Removal of the State Capital to Wheeling

Wheeling Intelligencer
May 24, 1875


Full Supplement to Our Special Dispatches in Regard to the Events of Thursday, Friday, and Saturday Last.

Copies of the Official Correspondence that Passed Between Gov. Jacob and Judge Smith.

The Governor Not Co-operated with by the Auditor, Treasurer, Superintendent of School, Librarian, &c.

Captain McLure Finally Brings Off the Personnel of the State Government in Good Shape.

Everything Arranged at Point Pleasant with the Alphabetical Judge, Who Allows an Appeal.

CHARLESTON, May 21, 1875.
Editors of the Intelligencer:

I reached here yesterday for late dinner, having enjoyed a delightful trip with the gentlemanly Messrs. Muhleman, on that elegant steamer the Andes, as far as Huntington, thence by rail.

"The wayfaring man though a fool" could not mistake the atmosphere of Charleston, and I assure you a Wheelingite was not long in deciding that something desperate was going on in the beautiful little city. Her glory was departing, and her people were in anything but an amiable mood. The streets were by no means deserted, and in the vicinity of the Court House the crowd did most congregate. The Hale House was at times thronged, but the centre of attraction was at the Temple of Justice where Justice Joseph Smith was holding forth, the said "pubfunc" being the target for the witticisms and suggestions of Jim Ferguson, Wm. Quarrier and other prominent anti-movalists.

Early yesterday morning Governor Jacob issued orders to Mr. M. J. Bell, who had contracted to remove the public property, to commence the work of removing the same to the wharf-boat. Mr. B. had his draymen to proceed to the State House, where they were followed by a large crowd, composed mainly of the lower elements of the place, who were ready for a row on short notice. Soon the crowd began to swell, many of the best citizens coming out to see what was going to be the result. A dray was loaded; a policeman arrested the drayman before he had proceeded far, alleging that the dray was not numbered and branded according to law, notwithstanding said drayman had been hauling heretofore without hindrance. The driver reached Front street not far from the wharf-boat, when he was arrested by an order from Judge Smith's Court. The dray was taken back by an officer to the State House, and there unloaded. The drayman was released, but a rule was issued against Mr. Bell, the contractor, who was taken to Court and held for further hearing. Mr. Bell then sent the following letter to the Governor:

CHARLESTON, May 20, 1875.
Hon. John J. Jacob, Governor of West Virginia

DEAR SIR: Under the contract made with you for the removal of the public property in the Capitol building, in the city of Charleston to the wharf-boat in said city, I received a portion of the said property into my possession from you, and while taking the same to said wharf-boat, I was met with a process from the Circuit Court of Kanawha county, West Virginia, which obstructs me in the removal of said property to said wharf-boat, and I here return the same to you. Respectfully, you obedient servant,


Soon after this the Governor received the following message from Judge Smith:

To His Excellency, John J. Jacob

DEAR SIR: Application being made to me for a rule against you as Chief Executive officer of this State, and as an individual I deemed it due to your official position to inform you of the fact, and respectfully request you to appear without my being compelled to issue process. Be kind enough to inform me by returning messenger whether I may expect your compliance with this request. Yours, with kindest feellings [sic] personally, J. SMITH.


May 20, 1875.

Hon. Joseph Smith:

I have just received your note of this date, in which you say (here Judge Smith's note is quoted entire.)

You fail to inform me for what purpose application has been made to you for a rule against me as Chief Executive officer of the State, but I presume it is for carrying into execution an act passed February 20, 1875, entitled "an act to remove the seat of Government temporarily to Wheeling." If my supposition is not correct, will you be kind enough to inform me. On the presumption, however, that my supposition is correct, in the name of the people of West Virginia, as the Governor thereof, I protest against any and all orders hindering or preventing the execution of the act referred to, or interfering with me in the discharge of my official duties.

The act was passed as constitutional by the Legislature thereof; it has been recognized by me, as the Chief Executive, as Constitutional, and I am credibly informed that you as the Judge of the Circuit Court for Kanawha county, have affirmed the constitutionality and validity, and have dissolved an injunction awarded to test its constitutionality. The validity of the act has thus been recognized by the three Departments of the Government, Legislature, Executive and Judicial, and I appeal to you in the interest of good order and good government to do no act obstructing its execution. But if it is still your purpose to prevent the removal of the public property to Wheeling, in accordance with the terms of the act referred to, the responsibility for so doing must rest where it properly belongs.

Will you be kind enough to say whether it is your intention to issue other and further orders to prevent the removal of the public property from Charleston to Wheeling.

I await your answer.

Very respectfully your obed't serv't,
J. J. JACOB, Governor.

Thus matters stood at noon. About 4 o'clock in the afternoon Governor Jacob received the following from Judge Smith:

May 20, 1875.

His Excellency J. J. Jacob.

DEAR SIR: Yours just received, and ask an answer of me in relation to my purpose in trying to prevent you from removing the archives of the State under an act of the Legislature of the State. By no means. This is very far from my decision in the case. I concur with you in the view of the Constitutionality of the law, and dissolved the injunction, but that is not considering the present position of the case. It stands thus: I, Judge of the Circuit Court of this State, granted an injunction to the removal on the ground distinctly made by the bill of the unconstitutionality of the law. This injunction was duly served upon you; the law fixes the jurisdiction of the Circuit Court by making it imperative upon the Judge to decide constitutional questions when presented in a proper case. Now the case could be presented in no other way so proper as by injunction. This injunction you have chosen to disregard, and refused to appear in my Court, and even deny the jurisdiction of the court. The Court must be the judge of its jurisdiction, and I cannot perceive the slightest reason why you could not appear in Court either in person or by counsel, and let the Court hear the grounds of objection to its jurisdiction. But you have not done so, and left it to other of the Executive officers to appear, and on their motion I dissolved the injunction.

But by our law there is a provision that requires a court when applied to, to suspend any order it may make, by which the party feels himself aggrieved, for a reasonable time, to obtain an appeal, and I was asked to fix the time at least twenty days, as the record was to be copied to be taken to a Judge of the Court of Appeals, thence, if granted, to the Clerk in Wheeling, and then to be returned to Charleston. In obedience to this statute, which you can easily refer to, I made the order, giving until next Thursday, in opposition to the solemn protests of the parties that the time was too short. But I thought by proper efforts it could be accomplished, and I have determined to interpose no obstacle to carrying out the act, except what a solemn sense of duty requires of me, that is to assert the right of the Court to test the constitutionality of this as of any other law.

I regret as deeply as any man could the necessity imposed upon me of endeavoring to hold the matter in status quo until the short period has arrived. To comply with this is no descending upon your part, while I cannot, in the conscientious discharge of duty, permit the order to be violated. I deeply regret this conflict, and would gladly avoid it, but, in the conscientious discharge of my duty, cannot. If you wait until the time has expired there is no failure of duty on your part. The law does not require you to remove on any particular day, and you can postpone the act for a few days if you will. It is optional with you, but not so with me. A sense of duty will compel me to require obedience to the orders of my Court until prevented. J. SMITH.

To which the Governor responded as follows:

CHARLESTON, May 20, 1875.
Hon. Joseph Smith:

Your second communication just received. No further argument is necessary. I accept your reply as an expression of a determination upon your part to still further obstruct the removal of the public property from Charleston to Wheeling. I again protest, in the name of the people of the State against this unwarrantable interference on your part, with the discharge of the constitutional duties of my office.

I shall take no further steps at present to remove the public property. As you have thus secured the custody of the books, papers and records pertaining to my office, as well as those of the other State officers, in violation of a plain constitutional provision, I shall at once proceed to have an inventory of the same taken.

You and all other persons, directly or indirectly concerned in the obstruction of the law will be held responsible for the safe-keeping of the books, papers and records and other public property now in the building used as a State House.

Respectfully, your ob't serv't,
JOHN J. JACOB, Governor.

Thus ended the engagement of the day, the Governor not deigning to notice the affair as bearing a semblance of legal virtue, and not for a moment entertaining the idea of appearing before Judge Smith unless dragged their [sic] by force.

Judge Smith wrote his letters to the Governor, and then in open court read them to the attorney's. At the opening of the correspondence it was thought by some that the Judge "meant business," and that when he said the Governor should appear in court, he (the Judge) would enforce the order. But, as the correspondence continued, it became evident the Judge had no idea of doing any such foolish thing. At one time Jim. Ferguson asked the court when the man John J. Jacob would be forth coming, and said he could not see why Judge Smith did not compel him to come into court. The Judge said it was only respect for the office of Governor that prevented his issuing the order. Ferguson said he would command and compel Mr. Jacob to come, even if it did involve the bringing of the Governor. Rumor had it during the afternoon that Judge Smith would arrest the Governor for contempt in not appearing in court, and that Daniel Johnson, Esq., President of the Senate, and by virtue of his office, Lieutenant Governor, would be telegraphed for to take his place at the helm. Then began the speculation as to what Daniel would do. Some held he would order out the militia, and then would come the "tug of war." But Judge Smith could not be coaxed or driven into issuing the order summoning, peremptorily, the Governor into court.


The people of Charleston are by no means a unit on this vexed question. There are many of the best citizens who regret that any action was taken to obstruct the law. Others were in favor of ceasing opposition when the injunction was dissolved, while many regard the whole affair as a huge farce which should not even by dignified with the title of "Much Ado About Nothing." The lower elements, receiving sanction and encouragement from scalawags like H. S. Walker and other like ilk, who have already partially received merited rebuke, or are satisfied it will soon overtake them. In times of commotion scum and sediment will rise, hence the late Public Printer is considerably elevated. As the storm subsides a settling down will occur, when oblivion is sure, for all such brazen adventurers.


is now justly estimated here. The third district carried that instrument but lost the Capital. Under the botched and bungled Constitution there is no power in the State to fill the vacancy in the Court of Appeals until next Fall. By the way, it will now require the concurrence of the three Judges on the bench to overrule Judge Smith's decision affirming the Constitutionality of the act removing the seat of government to Wheeling.


Never did a Judge allow himself to be placed in such an unenviable position as Judge Smith now occupied. He declared the removal act constitutional, dissolved the injunction, and then forcibly prevented the removal of the public property from Charleston to Wheeling. No other point than Wheeling can be known as the Capital of West Virginia until the law is changed. Charleston may for a time by force retain a shadow by retaining the public property within her limits, but the law makes Wheeling the Capital.

At all events the fine steamer Emma Graham is at the wharf here, and the State officials are all making hasty preparations to go aboard for Wheeling. The arrival of the boat, with Capt. John McLure, Chairman of the Wheeling removal committee, was announced by the roaring of cannon. I will go aboard, and by the time we reach the Capital hope to have my article finished and ready for the printers.


As soon as the boat landed at the Charlston [sic] wharf, Capt. Cooper, of the Emma Graham was waited upon by the Sheriff, and served with the following paper which is Judge Ward's injunction as originally promulgated.

To the Clerk of the Circuit Court for the County of Kanawha:

Deeming the matters and things set forth in this bill worthy of thorough judicial investigation, an injunction is hereby awarded to the plaintiffs, according to its prayers, enjoining, restraining, and inhibiting his Excellency John J. Jacob, Governor, Edward A. Bennett, Auditor, John S. Burdett, Treasurer, Benjamine W. Byrne, Superintendent of Schools, Charles Hedrick, Secretary of State, John L. Cole, Librarian, J. Bernard Peyton, Clerk of the House of Delegates and keeper of the Rolls, and Joseph L. Miller, Clerk of the Senate in and for the State of West Virginia, both in their official and individual capacities, their agents, and employes and all other persons, whatsoever, aiding or assisting therein, from removing, aiding or directing the removal of the books, papers, archives, furniture and all other movable property of this State, including the State Library, the records and proceedings of the Legislature and Executive Departments, or any part thereof from the city of Charleston, in the county of Kanawha, West Virginia, to the city of Wheeling, or elsewhere, or in any manner carrying into execution the act of the Legislature mentioned in the bill passed February, 1875, entitled an act to remove the seat of Government temporarily to Wheeling, until the further order of the Circuit Court of said Kanawha dounty [sic], or of a Judge in vacation.

But this order is not to take effect until the plaintiffs, or some responsible person or persons for them enter into and acknowledge a bond, with good security, in the penalty of five thousand dollars, conditioned to pay all such coasts as may be awarded against them, and all damages sustained in the event this injunction by dissolved.


Copy teste:
W. E. G. GILLISON, Clerk.

The Charlestonians seem to regard Ward's injunction as a perpetual affair, at least it would seem so from the manner in which they dish it out, days after it has been dissolved.


Captain John McLure upon arrival in Charleston, delivered the following paper to Governor Jacob:

May 21, 1875,

Gov. John J. Jacob, Charleston, West Virginia.

DEAR SIR: The steamer Emma Graham is now at the public landing at charleston, subject to your order, for the purpose of transporting the public property and the officers of the State Government of West Virginia to the city of Wheeling, West Virginia, as provided for by law and agreement.

Your will please not detain the boat longer than necessary for the service, as proviso is made in the boat's charter agreement not to be delayed at Charleston exceeding twenty-four hours after her arrival, without additional compensation. Yours, very respectfully, JOHN MCLURE.
Captain in charge of Transportation.

The State officials are all aboard, and many citizens bid them adieu. At about noon a signal tap of the bell is given and the boat is moving off, amid the roar of cannon.


On Thursday was one long to be remembered, and long to be regretted by every good citizen of the state. Here were a wily set of lawyers endeavoring in every way to induce Judge Smith to issue a peremptory order commanding Governor Jacob to appear in court, hoping if that order was issued and not obeyed the Governor would be committed to jail. The trial we read of in Holy Writ, when Pilate wanted nothing to do with it, was no more a mockery and a farce than were the doings here yesterday. Judge Smith was anxious to have nothing to do with the case, after the injunction was dissolved, as ever Pilate could have been to get rid of the case before him, but the crowd urged him forward, and such fellows as Ferguson and Walker were in their glory. Never has rascality and fraud thrived anywhere as it has at Charleston since it has become the seat of government. The place will ultimately be benefitted by loosing [sic] the Capital; the wily scamps who have infested her limits and fattened and enriched themselves at the State expense will soon be compelled to leave, and if Charlestonians put forth one-half the efforts to develop the mineral wealth and other resources of the Kanawha country, they have to retain the Capital, a bright and prosperous future is in store for them.


It should be remembered that Governor Jacob has had to fight this battle almost single-handed. With the exception of Attorney-General Mathews, the State officials have been favorable to remaining in Charleston. In fact, in one of the offices little or nothing was packed or gotten ready for shipment. Had the Governor had the unanimous support and co-operation of the State officers, and had not the people of Charleston been led to believe that a majority of the officials would remain and under no circumstances go to Wheeling, the warfare would have been more successful at every point for the State, and waged less bitterly by the injunctionists. But when Charleston relied on a majority of the State officers remaining and sticking to the old State House, she took courage. But in this she was deceived, for when the Emma Graham cut loose from the wharf every official was aboard, and the denizens uttered curses both loud and deep against the men who were relied upon to stick to the waning fortunes of the late Capital. Governor Jacob never swerved from his duty. He said he would enforce the law; he refused to recognize Judge Smith's jurisdiction, paid no attention to his orders, and only yielded to leaving the public property in the old State House in order to avoid conflict. It would have taken an armed body of men and a bloody conflict. The Governor had no troops, and desired no bloodshedding.


We arrived at Point Pleasant at half-past 6 o'clock, where we learned that Judge Moore, of the Court of Appeals, had granted the appeal asked for by the anti-removalists. Lest some of your readers may be under the impression that this action was taken on sight, it may be stated that parties waited on Judge Moore last Wednesday night, and requested him to be at home, as he might be needed, especially if the injunction was dissolved. I have not learned whether any advance sheets of the Judge's opinion have blown out of the window or not.

No better man than Captain John McLure could have been selected to have gone on the important mission. By his gentlemanly bearing and kindly disposition, he won the respect of all with whom he came in contact.

The Emma Graham is a magnificent steamer, and her officers are gentlemen in every sense of the word. The committee were fortunate in selecting such a well ordered boat for the important work. At Parkersburg the part were transferred to the elegant side-wheel steamer Chesapeake, an equally well managed and officered craft.

From Point Pleasant E. W. Wilson, Esq., of Charleston, a very clever gentleman indeed, accompanied the party, having in his possession the following paper authorizing the appeal:

State of West Virginia, to wit:

An appeal is allowed, as petitioned for, to take effect as a supersedeas, upon bond being given as required by law in the penalty of five thousand dollars May 20 1875.


To O. S. LONG, Clerk Court of Appeals.

Judge Ward, having heard that Judge Smith had dissolved the injunction and declared the removal act Constitutional, is reported as having remarked that Gov. Jacob would be a foolish man if he paid any attention whatever to the mandates of Judge Smith.

It is claimed that Judge Ward, since granting the injunction, has been obliged to double his force both in the manufacture and sale of his magic relief.

On the way up from Parkersburg the Chesapeake was boarded by some twenty Wheeling gentlemen, who had gone down on the steamer Hudson to accompany Governor Jacob and party to the Permanent Seat.

The following comprises the names of the gentlemen who left Charleston for Wheeling on the Emma Graham:

John J. Jacob, Governor; Benj. Daley, Private Secretary of Governor; C. Hedrick, Secretary of State; John S. Burdett, Treasurer; E. A. Bennett, Auditor, and family; B. W. Byrne and daughter; W. A. Cracraft, Clerk; E. L. Bills, Clerk; Geo. L. Bennett, Clerk; John L. Burdett, Clerk; Patrick Daily, Janitor and family; Geo Engle; Capt. John McLure, Wheeling; Judge R. H. Cochran, Wheeling; W. H. Taney, Wheeling; Wm. H. Oxtoby, Wheeling.

Auditor Bennett took the railroad at Parkersburg for Fairmont, intending to reach Wheeling Monday. The remainder of the party came to Wheeling by boat.


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