The Convention reassembled at 10:00 A. M. and was called to order by Mr. Lamb, who read the following dispatch:
"Parkersburg, Jan'y 6,1862.
I have been delayed on the river. Act in my place as President, tomorrow.
Mr. Lamb took the Chair.
After prayer by Rev. Jos. S. Pomeroy, a member, and the reading of the minutes of last day's session, the presiding officer called attention to some errors in the printed journal of December 13, and December 20, (which do not appear in this report) and they were corrected.
MR. VAN WINKLE. I hold in my hand what purports to be credentials of a gentleman accredited here from Calhoun county. It is, short, sets forth the facts, and supports it by affidavit, addressed to the Convention:
"To the Honorable, the Convention of delegates of the people of western Virginia, assembled in the City of Wheeling under and in pursuance of the ordinance passed August 20, 1861, to provide for the formation of out of a portion of the territory of this State,'
"The humble memorial of the undersigned qualified voters in and for the county of Calhoun respectfully represent that they were unable to hold an election for a delegate to your Convention on the fourth Thursday in October, 1861, as they desired to do and would have done but for the following reasons: there is neither sheriff, clerk or justice in said county, and no court has been held in said county since June last; all the county officers are or have been engaged in the rebellion, so that there was no one to hold an election.
"Your memorialists desiring to have their said county of Calhoun represented in your Convention, respectfully appoint and recommend to a seat in that body our fellow citizen, Job Robinson, Esq., who has been faithful and loyal to the Constitution and government of the United States, is honest, intelligent and competent to represent our county in said Convention.
"The undersigned comprise nearly the whole loyal voters in the said county; for, in fact at the election upon the Ordinance of Secession there were but fifty (50) votes cast in said county against it.
"And as in
duty bound, etc., etc.,
T. F. FERRELL
A. J. MACDONALD
A. C. RICHARDS
MICHAEL A. AYERS
LABAN J. BENNETT
JACOB L. BUNNER
THOMAS G. FERRELL
S. V. AYERS
JAMES F. MACDONALD
JAMES P. HUNTE
G. W. SHRIVER
D. S. HAVORTY
ADOLPHUS B. AYERS
T. S. STALNAKER
ISAAC B. COX
D. S. COX
F. W. COLLINS
B. A. KIGHTE
WM. L. CUNNINGHAM
JAMES T. HOLT
A. J. ERVIN
It has sixty-eight signatures. Calhoun, it is known, is a very small county and the whole number of voters in the county probably would not exceed 175. Then deduct the secession vote - which I expect would be a tolerably strong one - and you will see that you would have nearly all the voters in the county; on the back of it is the affidavit:
"Be it remembered that John Havorty and James F. MacDonald, whose names are signed to the written memorial this day appeared before the undersigned, a justice of the peace in and for Wirt county aforesaid and made oath that the facts stated in said memorial are true, as they verily believe.
JAMES F. MACDONALD
to and sworn before me, in my county aforesaid,
(Signed) J. A. WILLIAMSON, Justice."
I do not know, sir, that it is necessary to refer this to the Committee on Credentials, as the whole subject is here, and members could probably act upon it without the intervention of a committee. I met the gentleman on the boat coming up, was introduced to him and he requested me to present his application. My own opinion is that it is one that the Convention ought to consider favorably. The object of the election is, of course, to ascertain the true will of the people of the county, and the evidence is here strong that a great majority of the Union voters are in favor of this gentleman representing them, that they were prevented by force of circumstances from holding an election at the proper time and have remedied it as soon as it probably could be done. Now, rules and regulations, and laws, and all things of that kind, are to effect certain objects; and if a strict adherence to the rule would defeat it, the rule ought to be nullified; and that would be the case here if because the election, was not held on a certain day the Convention should decide this gentleman not entitled to a seat. The object of the election is as well ascertained as it could have been by an election. This body are the judges of the election, qualifications and returns of their own members. Nobody else can interfere with it. It is the privilege of all deliberative bodies whatever. Each house of Congress, each house of the legislature, judges as to its own members. The power then lies with this Convention to do justice to the efforts of Calhoun county, who while they have preserved a remnant, we ought to hail with satisfaction an effort to have them represented among us; and the more so as it is one of the smallest counties in the proposed new State. Do not let us go to crowding them because we have got the power.
If any gentleman prefers that this shall go to a committee, I am willing to submit; but I move that Mr. Robinson be admitted to a seat in this Convention as a member from Calhoun County.
The question was put to vote and the motion was agreed to.
MR. RUFFNER. During my stay at home, sir, I met very intelligent and respectable loyal men from the county of Nicholas, who expressed a very strong desire to be represented in this body. Whether it is possible now in time for the session of this Convention for these people to go through the regular forms of an election, if one should be ordered, I am not prepared to say. But if it is possible that a member could be sent forward in the same form in which the gentleman from Calhoun has been admitted, I think it very practicable for them to be represented; and if it be the pleasure of the Convention to admit members under similar circumstances hereafter I desire very much that that willingness shall be expressed by this body; and it would afford me great pleasure to forward to them an indication of the will of the house on the subject. If it be thought more regular to order an election, I would make a motion to that effect. I have the names of prominent loyal men who would make safe commissioners, and I submit it to the Convention whether one or the other form shall be indicated or whether at all they would authorize an appointment.
THE PRESIDING OFFICER. I would suggest if the Convention have the power to judge of the returns and qualifications of its own members, it must act on the case before them. The other power then results necessarily in a constitutional body in the legislative form. The gentleman can take the action in the case just before us as an indication of the determination of the case just presented.
MR. VAN WINKLE. I would state, sir, that the gentleman from Calhoun is present and will take the oath.
Mr. Robinson then came forward and the oath was administered to him by the secretary.
THE PRESIDING OFFICER. When the Convention adjourned on the twentieth of December, they had under consideration the twelfth section of the second report of the Committee on the Legislative Department. The first and second paragraphs of that report were amended and adopted. The third paragraph of that section is under consideration.
Will the gentleman from Doddridge step this way one moment. Mr. Stuart of Doddridge took the chair.
MR. LAMB. Mr. President, the third paragraph of the twelfth section is as follows:
"No person who may have collected or been entrusted with public money, state, county, township, or municipal, shall be eligible to the legislature, or any office of honor, trust or profit under this State, until he shall have duly accounted for and paid over such money."
I move its adoption.
MR. VAN WINKLE. I should like to ask the chairman of the committee whether it is not defective in this respect: A person may have collected and been entrusted with public money, and the time for paying it over may not have come. It is intended I suppose to exclude defaulters.
MR. LAMB. Of course, of course, sir.
MR. VAN WINKLE. It seems to me it needs something - I am not prepared to say exactly what. I will submit this amendment, to come in after the word "municipal" "and shall have failed to account for or pay over the same according to law." I will reduce it to writing.
THE PRESIDING OFFICER. The gentleman will reduce it to writing.
MR. HERVEY. I would suggest to the gentleman, would not that be simply placing a new condition without making it a provocation?
The Secretary reported the proposed amendment.
MR. LAMB. I would merely remark the provision is not a new one. In the examination I have given the different constitutions I find a similar provision in a very large majority of them. The wording of the provision as it stands on the printed copy is pretty much the same as that in the constitution of Indiana:
"No person who may hereafter be a collector or holder of the public moneys shall be eligible to any office of trust or profit until he shall have accounted for and paid over according to law all sums for which he may be liable."
The terms "according to law" were accidentally omitted, which would have made the section all right.
MR. VAN WINKLE. I would withdraw that amendment.
MR. LAMB. I would suggest that by general consent the words "according to law" be added at the end of the section.
THE PRESIDING OFFICER. There being no objection it will be done.
The question is on the adoption of the latter clause of the twelfth section as amended.
MR. SOPER. It appears to me, sir, that the whole section, as read, is unnecessary. I see great difficulty may arise as to whether an individual has neglected to pay over, and these questions will come up probably upon his admission into the body after the election. I apprehend, sir, that we will not incorporate a provision into this constitution which would lead to a difficulty of that kind. It appears to me that the better way is to leave it to the people themselves in the county. If a man who is notoriously a defaulter should present himself for election, I have no doubt the intelligent people of the county, those who know the individual, are better capable of determining whether he is a competent person to represent them in the legislature than to hamper him with the provisions of this clause.. If he is a man unfit to be trusted it is not to be supposed the people of any county will vote for him for so responsible a position as to represent their interests in the legislature. Now, sir, if he should be a defaulter to the amount of one cent, would not that of itself render him incompetent? Suppose it should be a matter in dispute and his election contested on that point, would not this constitutional provision place that individual in a situation to render him incompetent to receive the office? It appears so to me. And I think, sir, without having given this subject much reflection, that the better way is to leave it with the constituents of the person elected to say whether he is a competent man to represent them or not. Now, sir, we all know that whenever a man puts himself in nomination for the legislature, why his character, his standing, his capacity and everything relating to him is open for examination, and it is the subject of remark and investigation and of conversation throughout the whole county. And I think, sir, that the people are the safe persons to determine on that subject, and we ought not to hamper the individual with these kinds of objections which may be presented after he shall have been elected by the people of his county. Well, again, we know, sir - 1 speak now of the county that I represent - it is a contested election; there is always opposition to members; and I believe it is the desire of a majority of the people always to procure the best man, the most competent man. And if they should select that man and he was an individual who had had hold of monies in a usury capacity and should through mistake or inadvertence, if you please, neglect to have paid over a small amount of money, why, sir, the views of the people who elected him ought not to be frustrated in consequence of a provision of that kind. It appears to me the whole section itself is unnecessary, and therefore shall vote against it.
MR. LAMB. Mr. President, I find the people of considerably over twenty states have deemed it necessary to have a provision of this kind in their constitutions; and I am disposed - and the Committee of the Legislative Department were disposed - throughout their report, to attach very considerable importance to the decisions of experience in other states in regard to the measures which they should recommend to the adoption of the Convention. It strikes me, too, that it is not so much a question of whether the people should have a right to elect this man or that, as who shall be allowed to become candidates before the people. The people must select from the candidates that are presented. A man who is a defaulter ought not to be allowed, I think, to become a candidate. The very public money which he may have filched from the treasury that has been entrusted to him he may use to acquire influence of electioneerers in intrigues to secure his election. Is this right? Is it proper? It is true, sir, it is impossible to distinguish between a small default and a large default; and a man who is accidentally behind in his accounts if he has a notion of becoming a public officer and been entrusted with public moneys will see that his accounts are made clear. If he is only a cent behind, it will not be a very difficult matter for him to put that right. If he is a defaulter in a material sum, and desires to become a candidate for public favor, the first thing he must do will be to come forward, like an honest man and square up. He may then ask the favors of the people. He may then ask the confidence of the people. I think the provision a proper one.
The question was then taken on the third clause of the twelfth section, as amended, and it was adopted.
MR. LAMB. The last clause of that section is:
"If a senator or delegate remove from the district or county for which he was chosen, his office shall be thereby vacated."
This is copied from the seventh section of the fourth article of the Virginia Constitution.
MR. STEVENSON of Wood. I move its adoption.
The motion was agreed to.
MR. POMEROY. I move that the whole section as amended, be adopted. We have been adopting this section by clauses, and now we will have to take the vote to adopt the whole section.
THE PRESIDING OFFICER. I understand the section is adopted. It will come up on the adoption of the whole report.
MR. LAMB. The thirteenth section, Mr. President, is the anti-duelling provision, somewhat altered from the present Constitution of Virginia:
"13. Any citizen of this State who shall, after the adoption of this Constitution, either in or out of the State, fight a duel with deadly weapons, or send or accept a challenge so to do; or who shall act as second or knowingly aid or assist in such duel, shall ever thereafter be incapable of holding any office of honor, trust or profit under this State."
The present provision in the Constitution of Virginia gives authority to the legislature. It says:
"The general assembly may provide that no person shall be capable of holding or being elected to, etc."
The operation of the provision in that form has been such that I presume no one will contend that it ought to be retained in that shape. They passed a law rendering persons who have been engaged in duels incapable of holding any office, and when some favorite of theirs who has been engaged in a duel becomes a candidate for office, they repeal that law, and allow him to do so, and then after he has been elected, re-enact it! The provision in the shape in which the Committee on the Legislative Department have reported it is that which is generally adopted in the constitutions of other states. It is contained in a very large number of those constitutions; making it imperative, a positive exclusion which can only be got rid of by an amendment to the constitution or by the adoption of a new constitution. The experience of this country has shown that his is an offence which it is necessary to adopt extraordinary measures to suppress. Hence it has become so frequent a constitutional provision to exclude duellists from office. The men who are apt to engage in duels are generally aspiring politicians and a provision excluding them from all offices is perhaps the most certain check to the practice which can be devised. To render that check effective, which if adopted it should be, of positive exclusion beyond the reach of legislative repeal, I move the adoption of the thirteenth section.
MR. SOPER. Mr. President, I move, sir, to strike out the words "after the adoption of this Constitution," so that it will effectually, sir, preclude any man who has heretofore or shall hereafter be concerned directly or indirectly in the fighting of a duel.
MR. LAMB. I would remark that the Constitution of the United States provides that no ex post facto law shall be passed. I doubt very much whether you have the right to put in your Constitution a provision that operates retrospectively to punish a crime that had been committed before the adoption of the Constitution. It was for that reason that the words "after the adoption of this Constitution" were inserted in the section reported. It is enough to make laws and constitutions for the future without imposing new penalties on what is past.
MR. BROWN of Kanawha. Mr. President, while I cannot agree with the gentleman from Ohio in relation to the Constitution of the United States, that it has any control over us in this case - that provision has reference, I imagine, only to the legislation by Congress, and the powers vested in Congress under the Constitution, prohibiting them - but, sir, the principle upon which that Constitution was based is the principle that must control us here, and that is the injustice and iniquity of attempting after an offence -
MR. LAMB. Excuse me, but the Constitution of the United States says no state shall pass any bill of attainder, ex post facto law, etc.
MR. BROWN of Kanawha. Yes, sir, I admit it.
MR. LAMB. Then, sir, that ends the question, because although this may not be the legislature it just as fully comes within the purview of that provision. It is a state act, an act of the people, an organic law, stronger than a legislative one. The principle is founded in justice; and whether we had the authority or not, it is a principle we should never depart from, that we cannot make and punish as an offence a thing which when the act was done was not an offence.
THE PRESIDING OFFICER. I would suggest to the gentleman from Tyier that his amendment does not reach the object he contemplated even if it would not be a violation of the Constitution of the United States. That amendment comes in where? After the word "shall"?
MR. SOPER. Yes, sir; that is what I propose, after the word "shall," "after the adoption of this Constitution."
THE PRESIDING OFFICER. The section would then read:
"Any citizen of the State who shall, either in or out of the State, fight a duel, etc."
MR. VAN WINKLE. That of course refers to the future.
MR. SOPER. My object is to exclude all persons who have been or who shall be concerned in a duel, from any responsible office.
THE PRESIDING OFFICER. The amendment does not reach your object, then.
MR. VAN WINKLE. I would suggest to my friend from Tyler that the clause of the United States Constitution referred to here certainly forbids the adoption of any such amendment as he indicates, and it had better, perhaps, for that reason be withdrawn, because we cannot go back and punish, an offence heretofore committed with a different penalty from that prescribed when the offence was committed. If a man fought a duel a year ago no legislature could now pass a law to punish him. It must always be in the future. I am not so certain, sir, of the necessity of this clause in reference to the new State. As the state stands at present there was a portion of it strongly predisposed to fight duels; but I am not certain that in West Virginia that this clause will be necessary. It had got to be so grave an offence and so difficult to reach it, even through juries that it demanded a something more than the ordinary laws would afford. Duelling, in that section of the state, at any rate, and in a large section of the whole country was protected, as it were, by public opinion, and those guilty of it were, by the force of public opinion, frequently screened from the punishment provided by law. The first constitutional provision introduced into Virginia gave the power to the legislature to pass such a law; and they have been in the habit of passing the law and as soon as they got some three or four that were subject to it, then to declare an amnesty and remit the penalty of the law with respect to them. I must say if any provision is retained - if it is the view of the Convention that the offence is likely to be grave enough to demand this restriction - I would rather it would be retained in the present form, to make it absolute; not to put it in the power of the legislature to say that because a man has to fight a duel that they can remit the penalty. It is a vile crime; and all the worse because it is sanctioned by public opinion of those who consider themselves the higher class. I would repudiate and punish it in every way until the thing is broken up. It is a relic of barbarism and nothing else. But I prefer the clause as it stands in the committee's report to the clause in the former Constitution.
MR. SOPER. A single remark, sir, as to this constitutional objection. I apprehend that it will have no influence in this State. How far it would operate upon the senators and representatives in Congress, I am not prepared to say.
MR. VAN WINKLE. It does not affect them at all.
MR. SOPER. Then I apprehend there is nothing in the Constitution of the United States that would be applicable to the officers of our own State. Again, sir, the Convention has just adopted a section here which renders a man incompetent if he has collected five dollars of public money and has neglected or failed to pay it over. It appears to me the objection that is urged against the amendment that I propose might have been urged, or ought to have been, in the former case as well as in this. I apprehend, sir, there is nothing in the objection; and I am myself so totally averse to everything that looks like fighting duels or sending challenges in any shape or form that I cannot under any circumstances countenance them or leave the power with the legislature or any other body to remit penalties of this description.
MR. VAN WINKLE. I think my friend from Tyler does not understand the constitutional objection that is made, because the remark would not apply to the former clause in any way. The objection is that what he proposes is to make a penalty for an offence already committed which was not the penalty at the time it was committed; in other words, prescribe a punishment after the fact; for whether you punish a man by hanging him, or putting him in the penitentiary, or depriving him of the right of citizenship, it is all punishment, and it would be under the technical definition an ex post facto law, prohibited by the Constitution of the United States. A law that is passed to fix the punishment for an offence after it is committed is forbidden. But the gentleman's amendment without some change in the language of the amendment as proposed would not alter the sense an iota, because the "shall" would certainly refer to the future as it stands. I only wish to bring to the gentleman's notice the fact that this clause in the Constitution forbids what he aims to do as I understand it, and as the gentleman from Ohio says - that it positively forbids any state passing any such law, and whether we put the law in the Constitution or statute book it comes under the technical definition and would be ruled out. What we have not the power to do we had better, of course, not attempt to do, because it would be a mere dead-letter.
MR. SOPER. I prefer striking out these words, sir, and if stricken out I shall then alter the phraseology of this section so as to meet the object I have in view in offering this amendment.
MR. BROWN of Kanawha. It seems to me, sir, after reading the provision of the Constitution, however desirous we might be to strike out this and present the subject in the light presented by the gentleman from Tyier, we are absolutely forbidden. I, sir, concur with the gentleman in this, that it ought to be a constitutional provision as here contained, not as now in the Constitution of Virginia where the power is vested in the legislature to set aside at all times, and as often as crimes occur under it the provisions of the statute. Now, if this doctrine is to be maintained at all - and I confess I am one of those who think it a very high and important doctrine, that ought not to be departed from - it ought to be done in the Constitution, not in the statute; because we have no reason to believe that legislatures will do any better hereafter than heretofore; or that the statute will be any better after than before; and the last history of the State and of the country, sir, generally, clearly shows that this provision is a mere delusion. A provision in the constitution requiring the legislature to legislate on the subject, yet also giving the legislature at the same time power to declare an amnesty by repealing the law after every offence has been committed, so as not to interfere with those who have committed the act. The result of that legislation has been that the law is an embargo on all law-abiding men, a perfect nullity to all those who chose to disregard it. In other words, it is an invitation to the duellist to follow his profession whenever he chooses, with the certain assurance that he will obtain an amnesty the very moment he has committed the offence. We have found that in the legislature from year to year; that will be the case hereafter. If it is the intention of the Convention to carry out this policy, recognized in all the States of the Union, among all the civilized and Christian peoples of this age, it ought to be carried out effectuually. I, therefore, am in favor of retaining this section precisely as reported by the committee; and after considering the amendment as suggested by the gentleman from Tyler, in the event that this motion to strike out succeeds, I confess I am unable to see that it will any better effect the end proposed.
The question was taken on the motion to strike out and it was rejected.
MR. LAMB. I move the adoption of the thirteenth section.
The motion was agreed to.
MR. LAMB. The fourteenth section, Mr. President, reads:
"14. The legislature shall meet once in every year; and not oftener, unless convened by the governor. Unless another time be prescribed by law, the regular session shall begin on the first Monday of December."
I move its adoption. It brings up the question of annual or biennial sessions. The latter clause brings up the question of the times of the meeting of the legislature.
MR. VAN WINKLE. "Meet once in every year?"
MR. LAMB. Yes.
MR. HERVEY. I move to insert after the word "governor" the words: "upon the request of the majority of the members of the legislature."
MR. LAMB. Will the gentleman look at the next section, which provides for that?
MR. HERVEY. Yes, sir; that meets the case.
MR. VAN WINKLE. I do not know what may be the opinion of members in reference to annual or biennial sessions. I do not know whether silence gives consent, but I might infer that they are in favor of the annual ones. I think, sir, however, that the biennial sessions have been tried to the satisfaction of the people in this and other states and they are now generally repudiated. The close of the business year, the winding up of almost all private business at that period seems to indicate that it is the annual date for also winding up the business of the State. I am, therefore, most decidedly in favor of annual sessions. I was opposed in 1850 to making the sessions biennial; although I felt compelled to vote for it, the opinion was so universal among my constituents in favor of it. But I think, sir, that among my constituents there has been an almost total change of opinion; and I apprehend it is the same elsewhere. I think in other states as well as this they have repudiated it and returned to the annual. It certainly does not render it necessary that the legislature should sit any longer. Nor have biennial sessions in this State been found to work so as to shorten the session. I believe there session after session has been extended either by the governor or the legislature, or there has been a piece put on the end of the regular session. So from practical experience the attempt that has been made in Virginia under the clause in the constitution for biennial sessions may be considered a failure.
MR. BROWN of Kanawha. I am one, sir, that believes the crying evil of the country is too much legislation. With that belief, I favored biennial sessions in 1850-51. We have tried for a term of years, and I confess, sir, I have found it wholly fails, and have been led by the experience to an entire change of opinion on the subject. Instead of resulting in less legislation, if it has had any tendency, it has been to increase it; instead of less session the expense to the state has been fully as great if not greater than with annual sessions; and the legislature not coming so freshly from the people have not in their legislation expressed public sentiment as fully as if there had been annual sessions. I believe today, sir, that we had had the annual session, the very legislature that called the convention together that brought us into our troubles would not have been called. I therefore go for this resolution.
The question was taken on the first clause, and it was adopted.
MR. BROWN of Preston. In the second clause of that section, sir, I move to strike out "December" and insert "January."
MR. STEVENSON of Wood. I was going to offer an amendment or suggestion to the gentleman to say the "second Tuesday" instead of the "first Monday"; but I will offer that as an amendment unless the gentleman thinks proper to modify his amendment.
MR. BROWN of Preston. I have no particular objections to the amendment.
MR. LAMB. In fixing the day, if January is to be the month in which the legislature is to assemble time should be allowed for closing the accounts on the first of January, for getting ready the different messages and reports before the legislature meets. The 31st of December would then be the natural termination of the fiscal year, and the officers could then have their documents prepared ready to submit to the legislature. If you say the second Monday or Tuesday of January, the second Tuesday may occasionally come on the eighth of January. There would hardly be time. The third Tuesday, I imagine, would be convenient in almost any case, answer equally well and allow full time for preparation of the reports from the different offices and business to be laid before the legislature after the end of the old year.
MR. POMEROY. I would suggest, Mr. Chairman, that it would be better in this case, as in many others, to first strike out. There is a difference of opinion about what should be inserted. I understand the gentleman making the amendment is willing to strike out the "first Monday in December" and then hear suggestions in regard to filling the blank.
MR. BROWN of Preston. At the suggestion of the gentleman, I withdraw the amendment and move to strike out the words "the first Monday in December."
The motion was agreed to.
MR. SINSEL. I move that we insert the second day of January.
MR. VAN WINKLE. O, no!
MR. POMEROY. That will often come on the Sabbath.
MR. SINSEL. Then I move to insert the first Monday.
MR. VAN WINKLE. Tuesday - still interfering with the Sabbath.
MR. SINSEL. Well then I put it first Tuesday of January.
MR. STEVENSON of Wood. Well, sir, I will offer to amend that by making it the third Tuesday.
MR. POMEROY. I second that.
MR. SINSEL. Mr. President, it seems to me if we adopt the amendment of the gentleman from Wood that if you give the legislature any time to transact their business it will throw them into the Spring so far that it would not suit their convenience so well - the farming interest of the country. It would probably be in March or April before the session would come to a close; and I think if we would commence earlier in the month of January, likely it would satisfy the whole agricultural interest of the country, or those who might be sent from that branch of business, better. So I am opposed to the amendment.
MR. LAMB. If you confine the session to 45 days - which is proposed in the subsequent section it will be over by the end of February, even if you begin on the third Tuesday of January. The third Tuesday will come somewhere from the 15th to the 21st of January.
MR. VAN WINKLE. Cannot come later than the 20th.
MR. LAMB. Cannot come later than the 20th, come somewhere between the 14th and 20th and the session would be over then by the end of February.
MR. STEVENSON of Wood. I will state, Mr. Chairman, that my only object in making that amendment was that the legislature might be prepared when they did meet to begin to prosecute their business without any intermission. If, as has been stated here, it will be necessary to have some time between the latter end of December and the time the legislature meets, to prepare the matter upon which the legislature is to act, it will be absolutely necessary to give that time before the legislature meets; and I do not suppose it could be done in a shorter time than between the first of January and the third Tuesday of that month. I would have no special objection to the second, although I think, on reflection, that the third Tuesday would probably be a better time, at least in that respect.
MR. SOPER. If the object is to have the fiscal year close with December then we ought not to meet before February. I apprehend, sir, if it should close on the last of September then it would be proper that we should meet as early in January as we could fix a day. Now, sir, if the reports of the auditor and treasurer and other documents which it is necessary for the governor to have to prepare his message, are to be furnished to him so he can be prepared to send in his message when the legislature meets, why, sir, there is not sufficient time, if we meet in January at all. I am myself in favor of meeting on the first Tuesday in January and of having the fiscal year close with the last day of September. I do not know whether any committee has reported on that subject.
MR. VAN WINKLE. We have passed it, sir, I think.
MR. LAMB. No, there is nothing from that committee.
MR. SOPER. I am in favor of the Tuesday first in January, sir, but not with a view of having the official year close on the 31st of December.
MR. POMEROY. I am not at all tenacious about the day; but I think the great object is to get rid of this difficulty about the holidays. That has been the object in other states, and they have changed. Instead of having the difficulty in regard to the holidays, and lengthy discussions and time spent in regard to the important matter of whether a man ought to have pay for not doing any labor, they would meet after the holidays were over and then that matter would not come up and there would be no reflections cast on the members. Now, it appears to me that January and February and the first part of March is the time that men would have as much leisure to leave their other business and attend to the business of the legislature as any other time in the year. I cannot conceive of a time that would be better. Well, if you say the first Tuesday of January as they do in some states, why it often occurs on New Year's day and consequently there is nothing done. They may assemble and draw pay for it, but they do not pretend to legislate on that day. They look upon it as kind of wrong to legislate on New Year's day. Well now, by saying the third Tuesday, we get rid of that. It will extend the session to about the tenth of March. That is a time when men are not very busily engaged, even farmers; and I think it would suit all concerned, and will be a much better time.
In regard to the suggestion of the gentleman from Tyler, I think the public officers, having the matter before them, would have their reports so nearly matured that they could close them up in the intermediate time, after the 31st of December, if that be the date fixed by the Convention for the fiscal year to close; they could close all their accounts by the third Tuesday of January.
If we accomplish our object, as I hope we will - notwithstanding the opinion that has been advanced somewhere that we are likely to prove a failure; I hope we will be successful in getting this new State and that we will start right, and if we start right we will keep right - that we will not have a legislature sitting a great number of months and that they will be required to do up the business. That is one of the reasons I am in favor of annual sessions: if a man doesn't do right we will turn him out. If he votes to extend the session and he comes before the people he will not be elected - unless he gets votes enough. I am in favor of making a liberal constitution and keeping down the expense; for that is what the people look for, after all. And I am in favor of the amendment to meet on the third Tuesday of January.
MR. VAN WINKLE. I am in favor of the amendment as proposed by my colleague for the reasons generally that have been stated. I apprehend that this new State, with its small territory can dispatch its legislative business, of course, in less time than it would take for the whole State of Virginia. It is very certain that the smallest states do hold less lengthy sessions than large ones. But the gentleman from Tyier is right that from December 31 to any time in January would not afford sufficient time to prepare the reports. The time allowed in this state is from the 30th of September up to the first Monday in December and is not more than seems to be sufficient. The other objects to be attained by it I think are worthy of consideration. We all know that the close of the year is the time throughout all this country for settling up the affairs of this territory. Merchants make up their accounts to that time and some people are glad if they have the money to pay off. These and other circumstances render it to the delegate himself an inconvenient time to leave home at the end of the year - inconvenient to himself and to his business. Well they come here, and the necessity of going home to see after their business - not simply the wish to partake of the festivities of the season or to see their families, is the governing idea. It is the demands of business, which sometimes are very imperative. I think by putting it after the first of January we certainly do tend to save time and money. In Congress, as we see every year, they have a long recess over the holidays, and it is a common thing that nothing is done in December. It is so easy to say "take it up after the recess; we will not have time to discuss or consider it now." But, if the legislature meets on the second Tuesday in January there is time enough to hold the session before the business of the spring fairly commences; and if the business does commence in March, with lawyers, farmers, merchants, etc., I think, sir, we have accidentally hit upon one of the best remedies in the world for long sessions. If the interests of the members of the legislature themselves require them to go home in March, we have the best security we can have that the sessions will not be too much protracted. For that reason, I shall be in favor of commencing as late as the middle of January. It appears to me, sir, that for various considerations we, of course, can draw down the time for closing the fiscal year to the first or middle of November, which will give the two months time now allowed for making up the accounts of the public officers in order that the governor may have them before he sends in his message. It is easy to change that. And, sir, it appears to me also that the very fact that it would enable us to make the close of the fiscal year later than September 30th would be some convenience to the people. The assessments are made in the Spring; sometimes it is June or later before they are placed in the hands of the sheriffs for collection. A little longer time would then be afforded each year for the collection of taxes, I think the change would result in some convenience all round.
MR. HARRISON. Mr. President, I have one objection to the time proposed in this amendment. We elect our delegates the fourth Thursday in May, and it is so long a time before they meet - nearly a year. Perhaps this can be remedied best by changing the time of election, and I am ready to change it if necessary. They are not fresh from the people and the object of annual elections is to have them come fresh from the people. It seems to me this object is not met if we elect the legislature a year before we convene them. We ought to change the time of election or else have them meet earlier. I am ready to change that if that will bring the election and the time of meeting closer together.
The question was then taken on the motion to make the time of meeting "the third Tuesday of January," and it was agreed to; and, on motion of Mr. Stevenson of Wood, the clause thus amended was adopted.
THE PRESIDING OFFICER. The question now recurs on the fifteenth section.
MR. LAMB. The section is:
"15. The governor may convene the legislature by proclamation whenever in his opinion the public safety or welfare shall require it. It shall be his duty to convene them on application of a majority of the members elected to each branch."
That is, I believe, the same provision which is in the present Constitution. (Mr. Lamb then read the same provision from the Constitution of Virginia: "The governor shall convene the general assembly, etc., etc.")
I move its adoption.
THE PRESIDING OFFICER. Do I understand the gentleman to move the adoption of the first clause or the entire section?
MR. LAMB. The whole section. I suppose there is no necessity of having the vote by clauses.
The motion to adopt the section was agreed to.
THE PRESIDING OFFICER. The question now recurs on the sixteenth section.
MR. LAMB. That reads:
"16. The seat of government shall be at the city of Wheeling, until the legislature shall establish a permanent seat of government by law."
I move its adoption. I do not know what else we can do.
MR. VAN WINKLE. I move, sir, to strike out "the city of Wheeling" and insert "the town of Parkersburg." We have plenty of accommodations there for the bodies and the members and it is a much more central and accessible place to the majority of the members than the city of Wheeling away up in the boundary. If you put one end of a pair of plyers, sir, upon Parkersburg and the other upon the northern extremity of Hancock and describe a circle on the point at Parkersburg, you will find it just includes the whole new State, making Parkersburg the very center, geographically, on the river of the whole State. Runs right along the ridge of the mountains. It is remarkable it is so - but it is so. I am sorry it should be, on account of the city of Wheeling (Merriment). But I must ask the gentleman now making this proposition to change it. It will be, I am satisfied, most convenient to most of the members. They can judge best themselves. But the impression is very strong on my mind that for convenience of access Parkersburg is the center of the new State. You might find a geographical center up in Braxton where nobody can get. But we are at the end of a railroad, on the river; we have two great State turnpikes, north and south going in there from the direction of Staunton and Winchester; besides others come in from other points. A turnpike nearly completed from Charleston would be a good, eligible route even in winter time in most seasons. There are buildings there sufficient now for the accommodation of the body when it first meets, and they can take order then as to where they will meet afterwards, of course. The hotels are sufficient for their accommodation also; and it strikes me that you equalize the travel and compensation, and in that way perhaps there would be some saving to the treasury. But it is the convenience and accessibility of the place which ought to determine; and the first session can be held there, I apprehend, as well as anywhere else.
MR. BROWN of Kanawha. I suggest to the gentleman to withdraw his motion and move to strike out only - perhaps he might have more votes to strike out than to insert.
MR. VAN WINKLE. Any gentleman can call for a division of the question. It is not for me to do it.
MR. BROWN of Kanawha. Then I call for a division of the question.
MR. SOPER. I am for the section as it reads. I do not want that we shall drag into the Convention this question of the permanent seat of government. I want to see no motion leading towards it until after we can get the people who are in favor of the other part of the State having the permanent seat of government to sustain our Constitution. After we get that adopted I have no doubt the people will fix a permanent seat. Now, sir, it is conceded, I believe, on all hands that we cannot be accommodated so well in any other part of the State as we can be here for the present.
MR. VAN WINKLE. I expressly stated that I did not so concede - I beg your pardon.
MR. SOPER. I think gentlemen who have been at both places will not find much difficulty in coming to a conclusion on that subject. It is certainly admitted, however, sir, that Wheeling cannot be the permanent seat of the government of this State. If we have it within the boundaries as now prescribed, at some future time, whenever the necessity may require it - whenever the removal will be beneficial to the State, it undoubtedly will be removed. I think we had better not agitate the question at this time, and move the section as it reads. I am opposed to striking out.
MR. LAMB. Mr. President, the gentleman from Tyler has stated very fairly what was the main object in reporting the resolution in its present shape. It was thought we might in this Convention avoid the agitation of the subject of a permanent seat of government. The motion to amend raises that question direct. Wheeling, I suppose has no pretensions when the new State shall be organized and in full operation of becoming the permanent seat; but the amendment which is offered by the gentleman from Wood does raise that question direct. It has a direct bearing which cannot be overlooked upon the question of a permanent seat of government. Is it proper that we should bring that subject of agitation into this Convention? I am not going to offer any argument in favor of the claims of Wheeling, remaining where we are until the permanent seat of government can be fixed; but I would ask the members of the Convention do they want to agitate the question of a permanent seat of government now? Had we not better lay it over? Let matters remain as they are until, in more quiet times, when our new State has been organized, the question can be properly and deliberately decided. Parkersburg will have pretensions then; indeed, strong pretensions. But I do not want to see more subjects of agitation raised before us, at present at least. I think it would be much the most judicious course for the Convention to give this .subject the go-by in all its deliberations for the present, and let the resolution pass as it is reported.
MR. VAN WINKLE. I certainly can see no reason because the committee have fixed in one place why no other shall be talked about.
MR. LAMB. The committee did not fix upon one place. They just talked about it.
MR. VAN WINKLE. Well, sir, I do not know, besides, that there is much reason for keeping things out of this Convention. I think it would be as able to decide as perhaps the legislature would. However, sir, the motion is not now to fix the permanent seat of government. If the gentleman thinks there is any advantage in it sought by the town of Parkersburg in trying to get put in here as the temporary seat of government there may be as much in retaining the city of Wheeling, so that the thing is about equal there. In reference to remarks that have been made here, I state again that the legislature can be abundantly accommodated in Parkersburg. We have a place of some 3000 inhabitants. We have three large hotels, besides small ones; as fine a court house as in the western part of the State; two or three large halls - three if not four - that are devoted to public purposes. We have a delightful, pleasant atmosphere, free from smoke (Laughter) and many other things which I do not like to allude to particularly (Smiles).
MR. BROWN of Kanawha. I do not think that this question is one of such very great importance that it need throw us entirely off our guard, raise a breeze in the Convention that may blow us up. The gentlemen seem to think that we are in danger of an explosion if this question is introduced. I regard it as a matter of very little importance. It is in contemplation that the legislature will not sit very long - very many years - before they determine on some place for a permanent seat of government. The only question with me is, if we fix a time for assembling - as we have done - the legislature on third Tuesday of January, how the members of the legislature will ever get to Wheeling on foot or along the railroad. A man comes from McDowell, Wyoming, Logan, Boone, Cabell or Wayne, or any county below Parkersburg, unless he has been disappointed by the extraordinary character of the season in finding snow in the summer and sunshine in the winter, he will have a difficult time to arrive at this place. If he takes it either on foot or on horseback, it would be a rough road to travel, I believe. I think it would be extremely doubtful if he would ever reach the place by water. I think, therefore, that the convenience of the legislature, even for the first session, might be a consideration that would induce the selection of some other point if this was stricken out. I am one who thinks with the gentleman from Parkersburg that Wheeling has not all the advantages in the world, and I am one who thinks with the gentleman from Ohio that Parkersburg has not all. There are other places. I, therefore, shall vote for striking out.
MR. RUFFNER. I would inquire of the gentleman from Wood a statement in regard to the comparative expense of living in the two places, into a calculation.
MR. VAN WINKLE. I am not able to say altogether. Parkersburg is a cheap place to live, and we have a very good market there at all times. I cannot say what the comparative prices are. I have not been engaged much as a housekeeper. I suppose the advantages for getting provisions and bread stuffs at both places are about the same. The hotel charges here may be higher; but whether for the same class of hotels, I do not know. I apprehend - I claim - that there is no great difference in that respect. We have a remarkably healthful place, and we generally look pretty well, feel pretty well and do pretty well!
MR. POMEROY. I hope this motion will not prevail. We have accommodations here that we would likely have no other place; and, besides, if the motion to strike out prevails, then there will be different places mentioned, and every man will think his particular town ought to be adopted, and we may be charged - I do not say we will be - with meddling with things that do not belong to us. I think we had better not change now. I have no idea that there are the same accommodations anywhere else at the present time; and if we would move from here - to go to Parkersburg, say - the legislature may move the capital from there, and you would be moving the capital about a great deal. I think you had better remain here until the legislature decides where the permanent capital of the new State shall be.
MR. DERING. Mr. President, I think, sir, that for the very short time this provisional government will be in operation, the Convention had better not strike out as proposed but that Wheeling will be maintained as the temporary seat of our government. The motion does raise, as the gentleman from Ohio says, the question as to where the permanent seat of government shall be located. There are various points, sir, that will be candidates for that position. I think at this time it would be better to remain where we are. I trust by next fall, sir, we will have our new State in operation; and then the legislature may settle definitely where the seat of government shall be.
The question was taken and the motion to strike out was rejected; and on motion of Mr. Lamb the section was adopted.
The question recurred on the seventeenth section, which was read by the secretary as follows:
"17. When by reason of war, insurrection, contagious or epidemic diseases, or for other cause, the legislature, in the opinion of the governor, cannot safely meet at the seat of government, the governor, by proclamation, may convene them at another place."
MR. STEVENSON of Wood. I move its adoption.
The motion was agreed to.
The question recurring on the eighteenth section, it was reported by the Secretary as follows:
"18. No session of the legislature, after the first, shall continue longer than forty-five days, without the concurrence of three-fifths of the members elected to each branch."
MR. SOPER. I would remark that the time for recess has arrived. (The hands of the clock indicated 12.)
Several members corrected him.
THE PRESIDING OFFICER. I understand it has not arrived yet.
MR. SOPER. Beg your pardon, sir, I thought it was twelve.
MR. LAMB. The present Constitution of Virginia provides for biennial sessions and limits the session to ninety days. We provide for annual sessions, limiting the length of the annual session to forty-five days. More time would therefore be allowed to the legislature of the new State for the purpose of legislation than is now allowed to the legislature of the whole State; because the territory that will be embraced in the new State requires and receives less legislative attention than the territory that will remain in Virginia. I mention this to show that the forty-five days, the legislature meeting annually, ought certainly to be sufficient for the transaction of legislative business. We find, also, provisions of this kind in the constitution of several of the states. In some the sessions are limited to forty days, in others to sixty days - states having a much larger population and hence a much larger amount of legislative business than ours. Some states have adopted a limitation operating in the same way though not exactly in the same form. Instead of limiting the session annually, the State of New Jersey, for instance, allows her members of the legislature three dollars a day for the forty days, and if they stay over the forty days they only get one fifty ($1.50) a day. I would prefer the provision in the shape here reported, as a provision like that of New Jersey inserted in a constitution would seem to imply that the legislature would continue as long as the pay lasted and could be choked off only by cutting off the pay. Other states have a per diem for the legislature, but provide that the whole amount shall not exceed a certain sum. New York provides three dollars a day, but provides that the whole per diem shall not exceed three hundred dollars; so that if they sit over a hundred days they get nothing. I think, as well as we can judge from the provisions that have been found to work practically in other states that if we have annual sessions forty-five days will be abundance of time to allow the legislature. But in case of an emergency, three-fifths of the members may extend the session - "three-fifths of all the members elected to each branch" would have to concur in extending a session.
MR. BROWN of Preston. I move as a substitute for the proposition, the following:
"No session of the legislature, after the first, shall continue longer than thirty days without the concurrence of three-fifths of the members elected to each branch; and such concurrence shall in no case extend the session for a longer period than fifteen days."
MR. VAN WINKLE. I think that amendment is entirely too strict and the times fixed are too short. Without the latter clause of the section under consideration, I should be opposed to the former. I think we have got in this country generally to exhibiting too little confidence in our neighbors. Now, sir, with all these states cutting down the pay and limiting the time and so on, I doubt whether even ten members of a legislative body at one time voted to continue a session on account of the pay. The reasons that sessions have to be extended is that all men are not what you call business men; that business is protracted and slipped over in the beginning and then everything has to be rushed at the end. In that way sessions are spun out, and by fixing a time when the session must terminate, why you get even the lazy ones to work. They will begin at an early period to spur themselves up; but I don't believe - and I should hesitate very much to place anything in this Constitution that would seem to denote a want of such confidence in those who are to be the members of the legislature as to suppose for one moment that the temptation of a few dollars pay would lead them to put the State to great and unnecessary expense. So far as it is necessary for a limit to be fixed, I am willing; but I am not willing that the public business should be sacrificed in any way for considerations even of that kind and especially on account of pay. An amount greater than the whole pay of a legislature might easily be sunk in the sea for want of a day or two, or as good as sunk. I think the provision as it stands is the true one - the principle of it. I think the number of days given is rather under than over; but I will not say much about that, as three-fifths could extend it. If you bring it down to forty-five days and then require more than a majority of the whole number elected I think you have all the spur you can get. I differ with the gentleman who proposes to limit the session to thirty days; do not think it possible such a body could ever get through its business in thirty days; because we know there are preliminary matters to be settled; before you can go into the main matter; the action of the committees must be had first. Do we not find here that when the committees have efficiently discharged their duties much time is saved to the Convention. That is the case in every legislative body. But they must have time to act; must have meetings, send for information, from abroad sometimes; call for information, sometimes, from the executive department, and sometimes they must get information from a distance. I think, sir, that would tend to show that thirty days, as proposed, would be too short in all cases; and I am not certain that forty-five days is not too short. But with the other provision for an extension, I am satisfied to leave it as it is, believing the limited territory of the proposed State will not require as long sessions as in other bodies, and that the committees of a small body could dispatch their business as well as those of a large one. I think if we require the concurrence of three-fifths of a body such as the people of this new State will elect - and I will add such as the State of Virginia ever have elected - that we certainly ought to believe that there is public virtue enough in the majority (or more than the majority) of that body to do what is right, under the circumstances. I do not like the spirit of these restrictions; when they are imposed on the supposition that the men whom the people will send to represent them in the legislature will not be fit men to be there. Because if we are to suppose that a majority or even three-fifths of such a body would be governed by a corrupt motive in extending a session, or by any motive except that they judged such action promotive of the public good, we are doing discredit to human nature, and particularly that part of it with which we are in immediate connection. I hope no restrictions founded on such suppositions will be imposed. On the other hand, I would be in favor of placing some restriction as that a definite day be fixed. The first session of Congress may be prolonged until the day the next commences; but the second session must terminate on the fourth of March; and we know that business is done more readily in the short session than in the first. A member has some project that he wants to get through. Well he knows that unless he is industrious about it, unless he can bring the house to act on it at an early day the measure cannot pass at that session; and it gives a spring to the industry of all concerned. All who wish the passage of such measures will unite in trying to get them through while the time permits. But, sir, if three-fifths of any legislature that may be elected from this proposed new State will say they want a year to do the business in, I am willing to give it to them, because I cannot believe that so large a number would protract a session for any other than proper public considerations. If they had neglected their business, in the first place, perhaps for want of experience, they ought to be allowed, if they wanted more time to take it. Their constituents would be able to judge, and leave them at home next time if they do not do right - the grand republican remedy.
MR. BROWN of Kanawha. I confess, sir, that I must oppose this amendment. It seems to me that the principle upon which the amendment is founded is that indicated by the gentleman from Wood. It is an apprehension that the representatives of the people will abuse the trust confided to them. Now, it seems to me that in a government of this character the great object ever to be kept in view is that the representatives of the people will, ordinarily, regard the wishes and welfare of their constituents; and, secondly, if they do not the constituents will take care of them at the next election. I confess, sir, a very short experience has brought more forcibly to my mind the evil of too hasty legislation, that it is crude and ill adjusted; and the danger of it is that it is pressed along in a hurry, and the result is when the legislation is over and you have an opportunity to feel the effects the laws have on the people, the next session is occupied tearing up what the previous one did; and instead of making stable laws, it results in an annual round of making and unmaking the laws of the land. The business of the country, the wants of the community, cannot be regulated by the arbitrary limit you fix to the length of your sessions. Their length should therefore depend on the wants of the community. If you fix too short a time for the legislature to do the public business, it will result in one of two things: either they will hurry up in the beginning, and cannot pursue the even tenor of their way, or they find themselves nearer the end of the session than the end of their work, with a mass of business crowded on their calendar, unable to accomplish it within the limit allowed, so that they will have to read bills by their titles and pass them inconsiderately or not at all. The result is legislation that will have to be repealed at the next session, but in the meantime the people have to suffer whatever inconvenience and harm may grow out of it. I think, therefore, sir, that prudence, wisdom and economy that the legislatures that are to be chosen by the people should have a liberal time to discharge their functions and also should have the discretion by the vote here indicated - I should have preferred three-fourths, but am content to take three-fifths - given them to determine at the end of the time fixed whether the necessity requires a longer continuance of the session. If they abuse that trust they are answerable to the people. But I am satisfied that legislative sessions are not prolonged from any mercenary motives that are often imputed to them. I imagine, sir, that legislatures never dream of such a thing, that the desire to be off for home overrides the desire to continue the session at the per diem allowed, but a sense of public duty requires them to continue the session until the legislation is finished. The difficulty is that in the inexperience of many business is not dispatched in the early stages of the session and has to be crowded through at the end; and often do we see bills passed through at the heel of the session read by their titles, not a man except the patron of the bill knowing what the contents are. That is one of the great evils of legislation that we are to guard against; and the way to do that is provide that they take time enough to transact the public business with the proper deliberation. Otherwise they will say to their constituents: why, sir, we were obliged to rush it through or we could not get it through at all. You demanded action and have got it, good or bad.
MR. SOPER. I should have preferred sixty days to forty-five days. It is fraught with evils. One can hardly describe them. And again, sir, the first few days of a session members are not prepared to get down to work. It takes several days to form your committees. It is necessary that they should have some consultations together before they are prepared to act. This is not a fault to be attributed to the members of the legislature, I apprehend, at all. It is the inevitable result of the position in which they are placed. Then, again, sir, gentlemen who are conversant with matters of legislation know that subjects of legislation accumulate. This is attributable probably, in a large degree to the constituency. They are negligent in preparing their petitions and applications, getting their papers prepared in time to have them introduced in the legislature to attain the object that they have in view; and you will find, sir, that, give as long a time as you please, when you come to the close of the session there is always a hurry; a good deal of business which remains unattended to will be passed over for future legislation. Well, then, again, sir, we are commencing here a new State. It is true the first session is to be an unlimited one. But I apprehend that the .second session, after we have been in operation a year, we will find a great variety of amendments necessary, and that probably may be continued for two or three years afterwards. Many acts of the legislature at the first session will probably involve a constitutional question, and that cannot be determined on until it has passed through the various courts which we have called to settle questions of that description. So that almost inevitably for several years we shall require legislation of considerable length. I am opposed, sir, entirely to the amendment.
The question was taken and the substitute moved by Mr. Brown of Preston was rejected, the mover alone voting in the affirmative.
MR. LAMB. I move the adoption of the section.
MR. SOPER. I propose at the end of the section to add the words: "who may extend it not exceeding thirty days."
Now, sir, I am for limiting the length of the session for this reason: a vigilant member of the legislature who has charge of the wants of his constituents will press at the earliest opportunity every thing that is necessary for that interest through the legislature. But then in almost every legislative body - particularly such as I have ever had any knowledge of - I find that there are a great many very worthy men, in whom their constituents have great confidence, who in the performance of their legislative duties evince great negligence; and it requires a limit in order to urge them up. The same may be said, sir, of the constituents of the members. If they know that the session of the legislature is limited why it will induce them to be more active in getting their matters prepared and having their claims reached so as to get final action on them. I, therefore, think, sir, that the limit I have offered is nothing more than a reasonable one. It will extend the whole session - if the whole length of time in the opinion of three-fifths of the legislature is required - it will extend the whole session to seventy-five days. I have no doubt myself that seventy-five days will give the legislature time to digest and properly to pass every necessary and required act. I do not think myself it would be prudent or safe to give them any shorter period. I have known, sir, that where these restrictions have been thrown around members of the legislature, I have known it to be the cause of extra sessions at a very heavy expense. A thing of that kind ought to be avoided if possible. I think the provision now, forty-five days, and giving the power to three-fifths of the members to extend it, and limiting them not to exceed thirty days, it will be a safe and beneficial provision. Therefore, sir, I am in favor of the amendment I have proposed.
MR. POMEROY. I prefer, Mr. President, the section as it stands. The wording of this section by the committee I think is very judicious. It requires three-fifths, not of the members who may be present, but three-fifths of the whole number of members elected to each branch to extend a session. I think sessions will be extended only where there is some urgent business that cannot be completed before the expiration of the forty-five days; and as has already been stated by the gentleman from Kanawha, the members of the legislature will be accountable to their constituents. We will expect it to be a very rare thing that the session will be extended over forty-five days, occurring perhaps once in a century: I hope not more than that. We find that many legislatures in the different states where they prosper and get along well, their sessions are very short. It is true many of them are small states, and I think we must always bear in mind that we will be a comparatively small state and our resources will not be very great at first; and the session I think is about the right length. The men can meet and do a great amount of business in that time. But if there should be any urgent business that they cannot accomplish, we give them power to extend the session; and it requires such a large number to extend it that they will feel they are accountable to the people. I think seventy-five days of legislation would be a little too much legislation for the State of West Virginia: too much legislation and too much expense. I am therefore in favor of the resolution as it stands.
MR. LAMB. Mr. President, we must recollect that we are proposing to adopt a Constitution which is to be permanent, to answer for all times and all emergencies. In any ordinary case, no doubt, the extension of the session for thirty days would be sufficient. But who will pretend to foresee all the emergencies that may hereafter arise and that may require the legislature to continue in session for more than that period. The latter clause of this section was intended to place in the hands of the legislature a power adequate to provide for any emergency, if our Constitution should prove to be acceptable to the people and should prove a permanent Constitution. Is it not necessary to shape our measures with a view to this great object; that there may be a power somewhere which may be adequate to meet the emergencies of the future for as long as this Constitution may last? If we find it inadequate, it will not be an easy matter then, as it is in cases of ordinary legislation, to have a new law passed amending it. Had we not leave the section in its present shape, trusting that when three- fifths of all the members elected to each branch concur in an extension of the session that the time for which they will extend it will be a reasonable and necessary time only? Why, we know at the first session of this legislature which is to occur - we recognize it in this Constitution - a state of affairs will exist which makes it necessary to leave the legislature unlimited. In the future how many emergencies that no man can now foresee or anticipate may occur of a similar character? If three-fifths of all the members elected to each branch concur in extending the session, will they not be as well capable, with the emergency before them, and pressing on them, to say how long that extension should last as we are now to anticipate all future emergencies and prescribe a rule to operate ten or twenty years hence?
MR. SOPER. I am decidedly in favor of the proposition, the amendment I have proposed. Why, sir, as the section now stands, if we should be so unfortunate as to get a legislature pleased with their position and situation, and who would like to live in the city of Wheeling or Parkersburg and receive the compensation we are going to give them, they have got the power of sitting the whole year. They can extend and extend; and let me say to gentlemen that while there are a few active vigilant men in a legislature that press forward their business, do everything that they have got to do quickly, expeditiously, there are a large number of them who have to rely on others to aid and assist them, and when they find an unlimited long time given to them they will put off and give their business the go-by. And then you will find in every legislative body a class of men who if you ask when they are going to close the session, they will say: when we get through with our business. I never knew a legislature to get through with their business. It accumulates upon them, and they are always driven for the want of time. A great deal of hasty legislation, even then is done, and that is experienced in every legislative body of this Union. I consider it, sir, to be of vital importance, that this session should go limited; and I think that any gentleman who has been a year in our legislative halls with the mode and manner in which gentlemen do business, and the constant applications for new legislative provisions that are pressing upon them - gentlemen who have had that experience will see the necessity at once of coming to this conclusion. True, three-fifths is a very respectable vote of the number; but here may be a gentleman from Tyler, another from Doddridge, another from Kanawha; here may be various gentlemen all round that may have a single act that they want to get reached. Now, in order to get time, why every man who has got an application on hand will give his vote for the extension of the time; well when he finds himself pressed that he had better give himself time enough. No, sir, I insist that the amendment that I offer is a wholesome one. And as to doing the legislative business of this State in thirty or forty days, it is all idle to think of it. Now, you may go to Richmond, if you please, where the session was limited to ninety days: did you ever know a session to close at the end of ninety days? Go over to New York, if you please, where it is a hundred days and where after that they get nothing; did you ever know a session to close then? No, sir, and it either results in forcing an extra session or otherwise a large portion of the legislative business must be left undone, and a portion of it done in a hasty and inconsiderate manner. The time has arrived, sir, for our recess.
THE PRESIDING OFFICER. The time for our recess having arrived, the Convention will take a recess until half past three.THREE-THIRTY O'CLOCK, P. M.
On reassembling at the appointed hour, Mr. Stuart of Doddridge resumed the chair, and said: When the Convention took a recess it had under consideration the eighteenth section of the second report of the Committee on the Legislative Department and the consideration of the amendment offered by the gentleman from Tyler was pending. Will the gentleman commit his amendment to writing.
MR. SOPER. Yes, sir.
THE PRESIDING OFFICER. The question is now on the amendment of the gentleman from Tyier to the amendment. He moves to add at the end of the eighteenth section the words: "who may extend it not exceeding thirty days." Is the Convention ready for the question?
The question was taken and the motion to amend was lost.
MR. LAMB. Mr. President, I move the adoption of the eighteenth section. It has been sufficiently discussed I suppose.
The motion was agreed to.
The question recurred on the nineteenth section, which was reported by the Secretary as follows:
"19. Neither branch, during the session, shall adjourn for more than two days, without the consent of the other. Nor shall either, without the consent of the other, adjourn to any other place than that in which the legislature is then sitting."
MR. LAMB. This provision, Mr. President, is found in the constitutions of all the states and in the Constitution of the United States. I suppose it needs no explanation. The only difference I find in the different provisions adopted in the constitutions is some of them say "two" days and some "three." I suppose, sir, there is very seldom any necessity for one branch adjourning without the consent of the other, and probably we might as well adopt the shortest time. I move its adoption.
The motion was agreed to.
The twentieth section was reported by the Secretary and adopted, as follows:
"20. Each branch shall be the judge of the elections, qualifications and returns of its own members."
The twenty-first section was reported as follows:
"21. A majority of each branch shall constitute a quorum to do business. But a smaller number may adjourn from day to day, and compel the attendance of absent members in such manner as shall be prescribed by law."
MR. LAMB. Some half-dozen constitutions require two-thirds to constitute a quorum; the balance of the constitutions of the states and the Constitution of the United States require, as we have got it, a majority. I move its adoption.
The section was adopted.
The question recurring on the next section it was reported as follows:
"22. The senate shall choose from their own body a president, and the house of delegates one of their own number as speaker. Each branch shall appoint its own officers and remove them at pleasure; and shall determine its own rules of proceeding."
MR. LAMB. Mr. President, the adoption of this section will necessarily, I presume, dispense with a lieutenant governor. It is proper the Convention should understand the full bearing of it. Under our present constitution, we elect a lieutenant governor, who is ex officio president of the senate. He is a very unnecessary appendage. The Executive Committee propose to leave him out. I presume we could get along very well with a senate electing their own president.
The section was adopted.
The twenty-third section was reported as follows:
"23. Each branch may punish its own members for disorderly behavior; and, with the concurrence of two-thirds of the members present, expel a member, but not a second time for the same offence."
The section was adopted.
The twenty-fourth section was reported as follows:
"24. Each branch shall have the power necessary to provide for its own safety, and the undisturbed transaction of its own business, and may punish, by imprisonment, any person, not a inember, for disrespectful behavior in its presence; for obstructing any of its proceedings, or any of its officers in the discharge of his duties; or for any assault, threatening or abuse of a member for words spoken in debate. But such imprisonment shall cease at the termination of the session, and shall not prevent the punishment of any offence by the ordinary course of law."
MR. LAMB. This provision, Mr. President, is not a new one. I find something - in fact the same, in the constitutions of over twenty states. It is an authority which it is necessary for a legislative body to exercise, at all events, whether expressly in the Constitution or not: an authority which probably they would have whether expressly given in the Constitution or not; but to obviate all legal questions in regard to the matter, the conventions in twenty odd states deemed it necessary to insert a provision similar in effect to this in their constitutions.
The section was adopted.
The 25th section was reported and adopted as follows:
"25. For words spoken in debate, or any report, motion or proposition made, in either branch, a member shall not be questioned in any other place."
The twenty-sixth section was reported as follows:
"26. Members of the legislature shall, in all cases, except treason, felony, and breach of the peace, be privileged from arrest during the session, and for ten days before and after the same."
MR. LAMB. A provision of this kind will be found in the constitutions of all the states, the only difference being as to the time. Some states privilege members from arrest during the session and in going to and returning from it without specifying the precise time. Others specify the precise number of days, as it is here. It was thought better by the legislative committee that the exact time should be stated, in which the privilege should exist, so that officers of the law should have no difficulty in determining whether the process in their hands could be executed or not. The time is differently fixed in different states, where they do specify the time, from two days to fifteen days.
MR. CALDWELL. I would submit to the chairman of the committee whether there is any necessity at all for this provision. I understand, sir, for myself, that all cases of treason, felony and breaches of the peace are excepted; and on what other pleas a man can be arrested I cannot conceive unless it should be for debt. The Constitution of Virginia has abolished imprisonment for debt, and I hope this State will pursue the same course. I cannot see that there can be any case in which he can be arrested outside of the three specifications contained in this resolution.
MR. LAMB. The interpretation which has been given to this section has, I believe, been this: that they are privileged from the service of process within this time; but there is no constitutional provision to prevent imprisonment for debt. The legislature may alter that law. Then it would become necessary that they should be protected within a reasonable time before and after the session.
The section was adopted.
The twenty-seventh section was reported as follows:
"27. Senators and delegates shall receive for their services a compensation to be prescribed by law. No act changing the compensation shall affect members of the legislature then in office."
Mr. Soper offered the following as an amendment: insert after word "compensation" where it first occurs the words: "not exceeding three dollars a day during the session of the legislature, and also ten cents for every mile they shall travel in going to and returning from their place of meeting on the most direct route. The president of the senate and speaker of the house of delegates shall, respectively, receive an additional compensation of one dollar a day."
MR. VAN WINKLE. I had not anticipated this matter coming up here. I do not know that I am prepared to say what I would have desired to say on it; but I would suggest whether it is best. Circumstances may occur in which it would be necessary to make a change. There may be a change in the prices of things. We have had such fluctuations before now. I should think, upon the whole, three dollars would be enough; but then the question is whether it should not be left to the legislature. I should be opposed to that feature which gives to the presiding officers so small an additional compensation; for their labor is really great. The office I think ought to be distinguished by something more than this. My own impression is, sir, that the matter had better be left to be prescribed by law, in which case I should be opposed to the amendment, although there are features of the amendment which I like if the Convention would act right.
MR. SOPER. I believe it to be desirable, sir, in putting in operation the Constitution we are about to form, we should be careful not to increase unnecessarily the expenses of the government of the State. And those expenses, so far as it relates to salaries we propose to interfere with and the compensation of the members of the legislature, I think we may at the beginning of it here ascertain if we can, the views of the Convention. Now, I believe that in western Virginia there can be no question but that three dollars is a large compensation, if we undertake to graduate the compensation beyond the amount that is. paid in other states. Three dollars is perhaps a greater compensation than four would be at Richmond. Well, I believe, there are many states that do not give to exceed two dollars a day. I suppose, sir, that three dollars would be an ample compensation. Then the question arises.: Is it necessary or is it advisable, that this Convention should limit the legislature in this respect. Well, now, sir, I think it is. When you call upon the legislature to fix the compensation you indirectly call upon them to do an act in which they have an interest. Many of them will consider that they have got a direct interest in it. Because I believe there are few men who go to the legislature who do not expect to be returned again; and I believe it would be advisable for every county in this State to select some man capable and competent, and keep him constantly representing them in the legislature. If that is so, sir, then I think this Convention had better fix the compensation. I apprehend there is not a gentleman here but what would say that three dollars is a sufficiently large sum. Another objection intimated is this, sir, that the presiding officers of the two houses ought to receive more than addition of one-fourth. I am not very particular about it, sir. I believe there are some states that give an increase of one-fourth. If there is a difference of opinion on that subject, I would have no objection to make one-half. Not very tenacious on that subject. Yet I think there ought to be a limit to it, and I am satisfied, sir, that double the compensation is too much. Aside from the fact that a presiding officer is required to be constantly in attendance, his duties are not very arduous; and he is relieved entirely from duties on committees; so that I have satisfied myself, sir, that one dollar in addition would be a sufficient compensation. I would, however, divide the amendment and see if there is a difference of opinion among gentlemen as to the compensation that the amendment now proposes to the presiding officers. I propose, sir, to take, first, whether we will limit the legislature in fixing the compensation of their own members; then secondly as to the compensation of the presiding officers.
MR. VAN WINKLE. Will the Clerk report the amendment again.
Mr. Soper's motion was reported by the Secretary.
MR. LAMB. I may repeat the remark I made in reference to this subject this morning, that the Constitution is intended to be permanent. We interpose all the difficulties we can in the way of frequent changes or amendments of that Constitution. Then can we undertake to fix permanently the proper per diem for members of the legislature? Had we not better leave it to future legislatures acting under the state of things which may exist at some day in the future to regulate the matter according to what then may be proper? This was the view the Committee on the Legislative Department took in regard to the subject. At the same time I am willing to express my own opinion. For the present, four dollars per day is perhaps too high. I find that there are but two states, according to my examination of these states - there are but two states in the country where the per diem is above three dollars. One of these is Virginia - three states: Virginia, Tennessee and Louisiana, I believe. But I think this is a matter which could be properly left within the sphere of the legislature. It seemed difficult for us to say at present what might be proper in this respect for all time to come.
MR. POMEROY. There is one thing I desire to say: that some members of the present legislature have expressed a desire that this matter be fixed by the Convention and not left to the legislature. My own opinion is that this amendment - as divided, at least - the first part of it now before us ought to be adopted. I think that is found in the past history of the country, that there has been no difficulty whatever in the different states of this Union, nearly all of them having a less amount than what has been paid in the State of Virginia heretofore, in getting suitable men to represent them. We have never heard of any complaint coming from any of the adjoining states of a want of candidates for the legislature. There has. been complaint about the multiplicity of candidates, but none about the fewness of the number that were willing to represent the people. I think three dollars a day is a fair compensation, that it will reward a man for leaving his business at home to attend to the interests of the people in that capacity; that the honor that is attached to it in connection with the pay will always secure competent men, and that is all we desire. All we want in our legislators is that they be honest and capable, faithful to the trust reposed in them. I believe in every county included within the bounds of the new State, there will be no difficulty on this point. There will be an abundance of candidates who will be willing to serve the people for the compensation that is proposed in this amendment. And as I have already intimated this constitution is to be submitted to vote of the people. I tell you the people are in favor of as little taxation as possible. They are in favor of keeping down taxation; and the history of all the commonwealths around about us proves that there is great danger of being burdened with taxation. And I think there is no necessity for making this higher; and I do not know that any member wishes it to be higher than the proposed amendment; but I think we had better settle this and let it go out to the people in the Constitution itself. There is a great number of states that do do it and I think we are just as competent to settle this matter, with all due respect to the legislature, as they are. It is a plain matter whether this is a sufficient amount or not, if we believe we ought to settle the matter here at this time. And we certainly are competent to decide what is our opinion, at least whether that is enough or not. There may be men who would not wish to serve in this capacity; but there would be others who will; and I have no doubt there will be a sufficient number of men found in the limits of the new State that will be well qualified and will discharge the duties for this amount. And you will find even the smallest number multiplied by three is a considerable expense. When you take all the members of the two houses and all the other officers, and all the other necessary expenses, it is a large amount of money that is expended every day that the legislature will be in session. We will be a new State just commencing. Her history is to be written hereafter; and I am in favor of commencing so that we will promote the interests of the people and be able to back on our action and say we did right. But I am in favor of the amendment of the gentleman from Tyier for to say three dollars a day.
MR. BROWN of Kanawha. On the question of amount I should have no objection to the amendment. I think three dollars is ample to pay the expense, and that is all that ought to be paid for. I do not think the legislature ought to be made a money-making machine at any time, and if it were, why it would be a very poor affair at three dollars a day, or even four. The only difficulty in my mind is the propriety of departing from the principle of leaving the question to the legislature. I think the probability is the legislature would adopt the amount proposed - perhaps less. They, however, always have an opportunity of judging of the per diem by the circumstances that surround the occasion, and the time; and it has been changed from time to time. We fix the amount in the Constitution say on a state of things that today would be proper and tomorrow it may be improper. It seems to me therefore it is greater wisdom to leave that to the discretion of the people's representatives; for I assure you, the tendency being to hold parties to rigid economy, their representatives will be sure to pay at a low price. With that view I would be opposed to the amendment, unless it were so provided that it might be indicated in the Constitution, but that the legislature might alter and change it as circumstances might hereafter require. I hope we are making a constitution to last beyond our own lives, and that we may not have to tear up the Constitution on the per diem of the members.
MR. VAN WINKLE. I move to strike out "one dollar" and insert "two dollars" in order that the whole question may be before the house; two dollars additional compensation to the presiding officers of the two houses, in order that that matter may be before the Convention also. I am almost convinced by some of the arguments I have heard that there is no danger of the legislature making it too big but that they will make it too little.
MR. SOPER. I think, sir, the motion of the gentleman from Wood is not in order at the present time, as I have asked to have my amendment divided and the question now is on fixing the pay of the members.
MR. VAN WINKLE. I forgot; I did not mean to make the motion now but only to give notice of my intention to move that amendment at the proper time.
THE PRESIDING OFFICER. The question is on the first part of the amendment.
The Secretary reported Mr. Soper's motion:
Insert after the word "compensation," the words "not exceeding three dollars a day during the session of the legislature and also ten cents for every mile they shall travel in going to and returning from their place of meeting on the most direct route."
The motion was agreed to.
Mr. Soper's' second motion to amend was reported as follows:
Insert immediately following the language just adopted: "The president of the senate and speaker of the house shall respectively receive an additional compensation of one dollar a day."
MR. VAN WINKLE. Well, sir, I move to increase that to "two." I think the difference between the pay of the regular members and that of the presiding officers ought to be greater than the resolution makes it. The usual rule in Congress and in our own legislature has been to give these officers double pay. Now they are not only here during the time members are, but they have to supervise the minutes, sign bills, etc. Independent of that the offices are very responsible ones; and responsibilities ought always to be considered. Otherwise, you would put no higher value on the services of a man who presided over a deliberative body than the man who called the roll. It is not liable to be perverted or sought for, because it is not so easily obtained. But I think the distinction ought to be made: and the compensation I propose is not at all too great.
The motion made by Mr. Van Winkle was agreed to; and the amendment thus amended was adopted; as was also the section so amended.
The twenty-eighth section was reported:
"28. Bills and resolutions may originate in either branch, to be approved, amended or rejected by the other."
MR. LAMB. Mr. President, the only question in reference to this clause would be whether revenue bills should be confined to the house of delegates. I presume there is but little difficulty on that subject. This is the plan which has always heretofore been followed in this State, although a number of states (I see) confine the origination of revenue bills to the lower house.
I move the adoption of the section as it stands.
MR. BROWN of Kanawha. I move to amend this to make it read that bills and resolutions may originate in the lower house only. I will not confine myself now to the precise language, for I have not time to digest it. The idea is this: In the consideration of this subject I have come to a conclusion different from that which I had when this subject was before the committee; that it is wholly unnecessary to allow both houses to originate bills, and that in reality it is. a great nuisance. The tendency of our legislation is to adopt that which is hasty, ill digested and crude; and the object of the senate ought to be very greatly and mainly to revise, supervise, correct and digest the legislation of the house; that the senate is chosen for and supposed to possess greater wisdom, greater experience, for a longer term, and selected by a larger constituency. Their very qualifications fit them for a supervising body. The house come immediately and directly from the people, are the representatives of the popular idea in the government. They will always be fresh with every matter that is prevalent in the land, and carry it into the legislative halls; and the great duty of the senate will be to restrain that, to prune, correct and render it systematical and reject that which is crude. There is another evil where the senate and house are both originating bills: it is a continual crop-current of bills going to both houses, legislating on the same thing at the same time - time wasted - instead of both proceeding in their own sphere upon the same thing, because not a step is made. But both houses upon the same thing originating a bill, the house bill passes up from the house to the senate, and the senate bill at the same time comes down to the house, to be there considered and reenacted there. It causes double committee work, double printing, a double set of bills on almost every topic that is the subject of legislation, and instead of having time for deliberation, all matters that originate in one house going to the other to be examined there, both houses are in this crude state manufacturing material for the other to digest in as equally hurried a condition. The expense of legislation, the slow progress of it, and the crude ill-digested character of it, all arise in a great degree out of this very fact, that the senate is made an originating body instead of a purely revising body. Now, sir, the senate of Virginia until the Constitution of 1850 never had the power of originating bills. The whole life of this commonwealth has been one in which its experience has shown the propriety of giving to the senate the character of a revising body only. It was a new move introduced into our constitution in 1850, and I think the impolicy of it has been manifested in the action of the bodies. It is. true the senate of the United States has power to originate bills; but the Constitution has not entrusted them with the origination of money bills. They must come from the representatives of the people, to pass up and go on to the senate and then return. I am therefore decidedly in favor of changing the character of this article of the Constitution to allow the house the right to originate bills and the senate the duty of revising and correcting them, and I will propose an amendment embracing the idea.
THE PRESIDING OFFICER. Will the gentleman prepare his amendment in writing and hand it in?
MR. VAN WINKLE. Mr. President, I am utterly unable, sir, to see any reason why this distinction should be made between the two houses of a state legislature; and I am particularly unable to see the reason why if you even made the distinction as they do in the senate of the United States, as to money bills, that there should be any reason whatever that would apply to other bills. My recollection of the character of the senate of Virginia under the old arrangement is not such as would warrant any return to that system. It certainly always was the inferior of the house, and the very idea of a senate is that it should be the superior, the conservative house. From the very fact that there was no power in the senate to do anything, that it was a mere council of revision on the action of the lower house, this body fell into disrepute; and that was one reason why the change was then made, an effort to raise the character of the senate.
But, sir, let us look at this about money bills and see if there is any reason existing with us as there does in the United States Government, and in the government of England where it originated. In England the upper house of Parliament is composed of the lords, of the aristocracy, of the peers of the realm, as they are called; and the people there very properly retain the right to originate money bills only in their house because the aristocracy is already powerful and is, to a certain extent, perhaps, exempt from taxation; and the people of England thought that they held in their hands a control over the aristocracy and the crown by retaining in the people's house, or house of commons, the right to give or to withhold supplies. By their constitution (although their constitution is not a written one, I think) no appropriation there can be made either for the army or navy for more than two years. That is another weapon the people retain in their hands by way of protecting themselves against the encroachments of the crown and nobility. There is a very good reason for it.
Well, then, to come to the United States; in framing that government, although we had not the nobility, yet our national senate was made a very distinct body from the house. The house of representatives are the direct representatives of the people themselves. They are elected in districts, several in a state, and they do represent more directly the people. But according to the theory of our government the senators are representatives of the states. Not only that, but each state has two senators. The representation in the senate is not proportioned to the number of the people. There might be a reason also why money bills should originate only in the lower house, that the people should retain the right to say in the first place whether the money should be appropriated for given objects. They still had the right - either house - to reject, of course; but they claimed that right - they thought there was safety in it - in England, and it was copied in this country, of originating as well. Because if a bill did originate even in the house of lords of England, or in the senate of the United States, that bill had to pass the lower house before it became a law. I cannot see clearly that the power of originating bills in that case was so great a safeguard as it is represented by their historians to be. That, however, is the true reason of this, I believe, and the states in making their constitutions seem to have followed the provision blindly, for it is very evident that the same reasons do not exist between the different branches of the state legislatures. The numbers of the senate bear the proportion as those of the lower house to the whole numbers of the people. They are as directly the representatives of the people as the lower house; and I cannot see that any reason can be found in the Constitution of the two bodies for withholding from one a power that is given to the other. The originating of a bill, sir, of course does not pass it. Now whether there would be more wisdom in framing a bill in one house than the other is very questionable, indeed. Those things are generally done by considerable skill. Many bills are framed by the government itself. Perhaps in England the idea may have been to prevent the too great influence of the administration, the government itself being exercised through the house of lords, by the bills being in fact prepared, as I believe many of the bills most usually are, in the office of the secretary of the treasury - that is to say, the appropriation bills. Anybody may know that whoever looked over an appropriation bill of the United States. No man, unless he is entirely familiar with all the operations of the government could prepare such a bill. If the bill is not drawn into form the estimates must be furnished directly from the Treasury Department. But I do not see how these reasons apply here; and if they do not, then I am not in favor of hampering the legislature with restrictions that cannot be shown to be really of importance. What safeguard there would be to the people in changing this by restricting one house in the origination of bills, I cannot conceive. And I do not think what has been said by the gentleman from Kanawha, even if it is true to the full extent that legislation is injured by it - even if that was true, I do not think it is a sufficient reason. We might, perhaps, if we choose, go to work and throw in several features intended to make the legislature more free. Well, we have been doing it in a different way; but I think, sir, we will find ourselves getting too much business on our hands if we are going to really attempt to correct the perversities of human nature. We cannot do it, sir, because we cannot foresee them. My own opinion is, always has been, that the senate should be constructed in some way as I have expressed it on this floor, that if we could construct it in such way that it would look at things from a different point of view, so that different interests would come into play, from the other house, if there should be that difference in the two houses that the thing would be sure to be looked at in all points of view, or nearly so, that then I could see why there was a reason even for having two houses. But do the best we can to carry out the views that were spoken of at that time in reference to the constitution of the two houses, we cannot get that real diversity that exists in the two houses of parliament or the two houses of Congress. There the difference is fundamental and is no doubt a great safeguard in the legislation of those bodies. I cannot, sir, bring my mind to see or be convinced that there is any safety, or any business, even, that is to be promoted by taking away from the senate the power to originate bills. I apprehend that business instead of being kept back would rather be forwarded. Because, if a bill is perfected to a certain extent in one house - might be a better one than a similar bill in the other - the usual way is to substitute that which is most agreeable to the members for the other. Again, in a press of business, both houses may be at work originating business. Persons who go there for legislation, the friends of a measure, will originate it in one house or the other, as they think will best forward it. After all every member of each house is called in to vote upon it; and I am not sure, sir, whether upon the whole, it might delay business in the way the gentleman has spoken of or might not expedite business in the way that I have alluded to. But the matter seems rather far off and uncertain. It is a mere inference what effect it would have. With men of one stamp it might have a dilatory effect; with men of another stamp it might have a contrary effect.
I am, therefore, in favor of the provision as it stands in the report of the committee.
The Secretary reported the amendment moved by Mr. Brown of Kanawha to strike out all the section after the word "resolutions" and substitute; "shall originate in the house of delegates, to be approved, amended or rejected by the senate."
MR. LAMB. I am opposed to trying this experiment. I find that in not a single state of the Union is the senate deprived of the power of originating bills. If we adopt a provision of the kind, it is an experiment of our own. Except that some states require that the revenue bills originate in the lower house, there is no restriction in a single state of this Union on the power of the senate to originate bills. To the unanimous verdict of our sister states I am disposed to attribute a good deal of weight in a case of this kind. The very fact that has been mentioned by the gentleman - and I believe it is a fact that formerly in Virginia the senate was deprived of the power of originating bills, is not an argument for the amendment; for we find this did not operate well. They changed the Constitution in that respect. So far from saving time, the probabilities are that it would lose time. You restrict your legislature to forty-five days. What can the senate have to do during the early period of the session? What business have you provided for them? They can originate nothing, and can act upon nothing until it is sent there by the house. They must necessarily, it seems to me, at the commencement of their session, merely meet and adjourn. Instead of facilitating and expediting business, which would probably be the result I think of allowing each house to engage at once in its proper business, letting the matter be arranged, as it can be very readily arranged between the two that one shall take up this subject and the other that, you bring matters forward much faster and terminate the session much sooner. Another objection would have great weight with me. If you deprive the senate of the power of originating bills, you deprive that body of all weight in the legislative system; and directly you will have the opinion go forth among the people that the senate itself may as well be dispensed with.
It strikes me, gentlemen, that we had better adhere in this matter to the landmarks that are before us.
MR. BROWN of Kanawha. I do not wish to trouble the house with many speeches, but it seems to me the argument of the gentleman last on the floor does not hold together. The experience of the world, it seems to me, has taught the value of the higher, or conservative legislative body. The British House of Lords has never been regarded as so inconsiderable and unimportant a body as might be dispensed with; nor the Senate of the United States, so far as many bills are concerned. Nor was the senate of Virginia; so far as my knowledge of the history of the country goes ever supposed to be so before the Constitution of 1850, with which there has been a universal quarrel almost ever since it was adopted. And, now, sir, I have no doubt if you could put the question today to the people of this whole commonwealth whether they would readopt the old Constitution of '29-'30, or this of '50, they would take the former. I have heard it all over the country that if the two were presented there is no hesitation about which they would choose - so bitter has been the hostility, and that was one of the most distinctive changes. The real object of this is what is to be attained by it. The gentleman thinks one house would have nothing to do while the other was getting business ready. Now what is gained by setting both to work on the same bill in the two different houses. Why it has to pass both houses; and while both houses are at work on one bill of the same character you do not facilitate business in the least. And that is the case. If any gentleman will look at the ordinary legislation of the country you will find bills originating in both houses, of the same thing, and there are about double as many bills printed as necessary, because each has its bill while the other is at work on the same subject. And I shall put the question now to this Convention: suppose the very time we are at work here there were another house that was to have coordinate jurisdiction, and their assent was necessary to every measure we should adopt; and when we are at work on this report they were at work on another report, and just as fast as we adopted a provision an amendment comes in from the other house on the same subject, and you will stop and reenact and reconsider and adjust all that that body has done in opposition to what your body is doing. Now these are the difficulties existing with two houses working on the same subject at the same time; whereas if one house could have its action in some form and the other could receive and adjust it and put it into form, much more actual progress would result. So far as experience goes, I only beg leave to say that I have conversed with several gentlemen of very considerable experience in legislative life, some in my own county, who have been members of the legislature long before this constitution of 1850 was adopted and many years under it, who gave it as their unqualified testimony that the power of originating bills with a double operation in the two houses was a nuisance, an inconvenience, and resulted really in an injury and delay to the legislation of the country; and it were far better that the senate was a revising body to supervise the action of the house. It gives more time, and what is done is done more deliberately and more properly.
I therefore shall insist on my proposition.
MR. LAMB. I merely want to make a single remark; that if legislation is arranged in the manner in which the gentleman from Kanawha seems to suppose it is, there is certainly very little skill in the bodies which have the management of it. I have always supposed that those bodies arranged among themselves, through the means of their committees or otherwise, that while one house took up one subject, the other would act on another. I have always understood that this was the ordinary course in legislation that would be taken among all well regulated legislatures; that there is an understanding among themselves that this subject will be acted on first by the senate and that subject by the house, and that each prepared their different bills and sent them to the other. It may be, if the matter gets into the confused sort of "muss" that the gentleman has called to the attention of this Convention; but it is very easy to regulate that. It is easy to have an understanding. If the senate are about introducing a bill on a matter that is already before the house, it is easy to have an understanding with them to let that matter alone until the bill comes from the house. In this manner you have two different parties at work, each engaged in facilitating the business, and which certainly can be done in a much shorter time than if all bills were to originate in one house only and the other had to wait merely to revise what the other had prepared.
MR. SOPER. I believe the section as reported, sir, is the true one. I believe it has a tendency to expedite business instead of retarding it. It is an undeniable truth, sir, until the lower house matures and puts them on their passage, during that time the senate would remain unoccupied nearly the whole time. If the bill is introduced into the senate and passed and sent to the lower house, there it receives its reference to the appropriate committee. If the committee has got the subject before them, they have the benefit of the views of the other house on the same question and it enables them, probably, to decide more easily and correctly on the matter before them. If the lower house has reported its bill and it has been referred to the committee of the whole, the bill comes from the senate to the house committee, it is reported immediately to the committee of the whole when they have got that matter under consideration, and there, sir, in committee of the whole they have the views of the senate on the same subject matter as well as of the house; and I believe, sir, it has a great tendency to facilitate business. There is one point of view in which it is beneficial: the house is the large number; and in those large bodies matters proceed much slower than before a smaller body. So that if the senate acts upon it in the first instance and sends the bill down to the house it facilitates and expedites the whole subject matter of legislation on that particular subject. And on the score of expense, extra printing, etc., the senate sitting a single day, sir, if you please, unoccupied, their compensation would outstrip everything that this extra printing suggested.
I believe, sir, in every point of view, that this is a wholesome regulation, giving both those houses the power of originating bills. It can work no injury and will have a great tendency to facilitate every matter of this description.
I am, therefore, sir, opposed to the amendment.
MR. VAN WINKLE. I should like to ask a single question: whether it is at all probable that the friends of a measure, who, of course, would be anxious to pass it - are likely to embarrass that by originating it in both houses: whether they are going to have these diverse bills pending there. Now, every measure of importance always has its friends. Where a measure assumes political importance, of course, one party is favorable to and the other opposed to it. It is those who originate it and who are, in ordinary bodies allowed to perfect it before the trial question is passed upon. Now, is it at all probable that the friends of a measure, whether it be a private bill or public, would be likely to embarrass it by having bills originate in both houses of a different character? And if not, there is no need of more than one.
MR. BROWN of Kanawha. The gentleman from Ohio predicates his view on what he had supposed to be the regulations of different bodies. Now "the proof of the pudding is in chewing the bag," as the old saying is - and it is a very good one. However, maybe our understanding, sir, or suppositions, the facts really were not so. If we are to take our present legislature I know that bills are originating in both houses continually on the same subject and passing and repassing; and whether they be public or private bills, prepared by friends of the measure or not, the fact exists and therefore the presumption of the gentleman from Wood does not hold good. Whether it is the inexperience of those gentlemen I cannot say; but I presume they are like all other legislatures: each man takes his own course, and each house has its own notions and is a little headstrong and goes ahead without asking anybody's advice. But these are evils that may be remedied by the mode proposed. The good I have not been able to see as yet, nor have I seen it in the arguments of the gentlemen from the other side, so far as I have listened to them and ascertained their meaning.
The question was taken and the amendment rejected.
The section as reported was adopted.
The next section was reported and adopted, as follows:
"29. No bill shall become a law until it has been fully and distinctly read, on three different days, in each branch; unless in cases of urgency, three-fourths of the members present dispense with this rule."
The thirtieth section was reported:
"30. No law shall embrace more than one object, which shall be expressed in its title."
MR. IRVINE. I move to strike out the thirtieth section. This section embraces a very good general principle, but it is important that there should be some exceptions to it. It is very inconvenient for the legislature to conform to this law. The legislature never has conformed to it. It is frequently the case that there are two great objects so connected with each offer, and so dependent upon each other that it is impossible, almost, to separate them, at least very inconvenient. This provision was introduced into the Constitution of Virginia in 1852, I think for the first time. I do not think any such provision existed in any prior constitution. Since that time this provision has frequently been violated by the Virginia legislature; and it is calculated to embarrass the legislature. It is frequently a difficult matter to decide whether a particular bill would be a violation of this provision. A great many laws have already been passed in violation of this provision since it was first introduced into the constitution in 1851. Now it may become a fruitful source of litigation. I suppose any law that has been passed that violates this provision is null and void. Even the legislature which sat here in Wheeling last summer passed at least one law, if not more, that violated this provision. The legislature in Richmond has frequently violated this provision; and I suppose all the laws that have been enacted in violation of it are null and void. It is a very good general principle. The legislature ought to be governed by it as far as is convenient and practicable; but when it becomes inconvenient, no such restriction ought to be imposed upon the legislature in the exercise of a sound discretion on this subject. With this view, I move to strike out that section.
MR. LAMB. Mr. President, I merely want to make an explanation in regard to what I presume to be the main object to be accomplished by this provision. The prior section which has just been adopted provides that no bill shall become a law until it has been distinctly read three different days in each branch. Now, it has been (so I have read) too much the practice in legislatures where such a provision has not existed in the constitution, especially towards the heel of the session, when business was pressing, to tack on as amendments bills embracing distinct subjects and thus get them through without proper attention to the subject and in violation of the provision that every bill to be distinctly read on three different days. I recollect at one time to have heard of a great difficulty that was raised in Pennsylvania in regard to some very important bill that was tacked on to a private bill in this way and passed through the legislature without their knowing anything about what they had done.
MR. VAN WINKLE. Connellsville Railroad.
MR. LAMB. Well, there were others of the same character. If you strike out this provision, you can towards the heel of a session, take any bill, whether important or not, and make it an omnibus to carry through all sorts of schemes, tacking them on as amendments. I beg leave to say in behalf of the legislative committee that they have attempted very few experiments of their own - none, we may say, in the report which they have made. This same provision will be found in the constitutions of many other states - of New York, Ohio, Indiana and at least a dozen more. It may occasion some inconvenience at times, it is true, but do we not run a greater risk on the other side? What would become of the difficulty of making towards the end of the session, any bill that may have progressed towards its final stage an omnibus to carry along everything - what becomes, if you strike this out of the provisions which you adopt in your Constitution to require that every bill that goes through the legislature shall be carefully and deliberately considered ? That they shall be read on three different days. But I have no experience in legislation, and they may be evaded at least by tacking on different subjects that have no necessary connection with each other as amendments to some bill that is going through.
MR. VAN WINKLE. There is a great deal of force in the remarks of both the gentlemen. I concur pretty nearly in every remark made by the gentleman from Lewis, except perhaps as to the effect of embracing different things in the same bill. I should hesitate to say that the law would become a nullity, or rather that the court would pronounce it a nullity. And yet it would be an infraction of a constitutional provision; but I suppose the courts would construe it as directory and so save the law. The abuses that have been committed in legislation in the way the gentleman from Ohio has indicated where this railroad was slipped through; I think both houses of the Pennsylvania legislature attached to a private bill a bill authorizing this road to be made to Connellsville with a view of reaching the state line in the direction of Baltimore; was one of them; but it seems to me it indicated a degree of gross carelessness on the part of the members, and I think several from Pittsburgh or some other portion of the state lost their seats in consequence of it.
After listening to the gentlemen, I drew up this. I do not know whether I will offer it at this time as a substitute:
"No amendment having a different object shall be attached to a pending bill after a second reading."
I think, sir, that might meet the objection and prevent that difficulty which the gentleman from Lewis has so well described. There are such shades of difference between two objects that a thing in the estimation, sometimes, of one mind will be entirely pertinent when in the estimation of another mind it will seem to have nothing to do with the subject. I think, sir, on the whole I will offer that as a substitute, and I should like to hear the views of members upon it, whether that would meet the case. I drew it here hastily.
MR. BROWN of Kanawha. Mr. President, I would ask the Secretary to please read that amendment.
The Secretary read:
"No amendment having a different object shall be attached to a pending bill after its second reading."
MR. BROWN of Kanawha. That is proposed as an amendment?
MR. VAN WINKLE. If the gentleman will permit, I have this idea in that: that if the house, deliberately, on the second reading or previous to it if a committee reports, choose to adopt a bill having two objects in it, if they allow a provision or amendment having a different object to come in up to the second reading of the bill, then it is done with deliberation and is the intention of the house and the element of haste and possible oversight is excluded. But this hasty or fraudulent legislation which the gentleman from Ohio has alluded to and which must be done on the third reading is prevented. That is my view.
MR. BROWN of Kanawha. I confess, sir, the substitute offered by the gentleman is preferable to striking out the other altogether. But still I think the provision as it stands in the report is preferable to either. Now, to my mind it is not the only objection that an amendment may clandestinely or carelessly be attached to a bill on its passage and thus become a law without the proper consideration of the whole house; but there are evils or complications resulting from thus loading on this one subject a half dozen others and thus bringing to the whole the strength of each and carrying through that which cannot stand on its own legs by itself a minute. That is a great evil. There is another evil. There is a case that occurred in our own state to which I will allude. Some years ago there was a bridge across Gauley river and it was burned down by some incendiary. The legislature of Virginia in legislating on the subject of that offence, or the rebuilding of another, or some provision about it - but the subject of Gauley bridge was under consideration, and in the act relating to that subject, was attached an amendment or a bill which was passed through together and may be found under the head of "Gauley Bridge," on the subject of delinquent lands and taxes on them. Now the subjects are so entirely apart from all relationship or connection that one would be surprised ever to think of hunting for one under that head. This is only an instance that occurs to my mind of the diverse nature of subjects that may be crammed together under the pressure of circumstances. But it may be that individuals pressing for the bridge subject were willing to submit to anything that was crowded upon them in order to obtain that and thus carry through the whole, which if considered as a bill singly might not have stood. Now, the object of this provision in the Constitution is to prevent that kind of legislation. I confess I have not a distinctive determination of what would be the effect of a violation; whether the courts would consider this directory, and that they would violate their oaths and duty to pass such legislation, yet the law might be permitted to stand. I am not permitted to answer that question. No such case has ever yet arisen before our courts; and I must confess, while we had this constitution in operation now, sir, some eleven years, I do not remember any distinct recognized case of a violation of that provision of the constitution. Very certain it is that however many times it may have been violated, the tendency is to prevent the legislature from passing that crude legislation, and that is the great object to be attained. You will not have ten instances with it in the Constitution where you would have a hundred instances without it. The propriety, therefore, of the provision is indicated by the adoption of it in so many constitutions in other states as well as our own. Seems to me the reasons that arise naturally require us to retain it.
MR. SOPER. Mr. President, this section in the constitutions of the different states is a recent provision, and it originated out of this hasty legislation generally perpetrated at the close of the session. The friends of a bill, doubtful whether it will pass if properly investigated, in order to make friends for it, would receive amendments and accept of them, and then again in the engrossing, and for the want of attention on the part of members in the reading of bills. Provisions have been found in former days to be contained in the same bill which were directly at variance with each other; and from its title you would not suppose that the body of that bill contained anything like what would be found in it. Frauds of that kind, sir, led to this provision in state constitutions. I believe it is a very salutary one. To obviate the difficulties of the gentleman from Lewis all that is required is in the first instance for the friends of the bill to look at it carefully and cautiously and have it so worded as not to contain two subjects, and if there is doubt upon it to let an additional bill be introduced. It is very easy, sir, to give full effect to this section as reported. It is very easy to give full effect to it and, at the same time prevent any of the evils which the gentleman who raises the amendment has endeavored to guard against. Now, sir, at the heel of a session where the house is probably in session until midnight and perhaps after that, when every member is anxious to get his bill read, the title of the bill is announced when other members have their attention called to their own business, not paying particular attention to the reading of the bill by the clerk - why, sir, those instances which have been mentioned by gentlemen that have addressed the Convention upon this amendment have crept in, sometimes designedly, sometimes inadvertently, sometimes in consequence of a want of proper attention on the part of members of the legislature. But so it would turn out on the close of the session, when the bill came to be read and examined it would contain matters entirely at variance with what its title purported. I am satisfied the greater safety is to retain the section as it now reads. The amendment proposed by the gentleman from Wood may be considered as a safeguard. Yet, sir, I believe if the section is left as it is it will require every gentleman in the legislature who has got charge of subject matter to be enacted into law, that he will be careful to obviate this constitutional objection; and then whether there be a hurry at any time in the legislature, whether members while hearing the title of a bill as it is read pay very little attention to its details or not, no evil can result if it is carefully guarded by its friends at its inception. So that I believe the better way is to retain the section as reported.
The question was taken on the amendment, which was rejected, and the section was adopted as reported by the committee.
Section thirty-one was reported as follows:
"31. On the passage of every bill, the vote shall be taken by yeas and nays, and be entered on the journal; and no bill shall be passed by either branch without the affirmative vote of a majority of the members elected thereto."
MR. VAN WINKLE. I move to insert there: "On every bill appropriating or requiring the expenditure of money, the vote shall be taken by the yeas and nays." I have seen them pass a dozen bills in three minutes and nobody would think it worth while to call the yeas and nays.
MR. BROWN of Kanawha. I am opposed to that amendment for the reason assigned by the gentleman from Wood who made the motion that bills are passed three or four in a minute and that nobody knows what is in them. A representative of the people when bills are on the final passage ought to have his name called and put it down. If there is any time when deliberation is proper that is the time. We very often see the ayes and noes called to bring members to a test, or to suit the caprice of some individual, or for some party or political purpose, or something of that sort; but here it ought to be a permanent provision that upon the final passage of every bill, whether many or otherwise, every man who votes for or against should put it down in black and white. I, therefore, am opposed to confining this to money bills and shall vote for the section as it stands.
MR. LAMB. The provision reported by the committee, as adopted, as applicable to all the bills, is found in the constitutions of many of the states. The Constitution of Ohio provides that "on the passage of every bill in either house the vote shall be taken by yeas and nays and entered on the journal; and no law shall be passed in either house without the concurrence of a majority of all the members elected thereto." The Constitution of New York has a similar provision: "No bill shall be passed unless by the assent of a majority of all the members elected to each branch of the legislature, and the question on the final passage shall be taken immediately on its last reading and the yeas and nays entered in the journal." The object of the provision is just to correct the practice which was referred to by the gentleman from Wood, this thing of passing a dozen bills in a few minutes, when half the members perhaps do not know what is going on before the legislature. The adoption of such a provision would render it absolutely necessary that members should attend to what is going on, for it requires a majority of all the members to pass a bill and they must vote by ayes and noes upon it. It may not be possible under such a system to pass bills so expeditiously but at least we will have every security that members will know what is passing. I read the provisions of two constitutions of other states: I may remark that the same is found in many of the other state constitutions - over a dozen, I believe, at least.
The Secretary reported Mr. Van Winkle's amendment: To insert after "bill" the words "appropriating or requiring the expenditure of money."
The question was taken and the amendment rejected.
MR. VAN WINKLE. Well, sir, I move now to strike out the residue of the section. It seems to me that is carrying the joke a little too far. You do not have at all times anything like a majority and you are requiring a vote of two-thirds of those present. It is unfair to the friends of a bill, and you enable perhaps one- third of the whole legislature to defeat a bill at almost any time simply by absenting themselves.
I was going to move, sir, if the other amendment had been adopted to insert the word "such" so as to make this applicable to money bills - because that is the important matter. Bills in reference to internal improvements, creating a debt, ought to have that safeguard. But I do not consider it necessary in the case of every little bill that comes up. Here is a bill, maybe, to incorporate a cemetery company, which needs the aid of the legislature and at the same time is of no great public importance either way; merely asking the legislature to do what is usual; and yet if there should be a slim house, one more than a majority, why, of course, the bill must be defeated if one or two men choose to oppose it; and they may do it out of ill nature. It seems to me while we should be anxious to prevent abuses, we may render legislation itself almost a nullity or a useless thing; and then the same subject must be brought up again and again before another session; because there are very few members who would not have the courtesy under such circumstances to give it a reconsideration.
Now, the difference is that if this is stricken out a majority of those present can pass a bill. If this is retained, no bill, however simple in its provisions, however unimportant to the public at large, can pass unless a majority of the whole number of members elected to each house is attached to it, and that can seldom be had in a thin house. The probabilities are very much against getting a constitutional majority for any bill. If, however, a more important bill, like that creating a debt is known to be pending, members will try to be there to vote their sentiments according as they may be; whether for or against; but it would delay legislation to deny that legislation for a reason which it seems to me ought not to stand in the way. If those who are absent are so without any particular object in being absent then a majority of those present represent a majority of the whole house, for it will be inferred that a similar number of both sides have gone away. On a grave bill, it would be just and right that you should have a majority of all the members, so that if the people are saddled with a debt you should know it was done by the representatives of the whole people. But sickness and accidents will occur, business engagements, members drawn constantly away from these public bodies, sometimes on leave of absence and sometimes not; and yet you run the risk of defeating about one-half the bills that are proposed.
MR. BROWN of Kanawha. So far as I am concerned, it seems to me the arguments presented by the gentleman in favor of requiring a full majority to pass money bills completely answer those he has made in favor of a different rule for other bills; because there are other bills as important as money bills. It is a great mistake to suppose that money is the only thing important in public legislation. When you are legislating on the lives and fortunes of a public and the laws that control their liberties, it is of as high importance as a few dollars; and the very thing that the gentleman acknowledges by the force of his argument requires not only that the ayes and noes be called but that a majority of the whole legislature vote in the affirmative to enact any law. They are equally demanded on other questions as on money bills, which are really less important than many other subjects of legislation, so that he must extend the same argument to the others. Upon the very question of importance, and because there are mixed up with legislation some unimportant matters, it would be very unwise to discriminate as to what is important and what unimportant. Make a general rule; provide for the whole legislation. The only difficulty in the way of the gentleman is that so many will be absent. Now if there is any force in the argument it is that we are to insert a provision in this Constitution to alleviate the condition of the gentlemen who would be compelled, in the other state of the case to attend to their duties. Insert an amendment that permits the legislature to go on without their presence, then the persons whom they sent to dispose of and determine public business may be retiring on some other business. It is not to be expected that even one-fourth of the legislature will ever be absent from any good excuse or cause; for it must be an extraordinary state of things that would call away perhaps half the whole legislature. Ordinarily the absenteeism that is tolerated in the legislature would be prevented by this very provision. If bills come up to be defeated by the absence of any member without good excuse, he will be held to a responsibility before the public, and it will induce a stricter attention to duty on the part of members. I, therefore, shall oppose this amendment.
MR. SOPER. I believe this is a very wholesome section. Whenever this order of business is reached every gentleman that has charge of a bill, in whichever house it may be, will make it a point to be there in attendance to take care of his own individual bills of which he has the supervision. And then, again, sir, where you require the yeas and nays to a bill to be entered on your journal, why members knowing that the matter will go before their constituents will be very careful to see what sort of a bill they give their vote to. It makes them more careful to examine and ascertain that there is nothing improper in the bill itself. Now, sir, the objection that I should have to the section is this: it does not go far enough, unless there are some other provisions to come before us that will obviate the difficulty. I mean now, sir, that class of legislation in which is embraced the creation of public debt, the appropriation of money, the incorporation of banks, insurance companies and railroad companies. Why, sir, I should be for having a provision here that not only a majority of all the members elected but an affirmative vote of two-thirds before ever I would be willing to have bills of this kind pass. Any gentleman that is conversant with the history of other states just on the subject of the creation of banks and the frauds that have been practiced - the "lobbying," the "logrolling," the contrivances of all kind in order to carry out these objects, profitable to the gentlemen that have got the control of them - they have all been resorted to, sir; and great frauds have been perpetrated and a great deal of very improper legislation has originated out of it. So that you will find, I think, sir, in a large number of constitutions - I now speak more particularly of New York - 1 know in many of those instances I have spoken of - it requires a two-thirds vote before the bill may pass.
I am for the section as it stands, and may yet before the close of this Convention take the sense of the Convention upon requiring for a certain class of bills two-thirds of the whole legislature.
MR. LAMB. I read one section of the Constitution of New York which requires that "no bill shall be passed unless by the assent of a majority of all the members elected to each branch." There is another provision in that constitution which provides that on the final passage in either house of the legislature of any act which proposes or makes, continues or revises any appropriation of trust money or property, or releases, discharges or commutes any claim on the domain of the State, the question shall be taken by yeas and nays, which shall be duly entered in the journal, and three- fifths of the members elected to either house shall in all cases be necessary to constitute a quorum thereof. I do not understand therefore that the Constitution of New York maintains in reference to the vote any other provision than that which requires a majority of all the members elected to pass any bill. Three-fifths must be present to constitute a quorum.
MR. SOPER. Are you reading from the constitution of 1846 or 1821?
MR. LAMB. The last one.
MR. SOPER. In the last Constitution there were general laws for the organization of these companies, but under the former, of 1830, I am confident that the two-thirds rule is contained in them. It is a great while since I examined it, but I speak now, sir, from recollection.
MR. LAMB. The Constitution of Indiana provides that "a majority of all the members elected to each house shall be necessary to pass any bill or joint resolution." Now, in all those states which have adopted this provision in their constitutions, we have not heard of this exceeding difficulty in passing their bills. On the contrary, our information would lead us to suppose that there is a sufficient quantity of legislation left in those several states. Perhaps in our own state there is a little too much legislation. I think that is the general impression of our people: that it is an evil that it is necessary in some measure to correct, and that it is necessary to provide in your Constitution that all possible care should be taken that bills are passed deliberately and with due examination; to provide as far as possible that when bills are under consideration they shall not be passed by a slim house; that the members attend to their duties to the last and that if they are absent, with a provision of this kind the yeas and nays should at least let the public know whether they have been attending to their duty in the passage of such and such bills or whether they have been attending to other matters. If the evils which are pointed out by the gentleman from Wood are really to be apprehended then it strikes me we should have heard of some of the difficulties existing in those states, which have had such constitutional provisions in operation for ten, fifteen or twenty years back, in getting the proper quantity of legislation. But I have never heard yet of any complaint of that kind in any state of the Union.
MR. POMEROY. I think the argument from one side would be about as strong as the other. I think a great many states have no such provisions as that proposed here, and some of them have, and I am not prepared to say how many have and how many have not. But it is to me very clear that there is provision of this kind in Congress. There is a difficulty presents itself to my mind. I suppose the Convention are disposed to favor this resolution as it is. Suppose a body is composed say of forty-six members and there are forty-five members present; twenty-three vote for the passage and twenty-two against. Why owing to the absence of a single member, the bill is lost. Suppose you even sent a sergeant-at-arms after this member, it is very likely against you could get this member in another is absent. It is very rare that the whole body is present. Now, we say this is more important than an ordinary session of the legislature, and we think we say so truthfully because we are fixing principles here that are to regulate the new State, if we get it through, for a long time; making something that we look upon as permanent. And yet what day in our session has there been a full vote recorded ? Today some of our most highly respected and valuable members are absent. Even our President could not get here. Well, now, if you make it apply to all bills - I would be willing to adopt the suggestion of the gentleman from Tyler, to apply it where there would be matters of great importance. But what some of the people might regard as unimportant would be deemed very important by others. A bill regulating the road law of a particular county, would be very important to the members and the people particularly interested in it, and those members take advantage of that time when they think legislation is not of such grave importance to attend to something else outside the house. At the same time other bills of equal importance to other members are waiting to be passed, and cannot be passed at all unless there is a majority of all the members elected there to vote. This thing of men being absent is of general occurrence. It is so every day. It is so here and it is so in the legislature. The members are not all in their seats. They are not all there; and yet it requires them all at times to pass a measure. The body very often is nearly equally divided. In this body since we have assembled we have been a tie and the motions were lost. Well, now, a body may be very equally divided, and yet the majority cannot pass the bill because, simply, there is one or two men absent. In the case in which I have already cited, in a body of forty-six and one, two or three are absent the bill is not carried; or even if they are all present but a single man, why the vote is not carried. I think this provision is too sweeping in its provisions. I think you will waste more time and expend more money in endeavoring to pass bills with this provision than if it was somewhat modified and altered. It is a very rare thing to find a body of men of forty, fifty or sixty, all present in their seats. It is rare that they are all in the enjoyment of good health. I met one of our members today who said he was too unwell to be present. Now if we had the same regulation we could not pass anything unless we had a decided majority of the house. I think we ought not to make such a general provision as this.
MR. SOPER. One suggestion: the member having charge of the bill when it is called in that order of business, he either moves it or not; he knows whether the house is full or not; and if it is necessary he can proceed to a call of the house and get them there. Where every bill has got to be passed by this majority, every member who has charge of it is always in attendance under that order of business. So I think there is great safety in the section as it is.
MR. POMEROY. I cannot conceive the members would all take an interest in the bill.
MR. SOPER. They are their own bills.
MR. POMEROY. Yes, but he has the power to control the members? He would bring up the bill for discussion and when that discussion would commence the house might be full. He might be a good enough gentleman to watch them, but before the discussion would end the house might be gone - a great portion of them - and when the vote came to be taken he might not have his men there, and no power to keep them there; but they might look on it as important to the gentleman himself but not to them, and they might say: "I have got business elsewhere." The discussion might run on several days. Would he know just at what time to have his men present? How would he know that these men that were opposing the bill were exhausted of the argument they had in opposition to it? Why, if they were as wise as he, they would not stop there and wait until his friends would get out. I am told men are sometimes pretty cunning. They are about as cunning on one side as on the other. We find sometimes we can just whip the enemy because we have got everything prepared and when we get there we find that they have got everything prepared too!
MR. LAMB. I have no right to speak again on the subject. I merely want to correct a statement in reference to the gentleman from Tyler. There is a third provision in the Constitution of New York such as he indicated. It says: "The assent of two-thirds of the members elected to each branch of the legislature shall be requisite to passage of every bill appropriating public money for local or private purposes."
MR. SINSEL. The gentleman from Hancock supposes a case where the house might consist of forty-six members, twenty-three of them voting for it, one absentee, and twenty-two against the bill. Now in a case of that kind that bill could not pass because twenty-three is not a majority of the whole house. Well now if a bill cannot receive a majority of the whole house present or not, is it entitled to very much respect? If there are twenty-three members voting for a bill and twenty-three against it, would it seem reasonable that it should become a law? Because if they represent the true feelings of their people the people would stand equally divided on this subject. I think such a bill should not become a law. In addition to that he only considers one side of the question. Now where a house consists of forty-six members, twenty-two of them may be absent, and yet any bill may be passed if the twenty-four remaining in their seats vote unanimously. Well then in addition to that, if there are twenty-four present, under the sort of provision the gentleman prefers, thirteen members might pass a bill. Well, now, would it be fair if such a provision should become a law. Suppose these members represented the true feelings of their constituents: here would be about one-fourth of the members passing a bill against the wishes, it might be of three-fourths. Well then, if anything will make members attend to their business, it does seem to me a provision of the kind reported there is the very one to do it. How often is it that members leave the house without any just cause, very frequently visiting drinking saloons, etc. Or a man might in some instances hold out inducements to a member to get him away at the time a certain bill would come up for passage, so it would be lost for want of his vote. So I think it is a safe provision.
MR. STEVENSON of Wood. I would like to ask the gentleman from Taylor what he meant by "etc." He said "drinking saloons, etc." (Laughter).
MR. SINSEL. Well, sir, I did not mean any reflections of course, on any members here.
MR. VAN WINKLE. I do not think the arguments we have heard here meet the case. I do not object to applying this provision to important bills. There you can rely on friends enough to pass the bill. But there is a multitude of legislation which many members unfortunately take no interest in. And when the lobbyists go to the seat of government, they always go to that class of people who are indifferent, and it is those on whom they operate. But there is a great deal of legislation that is important to the people, and yet it is almost impossible to carry any bill by this majority. There will be differences in the community - and there ought to be - and the will of the majority of the community ought to prevail; but the difficulty is here: If you would say that a bill should not be rejected unless a majority of both houses voted against it - if you could have a provision on both sides - this would be fair enough. But you give here to a minority - and less a great deal than an actual minority - you give to a minority of one-third say - the power to defeat a bill. Now, my idea is - I may be mistaken in it - from what I have heard spoken this afternoon, my idea is decidedly that we have the legislature for the purpose of passing bills, and it strikes me that this attempt to cripple and tie them up and prevent them from passing any bills, is very injudicious. You had better abolish them at once. There is legislation to be done every year, however much people may be opposed to "so much legislation," as they sneer. Those who oppose legislation so indiscriminately have very little idea what it is or the necessity for it. Legislation ought to be to some extent free, within suitable limits.
MR. LAMB. Excuse me for one moment. I have seen the difficulty the gentleman suggests arranged repeatedly, though I have had very little experience in legislation at Richmond. We have a provision in our Constitution which requires a majority of all the members elected to pass certain bills. I have seen a dozen bills coming under that provision of the constitution submitted to the different houses at Richmond, and not securing a majority of the whole immediately reconsidered and laid on the table until the next day when they could get a fuller house. It does not follow from this provision that a small number may reject peremptorily. That plan has been adopted. If a majority do not vote in favor of the bill and yet in a full house the majority of the whole could be had in favor of it, the bill is just laid over until the next day to give them a fair chance.
MR. VAN WINKLE. Yes, sir, that is what I said. The bill has failed for want of one or two perhaps of this constitutional majority. There is never any difficulty in getting some member to move a reconsideration, because it is thought to be an act of courtesy. But I will tell you how the thing has been done under this very provision. We have had a heavy debt imposed on the state, but with all that, that money has not come to our quarter of the state. We know that it has all been confined pretty much to one section. Here is the Orange and Alexandria Road wanted an appropriation, the Central Road wanted an appropriation, the South Side, the Petersburg and some others wanted an appropriation, and, sir, it was this: neither of them could get it without this constitutional majority. They just united together and every man interested in any of the bills voted for all of them, and so carried them all and inflicted a debt on the state that ought never to have been incurred.
MR. LAMB. Would you remedy that by striking out this provision?
MR. VAN WINKLE. No, sir, I don't know that I would. I am going to show that where bills are of importance it is possible to get a majority to pass them. But on a bill of less importance, it may be to those concerned of fully as great importance as these are to some others - you cannot get the feelings of the members up; you cannot log-roll in the way I was speaking of. I still think, sir, the provision is one that will do more harm than good applied generally.
The question was then taken on the motion to strike out and it was rejected.
MR. STEVENSON of Wood. I would like to ask the chairman of this committee whether it would not be better to insert the word "final" before the word "passage."
MR. LAMB. I observe that this is the expression used in the other constitutions on the subject. I have no objection at all to inserting the word.
MR. STEVENSON of Wood. I think it would make it clearer.
MR. VAN WINKLE. It "passes" to its second reading, "passes" to its third reading, "passes" to its engrossment, etc. It is still on its passage; is not "passed" until it gets square through. The section was adopted.
MR. STEVENSON of Wood. I move we adjourn, Mr. President.
The motion was agreed to and the Convention adjourned.
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Chapter Eleven: First Constitutional Convention of West Virginia