative form" omitted. We will have a board of supervisors in some counties consisting of three members. How are they to transact business in legislative form?
MR. VAN WINKLE. I do not think, sir, the clause is liable to the objection of the gentleman. It does not mean to say they shall have all the instruments of legislation this body has. I do not think it implies anything more than that they are to proceed by discussion, deliberation and vote. You have provided elsewhere that at their meetings one of them must preside. Then again they must have a clerk to record their proceedings. I do not think the words imply such as the gentleman thinks they do. If they did, they might be objectionable. The town council of Parkersburg is composed of seven members. They transact their business around a table - not as we do - and discuss it; and when it comes to a vote, they vote on it. So with the boards of banks, etc., that I have been connected with. The president sits at the head of the table and the members sit alongside. These formalities are not what is meant - that a member shall rise and address the Chair, for instance before speaking. The votes are taken regularly and are recorded regularly.
I must insist, then, that the gentleman has been unfortunate in his selection of words. This thing of transacting business "in legislative form" does not mean that members shall sit round a table and talk over business. The word used is "form." It is the forms of legislative bodies that are to regulate business. What are those forms? Your rules of order, your calling ayes and noes, etc. These are the forms. The discussions that take place in a legislative body are not the forms in which the business is transacted. If the gentleman means nothing more than that they shall meet and discuss their business, talk over their business, and come to a conclusion by a vote, the terms used here, it strikes me, are very unfortunate. The words "legislative forms" imply, I take it, the adoption of rules of order, the enforcement of these rules, the calling of ayes and noes, and all this. It is not the substance but the form; not the free discussion that takes place in legislative bodies that are included in this expression but the forms which regulate their proceedings.
THE PRESIDENT. Did the gentleman from Ohio offer any amendment?
MR. LAMB. I move to strike out the words "in legislative form."
MR. PAXTON. I would suggest, in order to accomplish what my colleague appears to desire, that after the words "They shall" all be stricken out down to the word "meet" in the 28th line, so it would read: "They shall meet statedly etc."
MR. LAMB. I accept that as a decided improvement on my own suggestion.
The amendment was adopted, and the Secretary reported the clause as amended: "They shall meet statedly at least four times in each year at the court house of their county, and may hold special and adjourned meetings."
MR. HAYMOND. I move to strike out "four times" and insert "twice."
MR. VAN WINKLE. Mr. President, if these wants of roads and bridges, and things of that kind, and licenses, and many other things which will be confided to them are to have attention when needed, it would seem to me they would require more than two meetings in a year. That would be only every six months. Now, if they meet four times, at intervals of three months, it seems to me it would better answer and suit the business of the people. If they met but twice a year they would have so much business to transact, the public business would be impeded and delayed. If they met four times, it could be dispatched in a shorter time, with more facility. Nothing would be saved by the longer interval, while the public affairs of the county would be delayed and the people inconvenienced.
MR. HAYMOND. If it can be done at two meetings, I much prefer it. The people in the country are tired of so many meetings, and courts, and all these things. We wish to cut everything down. I would prefer to very much myself.
The amendment was rejected; and the question recurring on the clause, it was adopted.
The Secretary reported the succeeding sentence:
"At their first meeting after the annual township election, and whenever a vacancy may occur they shall elect one of their number president of the board, and appoint a clerk of the county whose compensation they shall fix by ordinance and pay from the county treasury, who shall keep a journal of their proceedings and transact such other business pertaining to his office as may be by them or by law required."
THE PRESIDENT. The question is on the adoption of the concluding clause of the 3rd section.
MR. STUART of Doddridge. I move to strike out all after the word "Board" in the 33rd line, so that the board should not have the fixing of the compensation. It may be a matter of favor. They can make it large or small. When fixed by the legislature the party elected to the clerkship will know what he is going to get and the people will know what they are going to pay.
MR. VAN WINKLE. This clerk, sir, is not to be the clerk of courts and his duties will be very circumscribed, and his compensation will be very small.
MR. STUART of Doddridge. How do you know?
MR. VAN WINKLE. His services will vary in every county according to its size. But I apprehend there will be as much honesty in these boards of supervisors as there will be in the legislature (Laughter). The idea of a body of that kind seems to include that of a clerk - somebody who can not only keep their minutes but can give certificates of their acts, which will be constantly necessary. Extracts from their records must frequently be furnished, and they must be signed or certified by a clerk under the seal of the county. The officer, I think is an absolutely necessary one; and as his duties will be so different in different counties, it was thought by the committee that the boards of supervisors were the proper parties to fix it. I do not apprehend that as a general rule, unless some other duties are thrown upon them, that the compensation of any of these clerks would exceed perhaps one hundred dollars a year. He has of course to take charge of records and make these prescripts to parties who need them, and to that there might be a fee attached. But his principal duties would be to attend the meetings of the board and keep a record of their proceedings, which shall be an official record signed by the presiding officer, and from which extracts could be furnished as required. There may be other matters, as I have already observed, which may be thrown on this officer; and those matters, whatever they might be, vary considerably in the different counties. It would be impossible for a general law of the legislature to fix anything more about it than to fix certain limits within which it might be granted. Now, take any of the small counties - leaving out Ohio - take Harrison or Kanawha, either of them having 12,000 or 13,000 inhabitants; or compare with those that have less than 2,000, and then the intermediate - it would be impossible to fix any general rule for the clerk's compensation, I think. My impression is, sir, that it is perfectly safe to trust to the board of supervisors of the county, as it comes out of the county treasury and out of their pockets as well as the pockets of the other citizens and tax-payers, that they are in every respect the best body to fix this compensation. They are the best possible judges in each case what the services are worth. Who else can have any such intimate and precise knowledge of the duties, and who else can so well regulate that compensation as it should be regulated? I hope, sir, this clause will be retained; for I think that striking out the office would be almost to strike out the board itself in the character of a board.
MR. SOPER. I move to amend the motion, sir, by striking out only the words "of the county," so as to read that the board shall appoint a clerk, etc. Now, the provision that the board shall "appoint a clerk of the county" has doubtless made the impression on some that it means an officer similar to the one we now have, known as the "county clerk." It is something entirely different. It is a clerk to this board of supervisors. The clerk should have nothing to do except to record the proceedings of this board, and to do such things as will be necessary to carry out whatever the board may order. The principal labor of this clerk under the direction of the board will be in preparing the tax lists and collector's returns. That will be the greatest duty he will have to perform - the most laborious. I do not know what the views of the Convention will be as to as who should collect your taxes. If the taxes of the county are to be collected in the township by a township officer, why then the duties of these instruments will be equivalent to those of the townships. If, however, the taxes are to be collected by the sheriff, then the duty will be simple. Now it is impossible for this board to transact its business without they have a clerk to keep a record of its proceedings and give the necessary certificates and extracts which may be required by parties in the various duties they will have to perform; and no one set of men so well as the supervisors themselves will know how to put an estimate of the values of the services of this clerk. I suppose the services of the clerk will probably range from $50 to $100 in a county. I think they will not be more than that. As has been remarked already, it will be impossible for the legislature to fix the amount that he is to receive for his services, because it will vary so much in the different counties, and the legislature can only pass general laws which shall be applicable to all counties; whereas, if we leave it to the legislature the clerk in one county would receive probably four or five times as much as the clerk in another county. I believe it is the safe way if we let this board of supervisors to transact the business of the county appoint and fix the pay of their clerk. I therefore move, sir, as an amendment to strike out the words "of the county." I think that would disabuse the public mind of the impression that we are here giving this board the right to appoint what is now known as the county clerk.
MR. HALL of Marion. I cannot move an amendment but I wish to make a suggestion which will be in point when I say that I am opposed to both amendments for this reason: I have not looked at this report with that care that would enable me to make suggestions on many parts of it; but in looking to the 5th section where it is provided that we shall have a recorder of deeds and wills that in preference to the amendments proposed here I should like to see that officer made the clerk of the board. He will be an officer elected, who will be the keeper of the records at the proper place and could keep all the records of the proceedings of this other body. He is likely to be a very competent man for it, and in connection with that he could afford to do it for a less compensation than any one so similarly situated. I cannot move that as an amendment. I trust it may be the pleasure of the Convention to vote down these amendments to permit the offering of an amendment providing that the recorder of deeds and wills, to be elected by the county, shall be the clerk of the board and shall receive such compensation as the board shall determine.
MR. STUART of Doddridge. I hope the gentleman will not vote against the amendment, because my object in striking this out is exactly that we may insert exactly what the gentleman has indicated.
MR. HALL of Marion. You strike out too much.
MR. STUART of Doddridge. The object of my motion to strike out is not that this board should not have a clerk, but that it be inserted there and made the duty of that clerk to preside over the meetings of these boards. I must take issue with the gentleman from Wood when he said in all probability these boards would be as honorable a body as the legislature. I think the legislature is a very honorable body, and it would be very hard, indeed, to find a body more so.
MR. VAN WINKLE. The word I used was "honest". I have no doubt the legislature are the most honorable body that may be elected; I think the supervisors would be equally so. I was only raising the one, not lowering the other.
MR. STUART of Doddridge. Of course, the gentleman understands I was only joking. We will take them on the ground that they are equally as honest. This clerk is to be appointed by the board of supervisors themselves. It may be an appointment of a son, a friend of some member of the board; and it always will be; and they will be inclined to give a compensation to this clerk which he ought not to have. Where the legislature had no motive, they would be apt to fix the salary without knowing who is to get it; but this board fixes the salary after they know who gets the appointment and is to receive it. Now, that is my fear in this matter. I do not want to detain the body, because I must admit that I am not very well posted on these propositions; not half so well as my friend from Tyier; for he knows all about it and I don't know anything about it. I am willing to admit frankly; but I want to throw around this provision, if we adopt it, as many safeguards as possible. Does the board fix its own compensation? No, sir; that is fixed by the legislature. Well, sir, how does the legislature know how to fix their compensation any better than how to fix that of their clerk? They know just as well how to fix the pay of the clerk if it is to be so much per day. Because it will be like it used to be in appointing commissioners. Justices of the peace had the right to appoint commissioners. Well, they always appointed their sons; and until there was a special act of the legislature to prevent that it was invariably the case. So will be the case with these supervisors; will appoint some particular friend; and they will do it as "honest" as possible.
MR. LAMB. As well as I can understand, the plan here, this clerk is a very small office; it is a very subordinate position. We are likely to be misled in this matter by the expression "clerk of the county" which is suggested by the gentleman from Tyler. He does not occupy that position at all, according to my understanding. He is merely a clerk to record the proceedings of the board of supervisors and give extracts from that record when it may be necessary, and perhaps to do some other small services which may be specially ordered by the board. Now, if this board of supervisors is to be a deliberative body, why every deliberative body under the sun appoints its own clerk. If this is to be a clerk of the county, or a county clerk - such an officer as we have been accustomed to apply those terms to - of course, let him be elected by the people. But if he is simply a clerk to keep a record of the transactions of a deliberative body, who ever heard it suggested that a deliberative body was not to appoint a clerk to record their own transactions? In so small an office, I would not trouble, I believe, with electing him. If I can see into the plan here, the compensation of this officer must be exceedingly small. His duties will be necessarily of that character that the board of supervisors are the proper persons to appoint them.
MR. SOPER. A single word in relation to this matter, sir. The clerk of this court (board?) will probably reside at the county seat. The meeting of the supervisors will be in the court house. Their proceedings will be kept in the clerk's office. It is usual to employ one of the deputies in the clerk's office to attend on the business of the board of supervisors. It doesn't follow that it is necessary to have him. It requires a person who can write a plain speedy hand, and it requires a man who is expert in figures. These are requisites almost absolutely necessary and will be here in counties of Virginia, I apprehend, almost indispensable; and it is probable that it will be some active young man at the county seat or some deputy in the clerk's office who will perform this duty. The labor of it will be very little except during the session of the board of supervisors and probably for a day or two afterwards, and the compensation will be light. That is all, sir, that I wish to remark on the subject.
MR. PARKER. Only one word. It strikes me we are getting too many clerks. For instance, here is to be a clerk of the circuit court; here is to be a clerk of the board of supervisors; here is to be a recorder of deeds and wills. These are all to go into one office. That is, in our county, and in a good many, I suppose. It would seem some of these ought to be consolidated; highly important it should be so. County commissioners in states where I have known the duties that devolve on these supervisors to be performed by what are styled county commissioners. The clerk of the courts always and uniformly acts as the clerk of the county commissioners. Always. Now it seems to me that the clerk of the circuit court - we have got to have a clerk, of course, of the circuit court - also of this body; or else the recorder of deed and wills should act as the clerk of this board. Otherwise, it seems to me - I know it would in Gabell; I believe it would in most of the counties, particularly the small ones where they have but one office. Our county clerk has done all this business heretofore, and to have a deputy for this board, because they will have some very important business to come up. To catch up a mere scribe and put him in clerk over the books of the county in the clerk's office, why it seems to me it is too important a business to be entrusted in that way. It would strike me that the clerk of the circuit court and the clerk of the supervisors should be the same person having charge of the records. The business in a great measure will be judicial as well as that of the circuit court.
MR. VAN WINKLE. I would like to know what would be the operation of this thing. The gentleman from Doddridge moves to strike out certain words; the gentleman from Tyler moves as a substitute, perhaps, or amendment, to strike out only the three words "of the county". Then if the amendment of the gentleman from Tyier is adopted the amendment of the gentleman from Doddridge is lost. Will that be the effect?
THE PRESIDING OFFICER (Hall of Marion). I do not so understand. One proposes to strike out all after the word "board."
MR. VAN WINKLE. The gentleman from Doddridge proposes to strike out all and the gentleman from Tyler a part. In order that we may vote understandingly there is a way: that portion like that is proposed to be stricken out the friends are allowed to amend before the vote is taken if they can on the vote to strike out. Then tile vote on the motion of the gentleman from Tyier can be taken, and if that fails the vote will be taken on the other one.
THE PRESIDING OFFICER. That is the understanding of the Chair. I think it is competent to vote to strike out the words proposed in the amendment of the gentleman from Tyler, and then to vote on the motion of the gentleman from Doddridge to strike out all.
MR. LAMB. I would suggest to the gentleman to call for a division of the question - first, on striking out the words "of the county", and then on striking out the balance or the whole as the case may be.
MR. VAN WINKLE. To cut the Gordian knot and have an understanding; that the vote on the proposition of the gentleman from Tyler will only affect the proposition of the gentleman from Doddridge so far as concerns making the clerk a clerk of the county. If the county feature is eliminated, then the motion of the gentleman from Doddridge will strike out the remainder of the provision for a clerk so that no clerk shall be provided for at all. If the Convention votes to retain the county, then the motion of the member from Doddridge will be to strike out the clerk altogether.
The vote was taken on Mr. Soper's motion and it was agreed to.
The question recurred on Mr. Stuart's motion to strike out the whole provision in regard to the clerk.
MR. SOPER. Some gentlemen have intimated that they favor the suggestion to confer this duty on the recorder of deeds or the clerk of the circuit court. Now, sir, the compensation which the board of supervisors will fix for this office will be far less than what the legislature will give the clerk of the circuit court for services. If you take the compensation to be given to the recorder of deeds, it will be what we generally know as "by the folio," so much for a word or so many cents for the hundred words. There are two objections to having that ratio of compensation to the clerk of the board of supervisors. In the first place, it would induce the clerk in drawing up the ordinances to lengthen them very much instead of condensing them. In the next place, the compensation which is allowed to the circuit court officer or for the recording of deeds, wills, etc., is a larger sum than the board of supervisors would be willing to allow their clerk. I have always seen it operate in that way, so that I am satisfied that the true course for the Convention to pursue is to permit this board to appoint a clerk to record its proceedings irrespective of the circuit clerk or the recorder of deeds and wills. And I will say again to gentlemen that we have not adopted here the office of recorder of deeds and wills separate and distinct from an officer which we know as the county clerk. We have not adopted that section yet. It will be time enough to speak of the duties of the recorder when this Convention shall have provided for one. We had better take this section now before us and adopt it as it reads. After we get through, if we have a recorder or other officers we can then reconsider it and make a change. But I apprehend at present, sir, there is no such individual as recorder of deeds in the county. I do not know that there is such an individual as a county clerk or circuit court clerk. We have not got them yet. And therefore I am for giving the power to this board to appoint its clerk and fix his compensation. Now, I make another general remark: if there is any fault attached to this board, it will be the fault of penuriousness, because their transactions in the towns where they reside will be to lessen the taxes put on the county. In a board of supervisors that I knew in New York were some of the most honorable and reputable men in the county; yet I have known them in this board when they came to sit there as auditing charges against the county and fixing the amount of taxes to be levied on their respective towns and county that they have been not only rigid but actually penurious. So that gentlemen need not apprehend that they are going to select a favorite and give him an exorbitant compensation which is to be levied on their constituents in the shape of taxes. No fear need be apprehended of anything out of what any reasonable man would consider a fair ordinary compensation. I therefore hope the motion of the gentleman from Doddridge will not prevail.
MR. BROWN of Preston. I trust the motion of the gentleman from Doddridge will prevail; and I trust so, sir, on the ground that I think the fewer officers this Convention creates by its Constitution the more it will make the Constitution acceptable to the people. And I propose, in consideration of this fact if the amendment of the gentleman from Doddridge shall prevail to insert the following words: "And the recorder of deeds and wills for the county shall be clerk of the board of supervisors, who shall fix his compensation, which shall be paid out of the county treasury;" so that if his amendment shall prevail and mine should also be adopted the section would read in this way:
"At their first meeting after the annual township election, and whenever a vacancy may occur, they shall elect one of their number president of the board, and the recorder of deeds and wills for the county shall be clerk of the board of supervisors, who shall fix his compensation, which shall be paid out of the county treasury."
MR. VAN WINKLE. I would like to say that "sufficient unto the day is the evil thereof." I wish to express my dislike of this mixing up of public offices - one man discharging the functions of two officers. I do not know until we get to the recorder of wills and deeds, perhaps we will not know until the legislature acts on his case, what are to be the precise functions of that officer. If he is to record all the deeds of the county, as I suppose is what is intended, he will have his own compensation and be paid by parties who have their deeds recorded; and certainly there is nothing to be gained or saved by making him also the clerk of the board of supervisors. I understand the proposed amendment of the gentleman from Preston to mean his compensation as clerk only is to be fixed by the board of supervisors, not his compensation as recorder. It strikes me there is nothing gained. There may be nothing to prevent the board of supervisors appointing the individual who happens to hold the office of recorder, or perhaps some other county officer; but yet he will not be the clerk of the board in consequence of being the recorder, not that in consequence of being clerk. I believe the amendment is not now proposed and I will say no more on the subject at present.
The vote was taken on the amendment proposed by Mr. Stuart of Doddridge and it was rejected.
The question recurring on the sentence as reported by the committee, it was agreed to; as was also the entire section.
Section four was next taken up and reported by the Secretary as follows:
"4. The board of supervisors of each county, a majority of whom shall be a quorum, shall, under such general regulations as may be prescribed by law, have the superintendence and administration of the internal affairs and fiscal concerns of their county, including the establishment and regulation of roads, public landings, ferries, and mills, the granting of ordinary and other licenses, and the laying, collecting and disbursement of the county levies; but all writs of ad quod damnum shall issue from the circuit courts. They shall from time to time appoint the places for holding elections in the several townships of their county, and shall be the judges of the election, qualification and return of their own mem- bers and of all county and township officers."
MR. VAN WINKLE. As all these functions here enumerated have to be discharged and as there is no other body that can discharge them, it might seem to be superfluous to say anything in favor of this section in this shape. But I would like the indulgence of the Convention to read a few lines that I hold in my hand which I intended to read yesterday morning. They were resolutions that were offered by the late Judge Summers, whom I suppose there are many gentlemen in this Convention acquainted with. To those who are not, sir, I may say that as a judge, as a citizen, in every relation of life, he was a man of the most exalted character. I can say also from personal knowledge derived from my connection with him as his commissioner for the sale of delinquent and forfeited lands, that there could be no man who had a deeper or a more active interest in all that related to this section of the state. In reference to that very law - the selling of the delinquent lands under proceedings in chancery - he took a very great interest, and I know from the particularity with which he supervised my proceedings the deep interest he felt in having all carried out in such way as would tend to quiet, as it did quiet, the land titles of this section of the state. There is no greater evil under which we have suffered than that very one in relation to our land titles. He was a man of calm judgment, and, even at the time of the convention of 1830, of mature judgment; a man who had practised long at the bar and had concerned himself in the county administration and knew it in all its features and provisions. And he, following the lead of Mr. Jefferson, proposed a similar county organization to that which Mr. Jefferson had previously proposed, in the convention of 1830; and you will observe some language in this section defining the duties of this board of supervisors - the powers and duties - almost identical with the language used by Judge Summers. He proposed that each county ought to be divided into "wards."
Mr. Van Winkle then read the following:
"Resolved, That each county ought to be divided into wards, so that there shall be not less than three nor more than seven in any one county.
"That there ought to be elected in each ward by the voters qualified to vote for members of the house of delegates one commissioner, and that the commissioners elected in the several wards ought to form a board of police for their respective counties.
"That the commissioners of police ought to go out of office one at the end of each year, to be determined in the first instance by lot; and that successors ought to be elected by their respective wards and serve for a number of years equal to the number of commissioners in each county, so that one commissioner of police may be chosen in each county at every annual election.
"That the boards of police ought to be charged with the superintendence and direction of the fiscal concerns of their respective counties, with power to assess, levy and cause to be collected all local, county or ward taxes and to direct the disbursement of the same; to superintend all provisions and expenditures for the support of the poor; and that the opening, preserving and improving of the public roads and other highways, with the construction of bridges and other public structures ought to be confided to the boards of police.
"That it ought to be the duty of the several boards of police, from time to time or whenever required by the Governor, to recommend to him suitable persons to fill the offices of justice of the peace, and to make any other recommendations and perform such other duties as may be required by law.
"That the proceedings of the several boards of police ought to be recorded and preserved by such officer as the general assembly shall designate, and that the commissioners ought to receive a moderate compensation for their services, to be ascertained by law and paid out of the county funds.
"That each commissioner of police ought to be a conservator of the peace within his county, and if holding no office or employment incompatible with the justice of the peace ought to be included in the commission of peace."
MR. VAN WINKLE. That, sir, to those who knew Judge Summers as I did, and who knew his reputation, I apprehend would be a stronger argument in favor of the contents of this section than anything I can say.
MR. STEVENSON of Wood. I only rise to ask for a little information, because I confess I do not exactly understand the business that is laid out for this board of supervisors. It is in reference simply to one word: They shall have "the superintendence" of the internal affairs, including the regulation of roads, public landings, ferries and mills. I suppose, of course, they have some control over them that is not specified or else it is understood they are going into the milling business, which I suppose is not the case.
MR. VAN WINKLE. A mill is erected generally on a water course that is owned on one side by one man and on the other side by another. The law as it stands at present authorizes the condemnation of an acre of ground on the opposite side, which must be done by a writ of ad quod damnum; but there must be somebody to say whether the strip shall be allowed to be bisected by a dam and prescribe the conditions under which it shall be erected. In other countries, I believe it is required that it shall be so erected that it shall not prevent fish going up. But there are other things of that kind such as would be found in our present laws in relation to mills which are usually decided by the county court as to the propriety of the erection of mills, as to the height of the dam and many other circumstances which will readily suggest themselves which the legislative body of the county are the proper persons to decide. There will be those who are opposed to it living higher on the stream, whose lands will perhaps be overflowed or may be in danger of being overflowed or otherwise injured, or who procure their living by the navigation of the stream by boats or otherwise. These will make their objections before this board; who after hearing everybody on all sides of the question will decide in favor of the erection of the dam or against it. If they decide it is a proper place and the party does not own the land on both sides of the river, having got this authority he then goes into the court to have his writ of ad quod damnum. It is so with other things that will be confided to them. They are matters which will go to the private interest of individuals but in which the public at large or in the vicinity concerned and represented. These representatives of the people I think are the proper persons to judge whether the thing proposed is suitable, whether it will tend to promote or to injure the public interests. Well, again, I do not remember the provisions but mills are a subject which I believe is taken care of under most governments; that is, to provide the means of grinding for the bread of the people. Roads are established and many other things done concerning them. How far that might be confided to them will depend on the legislature. As to these questions affecting nobody but the people of the county, the county legislature will be the body to decide.
MR. HARRISON. The words "public buildings" is in the 43rd line of the section as printed, (Mr. Van Winkle, when the section was read by the Secretary had corrected some misprints, one of them being to change "buildings" to "landings." Reporter.) I think properly so. I do not see why the supervisors of the county should not have the control of the public buildings. It seems to me it is not necessary to send down to the legislature every time we want to erect a court house and jail, or any other public building, and that there is no other authority under which it could be so well placed as under the supervisors.
MR. VAN WINKLE. Will the gentleman go back to the 40th and 41st lines? He will see the board is clothed with general powers to cover the internal and fiscal affairs of the county.
MR. HARRISON. Well, I am strongly inclined to think the rule mentioned by the gentleman from Ohio, "expressio unias exclusio est alterius," might apply there.
MR. VAN WINKLE. The work "including" I think prevents the application of that maxim.
MR. HARRISON. Very well; I merely made the suggestion.
MR. BROWN of Kanawha. I would like to know what the question is.
THE PRESIDING OFFICER. It is on the first sentence of section four without amendment.
The sentence was agreed to; as was likewise the one following; and the section as a whole was adopted.
The Secretary reported the 5th section:
"5. The voters of every county shall on the day appointed for electing members of the legislature, whenever it may be necessary, elect one sheriff, one prosecuting attorney, one surveyor of lands, one recorder of deeds and wills, one or more assessors, one superintendent of schools, and such other county officers as the legislature may from time to time direct or authorize, the duties of all of whom shall be prescribed and defined by general laws. 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. 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 continue in force. The duties of all the said officers shall be discharged by the incumbents thereof in person or under their personal superintendence."
MR. BROWN of Kanawha. I will move to strike out the word "one" where it occurs so frequently and say "a".
The motion was agreed to.
MR. PARKER. Mr. President, I would move to strike out in the 63rd line "one prosecuting attorney." It seems to me it is not necessary for our small state with few inhabitants and not a great deal of money to be to the expense of having forty-four prosecuting attorneys. I believe it is doubtful whether there is that number left in the State. In a great many counties I know - and I believe gentlemen will bear me out, the great majority of them have left to engage in the rebellion. It seems to me as the State is to be divided into nine judicial circuits, with nine circuit judges, that the duties pertaining to that office can be more economically and more satisfactorily discharged by district attorneys, one for each circuit; to follow the judge as he goes around the circuit; and it will constitute the greater portion of his business and pay him a fair salary for his work. I know within the limits of my experience a district attorney that had some 200,000 or something rising that of inhabitants in his district - some five or six large cities with a great deal of criminal business to transact, found no difficulty in taking care of the commonwealth with all that various people. It seems to me, Mr. President, it would be a matter of economy, and in the present state of our country, it is impossible in some counties to find a lawyer. If on the other hand, in the election of nine competent gentlemen, I should choose to elect them in the first place on a general ticket so as we know we can get true men if we have to go into many counties. I believe in my own there is none or they are "secesh." Where we can get true men that can uphold the law and our new State when we get it into operation. Can go to these "secesh" counties carrying nothing with them but the dignity of the law and a judge equally unprejudiced and untrammeled and loyal, they can enforce the law, the majesty of the law, and the power of the new State there and make them feel it. But, on the contrary, if we are to select our officers that are to represent the new State from among a people that are certainly very uncertain on that question, who have been open secessionists, though now they may say they are "Union," on. the lip but very questionable at the core - now, I say we have a large section of our new State which is to be of that kind. To take this government and put it into their hands, and where is it? It is a Jeff Davis government; a Jeff Davis reign, and not West Virginia's. Well, now, much of it - a good deal of it - in the Southwest, the only way we can for the present meet this antagonistic element is to elect not only prosecuting attorneys that shall help the commonwealth and the judges also, for the present, until this difficulty is cured; until loyalty is established throughout the State. Then we provide here that by act of the legislature the election of both the judge and the prosecuting attorney should be within the districts.
MR. BROWN of Kanawha. Mr. President, I find myself constrained to differ with the gentleman from Cabell. I first understood his argument as rather against having a prosecuting attorney at all; but a prosecuting attorney - a good one - is to be a county court, justice, clerk, adviser general. He is consulted on almost all subjects by almost everybody; and if he is a worthless one then I confess the country is without a very excellent spoke in the wheel. To get a good one is therefore a very high consideration. That a good one may be very often got by the mode proposed by the gentleman from Cabell I believe to be true, by having them appointed and let them circulate around the circuit with the court. That was the old plan in Virginia. I believe when I first came to the bar that was the plan. I remember hearing the lawyers speak of it, anyhow, that the judge and prosecuting attorney started on the circuit together; and it was almost always an able lawyer who was the prosecuting attorney; that he traveled from county to county and prosecuted pleas for the state. But there was a manifest defect in it. While he would be an able lawyer, the lawyer was deficient in that very important item that he knew nothing about the case until he got to the court house. The preliminary business was done in the county before the court arrived there - was all either wrongly done or not done at all. In other words, without the presence of the prosecuting attorney in the county to give advice to the people and officers of the county as to how to conduct public matters and then prepare everything for the circuit it comes, is to have everything either undone or not done. Consequently, when a good attorney came on to prosecute any case, it would be almost certain to go out of court for some defect started before the court got there. One of the very excellencies of a prosecuting attorney is his presence in the county. The people know he is the public officer, the representative of the government, and they go to him as an impartial adviser. They go because the advice is given gratuitously, for it is not advice to them personally but it is advice to direct them in the discharge of some duty. He thus becomes an instructor of the whole community in the law of the land; and proverbially, wherever you have an able, honest, efficient, trustworthy prosecuting attorney you have a community that is reliable. It is a high consideration, then, to obtain such an officer in the county. I will admit, with the gentleman that the difficulties of the present circumstances are greater in obtaining such officers now than in ordinary times; but here you are shaping your Constitution for all time to come. The fact of their being located in the county will induce competent men to go into the county and settle. I therefore must earnestly oppose this change in the provision in regard to the prosecuting attorney.
MR. VAN WINKLE. Mr. President, it will be observed in reference to the prosecuting attorney that the committee have done no more than to provide for his election, presuming his duties will be prescribed by the report of the Committee on the Judiciary. I should, at first blush, be in favor of the proposition of the gentleman from Cabell, but there are, as has already been shown, practical difficulties in carrying it out. It would require you to give an attorney for the commonwealth such a compensation that he could live on it; because his time would be nearly as much occupied as that of the judge. There is nothing, so far as we have got - and if I recollect right, there is nothing in the report of the Committee on the Judiciary - to prevent the prosecuting attorney from residing in a different county from that for which he was elected prosecutor. That exception was made on account of the difficulty suggested - that there is not in every county of the State a resident lawyer capable of discharging the duties of that office. But all these matters will be settled when we come to the report of the Committee on the Judiciary. At present, it is only to fix, so far the prosecuting attorney is concerned, the time of his election, who elects him, and his term of office. That is all that concerns us with him here. I should, with some reluctance, perhaps, be compelled to vote against the motion of the gentleman from Cabell.
MR. BROWN of Kanawha. While it is true I do not propose it should be required in this Constitution that the prosecuting attorney should reside in the county, that object is fully provided for as it stands.
MR. VAN WINKLE. I did not mean to say that you said so. I was simply speaking of the rights of the people.
MR. BROWN of Kanawha. It is the election by the people of this attorney that prevents that very objection. The people will not elect a man out of the county if there is one in it unless there is some urgent necessity for that departure. But the moment that necessity ceases they will return to their own county. My own experience is so, and I think it is a fact. All I ask is to give the election of prosecuting attorney to the people. They will not elect foreigners if there are competent residents.
The amendment was rejected; and the Convention adjourned.
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Chapter Eleven: First Constitutional Convention of West Virginia