The Convention met at 9 o'clock A. M. and was opened with prayer by Rev. Mr. McCutchen, a member.
After reading and approval of the journal, Mr. Pomeroy offered the following, which was adopted:
*Resolved, That hereafter, until otherwise ordered, this Convention will meet at 3 o'clock, P. M.
*See note Vol. II, page 219.
The question then being upon Mr. Soper's amendment, offered last night to the additional section of Mr. Van Winkle, the yeas and nays were demanded, and the demand being sustained, the amendment was rejected - yeas 18, nays 25.
And, on motion of Mr. Brumfield, the vote was recorded as follows:
YEAS - Messrs. Brumfield, Chapman, Dolly, Hansley, Hubbs, Hervey, Montague, Mahon, Parker, Pomeroy, Simmons, Stevenson of Wood, Stewart of Wirt, Soper, Taylor, Walker, Warder, Wilson - 18.
NAYS - Messrs. John Hall (President), Brown of Preston, Brown of Kanawha, Brooks, Caldwell, Carskadon, Dering, Dille, Haymond, Harrison, Hagar, Irvine, Lamb, Lauck, McCutchen, Parsons, Powell, Robinson, Ryan, Sinsel, Stephenson of Clay, Stuart of Doddridge, Sheets, Trainer, Van Winkle - 25.
Mr. Van Winkle, by general consent, moved to modify his additional section, by inserting after the word "entitled," "if demanded," which was agreed to.
And the question being upon the adoption of the section, the yeas and nays were demanded, which demand being sustained, the section was adopted - yeas 30, nays 14.
And on motion of Mr. Mahon, the vote was recorded as follows:
YEAS - Messrs. John Hall (President), Brooks, Brumfield, Battelle, Chapman, Dolly, Hansley, Hubbs, Hervey, Hagar, Lamb, Lauck, Montague, Mahon, McCutchen, Powell, Parker, Pomeroy, Ryan, Simmons, Stevenson of Wood, Stephenson of Clay, Stewart of Wirt, Sheets, Soper, Taylor, Van Winkle, Walker, Warder, Wilson - 30.
NAYS - Messrs. Brown of Preston, Brown of Kanawha, Caldwell, Garskadon, Dering, Dille, Haymond, Harrison, Irvine, Parsons, Robinson, Sinsel, Stuart of Doddridge, Trainer - 14.
Mr. Brown of Kanawha moved to amend the 8th section of the report of the Committee on County Organization, by adding at the end thereof the following:
"but in all cases an appeal, writ of error, supersedeas or certiorari, shall be from the judgment or proceedings of the board of supervisors, a justice of the peace, recorder, or corporation or other inferior court, to the circuit court of the county in which the case may be; excepting, however, judgment of justices of the peace in assumpsit, debt, detinue and trover, and for fine, where the amount does not exceed ten dollars, unless in cases involving freedom or the validity of a law, or the right of a corporation or a county to levy tolls or taxes."
Mr. Van Winkle moved to amend the amendment by striking out the words "the board of supervisors" in the third line, which was agreed to.
Mr. Stuart of Doddridge, moved further to amend the same by striking out the words "and for fine," which was decided in the negative.
The amendment of Mr. Brown of Kanawha, as amended, was then adopted.
And, on motion of Mr. Brown of Kanawha, the words "subject, however, to an appeal to the circuit court of the county, where the value in controversy exceeds ten dollars," in the 93rd and 94th lines, in the 7th section, were stricken out.
Mr. Caldwell then moved to take up the additional section to said report heretofore submitted by him, which was adopted.
By general consent, all after the word "curators" was stricken out.
Mr. Brown of Kanawha, moved to amend said section by adding after the word "curators," in the 8th line, the following: "to administer oaths, to take acknowledgment of deeds and other writings, and the relinquishment of dower," which was agreed to, and the section, as amended, was adopted.
And, on motion of Mr. Van Wfnkle, the said report was laid on the table and ordered to be printed as amended.
Mr. Battelle moved to take up the second report of the Committee on Education, yhich being put was determined in the affirmative.
The Committee on Education recommend the adoption of the following as a part of the Constitution.
G. Battelle, chairman.
"1. The right to enter upon or bring actions for the recovery of lands lying within this State, shall, for the term of twenty- one years next after this Constitution goes into operation, be limited to seven years next after the time when such right accrues or shall accrue; saving to persons of unsound mind or under the age of twenty-one years, the right to make such entry or bring such actions within one year after the removal of their respective disabilities, and not afterwards, notwithstanding the said seven years shall have expired; but no such action instituted previously to the time this Constitution goes into operation shall be affected by any of the provisions of this section. After the expiration of the said term of twenty-one years the limitation of such entries and actions shall be prescribed by law.
"2. All lands lying within this State which have not been entered for taxation, or upon which taxes have not been paid to the State of Virginia or this State for more than five years, shall be deemed and declared forfeited, and forever irredeemable, and such forfeiture shall not be released. No grant or patent for forfeited, waste or unappropriated lands, shall issue after this Constitution goes into operation, except upon surveys made according to law and duly returned to the land office previously thereto; but all such lands shall be publicly sold under decrees rendered by the circuit court for the county in which the same, or the greater part thereof, may lie, upon proceedings in the nature of proceedings in rem therein instituted, in such manner as shall be prescribed by law.
"3. The money received for lands sold under the preceding section, after deducting the costs and expenses of the proceedings and sale, shall be deposited in the treasury of the State. When forfeited lands are sold, the excess of the proceeds thereof deposited in the treasury as aforesaid, over the taxes and damages charged and chargeable thereto under the laws of the State of Virginia and of this State, shall be paid to the respective former owners thereof, who shall prove themselves entitled to such excess before the circuit court which decreed the sale of the same, by proceedings instituted in such court within five years next after such sale, in such manner as shall be prescribed by law. Appeals from the decisions of circuit courts in such cases to the court of appeals shall be allowed if applied for within one year next after the decree of sale by or for any person claiming an interest in the land sold, as owner of any part thereof; but the proceedings of the circuit courts leading to the sale of such lands shall not be otherwise re-examined or drawn in question in any court of the State, unless fraud or collusion, or the actual payment of all taxes and damages, charged and chargeable to the land sold, previously to the institution of the proceedings against the same, be alleged and proved by the claimant, and then only in the court where such proceedings were had.
"4. All money being the proceeds of forfeited, waste and unappropriated lands deposited in the treasury, and not reclaimed by the former owner as aforesaid, shall be carried to the credit of a separate fund, to be called the school fund.
*The 1st section was read, whereupon,
*See note Vol. II, page 219.
Mr. Brown of Kanawha moved to strike out the whole section.
And at the usual hour, the Convention took a recess.
3 o'clock, P. M.
The Convention re-assembled.
Mr. Smith offered the following substitute for the second report of the Committee on Education:
"1. No entry or survey on land in this State made after this Constitution is adopted by the people, and receives the consent of the Legislature of Virginia and of the Congress of the United States, shall be valid; and in all cases where an entry or survey has been made before that time, and then, or thereafter, so perfected as to entitle the locator to a grant, the legislature shall make provision by law for issuing the same.
"2. The legislature shall make provision for the sale of all lands in the State forfeited for nonpayment of taxes for the year 1831, or any year previous thereto, or for the failure of the owners to have the same entered and charged with taxes for the year 1831, or any preceding year, as well as for all waste and unappropriated lands by proceedings to be had in the circuit courts of the county where such lands, or the greater part thereof may lie."
Mr. Caldwell moved that the substitute be laid on the table and printed, and that the report be passed by for the present, which was agreed to.
Mr. Lamb moved to take up the report of the Committee on County Organization, and the motion was decided in the affirmative.
Mr. Lamb then submitted the following additional section thereto, which was adopted:
"Nothing contained in this article shall impair or affect the charter of any municipal corporation, or restrict the power of the legislature to create or regulate such corporations."
Said report was then laid on the table and ordered to be printed as amended.
Mr. Van Winkle then moved to take up the two reports of the Committee on Fundamental and General Provisions, which was agreed to.
Mr. Van Winkle then moved the adoption of the 7th section of the 1st report, as amended, which had been heretofore passed by.
Mr. Soper moved further to amend the same by adding at the end thereof the words "except surveyors of highways," and the question being put was decided in the negative.
The 7th section was then adopted as amended.
The 9th section, heretofore passed by, was then taken up and amended so as to read as follows:
"All citizens entitled to vote, and no other persons, may be elected to any State, county or municipal office; but the judges must have attained the age of thirty-five years; the governor the age of thirty years; and the attorney general and senators the age of twenty-five years, at the beginning of their respective terms of service, and must have been citizens of the State for five years next preceding, or at the time this Constitution goes into operation."
The 1st section of the second report was then read and adopted.
Mr. Van Winkle moved to insert between the 1st and 2nd sections, the following additional section:
"All elections of State and county officers shall be held on the day of ."
Mr. Brown, of Kanawha, moved to fill the blank with "fourth Thursday of May."
Mr. Harrison moved to amend by filling the blank with "fourth Thursday of October;" and the question being upon the amendment to the amendment, it was decided in the affirmative.
The said additional section was then adopted as amended.
On motion of Mr. Van Winkle the blank, in the 10th line, was filled by inserting the "first day of January."
Mr. Soper then moved further to amend the 2nd section by striking out the words "and appointments," in the 3.1th line, and inserting in lieu of the words "by special elections," the words "in such manner as may be prescribed by law."
The 2nd section was then adopted as amended.
Upon the reading of the 3rd section,
Mr. Soper moved to insert after the word "crime," in the 17th line, the words "not cognizable by a justice of the peace," which was agreed to; after which the 3rd section, as amended, was adopted.
The 4th section being read,
Mr. Lamb moved to amend by striking out the words "having in view the overthrow of the government thereof," which motion was agreed to; after which the section was adopted.
The 5th, 6th, 7th, 8th, and 9th sections were then respectively read and adopted as reported.
The 10th section was read, when,
Mr. Van Winkle moved to amend by adding at the end of the fourth sentence the words "or to imprisonment," which was disagreed to.
Mr. Stuart of Doddridge moved to strike out the fourth sentence, which was put and decided in the affirmative.
And, on motion of Mr. Irvine, the fifth sentence was stricken out.
The question then being upon the adoption of the 10th section, as amended, it was agreed to.
And, on motion of Mr. Battelle, the Convention adjourned.
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Chapter Eleven: First Constitutional Convention of West Virginia