In the absence of the President, the chair was assumed by Mr. Ruffner.
Prayer by Rev. Joseph S. Pomeroy, a member of the Convention.
Reading and approval of journal.
MR. VAN WINKLE. Mr. President, I spent some hours of the night in endeavoring to carry out in a fugitive form what I suggested yesterday might be done in the nature of a compromise. I mean as a compromise between the small counties and the big counties, or with all the counties having a sufficient number to be entitled to a representative. As I suggested yesterday that the proper mode in approaching this subject would be to fix a rule to be discussed, of course, on its own merits and that could be so framed, undoubtedly, as to embrace within itself all the elements of fairness and equality that are possible. There would be, of course, as to every rule that can possibly be made in reference to a plan such as this exceptional cases where it would not operate to the entire satisfaction of those concerned. This is a truism that is constantly pressed on our attention which we know could not be obviated. Because it is hardly possible take what number you please - take 100 as the number of the house of delegates - and apply any rule that you may make strictly, there might yet be a case left, or one or two or three that would think their situation was a little more hard than the others. But the Convention would be able to consider whether really any hardship that was worth fighting much about was really perpetrated. And I apprehend that if a rule was settled while the light we have had on the difficulties to be encountered, a rule we should look to, forgetting those difficulties as far as possible, that the real cases of hardship would be very few and the hardship very light. Now, sir, this compromise is based on the idea that the larger counties shall surrender something and the smaller counties shall surrender something of their extreme demands of a representative for every county. Of course, the only idea of a compromise between conflicting interests is that both parties surrender something; and, of course, unless this is done there can be no compromise; for to attempt to make a compromise on the basis that one party shall get all and the other nothing would be futile and would not be a compromise at all.
It has taken some thought, sir, and some figuring to find a rule that would effect this purpose, and I defined it to be departing in a slight degree from the rule that has heretofore prevailed. With a view to get a house of 54 members I take 6000, which is the divisor that would be given by a house of 50, and apply that. That leaves four members to be disposed of - well, as gratuities or in some other way. But I was anxious to get a rule that might be so framed as to apply to subsequent as well as present cases. I only, then, take 6000 as a divisor; but I did not give an additional representative for the one for that amount. I make the larger counties yield something there. I require that it shall have a fraction over 3500 in order to be entitled to an additional representative; that is, that the governing fraction shall be seven-twelfths instead of one-half.
The first rule is, then, to give to every county that has more than 6000 a delegate for 6000 and a delegate for a surplus of 3500. I then give to every larger county having less than 2500 - which is as far below the half as the other is above it, and including Calhoun, for it has 2492 - one delegate within 2500. I now find we have two delegates to spare and four counties left. Here is the hardship that the gentleman from Doddridge has been endeavoring to get rid of. The population of these counties - the largest being but 1700 and something - is below one-third of the ratio taken. It does not, of course, approach anything like one-half. But I think probably I will be able to satisfy the gentlemen representing here these four smallest counties by acting on a suggestion which I took from the remarks of the gentleman from Tucker last evening. That was that having been tied to Randolph for several years and having never been allowed a delegate, he thought that if Tucker could be represented occasionally by her own men that perhaps all she required would be granted. I have therefore introduced what may be a new feature, one for which I do not know that there is any precedent; but I apprehend it will commend itself to the Convention and will commend itself to the gentlemen recommending these small counties provided they understand that they cannot get each a separate representative. It is this: I give to the remaining four counties two delegates and provide that Tucker and Webster, although not contiguous - because this plan does not require that they shall be contiguous - shall each elect one delegate alternate years. Gentlemen will find that there has been a great deal of difficulty in combining a small county with a large one, such as putting Pleasants on to Wood, for instance, because there is no other place for it to go. If another county of respectable population lay alongside of Pleasants, there could be no great objection. But so if these small counties lay contiguous - if Tucker and Webster, for instance, joined each other we could put them together. The difficulty mentioned by the gentleman from Tucker would not occur for each county would have about the same influence in the election. But I find there is a great objection not only on the part of small counties to being tacked to large ones, but objection on. the part of the larger counties and injustice to them in being tacked to small counties; as for instance Randolph, which under the apportionment would be entitled fairly to a member by itself, is obliged to take Tucker in tow; Braxton is obliged to take Clay in tow; and thus in endeavoring to do some justice to these small counties you are in fact doing an injustice to both Randolph and Braxton. This plan avoids this. It simply proposes to give to the remaining four counties two delegates and provides that Tucker and Webster shall each elect one delegate alternate years, and that Clay and McDowell shall do the same; that in the year 1862 one of these counties shall elect a delegate and the other will not vote, in 1863 the other will elect a delegate and the first will not vote; and so would the other two counties which also do not lie contiguous to each other. I am satisfied that if any arrangement of districts or dividing of a representative between two counties is adopted and there is anything like equality in the population of the two that plan would be preferred by both of them I should suppose it would. I have, in order that if the Convention saw anything else worthy their approbation they might have the whole subject before them, ciphered out completely, and have proved the work so that I am very certain there is no error in the figures.
The counties coming under the first rule, to give a delegate for every 6000 and then a delegate for every 3500 gives thirty delegates. You understand I have then in another scheme set down the fractions over 6000, or the whole number where it would not give a dividend. I have then on that rule and on the second rule of giving to every county having not less than 2500 (and to Calhoun which has 2492), as I have already stated, to make out the 54 delegates with a surplus of 23,186 in the whole, a deficit of 42,753. That is to say, that there are a portion of the counties which have not enough to entitle them fully to a representative on 6000 working it out as a mere divisor there are in particular counties - I think the relative numbers are 24 and 20 - twenty have a surplus of 23,186 and twenty-four which have a joint aggregate deficit of 42,783. Now, in order to ascertain how this comes out in accordance with the fundamental principle of equality of population, I have taken the true ratio - 6000 you understand is above the true ratio, the true ratio being 5637 - and the result has pleased me very much. Because this being the actual number (with the exception that it ought to be 5637 1/2 - but under the rule the 1/2 is thrown away) but under this the surpluses are 32,048 and the deficits are 32,005, making a difference of 43, which is occasioned by the half that is thrown overboard. Now, this is the variation - if I am correct in my view of it - from a true apportionment under the general principle of equality of white population. The whole surplus, or deficit which are equal, amounts to about one-tenth of the whole number to be divided. And I apprehend that even a larger figure would not bring it out much closer than that. Now, if the Convention had an opportunity of examining these rules, which they will admit are concessions on both sides, are in the true nature of a compromise because each party here yields something in order to arrive at a conclusion that shall satisfy us all; and I certainly hope that if this rule is found to work fair under present circumstances it may be engrafted in the Constitution as a permanent rule because it would be a rule that would work with any other numbers. I do not mean to say that I have the precise proportions in this, but something in the nature of this.
Whether it would be proper for me now, in the stage of this matter before the Convention to offer this, when members have had an opportunity of seeing how it works out. I do not know, but I apprehend if we turn our attention to it and consider whether there is not as much yielded on either side as fairness and consistency would require, whether we would not be willing to take these rules and work them out and abide by the result.
MR. STUART of Doddridge. What will the result be?
MR. VAN WINKLE. Presently, sir, I will add here that there are only two counties that appear in the last column which if the division were made upon the true ratio, 5637, that have a fraction or surplus over one-half of that amount; and if the Convention could raise its ideas to 56 and give to each of these counties two additional delegates and bestow them on these two counties, I do not see that a word of complaint could issue from anybody. You see that out of all the counties that are placed together in the report of the committee and vote in connection there are but four left and those the smallest in the lot, counties whose population is so disproportionate to the divisor, or to any divisor that you get if you enlarge the house even considerably; for as I showed yesterday if you make a house of 86 members the largest of these counties would not be entitled to a representative on the white population, and if you make one of 100 members the county of Tucker is the lowest. The county of Tucker would not be entitled to a delegate for a fraction over one-half. Because 100 members would give you a divisor of upwards of seven thousand, and Tucker is short of 1400. By this gentlemen will see how much we would have to yield to give each of these counties a delegate.
But while, sir, I am sure we invite the prosperity of these counties, that I certainly look for an increase of population in all of them and that I would be as pleased as the members representing them to hear of their prosperity, I would submit now to the members here representing those small counties whether in the face of the statements that have been made here and which they will find to be accurate, whether they do not think themselves they are asking too much if they ask for a separate delegate from each of those counties? If the Convention will bear with me - and I trust that they view as I do that it is desirable to prevent hard thoughts and such things, if a compromise cannot be reached that will be satisfactory to all. It is worth spending a little time for. If the Convention, then, will bear with me, I will give them an apportionment of the delegates under this system.
Mr. Van Winkle then read to the Convention the following scheme of the apportionment prepared by him:
1. Give to every county having over 6,000 white population one delegate for every 6,000, and one for a surplus of 3,500.
2. Give to every other county having not less than 2,500, and to Calhoun county, one delegate.
3. Give to the remaining four counties two delegates, and provide that Tucker and Webster shall each elect one delegate in alternate years, and that Clay and McDowell shall do the same.
MR. VAN WINKLE, resuming. Now, the two counties here having the lowest fraction over the half of the actual ratio of 5637 are Barbour and Mason, one in the northeast, the other in the southwest; and if those who are looking to a balancing of the different sections of the new State, here is an opportunity, if the Convention would be a little generous to add two members, by giving each of those counties an additional delegate which would fairly balance one another in sectional interest that might arise. But then I think that very matter would be stopped. I do not know where the case of hardship could be picked out.
Now as to the number 54 or the number 56 I do not think that a house would be properly constituted of a less number. In my original calculations for the 39 counties before I came to Wheeling or before the Convention sat some few days, I was trying to see how the representation could be apportioned among the 39 counties, of which the State, as far as I knew then, could consist; and I never thought of taking a less number than 55 as the number of the house of delegates. It appeared to me, from the best reflection I could give the subject at that time, free, of course, from the influence of any arguments or suggestion made here, that with a less number the business could hardly be done. I have already alluded to the difficulty that is now experienced. My friend from Doddridge has, I think, very experimental evidence of it. The senate is composed of only ten members. The senate is composed of ten members. I do not know that there are so many and how it can get on with fifteen or twenty standing committees. How can they possibly do that business? Again, the house of delegates that is at present constituted has 39 members. There the same difficulty occurs. Members have to be doubled and trebled and quadrupled on the committees, or else you must take committees so small that the practical idea of a legislative committee is defeated. Because if you will remember in the constitution of committees in this body the endeavor was to scatter the members of the committees all over the State. The reason was this, that in the committees, as in the Convention, every shade of opinion would be represented: With committees laboring in that way the difficulties would be presented, the hardships would be suggested; and a committee, a small body, debating these propositions in a conversational way would be able to hit on some compromise and obviate objections that would be raised in committee. The result is, as we have very plainly seen, we have in most cases adhered to the action of the committees. Frequently, when alterations are proposed we get back to the result of the committee's labors; and I may say without offense that it is necessarily so, because the committees are peculiarly calculated for that business, and hence we have any peculiar abilities they have devoted to that subject. That, of course, would aid us very much, because the committee is so constituted that it represents every part of the State and no objection to a measure reported on is likely to arise in the Convention if it has not arisen in the committee. There the question is canvassed and frequently a gentleman suggests an amendment and he is told bysome member of the committee what its operation would be which he had not foreseen but which the committee had been forced to look into. Now, the importance of committees of suitable size is illustrated sufficiently I think by these remarks.
Well, again, these small bodies are much more likely to be operated upon by outside influences than the larger body. That is palpable to every one. Up to a certain number the despatch of business is greater than in a body that is somewhat numerous than in a smaller body. I know this very well. I know business is driven ahead in the legislature at Richmond much more rapidly than you can get it ahead in a town council of 15 or 20 members. And also because with the greater number you are more likely to get a fair proportion of experienced men acquainted with such business - and that is a great deal. When we come to business of this kind, if we are not familiar with the mode of conducting it we are meeting with the difficulties all the time until we get the rough corners worn off.
I am arguing now simply against the objections that have been made against a large house. I apprehend if those advantages do attend it, the difference of pay ought not to be a consideration here. True economy does not consist in putting money away in an old stocking but in the judicious expenditure of it, and if we can so use our money as to receive for it more than money's worth, we are certainly exercising very judicious economy. I believe I will leave it to the Convention to indicate what course they think had better be taken with this, if there is anything in it that strikes them favorably. It might be laid on the table and printed, or they can take such other action as they please. I have worked it out with a sincere desire to heal differences of opinion and satisfy everybody. I think it will be found that in the distribution of power I have not aggrandized my section nor on the other hand the extreme southern section of the State.
MR. HAYMOND. I am with the gentleman from Wood. Fifty- six is the number which I first offered, but on reflection I changed it to 59. That number I still think the best; but I am for the compromise. I am with the gentleman from Wood.
THE PRESIDENT. Does the gentleman from Wood make any present motion?
MR. VAN WINKLE. As it is a proposition of my own, I do not want to compel the members to be for it. They might take any course they see fit. I have given the necessary labor to it, as I have already stated, with a desire that it might effect a compromise; and if members are desirous to settle it on the compromise basis, that may be the beginning, at any rate, of a proper scheme. I think it will be found as unobjectionable as any that could be proposed. For I do not take the figures at random. I considered well what would be a proper yielding on each side. Of the 13 or 14 counties that were put in pairs in delegate districts there are but four left and of six delegate districts there are but two; and if the proposed arrangement shall be satisfactory to the delegates from those counties, they need not, of course, be contiguous, and difficulty of that kind is avoided. The feature giving to counties in alternate years I think is one that might be engrafted on any proposition, and if I represented a small county I certainly should be in favor of it if I could not get the whole representative.
THE PRESIDENT. It is proper that some motion should be made in reference to the proposition; otherwise it will be passed over.
MR. LAMB. I certainly am not prepared to act on the proposition of the gentleman from Wood. It is entirely a new one to me, and in order to consider it at all the only course is to lay it on the table and print it, and then adjourn the discussion of the apportionment of the house of delegates until we receive the printed copies and look into it carefully. I make no proposition of the kind, but if the gentleman from Wood wishes the matter to take that course I will cheerfully acquiesce, for one. There are many considerations connected with the matter, but for a proper consideration of this entirely new scheme the house must take some time and must have the scheme regularly before it. I could not consider a scheme with figures of that kind explained verbally here before us. I could not consider the principles that are involved in the measure here without some time to think over and examine them. To me it is an entirely new plan; and certainly whatever plan is proposed and recommended by the gentleman from Wood the Convention will be disposed to give all proper weight - perhaps more than a plan proposed by any other member - to his recommendations. But I, for one, would want time to consider and investigate the plan that is now presented.
MR. SINSEL. Mr. President, it seems to me we are about as well prepared now to discuss the question before the Convention as we will be at any future day. We have been contending here for principle upon the basis of representation.
THE PRESIDENT. It is not regular to proceed with this debate without some motion on which the Convention can act. If the gentleman proposes a motion, let him indicate it, and the house will then understand what we are about.
MR. SINSEL. I merely wanted to state that that plan is equally as arbitrary as the one suggested by the gentleman from Doddridge.
MR. STEVENSON of Wood. Mr. President, I will just state that if it is necessary to bring the matter properly before the Convention I will move that the proposition of my colleague be printed, and also any other propositions that may be presented, and that the subject be passed by for the present. If it is thought better to make it a special order, some other gentleman can suggest that. I make that motion to bring the matter before the Convention.
MR. DERING. I approve of the motion the gentleman has just made and am in favor of having the proposition printed and laid before the members. I hail the proposition, sir, for a compromise on this question with pleasure; and while I do not indicate what my view will be on the subject, yet I wish to give it a fair examination. I wish to entertain it and give it all that consideration which it deserves. Sir, I differ with my friend from Marion who is opposed to all compromises. If we all acted on that principle, sir, we would never make a constitution in the world.
MR. HAYMOND. Will the gentleman from Monongalia excuse me?
MR. DERING. Your colleague, Mr. Hall.
MR. HAYMOND. Very well.
MR. DERING. All constitutions have been matters of compromise; even the Constitution of the United States was. Every constitution we have had in this state has been a matter of compromise, and the greatest men in the land have set us the example of compromising when members could not agree.
THE PRESIDENT. I would remark to the gentleman that this debate is entirely out of order.
MR. STEVENSON of Wood. I made a motion.
THE PRESIDENT. The proposition is to pass by the consideration of the question.
MR. STUART of Doddridge. I would suggest to the Chair that that proposition cannot be made while another member is entitled to the floor.
MR. STEVENSON of Wood. I made that motion distinctly before the gentleman got up.
MR. DERING. I am speaking to the motion of the gentleman from Wood, who moves to have the proposition printed and laid aside. In order to have that done I am speaking of the necessity of doing it by way of entering into this compromise and showing the necessity of laying that proposition before the Convention so that it can be understood and that members may have time to consider it.
THE PRESIDENT. The printing has been considered a matter of course in all propositions before the house and it is not subject to debate the rule.
MR. BATTELLE. If the Convention please, I would suggest a modification of the motion of the gentleman from Wood that instead of a motion to print the proposition of his colleague he move to pass by the subject for the present and refer the proposition to the Committee on the Legislative Department, together with all other propositions on that subject, and that they report to the Convention as speedily as practicable the result of their investigation on the subject. I make this suggestion without knowing who are the members of that committee except the gentleman from Ohio (Mr. Lamb). But as they have had the whole subject under consideration and are familiar with it, it seems to me it would expedite business to recommit the matter to the committee and let them make their report, and let that report be printed. The Convention will have the assurance then that the best effort and labor have been given to the whole question. I suggest that modification of the gentleman's motion.
MR. HERVEY. I hope this paper will not take that course, sir. That committee has been at work and we have the result of their labors. I take it that is their opinion. There is no mistake about that. Besides, it would involve delay, and I think the course indicated by the gentleman from Wood to lay on the table and print will bring the whole question before the Convention sooner, within twenty-four hours, and consequently no material delay would occur.
THE PRESIDENT. Does the gentleman from Ohio make a motion?
MR. BATTELLE. I move an amendment to the motion of the gentleman from Wood, that the proposition to which his motion relates be referred to the Committee on the Legislative Department with instructions to report as speedily as possible, of course including the idea that the subject be passed by.
MR. HALL of Mason. I would be glad to see the subject take the course suggested by the member from Ohio. The question has been a very vexed one, and I do believe if the committee had the subject again before them they would be able to give us such a report as would give satisfaction to the Convention. I hope it will be the pleasure of the house to adopt the suggestion of the gentleman from Ohio.
MR. STUART of Doddridge. I desire to make one suggestion, that I think the Convention is prepared to act on this question. With the light thrown on it by the gentleman from Wood, I am prepared, for one. I am opposed to extending this thing any further. If we send it before the committee it will return and we shall be refreshed and have this debate to go over again.
MR. STEVENSON of Wood. I wish to make just a single remark, sir, and that is this that I hope the motion to pass by at least for the present will prevail. It may possibly be better to fix the business as a special order for Monday or some other day. About that I am not particular; but if it is possible to devise a plan by which the conflicting opinions and apparently conflicting interests can be reconciled in this matter it certainly is still worth while to postpone for a day or a few days. If we go to act on this matter now I must say, for one, although I am not very good at figuring that I am not prepared myself, and it would require a good deal of discussion to convince me that any proposition which can be offered - any new one - will reconcile the differences better than some we have already had before the Convention. But if it is possible - and I must confess the proposition suggested by my colleague appears to be one of that kind; it may not be; it appears to be - but if it is, why, sir, it does seem to me that ordinary common-sense would dictate that we should adopt it; and to adopt it intelligently we must have time to read it, to make calculations and have a little while at least to talk about it. I think for these reasons it would be better to postpone for the present and take it upeither tomorrow or next day, or sooner or later as the case may be.
MR. LAMB. As to the question of delay, which is a material one on the consideration of the precise motion before the Convention, I may remark we have plenty of other business we can go to work on. There are plenty of propositions pending before the Convention. There are a number of sections of this legislative report not yet acted on entirely disconnected with the question of apportionment; the executive report; the judicial, county and township organization reports are all lying upon our table. The motion does not, therefore, involve the necessity for any delay. It may occasion delay in the manner suggested by the gentleman from Doddridge. We may come back refreshed on this subject. We are now all tired. We may come back prepared to make further speeches all round on the subject. There is a possibility that that may be the result. But we would at least go into the consideration of the subject with all the light that has been thrown on it by the discussions that have already taken place - and I trust there has been some light thrown on this subject of apportionment.
MR. BATTELLE. I wish to say one word in reference to this question of delay. It does seem to me that if the Convention should take the course suggested in reference to this proposition, instead of being a time-consuming agency it would be most effectually and emphatically a time-saving measure. I cannot understand the views of gentlemen who think it is indispensable to save time, that when we get a particular thing before us we must do it or must right or wrong go through it before we look at anything else. It seems to me from the result of my limited observation such a course is unusual in any other deliberative bodies with which I am acquainted. And I must say, for one, what has already been said, that if compelled to vote on the proposition submitted by the gentleman from Wood - which may be very excellent - I shall have to "go it blind" for one. I really am not able to say whether I ought to vote for it or not; and on a question involving such grave consequences I, for one, want to see it in print; and I especially desire but it makes very little difference with the question, as it stands. The object of the gentleman from Wood in the delay and the printing is effected in this case. Both the gentlemen have effected their purpose. The only difference is that if the gentleman is opposed to the reference to the committee, that has carried. The only difference between the condition it now stands in and the adoption of the motion of the gentleman from Wood, is that it is carried to the committee, a little further than he desires. If the gentleman desires to reconsider, any person in that way can move to reconsider and the motion will be put.
MR. STUART of Doddridge. I understand the gentleman from Wood submitted a motion. The gentleman from Ohio moved an amendment to that; that amendment has been adopted, and the question is now on the motion of the gentleman from Wood as amended.
MR. STEVENSON of Wood. The only difficulty is I did not understand that it was amended. Of course, I am not particular about it, only I think if the Convention did not desire that the paper should go back to the committee that they should have a chance of saying so.
MR. BATTELLE. I myself understood with the gentleman from Wood that two votes were taken on this proposition, first on the amendment and then on the proposition as amended. There has been but one vote taken. My amendment was a distinct proposition, and though I am personally very well satisfied with the result yet I must say in common fairness, with every deference to the Chair, it does seem to me the gentleman from Wood has a right to demand that a vote should be taken on the amendment and then on the resolution as amended, provided it was amended.
THE PRESIDENT. The Chair understood the vote as taken on the amendment. It is true some of the members did not so understand it. The second vote was on the adoption of the proposition as amended.
The gentleman from Ohio.
MR. LAMB. I understand the matter precisely as the Chair does. The first vote was on the motion of my colleague from Ohio to amend the motion of the gentleman from Wood. That vote carried. The second vote was put on the passage of the motion of the gentleman from Wood as amended and that vote carried.
It is clear that there is a misunderstanding in this matter. The gentleman from Doddridge, who voted for the last motion, did not suppose they were voting for the motion of the gentleman from Wood as amended. The gentleman from Ohio, who made the motion to amend did not suppose the amended motion was carried, as I did. For the purpose then, as a mere matter of fairness all round, I move the reconsideration of the vote, having voted in the affirmative in both cases. I move the reconsideration of those votes, and then I must insist that the gentleman from Wood put his motion in writing and my colleague from Ohio put his amendment in writing, and we will then know what we are voting on.
MR. BROWN of Kanawha. If the gentleman have attained the object in view, are they not content with it. Under the rule, if it is carried to the committee . . .
MR. STEVENSON of Wood. I am perfectly satisfied to let the thing rest. I only want to have it straightened out properly.
MR. LAMB. I have no objection to withdraw the motion; but is the gentleman from Doddridge satisfied?
MR. STUART of Doddridge. I voted under a misapprehension; but I am content to let the matter rest as it is.
MR. LAMB. Then by general consent the matter may rest.
MR. CALDWELL. In my view, it would be better to recommit whole report to that legislative committee.
MR. BATTELLE. There is where it goes.
MR. CALDWELL. I understand it is proposed to refer the proposition of the gentleman from Wood. My proposition is to refer the whole report and the proposition of the gentleman from Wood will then go with all the propositions that have been offered. I make the suggestion, sir, with a view that the proposition of the gentleman from Wood and that of the gentleman from Ohio, and the one I made myself, may have the opportunity of being investigated by this committee previous to being acted on by the Convention. I think the object of the Convention would be better obtained by recommitting the whole report to the committee. I am aware I cannot make that motion therefore I merely make the suggestion.
MR. VAN WINKLE. If I understand this motion it recommits only so much of the report as relates to the apportionment of the house of delegates. It leaves the report before us for further action, and we can proceed to the senate. Well, difference of opinion is going to arise there; and it may be that settling the provisions in reference to representation in the senate may make the other less difficult to settle. We will have, at any rate, until the day this report comes back; we will have had a discussion on the senate apportionment, and I think we will be better able to decide. I think, therefore, sir, there is no necessity for recommitting the whole report. The gentleman speaks of his proposition, which relates to something entirely different from the apportionment of delegates in either house. He could have that separately committed to the committee if it has never been there if he should desire to do so. It is the proposition offered here since the report was before the house, and has been printed. But it is not best to recommit the whole report because that would preclude us from considering the representation in the senate, which would perhaps throw light on the representation in the house.
MR. CALDWELL. I withdraw any suggestions I have made.
THE PRESIDENT. The Chair would remark that the gentleman from the county of Logan is here, ready to come in and qualify.
Benjamin H. Smith, of Charleston, Virginia, being present in the chamber, then came forward and the Secretary administered to him the oath embraced in the ordinance for the reorganization of the state government, and Mr. Smith took his seat in the Convention.
MR. BROWN of Kanawha. I was not in favor of referring this portion of the section of the report back to the committee, as has been done; and it strikes me now as very highly proper that the subject of apportionment in both houses should be referred together. For us to attempt to conduct a discussion in reference to the apportionment of the senate while the same subject is under consideration before the committee with reference to the house deprives us of the advantage of surveying the whole field and by it determining our course.
It seems to me it is highly proper the committee that is disposing of it in the one should dispose of it in the whole. And it arises from this fact: that if it be found impossible to do complete justice to all parts in the one house there may be a compensation for it in the other. I therefore shall favor the reference of the subject as to both houses to the committee, with all the competing propositions that they may have the whole under consideration. I object to the proposition of the gentleman from Marshall, to refer the whole report, because a large part of it has been adopted and if the whole report is recommitted it subjects the whole again to reamendment and consideration, and is in fact undoing all we have done, whether well or ill. But the subject of apportionment is one subject in fact, whether in the house or senate, because it is the same people in either case who are clamoring for equal and proper representation.
MR. POMEROY. Would my friend be willing that the whole of the report that has not been acted on should be referred?
MR. BROWN of Kanawha. I am perfectly willing for that.
MR. SINSEL. We acted on the apportionment in the senate and decided on that. There was a minority report considered at the same time and refused, and the majority report adopted.
THE PRESIDENT. There is no vote before the Convention.
MR. BROWN of Kanawha. Then I move to refer the subject of apportionment in both houses to the Committee on the Legislative Department.
MR. PAXTON. What is the motion?
THE PRESIDENT. The motion is to refer the whole subject of the basis of representation back to the committee.
MR. PAXTON. I shall be opposed to referring back to the committee what we have already decided upon.
MR. POMEROY. The motion if I understand it is this: to refer to the committee for to bring in such report as they see proper for the house of delegates; and the motion now is to recommit also in regard to the senate. And also the gentleman from Kanawha accepted the suggestion I made to refer all that portion of the report that has not been acted upon back to that committee. I made that suggestion because there were so few sections of that report that have not been acted on that it will only lead to confusion, only to commence back where we left off and on the lower house first. I can not vote intelligently on how the senate is to be composed until the house is decided on. There should certainly be some fair proportion between the two branches of the legislative department; and I think we will go on more rapidly to refer all back that has not been acted on and let the committee report on just such portions as they think need to be reported on, and we will take up some other report that is before us and will go on with the business before us.
MR. HERVEY. I think there is great force in the remarks of the gentleman. The senate must depend greatly on the number of the house and vice versa. Consequently until all the propositions are before the house it cannot be prepared to act; and if they are not prepared to act on the one branch I cannot see that we can come to any just conclusions in regard to the other; and it would be therefore proper and right to pass by this report.
MR. POWELL. Mr. President, if I understand the proposition it is to refer the apportionment of both the senate and house back to the committee. We have already declared that matter, as it respects the senate by adopting the 4th section of this report. I am opposed to the motion.
MR. VAN WINKLE. Mr. President, I do not see what there is novel in reference to the senate to go back to the committee. There is the proposition of the gentleman from Brooke in reference to single districts, which is the only matter I know of. The committee will have nothing before them more than they did before. Nor do I see anything to prevent us going on and considering the apportionment of the senate. It may be, as the gentleman from Hancock has said, there ought to be some proportion between the senate and house; but it is not important, even in that view. The numbers to which the house must be restricted are tolerably well known, and that notation will, of course, be used whilst we are considering the senate. I do not see any necessity of reconsidering that part of the report, or any other part except what relates to the house of delegates. But until we consider the senate a little we do not know that it needs any separate action of the committee. Unless they should report back the proposition of the gentleman from Brooke, there is nothing I see they would be likely to do. We have in the minority report an apportionment of single and double districts different from that of the committee; but it is regularly before the house also, and I shall therefore be opposed to reconsidering what relates to the senate. I think we can go on with it and spend some time profitably on it.
The question was taken on Mr. Brown's motion to recommit the whole subject of apportionment in both branches of the legislature, and the motion was agreed, to.
MR. LAMB. Mr. President, the next subject in order, then, suppose is the 9th section of the report of the committee on the Legislative Department. That was passed by on the 19th of December.
MR. VAN WINKLE. It was passed by because there is a similar provision in the report on county organization, where I think it perhaps more properly belongs, and is there connected with a similar provision in reference to townships. The provision in reference to counties is about the same only in different language; but I apprehend it is more proper to consider it in connection with that report.
MR. LAMB. I really suppose it is a matter perfectly immaterial whether it is considered with one report or the other, and for this reason that we all understand that whatever provisions the Convention will adopt on first going over the different reports in relation to matters coming from the standing committees, when they come into the hands of the Committee on Revision they are expected to put each in its proper place in connection with the subjects to which they properly belong. If the gentleman from Wood prefers that this subject should not be considered until his report comes up, I have no objection to it at all - no objection to pass it by again. But it strikes me that in considering a provision of the kind the question whether it properly belongs to this report or not should have no influence one way or the other. Because that is a question that cannot be properly decided until all the resolutions adopted by this Convention come into the hands of the Committee L Revision. They may later find it necessary to change the arrangement of matter as originally reported.
MR. BROWN of Kanawha. I see no objections to considering this question at once. It is the same question whether introduced by one committee or another. It can have no effect or influence whence it comes. The simple fact is its being here and the propriety of adopting or rejecting. My opinion is that it does properly belong to that subject of county organization; but that has nothing to do with its adoption or rejection. And I am in favor of proceeding at once to the consideration of the subject. I do not know that it requires any motion to do so. The only objection that could be raised against it would be whether the placing of it properly belongs to the Committee on Revision. Placing it here, it seems out of place. If that is to operate as a constraint on the legislature while the proper subject is determining what shall and what shall not constitute a new county. Here it looks same as a limitation on the legislature, and they may regard or disregard it as they choose. When they disregard it, the county would have its existence. We are where the legislature heretofore have paid little regard to this subject, have made counties without the requisite area or population. It seems to me it more properly belongs to the subject of county organization.
MR. VAN WINKLE. I withdraw the objection, sir; the two provisions are almost identical.
Well, sir, I move the adoption of the section. The section on new counties.
MR. HERVEY. Mr. President, it strikes me the area as proposed is too large. It provides that no county shall be formed with an area of less than 450 square miles. Now, sir, if each new county be formed under this provision, say exactly 21 miles square, it will make 441 square miles. Now, it is not very likely that as large a district as this can be chalked out which will be exactly square. It may be diagonal or oblong, weaving in or weaving out; and in order to comply with this constitutional provision it might occur that a county might perhaps be 40 miles long and twenty wide. I then move to strike out the words "four hundred and fifty" in the 86th line and insert "three hundred and fifty."
THE PRESIDENT. The question is on the adoption of the amendment.
MR. LAMB. Mr. President, it is a very hard matter to determine upon any principle I know of what ought to be the exact dimensions of a county. In fixing the number at "450" we have been governed by the considerations which I will mention. I have taken some pains to ascertain upon the most accurate information which I could obtain the dimensions of the new State - forty-four counties. Upon the best authority upon that subject I made the dimensions 21,300 square miles. Dividing that number by forty-four gives the average number of each county 480 square miles. The provision that is reported by the committee is substantially this, that no county shall be diminished materially below the dimensions of the present counties. The present ones, taking one with another, average 480, and we have proposed 450. There is in the constitutions of the different states a variety of provisions in regard to this matter. You will find a variety of numbers. The Constitution of Virginia, you are aware, has fixed it at 600 square miles - the present Constitution - below which counties are not to be formed. The Constitution of Ohio fixes it at 400 square miles. But look at the population of Ohio compared with the population of West Virginia. A county of four hundred square miles across the river is a much larger county in the essentials of a county, population, wealth, etc., than 450 on this side. The Constitution of Missouri says 500; Louisiana 625, Mississippi 576. Of all the states none goes below 400, so far as my memory goes, except the State of Tennessee, which has the number suggested by the member from Brooke, 350 as the limit. I do not know how we are to exactly determine what is the precise area of territory that ought to constitute a county; and it is a matter perhaps of no great importance whether we fix it one way or the other. I merely wanted to state to the Convention that in fixing it at 450 we had considered the best lights we had before us.
MR. VAN WINKLE. Mr. President, I am in favor of this section, as reported. I believe every word of it. I think from the discussions that we have had the past few days, if there was any one fact more apparent than another it is that the legislature does need to be restrained by a constitutional provision in reference to this erection of new counties. The whole difficulty, I may say - indeed, I believe I may say - the whole difficulty that we have had in reference to the apportionment of the house of delegates has arisen out of improvident legislation on the subject of new counties, in erecting counties without sufficient population. I think the most of them have sufficient territory, but in respect to numbers some of them are vastly too small. The Committee on County Organization, acting separately and independently from the Committee on the Legislative Department, so far as I know without any consultation between the members, have arrived at precisely the same conclusion as to the size of the counties, and possibly it may be upon the same grounds. Both reports independently made, fix the number of square miles which the counties are to contain at 450, the minimum; and the remarks of the gentleman from Ohio based on these statistics, which he is always prepared to exhibit to us, show that 450 is below the average of the present counties in the state. Territorially our counties in the new State, looking at them on the map are very nearly equal, perhaps as nearly as could be expected in point of territory, with few exceptions; and it is a very good indication to us as the to the size to which to conform ourselves to what the real wants of the people seem heretofore to have required. If 480 is their average, 450 is safe for us to fix as a minimum; not to tie them to the precise average but to give them a little play above and below. I beg to call to the consideration of the Convention something that is in the future but will explain the reason why I thought - not because it would be reported by the committee of which I was chairman, but the reason why I think this subject would come up more properly in connection with the report on county organization. If the system of dividing the counties into townships is carried out - and that or something very similar to it must necessarily be if I understand the views of members of the Convention - this necessity or desire for new counties will be relieved by a better system of organization to take care of the county business. If we make a suitable township system, the people will find that many matters that have heretofore drawn them to the court house will be transacted at home. This would obviate the necessity - or would have obviated the necessity before, if it had prevailed, as proposed by Mr. Jefferson. Thirty years ago, or somewheres about ten years ago, if it had been incorporated in our Constitution, it would have prevented the cutting up of our counties into such small divisions. Our counties here are about the size of some townships in New England, while their counties embrace several such and each one of them is more populous in numbers than our counties. You go back to the inconvenience if you make your townships too large; but by the rule which the Convention will be asked to adopt in reference to the size of townships, the business if transacted in town meeting in their townships, every one will find that the necessity of going to the court house as often as heretofore necessary will have ceased. If then we can anticipate - as I think and hope we can - that the township system or something similar will be adopted, it would reconcile us certainly to leaving the minimum counties at what the committees have fixed them. The gentleman who offered the amendment tells us that 21 by 21 would give 441 but that even that is too large. I think there are very few counties that have not one line at least over twenty miles; or otherwise they lie compactly or squarely, so that their territory perhaps may be somewhat less than this area. But if fixing for the future, looking on the map, ascertaining the area of any county we are familiar with, you will find this comes very near to the average of most of the counties. The county that was reduced to twenty-one miles in each direction would be small enough at least. I do not understand the gentleman's remarks, precisely. A county, it is true, may be stretched out for 45 miles and have but ten miles breadth and still have 450 square miles; but the people in applying for a new county would avoid stretching it out that way, because compactness of territory, which I believe is alluded to here is also to be observed. At any rate the wishes and interests of all concerned would induce them to preserve it.
If these things be taken into consideration we shall find that 450 is small enough. This would make a very convenient county, even if we had to go to the court house; and with our sparse population, less than that number of miles would not in many districts contain the population entitled to one-half a representative. I think this is a safeguard against the evils we are now experiencing and will be a sufficient safe-guard if engrafted in the Constitution as it stands here. It will prevent the creation of any more of these counties of very small population and prevent the cutting up of counties from motives that will not always bear examination and making them much smaller than there can be any real occasion for.
MR. HALL of Marion. I do not understand the amendment.
THE PRESIDENT. The amendment is to strike out 450 and insert 350.
MR. HALL of Marion. With reference to miles, not numbers?
THE PRESIDENT. Square miles.
MR. HALL of Marion. Mr. President, I move to amend the amendment by striking out all contained in the section having reference to the square miles or to the amount of area required. I presume every member of this body by this time has fully realized - those of us who live in large and those in smaller counties can well see things that can arise from unnecessary cutting up of counties and forming new ones irrespective of population; but really I am unable to see what propriety or necessity there is or what benefit can be derived from a restriction as to territory if you have a sufficient amount of population. You may have even a very small territory, if you have the population; and it might be to the interest not only of that territory but of the adjacent territory, which under the proposed rule would be necessarily connected with and be part of that county. I say I can see very well how it may even happen; and no doubt you will very often find that it would be desirable on the part of all and injurious to none that you should not, when you have the population be restricted in territory. We have heard a great deal in this discussion about this very thing: that we form a part and parcel of a county, and the principal weight of the county is in some one section and they ignore the rest of us. Well, this county could be large enough to form, so far as population is concerned, to form two or three counties. I see no necessity for restricting them if the people in the proposed new county are willing to be at the expense of making their public buildings, carry on their county organization. Why should we restrain them in this matter. We ought to leave them free to act so that if there is any inequality in this matter they may be relieved from it. For example, suppose you have counties which under the rule of territory you propose shall not be lessened so situated that it cannot be formed into other counties. Yet this county may contain population to entitle it to say three representatives, and the power of that county may be at one corner, and the other part of it may suffer great injustice. If there be force in the arguments used here on another question, no good can arise out of this; it is a matter for their own consideration. There is no necessity for a constitutional restriction beyond some kind that may be thought necessary to require a judicious number of inhabitants to be in the territory of the new county before it will be formed and to remain in the counties out of which it shall be formed. There ought to be a rule in that respect.
I therefore move to strike out all that part of the section 9 down to and including the 89th line.
It does occur to me that the argument of the gentleman from Wood only applies with reference to population and not with reference to area. If you attempt to place this restriction on the people it occurs to me no benefit can grow out of it and hardships may result from it; and we ought to leave that to the will of the people and to legislation. When we restrict them in reference to population we protect ourselves. I hope it may be the pleasure of the Convention to adopt the amendment to the amendment.
MR. VAN WINKLE. I object to the amendment because it is not congruous and cannot possibly be forced on the amendment of the gentleman from Brooke. We can let this be disposed of, and then the gentleman from Marion can offer his.
MR. HALL of Marion. It would be competent to offer it as a substitute for the amendment.
THE PRESIDENT. The Chair has thought on that subject while the discussion was going on, and it does seem to me that the amendment to the amendment would be in order, for this reason: that is proposes to do all that can be done by the amendment and a great deal more. It would dispose of the whole question. However, the Chair has but little doubt that the suggestion of the gentleman from Wood is good, that it is better to let the amendment of the gentleman from Brooke be first disposed of and then take action on the larger proposition.
MR. VAN WINKLE. That is certainly parliamentary etiquette. Let a thing be prefected before you move to strike it out as a whole. Let the friends of a measure make it as perfect as possible, and then your motion come in afterwards. In the present attitude of the proposition it confuses debate.
MR. HALL of Marion. I will withdraw it and offer it afterwards.
MR. BROWN of Kanawha. I will not discuss the proposition of the gentleman who has just withdrawn it. In reference to the amendment proposed, I would say that I have no particular objection to the precise number of square miles he has suggested except the fact that he has still diminished, and I think the number fixed by the committee is sufficiently small. I think in looking over the map of our country and noting the size of the counties and then taking the average size and to reduce it below that average (480) will be creating a difficulty that we have experienced and will continue to, that generally start up all over the county. It will be a sort of election hobby to make a new county. The misfortune is that gentlemen look at the present without regarding consequences; and then you have a small county, with small lines, taxed with a separate organization, public buildings, courts and all expense attendant on a county organization. I think it ought to be the object of the Convention to prescribe that which is right and proper and then oblige the legislature to adhere to it. They are so often operated on by extraneous influences that are apart from the public will as to need this restraint. I shall therefore oppose the motion of the gentleman to amend by diminishing the territory.
The question was taken on the amendment of Mr. Hervey, and it was rejected.
MR. HALL of Marion. If no gentleman proposes any other amendment, I renew the motion I made before.
MR. BROWN of Kanawha. I will now, then, say a word in objection to the gentleman's amendment. The only effect that will result from the amendment of the gentleman from Marion would be to allow the legislature to create as many counties as there are towns that will have population sufficient to exceed or come up to the required number for a county. That may happen in several of your towns, and if it does not exist now it may very soon happen. To make your counties and towns coincide in their boundaries I think is objectionable. You circumscribe all that community who then are outside of this little village and throw them into a community separated from the center around which all depended for many years. The county thus made of the town may have a much larger population than the territory remaining, which must be thrown into a separate organization and must conform to a new center. That must be the result if this should be carried. For every city will seek to become itself a county; and then you have a city (or town) corporation and a county corporation in the same limits with nothing distinctive in its features. I think this amendment is really more objectionable than the one we have just voted down, and I must therefore vote against it.
MR. HALL of Marion. I think that while that might be as suggested by the gentleman from Kanawha, that where they have cities they might thus form them into counties with a separate organization, yet I think that would not be a hardship on the surrounding people, but that they will desire it. I see no particular inconvenience from it. For example, at Richmond they have a separate organization and a court house county is in the city, and then the city as it exists has a city organization for the city affairs proper. The object is not to give a city power sufficient to entitle them to a separate position outside but to hold them in that position, to put it in the power of the legislature to give them a separate existence if they seek it. They have every reason for their protection. The city will never propose it unless beneficial to its people; it is only that when the people seek it, that whenever an application may be made to the legislature that body may be at liberty to grant their wish; that we shall not defeat that wish by placing a restriction in the Constitution, but leave it to legislative action. But I do not comprehend what benefit can accrue to anybody by this territorial restriction. But legislative discretion in that respect is necessary for the protection of those who otherwise might be out-weighted on their injury by the concentration of power in one part of a county so as to control everything without regard to the interests of a community that would be entitled by its population to its separate existence.
The question was submitted and Mr. Hall's amendment was rejected.
MR. STEVENSON of Wood. Mr. President, I propose to offer an amendment without any discussion on my part, that is to strike out the words "and fifty" in the 86th line. I would just say this, that some members of the Convention have intimated to me that they desired to have the counties somewhat smaller; and some persons - citizens who are not members of the Convention - have intimated to me the same thing. I confess I am not very well posted in reference to what the size of counties should be. This much I do know, that in consequence of the peculiar shape of our counties if we have them 450 square miles and the court house, or capital, of the county should be at the end or nearly so it will make it a matter of very great inconvenience and difficulty for the citizens to reach that in matters of business which will become necessary, of course, to all the citizens of the county at some time or other. This would be avoided, of course, to some extent. As we have refused to pass 350, if we should make it 400 it would leave the county a respectable size for all useful purposes. Besides, take some very small county, such as Pleasants. Difficulties will arise where an adjacent county becomes very large and preponderant in population. A rule that would facilitate the detachment of a portion of such preponderant county and its addition to the small one, would tend to smooth these difficulties and be mutually beneficial.
Mr. Stevenson's motion to amend was rejected; and the question recurring on the section, it was adopted.
MR. LAMB. The subsequent sections have all been acted on by the house until we come to the 34th section. That was laid over at the request of the chairman of the Committee on Finance, who have reported provisions on this subject. I have no objection to whatever course the Convention may take with regard to it. We should either strike it out with the intention of taking it up when the other report comes up for consideration. For the purpose of deciding the matter, I move to strike out section 34. The subject will come up necessarily in connection with the report of the Committee on Finance, to which it perhaps properly belongs.
MR. PAXTON. This section seems more proper to the report of the Committee on Finance with other sections on the same subject. The sections are about alike except in one particular.
MR. LAMB. It is simply a matter of form.
MR. VAN WINKLE. It would be much better to consider it with the report and then we have the whole matter before us. I think the motion of the chairman of the committee ought to prevail.
MR. BROWN of Kanawha. No matter in what form or by what committee this provision is reported, it seems to me very essential that it be adopted, and that the regular statements, etc., should be published. I do not see how we can better it, or enlarge it or contract it, by changing the time or place in which we consider it. I am in favor of adopting it here.
MR. VAN WINKLE. I would beg leave to suggest that these reports after they are acted on have got to be reprinted before final action. Now, it does not so clearly appear that the subject of size and numbers of counties was one of the many things referred to the Committee on County Organization, but it does appear to me that this was not a subject referred to the Committee on the Legislative Department. All matters connected with taxation and finance were distinctly referred to that committee. Now, would not it be better to have all this subject before us in one report, to make one part congruous with another, that we may see the necessity or non-necessity of any special provision; of seeing what other provisions are provided? It is a matter, of course, simply of finance; but I think that committee ought to be consulted, and that is best done by allowing this to be considered by allowing this to come before the Convention with the report of the Committee on Finance and Taxation. That committee have reported almost the same thing, and passing it by now does not prevent its consideration; does not indicate that this is not to pass. I apprehend that there will be no objection to it. But it seems to me it would be better in subsequent proceedings of the Convention, to have it come up in its right place.
Mr. Lamb's motion to strike out the section was agreed to.
MR. LAMB. The 35th section, has not been acted on.
The Secretary reported it as follows:
"35. The legislature, in cases not provided for in this Constitution, shall prescribe by law the terms of office, powers, duties, and compensation of all officers of the State, and the manner in which they shall be appointed and removed."
MR. LAMB. I submitted a substitute for that section and the 11th section of the report. I am not particularly wedded to the terms of the substitute though in some respects it seems to me section 35 should at least be amended. The expression "officers of the State" is not the correct expression to use in that connection, it seems to me, as it would imply that the authority of the legislature was confined to fixing the fees, powers and duties and compensation of state officers: This is not the intention, of course. The expression ought at least to be altered if the section is retained by inserting something like this in its place: "all public officers and agents." Or if you want to be still more explicit or precise: "all officers of the State, counties, townships, cities and towns." But "all public officers" would perhaps be an improvement in the language of the section. Then "the manner in which they should be appointed and removed," should be "appointed or elected or removed." Another thing I think ought to be embodied in that section to prevent a difficulty of construction that may arise out of the provision we adopted in regard to impeachment. We adopted in regard to impeachment a provision that declares that any officer of the State may be impeached for maladministration, corruption, incompetency, etc. The result of that may be his removal from office. I do not wish to leave it to any inference or argument that this is to be the only mode in which officers are to be removed from office; and if the terms we have adopted in the article in regard to impeachment does furnish an argument even or a doubt on that subject, we ought explicity to declare that "The legislature shall have authority to provide by law for the removal of officers by impeachment or otherwise."
I would move to strike out the words "all officers of the State" and substitute "all public officers and agents." It is a mere correction of expression intended to make the regulation express what we mean.
MR. BROWN of Kanawha. I believe the motion is to strike out and then substitute.
MR. LAMB. Yes, sir.
MR. BROWN of Kanawha. I confess I am opposed to the whole section, and shall move to strike it out entirely. The legislature has all these powers. We propose a delegation of powers to the legislature. It is a work of supererogation. In the first section of this report we have declared by a general delegation of all the power in the commonwealth to the legislature, that the legislative power of the State shall be vested in the senate and house of delegates, and that embraces all the legislative power it is in the power of the people to delegate. The only question is whether in the Constitution they choose to restrict that delegation. Now the particularizing is not adding any power. It rather likens itself to a bill of particulars filed in a court of the various items claimed. But whether this provision is here or not the legislature have the identical same power that it proposes to grant; for that has all been granted, and they may depart from it in every particular that is here prescribed when they in their wisdom see fit. It is therefore useless to use the language; it is stuffing the Constitution with the particulars of items that have been carried under the general grant of the house. The Constitution is properly a restriction on the legislature; and the Constitution is that work of the people in which they are restricting their legislature from using all the power that otherwise would be in their hands to use. I propose to put into this Constitution nothing that is not necessary to go in. Particularizing all the powers contained in the general grant is wholly unnecessary, cumbersome and highly improper.
THE CHAIR. (Mr. Caldwell) Do I understand the gentleman makes a motion?
MR. BROWN of Kanawha. Yes, sir; I move to strike out the whole section.
MR. LAMB. I did not expect to say anything on this question at the present stage of the matter. As has been often stated to the Convention, the proper parliamentary rule is to allow the section to be protected as well as it can be done by the friends of it; and then having put the section in the best shape, if it does not suit the Convention, they can strike it out.
MR. BROWN of Kanawha. For the accommodation of the gentleman, I will withdraw the motion.
The question being taken on Mr. Lamb's motion, it was agreed to.
MR. HERVEY. In order to change the section so it will be obnoxious to the objections of the gentleman from Kanawha, I move to strike out "may" in the first line, in the 6th line, in the 7th line and in the 10th line, and insert -
MR. VAN WINKLE. The gentleman is proposing to amend the substitute for this section, which has not yet been proposed and is not before the Convention.
MR. LAMB. Without a vote on the matter, I suppose the Convention will accede to the propriety of inserting after the word "appointed" the words "or elected." They do not intend certainly that the legislature should only provide for the appointment of officers and not for their election by the people. I want to exclude a conclusion. I move to insert "or elected."
The amendment was agreed to.
MR. LAMB. I want to move to add at the conclusion of the section the words: "that they may provide by law for the removal of officers by impeachment or otherwise."
The amendment was agreed to.
MR. BROWN of Kanawha. I move now to strike out the whole section.
MR. LAMB. The question may be taken on the adoption of the section. It is substantially the same.
MR. BROWN of Kanawha. The legislature have the power to prescribe the punishment of offences and improper conduct of men in office, and to define what is improper conduct of men in office which will constitute the ground of punishment. The legislature has a general power; and if it is the purpose of this proposition to give additional power to that, to turn out a man simply because the legislature chooses to without any offense at all, then I shall vote against it on principle. That any set of gentlemen shall disfranchise men simply because they in their supremacy, as this Constitution would confer on them the power, would choose to do so, would be extending a power I would not be willing to give. The legislature have the right to prescribe the duties and require the performance of every officer in the commonwealth, and if he fails to do it he is a subject for impeachment; he may be impeached; and if not, he may be tried before the courts in any way the law prescribes, therefore to give power to do that thing is but repeating what has been done in the general clause. If it is intended to give a power that is over and beyond that, to disfranchise a man for nothing, I should oppose it on principle. In either event, therefore, I am in hopes the Convention will vote down this whole section now as amended, as really embracing a repetition of grants of power already delegated, and nothing is to be attained by the repetition.
MR. LAMB. Mr. President, the object of this section I supposed would have been apparent, though there is a great deal of force in what is said by the gentleman from Kanawha. It is to provide for the difficulty which ia pointed out to us very forcibly not long ago by the member from Lewis to exclude a conclusion, that where you provide for one thing you exclude necessarily all others. You provide in the Constitution for the terms, the powers, compensations, etc., of certain officers. The conclusion may arise on that statement of the case that these are all the provisions on the subject that you intended to exist in the fundamental laws. As in this case of impeachment we have provided in the section which has been adopted in regard to impeachment for the removal of officers byimpeachment. If we stop there, what is the inference? It certainly raises a difficulty, raises a doubt and difficulty, whether we do not leave these officers to hold their office subject only to removal by impeachment, and that this is the only mode we have provided for their removal. Where you prescribe terms of office, etc., in the Constitution, designated certain officers, it may lead to the inference, a fair one in certain cases, that this was all you intended to have on that subject; that there the power of appointing and of removing officers was to cease. It is a principle of very general application in regard to the construction of laws and constitutions that the expression of one is the exclusion of another. Or as the maxim is expressed in Latin - though I have nearly forgotten what little I ever knew about Latin: "Expressio unias exlusio est alterius."
This provision is simply intended to remedy any difficulty that may arise out of the application of that principle. For instance, in your report on county and township organization, you do provide, if I do not mis-recollect that report, you do expressly say there that the county and township officers may be removed as the legislature may prescribe by law. Now, suppose that section is adopted. The question comes up as to another officer. Here you thought it necessary to say that certain officers may be removed as the legislature may prescribe by law. What is the inference? That you did not intend that this power should exist except in that special case and in other cases in which it may be inserted in the Constitution. I will not undertake to say as a lawyer that the section is necessary but I am inclined to think it is, especially in reference to the section you have adopted in regard to impeachment.
Then as to vesting the power with the legislature to remove officers ad libitum according to their own good will or pleasure, with or without cause, the provision, as I have proposed it, is that they may prescribe by law. The very first thing we learn when we go to studying Blackstone is that in this prescribing by law the law must exist anterior to the offense. The law must be there, and the officer must be removed in pursuance of that law. There may be an advantage, upon the gentleman's own principle, in the section as stated. If we do state that the legislature may prescribe by law - which requires the law to exist previous to removal; if we state that they may prescribe by law for the removal of officers, it does exclude the conclusion that they can remove officers in any other way, unless a law previously exists under which those officers are to be removed. With these remarks, I submit the matter to the Convention.
The hour having arrived, the Convention took a recess.
THE PRESIDENT. When the Convention took a recess it had under consideration the adoption of the 35th section, as amended.
The question being put, the section was adopted.
MR. LAMB. Mr. President, all the sections reported by the Committee on the Legislative Department, according to my memorandum, have been acted on.
THE PRESIDENT. The Chair would remark that there was a different motion made on the section, that the vote to strike out was on the table.
MR. LAMB. What was the motion?
MR. CALDWELL. I certainly understood the gentleman from Kanawha to say that he preferred the question should be on striking out.
MR. STUART of Doddridge. I thought that in voting on the question I was voting for the striking out. That is why I voted that way.
MR. LAMB. It will be reconsidered in that state of the case.
There being no objection the vote adopting the section was reconsidered.
MR. VAN WINKLE. A motion to strike out cannot be made until something is struck in. The question is not on striking out the committee's report. The question is, Shall the section be adopted? and if you say it shall not be adopted it is equivalent to striking out. It is only a matter of form. I am aware that the gentleman from Kanawha has certain objections to the section as arranged, and if it could lie until he comes in - I suppose he will be here in a few minutes - he could state what his objection is.
MR. LAMB. I move we pass it by.
MR. POMEROY. I do not think that is necessary. The gentleman from Kanawha stated his objections and told us that he preferred taking the motion to strike out. There is an advantage in such a motion, and he preferred it in that shape. I think we are prepared to vote. I think the Convention have a decided opinion that they will adopt the section, and therefore we can vote on the motion to strike out.
THE PRESIDENT. Will the Secretary just report the section as amended.
The Secretary reported the section.
MR. SOPER. Mr. President, the gentleman from Kanawha moved to strike that section out. He made an argument in favor of his motion, and he was replied to by the chairman of the committee. We then took the recess. I suggest the propriety of passing by, not taking the vote till he comes in. I move, sir, that it be passed by until he comes in.
MR. SINSEL. It seems to me it will be a bad precedent. If we get to passing by this part and another on account of members being absent, we will be at it all the time. We should take business in its regular order. It would be an inducement for them to be prompt here. Every man ought to be here in his place and ought not to be absent without good reason.
THE PRESIDENT. The question is on passing by.
The motion to pass by was agreed to.
MR. LAMB. Mr. President, I submitted some time since to the Convention a proposition providing for amendments to the Constitution without resort to a convention. I think the necessity of some provision with that object in our Constitution will be apparent. Take what care we may, bestow what labor we may, whatever consideration of this subject there may be some essential provision omitted; there may be some defect in our work that would require amendment. If that occurs in a particular instance, if it occurs in any case in which it may properly be amended without resort to calling a convention for the purpose of overhauling the whole instrument, I presume there is none of us who would not prefer it should be done in that manner. The country is pretty well tired of conventions. In the State of Virginia at least, we have had enough of them. At the same time I fear that our work may prove so defective in many respects that amendment may be necessary when it comes to be put to the severe test of practice.
I offered a provision especially authorizing the amendment of the Constitution without resort to conventions in addition to the provision which was adopted by the Convention, the 43rd section, providing for the calling of conventions. That provision, which has been printed, is substantially to this effect: It authorizes the legislature by a majority of all the members elected to each branch - no less number can do it - to propose amendments. The amendments so proposed necessarily lie over until the next election of members of the legislature is had and shall be published at three months before that election in some newspaper in every county in which a newspaper is printed. The people, if they see proper, therefore will elect new members of the house and new senators with special reference to the amendments to the Constitution so proposed. Then the amendments are submitted again to the legislature, and if confirmed by a majority of each house, they have to be submitted to popular vote. If more than one amendment is submitted to the people at the same time, they are to be submitted in such manner that the people may vote on each amendment separately. This provision is not an experiment of mine, no invention of mine. It is a provision for amending constitutions which seems to have met with general favor throughout the country. It is the mode of amending where a resort to a convention is not to be had which is adopted by many more states than any other mode of amending their constitutions. If I recollect aright, there are some twenty states that require that amendments which are to be proposed in this way to the popular vote shall have passed the two houses before they are submitted to the people. It insures, on the one hand, that these amendments will not be proposed for light and frivolous reasons. It insures that the fundamental laws of the commonwealth will not be changed for light and transient causes; but, if they are to be amended that it shall be by the deliberate action of the legislature, in the first place, ratified by the popular vote, in the second place.
I do not know that I need occupy the time of the Convention any longer in explanation of this provision, but I move its adoption.
MR. SINSEL. I would just suggest, would it not be better to say "published in every newspaper in the State." You see many persons read but one paper, while there may be two published, and it gives one class of individuals the advantage over others.
MR. LAMB. I do not know that I have any objection to that. The provision as it stands now requires it to be published in some newspaper in every county in which a newspaper is printed; that that publication shall be at least three months before the people hold the election for the second legislature. I have no objection.
I will just state that in some constitutions in which I find a provision of this kind the expression is, at least one newspaper in each county. I think that would probably be better.
MR. SINSEL. There is this objection to it. Men have favorite papers. I may take mine and no other paper. If they publish it in the other paper I might get the notice while another half of the citizens might take the other and they would be the one-half deprived of this notice, unless they borrowed it of their neighbors.
MR. STUART of Doddridge. What is the question?
MR. HERVEY. I think it would be well enough to let that be inserted in the ordinary way.
THE PRESIDENT. Much time would be saved if gentlemen would wait till the question is propounded. The question is on the amendment of the gentleman from Ohio.
MR. LAMB. I would ask the reading of the proposition.
The Secretary read it as follows:
"Any amendment to the Constitution of the State may be proposed in either branch of the legislature; and if the same, being read on three several days in each branch, be agreed to, on its third reading, by a majority of the members elected thereto, the proposed amendment, with the yeas and nays thereon, shall be entered on the journals, and referred to the legislature at the first session to be held after the next general election; and shall be published, at least three months before such election, in some newspaper in every county in which a newspaper is printed. And if the proposed amendment be agreed to, during such session, by a majority of the members elected to each branch, it shall be the duty of the legislature to provide by law for submitting the same to the voters of the State for ratification or rejection. And if a majority of the qualified voters, voting upon the question at the polls held pursuant to such law, ratify the proposed amendment, it shall be in force, from the time of such ratification, as part of the Constitution of the State.
"If two or more amendments be submitted at the same time to the voters of the State, they shall be submitted in such manner that the vote on the ratification or rejection thereof shall be taken on each of the proposed amendments separately."
MR. STUART of Doddridge. I rose first merely to inquire what the question was. It has been debated considerably over the house, and I could not understand it. I am always disposed to wait until the Chair propounds the question, if the Chair will only restrict members to that rule.
THE PRESIDENT. I would really request members to always wait until the Chair has propounded the question. All will understand that the gentleman making a motion will be entitled, by common courtesy, to the floor first, and after his explanation of his motion, then of course his rights will not be exercised to the exclusion of others.
MR. STUART of Doddridge. That is right. If the gentleman from Ohio desires . ..
MR. LAMB. I have already made the explanation I wanted to introducing the matter.
MR. SINSEL. If the gentleman from Doddridge had been paying attention he would have found the rules of the house have not been violated in this instance. The gentleman from Ohio stated that he had an independent proposition to offer and already offered that to the Convention. I simply suggested one alteration that he might make himself without the action of the Convention on it.
THE PRESIDENT. The Chair did not mean that the gentleman did anything out of order. It has repeatedly happened that followed one motion with another so rapidly that the Chair could not have propounded the question and the Convention did not really know the meaning of the question that was before the house. I know a number of speeches have been made here on things that were not then properly before the house. It is better to let the Chair after a motion is made state the question to the Convention.
MR. STUART of Doddridge. I do not want to get up any discussion on this question. But I believe the members will recollect it is the rule that we should always address the Chair, "Mr. President," and go no further until we are recognized by the Chair.
MR. STEVENSON of Wood. Now, I would ask as a matter of order what is before the house?
MR. STUART of Doddridge. I have yielded the floor two or three times and will yield again if the gentleman wants it. I understand the question is on the motion of the gentleman from Ohio to insert an additional section looking to the amendment of the Constitution we are now framing without calling a convention; and I believe it was read once or twice by the clerk. I do think I was not far out of the way when the question had been up in speaking on these rules; but the suggestion of anybody, if it leads to the proper result and would indicate the course we are to pursue I am always willing to hear.
THE PRESIDENT. The Chair is himself pleased to receive suggestions from any members.
MR. STUART of Doddridge. If the gentleman from Wood can make a suggestion that will throw light on the subject, I will be glad to hear it.
MR. STEVENSON of Wood. I remarked awhile ago that there was a good deal of debating on this question on this side of the house. There had been no debating so far as I was concerned. I made simply a suggestion to the gentleman from Ohio in reference to an expression in this substitute or report; and as the motion was up now, the motion of the gentleman from Ohio, to adopt the section, I thought as a matter of course the gentleman from Doddridge should speak to the question.
MR. STUART of Doddridge. I would simply say that I did not say the members on this side of the house at all. The gentleman is mistaken in that. But now I will drop the subject.
I am opposed to the proposition of the gentleman from Ohio and shall confine my remarks and make them very short. We are framing a constitution here that I hope will have some permanency about it. It will be looked on as the constitution of the new State of West Virginia, and we will live up to it and act under it. I want gentlemen now to pay particular attention. If we adopt the motion of the gentleman from Ohio it would be nothing but change, change, eternal change, written on the page of our Constitution, year in and year out; and instead of coming up to the legislature under that Constitution to pass laws in order - instead of electing delegates for the purpose of framing laws subject to that Constitution and under it, the great topic would be excited, every canvass before the people, will be amendments to the Constitution, and we will try to make the Constitution legislate for us in place of legislating under the Constitution. Now, that will be the result, just as sure, gentlemen, as we adopt it. I do not know how this thing has resulted in other states. The gentleman from Ohio very properly cites various other constitutions. They do not have any weight with me unless I know how they have operated. It strikes me, sir, forcibly that if we adopt this section which the gentleman has offered as an addition to the report of the Committee on the Legislative Department, it will be, as I have before said, nothing but change, change written upon the history of our State. And we will attempt to legislate by the Constitution instead of legislating under the Constitution.
Now, that is my reason for opposing. It is very short and brief.
MR. STEVENSON of Wood. Mr. President, I have an amendment which it seems to me ought to be made to this section. It will avoid the difficulty, or at least part of it, suggested by the gentleman from Doddridge. I propose to add at the end of the period in the 18th line these words: "But no amendment or amendments shall be submitted to the people oftener than once in five years." It seems to me, sir, if I am in order now, it will be obvious to the Convention that some amendment of this kind should be in this provision. I think there ought to be some limit to the time that the legislature shall have power to pass these amendments and have them put to the people; otherwise we may have a batch of amendments every year foisted on the people and an expense will be incurred in the legislature adopting them, and the people's time and the people's money will be expended either in adopting or rejecting the amendments which may be introduced by the members of the legislature. If there is a limit of this kind that will prevent the submission of amendments oftener than once in three or five years, or any other period you see proper to adopt it seems to me it will prevent that difficulty. I find a provision of this kind in some of the constitutions which I have examined where a provision very much like this of the gentleman from Ohio is also found in connection with that provision. As it is now the legislature will have power to introduce and pass amendments at every session of the legislature, and they may have it fixed so that amendments subsequently may be passed at every session of the legislature and the people may be put to the expense too frequently by holding elections in the State on amendments which they may vote down and which are not really necessary. I should offer the amendment without thinking much about it, but I really think it necessary.
MR. HALL of Marion. I concur with the gentleman from Ohio. Whilst I concur in the object to be attained by this addition and also with the objects sought to be attained by the proposed amendment of the gentleman from Wood, I beg leave merely to call the attention of the Chair to the fact that we are not acting on a proposed amendment; that it is an addition; it is not mandatory in any part of the report that was submitted by the committee. It is proposed as a continuation of that report. If I am right in this it will be in order for me to propose an amendment to the amendment proposed by the gentleman from Wood county. I think the Chair by looking to the matter will see that I am right in that position. And it occurs to me, sir, that the object to be attamed in order to do it fully by the proposed amendment of the gentleman from Wood must necessarily not only limit the matter as to submitting these amendments to the people but it is as important to exclude it from the legislature except at fixed periods. I propose, as an amendment to the amendment of the gentleman from Wood, to begin the section by saying; "In the year 1865 and at periods of five years thereafter," any amendment to the constitution may be proposed, etc., looking to the matter of preventing this continual agitation in the legislature; for if we are only limited as to the times at which we shall submit to the people amendments that may be proposed by the legislature it will leave the door open, and every man that has a hobby, with a very nice saddle on, which he will ride to the capital; and there will never be a session of the legislature without some half dozen to two dozen hobbies in the way of propositions to amend the Constitution.
THE PRESIDENT. The Chair is of opinion that you could hardly add anything to or take anything away from a report without amending it.
MR. HALL of Marion. I understand then that the Chair would regard the additional section proposed by the gentleman from Ohio as in the nature of an amendment to the report. I will acquiesce, of course, I had taken a different view of it, and I had proposed to offer that as a substitute to the amendment of the gentleman from Wood. As I understand a remark the gentleman threw out his object is not only to prevent the evil or harassing our people with continual agitation of questions of this sort by submitting to them at elections for the legislature but also to prevent the time of the legislature being consumed with these things. It does occur to me that we ought to have a restriction of some sort in this respect, and I favor the idea of the proposed amendment of the gentleman from Ohio, because I think we ought to so provide that we will not be under the necessity of having conventions every few years, and we are at work here now without the lights before us that men usually have when they enter on a work of this sort; and therefore there is really an additional importance and necessity for some provision of this sort. Otherwise we may be under the necessity, doing our work as well as we can - there may be a necessity and in all probability would be, for an early convention to do what we will have omitted to do for want of the proper light and information before us. Because, we are really cut off from all the data we ought to have to enable us to do our work properly; and I want to accomplish a double object and prevent this consuming of time and money in the legislature; and I think fixing it in 1865 for the first, that will be short. We cannot suffer greatly between this and that time as to any amendment that may be found necessary; and then if we have it at periods of five years we can suffer no great harm. I was rather inclined, indeed, when I began to prepare the substitute, to say that after 1865 they should be limited to periods of ten years; but I was satisfied the gentleman from Ohio is not proposing any limit at all and knowing he had much more material on this matter than I had, I thought to fix it at intervals of five years it would place it equi-distant between the census that will be taken by the United States; and I believe we incorporate a clause somewhere that will authorize a census by the State...
A MEMBER. We did not.
MR. HALL of Marion. We did not? But it will give us the advantage at every other one of those periods of having before us the results of the census as taken by the United States. It may, however, be necessary to propose - it would in that event - to say that in 1865, and then at periods of five years afterwards. Because we would have to have a little time to get the returns.
MR. POMEROY. Mr. President, it has been said by gentlemen over the way I do not rise to make any lengthy speech, but it appears to me this substitute of my friend from Marion is not a good substitute, and therefore I cannot support it. I believe if you fix a definite time and state it in the Constitution when amendments are to be proposed to the Constitution, that you will find one man or more in the bounds of the State who will conjure up something to propose as an amendment every time that period comes around; and I do not doubt you will find some in almost every county; because they will say, here is the year for amendments and they must distinguish themselves by offering some one and they will judge it is necessary, or they will bring it up. I have no doubt of the good motives of the gentleman offering it; but I do think it would have a contrary effect from what he desires. I think it would trouble the legislature instead of the contrary. Then they would think, here is the year specified in which amendments ought to be proposed, and if there is no other man to propose one, then I must propose one. I think it is far better to leave it as the gentleman from Ohio has reported than to go for this substitute in place of the amendment of the gentleman from Wood.
MR. VAN WINKLE. The gentleman from Doddridge is unquestionably right in the supposition that the insertion of a clause of this kind in the Constitution is rather inviting amendments to it than otherwise. My colleague I think is also right in thinking that some restriction should be placed on this in consequence. Perhaps the gentleman opposed is also right so far that I think he proposes a way of getting at it; but the difficulty that occurs to me in reference to the whole subject is this: We shall, no doubt, I if we are hurried too much, finish up our labors here, elaborate I them and use every possible precaution to see that we have got I a whole Constitution when we have done it. But, sir, it is very possible that with all the care we can use that some provision almost indispensably necessary may be omitted or that some incongruous provisions, both of them right in themselves perhaps, not working together, may be introduced. There may be difficulties of that kind occurring in the instrument thus sent forth which it would be desirable to rectify at the earliest possible moment. I therefore see the value of this provision, at any rate, for the first few years after the adoption of the Constitution. Those who contend that some provision of this kind is desirable in order to prevent the necessity of calling a convention whose proper business would be a complete revision of the Constitution too frequently think a provision of this kind would be valuable. It is like other provisions: it has its good and its evil; it is liable to both; and I think the consideration that I mentioned just now - the possibility that there may be something wanting in this Constitution when first adopted - something perhaps that will not appear until an attempt is made to put it in operation, that an opening should be left by which amendments could be made within a reasonable time, ought to have great weight with us.
If, then, sir, it is the pleasure of the Convention to adopt this provision substantially, I would suggest that instead of this five year proposition, after the year 1865, we should leave it from the year 1862 when we shall probably go into operation, to 1865 to have these propositions made, or any other year that might be thought best to meet the case. I cannot move that now, sir, as an amendment, because there is an amendment to the pending amendment now.
MR. HALL of Marion. Will you re-state it?
MR. VAN WINKLE. To amend your substitute by saying that any amendment to the Constitution should be proposed in either branch of the legislature in the year 1865 and at periods of five years thereafter - which I believe is substantially yours; to make it so that amendments may be proposed at the next session of the legislature previous to and including 1865; and that amendments thereafter proposed should not be submitted to the people oftener than once in five years. That is leaving the thing open as far as possible up to and including 1865, and after that the people shall not be troubled oftener than once in five years.
MR. HALL of Marion. I have no objection to accept the suggestion.
MR. STEVENSON of Wood. Would it not be better to read this way: "but after the year 1865 no amendment shall be submitted to the people oftener than once in five years?"
MR. HALL of Marion. I could accept that as a substitute. Mine covers the question of the proposition from the legislature.
MR. VAN WINKLE. There is force also in the suggestion of my friend from Hancock; that when this period of five years rolls around every person will think he ought to offer some amendment. I can only reply that all these privileges are liable to abuse; but we are going to make so perfect a constitution that the pretext for the necessity of an amendment can hardly arise!
MR. BROWN of Kanawha. I regret that the gentleman from Marion has accepted the amendment suggested by the gentleman from Wood. I am averse to submitting this Constitution to the people one day and turn straight around and prepare amendments from that up to 1865. I prefer the amendment as I understood it first stated, that either branch of the legislature may propose amendments in the year 1865 and every five years thereafter. I think we ought to have at least a day or two's rest after this is adopted. Because we have to go through the fiery furnace of discussion before the people before it is adopted. There ought to be a day or two left for it to roll around in its operation, to learn from experience before you begin to exercise it. The great difficulty of the present age is that constitutions have lost all the character of sacredness, and this very provision is, as I understand it, to furnish a safety valve to secure the country and people against this constitutional revolution. Now unless you give some time for the Constitution and the government under it to operate in, the people cannot learn to act from experience; and if you begin the very year this Constitution is adopted to make amendments to it, then you are just arguing like you are here, going on a mere hypothesis of reason but have no experience to see how it operates. Now I prefer to let the year 1865 take place; and if an amendment is proposed you may begin the day after; but I think it unneccessary to invite any aggression in it before that time. So that I must vote against the proposition as accepted by the gentleman.
MR. VAN WINKLE. If you make the proposition in 1865 it could not be acted on until late in 1867. This ought to be considered in view of the possible omission of some important provision in our labors.
MR. BROWN of Kanawha. It seems to me we could begin to propose tomorrow but in the year you have fixed as the period which will be the time when this must be submitted. The legislature will make a proposition; this is to be published in the newspapers and is a subject of discussion before the next election; and when the next legislature assembles it becomes a subject for their action. If they endorse the proposition, it goes back and is submitted to the people, and the time of the popular election is the time I suppose to which the period limitation must apply.
The Secretary reported Mr. Lamb's proposed amendment and the amendment to that as proposed by Mr. Hall of Marion, including his acceptance of Mr. Van Winkle's suggested modification, allowing amendments to the Constitution to be submitted up to 1865 and at periods of five years thereafter.
MR. LAMB. It strikes me the restrictions are all wrong. That we should be apprehensive of agitation for the call of a convention, I believe, but there is no reasonable ground for apprehension that the people are to be continually bothered by the submission of amendments to vote under a provision of this nature. Our apprehensions in this respect are turned in the wrong direction. We have this provision in many constitutions. Do we hear of this difficulty which is here suggested? Of a continual agitation, continual occupation of the time of the legislature upon the special and particular amendments? I will read in reference to this subject the provision in the constitution of New York:
"That any amendment and all amendments to this constitution may be proposed in the Assembly and that the same shall be agreed to by a majority of the members elected to each of the two houses. Such proposed amendment and the amendments shall be entered on the journals, with the yeas and nays thereon, and referred to the legislature to be chosen at the next general election of senators and representatives and shall be published for three months previous to the time of making such choice; and if in the next assembly, chosen as aforesaid such proposed amendment or amendments shall be agreed to by a majority of all the members elected to each house, then it shall be the duty of the legislature to submit such proposed amendment or amendments to the people, in such manner and at such times as the legislature shall prescribe. If the people shall approve and ratify such amendment or amendments by a majority of the electors qualified to vote for members of the legislature voting thereon, such amendment or amendments shall become part of the constitution."
The gentleman from New York, now representing Tyler can tell us whether the time of the legislature of that state has been occupied continually by proposed amendments to the constitution or the people been agitated continually by the consideration of such amendments. Gentlemen, this Constitution of the State of New York was adopted in 1846, and if this book is reliable there has been no single amendment made to it under this clause since. We have the same provision, in substance at least in the constitutions of many other states. In no less than twenty-nine constitutions, in no less than twenty-nine states (and I do not include Virginia in the number twenty-nine) out of thirty-four have they made provision for amending the constitution without reference to a convention. Some sixteen or eighteen of these constitutions contain provisions in addition in regard to the calling of a convention. Is this the evil which members seem to be so apprehensive of existing under the clause authorizing amendment by the legislature to be ratified by vote of the people? What is the lesson of experience in this respect? Has it not been that the great evil in reference to this matter of which we have to complain is in this agitating for the call of a convention, and not in this agitating and occupying the time of the legislature or in agitating the people, by the consideration of particular amendments introduced in this manner? I have not heard whether the gentlemen may have other information on the subject than I have; but in all the states in which similar provisions have been operative for years and years, this evil, so far as my information extends, which gentlemen seem to be so apprehensive of, has never been found to exist; while this evil of agitating for the call of a new convention, to tear up or lay anew the foundations of the social edifice - we know, gentlemen, what this is. Nor do I suppose - 1 hope - but with the best forethought I can give to the matter, I feel that I myself am utterly incapable of devising a set of provisions to operate on the people of West Virginia for all time to come, to meet all the emergencies that may arise through all the changes of circumstances which may transpire. I have no doubt that even if the work we suggest is the most perfect system that can be devised for five years to come, circumstances may change so as to render it a most improper system in reference to the condition of the people, the prejudices of the people, if you please, and the conditions of things that may exist in the commonwealth after a few years. Who can foresee all the changes that may occur within a few years? Who two years ago could have foreseen the state of things which exists here now? And shall we leave our work in a condition in which there is no possibility of adapting it to the emergencies which may occur, no possibility of adapting it to the changes which are likely to occur, without calling a convention together to alter the whole system? I wish to avoid calling conventions so far as it may be possible properly to do so. When the necessity exists for them, they must come, and we can only lament that the necessity has existed. Recollect, gentlemen, a constitution is intended for perpetuity. To be a perfect constitution, you must foresee what the fallibility of human nature can do; you must be able to foresee the emergencies that may arise and adopt such provisions as will be exactly the best thing in these emergencies. That is what a constitution is. A constitution may be a perfect constitution for a few years, but the very change in the condition of the people may render it a most imperfect instrument after a year may have elapsed. Can you confine emergencies and necessities to the year 1865, or to the year 1870, or to any fixed periods? I think, gentlemen, we have enough in what has occurred in regard to such provisions in the states where they are adopted to justify us in saying that gentlemen are too apprehensive of this difficulty. If a man could get up in the legislature and have his amendment passed, we would have plenty of them proposed. But they are to pass in the legislature by a majority of all the members elected. Unless some emergency has shown the necessity for the amendment he proposes, it is seldom, indeed, that he will get the majority in each branch of all the members elected to concur even in submitting the amendment he proposes. If the condition of things has shown the necessity of the amendment, then, indeed a majority of each house can be expected to concur in it. Not a majority of each house, but a majority of all the members elected to each house. But, further, that amendment is to be published to give full notice as to the character and necessity of it to the people and when a new legislature is elected, that new legislature is to be required, by a majority of all the members elected to each house to confirm and approve of the proposition made before it can be submitted to the people. After all this occurs, it is to be submitted, and the people can ratify or reject according to their judgment of the public necessity.
So we see, gentlemen, why it is that this thing of disturbing legislatures and occupying their time with trifling and unnecessary amendments has not occurred in the states in which this constitutional provision is found. We guard in the very provisions here, guard I think sufficiently, against countenance being given to this thing of amending and meddling with the Constitution for trifling causes. But whenever the case shall occur that a majority of all the members elected to each house would approve of an amendment; when the vote of the people shall have elected a new legislature with special reference to that matter, a majority of all the members elected to each house shall again be necessary. We have every security that prudence can suggest to assure us that the people will not be called on to vote unless the proposed amendment is a proper one for their suffrages. While the constitutions of twenty-nine states provide for amending their constitutions without the interposition of a convention, there is in one or two instances, as stated by the gentleman from Wood a provision requiring amendments to be proposed only at specific periods. The amendment he proposes is, I believe, taken from the Constitution of the state of New Jersey. I do not know how it has operated there. According to my judgment New Jersey has a pretty good constitution, and I suppose they have found no amendments necessary. But so far as that goes, we have certainly more than five to one where they have not thought a provision of that kind necessary; and we have the experience of the states in which this provision is in operation and where if I am not very much mistaken the evils gentlemen apprehend from it have been found not to exist in practice.
MR. HAYMOND. I am opposed to the section, opposed to the amendment and opposed to the substitute. I am opposed to the whole concern. It looks to me, Mr. President, as if we were fixing a standing convention, which I am opposed to. Sir, there are questions that will yet come before this Convention that if not decided in a certain way would come before every legislature and keep this whole country excited all the whole time. I therefore beg of this Convention not to pass this measure.
MR. HARRISON. Mr. President, I propose to amend the substitute by these words: "The legislature in the year 1865 and at periods not oftener than once in five years thereafter may propose amendments to this Constitution." I think that would bring the question more definitely before the house.
THE PRESIDENT. The question is on the adoption of the amendment to the substitute.
MR. BATTELLE. I just wish to say that I am in favor of the amendment presented by the gentleman from Ohio and opposed to the substitute and other propositions. The only difficulty I can see if the amendment offered by my colleague is that it seemed to be a temptation for us to do our work loosely here with a view that mistakes made might be corrected by the people afterwards; but that objection is more than balanced I think by the fact that do what we will there may be some things permitted or omitted that may need attention hereafter. I am therefore in favor of the amendment as offered, and opposed to the subsequent propositions before the Convention. I will take occasion to say that for one I have not the very great dread of undue agitation in reference to constitutional questions either in our legislature or among our people that seems to disturb the imaginations of some gentlemen here. The Legislature of Virginia, I believe, has proverbially spent a great deal of time in discussing Federal relations, keeping the United States government straight! I should not regret at all to see that discussion diverted from questions of United States relations to questions of state relations; and I think that discussions of questions that affect the domestic concerns and welfare of our people will always be wholesome. I believe our Legislature and people will always be competent judges of what they want and what their interests require. If they are not who are? Discussions of such questions enlarge the scope of the public intelligence. So far from operating injuriously to any interest of the people or State, they would operate beneficially. Such discussions - I do not mean frivolous questions, operate to the advantage and instruction of the people.
THE PRESIDENT. The Chair would remind the gentleman that the question is on the substitute.
MR. POMEROY. Some of them did not hear it. Will the Clerk read the substitute.
The Secretary read it.
MR. BATTELLE. I acquiesce with this remark, that it has been the custom, if I recollect correctly, since the Convention commenced when the original proposition and various amendments are pending for a member who is speaking on the amendment to include in his remarks his views in reference to the whole propositions; and I thought I was only following out the practice which has been permitted here.
THE PRESIDENT. The Chair will admit that very much of that has been done and he has had the disposition to confirm the discussion as much as he could.
MR. BATTELLE. I certainly am disposed to adhere to the rule. I had about finished, however, sir, what I intended to say, and that was that I am opposed to these limitations on the rights of the people through their representatives to propose whenever it may be their good pleasure any amendments that may be deemed vital or important to the Constitution. I judge the practical workings of it will be not to keep the community unduly agitated, whereas if we make this limitation we shall probably repress some feelings and desires that if they could find vent would do no harm to anybody.
MR. VAN WINKLE. I rise to suggest that we are getting the tail of our kite entirely too long. The proposition of the gentleman from Ohio, which I did not think of before, is an amendment itself. The gentleman from Wood proposes to amend that; and then the gentleman from Marion proposes a further amendment; and now the gentleman from Harrison proposes to amend both. I think we will have to break off somewheres.
MR. HERVEY. That is a substitute, as I understand it, a substitute for the proposition of the gentleman from Marion.
THE PRESIDENT. The Secretary does not seem to have the amendment of the gentleman from Marion at all.
MR. HALL of Marion. Mr. President. For the amendment proposed by the gentleman from Wood I proposed a substitute, which was modified at the suggestion of the gentleman from Wood. The gentleman from Harrison moves to amend the substitute by making the substitute as I first proposed it. That is the effect of the amendment of the gentleman from Harrison, but different from the substitute as modified at the instance of the gentleman from Wood.
MR. HERVEY. As I understand the position of this question it is, first the addition proposed by the gentleman from Ohio; then the amendment to that addition by the gentleman from Wood; then the substitute of the gentleman from Marion; then the amendment to that substitute of the gentleman from Harrison. Is that correct? Then sir, I desire to offer an amendment to that amendment (Laughter): "But the legislature may call a convention after 1875." (Renewed merriment.)
THE PRESIDENT. Has the gentleman from Wood a copy of the rules before him there? I would thank him to read the rule in reference to substitutes and amendments.
MR. VAN WINKLE. I am satisfied, sir, the substitute is only an amendment. Of course, it is in the nature of an amendment. I do not know whether I can find it.
MR. STUART of Doddridge. There is no question but what a substitute is an amendment, and there is now four distinct amendments pending before this body - five with the amendment of the gentleman from Brooke!
MR. VAN WINKLE. The rule established by Congress is: "No new motion or proposition shall be admitted under color of amendment as a substitute for the proposition or motion under debate." I am satisfied, and the gentleman from Doddridge confirms me, that amendments and substitutes are the same.
THE PRESIDENT. The substitute of the gentleman from Marion then, in the opinion of the Chair, would be out of order. The question will be on the amendment of the gentleman from Wood.
MR. HERVEY. I understand the proposition of the gentleman from Wood is an amendment.
THE PRESIDENT. To an amendment.
MR. HALL of Marion. Mr. President, I am fully persuaded that the decision of the Chair is right, and that my substitute I am satisfied is out of order, although I thought at the time it was in order. In speaking to the question of the gentleman from Wood, I will simply say that those who desire to restrict the agitation by our legislature as well as the other may do so by voting down the amendment of the gentleman from Wood, after which it will be in order to propose the amendments sought to be introduced too many stories up.
MR. STEVENSON of Wood. I also would take this occasion to advise the Convention of another fact, that if they wish to restrict the legislature in submitting these amendments they can also do it by voting for the amendment of the gentleman from Wood county, so that the gentleman from Marion will both be accommodated by voting for my amendment. But, sir, as there has been a good deal of time wasted in the discussion of matters out of order . . .
MR. BROWN of Kanawha. Will the gentleman re-state his amendment.
MR. STEVENSON of Wood. At the end of the 18th line these words to come in: "But no amendment or amendments shall be submitted to the people oftener than once in five years." I was going to say, sir, that I will not waste the time of the Convention in discussing the matter any further than to say simply this: that I think the amendment or restriction will obviate the very difficulty that has been spoken of here by the gentlemen who oppose the amendment. This wrangling about amendments to the Constitution which may be got up every six months and every year, and brought into the legislature, as they unquestionably will be by gentlemen who are ambitious to display their talents in the way of submitting amendments to that instrument. In other words it will convert the legislature into a constitutional convention every year. So that instead of having to go through this turmoil and strife, anxiety and difficulty to get up a constitutional convention every twenty years, you will have difficulty almost every year in the State, and, as I said before, the time that should be occupied in making laws for the State or changing or modifying them to the immediate benefit of the people, is liable to be wasted by the legislature in introducing and discussing amendments to the Constitution. Now, that seems to me that is a difficulty that might occur, of course. I do not pretend to say it will occur every year; but I think it is one of the things that is certainly within the limits of possibility, and I think it is highly probable it will occur frequently. Now, the gentleman from Ohio read a provision in the constitution of New York on that subject, in which a restriction of this kind was not found. He also stated that there was a provision of this kind in the constitution of New Jersey, and I think it will be found in some of the other states if I recollect right besides the one which I am about to read now from the Constitution of Pennsylvania; and the whole provision is in fact in substance precisely, or nearly so, that proposed by my friend from Ohio:
"No amendment or amendments to this constitution may be proposed in the senate or house of representatives, and if the same shall be agreed to by a majority of the members elected to each house, each proposed amendments shall be entered on the journals, with the yeas and nays taken thereon, and the secretary of the commonwealth shall cause the same to be published three months before the next general election in at least one newspaper in each county in which a newspaper is published; and if in the legislature next afterwards chosen such proposed amendment or amendments shall be agreed to by a majority of the members elected to each house, the secretary of the commonwealth shall cause the same again to be published in the manner aforesaid; and such proposed amendment or amendments shall be submitted to the people in such manner and at such time at least three months after being so agreed to by the two houses, as the legislature shall prescribe; and if the people shall approve and ratify such amendment or amendments by a majority of the qualified voters of this state voting thereon, such amendment shall become part of the constitution; but no amendment or amendments shall be submitted to the people oftener than once in five years."
MR. HARRISON. I am in favor of the proposition of the gentleman from Ohio; but if I understand the object of the gentleman from Wood correctly I am in favor of his amendment, to prevent the legislature from continually wrangling on this subject. If I am correct in that, I think the words he has used are not sufficient for that purpose, and if he will adopt the words which I have used we will exclude it from the legislature as well as before the people. In reference to the limitation as to time, I think, sir, it is very probable that with the many new principles which will have been adopted in this Constitution, a great many of our people will be dissatisfied with it, and that if they are allowed the privilege of raising the question of amendment in any legislature that may convene after the Constitution shall have gone into effect, before they have tried it and found out what is good in it and what is not good, and the result of their dissatisfaction with it when it is submitted would be that at the very first session of the legislature amendments would be proposed. It seems to me therefore, sir, that it would be prudent to require them to try it for at least three years; and if experience shall then show that any of its provisions are not such as they want they can apply to the legislature. It would take, I suppose, something more than twelve months to pass a provision through the legislature and have it ratified by the people. That would make it 1866, but at the same time by extending it five years after the period of 1865 there still would always be five years between the periods at which proposed amendments should be submitted to the people. It seems to me that the amendment should not only be simply to exclude propositions from being brought before the people but they ought to be excluded from the legislature also after the periods specified in the amendment.
MR. LAMB. I do not rise to discuss the matter again, but simply to refer to the precedent which has been set in the Constitution of the State of Pennsylvania. It certainly shows that this thing of prescribing fixed periods for proposing amendments operates perhaps in the way that has been suggested by getting up a crowd of amendments at a time. The Constitution of New York, without any provision of the kind has not been amended since 1846. With this provision we find tacked to the Constitution of Pennsylvania since it was adopted no less than fourteen different amendments. Now, so far as the precedent goes between these two states, it would seem that this five year limitation would operate to increase the quantity of amendments rather than diminish them. That may not be a fair argument. The Constitution of Pennsylvania may have been much more defective than the Constitution of New York. The Constitution of New York may have operated perfectly and no amendment may have been necessary there; but certainly there is nothing in the facts as they bear on this subject to induce us to adopt the rule of Pennsylvania rather than the rule of New York. If our object is to prevent encumbering the Constitution with frequent amendments. With that provision the Constitution of the State of Pennsylvania has fourteen amendments tacked to it; without that provision the State of New York has none.
MR. STUART of Doddridge. I am certainly in favor of the amendment of the gentleman from Wood over the amendment as proposed by the gentleman from Ohio. It is true the amendment of the gentleman from Wood does keep this question from before the people at least five years; but it does not meet the objection which the gentleman seems to think it does, the agitation of this question every year in the legislature. Now, sir, we are adopting a constitution here and we find for the purpose of carrying out the object of economy we have said our legislature shall not sit but forty-five days at a session. We get to discussing these constitutional questions and the right to discuss them every year in the legislative hall, it will require more than forty-five days if we are to judge of our action here, to discuss these questions, and instead of legislating and passing laws to be governed and regulated by this Constitution, we will be trying to legislate through and with the Constitution, and there is nothing in the world to prevent even though the gentleman may get up a discussion one session on a constitutional amendment proposed to the Constitution and discuss that question that session for fifteen, twenty or thirty days. At the very next session, the same question will be raised again; and in this way we will have an everlasting wrangling and jangling over the Constitution. Now, this would certainly be the result in my opinion. I will vote for the amendment of the gentleman from Wood and then I hope it will be amended so as to meet his views at least so that these questions will not be discussed in the legislature and not have a right to discuss them in the legislature every year, and only submit them to the people in five years. It is only necessary then that we adopt the amendment of the gentleman from Wood and amend that so as to restrict this discussion in the legislature at least two years prior to the time it is to be submitted to the people. That is the purport of the amendment of the gentleman from Ohio. When this amendment should be raised in one legislative body discussed there and handed over to the succeeding legislature, and then there be discussed, have an election for members of the legislature have it adopted by the new legislature, and then submit it to the vote of the people. But instead of having it discussed for two years we will have it discussed for five years; and the canvass before the people for a seat in the legislature will not be conducted on any other principle than that of amendment to the Constitution; and you will see men coming out and canvassing before the people on certain amendments and propositions that are to be carried out in the proposed Constitution. We will have nothing but this change on change; continual wrangling over a thing that should be permanent and have more stability to it. I will vote, Mr. President, for the amendment to the amendment because I think it is better than the amendment, but I hope that it will be amended. I will vote against the whole thing unless it is.
MR. SOPER. Mr. President, I hope the amendment of the gentleman from Ohio will prevail, and that the amendment to the amendment will be rejected. I believe it, sir, to be wholly unnecessary, and I regret to hear gentlemen rise in their seats and pay such a wretched compliment to the gentlemen who we suppose will fill the legislative halls in this State hereafter. Those gentlemen certainly - I do not speak from any practical knowledge of the subject - but if the things which gentlemen attribute to our future legislatures do characterize their legislation, I shall be very sorry for the State. Now, sir, if our Constitution is adopted we certainly will not have a legislature under it until the end of the year 1863. The greater part of that session we will be preparing laws putting the Constitution into operation. These laws will not go into operation probably until the year 1864, until after the Constitution shall have been put into operation by legislation the defects in it cannot well be discovered. But I submit, sir, that if a defect shall be discovered and if it is of that importance to the people to require an amendment to the Constitution - a single amendment - why ought the people to be delayed five years before they can get the benefit of that amendment? Under the amendment of the gentleman from Ohio the Convention will perceive that from the discovery of the necessity of the amendment inevitably two to three years must elapse before it can be accomplished. Now, that length of time certainly gives every reflecting man in the whole State time to examine and mature the thing to make up his judgment and act considerately. Why then do we want to have any of these squabbles which these gentlemen so much fear? I think •them wholly unnecessary. The gentleman from Ohio has said he has taken his amendment principally from the Constitution of New York. I have had some knowledge, sir, of that constitution, I have had a little experience of legislation under it; and I can say that this subject of amendment I have never known it but very seldom agitated in the legislature. Amendments have been proposed - one or two instances I recollect - and when the amendment came to be submitted to the people, it was rejected. It grew out of high political excitement and had reference to the provision in the constitution restricting the right of free negroes to vote. An amendment to the constitution in that respect, sir, was agitated in the legislature; it passed two legislatures; it was submitted to the people and they rejected it. So that the constitution stands in that respect just as it was written.
I am confident there is no necessity of confining these amendments to periods of five years, as has been well said and illustrated from looking at the amendments to the Constitution of the State of Pennsylvania. Gentlemen will say that if you limit your time for your alterations to five years they will be agitated by the people. I do not say agitated in the legislature. They will be agitated by the people and accumulated, and probably will then be crowded on the legislature and people at the end of every five years. If you require but a single amendment, it takes but a very little time to agitate it and prepare it for the people to understand it and I vote on it; and whenever the occasion occurs, I think they ought I to have the right to do so. Now, as to the necessity of an amendment of this kind, why the constitution which was framed in New York in 1846, that convention was composed of many of the ablest men within the state and they were occupied more than six months. They examined it very carefully and cautiously; and I believe that constitution has given very general satisfaction, with the exception I have mentioned, down to the present period. It is true, one of the great causes which led to the calling of that convention was the accumulation of business in the various courts of the state in consequence of the increase of litigation. And the difficulties which the gentlemen who prepared that constitution in 1846 endeavored to avoid have now again accumulated upon them; and I believe recently they have been agitating some change in the constitution in respect to the reorganization of the judiciary of that state. But with those exceptions, I am not aware of this matter having been scarcely agitated in the proposal of amendments.
Now, I cannot believe myself that whenever the legislature that is going to be elected under this Constitution, when we have got no political excitement or divisions of parties between us, I cannot believe the majority of that legislature are men who will be hunting out for topics for popularity and that they will be willing to do that at the expense of the people by spending their time in the legislature preparing propositions to the people to be voted on. I cannot put that estimate on the moral honesty and capacity of the gentlemen who I suppose will represent this State under the new Constitution. So I shall conclude until I am forced to come to a contrary opinion; I shall believe that no gentleman will get up in the legislature and propose an amendment to the Constitution that we shall adopt here unless there is a real necessity for it.
For these reasons, sir, I am opposed to the amendment, because I think there is no necessity for it; and for the additional reason, as I stated, that it will take till 1865 before ever any amendment can be matured so as to be submitted to the people; and if that be a necessary amendment and we tie them up for an additional five years, I think it will be a hardship which we would impose on them and which necessity does not require.
The question was taken on Mr. Stevenson's amendment to Mr. Lamb's additional section, and it was rejected.
The question recurring on Mr. Lamb's amendment,
MR. HARRISON. Is it in order to move an amendment to the amendment?
THE PRESIDENT. If it is not the same that was voted down.
MR. HARRISON. I understand it is not the same.
Mr. Harrison then submitted his proposition as previously stated by him, to insert in the 2nd line after the word "legislature" the words: "in the year 1865, and at periods not oftener than once in five years thereafter."
The question was taken on this amendment, and it was rejected.
The question recurring on the additional section offered by Mr. Lamb, it was adopted by the following vote:
YEAS - Messrs. John Hall (President), Battelle, Chapman, Caldwell, Dolly, Harrison, Hervey, Irvine, Lamb, Lauck, Powell, Paxton, Pomeroy, Robinson, Ruffner, Sinsel, Simmons, Stewart of Wirt, Sheets, Soper, Smith, Taylor, Van Winkle, Walker, Warder - 25.
NAYS - Messrs. Brown of Preston, Brown of Kanawha, Brooks, Dering, Dille, Hansley, Hall of Marion, Haymond, Hubbs, Hagar, McCutchen, Parsons, Stevenson of Wood, Stephenson of Clay, Stuart of Doddridge, Trainer - 16.
MR. CALDWELL. I believe, sir, that the action just had by the Convention disposes of all the amendments I know of proposed to be made in addition to this report except one, sir, that I have offered myself. I think, sir, the proposition that I make by way of amendment to this report is one of a grave character. I do not propose to take it up now. I merely rise for the purpose of asking members of the Convention if they have not a printed copy of the proposition I made they will procure one. The proposition has been printed, sir, and I suggest that we will in the morning be enabled to take it up for some deliberate consideration.
MR. LAMB. This has not yet been moved as an amendment. You had better make your motion and have it read.
Mr. Caldwell then offered the following as an additional section to the second report of the Committee on the Legislative Department, and it was read by the Secretary:
"The legislature shall pass no special act conferring corporate powers, other than for banking or for municipal purposes, or when the object cannot be attained under general laws; provided that the power of municipal corporations to tax and incur debts may be restricted by law.
"Corporations, other than corporations for banking or for municipal purposes, shall be formed under general laws, but all general laws passed pursuant to this section may be altered or amended by the legislature from time to time.
"The property of corporations created under general laws shall be subject to taxation the same as the property of individuals.
"The right of way may be granted by general laws to corporations, provided the same shall not be appropriated to the use of any incorporation until full compensation therefor be made in money - the amount of compensation to be ascertained in a court of record, in such a manner as shall be prescribed by law."
MR. POWELL. Mr. President, do I understand that it is moved to adopt that section now?
THE PRESIDENT. The motion is to adopt that as an additional section to the report.
MR. POWELL. I understand the gentleman to desire that we reflect on it during the night. If it is moved to adopt it now, I have no more to say.
My object was this, sir. I deem the proposition so important that I should therefore ask the indulgence of this Convention to be heard on the subject contained in this proposition; and as it is near the hour of adjournment, I would prefer that the consideration of my proposition should be deferred until tomorrow morning; and it was for that reason that I moved an adjournment and only withdrew the motion under the impression that there was some other proposition that had not been acted on that might be taken up this evening and acted on.
MR. POWELL. I wish to renew the motion to adopt the proposition submitted by me some time ago and renewed by my colleague, that the legislature may make laws regulating or prohibiting the sale of intoxicating liquors within the limits of this commonwealth. I do not think it will require much time to dispose of this proposition.
THE PRESIDENT. Is it the purpose of the gentleman to offer that as an amendment to the report?
MR. POWELL. As an amendment to the report.
THE PRESIDENT. The gentleman would be out of order, in the opinion of the Chair, in that form.
MR. POWELL. I would offer it as an. additional section.
MR. VAN WINKLE. The gentleman is not aware that the section of Mr. Caldwell is pending?
MR. CALDWELL. I really, when I first rose, did not intend at all that my proposition should be offered now for consideration before the Convention. My object in rising merely was to give notice that there was such a proposition that would be submitted at another period and to ask members if they had not the proposition now to advise them that it was printed, that they might have it in the meantime and have an opportunity to consider it. I do not design at all it should be taken up this evening. Therefore I was a little surprised when the proposition made by myself was read by the Secretary, for I did not intend to offer it now for the consideration of the Convention; and therefore, to relieve the difficulty, I move we now adjourn.
MR. BROWN of Kanawha. I desire to ask that Mr. Smith be appointed on the legislative committee.
Mr. Caldwell withdrew the motion to adjourn.
MR. BROWN of Kanawha. That committee has now had the matter referred to it again and has it now for action.
MR. HALL of Marion. I trust we shall not change or make any arrangement of committees different from what they now are. I have no doubt of the valuable aid the gentleman would give on that committee, but at the same time I think our committees are well enough. I am very well pleased with the labors of the committees thus far, and trust there will be no changes made.
MR. BROWN of Kanawha. I am unable to conceive of any grounds in opposition to the motion. My only desire is that we should have the aid of Mr. Smith on the committee.
The motion was agreed to.
MR. CALDWELL. I move now the Convention adjourn.
MR. LAMB. I move to add the gentleman from Hancock to the same committee. We have one from the southern section. Let us have them distributed as it was before.
MR. CALDWELL. I must insist on my motion to adjourn.
The motion was agreed to and the Convention adjourned.
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Chapter Eleven: First Constitutional Convention of West Virginia