The Convention met at the appointed hour and was opened with prayer by Reverend Alfred Paull, of the Presbyterian church.
Journal read and approved.
MR. VAN WINKLE. At the suggestion of my friends here, sir, I will ask leave to withdraw my amendment which I intended seriously as a substitute. I withdraw it now, sir. It will go on the record of today. This friend suggests that it tends to complicate the subject. They perhaps want to amend my amendment, and perhaps it will save time to let the house come to a direct vote on the proposition of the gentleman from Monongalia.
MR. BROWN of Preston. Mr. President, I offer the following resolution:
"Resolved that when this Convention adjourn, it adjourn to meet hereafter at nine o'clock in the morning until otherwise ordered."
On that resolution, sir, I demand the yeas and nays. The vote was taken on the resolution and resulted
YEAS - Messrs. Brown of Preston, Brown of Kanawha, Brooks, Brumfield, Battelle, Cook, Dering, Dille, Hansley, Hall of Marion, Haymond, Harrison, Hervey, Hoback, Hagar, Irvine, Montague, Mahon, McCutchen, Parsons, Powell, Parker, Paxton, Pomeroy, Robinson, Sinsel, Simmons, Stevenson of Wood, Stephenson of Clay, Stewart of Wirt, Sheets, Taylor, Trainer, Walker, Warder, Wilson - 36.
NAYS - Messrs. John Hall (President), Stuart of Doddridge, Soper, Van Winkle - 4.
MR. STEVENSON of Wood. I wish to offer a resolution in reference to fixing the time of adjournment. I am willing to submit it without discussion;
"Resolved, That hereafter, until otherwise ordered, this Convention will adjourn at a quarter before six o'clock P. M."
MR. STUART of Doddridge. It seems to me unnecessary to adopt that resolution. It might be we would desire to extend our sessions a little later. I see no necessity for it. I would prefer if our business was such that we desired to remain we could have that privilege. I want to progress with business, although I voted against meeting at nine. It is simply because we effect no more business by it; and I think we are doing considerable business sometimes, sir, after a quarter of six perhaps.
MR. STEVENSON of Wood. The difficulty suggested by my friend from Doddridge would be very easily obviated if there is any matter of importance that requires extension of time. The Convention can extend it if there is no objection. This is simply to fix a time so that we will not be kept here sometimes to five o'clock, sometimes to seven. If we fix an hour the members will adjust their speeches and business to that hour. If they wish to extend it beyond that, the Convention of course would do it.
MR. HALL of Marion. I think it will give us less trouble to make a motion to adjourn, and it may be, as suggested by the member from Doddridge that we might want to stay to nine o'clock or ten o'clock.
The resolution was rejected.
THE PRESIDENT. When the Convention adjourned, it had under consideration the amendment of the gentleman from Monongalia. The amendment of the gentleman from Wood is withdrawn. The question is on the adoption of the amendment offered by the gentleman from Monongalia, which is: to insert after the word "county" in the 94th line the following:
"But in every case where the sum or thing in controversy exceeds the amount or value of twenty dollars, the justice shall, upon the application of the defendant, at any time before trial, remove the cause to the circuit court of the county wherein the same shall be brought, and the clerk of the said court shall docket the same, and it shall be proceeded in as if it were an original motion, made in said court."
MR. IRVINE. I ask for the yeas and nays on that question.
MR. BROWN of Kanawha. I understand in my absence the Convention have adopted a proposition extending the jurisdiction of justices to a hundred dollars. With the restriction proposed in this amendment I see no objection to that extension. It alleviates the case of the difficulties that occurred to me and that I have witnessed and experienced. I am very happy to see the amendment has been carefully drawn; and as I apprehend from looking, without reference to the whole state, as it has stood on the books of Virginia many years, that this amendment fits the case. I hope the Convention will see not only its duty but its pleasure to sustain this proposition of the gentleman from Monongalia in the language of the law as it now stands on the statute-book with the only change in it that has been voted by the Convention, of increasing the jurisdiction to one hundred dollars. If so, our rights are secure and you have diminished by one-half the expense of litigation. You have relieved the debtor class from evils and inconvenience and expense in the direction they would be subject to, inevitably if you do not adopt it.
The vote was taken by yeas and nays and Mr. Willey's amendment rejected by the following vote.
YEAS - Messrs. Brown of Preston, Brown of Kanawha, Brooks, Dille, Hall of Marion, Harrison, Hervey, Irvine, McCutchen, Robinson, Ruffner, Stephenson of Clay, Stuart of Doddridge, Taylor, Trainer, Willey, Walker, Wilson - 18.
NAYS - Messrs. Brumfield, Battelle, Chapman, Cook, Dering, Hansley, Haymond, Hoback, Hagar, Montague, Mahon, O'Brien, Parsons, Powell, Parker, Pomeroy, Sinsel, Simmons, Stevenson of Wood, Stewart of Wirt, Sheets, Soper, Van Winkle, Warder - 24.
MR. VAN WINKLE. Before offering the amendment I proposed in reference to appeals, I have had some consultation with the gentleman from Monongalia; and there are some points here in which he thinks and perhaps others think the report is wrong, is not specific enough in order to bring out the meaning the committee intended to attach to it; and for that purpose I will ask general consent to introduce in the 91st line, after the word "found" the words "or his effects." That is perhaps the substance of the amendment; but it is to give jurisdiction in case of attachment where a party may not himself appear but may have goods by which he may be summoned. I apprehend there will be no objection to the addition of that.
There being no objection the words were inserted.
MR. VAN WINKLE. In the 100th line, "or in which the property to be levied on is found," to make that more specific I propose to introduce "of the township," so it will read: "or of the township in which, etc." It is thought a little obscure. I trust there will be no objection.
MR. WILLEY. Suggested it read "or of any township in the State in which, etc."
There being no objection, this language was inserted.
MR. VAN WINKLE. The committee were of opinion that this left all other matters not specifically provided here to the action of the legislature. The gentleman from Monongalia thinks it does not. I will therefore propose to add at the end of the section, in order to make that clear:
"The manner of prosecuting the aforesaid actions, and of issuing summonses and executions, and of executing and making return of the same, shall be prescribed by law; and the legislature may give to justices of the peace and constables, such additional civil jurisdiction and powers within their respective townships as may be deemed expedient."
I think that suits the views of both parties.
MR. BROWN of Kanawha. I will move to strike out all after the word "ship" in the 98th line. It does seem to me that unless the Convention intends to make all the law that is ever to be made in the State this ought to be done. Now, that we should go on here regulating executions is a thing I will venture to say, without having examined these constitutions cannot be found in a constitution in the world.
MR. VAN WINKLE. Will the gentleman before he offers any new amendment let us settle this matter.
MR. BROWN of Kanawha. I was trying to settle it. My idea was to strike out all after "township," which begins the executions. Why the legislature must regulate the executions of these courts and why not of magistrate's courts? All executions. A general law regulates the executions, no matter what courts they issue from. We should not put in the Constitution the regulation of executions from justices. Having given jurisdiction to the justices, it is to be presumed, I suppose.
MR. VAN WINKLE. As we do. Will the gentleman not listen to the amendment I have just offered:
"The manner of prosecuting the aforesaid actions, and of issuing summonses and executions, and of executing and making return of the same, shall be prescribed by law; and the legislature may give to justices of the peace and constables, such additional civil jurisdiction and powers within their respective townships as may be deemed expedient."
Now whether with that general clause added, the clause commencing "Executions issued by a justice" is necessary or not the Convention may decide. If it is supposed to be superfluous, if the Convention will permit this new sentence to come in at the end, then it will be competent for any member to move to strike out any intermediate part of the section which might be rendered superfluous by it.
MR. BROWN of Kanawha. I must still insist on the amendment.
MR. VAN WINKLE. I will propose, sir, to add this at the end of the section if that is voted in. Then the gentleman's motion will be perfectly in order and the Convention will have the two matters before them. I was willing to accept this addition as a sort of compromise of conflicting opinions that had been manifested here. The conclusion of the committee was that the legislature should regulate all these matters. The object of introducing it here was to confine it to the township. I do not know but if the words "may give justices of the peace and constables such additional jurisdiction and power" were put in whether it would not be well to strike out the other. I would, however, not venture to do that or accept that in the final which I am copying; but if we can take a vote on the addition and then the gentleman make his motion to strike out, I think we may meet the views of the Convention, the friends of the section as reported as well as others.
MR. BROWN of Kanawha. I now move to amend the amendment by striking out the whole from the word "ship" and that portion of the amendment as proposed to be added by the gentleman from Wood. I desire to assign the reason. I am opposed, in the first place, to making this Constitution that anomaly of undertaking to provide in the Constitution in all the particulars and measure about executions that issue from magistrates and leave those that issue from his, record courts and the court of appeals to be regulated by law. I expect yet to show that there is no reason for descending into these simple matters in the Constitution. There is an old maxim of law, "De minimis non curiat lex" - some things so very small that even the law does not take notice. But here the smaller the matter the more specific it is made in the Constitution. Why, the legislature is competent to regulate the executions that issue from the court of appeals and the circuit courts that have the general jurisdiction of the State, but of magistrates courts it is not! Again if this question involved the regulation of executions of all these courts I should be equally opposed to it, because it is indefinite to carry out the minutiae, how the execution shall issue, to whose hands it shall come, what the officer shall do in carrying out his duty. These are minutiae and particulars that must ever rest in the legislature to change and alter as circumstances shall prove necessary and proper. That having determined the jurisdiction of the tribunal and given it authority to go on and render a judgment in a given case, to follow the execution which only carries out that judgment in the hands of the officer is out of place in the Constitution and is improper, and I hope it is not the intention to fix these things in the Constitution. If these minutiae and particulars are carried into the Constitution it will be an anomaly, such a thing as I presume has not heretofore been witnessed.
MR. WILLEY. I would say, sir, I heartily concur in the remarks of the gentleman from Kanawha. But then that is a foregone conclusion. The Convention yesterday by a most overwhelming majority decided that these minutiae - these major minutiae - should be retained in the Constitution; that executions should issue so and so. There was a motion to strike out the whole section and insert the proposition that the powers and duties and jurisdiction of the justices of the peace should be regulated by law. But then the sense of this body was expressed in a manner that we could not mistake. It was determined that should not be the case that the legislature should not have that power, and that this Convention would exercise it and incorporate in the Constitution this legislative minutiae; and by a vote of 24 to 18 it was determined yesterday that this section as it now stands, as amended by a hundred instead of fifty should be a part of the Constitution. That is to say, that the matter should not be left to the discretion of the legislature. Now, sir, so far as I am concerned, I want the matter to be adjusted, as I think we have got a very bad bargain. I want to make the best of it and have such safeguards thrown around this and such explanations and modifications of this section as should prevent as far as possible the inevitable conflicts and confusion that will grow out in the practical workings of this Constitution if it be adopted as now shaped. I think my friend from Kanawha is entirely mistaken in saying there is no necessity for designating how summons shall be issued and all that sort of thing. If you will look into the Code you will find a distinct mode of executions, or returning them, of filing them, of disposing of them in reference to such executions as are issued by justices of the peace from those issued out of courts - and there necessarily ought to be. They will not be courts of record in the matter. There must be some provision whereby they shall be preserved for future reference. Are we to leave this wholly without provision if these executions are to issue in the manner indicated in this section? Ought not the legislature to be required to prescribe some safe manner in which they should be issued, how executed, where returned, how preserved and all that sort of thing that would be absolutely necessary hereafter for the security of the citizen and due administration of justice? I would be very glad if the Convention this morning would reverse the expression of its sense of yesterday, but I have no idea that that will be the case; that it is the determination of this body to insert in this Constitution this minutiae and provisions; but it seems to me eminently proper in that case that we would at least give the legislature some power over the justices of the peace in the country - how process shall be issued and executed; otherwise what do you do? We used to denounce the first constituted county court as an arbitrary body, a sort of despotic institution. Here if you place the protection of the country in the hands of a single justice without any court of record at all, away from the inspection of the public at his own courthouse and without any control by the legislature over him whatever, no control over the administration of his office, the manner in which he shall execute it - he will see and feel that he is perfectly independent of the people because secured in his position by the unbending rules of constitutional law which lift him into the range of his own discretion as to the manner in which he shall execute his duties. I want some provision in here that these justices, with this extraordinary jurisdiction, shall be regulated and watched and controlled in the administration of their duties; and I hope this Convention will adopt the additional clause suggested by the gentleman from Wood, that the legislature shall have power to direct the manner in which the duties of the justices of the peace in prosecuting these actions shall be done; that it will allow some control over these justices in the country on the part of the legislature and the people through the legislature; and especially if in the working of this instrument - as will almost inevitably be the case - we have failed to incorporate some duties that justices of the peace ought to discharge and it will be found necessary they should discharge - that if we shall have failed to incorporate in the Constitution by name and designation those duties - the legislature shall have power to confer on justices authority to execute those necessary duties. For instance, where do you get authority here for justices to take relinquishment of dower, where acknowledgment of deeds, where to administer oaths, if you leave this section as it is. You leave them shorn of the most useful parts of their authority as now exercised; and I think it is just and eminently proper the legislature should have the power to confer on the justices in the country some of these necessary duties for the administration of justice. I hope the section as reported by the chairman of the committee will be added. It will mitigate my opposition to this section very much because it will leave the power of remedying evils we are proposing to the people and to a very considerable extent has therefore modified my opposition to it. I hope the Convention will see the propriety and absolute necessity of such a thing. And when it is done I should think the committee could modify it to suit themselves well and good. But I want it in the best shape I can get it. I may not get it the way I want it; perhaps it ought not to be; perhaps the majority of the Convention understand the question better than I do - better than the minority; perhaps they are right. But then I want the matter arranged so as to suit my views of the case as far as possible. There is an overture from the other side this morning to modify it in a very essential particular, adapting it much better to my views of what is right and proper. I want to accept it and get it as good as I can, and then if I can make it any better we will accomplish something at last in furnishing a remedy to some extent for the evils which must necessarily grow out of the section with this legislative minutiae in it.
The Secretary as directed by the Chair reported the amendment of Mr. Brown of Kanawha, to strike out from "ship" in the 98th line to the end of the section.
MR. VAN WINKLE. It strikes me, sir, that the contents of the sentence proposed to be stricken out and the new sentence that I have proposed to introduce as a compromise measure are so incongruous that gentlemen cannot vote understandingly on one as a substitute for the other. Unless the gentleman from Kanawha will withdraw his motion till the other is acted on, I will withdraw mine and let his be acted on.
MR. WILLEY. I hope the gentleman from Kanawha will withdraw his motion at present. I suggest to him whether -
MR. BROWN of Kanawha. As I understand, if the amendment of the gentleman from Wood be appended when this is stricken out, I do not know that I should object to it; in fact from hearing it read I am inclined to think I should vote for it, but not as an appendage to this; that is, I do not prefer it as such. This sentence beginning with "Executions" ought to be stricken out unconditionally; that belongs not to the Constitution; it is purely legislative matter.
THE PRESIDENT. The gentleman from Wood is entitled to the floor.
MR. VAN WINKLE. Well, then let the Convention permit me to withdraw mine until the vote is taken on that. As far as the gentleman remarked, it only applied to the next three lines. If the gentleman will let this be added, to come in as if it had been originally reported by the committee, then it will be open to amendment as any other clause. I suggest here in the presence of the committee as accepting additional matter which they would have introduced if it had been brought to our notice; but I do not feel as chairman of the committee authorized to say that I would strike out to the end of the section. It is difficult when you have one matter offered for another for gentlemen to vote understandingly upon them. We have had that more than once. I was guilty of it perhaps last night in offering the amendment I did to that of the gentleman from Monongalia; though in that case it will be understood that while one might prefer to allow an absolute removal of causes another might prefer to allow an appeal. Some members might prefer the amendment in a different shape, and therefore when they came to striking out the proposition of the gentleman from Monongalia, or to vote on inserting mine, mine might not be just what suited them, and therefore the opponents of both propositions might unite and the real will of the Convention not be expressed. Now, what I desire is that we might come to it by two direct votes: one whether this additional clause shall be admitted here; the other whether any portion of what is already here shall be stricken out. If this is admitted, it is carrying out what I have in the name of the committee declared to be the intention of the committee and my belief, which still exists, that the section as it stood did leave all other matters except those if specially defined in the hands of the legislature. The very fact that we left out a specific clause authorizing them to take acknowledgment of deeds and so on shows that was the belief of the committee. But the gentleman from Monongalia surprises me in the opinion expressed that power would be forbidden to the legislature unless something specific is put in here showing that the power was ordained or given to the legislature. Well, now, as to a mere question of that kind, I could not be tenacious about it. The gentleman had drawn up what he wished to be inserted to effect the purpose, which was certainly a good one. The object is good whether he is mistaken or not in the necessity for it; and in that spirit of fairness which I hope I may always exhibit I take the very language which the gentleman has written and simply by introducing it at different points produce what is now before the Convention. I thought I was meeting his views. He has in the most gentlemanly and courteous way assented to it and met me I think in the same spirit in which I was inclined to meet him, to make certain this matter on which a doubt hung; and that very certainty thus attained by the proposition I have made after consultation with him being in accordance, as I know, with the views of the committee and those who have been standing up for it, I could have no hesitation in submitting it to the Convention. A mere superfluity of words, I do not so much care for. If it is a mere repetition of language that will be taken care of by the Committee on Revision; but if anything proposed here tends to render absolutely certain that about which there may be a doubt, whether it multiplies language or not, I am for admitting it. It is better that when this Constitution goes before the courts, or before the people to read, and the lawyers to write opinions on it, it should be so plain and explicit it cannot be misinterpreted. It is in that view, and with that view only and to accommodate the various opinions that seem to exist in the Convention - to render explicit what is supposed to be uncertain and to give to all a form of language of which the meaning cannot possibly be mistaken that I offer this additional sentence.
Now, the gentleman proposes to strike out a portion of what is already in. My impression is that what is already in simply relates to the territorial jurisdiction and that that is within the scope of the vote of the Convention yesterday and of the admission of the gentleman from Monongalia and the gentleman from Doddridge who made the proposition to strike out, which was voted down yesterday, both of them saying they did not wish to interfere with the question of territorial jurisdiction and it was only in reference to this part that they thought the legislature should have some control over. They are willing now to allow us to fix what sort of actions shall be brought before justices of the peace, what shall be the extent of jurisdiction, so far as it is a compromise of matters, and they are willing also to leave what relates to territorial jurisdiction. Now, when this sentence is amended as offered, perhaps it will do no more than this and I submit whether we ought to take the time we have already spent in this matter in very ample and full discussion we have had, with the views of members so generally known and the tendency of adding this being to compromise all views and satisfy all parties - whether this sentence might not well be retained in the report.
I will call the attention of those who have acted with me in reference to this matter that the additional clause authorizing the legislature to give additional power to justices and constables and give to the legislature more jurisdiction if they choose to place it in there; does add within their townships, to give them additional jurisdiction and powers within their townships, so that the principle which we were contending for and which we have most strenuously contended for, of confining their jurisdiction to their own townships, is preserved in the amendment, and as I understand it, with the assent of the gentleman from Monongalia. Now, it strikes me this will meet all views. But the amendment of the gentleman from Kanawha is more extensive perhaps than even he intends. These words "executions issued by a justice" may be directed to and executed by the constable of the township where the judgment is rendered or in which the property to be levied on is found. Now, the amendment introduced in the last clause is certainly an important amendment. I am thankful that the gentleman from Monongalia called attention to it, because a judgment may be rendered and there may be no property in the precise township or in the county; but there may be property in a township in an adjoining county. In that case the execution goes to the constable of the township in which it is found, and it ought to be his right to serve it and make the fees. And then follows this provision, which is also moved to be stricken out: "in case of a vacancy in the office of justice or constable in any township having but one, or of the disability to act of the incumbent, any other justice or constable of the same county may discharge any of the duties of their respective offices within said township." That disability may arise from sickness or from having to sit in the case - from all those things which render it improper for a justice or judge to try a case in which he has a personal interest. There certainly ought to be some provision, because the very fact that we have endeavored - and that is the distinct sense that this Convention has expressed more than once - to confine jurisdiction of these justices in civil matters to their own township - making provision providing for the case of their disability to act becomes absolutely necessary; the more so that we do not allow any second justice in any township in which the inhabitants do not exceed twelve hundred. Strike this out; if the justice is sick, all the business of his township would have to wait till he got well. So that even the object of the gentleman from Kanawha does not, I think - ought not - to include that last sentence, according to what he has expressed so far. The simple sentence beginning with "Executions" in line 98 and ending with line 100 - now, if gentlemen think that the new clause that I propose to introduce is broad enough for their purpose: "the manner of prosecuting the aforesaid actions, and of issuing summonses and executions, and of executing and making return of the same, shall be prescribed by law," so far as that sentence is concerned it may be provided for here; but I do not feel authorized to strike that out without the action of the Convention. If the gentleman's motion was confined to that, it might present the question in a fair shape. But how this question of vacancy connects itself with this I cannot see.
MR. BROWN of Kanawha. In my view in looking at the case I was not regarding that question of vacancy. I have no objections to that. The 98th, 99th and 100th lines are the objectionable lines and are the point I had in mind in moving to strike out.
MR. VAN WINKLE. I do not know that I would have any objection to strike that out if this goes in. This is permissive merely that executions issued by a justice may be executed.
MR. BROWN of Kanawha. To save time I withdraw my motion for the present, with a view of presenting it again at another time embracing the other lines.
MR. VAN WINKLE. If this amendment is thought to be full enough, I do not know that I would insist on it.
MR. WILLEY. Then the language of his additional clause would perhaps have to be modified. It refers to things going before. It says the manner of issuing "such executions."
MR. VAN WINKLE. No, sir; the issuing of summonses, executions, etc.
MR. WILLEY. That will do.
MR. VAN WINKLE. I would be willing to strike out that one sentence about executions, leaving that "in case of vacancy, etc." and insert this at the end.
THE PRESIDENT. The question is on the amendment of the gentleman from Wood.
MR. STEVENSON of Wood. I wish to make two or three remarks on the matter. I do not wish to make a leap in the dark here if I can help it. While the amendment of my colleague will probably meet the difficulty which has been in my mind at least for the last day or two, I do not know that it will. I do not myself wish to give justices and constables certain powers and define certain duties in this Constitution unless they have ample means of carrying them out. This would be holding the word of promise to the ear and breaking it to the hope. It appeared very clear to me and I think the most of this Convention in the discussion of an amendment to strike out "trespass" the other day that there is quite a large number of cases that cannot be reached by the actions to which the jurisdiction of justices is here confined, on actions of assumpsit, debt, detinue and trover. I think that matter was made very clear. It is true it was admitted that the injured party in such cases could have a redress to some extent upon a criminal process, but it was equally clear that such a process would be rarely entered in the court - at least for such things as killing a man's hog, breaking down his fences, carrying off his timber and the destruction of his crops by the hungry and ferocious stock of his neighbor. Now, sir, I had intended to offer this amendment, and I will read it now just as a matter of illustration, not that I intend to offer it if I was in order. Because if I understand the proposition now before the Convention it will mend the difficulty. What I had contemplated was to insert after "trover" in line 90 these words, "and any such other actions as may be prescribed by law."; so that it would then read: "the civil jurisdiction of a justice shall embrace all actions of assumpsit, debt, detinue, trover, and any such other actions as may be prescribed by law." If that is covered, sir, it will meet one great difficulty in my mind; because I feel so well satisfied that injustice will be done to a very large class of the best persons in the community unless some jurisdiction is given to the justices of the peace in these cases which were mentioned here the other day; and it seemed to be conceded all around that such jurisdiction was not extended to the justices of 'the peace at least in such ways as would give justice to the aggrieved party. If it is thought by the Convention that that difficulty is met by this, I certainly shall vote for it.
MR. VAN WINKLE. In my own opinion this would give the legislature the power to authorize an action for trespass and confine it to personal property.
MR. WILLEY. There is no question of that, whether the legislature ought to do it or not, we have the history of all our past legislatures.
MR. VAN WINKLE. If it was then to work badly they can take it away.
MR. WILLEY. I would just say that my friend from Wood drew out a little law in the discussion the other day touching these little trespasses. A man goes on my farm and cuts down a tree; or his stock eats up a shock or two of my wheat, or anything of that kind. I waive the tort and bring an action for the value of the property. You can get vindictive damages where the trespass is malicious. You have the additional remedy of bringing a civil action, waiving the tort and trover. Or you may get him into court as a public malefactor for having maliciously injured the property. The remedy is I think quite ample; but then if necessary the legislature can provide that these small trespasses shall be tried before justices, because it expressly says "such other jurisdiction as may be deemed expedient." That fully embraces this whole class of cases. That was one object I had in view. I am very willing to get this compromise. As I said the other day, my only objection was to clothing the justice in the country with such irresponsible authority. Gentlemen have argued all the time that the opponents of this measure were opposed to the extension of the jurisdiction. I was very much amused at my friend from Doddridge, who after he had been denounced as being opposed to the extension of the jurisdiction of justices of the peace, very modestly gets up and says that as a member of the legislature he reported the bill that extended their jurisdiction to one hundred dollars. That was not the objection. It was that you were clothing justices in the country with dangerous constitutional power beyond the control of the legislature. But that matter is settled. I am very willing that every provision shall be retained in the Constitution to give full efficiency to its township system; and if it is necessary to retain this provision in the opinion of the friends of that system - because I have not examined it - as I said I am favorably impressed with the idea of it in my general apprehension of its operation - if the friends, I say, of the township system who have considered it maturely believe that in order to secure its efficiency that provision in regard to the mode of execution that it is now designed to strike out ought to be retained, I am willing to retain it. It will be no harm, at any rate, while I think the additional provision to be added here remedies every evil; gives ample authority to make provision in the premises. The argument yesterday was that the legislature might not be favorable to the township system and be disposed to embarrass it; hence it was necessary in the opinion of the friends of that system to incorporate in the Constitution all these general provisions that would compel the legislature to make the necessary provisions to give it efficiency. If they still retain that opinion, if it is necessary to retain that provision in the Constitution in order to give that efficiency, I am willing it should remain. If not, I see no necessity for it. Because, as I have argued, I am opposed to anything in the Constitution in regard to this legislation about the jurisdiction and duties of justices of the peace. It is a matter peculiarly belonging to the legislature. Having decided otherwise, I desire to be understood as willing to implicitly submit to the sense of this body. Therefore, I want to make, as I said, the best of a bad bargain and throw all the safeguards around the justices of the peace. It has been decided that these provisions shall be retained. Let them be if the majority desire it. I am very much pleased if the Convention will allow this additional clause to be added.
MR. STEVENSON of Wood. I wish to say to my friend from Monongalia that I did not affirm the question of the law as it was made in reference to the point to which he alluded. It was very fresh in my recollection, and if I can retain everything that is said by my friends of the legal profession, I expect to be considerable of a lawyer. I recollect that this answer was made to that: that although a man would get the value of a tree that was cut down by pursuing this course, yet that would be very poor pay indeed for his loss after he had gone through the anxiety and trouble and loss of time of a trial for that purpose; but very little satisfaction, indeed, to know that his neighbor was prosecuted as a criminal.
MR. WILLEY. Is it not a dangerous power to place in the hands of any one individual on the face of the earth, the discretion of vindictive actions?
MR. STEVENSON of Wood. I do not think that provision need be left so absolute as the gentleman supposes. It would be left with the legislature as they thought best to meet the case, and I desired to let his powers be sufficient to accomplish any purpose with which the legislature might clothe him.
MR. VAN WINKLE. If we could make a special provision on the subject - if we should say he should pay double damages - the power of the legislature over the subject would be absolute; and I am prepared to say now if this can be taken as a compromise I am personally willing to strike out the words the gentleman from Kanawha now objects to. I believe the purpose that the friends of the section as it stood had in view will be accomplished. The jurisdictions of these magistrates will be confined as far as it is best to do so, and that that in the beginning was our principal object, leaving the legislation to define all about how executions shall be served, summonses issued and so on. Personally I am willing to that, especially if the matter will be taken as an attempt to settle it without any further debate.
MR. LAMB. I desire to draw the attention of the committee to another subject in regard to this clause and intimately connected with the amendment that has been offered. This clause, I take it, fixes upon us a constitutional provision with these forms of action: assumpsit, debt, detinue and trover. Those forms are put beyond the sphere of legislative action. How far if this provision prevails will the legislature be able even to regulate these forms? If we adopt those particular forms of action as a constitutional provision, how far are the legislature at liberty even to regulate them? Can they dispense with a part of the formalities which now constitute the action of trover and retain the balance? Or have they authority - ?
MR. VAN WINKLE. My friend was not here yesterday and he is not aware of amendments that were introduced when that clause was under consideration. It now reads "shall extend to." The Convention has settled all in reference to them. They are not now fairly before the Convention.
MR. LAMB. I do not see that that would relieve the matter of the difficulty I suggest. Still you use these forms of action in your Constitution. Suppose it should be deemed expedient hereafter, as other states have done where it has been found -
THE PRESIDENT. I think it would not be in order to enter upon the discussion on the propriety of retaining these forms.
MR. LAMB. The Convention is considering a provision vesting the legislature with jurisdiction to regulate the extent of jurisdiction and powers of justices of the peace. I think it is intimately connected with that portion of the amendment now under consideration.
THE PRESIDING OFFICER. But so far as the question to which the gentleman from Ohio now refers is concerned this matter is passed upon and fixed by the Convention, so that there can be no remedy in that respect without a reconsideration of the vote on the first sentence of the section.
The question was then taken on Mr. Van Winkle's amendment, and it was adopted without a division.
MR. BROWN of Kanawha. I renew the motion to strike out beginning with "Executions" in the 98th line and ending with "found" at the end of line 100. Strike out three lines.
MR. VAN WINKLE. Well, sir, I will advise those who have acted with me to assent to striking this out; that the amendment just introduced contains a provision that the legislature may regulate this; and as it contains the words "in their respective townships" our great object will be preserved. The execution is to be served in any township. It will simply provide how the constable of that township can serve it. I think our purpose is gained and objection on the other side is obviated, and we may cordially agree on striking out these three lines.
The question was taken and the amendment was agreed to.
MR. BROWN of Preston. I wish to call the attention of the Convention to the words in the 91st line, substituted this morning: "or, being a non-resident of the State has effects" within his township. I desire to make inquiry whether the word effects is a proper word to be inserted. I think not. It seems to me this jurisdiction ought to extend in case of non-residents not only to personal effects but also to real estate.
MR. VAN WINKLE. I believe that "effects" is the most ample word that can be used. It includes, I think, everything.
MR. BROWN of Preston. I was going to suggest the word "estate" which is a more comprehensive word.
MR. VAN WINKLE. Well, sir, I leave it to the legal gentlemen to say which is the better word.
Several members suggested the use of both words.
MR. BROWN of Preston. I move that the words "effects or estate" be employed.
The amendment was adopted.
MR. BROWN of Kanawha. I was not here when the forepart of this section was under consideration. I desire to amend this section in the second line (89) by inserting before "assumpsit" the word "indebitatus". The Convention have stricken out the word "trespass" very properly, and the same reason that induced that ought to induce them to insert the word indebitatus in this case. "Assumpsit" is a law term, one of those words which has its specific definition, embracing almost everything arising out of a contract. Indebitatus assumpsit is an alteration of the word "assumpsit" and always confines the party to that character of assumpsit that implies debt in which the value of a thing is in controversy. Assumpsit has a wide range within debitatus assumpsit which has no reference to debt but arises from breaches of contracts and almost every question to which contracts can reach - contracts for the sale of everything for which contract is broken and damages arise out of it. It may cover frauds and deceptions of every character and description involving the most common matters that go into the higher courts. Indebitatus assumpsit refers to that matter of controversy which is the subject of contract.
I hope, therefore, the Convention acting on the same principle that induced the action in striking out trespass will insert the word indebitatus.
MR. DERING. While I have great confidence in the gentleman who has just taken his seat, yet, sir, I fear in tampering with this first section that we have already passed upon I do not want any alterations put other than are there. I do not understand the technical forms lawyers may use. I prefer to touch that section as lightly as possible and that it may remain just as it is. I do not know the legal effects of his motion or how it would affect the whole section; but it seems to me we ought to go ahead very carefully and not limit the jurisdiction of magistrates by any motion coming from that side of the house (Laughter).
MR. BROWN of Kanawha. When gentlemen are not familiar with the law terms they ought to be careful how they use them. Those who deal with these law terms know that we have a legal definition that has received the sanction of the courts through long years, the practice through more countries than one and in every state in the Union. They ought to be very cautious indeed how they use terms that may involve them in intricacies from which jurisdiction will be wholly incompetent to extricate itself. I therefore desire that gentlemen shall study the terms that are used. I gave the definition of two terms, and I hope the gentlemen will call on the lawyers. But I did hope we had other gentlemen here who were more than lawyers conversant on this subject to define the terms they use. Because unless this Constitution defines the terms it uses the courts hereafter must understand that when the Convention used certain terms they knew what they meant. So I say it is more necessary that the word indebitatus should be inserted so as to indicate what assumpsit you intend shall be got - whether you intend to throw open the whole action of assumpsit to justices of the peace involving intricacies which gentlemen who are sticklers for the term do not comprehend, it is the more necessary that we should undertake to define the meaning.
MR. SOPER. I took some pains the other day, sir, to show the necessity of the action of trespass and I said to gentlemen who interposed objections that the legislature should have power to restrict. Now, I am opposed to the motion of the gentleman from Kanawha. He might as well move to strike out the word "assumpsit" entirely. He would attain his object, because it is precisely he knew I wish to retain this word "assumpsit," or more properly I would prefer the action of trespass on the case. But to the amendment, sir, I am opposed because they are a class of cases which ought to be determined before a magistrate embraced in this action if it is now retained. For instance if you purchase a horse of an individual, and he warrants that horse to be sound and true in harness - anything of that kind. I was remarking, sir, having a plain and familiar case, you have purchased a horse, he is warranted to be sound, good in harness, or your warranty may extend to other matters. When you get your horse you find it is not according to the contract that you have made at the time of the purchase and you have sustained damages ten, fifteen or twenty dollars if you please. Now, sir, I want the party to have the right of going before the magistrate and recovering those damages in a case of action in assumpsit. They are unliquidated damages and it is applicable to every case of contract. If you have your wagon repaired or well dug, or anything of that kind - all contracts, wherever there is a breach of contract and your damages are not large enough to authorize you to go before a court of record, you want the privilege of going before a magistrate and have it stated there. Hence, I have shortly, briefly stated wherein cases arise in the transaction of any business in which the retaining of this action would be perfectly proper, and it would be the only way in which a party could receive his remedy. I hope, therefore, that the word will stand as it is in the section.
The question was taken on the motion and it was rejected.
MR. VAN WINKLE. I would like to move the amendment that I had offered as a substitute, subject to an appeal to the circuit court of the county, to insert, "where such value in controversy exceeds twenty dollars." I offered the limit. There should be a limit and it appears to me anything under ten dollars would cost the county a great deal more to try than the whole value in controversy. I think that as we have raised the jurisdiction of magistrates there will probably be more care taken in the selection of them, or perhaps, as we will say in Preston with 32 magistrates they will be brought down to 12, that the 12 best ones will probably be chosen. I think while something more should be entrusted to the justices of the peace than under former circumstances. That is one of those questions of expediency about which I will not be tenacious, only that I think there ought to be some limit downward below which jurisdiction should not be allowed. I therefore, make the motion.
MR. WILSON. I would move to strike out "twenty" and insert "ten".
MR. VAN WINKLE. I would say "when such value in controversy."
MR. SOPER. I am opposed, sir, to the motion. I hold it to be the right of every citizen, if he considers himself aggrieved by a judicial decision, as the means of litigating it to his satisfaction he should have the privilege of doing so. I know, sir, we have had a great deal said here about the poor man, but a man may be so poor he would submit to an injury sooner than incur the expense that would far exceed what he would gain if he should go into litigation. But that is a matter I apprehend that the Convention, or legislature would have nothing to do with. It is a matter resting in the discretion of the individuals themselves. Now, sir, I have known actions brought in justices' courts for small sums and have known important principles to be settled which originated in actions for small sums in justices' courts. I recollect one now that I will mention. It arose in this way. A party placed in the hands of an officer a summons to be served. The fees for serving that summons would probably amount to 50c. It would require the constable to travel four or five miles to get his fee amounting to that sum. The officer refused to go and do it at that time. The result was the plaintiff promised to pay the officer an addition of $1.25. On the strength of that promise he went and executed the process. After the process had been executed, the plaintiff considered himself imposed on by the officer. He refused to pay him and the officer brought the suit for the $1.25. That case was litigated through three or four courts and it was determined in the court for the correction of errors in the court of New York; and this principle established that an officer whose compensation is fixed by law for services has no right under any circumstances whatever to require or take any additional compensation. That I conceive to be a very important principle and it originated in a justice's court; and if there had been such a rule as a constitutional provision as we seek here to interpose that remedy would never have been obtained. And, sir, a variety of such cases may arise. That and other reasons, sir, induce me to oppose this motion. The law in Virginia has been conflicting on this subject. I believe, recently however, the old restriction to judgments of $10.00 has been re-enacted and where the judgment is not over $10.00 the party cannot appeal. Well, now, sir, I have known instances like this where a designing constable with a pliant magistrate would so work and contrive to obtain a judgment for $9.99 which evidently was an improper judgment, for no other reason than to take advantage of the individual and prevent him from bringing his appeal into court to get a remedy. Other cases, sir, might arise; but I am opposed, as I before remarked, to restricting any individual who believes that he has a right that he shall pursue that right to the fullest extent of the law in order to have it completely settled to his satisfaction, or until he shall have used all the remedies within his power by which he must be satisfied. There is probably, if you retain this system of appeal in carrying up these actions to the circuit court where the amount of judgment is not entered beyond $10.00. I suppose there will be a few cases where an individual would incur expense, he would rather pocket the injury than to go farther. The legislature have got the power of regulating this whole matter. There is no necessity of our putting it here in the Constitution. The legislature will probably regulate it and give the party an appeal only in cases probably where the judgment of the magistrate shall exceed $20.00. Under that they will give the party a remedy by writ of certiorari, to be obtained on the event of the facts that take place before a magistrate showing what questions of law may arise in the matter be presenting that an officer be designated if he should be of opinion that there is error in the judgment below he will authorize the facts to be certified and returned to him by the magistrate and then he will pass on that question. That could be done without having witnesses there and $10.00 to the magistrate for making out his return will be full compensation.
Now the difficulty at present to getting this returned from magistrates is this. Magistrates are not in the habit of taking down the testimony, in writing. Most of them I am acquainted with cannot write very readily; the writing of a great portion of them is done by the constable. I have noticed some that could not do it, but I apprehend under the new order of things no man will be elected as magistrate unless he be a competent man in every respect, one that is perfectly competent to make every necessary entry in his docket to show the transaction before him and who will take down the testimony and return it according to the truth if it becomes necessary.
Now, sir, it will be for the legislature to determine whether they will now or hereafter provide this remedy; but I am leaving it with the legislature to act as they shall be advised according to representations from the different parts of the State from the people on this subject; but I am opposed to having this destroyed here by constitutional provision which would prevent an individual under any circumstances from carrying up his case and having it properly determined. Therefore, I hope the amendment will not prevail.
MR. STEVENSON of Wood. I wish to make a remark here that seems to me at least, a reason which appeals at present to justify the limitation to some amount below which a man cannot appeal. I suppose there is hardly any case appealed to court over the amount of $10.00, the amount now fixed by law, where it does not cost either, or probably both parties more than the whole amount at issue in the trial, so that there could be no good accomplished, it seems to me by cutting the amount down to $10.00 so far as the mere amount of money is concerned. Suppose, however, we specify another amount that a man may take an appeal for, an amount much less than $10.00. There is a poor man who has been working at something until his wages amount to three or four dollars and he sues for it. The man he sues is a wealthy man and he takes an appeal on it. The poor man is of course not in a situation to carry on the contest in court. The result is that case may be unjustly dealt with if the limit is not fixed to about $4.00 or above it. I am rather impressed to favor that amendment of the gentleman from Ritchie making the amount $10.00 instead of $20.00. I think that would probably meet the difficulties that appear to be encountered when you get above $10.00, or below it.
MR. STUART of Doddridge. I dislike very much to go into these details, but I desire the Convention shall fully understand these matters. I myself would be in favor of the right of appeal in all cases, for several reasons. One reason is, sir, that whenever a justice of the peace knows his judgment is liable to be appealed from he will give that judgment with more care. I do not care what court you take it to, a justice of the peace when he knows there is an appellate jurisdiction, he will always exercise more care in rendering up his judgments. It will beget a carefulness on the part of the magistrates if we would not give them a jurisdiction without any appeal at all. If a man is wronged, he ought to have a remedy. If a magistrate gives a judgment against me for one dollar that was contrary to law, I would feel that I was wronged and ought to have an appeal. The gentleman says this would give an advantage to the rich man over the poor. But suppose the rich man could exercise sufficient control and influence over the magistrate as to render a judgment against his poor debtor and he gives a judgment against him contrary to every principle of law, do not you see, sir, he would be just in as bad a fix as before and it seems to me a little worse, because if he had a just debt and it was appealed the party who takes the appeal would have to give security. Wherever an erroneous judgment was rendered against him, he would have no remedy and it would be lost.
These are my views. I must admit I would be for the lowest possible sum I could get. I will vote for the amendment of the gentleman from Ritchie, then against the amendment as amended.
MR. BROWN of Preston. I am in favor of fixing some definite sum from which an appeal may be taken, and I think the country has pretty well settled down to the opinion that that sum should be twenty dollars. A few years ago an appeal could be taken for any amount, and I remember the whole country was dissatisfied with the statute and it was repealed and the amount of ten dollars, which had existed before that time, was substituted. In reply to the argument of the gentleman from Doddridge, which intimates that we should not fix a sum at all, I would simply say that it is certainly very bad policy. Why, sir, in our county I knew a controversy about seven cents when that law existed and the expense to our county in determining the question for the services of the court alone amounted to ninety dollars, and the costs to a very considerable sum. So I think there should be some limit, and that limit is proposed to be inserted in the constitution, and I really cannot see any reason for that, because I believe the amendment of the gentleman from Wood gives full power to the legislature to control that question, and I see no remedy in inserting it. But if it must be inserted, I insist, sir, that we insert the amount of ten dollars.
MR. HERVEY. I agree entirely with the gentleman from Tyler. The case alluded to by the gentleman from Preston has been obviated. A man cannot walk away from a justice's docket if a case has been rendered against him without either giving security for costs or bond for his appeal. But if a man has been wronged even to the extent of a few dollars, if the party is willing to do so, where can the objection lie. He takes the whole responsibility. I should vote against any sum.
MR. DILLE. I desire to make a single remark on this subject. And I must say that I am decidely in favor if a sum be fixed in this Constitution that it shall not be less than twenty dollars. Now, I do this and from the best of motives. I have listened to the trial of a great many appeal cases. I have been connected with some and I never have seen a single appeal cause where the amount involved was less than twenty dollars, that both parties, however much they may have been wronged - however much they may feel themselves injured by the judgment of the magistrate - but what both parties came out of the court worse off than when they first appeared before the magistrate. It is upon that ground I am in favor of twenty dollars.
MR. BROWN of Kanawha. If the word "assumpsit" had been stricken out, I am not sure but I should have voted perhaps for some of these amendments for an alteration of the appeal; but since the Convention has declined either to strike out "assumpsit" or add "indebitatus" and leaves the question open for unliquidated damages to any extent; because I maintain that claims, as stated here, for one hundred dollars may involve the controversy of millions, that you can counterbalance and bring it down to get the amount of the judgment within a hundred while you litigate all outside of it; that since the question is open here to unliquidated damages I am in favor of letting parties appeal on any amount whatever that the judgment may be for; and as gentlemen have addressed themselves to this subject with reference to the security and safety of the poor debtor, I wish to put a case and see how far the debtor can be benefited by the alteration of twenty dollars to ten. Suppose one man sells another a hog for six or seven dollars and the other after while kills and eats the hog and then declines to pay for it. The other asks him to do it and he insists that he is not bound to do it for the other man sold him a hog that was not his own. The question arises for the value of the hog. Neither cares a straw about the money. The real controversy is whether the man has practised a fraud in selling that which he did not own; and the question which affects the reputation and interest and standing of the individual is the real matter at stake. The justice renders the judgment against the party, refusing to permit him to collect his money on the ground of fraud on his neighbor. I want to know if justice to the poor man would give you an appeal to test in a court where he could show the facts of the suit, involving not the mere matter of five dollars but his standing among his neighbors in the country - that which once fixed by the action of this justice's court left him no appeal and consequently no redress, and he and his children are to be branded thereafter as "hog thieves," and he cannot right himself by a tribunal that can rectify the whole matter. Is there any justice in this? Justice requires him to carry it to the limit. And that is the security of the poor man as much as of the rich - and a little more.
MR. HAGAR. One party seems to think that justice can be obtained only before a magistrate, the other that it can be got nowhere else only in the court. In reference to this appeal I will mention a case that are facts. I will not suppose them. One of my neighbors sold another a cow beast at eight dollars. It did not just please him and he turned it out and let it go home and refused to pay for it. The man of course warranted him for the eight dollars and procured a judgment. The other man had to give security, was involved in a cost of fifty dollars and finally had to pay for the cow. Another appeal I knew was for a dollar and a half, which after passing through three or four courts amounted to about sixty dollars. The judgment was confirmed in both cases. My notion is there ought to be some fixed amount from which an appeal might not be taken below it; and as the judgment of the Legislature of Virginia has fixed that sum at ten dollars, I am in favor of the amendment to the amendment.
MR. BATTELLE. I wish to ask a question of the Chair. If the amendment to the amendment, offered by the gentleman from Ritchie, should obtain, will the Convention then take a vote on the amendment as amended ?
THE PRESIDING OFFICER. Yes, sir; it will be competent if you wish to amend by inserting any other amount.
The question was submitted and Mr. Wilson's amendment to the amendment agreed to; and the question recurring on the amendment thus amended, it was adopted.
MR. VAN WINKLE. I now move the adoption of the sentence as amended.
MR. SOPER. I propose to amend by striking out the words "value in controversy" and substitute "amount claimed," in the 92nd line. Now, sir, my object is this: here is a long running account between two individuals and the balance claimed is one hundred dollars or less. The amount in controversy, I apprehend will be the amount of the accounts on the respective sides. If there are accounts amounting to one hundred dollars on each side, the amount in controversy will be two hundred dollars. I want this so that the party shall be entitled to try the amount of the existing claims between him and the defendant if they exceed one hundred dollars where he claims only a balance of that amount. But it appears to me the words "value in controversy" in the Constitution here may have a controlling influence to restrict the parties from going into court to settle if the balance sheet accounts existing between them are more than one hundreds dollars. It is with that view I shall ask to strike out the words "value in controversy" and insert "amount claimed."
MR. VAN WINKLE. The words "value in controversy" are the words used in the Constitution of the United States. They are concise and express it, and it appears to me that they cover the case spoken of by the gentleman from Tyler. It is the balance of an account, of course, that is in controversy, although the whole account may be examined. However, on the principle I have heretofore avowed, to make more certain that which is already certain but which may be in doubt, I would suggest to the gentleman that it be added, "value in controversy or amount claimed."
MR. SOPER. I am satisfied with that, sir.
MR. BROWN of Kanawha. If I understand the effect of the gentleman's amendment, by itself it would be highly proper; as it stands is to give this unlimited jurisdiction to the justices of the peace. I understand the amount in controversy is that if a man claims a thousand dollars and the other claims nine hundred or some other sum, that each entire claim is the amount in contro- versy.
MR. VAN WINKLE. "The value in controversy" is certainly the difference between them.
MR. BROWN of Kanawha. I suggest they are two separate claims and have to be tried separately.
MR. VAN WINKLE. I have no objection to the other word.
MR. BROWN of Kanawha. Your amount in controversy may always be more than the amount that is ascertained to be due. I think the amendment of the gentleman from Tyler expresses the case truly, simply, certainly and avoids all the difficulty which must inevitably arise and will be the subject of conflicting jurisdictions between the magistrates and circuit courts until the whole question shall be finally adjudicated, by the court of appeals. And then I imagine under any such a provision as this in the unlimited jurisdiction of the justice court - in other words, making your circuit courts a mere empty shell, or only an appellate tribunal. It certainly only is the intention to give the party the right to sue where he claims a hundred dollars and no more; and if his claim amounts to more than that he shall go into another court to make his offset.
MR. VAN WINKLE. I understand the gentleman from Kanawha that the amendment is proposed to cover the matter according to his view.
MR. BROWN of Kanawha. Yes, sir.
MR. VAN WINKLE. Well, if gentlemen think it makes it more explicit, I have no objection to it.
The amendment was agreed to, and the 7th section, as amended, was adopted.
The question recurred on Section 8, which was reported by the Secretary as follows:
"8. Every justice of the peace and constable shall be a conservator of the peace throughout his county, and the criminal jurisdiction of the former shall be co-extensive therewith. Criminal and peace warrants may be served by any constable thereof, under such regulations as may be prescribed by law. Every justice shall perform the duties of the former office of coroner within his township in cases of death by violence or casualty, and may if required, act as such in any part of his county. The Boards of Supervisors shall designate one or more constables of their respective counties to serve process and levy executions when the sheriff thereof is a party defendant in a suit instituted therein, and to perform the other duties of the said former office."
MR. VAN WINKLE. I wish now, if I can, to introduce, with consent of the Convention, before it comes up for amendment as it were, some clauses which I think will perfect the section and remove objections which I am led to expect from remarks made in reference to the form of the section. I will propose, at the end of the 108th line to introduce; "The powers and duties of both offices shall be defined by law;" so that it would read: "Every justice and constable shall be a conservator of the peace throughout his county, and the criminal jurisdiction of the former shall be coextensive therewith. The powers and duties of both offices shall be defined by law." That is to remove the uncertainty which gentlemen found in the previous section. It does not, I think, depart from the views of the committee who supposed the legislature would have that power. I would then be willing to strike out the 109th and 110th lines. "Criminal and peace warrants may be served by any constable thereof, under such regulations as may be prescribed by law." It is not the disposition of the committee to confine that at all, but whenever there may be a breach of the peace they may act at once, because the rights of these officers as conservators of the peace being made co-extensive with the county, the nearest constable should be called on if so provided by law.
I gave notice I intended to offer, on my own account, an amendment that justices may try and adjudicate all misdemeanors, etc. The object I may explain further when it is proper to offer it.
In line 117 I would suggest to insert by general consent, after "therein" the words "or is under any other disability." That he may serve when the sheriff is unable to act. I further intended to suggest endeavoring to dispense entirely with the duties of coroner in the consideration of what is between lines 106 and 110. Then I would propose my amendment for dispensing with the duties of the coroner. I will therefore ask to proceed to consider so much of section 8 as is included in lines 108 and 110; and I will move to insert after the words "therewith" at the end of line 108 "that the powers and duties of both offices shall be defined by law."
MR. SOPER. I would suggest, sir, the striking out the word "county" in the second line.
MR. VAN WINKLE. I am now merely trying to perfect the section by adding additional words. That amendment would come in after that.
MR. SOPER. It is a substitute for the one you proposed. Strike out the words "and the criminal jurisdiction, etc."; then I propose to strike out from "county" in line 107 to "as" in line 110 and insert "and have jurisdiction in criminal cases therein." I offer that as a substitute.
MR. VAN WINKLE. I have no objection to accept the gentleman's substitute if there is no objection elsewhere.
MR. SINSEL. I would just ask the gentleman from Wood if there was any necessity for inserting the words proposed after having amended the 7th section?
MR. VAN WINKLE. Yes, sir; that relates entirely to civil jurisdiction. This relates to criminal jurisdiction.
The amendment was agreed to.
MR. VAN WINKLE. I now offer the amendment that I indicated: "The justices of the peace may try and adjudicate all misdemeanors and breaches of the peace." I think in the regulation of the police of the county and townships this will be found a valuable provision. It is just that which exists in all the cities where there is a police. In Parkersburg, I believe, our recorder does this. I do not think they are allowed a fine over five dollars; but every breach of the peace or assault and battery, they are brought up and usually both parties get the fine. The matter is adjudicated at once and fine imposed, and in that way we keep a pretty quiet town. We have a class of population there since our road came there that makes it necessary perhaps to dispense this quick justice. I cannot see that there can be any objection to the same power being exercised by a justice in the country, as police justices in a town or city all have them, not only here but elsewhere. The certainty of punishment is a much greater argument to deter from the commission of crime than the amount of it. Speedy and certain punishment is the most effectual preventive of crime. I intend, sir, to offer another amendment as a separate and independent section here, after we get through with this one, allowing a jury in civil cases where the amount exceeds a certain sum and also a jury in any cases of this kind where the penalty is imprisonment; but for these slight offences, breaches of the peace, which lead always to a greater quarrel afterwards is not promptly suppressed, to bring them up and punish them at once, to prevent all the great expense of indictments of grand juries and so on, where the offense is trifling. We appropriate these fines in our town to the laying of curbstone, and our papers announce that such a gentleman was taken up and fined so many yards of curbstone. We have a very quiet and peaceable town. We have a regular police force of some four, I believe, and frequently on Saturday nights the force is increased. Men come into town frequently and get intoxicated and then into a quarrel. Well, if you are to wait for the slow process of grand jury they may quarrel and fight fifty times again before you reach them. But we find by this summary mode of disposing of them that they are very careful when they come into town and behave themselves.
Why not have the means of enforcing the same state of good order through the townships and counties? It strikes me it is desirable; and if it is known that punishment is sure to follow breach of the peace that public opinion will sustain the justices of the peace in inflicting it, I think there will be less of them by a great deal, less of them very soon. I think that perhaps what is needed in order to produce a better of observance of order is a more speedy punishment. Now a justice can take these men up and bind them over to keep the peace. That amounts to very little. But the fine following the offence quickly will be, I think, an effectual safeguard. There may be other things besides fighting. We have had to punish several times in that town for indecent exhibitions of the person, and many other petty misdemeanors such as that the fine would not exceed the amount of five dollars, and imprisonment thirty days. It seems to me it could be disposed of on sight.
MR. WILLEY. I have no objection that I know of to expediting the punishment of offenders of this class. The objection I have is to encumbering the Constitution with criminal laws and civil legislation. We give justices of the peace the necessary criminal power deemed proper in the estimation of the legislature for the security of peace and good order. This amendment, following right on the heels of that clause of the Constitution proposes to take from the legislature its authority to regulate certain functions of the justices. I think we had better leave it to the legislature, sir.
MR. VAN WINKLE. I will accept the gentleman's suggestion and withdraw it, sir, hoping the legislature will do something of the kind.
MR. SOPER. I hope it will extend it to the infliction of a fine of fifty dollars and six months imprisonment in the county jail.
MR. VAN WINKLE. I suppose it will be agreeable for me to ask to have the final vote from the beginning of the section down to the amendment of the gentleman from Tyler. I move that so much of the section as precedes the 111th line be adopted.
MR. BROWN of Kanawha. I confess the abandonment of that proposition strikes me as very singular. The Convention has shown a very determined purpose in fixing in the Constitution the civil jurisdiction of the justices as to a few dollars; but when the public weal comes into question, securing it against the depredations of those who regard no law and pay no fines by summary compensation and justice to secure the public, why, it is a matter to be disposed of in the hands of the legislature. The more important seems to be regarded as the most trifling. I cannot conceive why it is that such a strange pertinacity exists of withholding from the legislature the power of regulating the civil jurisdiction. Now, I think if there is anything in this that commends itself to my favor it was that view which seemed to strike at the public good by summary punishments on these petty offences where the offender often belongs to that vagabond population which will regard no law. But this is all left to the legislature, and if they do not provide for it the public will be the sufferers.
MR. VAN WINKLE. I think the gentleman from Kanawha did not put on his spectacles. The view of the committee has been, in the first place, to make the criminal jurisdiction of these officers co-extensive with the county. Many of these breaches of the peace occur where there are large gatherings of the people drawn together for some object of interest. There may be justices of the peace and constables present, and I think it is highly proper that they should have the power to exercise their authority in the suppression of things of this kind wherever they be. Another reason is - and perhaps the most intelligent, that a great deal of this criminal jurisdiction is common law; and the legislature, very possibly, in defining the criminal powers of justices of the peace would use some large expression such as "has been formerly exercised by them." It would be almost impossible to codify, even by a legislature where they are allowed to use as many words as possible, the criminal law. And therefore the objection of the gentleman does not apply as between the two propositions. The civil jurisdiction is one that can be limited and regulated; the criminal jurisdiction is one that has been founded on a practice of our ancestors for centuries, and, like our common law, is supposed to be unwritten. I think, therefore, the gentleman may see that there is abundant reason for this discrimination.
MR. BROWN of Kanawha. I have been unable to see the distinction. I understand that actions of debt, detinue and trover are common-law actions that have been defined and have been known as common-law for a thousand years.
THE PRESIDENT. The question is on the adoption of all the sentence.
The question was put and the motion adopted.
MR. VAN WINKLE. I now, sir, move the adoption of the remainder of this section. The object is to do away entirely with the office of coroner. The functions of a coroner may be briefly described as relating in the first place to persons found dead and dying either from casualty or in an unknown manner. By some ancient provision of law, in case of the disability of the sheriff to act, the coroner was the party to serve the process on the sheriff. It has been used very extensively of late years when the sheriff and his sureties were sued and where execution was issued against him. Of course, a sheriff could not serve a process on himself or collect an execution fee on himself. It has been a distinct office, has, I believe, been lately elected or appointed. There has been a distinct office of one or more in each county, and it is thought that the continuance of such office is useless. It is certainly useless in reference to the finding of dead bodies, because if there is but one in a county; and it is expensive for it is a great while before you can get him. The nearest justice of the peace can be called on to exercise all of the duties of the coroner in that respect. Now the question remains, what will you do with this process in which the sheriff has such disability he cannot serve it? Would it be proper in that case that his own deputies should act? My impression is that they are too much a part of the sheriff; their office a part of the sheriff's office, that they would not be the proper persons to execute the processes in such cases. It is therefore proposed that the boards of supervisors for each county would be better able to make the appointment of a person for this duty than the legislature would; that the legislature should designate one or more constables to serve process when the sheriff is under any disability. I had introduced here in the 11th line, and I will ask that it be considered as in the following: "When the sheriff thereof is a party defendant in a suit instituted therein or is under any other disability." There are certain other functions, I can hardly call to mind at the moment what they are, that have heretofore fallen to the coroner besides that of returning a verdict in the case of persons found dead. But the intention is that the board of supervisors shall designate one or more constables to perform these duties. It is very rarely that occasion for them arises; and it did not seem to the committee to be necessary that there should be a distinct officer for the performance of any of these functions. That is the virtual object of this new section. If it reaches the case, I hope it may be adopted by the Convention.
THE PRESIDENT. Does the gentleman indicate any amendment?
MR. VAN WINKLE. I ask by general consent that the words "or under any other disability" be admitted.
The admission of the words was accepted, and the question recurred on the remainder of the section.
MR. WILLEY. I understand the motion of the gentleman from Wood to be to adopt, with this modification which has been inserted the whole remainder of this section from line 111 to the end. I really cannot see any necessity for the office of coroner at all, or for any body to act as such. It has always appeared to me to an unnecessary kind of investigation for nothing. I have no particular objection if the Convention see fit to retain it. I would just as willingly see nothing said about it whatever. I never knew it to amount to anything only the cost of the coroner and jury.
MR. STEVENSON of Wood. Mr. President, I think there ought to be an amendment in line 111 of this part of the section. I move to amend by striking out in that line the words "former office of". If we retain this expression, it would confine the justice of the peace who acts as coroner to the precise limits described in his limits which would govern the action of the old coroner, or the coroner under the law as it previously existed regulating that office. I would prefer leaving that matter, as many others have been left, with the legislature to change the duties to some extent which belonged to the person acting as coroner under the old law. If you ordain this phrase, that will be the state of the case. If you strike it out, then the justice will be required to perform whatever duties, either modified or added to, that were exercised by the coroner under the old law. I think it would be better in that respect. It would not cripple the office if it became a necessity at any time to change the duties of the person acting as coroner.
The motion was agreed to, and the question recurred on the remainder of the section.
MR. WILLEY. I move to strike out all from the word "every" in line 111 to "county" in line 114, inclusive; and also all after the word "therein."
The appointed hour having arrived, the Convention took a recess.
The Convention re-assembled at the appointed hour.
THE PRESIDENT. When the Convention took a recess, the motion before it was to strike out the coroner, lines 111, 112, 113 and "county" in line 114.
MR. SMITH. I wish to sustain, that proposition to strike out. I am myself unable to see at this day any necessity for a coroner. It is a very ancient English office. I believe we can trace it back in England as far as we can the sheriff. The extent of his jurisdiction is very much diminished, being originally an office of a good deal of reputation in its origin; afterwards became of rather less repute. Its principal object was to ascertain the deaths that occurred by violence. Now, in England, wherever a weapon of any sort was used so as to produce death it was in law a "deodan," and went to the king. If a wagon ran over a man's head and killed him, the wagon was forfeited to the king. If an offense on the person produced death, there was a forfeiture of the goods of the felon. If a man killed himself, he was denied Christian burial. He could not be buried in a graveyard where Christian men were buried, but was buried in cross-roads, and a stake driven through his body. When it became necessary in this early time to ascertain if there was a deodan forfeited to the crown, or whether there was a forfeiture of an estate of a party that had produced the death of another, or whether there was a suicide who was to be denied Christian burial, it was necessary to have some one who should have the legal authority to ascertain these things and carry out the forfeitures required by these ancient usages and laws. The office of coroner was instituted for this purpose. That was its jurisdiction. I believe originally they had jurisdiction of waste property carried off by water at flood-tide on the ocean; but that is all superceded in England, and these forfeitures have been superceded; but I believe even to this day a man who kills himself is not entitled to be buried in a Christian graveyard. I recollect some years ago where Lord Castlereagh cut his own throat and there was a great effort to conceal it. It was supposed they made him out a maniac and therefore defended him against the consequences of his own act. There was a good deal of excitement in relation to it when I was a boy.
But no doubt there is nothing of importance left for the coroner of today. We have no forfeitures to ascertain; we have no question of "deodan" to settle; no question of Christian burial; nothing of that sort. All that he does is to go and sit on the body of a dead man, and if he can to tell how he was killed and report it, and there is an end of it. What good results, what benefit, to the community? Why, sir, a magistrate can call a witness before him and examine and see the cause of the death or offense if there has been one. Every man in the community is in some sense a conservator of the peace, for it is the political duty of every man in this country, where an offense is committed to investigate that offense and bring the offender to punishment. Well, now, cannot the magistrate do it just as well? I believe the coroner was in some respects also a conservator of the peace; the sheriff is, the constable is; the magistrate also is a conservator of the peace. He is required to inquire who killed the man, and that is the object of the coroner - the whole object; no other purpose in it. It will do very well for a man that likes to pick up a few pence as a lounger and do an easy work. He can when a man dies suddenly go out into the country and get up a jury and take them to the body and inquire over it. The fee is two or three dollars, and thus he makes a crust for himself. I believe there is no law for the case anywhere. I suppose the finding of an inquest would be equivalent to an affidavit against the party whom they may have charged with the offense. It might be taken up on report of the jury and tried - the person might. But these very men who are examined before the jury can be called in before the magistrate to prove the same thing. I suppose no inquisition can be had in this country where everything is not paid for. The constable, the witnesses, the jury, the coroner all have fees. I suppose no inquisition could be had for less than thirty dollars. We now claim to be establishing a government for economy. Economy is the order of the day; and here you are instituting an office utterly worthless in my opinion, which will be resorted to merely for the purpose of making a little money, taking it off the public and doing them no service. When the question came up it was ignored by the present Constitution of Virginia and no reference made to it. There is no provision made for it. There was a law, I believe, existing in the Code, which went into it as far back as July, 1850, in which there was some provision about the governor appointing a coroner but this Constitution was enacted after passage of that law some year or more after this Code was framed; and this constitution having ignored the office, it is a question whether it is repealed or a law. I have always been under the impression that there was no coroner in this state nor any authority to make a coroner, for the Constitution designates the county officers, and coroner is omitted. Now, I do not undertake to say this law was continued or that it was repealed. But I am strongly of the belief that the office does not exist, and cannot constitutionally exist at the present time under our existing Constitution.
MR. DERING. Suppose the sheriff should die?
MR. SMITH. You have said the board of supervisors shall make a sheriff to perform the duties when the sheriff is under disability.
MR. VAN WINKLE. That is proposed to be stricken out as well as the other.
MR. SMITH. Well, I do not think it ought to be stricken out. Why, a constable may execute the office of sheriff by law. He has the power of executing the office of sheriff. That office exists, and by making a coroner you multiply offices unnecessarily, and with every office you add to the government, you add expense. Now, I go for economy, too - a just and proper economy. I am for the economy where the office is useless. Now, I should like to hear from any one any reason there may be to create the office of coroner, or why a magistrate cannot act as coroner. Why cannot the magistrate call the witnesses that he expects to have before him and issue his warrant? We do not want to look at the body. We know it is dead. All that was valuable of it is extinct; it only wants a decent burial; and it matters not whether he was a Christian or had been guilty of any unchristian act or not. He is to be buried in a Christian graveyard. These things are no longer controlled by any barbarous law. Why should we continue an office that sprung up in a barbarous age to meet conditions that no longer exist? I see no necessity for the office, and I would therefore sustain the motion of the gentleman from Monongalia to strike that out.
MR. POMEROY. I do not know what the prevailing custom is in the state but we have a coroner in our county and we find it very inconvenient as at present regulated. He lives in one extreme part of the county. If a person is found dead along the banks of the river, which very frequently occurs, we have to go to the other extreme part of the county to get this coroner to attend, and it creates a great deal of delay. This provision of the committee was not to have a different officer at all but just let the magistrate act when any case of this kind occurs. What is to be done with one of these bodies that is perhaps a mile or two from any house? Who is to attend to the burial of it? If there is not some person authorized to go there and take sufficient help at least for the burial? Who is to see that this man is taken to a Christian graveyard?
MR. SMITH. In our county the overseers of the poor attend to all things of that sort. It is their duty to do so.
MR. POMEROY. We have never considered it in our county because we have a coroner; and we propose to give these duties to the justice. I cannot see how it will add to the number of officers. It diminishes the offices. It simply says the justices of the peace shall perform these duties, which may as well be left to the justices as to any other set of men. I have no idea the overseers of the poor do it with mere authority. I do not see but the cost would be as much in one case as in another.
MR. SMITH. The burial of a dead man, so far as I know, is no part of the jurisdiction of a coroner. His object is to ascertain how he came to his death, not to bury him. That devolves upon others; and although the coroner may bury the dead, it is an extra-judical act.
MR. VAN WINKLE. They always do it in our county.
MR. POMEROY. I always understood the duty of the coroner was to examine the dead man if there was funds sufficient to defray the expenses and gave all the information necessary and also attended to the burial before they left the ground - either attended to it themselves or took measures to have it attended to in a proper manner. Sometimes a man is drowned on this river, has funds sufficient to defray expenses and something over. He keeps that in his hands till called for; sometimes without any fees; then of course, the expense of his burial ought to be paid. I do not think the Convention ought to strike out.
MR. SMITH. There is one remark that I will make that I intended to make when I was up before. Not to be charged with making two speeches, I will call it an appendix to my speech. I have practised law forty years. I have been actively engaged in civil and criminal practice; and in that whole period I have never known an inquest of a jury brought into court, or any use whatever made by it in case of a coroner; and I think I may challenge the experience of the gentleman of the bar to attest the truth of what I say. I have asked several and there is no one has ever known of any use made of it or that it ever had any use other than to furnish snug little fees to a man who had nothing else to do but take some money out of the county treasury.
MR. WILLEY. I am not very particular about this office myself although I made the motion. I did it more from the fact I was desirous of getting rid of what seemed to be an unnecessary office. No, sir, the great tendency of modern times and of modern governments is the multiplication of little petty unnecessary offices. Multiply one after another, and they all have to be paid, until they breed in the body politic like the locust until every green thing in the commonwealth has been consumed by the multiplication of offices. I would say to the gentleman from Logan that in all my experience as a lawyer - not very extended, indeed - I have never seen a solitary instance in which the administration of public justice, criminal or civil, or the interests of the community in any shape or form. were in the least degree benefited by the operation of this office of coroner. It is quite common to have three or four or five casualties a year; the coroner is called to sit on the dead bodies, as it is said, and he sometimes makes very amusing reports as to the means by which the deceased came to his death; and that is about the only benefit I ever knew to be derived from the office - some good jokes, some fine specimens of grammar and rhetoric in the coroners' reports circulated through the public prints. I have never known the development of any fact that was of any value to the community whatever within the range of my experience - which I acknowledge has not been very great. When a casualty does occur and the coroner makes an investigation, gets a jury to sit on the dead body, examines witnesses, calls a physician and reduces the matter to record and makes his report, the only result is an expense to the public of $20 to $30. This is paid and that is the end of it. It is true that there ought to be some means by which a body that is found without friends in a community should be taken into custody and Christian burial provided in a decent manner. But are we, a Christian community, driven to the necessity of establishing a constitutional officer in order that the bodies of unfortunate men in a Christian community may find some one that shall give him a decent burial? Sir, it is a reproach on our age and our Christianity that there should be any such necessity. Where will you find authority to do it? In every Christian man's bosom and heart, and arm if need be. But then, sir, it is proper that in all such cases if necessary to defray the expenses of Christian burial that an account should be made out and brought properly to the notice of the public and the proper expenses should be paid. I do not think it is necessary to create an additional office for any such purpose as that; and what other purpose will be answered by the creation of it I have never been able to see. The main reason that induced me to offer this proposition was hostility to this growing evil of the multiplication of unnecessary petty offices in every county. We ought to avoid it. Let us show to the states around us that we have a little superior wisdom in our northwestern Virginia. Why lodge all this amazing amount of multiplied officers on the community, like a swarm of hungry flies preying on the life-blood of the body?
MR. VAN WINKLE. I think the joke on the gentleman from Monongalia is about as good as some of those he has derived from reports of the coroners. The committee have been actuated by a very sincere desire to get rid of the office of coroner; but now it appears that we created him and the Convention is advised to get rid of him. Our object was by placing those duties on existing officers to get rid of that as a separate office. I hope the gentleman from Monongalia will accept the suggestion of the gentleman from Logan and retain the words providing who shall execute process.
MR. WILLEY. I do not move to strike out any more than that.
MR. VAN WINKLE. Oh, I thought you moved to strike out all. It might very well be left to the legislature to appoint some one, to discharge those duties; but I do not think gentlemen have got hold of the right end of the office. One half of my life had been spent in large cities; and where, as the Irish magistrate said, sometimes every morning was the harbinger of some atrocity the night before dead bodies were found in the alleys or floating in the river. Now, all of a coroner's duties in reference to a body so found is not to bury it, although that may be a consequence, and is perhaps simply a custom that has grown up. I know that the coffin with us always goes along and it is paid for from the county treasury. Or if money is found, it is passed into the hands of some officer to meet the expense. The object is this, that the body shall not be put into the ground until an examination has been made of it; until the evidence furnished by the state of the body itself as to whether violence has been committed has been examined and recorded and such other evidence brought out as pertains to it. I do not know that it falls within the ordinary duties of justices of the peace until some complaint or allegation of a supposed murder has been laid before him to proceed in the business. It is true that an active magistrate hearing a body had been found, or certain persons were suspected of a murder, there would be enough to induce him to issue a warrant on application if he did not do it of his own accord. I understand it to be the object that no dead body found under such circumstances leading to the suspicion of violence shall be interred until it has been thoroughly examined. Generally a physician is present and the evidence is taken and the verdict of the jury pronounced as to whether there was violence or not. Then, of course, the body is put out of the way.
I believe the matter may as well perhaps be left to the legislature to impose the duties on some existing officer if they think proper. I was under the impression the office was still in existence. It seems the functions are still exercised, and it was with a view of neither increasing nor diminishing the number of officers that the committee introduced this section. The amendment proposing to strike out all that relates to coroner should not include the words "and to perform the other duties of the said former office."
MR. WILLEY. I never moved to interfere with it.
MR. VAN WINKLE. But the subsequent words I have quoted had better not come out.
MR. WILLEY. It will be so considered as my amendment.
The vote was taken and Mr. Willey's motion to strike out the coroner was agreed to; and on motion of Mr. Van Winkle the remainder of the section was adopted.
The Secretary reported the last section of the report as follows:
"9. No county hereafter erected shall have an area of less than four hundred and fifty square miles, and no county shall be reduced to less than the same area, or its white population to a number less than four thousand, by taking territory therefrom to form a new county. The board of supervisors may alter the bounds of a township of their county, or erect new townships therein, with the consent of a majority of the votes of each township interested, assembled in stated township meeting, or in a meeting duly called for the purpose; but the area of no township shall be thereby reduced below the limit mentioned in the first section of this article, unless the number of the white population remaining therein shall exceed one thousand."
MR. VAN WINKLE. The first sentence of this section has already been acted on in connection with the legislative report. The Convention will remember I stated then, or it was stated, that there was a similar provision in this report, but the Convention went on and acted on it; and this, therefore, I think, we necessarily pass by. It is already enacted.
I ask to pass it by, I rather wanted to bring it to the notice of the Convention. When the remaining part of it was before read by the Clerk in consequence of the alterations made in the first section, an alteration becomes necessary in the language at the close of this section. Commencing with the 128th line, strike out all that follows and insert "subject to the provisions of the 1st section of this article." It will then read:
"The board of supervisors may alter the bounds of a township of their county, or erect new townships therein, with the consent of a majority of the votes of each township interested assembled in stated township meeting, or in a meeting duly called for the purpose, subject to the provisions of the first section of this article."
I suppose that will be accepted as an amendment by the committee. Then the question will recur on the adoption of the section as modified.
There being no objection this modification was accepted, and the question recurred on the section as modified; and the second sentence, as amended, was adopted.
MR. VAN WINKLE. Before taking the vote on the whole, I now move that it may be simply passed by in order that an additional section, including the provision in reference to incorporated cities and towns can be offered. I therefore ask that instead of being recommitted the report be laid aside for the present.
MR. HALL of Marion. I would beg to ask a question before the motion is put. As mentioned by the gentleman from Wood, we in another report passed on the question of the formation of new counties - the legislative report, I believe - which is the subject of the first sentence of the 9th section.
THE PRESIDENT. That has not been acted on here, and the object is to pass it by for the present.
MR. HALL of Marion. I wish whenever it may be in order to propose an amendment to the provision whether here or elsewhere. It occurred to me where we come upon it in this report it would be competent to introduce any modification or amendment which I should propose, which if inconconsistent with the provision adopted in the legislative report would be arranged by the Committee on Revision.
MR. VAN WINKLE. The legislative report was only postponed temporarily; a new report has come in and it will be taken up again and then the gentleman will have his opportunity there.
MR. HALL of Marion. I desired before it was finally disposed of to be permitted to submit a modification and an opportunity to be heard upon it. It is suggested that it would be more pertinent to act on that matter on the report on the legislative department, and therefore I will not press it now.
The postponement of further consideration of the report on county organization was agreed to.
MR. BATTELLE. I desire, Mr. President, in behalf of the committee, to submit the first report of the Committee on Education, with request that it be laid on the table and printed.
Following is the report as presented:
The Committee on Education respectfully recommend that the following provisions be inserted in the Constitution: G. Battelle, Chairman.
"1. All money, being the proceeds of forfeited, waste and unappropriated lands; all grants, devises or bequests that may be made to this State for the purposes of education, or where the purpose of such grants, devises or bequests are not specified; the revenues accruing from any stock owned by this State in any bank or other corporation, or the proceeds of the sale of such stock; any sums due this State from any other state on account of educational purposes; the proceeds of the estates of all deceased persons that may have died without leaving a will or heir; the proceeds of any taxes that are now, or that may hereafter be, levied on the property or revenues of any corporation; and all monies that may be paid as an equivalent for exemption from military duty, shall be set apart as a separate fund, to be called the School Fund, and invested under such regulations as may be prescribed by law, in the interest bearing securities of the United States, or of this State; and the annual increase thereof shall be sacredly devoted and applied to the support of free schools throughout the State, and to no other purpose whatever. But any portion of said increase remaining unexpended at the close of a fiscal year, shall be added to, and remain a part of, the capital of the School fund.
"2. The legislature shall provide, by all suitable means, for the establishment, within three years from the adoption of this Constitution, of a thorough and efficient system of free schools. They shall annually appropriate for the support of such schools the increase from the invested school fund; the clear proceeds of all forfeitures, recoveries, confiscations, and fines accruing to this State under the laws thereof, not less than one-half of the amount derived from the State capitation tax, and such an additional sum derived from taxation on property as shall, with the sums raised for school purposes in the several townships, cities and towns, by the proper authorities thereof, be sufficient to provide primary instruction in free schools, during at least three months in each year, to the children, between the ages of six and twenty-one years, of all the citizens of this State.
"3. Provision shall be made by law for distributing the money annually appropriated by the legislature for the support of schools, among the several counties, in proportion to their respective numbers of white population; and for distributing the amount so received by each county, among the several townships, cities and towns thereof, in proportion to the sums of money levied by each for free school purposes. But no part of the money appropriated by the legislature for the support of free schools shall be used for the erection or repair of school houses.
"4. Each township, city and town shall be required by law to raise annually, by tax on persons and property, for the support of free schools therein, a sum not less than one-half the amount received by such township, city or town respectively, for school purposes, from the annual appropriation by the legislature, a part or the whole of which tax may be applied to the erection and repair of school houses. Any township, city or town failing to raise such annual tax, or any school district failing to maintain a free school therein during at least three months in each year, shall receive no part of the school appropriation from the State for the year during which such failure occurs.
"6. Provision shall be made by law for the election, powers, duties and compensation of a general superintendent of free schools for the State, whose term of office shall be the same as that of the governor; and for a county superintendent for each county, and for the election, in the several townships, by the people, of such officers, not specified in the Constitution, as may be necessary to carry out the objects of this article; and for the organization, whenever it may be deemed expedient to do so, of a State Board of Public Instruction.
"6. The legislature shall foster and encourage moral, intellectual, scientific and agricultural improvement; they shall make suitable provision for the establishment and maintenance of institutes for the blind, mute and insane; and whenever it may be practicable to do so, for the organization of such other institutions of learning as the best interests of general education in the State may demand."
MR. BATTELLE. I would state just this, that the report, I believe, embodies the matured sentiments of the committee except in so far as it may need some mere verbal changes, or any changes in principle, which may be rendered necessary by the action of the Convention on other reports, and more especially in the Report on County Organization.
MR. BROWN of Preston. I move the Convention take up the third report of the legislative committee.
MR. VAN WINKLE. I would suggest that some other report be taken up. This second report in printed form was only handed in to us this morning. I have been so engaged I have not had time to examine it. I presume the only question remaining is the apportionment. If it would be the pleasure of the Convention to take up, for instance, the report of the Committee on the Executive, or that on the Judiciary, it would give us a little time to look a little further into this apportionment. There is a report of the Committee on Taxation. It is a short one. The executive report could soon be disposed of.
MR. BROWN of Preston. I certainly do not desire to press this report on the Convention; and in view of the fact that the gentleman has not examined it, I withdraw the motion.
THE PRESIDENT. The Chair would suggest that the chairman of the judiciary committee is here and is not likely to stay with us very long. His report might be taken up as a matter of courtesy.
MR. WILLEY. I believe the acting chairman of the committee it not here.
MR. VAN WINKLE. I would suggest that the gentleman from Kanawha who is the acting chairman, has resigned his seat in the legislature to take a vacation on the 24th, and the courtesy which we intended to show to the gentleman from Monongalia will be in fact as he intends to leave in the morning; and the courtesy could not be shown the gentleman from Kanawha if we could defer it until the 24th when he could be here. I would ask, then, if the members of the executive committee are present. I believe the chairman is absent, if there would be any objection to taking up that report. Probably we could finish that by the 24th when the gentleman from Kanawha would be at liberty. I apprehend the gentleman from Marshall must be detained by the water.
MR. STEVENSON of Wood. I would state as a member of the executive committee that I have, of course, no objections myself, though I believe I would prefer if the chairman of the committee were present. Why not take up the report of the Committee on Finance and Taxation?
MR. PAXTON. In regard to that report, I believe it stands sixth in order, and there was no expectation on my part and I suppose not by the committee generally that it would come up at this time. I have not considered it at all for several days in view of the probability that it would not come up for a week. I should prefer, therefore, that that report should not come up.
MR. HALL of Marion. Is there a motion to take up any particular report? I move we now take up the report of the judiciary committee. I desire very much to have the benefit of the counsel of the gentleman from Monongalia as long as we can.
The motion was agreed to and the judiciary report taken up.
MR. WILLEY. I had the honor and pleasure of acting with this committee until I left for Washington, at which time we had progressed so far with our report that it was completed with the exception of arranging the circuits. The boundaries of the State had not then, or until about that time, been definitely determined upon. I have not had time since my return to look into the arrangement of these circuits. I do not know that they would satisfy my views of what would be proper exactly.
MR. VAN WINKLE. With permission of the gentleman, I will move that part which relates to circuits be passed by for the present. I think every gentleman would desire to know what these circuits are.
MR. WILLEY. I move to take up for consideration so much of the first section as has reference to the number and character of the courts.
MR. VAN WINKLE. The discussion by sentences has promoted the business of the Convention. I would suggest we pursue the same course in reference to the judiciary.
The Secretary reported section 1 as follows:
"1. There shall be a Supreme Court of Appeals and circuit courts. The jurisdiction of these courts, and of the judges, thereof, except so far as the same is conferred by this Constitution, shall be prescribed by law."
MR. WILLEY. I move the adoption of the first sentence.
MR. LAMB. I would like an explanation of the operation of this first sentence. Is it intended that the judiciary of the State shall be confined to the courts which are named here? Will the legislature have authority to establish other courts of inferior jurisdiction? Is this provision to cover the establishment of a probate court or court of any kind within the city of Wheeling; or is the legislature to be confined to the two kinds of courts mentioned here?
MR. WILLEY. The design of the committee was that these should be all the courts.
I have nothing to say in regard to this first sentence. It submits a distinct proposition where the whole judicial power, so far as courts are concerned shall be vested in a Supreme Court of Appeals and circuit courts. The idea is to dispense wholly with the county courts and every other sort of court in the true sense of the term except the Supreme Court of Appeals and circuit courts.
MR. LAMB. If the judiciary committee will compare the language that was adopted here with that which exists in other states, they will find it does not express perhaps what they intended. In almost every state the provision is that the judicial power of the state shall be vested in certain courts, which are designated. Where that form of expression is used there can be no doubt about the construction of it. But a different form is adopted here which simply prescribes that two certain courts shall be created. It would seem to me that this leaves it within the power of the legislature to create other courts. If the legislature provide for a Supreme Court of Appeals and for circuit courts as they are here designated, the provision of this Constitution is fully complied with. They may go on under their general legislative power and establish other courts. The article 6 adopted here is derived from the present Constitution of the State of Virginia. I had always supposed that the difference of expression between that constitution and the constitutions of other states, and the Constitution of the United States, was adopted for the express purpose of having a different construction. Where the constitutions prescribed that the power should be vested, it necessarily carried with it the construction that no courts could be created but those there named. A different phraseology was adopted here for the purpose of bearing a different construction. Such would give to the article as it stands now - that it would not prevent the legislature from establishing other courts. Full obedience on the part of the legislature to that clause would require them to establish the supreme court and circuit courts; and it would be no violation of the clause if they established other courts, and the full legislative power with which we have vested them would authorize them to do so. Nor do I think it would be improper to vest this authority in the legislature. It may become actually necessary; it certainly will be proper in certain stages of the case that a special court may be established for a special district; as, for instance, a special criminal court for the city of Wheeling; and I think the legislature ought to retain that power. Whether the committee have considered that matter in this view or not I do not know. The inquiry is made for the purpose of ascertaining. Construing the sentence as I do, I am satisfied with it as it stands.
MR. WILLEY. So far, Mr. President, as the alterations are concerned, the difficulty of the gentleman from Ohio may be provided for by the operation of the provision similar to that existing in our present Constitution. It is there provided that the general assembly may vest such jurisdiction as shall be deemed necessary in corporation courts and in the magistrates who may belong to the corporate body. Some provision of that kind may be added; but it seemed to the committee that the jurisdiction might clothe the circuit courts, might clothe the corporate courts. They are designed to be covered by any judiciary bill, which would embrace cities within the circuits. The general jurisdiction properly belonging to the courts might be exercised by the judges of the circuit courts. My recollection is that the committee designed that there should be no other courts but the Supreme Court of Appeals and the circuit courts, and they followed the language of our existing Constitution precisely, leaving out the intermediate court of appeals for which we thought there was no necessity in this small State.
MR. LAMB. What clauses of the Constitution do you refer to?
MR. WILLEY. I refer to the very first clause of the judiciary department. I refer to art. 6 under the head of "Judiciary Department."
MR. LAMB. The clause that ought to authorize the legislature to establish corporation courts.
MR. WILLEY. It is the language of the Constitution entirely, under the head "Of Corporation Courts and Officers."
MR. LAMB. Oh, yes.
MR. WILLEY. We have no sort of objection if it suits the taste or wishes of the gentleman to make it more certain. I think it is sufficiently certain now. By using "The judicial power of the commonwealth shall be vested in a Supreme Court of Appeals and circuit courts" that would exclude corporation courts.
MR. LAMB. I want the legislature to have that power if it should be found necessary.
MR. WILLEY. Then you would have to make a special reservation, an exception.
MR. LAMB. Yes.
Would the chairman of the committee have any objection to adding at the end of the section the words; in the present Constitution, "The legislature may vest such jurisdiction as shall be deemed necessary in corporation courts?"
MR. WILLEY. Not in the least, sir, so far as I am individually concerned.
MR. VAN WINKLE. That is only bringing the county courts into existence again, to which I have decided objection. If the gentleman wants Wheeling provided for, let him offer an amendment making an exception in favor of Wheeling. I take it there may be a necessity in order to relieve the circuit, of establishing a separate criminal court; but I am not willing to leave the whole thing open to the legislature to establish what corporation courts they please. Just as sure as can be, we will have the county court, county pleas, or some other name. The proper way would be to offer such an amendment as he wishes.
MR. LAMB. Has the gentleman observed what the amendment was - what the suggestion was? Or, in his terror and apprehension in regard to the danger of bringing back county courts, does he not entirely misread in regard to the character of the suggestion? It was nothing more than to allow the legislature to establish corporation courts. Now, how a clause of that kind could by any possibility lead to bringing back the county courts, I do not know. "Corporations courts." - The words have a different meaning. They do not include county courts. So far as the provision would have any effect at all, it would be to render more forcible the exclusion of county courts. I think the gentleman need not be at all apprehensive of county courts being brought back under those terms. I did not intend to include the balance of this clause in the present Constitution under which county courts might be brought in; but I thought I had suggested it in such a way as to exclude any provision of that sort. I am not favorable to county courts. I do not want, at least by an evasion, to get them back. If I wanted to have county courts, I would put authority and provision so plain that it could not be mistaken. I would propose an amendment, but I understand the chairman of the committee would have no objection at all to the proposition, and it might therefore be considered as incorporated in the original report.
MR. VAN WINKLE. I object, sir.
MR. LAMB. Then I shall move the amendment as a matter of course.
MR. SMITH. I would suggest to the gentleman whether it might not be better to reserve that amendment to the close and adopt it at the end of the judiciary provisions. Unless this Constitution is to prohibit the legislature from making corporation courts. I am decidedly in favor of it. The gentleman says there is but one place where a corporation court is needed - this city. I think Parkersburg is aspiring to that position.
MR. VAN WINKLE. Not yet, under the law.
MR. SMITH. She is advancing towards it and I hope will rise to the dignity of a city after a while; and I think if our new State progresses as I hope it may do, I expect not long hence to my own town called the city of Charleston, and I suppose almost every man in the Convention may hope that at some future day circumstances may arise to make his town a city. Braxton being the central part of the State, Braxton may be the seat of government; and if it is made the seat of government, what is to hinder Braxton from being a city? Every gentleman ought to provide for a corporation. I think Braxton bids fairer perhaps than almost every other section of the State to be the seat of government. You may say there will be a great many hills to cross to get to it. We will have to cut down the hills. That is the way to make the State.
Therefore, for these reasons, I would deny the fact that Wheeling now is or may hereafter be the only city in the State for all time to come, and I think the same may be said very justly of the town of Parkersburg. It is now on the very verge of a city and in a few years more it will become a city.
MR. VAN WINKLE. The law requires it should have five thousand inhabitants and it has got three. I did not intend to accuse the gentleman from Ohio of any evasion, but when he talked of introducing the very term "corporation courts" which I think are only a very great aggravation of the county courts, I must object if there is to be anything of that kind? And I suggest again, and hope he will concur in the suggestion, that some special provision be introduced here to meet the case of these large towns and cities. If you are going to throw this open to the legislature to appoint courts of inferior jurisdiction, you will do the very thing I wish to prevent. You might say the legislature may authorize a criminal court within any incorporated town or city; but when you just say a "corporation court" may be established, then you are proposing to establish what I object to. If the amendment was framed and before us so we could know precisely what the language is, I might find it less objectionable than I suppose; but when I am referred to the old term as found in the language of our present Constitution, proposing this nuisance of corporation courts as they exist in the eastern cities, the greater my wish to see my town grow to the dignity of a city the more I should wish such a provision out of the Constitution. I hope the substance of the amendment as the gentleman from Logan suggests, to come in wherever it would be proper, providing for such cases of a dense population, that they may have the extra courts if they need them, may be offered, and I will cheerfully vote for it. But I do not want the county court or the corporation court anyhow you can fix it.
MR. LAMB. I have no objection at all that the matter should take the shape suggested. I have no particular fancy for the terms "corporation courts"; though I think the gentleman's speech in relation to the matter is calculated to give a very erroneous idea of the meaning of these terms. The matter may lie, and a special provision may be inserted in some portion of the judiciary report. I want the legislature to have the privilege if they find it necessary to establish special courts in large places or abolish county courts. For that reason this may become more necessary. As they are abolished the whole judicial burden is imposed on one judge of a large district. Our district is proposed to be made unusually large, and in proportion to its population the amount of business would be large, even greater than in proportion to its population and it may become absolutely necessary in order to prevent the denial of justice or such delays as are equivalent to it that there should be authority to establish here at least a special court. I will withdraw the matter for the present.
MR. WILLEY. I understand the gentleman from Ohio has such an amendment, and that the clause, independent of the matter of corporation courts strikes him as proper. If necessary to reconcile the gentleman from Wood, change the phraseology of the clause, sir. The clause is derived from our present constitution. It was suggested that it be made to read: "The judicial power of the State shall be vested, etc.," That would be better perhaps. It would exclude the idea of the creation of other courts more thoroughly. I submit it to the other members of the committee whether it would not be better.
MR. LAMB. Well, I would ask the gentleman to add to it: "And such inferior courts as may be herein authorized." That clause is necessarily now an exclusion of all other courts.
MR. SMITH. The power is given to the legislature to confer the jurisdiction - that is all the jurisdiction they have - and there is nothing therefore to prohibit the State from making others; but the exception made in behalf of the corporation courts would limit the power here. I do not think there is any necessity for the words. That would be only a limitation on this power, which is a general one; but the clause spoken of at the close would be a limitation then on this power. The legislature may have power to do it so far as not prohibited by the Constitution.
MR. BROWN of Kanawha. It seems to me if the suggestion of the gentleman from Monongalia be adopted, that the judicial power of the State by the Constitution is to be conferred on the court of appeals and circuit courts, then the legislature will have no power to confer any jurisdiction. Now, I apprehend judicial power must come from some quarter; and it must either come from the people directly by virtue of a provision in the Constitution or by the legislature in form of an enactment of law. This proposes in the Constitution to establish courts but without any jurisdiction at all and they could exercise none if not conferred by law. If it is attempted to confer the judicial power on these courts - on any courts - in the Constitution then it becomes a very serious consideration on the part of this Convention that in the distribution of that power you do it rightly, because it cannot be altered afterwards.
MR. WILLEY. The gentleman will not understand me as desiring at all to interfere with the other clause of the section, which provides that the jurisdiction, except so far as conferred by this Constitution, is to be prescribed by law.
MR. BROWN of Kanawha. The difficulty that has been in my mind all along is that we have been attempting in the report of the Committee on County Organization to confer in the Constitution a portion of the power and debarring the legislature from exercising the power it legitimately has to distribute the judicial power among the several courts that is given by the Constitution.
MR. WILLEY. I seem to be misapprehended. I only thought the suggestion as to the modification of the first sentence was proper to be considered - was forcible and worthy of being considered - because it would make these the only two courts that we establish by the Constitution, and that the legislature would have no authority to establish any other courts; not that it would embarrass the legislature at all in conferring on these courts whatever jurisdiction they might see proper, leaving the legislature full authority to do it. But I supposed the modification of the language would better define the purposes of this Convention that there should be no other courts but these two, leaving the legislature whole authority to prescribe their jurisdiction at all times as they might see proper. I am satisfied with it.
MR. VAN WINKLE. I am not satisfied with the language as it stands. I want to offer this amendment as a substitute for this first clause. "The judicial power of the State shall be vested in a supreme court, circuit courts and such other inferior tribunals as are herein authorized."
MR. WILLEY. I have no kind of objection to that, except say "Supreme Court of Appeals."
MR. VAN WINKLE. Why, sir? I have no objection, of course.
MR. WILLEY. It designates it.
MR. VAN WINKLE. I believe they are generally called "Supreme Court of Appeals" throughout the Union. I have no objection to that name.
MR. BROWN of Kanawha. The circuit court is to be a court of appeals.
MR. WILLEY. I understand the gentleman has no objection.
MR. VAN WINKLE. No, sir; I am not at all tenacious, although I would prefer that. Some gentleman can make the motion.
MR. HERVEY. I move to insert the words "of Appeals." The motion was agreed to.
The question recurred on the motion of Mr. Van Winkle. It was reported by the Secretary:
Strike out the first clause and substitute: "The judical power of the State shall be vested in a Supreme Court of Appeals, circuit courts and such other inferior tribunals as are herein authorized."
MR. SOPER. "Or may hereafter be established" (Laughter).
MR. VAN WINKLE. That is exactly what I wish to avoid. It is throwing it back into the hands of the legislature.
MR. HERVEY. I hope the sense of the Convention will be tested on that proposition.
MR. VAN WINKLE. You can test it by voting my amendment down.
MR. SOPER. I want to give the power to the legislature if it should be necessary hereafter to have the authority to create inferior courts whether they be probate courts or whether they be police courts or courts established for criminal purposes.
MR. WILLEY. Or county courts?
MR. SOPER. I care nothing about county courts.
MR. VAN WINKLE. I do.
MR. SOPER. I feel confident that they ought to have that power and it will very shortly have to be exercised in the cities. I would like to have the authority here and then try this system of circuit courts exclusively and let us see, in three, or four or five years whether we can go on properly under them or if it should be found necessary to make an alteration I should like to have the power contained in the Constitution; and should like to give the legislature the power.
MR. VAN WINKLE. I hope the gentleman will put some clause to it that we shall not have fourteen courts in one county in a year.
MR. WILLEY. I hardly suppose the Convention will entertain the motion. It is a cat-in-the-meal-tub. It is old Monsieur Tonson back again. It is the everlasting county courts (Laughter) making its play in some shape or form. But I think we established a principle yesterday and today that the legislature should have no right to interfere with the justices at all in their courts. Now, sir, if justices of the peace in the country shall not be interfered with by the legislature; if unbending constitutional provisions shall secure the justices of the peace in their little townships, do let the circuit courts and court of appeals have some chance for their rights (Laughter). Why is it we are to throw round the guaranties of constitutional security beyond the or modification by the legislature around justices of the peace in trial of their cases and leave the courts to the constant attacks and mutations of the legislature at all times and under all circumstances? Why, sir, if there is any principle the people of West Virginia desire more than another it is that this Convention shall fix some constitutional barrier whereby the infliction of county courts shall be forever prohibited. If the motion of the gentleman from Tyler prevails, you place it perfectly within the power of the legislature the first time it meets to reorganize the county courts all over West Virginia.
MR. SOPER. I disclaim having any view to the county courts. But let me place this proposition fairly before this Convention. Suppose the fact to be that you put this system into operation. The people from all parts of your State call for the reorganization of the county court. Are we to tie them up and prohibit them from having it? If gentlemen mean that, we know precisely what to report to the community at large. Now, sir, it is not that class of courts that I have reference to. Before saying a few words in behalf of the proposition I submit here, I would say that my understanding of the provisions of this Constitution in relation to the organization of justices' courts appears to be entirely different from those of the gentleman. I believe the legislature has got the whole control and direction of what way and manner the justices' courts shall exercise their jurisdiction. The legislature has a right to say that the circuit courts here shall have jurisdiction of all claims from ten dollars up, or any amount you please, and there has nothing been done in the organization of the justices' courts that will prohibit it. All it would amount to would be this: as to the amount fixed the jurisdiction would be concurrent in the two courts so far as they go, the one limited to one hundred dollars, the other unlimited below one hundred dollars. If we confer jurisdiction on the circuit courts why it would be concurrent with that of the justices' courts. I apprehend there is nothing yet taken place that would prohibit that; and I believe the legislature would have the right to say under what writ of actions they should exercise their jurisdiction. They might confine it to promissory notes, to litigated cases, if they wish. The whole matter rests with the legislature. I would have been willing myself to have trusted it at all times. I apprehend the object of the legislature will be to afford the cheapest and most expeditious mode of administering justice that their wisdom can devise. Now, sir, what I fear in the organization of these circuit courts is more particularly in the first place than of criminal cases and cases which generally come within the jurisdiction of probate courts may be retained in these circuit courts, and but once in three months; that the community may experience inconveniences, and there may be requiring immediate action under certain circumstances and yet no provision of courts to meet the requirement. I am afraid difficulties of that kind may arise; and if it should arise, then I want whenever they are found to exist that an application may be made to the legislature and the remedy may be supplied. That is what I am trying now to guard against. I see no reason why it should not be left to the discretion of the legislature to establish such courts of inferior jurisdiction without naming them as they might hereafter from time to time see fit to do.
I hope, sir, this Convention will think of this matter and come to the conclusion whether or not we would act discreetly if we should leave in our Constitution a power of that kind. I had supposed by reading this report of the judiciary committee that if we adopted it yesterday the legislature would under their general power have the right although it was not expressly given to them here. But if we are to have it so read that there shall be no other courts than those already established that I apprehend precludes the power on the part of the legislature to grant the relief if it should be necessary; and it is, sir, with that view that hereafter the new system put into operation cannot meet the wants of the people, and in case such an emergency should arise then I want the people to have an opportunity of calling upon the legislature and getting such courts as they think their interests require. But as I have just remarked, they may be courts of probate or courts to try small misdemeanors. For instance, my friend, the chairman, the gentleman from Wood, spoke of the exercise of criminal jurisdiction by justices; he spoke of confining it to fines of five dollars and some few days imprisonment. Now, sir, our legislature would never be willing to limit the fine for assault and battery to five dollars, or petty larceny, or some actions of trespass or things of that kind. I submit it is rather degrading to the character of our circuit courts and the respect that we attach to the judges who preside over those courts to have them sitting day after day in our courts for the hearing and trial of assaults and batteries. It ought not to be that. And as your cities and towns grow and the people progress throughout the country, we are to expect that that class of cases will increase and rather than take up the time of the circuit court in trying these trivial affairs, I would have a police court and some court with criminal jurisdiction within the county where the whole matter could be speedily disposed of and at a very small expense without interfering with the important business that would inevitably go into those circuit courts. It is to reserve a power to the legislature to establish these inferior courts that I have proposed the amendment just suggested.
MR. HAGAR. The only gauge we can arrive at in reference to the future is the operation of the past. The present must judge from the past. I think the four circuits, a monthly court in every district of the county and then the supreme court will be about as much as the people want. They are tired of so much court until they get more money and be better able to law more. I am against the amendment.
MR. VAN WINKLE. I think the answer to the gentleman from Tyier is simply that if the necessity for probate courts, or police courts or for any other of those courts should arise or is thought to have arisen, it is easy to submit that question to the people under the provision for amendment submitted by the gentleman from Ohio. It would be a definite question and one of those that would be very easily submitted to the people and let them choose. Like the gentleman from Monongalia, I am just as particular here as I am about justices of the peace. I should like to have these things which are certainly fundamental prescribed in the Constitution, leaving the legislature to act on this matter within limits that shall be stated. But that in reference to things that are fundamental the Constitution should express it. I, of course, would be opposed to the amendment of the gentleman from Tyler, which would in effect destroy my amendment.
MR. BROWN of Kanawha. I feel bound to sustain the amendment of the gentleman from Tyler, and I have been unable to see "the cat-in-the-meal-tub," or "raw-head-and-bloody-bones," or any other frightful monsters that gentlemen are alarmed at. I have advocated one set of courts in the State to transact the business of that whole judiciary except what is conferred on the justices of the peace; one tribunal and four circuits in each circuit for the year, as is proposed. Now, with what little experience I have I must confess if there is one difficulty in my mind it will be that these circuits will be found incompetent and unable to discharge the duties imposed on them; that the difficulty will be that the dockets will be crowded worse than they are already. The reservation in the Constitution of the right of the legislature to establish inferior courts when the necessity arises, to relieve the other courts as occasion may make necessary is surely no hazard. When the representatives of the people have the power in their own hands - their own legislature - 1 am unable to see where the legislature is. Gentlemen seem to apprehend that the legislature are some set of foreigners who will certainly take the first opportunity to take away the rights of the people and all the powers conferred by the Constitution on the other tribunals. I do not so understand it. It can have no other motive than to discharge the duties and legislate for the interests of the county of which they are the representatives, and emphatically more so than we are. A necessity arises and looking to the necessity of having power in the legislature to institute intermediate courts, the committee have provided in one of these sections - section 9 - "A special court of appeals, to consist of three judges, may be formed of the judges of the Supreme Court of Appeals and of the circuit courts, or any of them, to try any case or cases which may come before the Supreme Court of Appeals in respect to which any of the judges of said court may be so situated as to make it improper for him to sit on the hearing thereof." This provision is also now in the Constitution of Virginia. Here is a provision to meet any contingency that may arise under ordinary circumstances with the expectation that everything works exactly as we expect. But it is not to be supposed we can apprehend beforehand all things that may arise. It is wise to preserve in the Constitution provisions allowing the legislature to meet any deficiencies that may be found hereafter to exist. There can be no danger in it. I think the amendment of the gentleman from Tyler is wise and conservative. It is to meet a contingency that may never happen; but we should be controlled by the presumption that if the occasion should arise, the legislature will be intelligent enough to meet the occasion as their duty requires.
MR. WILLEY. The argument of the gentleman from Kanawha is that it may turn out that the dockets of these circuit courts will be so burdened the judges will not be able to discharge the business. That is the point of the gentleman's argument, and upon that he bases his plea for the necessity of vesting authority in the legislature to establish inferior or other tribunals in order that the business of the country may be accomplished. Now, sir, the great object we had in this report was to place the judicial business of the country in competent hands; and in order that any difficulty such as that my friend has suggested might be obviated if it did, we have a section reported here as follows:
"3. The legislature may from time to time re-arrange the said circuits; and after the expiration of five years from the time when this Constitution shall go into operation and thereafter at periods of ten years, may increase or diminish the number of circuits or the number of courts in a year, as necessity may require."
Now, there is a complete provision to meet the contingency on which my friend from Kanawha bases his plea for authority in the legislature to create additional courts when necessity should indicate it. We have the provision there - not inferior tribunals but circuit courts competent to discharge the business; multiply them if the business requires it, or decrease them, at intervals of certain times. I think the answer to the gentleman is in the report itself.
MR. LAMB. This amendment contemplates, I take it, and so far it meets the general concurrence that some provisions should be inserted in the subsequent part of this article authorizing the legislature to establish such other inferior tribunals as may be found necessary to transact properly the judicial business. With this understanding of it, I am disposed to vote for the motion as it stands, supposing that an explicit provision will be contained in some other part of this article defining what these courts are which the legislature is to be authorized to establish, and that that provision will be an adequate one to insure the proper transaction of the business wherever too much business may be found to have developed in the circuit courts. With a provision of that kind, I think we can adopt it without the amendment of the gentleman from Tyler. Without such a provision to be carried into effect in good faith I should be in favor of the amendment of the gentleman from Tyier. But I would prefer that the tribunals which are to be established should be specified in the Constitution. The other would leave unlimited authority to the legislature; and the first legislature that was disposed could certainly reconstitute the county courts.
The question was taken on Mr. Soper's amendment and it was lost.
The question recurred on Mr. Van Winkle's amendment to strike out the first clause and insert: "The judicial power of the State shall be vested in a Supreme Court of Appeals, circuit courts and such other inferior tribunals as are herein authorized."
The amendment was agreed to, and the question recurred on the second sentence: "The jurisdiction of these courts, and of the judges thereof, except so far as the same is conferred by this Constitution, shall be prescribed by law."
This second sentence was adopted as read.
Section 2, by general consent was passed by for the present, and section 3 taken up and reported as follows:
"3. The legislature may, from time to time, re-arrange the said circuits; and after the expiration of five years from the time when this Constitution shall go into operation, and thereafter at periods of ten years, may increase or diminish the number of circuits or the number of courts in a year, as necessity may require."
MR. VAN WINKLE. I would like to ask the chairman of the committee whether this had better not take the course of all similar provisions yet acted on or proposed, to follow the United States census in some way. Make the first change, say in 1871, or so to arrange that the first change should be permitted at an earlier day, and that those which follow may be made after the following census. A proposition was made in the course of the legislative report to provide for taking a state census but it was negatived; and what was contained in the legislative report of a similar character was made to depend on the United States census. My impression is we will have no guide in re-arranging circuits except after we get a new census. I suggest for the consideration of the gentlemen of the committee to make such alteration as they think desirable.
MR. WILLEY. It will occur to my friend from Wood at once that population would be by no means a very correct guide to the jurisdiction of the judges in the State. It is very often the case that in large and populous counties there is very little litigation, whereas in small counties, much less population, it frequently happens that there is much more litigation and often times of a tedious and difficult character. The matter of arranging the State in circuits the first time will be after all a matter of experiment. We will have to try it a little while to see where the great amount of business will be; and hence the committee very properly determined we ought to provide a time as soon as possible after the Constitution goes into effect when there might be a rearrangement of circuits when it would have been ascertained by actual experience the amount of business in the several counties, so as to make a proper adjustment amongst the various judges. I fear if we wait till 1871 we might become involved in some difficulties. In fact, if it should turn out that however careful we may be in the adjustment of these circuits we will have given to some judges more business than others - perhaps given to the same degree not only more than their share but more than they can do. It is a matter not material at all; it involves no principle; it is one of expediency entirely; and I throw out these suggestions on the question of expediency, whether at least the first arrangement should not be within a tolerably short period after this matter goes into effect.
MR. VAN WINKLE. I should think, sir, while I admit there will be some difference of business, but I apprehend after all population will be found as good a guide to the business to be done as any other you can arrive at.
MR. WILLEY. Before the gentleman replies, I will add that in part of these counties where there is very little population there is a kind of litigation that is exceedingly tedious; for instance, land litigation. Two or three land suits will perhaps take as long to determine as the whole docket in the city of Wheeling. I believe my friend there (Mr. Smith) gives an account of a land suit pending some twenty-five or thirty days.
MR. VAN WINKLE. Yes, one.
MR. WILLEY. Well, now a great deal of litigation of this kind must exist.
MR. VAN WINKLE. It might be that the first rearrangement would be sooner, say 1865, and then after each decennial census. They need not do it in 1871, but between 1871 and 1881.
MR. SMITH. It is not mandatory.
MR. VAN WINKLE. No -
MR. WILLEY. This is "at periods of ten years thereafter."
MR. VAN WINKLE. My object was simply to try to bring the second one nearer to the decennial enumeration; then the subsequent ones at periods of ten years. I make it as a suggestion merely.
MR. BROWN of Kanawha. I understand the gentleman does not make any amendment? I only wanted to remark that the idea of population can have no place in determining the labors of the judge, as the gentleman from Monongalia has well remarked; that one case of ordinary litigation where lands are in conflict would involve more labor than a hundred suits for debt or even two hundred of them. Again, the litigation of a community depends very much on its character and the business habits of the people. You go into one of your agricultural counties where the land-titles are settled and there is scarcely a law-suit in it. I heard the gentleman from Hancock the other day describe that the courts of his county had but little to do; that crimes and offenses were but little known; a quiet, peaceable, orderly community; pay their taxes and are at rest. Go into other counties of the same population, and I have seen in some counties not superior to Hancock or very little, five and six hundred indictments atone court; and in some cases several hundred against one man. Now, when we get into that character of litigation, it is not a question of the numbers of population; it is the number of offenses that has to be taken into account. The only way you can ascertain that is as now prescribed by law in the State of Virginia that the clerks of the courts record every year a certificate of the suits on the docket in their courts, of the old cases standing, of the new cases that have come in during the year, and how many that have been disposed of, distinguishing between suits at law and in chancery and commonwealth's prosecutions, that the legislature or whoever is charged with the duty of rearranging and apportioning the courts of the State and accommodate them to the litigation and labors to be performed; can have some direct and satisfactory information before them. So that numbers of individuals have nothing to do with it. It depends on a man's business. In manufacturing communities you find no litigation; but in land- title counties you find a great deal more of it, as I know from experience. The gentleman alluded to one case that took some thirty days. I know of several today - and there are a number on the docket - that will take a month for each case. You cannot get through in less time. Well, now, it is useless to number that by population; and it is so in all those counties in which land-titles are unsettled; and they cannot be settled in any other way than by the courts. Population, therefore, ought not to enter into this computation at all; and as I think the gentleman has properly stated, five years perhaps is short enough and long enough to ascertain by the workings of this Constitution where an apportionment may be necessary. Ten years thereafter will be short enough to re-arrange and distribute the whole judicial system.
MR. SINSEL. I will offer an amendment to this section by striking out all the section after the word "circuits" in line 35. It will read then: "the legislature may, from time to time, rearrange the said circuits." Now if we adopt this section as it stands, we will see that the legislature will commence the formation of additional circuits to gratify some petty interest, just as they have formed these little counties to gratify a certain individual. We would have had more circuits in the Commonwealth of Virginia now if it had not been for constitutional barriers. There was an effort made in the legislature a year or two ago to see if they could not give it that construction to increase the number of circuits. Within the bounds of the proposed new State we have about five and a half circuits with perhaps area to make nine. I would rather say ten, and have an end put to it than to leave it open to fifteen or twenty if they choose to make them. How has it been in our county? We have a circuit, sir, but it really has been no court at all to us so far as civil business was concerned. Why, for the want of time, the judge would come there at the middle of the day and the court hear the cause in the middle of the week and hold on probably till Saturday and adjourn and go home, when he probably had a week or more to sit if he had done it. Now if you give these men so many courts to attend to and require them to do the business, they will have to stay and do it. You leave it open in this way and you will double expenses in all probability. They will neglect their business; they will not attend to it but will let the business accumulate on it. Well, the cry will be, "We must have another circuit now." I am in favor of having nine judges and reasonable compensation, and then of their doing the business. Let political matters go a little while and here is a judge or lawyer with one or the other parties. Well, he is out of place. What must be done? Why, a circuit must be created to make him judge. How has it been with the superintendents of roads throughout this State of Virginia? Every new road that was established or turnpike that was made there was a new superintendent put on it. The result was when the legislature passed a law to sell out these roads one man performed for three hundred dollars the business that fifteen had been doing for a thousand dollars. If you leave this gap open here you will find a similar state of things existing in our midst. Now, here we have increased the number of circuits over fifty per cent. We have unquestionably diminished the business in that court by extending the jurisdiction of magistrates, and there will be no more business in the circuit courts with their four terms now than we had before. So I am opposed to loafing in this kind of a style.
MR. VAN WINKLE. I am inclined to favor the amendment and a good deal for the reasons stated by the gentleman. The greatest number of counties in any one district is six, and you can give the judge ten days to each court, which I am sure would, on an average, be enough; and you can give him a month at home between every two courts.
Now, re-arranging the series - is that to take off one and give to another? Go and break up the whole system and have it open to that kind of influences that are frequently brought to bear on the legislature, and have the thing constantly hanging in jeopardy, as incidentally proposed, is injurious to the section. I think the amendment will reach the evil. It will leave sufficient power in the legislature to rearrange the circuits. They may go and turn all the judges out, and I do not want them to have that power. A judge should not be removed because he is politically obnoxious to them. If he is to be impeached, why let him be. I think, therefore, I will favor the amendment just offered.
MR. WILLEY. I cannot tell particularly about this matter. The committee were only desirous to provide such arrangement as would best lead to the administration of justice speedily, promptly and satisfactorily. Suppose that it should turn out from experience that we have more judges than are necessary, then, sir, we have no authority to get rid of any if you strike out. It provides that there could be an increase if the necessity should indicate the propriety of it; but if experience should show that there are more judges than required to perform the duties of the various circuits, and also if the frequency of the courts is provided in this Constitution, four times a year, the legislature should have the authority to diminish the number of terms in a year. Now, air, I think we ought to have some confidence in the legislature, at least in the people whose agents the legislators are. It is hardly possible, it seems to me, that the people would support such action as indicated by the gentleman upon the part of their servants in the legislature. I can hardly imagine that there would be any of the other difficulties suggested by my friend from Tyler. I think the tendency rather is to curtail these offices on the part of the people, the number of offices, than to increase them. But if it should turn out, sir, as it may, if we have a growing state, I hope the State will increase in population rapidly - a state that will increase in all its industrial interests rapidly; a state whose commerce will increase rapidly; whose trade and business will all enlarge rapidly; when we shall become an enterprising, a manufacturing, a commercial people, rapidly growing in wealth, population and in power - if it should turn out in five or eight or twenty years - I hope this Constitution will last fifty years or a hundred - if it should turn out that from the increased population and business we should have an unforeseen amount of judicial affairs to discharge the duties of the office, why, what sort of predicament would we be in? Driven to a constitutional amendment - to all that difficulty to remedy the evil which may as well be provided for by something like the provisions of this section. I really have not the apprehensions of the corruptions on the part of the legislature, or the toleration of it by the people, that my friend from Tyler seems to entertain. Nothing of the kind. Now, sir, the very fact to which he alludes is an argument in point here. Here was business to my certain knowledge growing upon the office of Judge Camden, for instance, that it was impossible for him to perform. Look, for instance, at the county of Marion, a court which I attended. We would go there the 8th of June and Camden would hold court until the wheat was ripe and then allow them to go home and cut their harvest, and he never touched a civil docket, being all the time engaged with the criminal. There has been a year's litigated cases there on the docket, and while there has been two terms of the circuit court held in that county of near a month each term, yet when we wanted to re-arrange the circuits, when the obvious necessity was thus indicated for it, we are embarrassed by the prohibition of the existing Constitution of Virginia, which gave no provision to make any such increase of judgments. The difficulties of litigants in that county at least were due to the want of such a section as is provided to be inserted in this Constitution by this section. I think it would be wiser and better to allow this section to remain as it is.
MR. HALL of Marion. In addition to the remarks just made, I would just say the population of Marion is a little less than Marshall, Monongalia, Harrison or Preston. My impression is it would take a judge regularly working there three years every day in the year to dispense the business that is there pending and would accumulate in the time. To illustrate the fact that we cannot judge of this matter by population and that circumstances will arise that cannot be foreseen, that provisions must be made to meet these matters or the people are without the benefit of courts. We have a term of court there, occupied with criminal business term after term. It has been our fortune to send from two to eight and ten at a term to the penitentiary. Our court sits twice a year, commencing on the tenth of June and November, and at the November term sits about one month, sitting through the district court usually, sometimes adjourns for it. We more frequently run past the Fourth of July than adjourn earlier in the June session.
MR. BROWN of Kanawha. It seems to me that to strike out this from "circuits" in line 35 to the end of the section is to present us in the attitude of framing a Constitution for the new State calculated to prevent the future prosperity, growth and greatness, not only in the number of its people but in all the elements of wealth and business transactions of life; that it is, in other words, providing a Constitution and limiting its whole capacity in its judicial tribunals in nine circuits? With the supposition that either they will be unable to grow with growth of the State or fill up your Constitution. Now, if we go on the stand-still policy and suppose we will never grow any larger than we are, you might confine this to your precise nine circuits; but if we expect to double the population and quadruple the business in a few years, then it is to be expected you will have to increase the circuits or tear up your Constitution or go back to the people with an amendment. Would it be supposed that we would make a constitution that will have to be amended in a few years to meet its wants? That they would be so oblivious to the facts; that this people were not to grow at all, and that therefore there would be no necessity for enlarging the capacities of the government that was to meet their wants? Now, the difficulty in my mind is that without the provision of the gentleman from Tyier of empowering the legislature to furnish aid to the increasing wants of the community by additional courts, that your courts would be so crowded the judges would be unable to discharge the duties. You will find hereafter, as now, the docket crowded with cases requiring years of labor before they can be removed. It is not in Marion only and in that circuit, but, sir, that is the character all through the State, that the dockets have continually grown and are today greater than when the judges went on the bench with every year. If gentlemen will examine the returns of the different circuit courts as reported to Richmond, they will find a continual increase in every instance almost. Now, what is to meet these necessities and demands? Gentlemen tell us while you have abrogated one court that transacted one very large portion of the business of the State, you have supplied the magistrate's court and they will take off the excess. Now, sir, you will find that instead of this they will only accumulate by appeals greater and more numerous than they now are; that you will have no intermediate cases between the magistrates' courts and county courts where they could go on farther, but they will go directly to the circuit courts and instead of diminishing you will have increased the whole amount of business. Then you add on the labors of these judges four terms a year and I ask gentlemen to take one of these circuit courts of seven counties, give them ten days, and that is too small for the judge to hold court and ride to the next court, said then make no account for accidents; four courts a year for seven counties in a circuit and ten days to each, is seventy days and that is four times seventy, or 280 days in court. Look at the country - mountain roads with rivers in winter, spring and fall, that are likely impassable, have to be swum by the side of a canoe. I say when this comes to be put in practice you will find difficulties of ever carrying out the principles of this Constitution on that score alone.
MR. SINSEL. I happen to live in a county where two railroads have been constructed which caused a large amount of business to accumulate there. Well, the principal court that we have had for civil business was the county court; and in the transaction of that kind of business - collection of debts and so on - we only have four courts a year, the four quarterly terms. To my knowledge we never held quarterly court there the second week. We always got through the first week, and not all that very frequently. Four notifying days. Well, now, the whole amount of civil business almost in our county has been transacted in six weeks time, counting two weeks in regard to the hold-over. Because we had two circuit courts and not even then would not have to stay in session over a week. Well then, in addition to that, the county of Marion, which they complain of so, there will be three counties. The judge will have four months, or give him three months, to each county. He can hold only a court each month and have a court between times. He would hold twelve courts a year. Four counties would only have twelve courts a year. It would give him three weeks term and then give him a quarter of his time. He could hold each court a session of three weeks and then have one-half his time to stay at home. Can you get the people of Marion or any other county to sit and hold court longer than. three weeks at a time, and that four times a year? No, sir, they will not do it. And we have increased the number of judges so that the business can be done with ease I have no doubt.
The question was taken and the amendment rejected.
MR. LAMB. I would ask the attention of the chairman to an uncertainty in the wording of this section. It authorizes the legislature at the expiration of five years from the time when this Constitution shall go into operation to increase or diminish the number of circuits. The term "after the expiration of five years" is very indefinite. The term which was used in the former constitution had the expression, I believe, of a certain period. I suppose the phrase has got in there by mistake perhaps.
MR. WILLEY. I do not remember how that is. The section is a little modified from what it was when I left. I do not know exactly how it was, but if an exact period was named, I would suggest to the gentleman from Ohio, it would require that the legislature be in session exactly at the expiration of the five years, and unless it should be done exactly at the expiration it could not be done at all. We might modify it by saying as soon after as practicable.
MR. BROWN of Kanawha. That matter met with a great deal of consideration at the hands of the committee, I think very maturely. The committee have endeavored to arrange these circuits as near right as they possibly could; and unless some reason, and that reason a necessity, exists for changing it, it is not contemplated to change it. It will be seen the object was to get it right at first and let it stay right until necessity should require a change. It is not the purpose of the committee that this Constitution should be changed in this particular in ten years or a hundred unless some necessity arises to strengthen it; and that is left to the wisdom of the legislature when the necessity arises, and it is expected the legislature, who will be required to take an oath to support this Constitution will not undertake to alter it unless the necessity does arise. "May hereafter increase or diminish as necessity may require." It is not to be at their mere volition without this necessity. True they are made the judges of the necessity, and we suppose it could not be better confided.
MR. LAMB. I understand all that, but my attention has been drawn to the peculiar phraseology adopted here. In reading the former constitution it provides that the general assembly may "at the end of eight years" do so and so. Instead of "at the end" in this provision we have "after" the time named. I want to understand what is to be the construction of this. Suppose the legislature deemed that the necessity requires the alteration six years after the adoption of the constitution? Are they at liberty to make it then? Or in seven years? Does the section mean that it shall not be altered sooner than five years, within the five, or at any time after that period they have the unlimited right of altering?
MR. WILLEY. I understand that to be the meaning. I do not know that I find any exception to it if that is to be the construction. The former constitution, however, fixed that alteration to a specific time; and the present provision, taken in connection with the former constitution would necessarily imply that at any time after the expiration of five years the legislature might change the districts. There is no such qualifying term in the old constitution, "necessity requires." That very term indicates that the committee does not think there should be any alteration of the circuit courts within five years or thereafter until necessity should require it in the opinion of the legislature.
MR. LAMB. The legislature, Mr. President, is the judge of that necessity, of course. Whenever they see proper to alter it the very fact of their having altered it is a declaration of the necessity, so that it amounts to the same thing after all. But I merely wanted to direct the attention of the Convention and Committee particularly to the necessary construction which I think will be given to the section as it stands.
MR. VAN WINKLE. Whether it is intended if the legislature does not do this at the end of five years that they are to do it afterwards and then wait ten years again, or whether it is your intention to give-them the opportunity to do it at the end of five years and at the intervals of ten years after that period, is I think a fair question. Then would they be precluded if they did not at the end of five years have exercised it until ten years more?
MR. BROWN of Kanawha. The legislature will not re-arrange the circuits until five years have elapsed. Then it may do so at any time it pleases. There is no requirement that they shall do it at the expiration of five years, but that they may do it within five, six or whenever they do it, they cannot do it again until ten years afterwards, that is, ten years after they do it first. That there shall be alternate terms of five years; and I imagine it may go twenty years.
MR. VAN WINKLE. That is what I hold to be the proper interpretation of it; but I think it is rather uncertain.
MR. HARRISON. I expect the Convention is hardly prepared to act on this tonight. I intend to offer an amendment myself.
On motion of Mr. Hervey, the Convention adjourned.
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Chapter Eleven: First Constitutional Convention of West Virginia