The Convention was opened with prayer by Rev. Robert Hagar, member from Boone.
After reading of the record,
MR. RUFFNER. I see it recorded in the morning's proceedings that the proposition of the gentleman from Wood, on a motion of a member from Ohio county was "referred back" to the Committee on County Organization. I apprehend that the word "back" is not properly used there, for it would imply that it had been previously in the hands of the committee.
MR. STEVENSON of Wood. I did not notice particularly the wording of the minutes; but I offered an amendment to the 9th section to strike out the word "fifty," in the 87th and 89th lines. I do not think it was in the minutes.
MR. BROWN of Kanawha. Mr. President, I believe when the Convention adjourned last evening there was pending a motion of the member from Ohio county to appoint another member on the Committee on the Legislative Department.
THE PRESIDENT. Will the gentleman from Kanawha please wait until the Chair has signed the minutes?
When the Convention adjourned on yesterday evening it had under consideration the motion of the gentleman from Ohio to appoint the gentleman from Hancock on the Committee on the Legislative Department.
MR. CALDWELL. Mr. President, I desire to say in consequence of the action of the Convention at the close of the session yesterday evening, that I do not wish at all to be regarded as discourteous to any member. When I made the motion to adjourn, at the instance of the member from Kanawha I withdrew the motion; and on reflection I think I did wrong in not withdrawing my subsequent motion on request of the member from Ohio in order that the question might be taken on the motion he indicated to add the member from Hancock to a committee. I merely rise to say that it was not done out of any discourtesy towards the gentleman from Ohio, but that I merely desired the Convention to adjourn and without reflection insisted on the motion. I regret I did not withdraw the motion so as to give the gentleman from Ohio the opportunity of making the motion he indicated.
MR. LAMB. Mr. President, that motion was made in some degree under misapprehension. I withdraw it. Though I shall be rejoiced to have the assistance of the gentleman from Hancock, I do not wish it to stand as my motion, sir.
MR. POMEROY. Mr. President, I wish at this time to call up a resolution offered on Tuesday evening and tabled by the gentleman from Marion to fix the hour of meeting at nine o'clock in the morning. I hope the resolution will be taken off the table and considered without discussion. I think the Convention is ready at this stage of the proceedings, with as much business as has accumulated, and I move that the resolution be taken up from the table.
The motion was agreed to.
MR. POMEROY. I now move to adopt the resolution, that the hour of meeting be nine o'clock hereafter. I think it plain to all we ought to meet at that hour.
MR. VAN WINKLE. I think, Mr. President, that nine o'clock is too early. We do not get a very full attendance at ten. I don't think it is worth while to change. The days are getting longer, and if we do change, I prefer half-past nine. That would save only half an hour. We ought to have a little time in the morning to take a little exercise or something of that kind. We sit now two and a half hours in the morning, more in the afternoon, which makes a pretty good day's work when it is all put together. I will move to substitute half-past nine.
The amendment was agreed to.
MR. STUART of Doddridge. The resolution is perhaps all right to call up some day in the future. This morning I was called into committee at nine, and in all probability would have to go on that committee again at nine tomorrow morning. I think it is better to wait until that committee have reported. Unless you do, I at least will be deprived of acting on the committee.
MR. VAN WINKLE. The resolution as amended now reads half-past nine. I will move to make it take effect after Monday next.
MR. STUART of Doddridge. Any time after the committee has reported. I expect to be on it tomorrow morning.
MR. VAN WINKLE. I thought the gentleman referred to his business in connection with the other house. I will offer that amendment, to insert "on and after Monday next." That will give us a little notice, and we can make our arrangements to be prepared for it.
MR. LAMB. I certainly am in favor of anything that will expedite business; but it seems to me that meeting at even half-past nine will retard instead of expediting business. We must have time to prepare things in the morning before we meet in the Convention or we come here without anything ready. The time will not be lost, if you allow members half an hour or more in the morning to think about the matters that are pending in the Convention or to prepare themselves for acting considerately when they come into the Convention. I do not believe the change to half-past nine will at all tend to expedite business.
MR. POMEROY. The change now contemplated does not reach the point I wish; but I am willing to go for this change, and why we should defer it until next Monday is something that I cannot see through. These nights are somewheres in the neighborhood of 15 to 16 hours long, and why committees cannot meet during these long evenings must be for some reason that I would not wish to impute to this body. There is no man of good sense - and we have no other kind of men here - that wants to sleep sixteen hours. Now, there is becoming general complaint that this body only sits five hours out of twenty-four. Now, we merely wish to add a half hour. It is very evident to the President and every member that members will have their say-so, that there must be free discussion and that it must go on until the subject or strength of the members is exhausted before the vote can be taken; and why not add this additional half hour? If we are going to economize in regard to the salaries of officers to be created under the Constitution, why not economize ourselves. Why cannot every man be here by half-past nine? If the committees wish to meet, why not meet at night? Besides, the report of every committee is before us and we are at the close of a third week on a single report. When will we get through in this way? I hope the Convention will not postpone the matter. There are two days of this week yet in which we may save time. I am willing to extend all the courtesy we have ever extended to members in the legislature. We have a recess of three long hours in the afternoon. We do that through courtesy to them; and now why idle away from daylight to ten o'clock in the morning before we meet? Why may not we be going on with these discussions and why not meet in the morning when everything is revived by the refreshment of the night and go on with the discussion? I am in favor of meeting at half-past nine when we cannot get nine.
MR. POWELL. I was in favor of the original motion, to meet at nine o'clock, and now in favor of the motion as amended and opposed to the amendment now offered. We certainly are consuming a great deal of time here, and while we are all enlightened by the debates and interested in them, I think we might meet sooner and get done and have more time. We will get through as soon as possible. Our Constitution should be submitted to the people; then it may come before Congress, if the people vote in favor of the Constitution. I hope that gentlemen, then, will vote against the amendment and vote for the resolution as it has been amended.
MR. BROWN of Kanawha. I do not wish to punish any gentleman, but I confess I am in favor of the earliest hour we can meet. Since it is impossible, it seems, not to do this without discommoding some persons, we must disregard the few. I know a few of us are members of both houses and find ourselves very much perplexed and find that discharge of the duties in both places to the full extent we would wish is entirely impossible; and I do not think the Convention ought to waste time on the few where it is impossible under the circumstances to accommodate ourselves to the action of this body entirely. It can though to some extent arrange it so as to a great extent avoid the difficulties. And I therefore think that since the gentleman from Doddridge will find himself almost equally discommoded by half-past nine, it is well to get the greater good that the greater number should adopt nine. So far as I am concerned, to split the hour does me no good and it may as well be appropriated one place as another. I certainly think we ought to use all the time we can now in the house. There are a great many suggestions and opinions to be introduced and prepared in the house. The main work has been done in the committees, but I feel some relief on this account now by the addition of another gentleman from the south section of the State to the Committee on the Legislative Department that I can be absent from that and attending elsewhere.
I desire while up to say, personally, that that is the chief motive inducing me - in fact the only one - to have the aid of that gentleman on the Committee on the Legislative Department. The apprehension that seems to have been caused elsewhere never entered my mind.
MR. HERVEY. I hope that the motion to postpone until Monday will not prevail. I hope this Convention will put its shoulder to the wheel and roll on this ball and finish this Constitution and submit it to the people. There is a serious responsibility resting upon our shoulders. While I believe every member is desirous of getting through as soon as possible, if we procrastinate this thing and sin away our day of grace, the people will hold us to a direct accountability. I am in favor of putting it through.
MR. STUART of Doddridge. I am in favor of the amendment offered by the gentleman from Wood and would say to the gentleman from Hancock that after next Monday morning if he will suggest five o'clock to me he will always find me here. But I desire to be in attendance on the Committee on the Legislative Department, and I have labors in other committees which occupy my time every night. It extends anyhow till twelve and many times till two or three in the morning. And I have asked the chairman of the Committee on the Legislative Department to meet me in the morning. You have sent back a report to that committee which this body had been talking on for four or five days. We want to harmonize it and I want to give them the benefit of my labor if I can. I will vote for the amendment of the gentleman from Wood and after that I will vote for five A. M.
MR. POMEROY. Whether I would or would not vote with the gentleman for five A. M., I am very certain the majority of the Convention would not and therefore the suggestion, although thrown out kindly, is not a practical one. We could not get the Convention here; though if the gentleman and myself were here we would form a very respectable convention - so far as numbers are concerned.
MR. LAMB. I merely wish to call the attention of the Convention to the fact that there is a report to be made from the Committee on Education, another to be made from the Committee on the Schedule; a report from the Committee on Fundamental and General Provisions was recommitted and they will have a further report to make - so that we are not by any means through with committee business yet.
MR. BROWN of Kanawha. I cannot concur with the gentleman from Doddridge to come here at five o'clock, for that I think would fail to attain the end; but I have no objection to extending the time if the gentleman desires till Monday, and after that I will meet him at eight. I think that is an hour we can all attain. Therefore we had as well come at eight. And that lengthening of the session from eight till dinner will accomplish something.
MR. VAN WINKLE. The whole Convention has intermitted its session from half-past twelve to half-past three every day since it has been in session for the accommodation of the gentleman from Kanawha and others. Now, sir, there is an hour and a half if it was not for that fact that might be added to our diligence without any inconvenience to anybody; but while that state of things continues, while the legislature is in session and the members of this Convention are disposed to extend that courtesy to the members of it, I do not think we can make any change that is likely to be beneficial in the hour for beginning the morning session. Now, if personal convenience is the thing to be sought I am willing to come from half-past nine to ten and to sit right straight ahead until we get through for the day. I would rather sit from nine or ten until we complete the number of hours and go home and then you would not lose the time that is wasted now. But, sir, we are told the committees can do the work at night. The committees meet in the evening and sit till then, and then we have gone home and worked until two. Well, then to come up in the morning without a chance for a short walk, or to smoke your cigar after breakfast and be ready here, because somebody at home will say something! Well, sir, if my constituents do not know what my habits of business are, if they think I am inclined to take time for play when I ought to be at work, or if they think there are any amusements in this town to lead us away from our business, they are much mistaken. We are all grown up men, come to years of discretion, according to lot at least and if they cannot trust us to fix for ourselves the mode of doing business, they had better get another set and send them to take our places. That is my impression, sir, and this matter ought to be arranged to our inconvenience and disadvantage lest somebody out of doors should think they know better than we do how to arrange our methods of working. If we can arrange it to expedite the business of the standing committees and to accommodate members who are connected with other bodies and get along as well as we have done, I do not think there is any cause to complain. A mechanic can work ten hours at manual labor. The value of his work, the reward of it, depends chiefly on the time bestowed on it from day to day. The excellence of our work depends on other things - largely on the freshness and intellectual vigor we can bring to it; on the thought we give to the various ramifications of it, and on the information bearing on it that we are able to bring together and digest for our purpose. The true economy in work of this kind is not in haste, not in denying ourselves sufficient time for the many investigations required; but in producing wise, efficient judicious provisions without any reference at all to the time necessary to do this. An ill conceived, ill assorted, inoperative and mischief-working Constitution would be dear at any price; a good one, judicious and beneficent in its provisions and permanent because it meets the requirement of the people, will be cheap at any cost. All thought of petty economies in such a connection is trivial.
It has been said by physiologists and physicians that six or seven hours a day of mental labor is as much as a man can stand for a great while. If we work five hours here and two or three in connection with the committees we are performing all that our doctors think good for our health, and those who wish us to do more are unreasonable, no matter whether in the Convention or out of it. I am willing to fix such hours as will be sufficient for the dispatch of business; and as much as the majority of members, I can adapt myself to most any circumstances that are named, but do not like to have changes made. And this mere idea that we are to be judged by the number of hours we spend in this hall is unworthy of our notice. No deliberate body with which I have ever been connected has confined itself more closely to the subject before it than this. There has not been a buncombe speech made in this Convention. I do not think any gentleman has spoken for the sake merely of saying something. I have noticed it from the beginning that every speech, everything that has been said, has been right on the business of the Convention. Now, sir, we have been getting along just as well as I expected we would or as well as anybody could. Our progress will be accelerated after a little. When the committee reports are all in, when these questions over which there are differences, such as the apportionment of the legislature, about which it is very hard to everybody, are disposed of, we might meet morning, noon and night and spend the time and perhaps get along very fast; but the members will find that the time that has been spent so far has been well spent and that the further we go on, the more rapid will be our progress. I think we can close the session within the time that was reported here.
MR. HALL of Marion. I, sir, moved this resolution some days since because I was satisfied we had a great amount of talk that would be done and must necessarily be done; and I am like the gentlemen who have preceded me, I see no reason why our committees may not meet at night. And while the remarks of the gentleman from Wood are entitled to weight in that respect, yet in view of the fact that the labors of large numbers of the committees are practically over, I think that cannot apply hereafter. While it may not have been proper in the onset to occupy more time in the actual sittings of the Convention, I think now we may. I have no idea, sir, that this motion would be permitted - I know it was not moved with any reference to what anybody outside or anywhere else would say or think about it. I know that there is at least one member of this body who does not care anything about what is said outside or inside by members, people or anybody else in reference to this thing, because I am just ready to go home and do anything else if anybody is dissatisfied in Marion. I do not think that is the motive that is influencing this body. We do see and know, and did in the onset, that there would be necessarily a great deal of talking, and it takes time to do it. Whilst the labors of those who are upon the committees still engaged will be considerable outside of the hours that are occupied by the sittings of the Convention yet we have the opportunity of resting between times. When my friend speaks, I sit and listen and rest myself. It is true there is mental labor in this thing, because we are all interested; but still I think in view of the fact of the necessity that we get on as rapidly as possible - of course, never in such haste as to leave anything undone, but as soon as we can - I think it is the desire of all, inside and outside, the interest of all, that we should get on as rapidly as possible; and I trust we will adopt the half- past nine hour. I would have been very glad if we could have made it nine. I can understand and appreciate why the gentleman from Wood may feel that he has a right to urge the objection with reference to labors on committees. We all know how laborious he is. I apprehend he has such a reputation at home that he is not alarmed about that. We know he has a great deal of labor assigned in this body; and if it is too onerous he might be relieved and somebody else set to aid him if we could get anybody to fill his place. However, I am satisfied he will row his boat over, what hour we meet. I trust it may be the pleasure of the Convention to adopt the half-past nine amendment.
The amendment was agreed to and the resolution as amended and was adopted.
MR. LAMB. Mr. President, the Convention had yesterday under consideration the 35th section of the report of the Committee on the Legislative Department. A motion was made to adopt the section as amended. We met after the recess, and the question on the 35th section was laid over on account of the absence of the gentleman from Kanawha. I gave all the explanation yesterday that I consider necessary and will not occupy the time of the Convention in regard to it.
MR. BROWN of Kanawha. The motion I believe that I made was to strike out after the amendments to the section had been adopted, to strike out the entire section as adopted. I believe that is now the proposition for consideration.
MR. LAMB. I suggested there would be no advantage in the motion to strike out at all, as the question could as well be put on the motion to adopt or reject. The motion to strike out requires the time of the Convention to occupy in taking two votes. Unless the section is stricken out. If your motion fails, then the motion to adopt comes up. The whole matter can be decided by one motion.
MR. BROWN of Kanawha. The only difference is an affirmative and negative vote. I have no objection to taking the one vote. I will as soon say what I have to say in the negative, as on the affirmative. The result is precisely the same. I have, sir, a very strong objection to presenting a work to the world (the State) when that is to be examined, criticised and discussed before the people, which carries in itself a double grant, to be presented in the attitude of first giving to the legislature all the legislative power of the State in the very first section in this report, and then to go on and in the second instance deal it out by parcels, identically the same thing. I would prefer to see this Constitution when it comes from the hands of this Convention be complete in all its parts, and after it was done once to be well done and not attempted a second time. It carries on its face to my mind a sort of deception on the part of the Convention. We adopt it; then what we have done once under the general grant requires to be specifically stated in particulars, or the power might not exist. That seems to carry on it a misapprehension of the very powers that the Convention have granted in the Constitution, and as the gentleman has well said, with the very simple fact, we after having given a general power go on and fertilize this with the other power of particulars; which power does seem to preclude the idea that these other powers exist. Now having got a general grant, there should be no particularization of grants, unless you intend to particularize every grant in order that it may not afterwards be said they have particularized the powers they have granted, and this not being particularized cannot be held by the legislature. For the harmony of this Constitution, for the credit of the Convention, as I maintain, and to avoid this objection to particularizing one thing and not all, and the insuperable difficulty that if you attempt to particularize you must particularize all, because it does not lie in the wit of man to make a consistent constitution otherwise, requires that since we have given the general grant we must exclude all particulars. It is both wise and prudent therefore to attempt nothing but to give to the legislature all the powers not reserved from them and then the responsibility is on them to exercise it rightfully or wrongfully; and if they do it improperly, then they are responsible to their constituency. That is the objection I urge.
MR. LAMB. I assume the Convention will recollect sufficiently the explanation which I gave of the object of this clause. I will very briefly state it again.
It is that we have already adopted in other sections of the Constitution provisions that seem to render such a provision as is contained in this section necessary. If the 35th section is not there, it will be at least a matter of question and argument whether this general power of the legislature, so far as it regards officers, prescribes terms of office, powers, etc., of officers, in the cases mentioned in the Constitution, is not necessarily cut off by the principle that the expression of one is the exclusion of another. This is particularly the case in regard to removal of officers in consequence of the provision which you have adopted in regard to impeachments. It is a very fair argument in that case. You provide by the section in regard to impeachment that all officers may be removed in a particular manner. Does not that almost necessarily carry with it the inference that they can be removed only in that manner?
In order to obviate the difficulties of construction of this kind, this section is proposed to the Convention. It is proposed too, because I find similar provisions in the constitution of every state that I have examined; and the legislative power there rests on the same basis that it does in this Constitution. The constitution of every state bases this matter upon the foundation that, in the first place, in the granting of legislative power to the legislature which the Constitution creates, provisions of a character similar to these are introduced into other constitutions and obviously for no other reason than because the constitution while vesting all legislative power in the legislature goes on and directs that certain officers shall be appointed, because it makes certain provisions in regard to terms of office; because it makes certain provisions in regard to compensation; because it makes certain provisions in regard to removal of officers, and it is necessary to insert a clause declaring that in cases not specially provided for in the Constitution the matter shall rest with the legislature. I think that the clause is probably necessary. Certainly it cannot be any very great objection to it if in order to obviate the possible difficulty of construction we add five lines to our Constitution which does relieve that difficulty. It is this clause, so far as the removal of officers is concerned, at least, that is certainly necessary if the clause in regard to impeachments remains as it is now expressed.
MR. SINSEL. The gentleman from Kanawha, it seems, is in favor of consistency. He was a member of the legislative committee that passed this first section that gives all this power to the legislature to pass laws, to remove these officers from office, etc. Now, I would like to know if that clause of the first section, taken in connection with the clause passed with the 37th section - why he as chairman of the judiciary committee should provide another clause for the removal of judges. Now if this first section passed by the legislative committee and by this Convention, and that too before we received the report of the judiciary committee, was all sufficient, why was this clause inserted in that report? Let us see what it says: "Judges may be removed from office by a concurrent vote of both houses of the legislature, but a majority of all the members elected to each house must concur in such vote, and the cause of removal shall be entered on the journal of each house. The judge against whom the legislature is about to proceed shall receive notice thereof accompanied by a copy of the cause alleged for his removal at least thirty days before the day on which either house of the legislature shall act thereon." Now, if this clause proposed in this 35th section is unnecessary, is not the clause I have just read much more so? I think so. Well, now, the 37th section is liable to this interpretation that all officers or judges might claim before the magistrates if they were indicted for maladministration, corruption or any of the crimes mentioned therein that the legislature had not the power to pass such a law, and they would turn to the 37th section, in the legislative department, and there show that they must be tried by the legislature, that they must be impeached. That is one of the difficulties that would arise. Innumerable cases of litigation would grow out of this very clause; but if the 35th section is unnecessary, it does seem to me the 13th in the report of the Judiciary Committee is equally so. I think if the Convention wants to remove all doubt as to what is meant, they had better adopt the section.
MR. LAMB. I want to call the attention of the gentleman from Taylor to a provision in the report of the Committee on County Organization, the 6th section, page 4: "They (the legislature) shall further provide for the compensation of said officers by fees, or from the county treasury; for their removal, in case of misconduct, incompetency or neglect of duty; for filling vacancies not herein provided for, and for the appointment, when necessary, of deputies and assistants, whose duties and responsibilities shall be prescribed and defined by general laws." This section, if it is properly drafted, may save the trouble of repeating this provision over and over again in half a dozen places in the Constitution; and all the committees seem to concur that something of the kind is rendered necessary by the other provisions of the Constitution.
MR. BROWN of Kanawha. The gentleman from Taylor, rather, it seems to me, has gone out of his way to war upon me because I am opposing this amendment and with having as a member of the Judiciary Committee reported a similar provision, as he supposes, in the case of judges. Now, however, I might have been for the case there and against it here, I do not see that that has much to do with the case. But, sir, I am prepared to defend the position there and here. If the gentleman will look at that provision a little more carefully he will see that it has no relation to the subject under consideration; that that is establishing in the legislature not a legislative power but a judicial tribunal. This is conferring on the legislature the right to make a law which has already been granted. Because I understand the right to make every law is the right to make any law; and the right to make every law not prohibited has already been granted. But this first section does not grant to the legislature the right to sit as a court to perform judicial functions, with power of impeachment. To make the senate a court and the house the accuser is establishing in the legislature a different characteristic and power from that of ordinary legislation; and therefore it was highly proper in the judiciary committee, whenever it undertook to submit the cause of a high officer in the State to a jurisdiction that has not been prescribed by law to fix it in the Constitution and to throw carefully guarded securities around the individual to provide that the cause of impeachment must be stated, the party must be notified in time sufficient to give an opportunity to defend himself; that the senate shall sit as a court, and be on oath; that the house shall be the accuser, and shall have a fair opportunity for that purpose. There are various securities there against the mal-administration of justice in this judicial function given to the legislature. This I understand is only providing in this legislative department that the legislature may make a law governing or removing officers from office; and who can deny that every legislature has the right to make a law to remove any and every officer from office whenever his conduct shall be not in accordance with the requisitions of the law? The right to make any law declaring anything to be a duty or a prohibited act involves also the right to remove that officer from his office. The legislature makes general laws, and it cannot punish him individually but by taking away from him any franchise that has been conferred if he violates the law on which the holding is made a contingency. And there can be no question about the fact that unless the legislature has power to do everything that is proposed to be in this 35th section it has no power whatever to pass any law; and that you are establishing a legislature that is a mere idle concern called together for no purpose but to carry out these individual grants of power to it. That is not my idea of the legislature of any state in this country or the legislature we are proposing to call into existence. My wish in this is to give to the legislature every proper power a legislature ought to have, leaving it free to exercise those powers, restraining it only in that which is necessary to guarantee rights and against mal-administration. And I maintain as a general principle that whenever we depart from that rule the evil is you add no more power by particularization; but you only limit and restain by implication not particularly stated but which are equal under the general power granted, and that you are adding nothing to the efficiency of the legislature, even endangering its power by implication while you destroy the harmony of your Constitution. It is in effect a work of supererogation in this section; and nothing that has been claimed to be conferred on the legislature in it that I can see that is not already granted in the first section and more too.
MR. LAMB. I only want to make a single additional suggestion in regard to this section, so far as it provides for removals from office. The gentleman proceeds on the principle that all legislative power is in the first clause of the report granted to the legislature which is hereby constituted. That is correct. I wish to cite, however, to the gentleman authority of the very highest character. The Congress of the United States first assembled under the Constitution of the United States, composed in a great measure of the members who formed the Federal Constitution, embracing among its members such names as Madison. In that first Congress the question of removal from office came up. It was deliberately and most elaborately discussed, Mr. Madison himself taking a principal part in that discussion. Mr. Madison contended throughout that removal from office was not a legislative power; that removal from office was necessarily an executive power. And the decision of that Congress was that removal was an executive power. Under that decision the Constitution of the United States has been worked ever since. The Constitution of the United States makes no express provision for the removal of officers. It provides in one section that all the legislative power of the United States shall be vested in Congress; in another section that all the executive power shall be vested in a President. It has made no provision in regard to the removal of officers. The question was then presented distinctly: Is this power of removal from office included in the legislative power, or in the executive power? That Congress, the first Congress of the United States accepted and supported the principle of Mr. Madison, that removal from office was an executive and not a legislative power.
Here is one of the questions, in addition to the other, that we get rid of by this section. The other - the effect of avoiding what I take it is a necessary conclusion from provisions that you have engrafted in this Constitution, would be a sufficient reason; but this reason would also be a sufficient reason for relieving us of this difficulty. The first Congress expressly rejected the law containing a provision that by inference merely seemed to grant power to the executive. The law was proposed in such a shape that it seemed that Congress was granting the power to the executive to remove officers. They did strike out the clause that seemed to grant that power for the express purpose of carrying with it the implication that the power was granted to the executive of the United States by the Constitution of the United States and that Congress had not the power to grant it; that it was an executive power vested in the executive by the Constitution of the United States; that Congress had not the power to interfere with it. They would not suffer a law to pass that even seemed to imply that Congress was granting this power to the executive. Such I know to be the fact, for I investigated that matter at one time most carefully, reread the whole debate on the subject from the beginning to the end of it.
We get rid of that question, anyhow, by this clause; and the gentleman's inference is not so clear that so far as regards removal from office it would be necessarily within the legislative power.
MR. BROWN of Kanawha. I have listened with pleasure to the illustration given by the gentleman from Ohio; but I think that he has wholly misapprehended the application of it to this case. He forgets, in the first place, the character of the Government of the United States is wholly and totally different from that of a state government; that the former was created by the grant of specific powers in the Constitution, and that no powers are there granted that are not specially named or those incidentally arising out of grants; that the whole government in its frame and structure and nature is the very antipode of a state government. The one has nothing except what is given to it; the other has everything except what is taken from it. That is precisely the character and nature of the distinction between the two. One has nothing that is not specifically granted or necessarily arises by implication; the other possesses everything that is not specifically reserved and withheld from it.
But, again, the officers alluded to in that case, as you will recollect, in the character of that government, the officers are appointed by the executive. The appointees can be removed without assigning any reason wherefore. He simply notifies them your services are no longer desired and the gentleman walks out of the way and gives place to a better officer. That is not the case with a state officer. That is one distinction between these two classes of governments, that an officer under the Government of the United States holds his office at the will of the executive and he alone is held responsible to the people for the conduct of the officers in the government, except the judiciary; and they are a different department provided for in the Constitution itself, and therefore it was argued that these were within the executive control and that he who was responsible for their appointment and continuance in office was to be held responsible for their removal if that was desired.
MR. LAMB. Excuse me, there is nothing in the Constitution of the United States that says the officers of the United States shall hold at the pleasure and will of the Executive. There is nothing in the Constitution of the United States in one shape or another in regard to removal from office except the two small provisions, one that the legislative power of the United States shall be vested in the Congress, the other that the executive power shall be vested in the President of the United States. The result at which the Congress arrived was simply the construction of these two clauses.
MR. BROWN of Kanawha. Very well, sir; I do not see that that changes the case in the slightest degree. The executive is the appointing power and has ever been held to hold the removing power. But I imagine, sir, it has never been held at all that the legislative power cannot pass general laws to control and prescribe the duties of the officers, to affix penalties for their failure to discharge them, and to make it obligatory on the executive if he continues an officer who disregards that a violation of his duty. I imagine it is not contemplated section at all to give to the legislature that executive character of a government, to follow out and ferret out every delinquency in the officers of the State and remove them from office. That is not what is contemplated. That is rather an executive or judicial office. That the object that this is an attempt to confer is to give the legislature the right to prescribe by general laws what shall be the duties of the office, what the officer shall perform, and if he neglects it he shall be punished for it; and it is to be for other departments of the government to carry that law into effect; to test by the fact whether any officer has violated his duty and will prescribe that either the courts or the executive, or some other department is to carry it into effect and remove him. All these removals are to take place before some of the tribunals of the land, and they will enter the judgement that he is to be removed. The man who has violated his duty, until some proceeding under the law to take his office from him is not divorced of his office. And that is not contemplated at all in the difficulty that arose in Congress; for it is not proposed to turn the legislature into an inquisatorial body to hunt up every delinquent officer, but to prescribe by general laws only what shall be the officers' duties; and if they will not discharge them, on trial and conviction of the facts they shall be removed and another put in the place. That is a legislative power that is granted us in the first clause of the Constitution if anything is granted us, then, the right to make laws prescribing the duties of all these officers and also fixing the penalties and prescribing the tribunals that shall investigate and remove them if they fail to discharge them. I think the gentleman has wholly failed to show any defect in the general grant already given.
MR. VAN WINKLE. The insertion of one word twice would, I think, remove the objections to this section - would remove mine, at any rate; and I will ask the attention of the Convention to the fact that what is provided in this section is only such cases as are not otherwise provided for in the Constitution. If there is any particular class of officers whose cases could not be committed to the legislature under these provisions, why that ought to be anticipated in the Constitution itself. There is this to be considered, sir, that by this Constitution all these state officers nearly will be elected by the people; and to give to the legislature an arbitrary power to remove an officer elected by the people would be going, I think, too far. That is to say, that if the legislature could by a joint vote remove an officer elected by the people from office it would be rather a trespassing on the rights of the people. In the clause read by the gentleman from the report of the Committee on County Organization, the principle introduced there is that wherever the legislative power is invoked in that report, the legislature must act by general laws. That is to say, it is not to be allowed to make a law to suit a particular case. It must provide the law beforehand, and then the case will be adjudged under it. I apprehend that the gentleman from Ohio is right in his inference from what was decided in the case he adverted to; and that if this is left an open matter - if there is nothing said in the Constitution as to the right of removal or who shall remove or appoint officers, that appointed officers, at any rate, would be removed by the executive. That this is not a Branch of the legislative power is what I understand to have been decided at that time; but whether that decision embraces officers elected by the people is very doubtful, because I do not know that there are any such except the President and Vice President under the Constitution of the United States. My impression is that it refers only to appointed officers, and under the government of the United States appointments are made by the executive; and there is an old maxim somewheres to the effect that he who appoints may remove.
But I think it would obviate all of the dangers that might arise out of this section to insert the word "general" before "laws," so it would read: "Shall prescribe by general laws the terms, etc." This in cases not already provided for - the terms of most of them are provided for, and. I believe the terms of all are limited by a general provision to not more than four years - and the manner in which they shall be appointed and removed, then the clause that has been adopted (or is it pending?) they may provide by law for the removal of officers or otherwise.
THE SECRETARY. It is adopted.
MR. VAN WINKLE. Well, to amend that further by saying they may provide "by general laws for the removal, etc." But it is as well now to consider for the future the operation of general laws in reference to this where other things may readily come up. That is a modern improvement, I think, in reference to legislation. The amendment of the gentleman from Marshall which he was about offering last evening proposes to throw several things there under the operation of general laws; and its tendency is to take from the legislature this private legislation or legislation for special cases, which is always productive of evil and which throws into the hands of the legislature a sort of patronage, a way to gratify individuals, the temptation to do which may be too strong to resist. Now, if all these things are provided for by general laws - for as I said in reference to another matter yesterday, the legislature are to sit down to make a law to fit all possible future cases as nearly as possible. That law is to be based on some principle in connection with the matter. A general rule is to be devised and there is no temptation to make the rule so as to fit particular cases, for the supposition is that at the time they make these general laws the particular cases will not be before them and perhaps would not occur. I should dislike to place in the legislature the power of arbitrary removal from office; as much opposed to that as the gentleman from Kanawha can possibly be. But if it is simply that in reference to officers not otherwise provided for in this Constitution the legislature shall pass general laws defining their terms of office, their compensation, what their duties shall be, and also how they shall be removed for misconduct and neglect of duty, I apprehend that no public evil can grow out of it. There will be the law on the statute-book when the party is elected to office and it will be a part of the conditions on which he takes the appointment, and if he is condemned under a law of which he has had due notice, he cannot complain, nor will the public be inclined to complain, if when the law is first adopted and it is approved by them, if its provisions have operated harshly in any particular case. They cannot justly complain of any general law if the law itself is a wise one.
I will, therefore, move to change the section by striking out the word "law" in the 223rd line and also in the amendment heretofore adopted and insert in both blanks the word "general laws." That amendment, sir, on the rule of perfecting a section as far as we can before the final vote on it I apprehend will meet the approbation of members. The question will then recur, of course, on the whole section.
THE PRESIDENT. The question is on the amendment.
MR. LAMB. I suppose that amendment should be adopted by general consent. It is only to render more explicit what is intended anyhow.
The amendment was agreed to.
MR. PARKER. I wish to say one word. I differ with the gentleman from Kanawha in relation to the division of powers of our system of government. I understood the gentleman from Kanawha to say that whatever power the people - which is, I suppose, conceded by all to be the source of all power - whatever power the people have not conferred on the Federal Government they have conferred - all else - on the state government. Well, now, I differ entirely with the gentleman on that point. I hold that the state government is as much limited in its powers as the Federal Government. The people are the source of all power. The government derives no power but what is granted to them by the people, and the grants of powers are to be determined by the constitutions, which are the letters of attorney, the only things that convey, powers to these bodies - as much to the state government as to the Federal Government. It has been said, and probably well, that the Federal Constitution requires a stricter construction than the state constitution. That is a question in my mind. I have never seen any good reason why the one charter, the one power of attorney, should not receive the same construction as the other. And when the exercise of its powers, either Federal or State, are in derogation of the rights of the people, which is the source of all power, then I say I see not why the power of attorney of one agent should not receive the same construction as the power of attorney of another agent; because the powers not granted to either of these governmental agents remain with the people.
Now, suppose we have no state constitution, what is the result? Where is the power? That power is in the people. Take away the constitution, the letter of attorney, the governmental letter of attorney is cancelled. In western Virginia, the state by its act of secession, swept it away and the power is in the people. Now, what power do we grant in the Constitution we are framing? That is the very thing we are settling here. What power do we, the people - the source of all power - give to our state government? Just what we choose. This Constitution is to tell what we give up, and what we do not give up in express terms or by necessary implication remains with the people. There can be no doubt about these principles. They are the great principles that lie at the bottom of our government; they are the principles of the fathers of this government.
One word. I will read one amendment to the Federal Constitution, drawn, I believe, by Mr. Madison:
"ARTICLE X. The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."
Now, if the people had not any power left in them but the states had the whole that the Federal Government had not got, what is the use of saying anything about the people? Perfect surplusage and unnecessary. There is the division of power. The state government has what we choose to give it by framing our state constitution.
THE PRESIDENT. The Chair would remind gentlemen that the question is really on the adoption of the section, and everything irrelevant and not appropriate to the adoption or rejection would not be in order.
MR. PARKER. I do not wish to deviate from the point. The question is now on the section. Now, we come to the 35th section. The question is whether we want it or not (Merriment). In our first section, as far as we have gone, the legislative power of the State of new Virginia is vested in the general assembly composed of two branches - the legislative power. Now, what is it? Why that legislative power is just what we in the Constitution declare it to be. It extends to just those subjects, is just to that extent that we have declared it to be in the state constitution; and no more. No doubt about that. That is because we say the legislative power of the State of West Virginia shall be vested in a legislature. It certainly does not carry the inference that we empower the legislature, clothe the legislature, with all power, with power to make just such laws as it chooses. Certainly that cannot be the inference taking the whole state constitution together; and the question is, to what subjects, on a fair construction of the whole of this instrument, do we intend the legislature to extend and no further? It goes no further. It cannot. Therefore, it seems to me that this section is certainly necessary. "The legislature in cases not provided for in this Constitution." Well, that implies that the cases here provided for are not elsewhere provided for in the Constitution. Of course, where it says the legislature shall have power, why it has it; but there are some cases where it is not specifically pointed out. Therefore, it says that in cases not specially provided for the legislature shall have certain powers. Well, now, without this, the legislature in those other cases that lie outside of those specific provisions would not have any power to touch them. The object of this is to give them that power outside of those specific cases. Therefore it would strike me that it is very important; and, as the gentleman from Ohio remarks, it is in all state constitutions that ever I see some such general power; and therefore it is highly proper to be retained as reported by the committee with the amendment.
The question was taken and the section adopted.
MR. LAMB. This completes, I believe the report of the Committee on the Legislative Department, except as to the single question of the apportionment. The committee met on that subject this morning and had the matter under consideration; but there not being a full attendance of the committee no action was had. I beg leave to take this opportunity to notify the members of the committee that we have agreed to meet this evening at seven o'clock at the room across the way, and hope that every member of the committee will be present.
MR. POMEROY. I believe the oldest report, as reported in order, if I was informed correctly by the Clerk, would be the executive report; and without attending to the amendment offered by the gentleman from Marshall - which will come up because all this whole report will have to come up to be protected - I would move to take up the report of the Committee on the Executive Department.
THE PRESIDENT. There is a motion of the gentleman from Marshall already pending.
MR. CALDWELL. I was going to observe that so far as the consideration of that amendment proposed by myself, I am ready to take it up. My opinion is that the Convention had better proceed to the consideration of the amendment, if it is the pleasure of the Convention. And if such is the pleasure of the Convention, I would ask them to hear me in a few remarks.
MR. VAN WINKLE. If that amendment pertains to the legislative department, the proper time for its consideration would be now; but I was about to rise on the remark of the gentleman who proposed to take up the report of the Committee on the Executive Department, to ask the Convention to take up as next properly in order the report of the Committee on County Organization. It strikes me there are matters there, and the whole thing to a great extent must be a novelty, because it proposes radical changes which may render necessary essential changes in some of the other reports. The reports on the executive and judiciary may have in some respects to be conformed to what may be adopted under the head of County Organization. I mention it now, not interfering with the wishes of the gentleman from Marshall but rather, as it were that all parties may reflect on it, that we consider the importance of having this report discussed before the others.
THE PRESIDENT. There is a motion of the gentleman from Marshall, and also a motion of the gentleman from Harrison before the house that perhaps would come in their turn if we take the report up.
MR. VAN WINKLE. Well, sir, I move, if the gentleman from Marshall has not made the motion, that his proposition be taken up.
In reference to the question of order that arose yesterday in which he made some remarks I believe I was partly wrong about it. I treated Mr. Lamb's additional section as an amendment to the report of the committee. I do not remember whether he offered it in that form or not, but my impression is now, sir, that additional sections offered by any gentleman are in the same condition precisely as if reported by a committee, and that the section offered is the original paper; and that, therefore, in that view the amendment of the gentleman from Marion last evening, the second amendment after the gentleman's proposition would have been in order contrary to what I then thought. It is only of importance that we may know before we start upon it whether that will be the ruling of the Chair. Will the Chair consider this as an original proposition offered?
THE PRESIDENT. The Chair was under the impression that there was an error in the decision of the Chair last evening making the motion of the gentleman from Ohio an amendment instead of a distinct section and now inclines to the opinion that the ruling on the motion of the gentleman from Marion was right and proper and would so decide in future. This view is given that gentlemen may understand the nature of their motions, or the opinion of the Chair about it, hereafter.
MR. VAN WINKLE. Will the Chair excuse me? My attention was called away, and I did not understand what the decision was.
THE PRESIDENT. The Chair concurred with you in that matter.
MR. VAN WINKLE. I expect the gentleman from Ohio misled us by calling it an amendment.
THE PRESIDENT. The question is on the adoption of the section offered by the gentleman from Marshall.
The Secretary reported it again as follows:
"The legislature shall pass no special act conferring corporate powers, other than for banking or for municipal purposes, or when the object cannot be attained under general laws; provided that the power of municipal corporations to tax and incur debts may be restricted by law.
"Corporations, other than corporations for banking or for municipal purposes, shall be formed under general laws, but all general laws passed pursuant to this section may be altered or amended by the legislature from time to time.
"The property of corporations created under general laws shall be subject to taxation the same as the property of individuals.
"The right of way may be granted by general laws to corporations, provided the same shall not be appropriated to the use of any incorporation until full compensation therefor be made in money - the amount of compensation to be ascertained in a court of record, in such a manner as shall be prescribed by law."
MR. CALDWELL. I ask permission, Mr. President, to submit a few remarks in support of that amendment. I think, sir, the first paragraph and the second paragraph should be considered together. The first proposes to forbid the legislature from enacting any special laws conferring corporate powers. Without the second clause, sir, it might be inferred the legislature would not have the power of passing any general laws on the subject; and therefore it was, sir, that I thought there was propriety in inserting the second paragraph. As to the propriety of forbidding the legislature from passing any special laws on the subject of conferring corporate powers, I beg leave to call the attention of this Convention to one or two facts. My object, sir, in having that provision engrafted on the Constitution is to cut off a very fruitful source of legislation. It is known to us all, sir, that at every session of the Virginia Legislature applications for the incorporation of railroad companies, bridge companies, turnpike, mining and manufacturing companies were made, to the waste of the time of the legislature and at the expense of the state, and thereby encumbering our statute books with such laws. If we take into consideration that there is scarcely one out of twenty or I might say fifty, grants or chartered rights that have gone into organization, and when we consider that these powers of incorporated companies can be and are attained as well by general laws as by these private laws, I think there is propriety in prohibiting the legislature and cutting off this fruitful source of legislation.
Another view, sir. I think it is manifest to every one that all these incorporated companies could rest upon an equal and the same footing; that no one corporation should have advantage over another. We know very well how industrious some persons are who scheme and are desirous of getting up an incorporated company, procuring the services of some prominent attorney to draft the bill in their own home perhaps; that bill sent to the legislature, sir, and by means of a lobby, members and others, a bill granting favored privileges is enacted by the legislature. I think, sir, every railroad company, bridge company, turnpike or insurance company or any other company deriving advantage over another, should all rest on the same and an equal footing.
It is for these reasons chiefly that I propose to prohibit this power to the legislature of the State. My remarks, sir, are confined to the first two paragraphs, without desiring to extend them or occupy much of the time of the Convention. With respect to the next paragraph there is one thing, however, in relation to municipal corporations to which I will call the attention of the Convention. It also requires the legislature to prescribe the amount of taxes that any municipal corporation may lay, the amount of debt any municipal corporation may create. Now, sir, we know, I know the evil in my own little town of taxation, of a debt having burdened tax-payers of our town; and I think there ought to be a restriction, that the legislature should have the power of restricting as well as that of incurring debt on the part of the corporations that we create. I next refer, sir, to that portion of the amendment in relation to the taxing of corporations as well as individuals. Perhaps, sir, under the report of the Committee on Finance and Taxation there might be no necessity for those two lines which comprehend and embrace this power. If I recollect aright, sir, the report of that committee gives the power to tax all property equally, and I would infer, sir, that the property of a corporation would become the subject of taxation as well as that of individuals. If, therefore, it is the opinion of the Convention that there is no propriety for this particular branch of my amendment, I have no objection at all to this being stricken out.
The last portion of the amendment is in reference to granting the right of way; that compensation to the land-holder should be paid in money previous to the corporate authority exercising or in any way assuming authority over the property. That it should be paid for in money I think is clear to the mind of every one. Now, sir, I understand that these incorporated companies have located their roads and that they may, perhaps, under the laws of Virginia as they exist now by the appointment of commissioners to condemn ground for their purposes, they may make application to have those commissioners appointed and take possession of the ground, but months or years may elapse previous to the action of this commission because of litigation in the courts between the company and the land-holder. In the meantime, without regard to this decision having been made they go on with their work of making the grade and to a very considerable extent damage the land-holder's property previous to the land-holder ever receiving any compensation until something may occur to this company by which they are rid of his suit. Financial matters may involve the company so that it will be required to suspend its work, when it has in fact committed damage to a considerable amount to the property. Therefore I think there is a propriety in providing that the land-holder shall be compensated in money previous to the incorporated company exercising any rights over the property of the land-holder. I had intended also to say that the land-holder should be entitled to not only a fair compensation for his land, as might be determined in manner pointed out by law, but that he should have his compensation for his land beyond any benefit that might be derived incidentally from the improvement of the balance of his property. Now, when you, members of this Convention - the legal members - look at the present statute of Virginia you see that the land-holder is to be compensated for the land occupied and then the commission is required to ascertain what are the back benefits resulting to the land-holder from the opening of the road; and taking into consideration the damage that is done, to the residue of the tract of land not occupied by the railroad. My idea is that he should not only have compensation for the land occupied by the railroad, but the damage done to the residue of his tract without reference to any back benefits he may derive from the opening of the road; because these according to my experience are almost always imaginary. It is impossible for any five or twelve men to ascertain what the benefits shall be. It is matter for the imagination. It cannot be ascertained, sir, until the road is made and worked perhaps for years what the benefits will be derived from the making and working of that road. But, sir, I am content to leave this matter with the legislature, with saying simply that the compensation shall be paid in money before the company, organized under general law shall assume any control of the property at all; leaving the legislature to determine whether these benefits shall be a consideration or not.
These are about all the views I intended to express at present in support of the amendment.
MR. BROWN of Kanawha. I must urge against this amendment the same reasons I have urged against others, because it seems to me liable to the very same objection. "The legislature shall pass no special act conferring corporate powers, other than banking or municipal purposes, or when the object cannot be attained under general laws." That is not liable to the objection I have urged against some other sections that have been adopted. "Provided that the power of municipal corporations to tax and incur debts may be restricted by law." To this section I urge a specific objection. Here is a prohibition on the legislative power. If it is the intention of the Convention to prohibit the legislature from exercising its legitimate functions, then this clause meets the case. Here is a specific restraint on the power of the legislature. The question thus addressed to our consideration is, Is it wise to limit the legislature? What good is to be attained by the restriction? There is a distinction made, and from the very distinction I will argue that there is a reason for not making this restriction. The legislature, says this clause, shall pass no special act conferring corporate powers, other than for banking or for municipal purposes. Why should banking corporations be put on any special or favored ground other than other corporations? Why shall the banking corporation, be permitted to be granted by the legislature but a railroad corporation, for the internal improvement of the country, shall not be permitted? It seems to me this discrimination is rather against the interests of the country than for them. Of all the corporations within the limits of the land, those that look to internal improvement by combinations of capital under the guaranties of a corporation are the most for the public weal. It is said that is to be supplied under general laws; but, sir, greater difficulties arise in this case than in any other. We have general laws now authorizing the incorporation of a mining company to operate in some particular locality by a proceeding in court, and that is all right. I do not wish to restrict the legislature in that particular from granting a law, because the legislature has the general power to make all these laws, to require a party to go into court instead of going to the legislature for a charter. But if you will notice, the legislature in this state has wisely guarded that that shall not apply to those corporations that are general in character and which are to extend in their operations over a large extent of territory and through many counties and large communities. It is confined to these corporations that seek to operate for private advantage and not for the public, to some particular locality, and it will therefore be known to the court that has jurisdiction of the case, that the whole case shall be brought fairly and properly within the provisions of the law. So in the case of mining and manufacturing establishments. All may be brought within this general law, and very properly. But that is not restriction on the power of the legislature to grant a charter of a general character if they see fit. The legislature may very wisely require the parties by law to come into these jurisdictions to extend a charter; but then it does not limit the power of the legislature to grant any similar case if necessary. But this section will prohibit it from granting any railroad charter. They are ordinarily extended by the legislature for public companies, given for private.
If there is anything that commends itself to my mind, it is to preserve in the legislature the power of granting charters for internal improvements. It is, that to throw it into the hands of any other tribunal is to make it local in its nature while it is general in its character. Could we get a charter to-day in the counties through which the Baltimore & Ohio Road passes? Ohio might grant it; the next county might refuse it. Again, if you place the whole of our improvements in the hands of a general law, what is the result? From that very hour you take from the legislature the right and power and control the interests of the State. What do we have now going on in the legislature but controversy between two parts of the state and between two great corporations one partly in the state and the other out of her reach, demanding the right of way across the territory of the state, one to add to the franchises it has obtained; the other which it has not obtained. If you vote to take this control away from the legislature, you at once give up the rights of the people. The action of any smaller section or municipal body that may choose to dispose matters as they see fit, and having complied with the provisions of the law that we made when nobody foresaw its action, you could never disfranchise them. It seems to me therefore that this is an attempt to limit the legislative power in the case of the representatives of the people in a most dangerous essential. For the reason then that I can see no ground of making a distinction between corporations, I must oppose it; and for the reason that it takes out of the hands of the conservators of the public weal, the legislature, and places these interests in the hands of some particular local jurisdiction that cares nothing about the general interests of the land, I must oppose it. The other provisions are liable, as I stated before, to the abuses I urged against the other section. They are right in themselves except that this is but a repetition of power already conferred. "That property of corporations created under general laws shall be subject to taxation the same as the property of individuals." The legislature can pass such a law; and we have passed a provision, I believe, in some of our reports that taxation shall be uniform. I have no doubt such a provision will be passed if not yet done, and we can cover this case.
There is another provision here that provides for the compensation of persons whose property has been taken by any corporation. Well, it provides that the right of way can be granted by general laws to corporations, provided the same shall not be appropriated to use "until full compensation therefor be made in money." We have adopted a provision in fundamental provisions that private property may be taken for public uses on just compensation. That covers this case as I understand? Therefore it would be unnecessary to repeat it in a specific clause. I presume it will be the policy of the Constitution not to tolerate the capture and appropriation of private property whatever to public use without the consent of the owner except on just compensation. That is a provision of the Constitution of the United States and I do expect the same provision is in the constitution of every state in the Union, and as long as liberty lasts in the land, I presume it will continue to be so. Without that general proposition, I should vote for this most cheerfully. With that general proposition it seems to me this proposition is unnecessary. "The amount of compensation to be ascertained in a court of record in such a manner as shall be prescribed by law." That is a matter for legislation. Again, the Constitution providing that private property shall not be taken for public use without compensation, the mode by which proper compensation is to be ascertained is always a matter for the legislature; and if this is legitimately a legislative power, there is no need for any specially delegated authority in that particular case. With these views, I find myself compelled to vote against the whole proposition.
Mr. Parker arose.
MR. SOPER. I wish to propose an amendment. The amendment I propose is to strike out of the second line the words "banking or." I believe, Mr. President, it has been truly stated by the gentleman who introduced this proposition that one of the great objects in having general laws is to relieve a large portion of the business otherwise falling on the legislature. Another object, I apprehend, is, sir, to place individuals upon an equality, whoever may have a desire to combine their capital for special purposes. It is, sir, with this view that I ask that the words indicated may be stricken out. If there is any portion of our legislation which wants so much guarding it is that in relation to banking; and the time will come in this State when bank charters will be sought after probably not only from individuals within the State but from individuals from outside the State. As we all know there is no power in this country that can be exercised so fatally, and beneficially also, as the use of money, the power of capital. Now, the difficulty of leaving this matter of banking with the legislature is this: it will be controlled by political preferences and it will be used for political purposes. In this point of view, sir, it is injurious to the community at large. That has been the history of legislation in other states and it will be the history in this State unless we can adopt some general law for the organization of these banking institutions and prevent it. If you pass general laws by which men can go into banking operations, then so far as political preferences are concerned that objection does not exist, because any man or any set of men who will come within the scope of these general laws will have a right to engage in the banking business, and it is placing that branch of business on an equality to all the people in the State. That I suppose to be the controlling reason why if it is possible we should place the granting of bank charters upon a principle that it would be equal throughout the whole portion of the State.
There is another view, sir, in relation to this banking operation. If you leave it open to the whole community, you do away with what is called moneyed monopoly. If you leave it exclusively to your legislature you may establish your bank in Wheeling, the mother bank, but she may get such influence and authority as to establish her branches in every county in the State. If you should do that, sir, she would have the power of controlling such interests as would probably be very seriously condemned hereafter. I know very little about the act of incorporation. I have never had occasion to examine it, sir, and I know very little about it; but I do recollect when the great struggle was in this country between the monopoly of the Bank of the United States and the power which the state banks exercised in opposition to it, and I know it was there a struggle, in a great measure, for political power between the friends of the Bank of the United States on the one side and the friends of the banks of the different states on the other, because the great power of the one had a great tendency to hamper and control the power of the weaker.
But, sir, if you have your general laws the banking institutions under those general laws will be separate and independent; and it makes no difference how many of them we have in the State provided the legislature only guarantees and protects the bill holder. That is as far as I think the legislature ought to go, and that is as far as the people ought to ask protection; and this undoubtedly can be done. The bill-holder may be protected; and then let gentlemen enter under these general laws into the banking operation, as many and wherever they please, use their own money and in the way they please; only have it so that they will be brought into competition with each other and dependent on the public, the public will be benefited by them.
It is for these reasons, sir, briefly stated that I ask to have the words "banking or" stricken out; so that if we should adopt the proposition of having general laws these banking institutions may be controlled by the same general laws as any other incorporated companies.
MR. VAN WINKLE. Mr. President, I am certainly in accord with the spirit of this proposition; but I do not think it is precisely what we want; nor am I prepared to say at this moment precisely what we do want. It strikes me, however, that at least the legislature should have power - every government should have the power - to pass general laws for the incorporation of all these institutions; that is, pass laws by which any number of persons associated together for the purpose, under such conditions, of course, as would be imposed by the same laws as by that act would give the public notice of it in some way to be prescribed by the laws, to become a corporation if they so choose to do. This would be in accordance with the remarks I made on another subject this morning in favor of taking a great deal of this private legislation out of the hands of the legislature; and I am very much in favor of taking away from them as much of that kind of business as possible. If we could imagine that all private applications that are now made to the legislature could be answered beforehand by general laws adapted to the purpose, we should have reached a state of things which is a great desideratum that would prevent many of the evils which now result from every session of a legislative body.
In reference to the particular amendment under consideration, I think I would favor it. If we make banking an exception, I think we rather enhance the public evil which many people profess to see in it by making it exclusive; and perhaps that is an evil. But if we throw open the banking business so that anybody may become a banker one or more persons, at their pleasure, by prescribing these rules, those rules can certainly be made to protect and shield the interests of the public. Two classes of corporations have been referred to here. The monopoly corporation of the kind referred to there is undoubtedly and the corporation for public purposes exclusively. Well, banks and railroads have both been held to be quasi-public institutions. Railroads are so much so that the courts have refused to grant injunctions that would stop the use of a road. Banks furnish a circulation for public use, and they are also considered as quasi-public institutions. And I suppose it is for this reason that exceptions are attempted to be made in favor of them. But I think the public is only concerned with the banks so far as the circulation is concerned. That is to say, that the legislature by granting an act of incorporation seems to give endorsement to the bills of the bank when they go beyond the limits of the State. The fact that the bank is incorporated by the State seems to give character to the issues of the bank. While this is true, they should be doubly careful to prevent an abuse of the power to issue bills to serve as money. So that the rules for compelling banks to give security for the redemption of their circulation should provide for that feature, because that is the only feature in which the public in the way of legislation is concerned. As for all other transactions with a bank, it is a matter between the bank and its customers. As I always held myself to be grown up, I think I am perfectly capable of knowing how to use my money, and I do not ask any legislative interference about that. But bills having the qualities of money go everywhere; they go well where the institution can be known, as it is, by its depositors, and so on, and also where the particulars and history of its management cannot be known, but bearing always the endorsement of the legislative sanction. By the Constitution of the United States we have given the general government the right to control the currency and to 'say what shall and what shall not be a legal tender. If the proposition of Secretary Chase to make the circulation of the banks of bills having the security of the government, responsibility of the general government - if that should prevail, sir, I should certainly be in favor of letting everybody have a bank who wanted one, under the proper restrictions. I should favor, then, sir, the pending amendment, to strike out "banks or," although I am desirous of some further changes here. I do not see, for instance, the necessity of preventing the legislature from adding special clauses to the charter of a bank or anything else; but I think the power ought to be granted to the legislature, if it is necessary to grant it, of allowing incorporations only for these quasi-public purposes, banking and railroading. But for others that are of a strictly private nature, such as mining work, salt wells, or a thousand other purposes for which corporations are a very useful thing, can be provided for by general rules.
I am, therefore, as I have already stated, in favor of the spirit of this section; but it does not seem to me to approach the subject in precisely the way it should. I am in favor, at any rate, of the amendment of the gentleman from Tyler.
MR. LAMB. I am in favor of the amendment of the gentleman from Tyler; for I see no reason, if we adopt a provision of this kind, why you should make a distinct class of the banks. But neither, if that amendment should be adopted, can I see any reason for the restriction. This thing of tying up the legislature must end somewheres. We expect under this Constitution to constitute a body that will be worthy of the public confidence. If they are not, we had better not adopt the Constitution. We must entrust them with some powers, and wherever we entrust them with power that power is liable to abuse. We cannot possibly adopt a set of provisions in our Constitution that will confine the legislature in all possible cases to the strict and narrow road of the right. We trust them. We have, it seems to me, if we have erred at all in the provisions we have adopted, it is in imposing too many restraints on legislation. We have certainly not erred much on the other side. This provision for the restriction of the legislative power in regard to corporations was the subject of consideration in the legislative committee. They have reported, and you have adopted, two restraints on the legislature in regard to this matter. One is contained in the 38th section, that "No act to incorporate any joint stock company or to confer additional privileges on the same, and no private act of any kind, shall be passed unless public notice of the intended application for such act be given under such regulations as shall be prescribed by law." The other is in Section 40, that no act shall be passed to incorporate any church or religious denomination, but the title to church property, so it may be used for the purposes intended, may be provided for by general laws. These are the two provisions which the legislative committee deemed necessary as restraints on the legislative power in regard to corporations. The balance in regard to this particular branch of legislative power they supposed should be committed to the legislature that you constitute, if you do constitute a legislature that is worthy of public confidence. But we have one general restraint on all legislation. No act shall be passed without the call of the ayes and noes upon it and the record of the vote in the journal, nor without the concurrence of the majority of all the members elected to each branch. Have you not tied up legislation sufficiently?
What position are you in if you do adopt this clause? Will it prevent the legislature from providing by general laws in all proper cases for corporate bodies? Certainly not. They will have the power wherever it is proper and right, wherever it can be done with a due regard to public convenience and interest, of providing for corporations by general laws. You may go too far in this matter. You have imposed a great many restraints on your legislature. You have endeavored, as far as possible to secure their Constitution in such manner that they shall be worthy of the public confidence. You provide even that they shall not pass an act unless a majority of all the members elected to each branch shall concur in that act. You have adopted certain provisions as part of your Constitution in relation to their particular power in regard to corporations. Now, you will impose other restraints, other trammels, on them without seeing - for I must confess I cannot see exactly, how they are to operate under such constitutional provisions. Whatever may be the necessity in a particular case, whatever may be the emergency, they are bound by a law, for a constitutional law is of that character, as immutable as the laws of the Medes and Persians. They cannot set foot one inch beyond the line you have prescribed for them, whatever may be the necessity, whatever the public interests may require in a particular case. Is this right, gentlemen; is it judicious? I think that in all ordinary cases, under all circumstances, this thing of granting special charters may be dispensed with by the legislature by the enactment of general laws; but it is not necessary to put that provision there in order that the legislature may make such laws. They would have the full power over the subject. They would have the power to provide for incorporations by general laws in all cases. The only difference - and it may be a very important difference - would be that if some emergency arose - if some great public necessity existed - in which it would have been necessary to step over these general laws by mere legislative enactments, the legislature could provide for that emergency and necessity if it arose, while if you had put it in the Constitution, the thing is completely out of their power. Have we not gone far enough in that direction?
The hour for it having arrived, the Convention took a recess.
The Convention reassembled at the appointed hour.
THE PRESIDENT. When the Convention adjourned, it had under consideration the amendment of the gentleman from Tyler
MR. VAN WINKLE. We are rather few in number, but I suppose all the gentlemen who voted for nine o'clock are here. I hope so! There are some gentlemen, however, absent whose absence I regret at this time.
MR. POMEROY. I think the nine o'clock men are in!
MR. VAN WINKLE. I hope for the sake of consistency they are all here. I wish to offer a substitute for the proposition of the gentleman from Marshall, who is one that I wish were here. It is not a substitute for the motion of the gentleman from Tyler. I believe that will be in order, sir?
THE PRESIDENT. It would be in order.
MR. VAN WINKLE. The amendment of the gentleman from Tyier is unfair. I stated this morning, sir, why I coincided with the spirit of the proposition, but that it did not seem to present the case in the way in which I preferred it should be presented. I have taken advantage of the recess to draw up one after the hearing the remarks that were made here and endeavoring to conform to them as far as I thought I could. I will read it, sir, for information:
"The legislature shall pass general laws whereby any number of persons associated for mining, manufacturing, banking, insuring, or other purpose useful to the public, excepting the construction of works of internal improvement, may become a corporation, on complying with the terms and conditions thereby prescribed; and no special act incorporating, or granting peculiar privileges to, any joint stock or other company or association, not having in view the construction of some work of internal improvement, shall be passed. But no company or association shall issue bills to circulate as money until it has given security for the redemption thereof, in such manner as shall be provided by laws of this State, or of the United States."
Now, sir, the first point of difference I would like to call the attention of the Convention to is that this makes obligatory on the legislature to pass these general laws of incorporation. This excepts works of internal improvement. I would have no objection to include them if they were of limited length and lying wholly within the State. But as things have arranged themselves in this country, every work of internal improvement now becomes connected with some other work, by which means it becomes part of a system, and that system may be used as to operate beneficially or injuriously to the interests of this particular State. There are reasons, therefore - I coincide in that with the gentleman from Kanawha - there are reasons, therefore, which are special, which pertain to that particular class of corporations and which arise in the particular nature of the circumstances, which induce me to make the separation. So far as it was merely giving to persons the power to construct their railroad, that might be done under general laws. So far as it only affected individual interests, local or neighborhood interests, that might be done under general law; but as it does and will under the system that has grown up be likely to affect for good or for ill the interests of the State at large, it is proper I think that the exception should be made and that the legislature, representing the whole State, should to a great extent in the other cases have the control of it. What may be done in relation to the appropriation of funds in aid of them is a question that will arise under the report of the Committee on Taxation and Finance.
The concluding portion introduces the provision which I spoke of this morning in reference to banks, or those that issue bills to circulate as money. There we should demand, I think - at least, I am inclined to demand - that if they ask the privilege of issuing bills they should secure the public against any loss in consequence thereof. It is a consequence, if carried out fairly and properly, that the securities, the officers who are concerned in taking the securities which it proposes should be provided for their stocks, is what they should be. But if the thing is properly attended to by the officers in charge, the public will be safe from loss, or nearly so, even in the worst of times. I have concluded the substitute "as provided by laws of this State or United States," I have added the United States although not absolutely necessary even in view of what I had in mind. The Secretary of State has proposed, and I think it is probable Congress will adopt, the basing of the whole circulation of the country upon bills bearing the issue of the United States but made redeemable at the counters of banks; and they are to be secured in the notes of the of the United States, of United States stocks. I think that will be adopted. I think it is constitutional. I think it will be beneficial; and I have introduced those words so that in case it should be adopted there need be no equivocation about it. I say they are not absolutely necessary. In the first place, because if we recognize the authority of the United States that authority by the provision of the first clause of our Constitution is paramount as well as by the Constitution of the United States itself.
I will offer that, sir, as a substitute for the proposition of the gentleman from Marshall, and the amendment offered by the gentleman from Tyler.
MR. IRVINE. I ask that the substitute be laid on the table and printed, and that the further consideration of the proposition of the gentleman from Marshall be postponed until tomorrow, until we can get printed copies of the substitute. I consider this a very important matter that ought to be duly considered by the Convention.
The motion to lay on the table was agreed to.
MR. POWELL. I presume it will be in order now to offer the section that I proposed. I move then that the following language be inserted as a section, I am not particular whereabouts, in the legislative report:
"The legislature may make laws regulating or prohibiting the sale of intoxicating liquors within the limits of the this State, or in any of the counties thereof, or in any corporation within the State, when such legislation is demanded by the citizens thereof, and the legislature may submit such laws to the people of the State, county or corporation, as the case may be, for their ratification or rejection, at the ballot box."
I do not know that it is necessary for me to say anything in support of this proposition. I apprehend that the Convention is prepared to act upon it, and I hope will insert it. It does not bind the legislature to make such laws, but only gives them the privilege. It says they may make such laws, may make laws regulating or prohibiting the sale of intoxicating liquors.
The reason why I desire this inserted in the Constitution is - one reason at least - that indicated in the preamble, that in some states in which such laws have been passed they have been decided as unconstitutional by the courts. Now, we wish to have this inserted to the end that if the Legislature of West Virginia shall pass such a law, the courts will not be able to decide the law unconstitutional. It gives them the power; and I apprehend that no one can object to granting this power to the legislature. I apprehend it is not necessary for me to say anything before this intelligent body in respect to the evils of intemperance, the evils of intoxicating liquors. We have all seen and perhaps to a greater or lesser extent hav6 felt either directly or indirectly the effects of intoxicating liquors. I am aware that it may be contended that the legislature may have this power; but then, while such may be the case while other legislatures in other states while their constitutions do not prohibit the legislature from passing such laws, such laws have been passed and been pronounced unconstitutional. Let us insert it, then, that if our legislature should take a notion to pass the law the courts cannot say it is unconstitutional.
MR. PARKER. Massachusetts, as I recollect, passed a law to prohibit the sale of ardent spirits. Indictments were found under it and trials held; and I think - 1 am very sure - the Supreme Court of Massachusetts sustained the indictments, sustained the law. The case was then removed to the Supreme Court at Washington; was argued against the constitutionality by Mr. Webster and Mr. Choate, and Mr. Halleck I think, and the Hon. John Davis, who is now dead, on the other side in favor of constitutionality. The Supreme Court in that case decided that the Legislature of Massachusetts had the constitutional power to pass such a law. In the Constitution of Massachusetts, there is no clause or mention made - no clause giving any particular or special power to the legislature for that purpose.
That was about ten years ago. I do not recollect the parties. It was the Commonwealth of Massachusetts vs - I do not recollect the name of the person who was indicted. I know the fact to be so. The question has been settled by the highest judicial tribunal of the land; and I suppose that decision overrules everything else. If the question should arise, if our legislature should pass such a law and the question should come before the courts of our State, of course they would be bound by that decision on the question by the United States Supreme Court.
MR. VAN WINKLE. Mr. President, I am ready to acknowledge, air, of course, that the abuse of intoxicating liquors is a great evil; but I am not ready, sir, to endeavor to get rid of that evil by inflicting another. A law such as this proposition contemplates is what was wont in old times, and is still worthy of the name, a "sumptuary" law; one of those laws by which these grown-up people, come to years of discretion were attempted to be restricted, gentlemen, in the most small matters which every man ought to control for himself - what they should have on their tables, what they should dress in; how much over 12 inches their shoes might project beyond their toes; and many other things of that kind which I hope have been laid aside in this day and generation. I have no hesitation in saying, sir, that the laws of the Commonwealth of Virginia in reference to the use of intoxication liquors, if there had been enough moral courage in the community to enforce them, would have been sufficient to lessen greatly at least that evil among ourselves. There was a law, I remember, by which if an ordinary keeper abused his privilege - I am not sure whether it is perpetuated in the new code - to make two magistrates together suspend his license. I doubt whether it was ever put in force in the whole State of Virginia.
Now, sir, I have a very clear recollection of the origin and pretty nearly the whole course of what is called the "temperance movement," and I will beg leave to state a few facts in connection with it. It is more, I think, sir, than thirty years ago when this thing had arisen to prominence and these societies were being formed for the purpose of erecting public influence into a tyranny; and a very able writer in a quarterly review then published in Philadelphia - the name of which I now forget - had in an elaborate article called the attention of the people of the United States to the evils that were growing out of the increased consumption of liquor in this country; particularly to the evils which arose from the too free exhibition on all occasions, proper and improper. For I recollect distinctly, sir, that when you called at a gentleman's house, unless he set out his bottles before you went away, you thought yourself rather slighted, and when it was on every table. This article seemed to strike the public understanding, and a wholesome public opinion operating within its legitimate sphere began to control the matter, and to lessen the evil. But, sir, about that time an old man in Massachusetts got up these societies, when public opinion was setting in the right direction and was operating wholesomely on the thing, with a view of arguing that public opinion into a tyranny to force people into measures which they happened to approve. I remember, sir, of reading an extract, and that is over twenty years ago, from a sermon or lecture by Rev. Dr. Channing in which he took this very ground I am now taking and rather warned those who were pursuing this matter in the style in which they then proposed it against inflicting a greater evil, in fact injuring the cause and producing a reaction in the public mind by this attempt to raise up (and I get the expression from him) "the tyranny of public opinion." After this, whenever public opinion seemed to be setting in any wholesome direction, the thing has been to form societies and to press the legislature to pass extraordinary laws, not to cure the abuse but to rout out the whole thing. Those have been my opinions in reference to this movement, and those whose recollection extends any way back know that the legislatures were beseiged to pass harsh laws on the subject. I think public opinion has had time to recuperate itself and that it is now operated perhaps in every community in a wholesome manner in regard to it. That the basis of evil has not been crushed out is very true; but that in the more reflecting part of the community, among all who have self-respect, or a respect that is for themselves, many of those to whom we look for examples, the abuse of intoxicating liquors is certainly discouraged. Now, sir, this is one of those things that to my mind does not come within the ordinary purview of legislation. We consider it, in modern times, as an evil which if it is to be corrected at all should be amended by approaching the public ear and convincing it that it has a duty to perform in relation to it; and I believe, sir, that kind of treatment of any of these evils that are constantly growing up in society and many of them disappearing after they have run their course, that a firm resistence to it, as it were, by those who have influence in the community will be found sufficient, so far as anything can be sufficient, to eradicate the evils that oppress us. If, sir, I thought a law of this kind, in the first place, was necessary and, in the second place, would reach the evil, I might feel different in relation to it. But if there was no other way of reaching the evil, confessedly a great one, except by the enactment of even harsh laws, I would perhaps be disposed to accede to it; but believing there are other ways and that this law cannot be necessary, I am unwilling that we should put it here into the Constitution making it, as it were, obligatory on the legislature to pass a law of a kind at least that are very obnoxious to public opinion. The use of alcohol in the arts, for medical purposes and many other purposes might by this means be prohibited, while the use of it in moderation by those who choose to do so cannot be objected to. I have been using more or less, like old Fontanelle, who said it was a slow poison. He was upwards of eighty when he said it. Yes, he had been drinking it all his life. It was a very slow poison.
The question is whether in order to reach the abuse the use under proper circumstances is to be prohibited. I should assent if this law would reach the evil. But I can give you a little of my own experience in reference to such laws. I know, sir, at one time in our county when the county court abusing its powers refused to grant any licenses, there was more liquor sold than there had been before, but it was not sold openly. Whether the young and others if they choose to seek it were seen by the public; but it was sold away in secret places. The inducement to those who have least discretion in the use of it was double what it was before. Is it to be supposed, sir, with so many means of conveying it secretly, even in our rooms, they could prevent its use by the most stringent regulations; and even if such a law as this was passed, that liquor would not be brought into the State? And would not the very same thing occur, that then it must be sold and finally drank in private places? Those of the community whose example, whose warnings and advice might be of effect on those addicted to the use of it would be nullified by the fear that you would not know when or where it was done. The effect of laws of this kind is simply to change the use from a public abuse to a private one, from an abuse where it might be punished to one where its ravages and evils are greater than in the former case.
Now, sir, I should not think it necessary for our Convention to act on the subject, but if the legislature can place any penalty on the abuse of intoxicating liquors that will make it a degrading offense which will tend to turn the young against it from their earliest years - anything of that kind; if they can punish habitual intoxication or can remedy any of the evils of habitual intoxication by placing its victims in the same position as lunatics or idiots; any remedies of that kind which are directed against the evil and not against the use - which may be proper in many cases - I would not object. But it is, as I have already said, I am opposed to any attempt to cure an abuse by forbidding or restricting the proper use. I think we have not much ingenuity as legislators if we cannot find some way to reach the evil without reaching also the proper use. I am aware, sir, that this is not the popular side of the question in these days, and possibly may not be the popular side in this Convention. But while I am as free as any one to acknowledge the abuse of this thing, I must say that I believe the evils can be got rid of in some other and better way. I do not contend, sir - by no means - for the habitual use on the part of anybody. I do not, of course, contend that anybody should get intoxicated or that it would be a venial offense in anybody to do it. I do not contend for anything that could be obnoxious to a just public sentiment; but I am not willing to introduce the precedent of passing laws of this kind till it is shown that the evil cannot be reached in any other way.
MR. POMEROY. I have not much desire to make a speech on this subject. I confess my ideas are rusty on this cause. But let us see if the argument of the gentleman will hold good. Does any person believe that in proportion to the increase in the number of the people there is as much intemperance in all parts of the United States now as there was before the agitation of this subject? If so, I do not. There is not as much as formerly. Now, the gentleman says he will give us a little of his experience about Wood. Well, I will give a little of mine. We have no licensed houses in Hancock, and have not had for many years. If a man gets liquor there and drinks it he has got to go into Pennsylvania, or Ohio, or some adjoining county. And we find there is not anything like as much intemperance as when we had men licensed to sell ardent spirits and make men drunk for the sake of making money. But in regard to prohibiting a thing vicious and wrong, public sentiment ought to uphold the law. That part of the gentleman's argument is sound and good. We have a law on your statute-books that if any white man is found drunk he shall be fined the sum of one dollar and costs. It is not considered a good act for a man to get drunk. Well, now, is it not inconsistent to fine a man for getting drunk when we license another man to hold out inducements to him to get drunk. Why have we a law to fine men for getting drunk but no law to fine the man who makes him drunk? Why have we a law that no man can open a book-store and sell obscene books? Why prohibit that?
MR. VAN WINKLE. The parallel would be to prohibit the sale of all books, because some of them were improper. You may prohibit intoxication as much as you please. I never knew the one dollar penalty to be inflicted in any case.
MR. HERVEY. I as justice did so.
MR. POMEROY. It is a very evident thing that the same state of morals does not prevail all over the State as in the county where the gentleman from Wood resides. We enforce this law with us, because we believe it is a salutary provision. If it is not, all men will agree that it is a dead letter and ought not to be on the statute book. But it is enforced where public opinion is up to the point to reinforce it. It is either right to sell ardent spirits as a common beverage or it is wrong. A thing cannot be partly evil and partly good at the same time. There is such a thing as evil and good being separated and they cannot be combined together. A man cannot be a good man and a bad man both at once, nor do a good act and a bad act at the same time. The common sale of intoxicating drinks must be either a benefit and blessing or else a curse. It must either tend to elevate- a man and make him a better citizen and member of society or have a tendency to make him worse. But, says the gentleman, if you make this prohibitory law men will sin in secret. Well that is in accordance with scripture: "They do evil and they love darkness rather than light." Why? "Because their deeds are evil." And that is the reason you see these fellows poping down these stairs at night into dark cellars. "But the man that loveth righteouness cometh to the light that his deeds may be made manifest." That is the reason they love darkness. I know there are very few men would like to come in - I do not suppose we have a man here who would like to pull out a flask and take a drink here. He would get into a dark corner. I want these men, if they do sell in violation of law, to do it in that way. I want them to sell it in secret. I want them to be so restricted; because it is true the gentleman from Wood understands that as well as I do it is a business every man is ashamed of. There is not a common liquor-seller in the United States of America that has not lost every proper sense of manhood he ever had that is not ashamed of it. You see sometimes a fellow we call a "fop" walking along the streets and you see a fellow standing over on the other side of the street, and to him a tailor says "Look there,•that is a coat I made." Why does he say that? You see a boot-maker talking with associates under similar circumstances: "Those are the boots I made. Don't they fit that man?" But you see a fellow going along sometimes catching to a signpost and singing "United we stand, divided we fall." Do we hear the liquor-seller saying: "There is one of my customers. I made him that way." Why don't he say that - brag of his business? Because he is ashamed of it. Under the light of public opinion, he knows he was doing that which was wrong in the sight of his Creator and of all good men; and therefore he never brags of his work. When a man becomes a habitual drunkard, why he kicks him out and tells him he cannot have drinks about his house.
Look at this system of licensing men to sell liquor. We say we do not want a man to abuse his privilege; we do not believe this law vicious at all. The man who sells liquor in the fashionable house is the worst man of the two. Why? Because, look at this very simple illustration of it. Here is a man that has become a confirmed drunkard. According to the principle of this fashionable man he cannot get liquor there, because he will not have drunkards about his house. But the same man has a young boy who is just beginning to go out into fashionable society and he will not drink liquor where his father gets it. So he gets his liquor among the fashionables; and after a while he goes on step by step; according to the principle of this respectable hotel and he must leave this respectable hotel and must go to the low doggery; and by that time he has killed off the old man and is just ready to begin to kill off the boy. Which is the worst man? You cannot make a bad business respectable. There is not a man selling liquor for the mere sake of gain in the United States but his conscience tells him it is wrong. No man has a right to take from his fellow man that for he gives no equivalent. How can a man say it is an equivalent when he gives him that which destroys both body and soul? Therefore I am in favor of this provision, which merely says that if the legislature do pass such a law, the lawyers are not to quibble with it and say it is in violation of the Constitution of the State. That is all we ask; all that is proposed by the proposition of the gentleman from Harrison.
I just made these few remarks on the spur of the moment, but will wait until we hear what may be said.
MR. STUART of Doddridge. The gentleman from Wood appears to be opposing this section as though we were legislating against the right of retailing ardent spirits. I do not understand it in that way. I understand this is a section proposed to be put into our Constitution settling a moot question that has heretofore been agitated in our country that the legislature has not the right to legislate on this question. Now, I am for this section - decidedly in favor of it - because it settles that question; and if the legislature at any future period sees cause to legislate on that question, I am willing to let them do so, to let it be a constitutional right that cannot be denied to them. But I must be permitted to say that the legislature heretofore has always been in an opposite direction; that is legalizing this traffic, legalizing crime and immorality. I have always looked upon it as one of the greatest evils that happen to our country, the legislature legalizing the right to make drunkards. We cannot foresee what may be the future legislation of the new State; but if they choose to reverse that course and look at it in a different light and see cause to legislate against the right of carrying on this traffic, why let them have the privilege of doing it.
Just a few words. I do not want to deliver a temperance lecture but simply to put this thing in its right place. Let the question come up fairly. We are not legislating now as though we were legislating against the right to do this but simply giving it to the legislature and settling the question that they have the right if they choose at any future time to legislate in that way.
The gentleman's argument is not well founded. Why is it we find - and I suppose he would support that kind of legislation - why is it we legislate against the right of retailing unsound provisions, against the selling of obscene books, etc., but he is unwilling we shall legislate against what is a greater evil than either? The gentleman says our proposition is equivalent to legislating against all books. Now I hold this, that if the legislature choose to act on the authority we propose to give them, they will be legislating against a thing that is exactly in the class of the obscene books. There is no good book about it. There is no good thing in it; and although it is a slow poison, if I was going to deliver a temperance lecture, I could show it is an effective one. It is just the kind of argument made by the gentleman that has caused all this trouble. I know he has used it, perhaps all his life, and it has been a very slow poison in his case and has not injured him. Another man will take up the same course and the example he has set perhaps induces men to trifle with this thing, and they are led on, not having the same self-control the gentleman from Wood has. This is the way all men start. It is poison for the most of them but a very fast one for some. They start out with the same belief he has; but it grows on them a great deal faster than it does on others.
To get down to the question, we are now legislating on that thing and simply settling what I consider to be a question upon which sentiment has been divided whether the legislature has power to legislate in this way. We establish the right. They can exercise it or not according to their view of their duty to the constituency who will send them up to the state capital to represent their wishes and interests. If we adopt this provision the question cannot be raised to prevent such legislation. I will vote for the section offered by the gentleman from Harrison.
MR. BATTELLE. I only want to say a word or two on this point. As has been well said by the gentleman from Doddridge, and by the gentleman who preceded him, it is not proposed to legislate on the subject of the sale of intoxicating drinks as a beverage. It might very properly be a question whether public sentiment in this State at this time is such as to justify such legislation if we proposed to inaugurate it. It is proposed simply to settle the constitutional question; and the phraseology of the section offered by the gentleman from Harrison is permissive simply and not mandatory, as we all see. I must disagree with my friend, the gentleman from Wood, in reference to the classification of such laws against the sale of intoxicating liquors as "sumptuary" laws. I am not learned, of course, in legal matters; but yet I believe all hands agreed very unanimously to condemn that class of legislation in former ages. So far as I know this proposition, should it obtain a hearing in the legislature and be acted on hereafter does not propose to revive that class of laws. It goes on a principle that has been settled long ago: that that traffic which is pernicious to the interests of society may be suppressed by law. The same principle is adopted in laws prohibiting the sale of poison meat, injurious food. There is no law so far as I know that a man may not eat such food; there is a law against the traffic in such food. The passage of a law by the legislature regulating, or even prohibiting, the sale of intoxicating drinks does not say what a man shall drink or not drink. It does, however, propose to act on the traffic in such articles. The laws which invade our natural rights - the right of the road, the rights which we exercise with such restrictions every day, are in fact of the same principle as that which would be involved in a law such as it is proposed the legislature may be permitted to pass. But, as I said before, whether or not the public sentiment might justify the establishment of any restriction in reference to the sale of intoxicating drinks, is not now the question. It is proposed here simply to settle the constitutional right of the legislature to do so should they be disposed to do it. I must vote, sir, in favor of the proposition.
MR. TRAINER. Mr. President, I hope this proposition will prevail. I feel exceedingly anxious to see the day come in Virginia when the business of making drunkards shall be robbed at least of its legal character. I suppose there is no gentleman in this Convention who would attempt to say for a moment but what the use of intoxicating liquors is a great evil and one of the greatest curses, if not the principal one, of our country. And yet it is legalized and made respectable by the law of the country.
This, however, does not propose to prohibit the sale of ardent spirits but to give to the authority to regulate the sale or prohibit where the people desire it. But I want to submit this case. Suppose, for instance, the people of a certain county might desire to prohibit the sale of ardent spirits in that county.
MR. SOPER. That part of the proposition is withdrawn.
MR. TRAINER. Well, the people within any section of the State.
Mr. Trainer read the proposition submitted by Mr. Powell.
MR. POWELL. I would remark that my colleague called up the proposition and proposed to stop at the word "State." If the gentleman wishes to move to amend by adding that when such legislation shall be demanded by the citizens thereof, I have no objections.
MR. TRAINER. Well, sir, within the State if the people within the bounds see fit. I hope they will have the right to do so, and that the Constitution will guarantee to the people the right to legislate on this subject. The legislature is given the privilege of legislating on other evils, prohibiting other things of less magnitude than this, and I cannot see why they have not the constitutional right to regulate the sale of intoxicating liquors.
MR. VAN WINKLE. I have no objection to that, sir.
MR. TRAINER. I know in one county of this State some years ago, the people in the county, through their court succeeded in getting this question of "license or no license" submitted to the people, and a large majority of that county voted against issuing license. The county court after that decided it was unconstitutional and that they had no right to take such a vote as that, and in the very face of the people proceeded to license every man that asked for a license at every cross-roads and in every little village, and every community and neighborhood in the whole county. What occurred in that county may occur in any county within the bounds of this new State; and if such a thing does occur I hope the people will have the privilege of asking and the legislature the power to prohibit the sale of intoxicating liquors. I cannot see what harm it can do.
MR. HARRISON. The whole object sought to be accomplished by this proposition is to give to the legislature the unquestioned right. Now, I am inclined to think, sir, that under the general powers given to the legislature they may pass a law regulating or prohibiting the sale of liquors within the State; but I believe our legislature now under the existing Constitution of Virginia has passed laws regulating the sale and use of intoxicating liquors. But the difficulty we wish to avoid is this: The friends of temperance in the several counties labor earnestly and diligently to induce the people by their votes at the polls, as in the case referred to by the gentleman from Marshall, to express their wishes at the polls that no liquor shall be sold by authority of the county court in a county; but that county court, when the question comes before it takes on itself to say that it is unconstitutional; we have no right to refuse to grant license although the people want it, because it is unconstitutional. An idea they have picked up from some source. We want to get rid of that species of litigation referred to as occurring in Massachusetts. We want to keep this question from being raised by hired lawyers. The thing can do no harm in the Constitution, at all events, merely putting in here a provision saying they shall have the right to pass these laws if they see fit. It is to deprive them of that excuse for granting licenses, for they always manage to find an excuse in some way. That is my experience. If this thing is inserted in the Constitution there is nothing in it obligatory on the legislature to pass any law in reference to it at all. If we can work up the legislature - we have never had the good fortune to do it, but I hope that in new Virginia the friends of temperance may be able to get a legislature that will pass a prohibitory law in every sense of the word. My short experience demonstrates it is the greatest evil that ever cursed mankind. I hope the first legislature we assemble in the State will pass a law prohibiting its use in every shape and form. We will not be allowed to say "Commonwealth" any more after we get this State into operation. But we do not want this question to go from the county court to the superior court and then to the Supreme Court of the United States. We do not want to be encumbered with any such legal questions as that. All we ask of this Convention is to put into this Constitution a declaration that the constitutional right shall not be raised if the legislature should pass any such a law upon the friends of temperance. They do not advocate this thing for their own benefit but for the benefit of all mankind; and when they ask this Convention to do what I consider as beneficial an act as this, I hope this Convention will do it by the incorporation of this provision in the Constitution. Then we will make our arguments to the legislature.
MR. VAN WINKLE. I profess myself to be as good a friend of temperance as any gentleman on this floor. Just as good and strong a friend of temperance as any gentleman on this floor. I do not mean to be intimidated in my way of getting rid of the evil; and I am afraid the thing has not always been temperately managed in this regard. Now, sir, the gentlemen seem to avoid introducing the word they have got in here, that is "prohibiting." The gentleman just up expressed it openly. There is to be a complete shut-down and the thing is to be prohibited in toto. As for this matter of getting a constitutional difficulty out of the way, I do not remember distinctly what those constitutional questions were that were raised; but I do remember that in one case the constitutional question rose out of the submission back to the people and the ground was that the legislative power of the state resided in the legislature and that they could not go back to the people for further legislation. That I know was the decision in one case. Because there could be no doubt at all about the right of the legislature to regulate the sale of any article of commerce so far as it does not conflict with the United States laws. They cannot prohibit its importation into the State.
The gentleman also spoke of the evil of men being licensed to sell liquor, and yet they introduce the very word that gives the authority to men to sell liquor - that is, regulating it. They may regulate it in other ways; but that very word "regulate" would be sufficient to give all the power to the legislature to authorize the sale in licensed ordinaries. The question in Virginia was within the law but not in the constitution; and I say very distinctly that I can prove it from the statute book of Virginia that no county court has a right to refuse an ordinary license when it is applied for by a proper man and held in a proper place. The law does prescribe that a man of good character, and so on, should be entitled to have an ordinary license at a proper place; and to also fix indelibly and indubitably what was a proper place, it provided this, sir, that no ferry-keeper, no ferry-master should have a license to keep an ordinary unless there was no other ordinary within (forget the distance) perhaps a mile or two of the ferry. That was saying in so many words that a place of public resort was the proper place in the eye of the law, and of course a county court who refused to grant a license applied for under proper circumstances, in a proper place, was disobeying the behests of the law. That, however may be somewhat aside from the question here; but what.I object to is this absolute prohibition; and if you strike that word out there is no use of putting anything in the constitution in reference to it. I will move that the word "or prohibiting" be stricken out.
MR. SMITH. I suppose that my temperance principles will not be questioned by any one. I never called for a drop of liquor at a bar in my life, and all the liquor I ever drank would not amount to a gallon. I have been twenty-five years a member of a temperance society, and this I offer as evidence of my temperance habits and opinions. I object to that amendment altogether for two reasons. My first reason is those assigned by the gentleman from Wood. I do not think by legislation you can make men sober. You must operate by influences other than "those, by moral influences, by persuasion, by example, which is the best influence that can be used. Another reason is, it is utterly unnecessary. The gentleman is attempting to get into the Constitution that which is as the idle winds. Why, sir, the legislature may pass such a bill if they wish as they have that authority now just as much as they will after these words are inserted. You may say that the legislature may pass a law forbidding the sale of bad meat, a law saying that the legislature may enact that a man guilty of assault and battery shall be prosecuted; that the legislature may pass laws prohibiting all misdemeanors or felonies or crime of every sort. She has now without that clause as fully and perfectly the power of passing a law prohibiting or regulating the sale of liquors as she would have with it. There is no sort of necessity. You are stuffing the Constitution with powers that are wholly unnecessary. Inhibit the legislature. That is all you have to do. You are making a code of laws in the Constitution. The best constitution ever made is the shortest and simplest. Having a state legislature, all that is necessary is to put inhibitions in it for she has already power all power not inhibited and not granted to the general government. These authorities given to the legislature only increase the volume of the Constitution, perplexing the country with them; because it would be inferred by the small man in the country that if you had not put that in you could not grant it. It was said you should not pass a law to sell bad meat. Well, you have nothing of that sort in the Constitution. That is just as necessary as this. Why should you find it necessary to authorize the legislature to prohibit the sale of liquor and not authorize them to prohibit the sale of bad beef? Just as much necessity for putting one into the Constitution as the other. There is no sort of necessity for it and we have been occupied a great deal of time, with great respect to gentlemen, with what does seem to me a very idle proposition. It is granting to the legislature the power to do that which she has the full right to do without the grant. The gentleman has alluded to a case in Massachusetts that was properly stated. I carried the same question up to the court of appeals in the case of schools where the power is delegated to persons to incorporate with given powers. Here was an authority to establish a public school; and whether that public school should be established or not was to be decided by the people. It was held on the other hand that the legislature having the whole power of legislation could not delegate that to anybody. It must take the responsibility and name it herself. And on that question various causes have gone to the court of appeals. I took one there myself. It has been in Pennsylvania, in Delaware, New York, Massachusetts. I had occasion to examine the whole round of this question. But it was such a one as this at all. No lawyer would ever raise such a proposition as that, that unless you give leave to the Legislature to pass such a law such a one could not be enacted. You may as well give, as I said before authority to pass laws upon all sorts of crimes where that power does exist and vests in the Legislature and nowhere else.
I hope it will be the pleasure of the Convention to vote down the amendment and to vote down the proposition itself. For I think they are unnecessary and uncalled for. I say I am as strong a temperance man by example, by precept and in every way as there is in this house, and I yield to no one on that point.
MR. HERVEY. I would suggest to the patrons of this proposition that if they desire to accomplish their purpose they should strike out "may" and insert "shall." Then it would accomplish their purpose, but so long as that is retained it is only discretionary. It is not mandatory; and it is conferring no additional power on the legislature. You do not make it mandatory. You simply leave the matter at the pleasure of the legislature where it rests before, repeating on paper what existed before; confers certainly no additional power. Therefore, to test the proposition fairly, to place it on its true foundation to the patrons of the proposition to change it to a mandatory one.
MR. POMEROY. I have no tenacity about this question; but I do not think my friend from Wood ought to offer an amendment which is virtually to kill the whole proposition. Why not let the proposition be voted on by the house? I do not think - I say it in all kindness - the gentleman from Wood, when he has a matter before this house would like it if another should offer an amendment calculated to kill it. We ought to have the benefit of an affirmative vote. If a majority of the house thinks it ought not to go in they can say so by their vote. I would feel very loth to offer an amendment of that kind to any proposition offered by any gentleman in this way. It is well known there is always an advantage in an affirmative vote; and why this amendment should be offered that kills the whole thing rather than let the vote come on its merits, I do not see. I think the gentleman from Wood should let us vote on the proposition itself. However, I give this notice that on this motion we will require the ayes and noes, and if it is the desire of gentlemen to vote to strike out the word, that of course kills the whole thing.
MR. VAN WINKLE. The gentleman imputes to me an object in offering this amendment. I should like to know with what object he calls for the ayes and noes.
MR. POMEROY. I will state very clearly the reason why I call for the ayes and noes on an important question like this that there is no other method of ascertaining the full vote of the house.
MR. VAN WINKLE. Well, I stated that prohibition was the only thing I opposed. I have no objection to withdrawing the amendment. But I have failed to see why the affirmative vote has any advantages. The sense of the house could as well be taken in one form of the question as the other. But I withdraw it, sir, on the suggestion that has been made.
MR. POMEROY. I think I can bring witnesses to attest that in many instances when the presiding officer calls for a vote: "all that are in favor of the motion, say aye; those opposed, say no, not a single "aye" or "no" is heard in the house; that silence seeming to give consent the presiding officer announces that the motion has carried. On a motion taken this forenoon, there were perhaps three or four ayes.
MR. STUART of Doddridge. In reference to the argument of the gentleman from Logan, he is opposed to encumbering our Constitution with legislation. Now, it is only two lines; and I believe he is right in the position that the legislature under its general powers has a perfect right to legislate against the retailing of ardent spirits; but I have noticed that the objection is always raised by gentlemen against any measure they are opposed to, that it is unconstitutional. It is the general opinion that this kind of legislation is unconstitutional. Our legislature is not always composed of such able lawyers as tell us in this body that it does have this power, and the lawyers in that body can not always be counted on to disclose the truth on a question of this kind, when influential interests are arrayed on the other side. It will be urged that it is unconstitutional; but one reason is that a majority of them like a little liquor and they don't want to legislate against it. That is the fact about it, and they will try every way in the world to dodge the question. The great body of the people are not familiar with court decisions or constitutional questions, and when the legislature, backed by the legal talent within its ranks, tells them these things, they are silenced. This kind of argument always puts them down. It is for such reasons as these that I want to place the truth here where all the people can see it, simply to settle the question and put it at rest for all time. It is not going to break the Constitution down nor make it very voluminous; and it will settle this moot question at once and finally.
MR. VAN WINKLE. I would like to ask the gentleman what he means about "dodging the question?"
MR. STUART of Doddridge. I remarked, sir, that when this question was brought up before our legislature, even our legislature is not composed of lawyers and the majority of them were generally fond of liquor and anxious to dodge the question in any way. My reference was to the members of future legislatures, not to anybody in this house, as dodging the question, because we are all coming right up to it fair and square. We have every point well discussed, and no man can dodge the question here. But I have seen it dodged; and I have been in bodies where it was dodged; and hence I want to fix it so that they cannot get behind that thing; and it does no harm and only encumbers our Constitution with two lines and settles the great question that has agitated the country at large. The gentleman from Logan says it is not necessary even to say the legislature shall have this provision, for you cannot legislate against an evil of this kind. You must approach these people by appeals to their reason, their good judgments, their morality. Well, now, sir, it might be said you might approach the thief and robber in the same way with reasoning. Reason with a fellow that has robbed and stolen. If you follow that course, you will find the evil increasing. That is why this evil has been growing amongst us, because it has been argued and insisted it is unconstitutional to legislate against a legitimate right to trade and deal in articles of this kind; that it is the property of the party, and his property and his business you have no constitutional right to interfere with; that he has a right to do with his own as he pleases. Then, sir, it seems to me we ought to impress this, if it ever should arise and the legislature think it necessary to legislate on it, or the people desired to petition the legislature to do so, that if the legislature is not composed of lawyers, who know whether it is constitutional or not, they will have the authority right before them and will know it is, and can act in accordance with the wishes of their constituents.
MR. HALL of Marion. I have been in the habit of resolving every night that the next day I would not speak on any question. I only wish to say on this matter now that I am very strongly suspected at home of being a pretty good temperance man. But I would say here that I do not believe that you can force men to be moral, to be temperate, or to be religious; and that man is the most perfect mule - except the mule himself - that you can scare up, and when you would coerce him to do a thing, although he would intend to do a thing voluntarily, yet if you attempt to force it upon him he will not do it at all. And yet with the consciousness recognizing this fact I am in favor of the proposition, and for this reason. I have looked on the workings of this thing. You cannot coerce the people, you cannot force them to be temperate, but you do not need to do that. But you can put the temptation where it will not stare them in the face. You can by wholesome laws, and the people will sustain you in it, provide against building up a school to teach them to be intemperate. That is what I want. I want that there shall be no quibble about this. Every legal man will admit that the legislature has the power; and yet we have had to combat before the county courts men of the best legal standing who would declare solemnly before heaven that there was no such authority. Lawyers are like other men. They will sometimes dodge the question. I want to settle the thing so that lawyers will be pinned down to it and the people can know.
Well, then, I want to go one step farther. I would have been in favor of retaining what was intended in the gentleman's first proposition - that is, that whenever the people of a county may ask the legislature - I believe that was included in the original but is not in the present . . .
MR. POWELL. I would propose to amend by adding the subsequent part of the proposition.
THE PRESIDENT. You would have a right to withdraw and submit as a whole.
MR. POWELL. Then I withdraw the proposition as offered and submit it in the original form, which is as follows:
"The legislature may make laws regulating or prohibiting the sale of intoxicating liquors within the limits of this State, or in any of the counties thereof, or in any corporation within the State, when such legislation is demanded by the citizens thereof, and the legislature may submit such laws to the people of the State, county or corporation, as the case may be, for their ratification or rejection, at the ballot box."
MR. HALL of Marion. I would prefer it in that form from the fact that I am opposed to forcing this thing on the people, and in that form it provides for no legislative action until the people demand it. In that form it will amount to a restriction, and I think it would be a very wholesome restriction, because, as I remarked in the onset, I think it would operate badly and be detrimental to the very cause of temperance if you attempt to force it on the people before the public mind is prepared for it. You may regulate it. Under the term regulation you may protect yourselves from abuse. And I desire this, that, first it may not be the sense or wish of the people of the entire State to exclude all over the State the sale and use of intoxicating liquors, and I desire that if there be a county in the State where people desire that they shall be entitled to have legislation to establish that as a rule for their county, and this proposition would do that, I desire to make that practicable. I do not know where this may fall. Heretofore the county courts have had control of this; and so far as my observation goes, they have most villainously abused their duty and violated every known duty that it devolved on them in this matter. I do not know where it will fall, because we intend to exclude the county court here, not on account of that particular offense; but if it is excluded, I do not know where this responsiblity will be laid. If this power were vested where it would be properly exercised, then I would not be so particular about any provision of the sort, because I, like the gentleman from Wood, believe that if the present laws that we have were carried out to the letter in the proper spirit faithfully, I believe we would have been in a much better condition.
I must make an issue with the gentlemen on the legal question; and I feel very diffident about doing it; but I am so very well fortified that I will venture. That is the county court has the absolute right to reject in all cases, and is the sole judge in all cases and there is no power on earth that has any right to call in question that power. I state that on two decisions of the court of appeals of this state, one being an appeal from a decision of Judge Thompson, in the city of Wheeling, in which he decided that when the party brought himself within what they called the provisions of the statute that he was entitled to demand a license. The other was a decision by Judge Summers in which he decided the very opposite. They were appealed and argued by Judge Fry; and the Court of Appeals determined that the county court was the sole judge. I would say notwithstanding this authority, if I am right in this they have never practiced any restriction whatever, done what the people of the community and the county required at their hands. I have seen it in my own county and been told by the presiding justice and other members of the court; it is no use to resist this thing because it is popular and that was the rule under which they granted license.
I want if the people ask it that they may by legislation be protected from the thing; and they can try it and if it works badly petition to have it repealed. I trust it will be the pleasure of the Convention to pass this proposition, which only permits and settles that question upon which there has been so much caviling.
MR. STUART of Doddridge. I desire to insert "State" instead of the word "Commonwealth." I then move to strike out all after the word "State" in the second line.
MR. POMEROY. On that question, I guess it is, that I demanded the yeas and nays. No, not on the amendment.
The motion to strike out was agreed to, and the question recurred on the section as amended.
MR. HERVEY. Before that question is put, sir, if I understand this section it will require now a majority of the votes in the State.
(SEVERAL MEMBERS. It has nothing to do with the State.)
MR. LAMB. If it is in order to make any remarks on the present state of the question, then I beg to say that if there be any one legal proposition which can be unquestionably clear, it is that this is entirely unnecessary, to any such proposition in the Constitution. The legislature have exactly the same power without encumbering the Constitution with this that they have with it. I think no man in the present state of the case can entertain the slightest doubt on this matter. As the section will be entirely useless, I shall of course vote no on the question of its adoption. But I do not intend to dodge any question in reference to this.
I will say also to the Convention that I am utterly opposed to this system of legislating for the purpose of compelling men to be good. I do not believe the legislature are a proper tribunal to take care of the morals of a people in reference to matters of this kind. There are a great many things that ought not to be regulated by legislative action, that must be left to a man's own judgement and conscience, and the legislature cannot even interfere with him when he does wrong. It may suit one man not to go regularly to church. This we may admit is wrong; but who is there here that would contend that the legislature shall prescribe that this man, or that man, or any man, should be compelled to frequent a particular church, or any church? It may be the use of tobacco is a great evil; but is it right that the legislature shall attempt to prescribe whether I shall use it or not? What is this whole system but a disposition on the part of one man or set of men to control their neighbors in matters which are not properly the subject of legislative action? If a man does direct wrong to another, there the legislature ought to interfere by its laws. But you cannot prescribe a set of laws that will protect a man against himself. There the great principle of individual freedom must operate; and if you grant that principle of individual freedom, freedom cannot exist without that freedom may be abused. I do not think, sir, that the legislature is the proper tribunal to regulate matters of this kind. I do not think that legislation is the proper mode of reaching evils of this kind. I do not think any more than in the question of religion, that you have the right to regulate for your neighbor whether he shall take a glass of liquor or not, or whether he shall use tobacco or not, or go to this church, or that church or any church; or how he shall dress; or anything of that kind. If the act of your neighbor is a direct injury to you, you have the right to require legislative protection, but the injury must be direct. You have no right to prescribe a set of rules to protect a man against his own voluntary acts. It is only to protect a man against the acts of his neighbors.
MR. POWELL. We propose in this to give the legislature power to prevent a man from injuring his neighbor. We do not propose to make a drunken man sober but to keep a sober man sober. This is the object we seek, not to legalize, not to license men to commit, murder by degrees. For most assuredly, granting a man license to sell intoxicating liquors, which are generally poison, is giving a man the privilege of murdering his neighbor - to kill that individual if he sees proper; who having inbibed a taste under its legalized system is led on step by step until he has become a habitual drunkard, with the inevitable end; virtually a murder under legalized machinery of law. This is what we are seeking to prevent. This is the object we aim to obtain; and I do hope the Convention will confer upon the legislature this power. I know it has been argued here that they have already conferred the power. It has been stated that they have always had the power. That may be true, but individuals have declared and county courts have declared that it is unconstitutional for them to prohibit the sale of ardent spirits. I am not sure but such pretensions have been set up in the county which I have the honor in part to represent. I know it has been in other counties; and now if the people wish it and we can get a legislature sufficiently temperate themselves to pass a law of this kind, a prohibitory law, let us have it.
Experience has been referred to in regard to this matter. I lived two years in Wirt county, on the Little Kanawha River. The year before I went there the county court granted license, I believe to all who applied. The result was men were drunk all the year more or less. Just before I reached the place in May a man in a drunken spree was smitten down and left a lifeless corpse yi the street, or at least he died within a short period. The county court soon after that passed a prohibitory law. They licensed no individual to sell liquor. The result was, I scarcely saw a drunken man in that county during the entire year. The next year they granted license and in less than twenty-four hours after the license was granted individuals were tottering along in the street; and I saw more drunken men in that year, I believe, than I ever saw in my life beside. So that experience works on both sides. Experience is favorable at least to our side of the question.
Let us then show we intend to give the legislature the power; let us give them power to make constitutional for them to pass prohibitory laws, and then there can be no quibble about it. There can be no appeal from county court to higher courts. This will settle the question; settle it for ever. Let us have it.
MR. STUART of Doddridge. I do not intend on this question to pass upon false issues. The gentleman from Ohio is very astute and always gets up a peculiar way of looking at things in order to carry out his own views. Now, this is not legislating to prohibit a man from drinking at all; is not giving the legislature even the power to legislate against his right to drink anything he pleases. You may drink as much as you please, my good friend, under this thing; but we will not let you sell it to your neighbor. You may wear the kind of clothes you please . . .
MR. LAMB. What is the object of preventing the sale of intoxicating liquors unless it is to prevent me from drinking if I want to?
MR. STUART of Doddridge. We want to keep it out of your way if we can.
MR. LAMB. You want to prevent me from drinking if I want to.
MR. STUART of Doddridge. Lay not the temptation in the way of your neighbor. Still, if you will drink and must have it, we would not prohibit you from doing it. You want to get up the issue that this will regulate the kind of clothes a man shall wear, and all that kind of thing and saying you shall not drink. That is not the question at all. I want the Convention to understand it. The question is, to give the legislature the power to regulate the sale of intoxicating liquors, not who shall drink or who shall not drink. We say to our women or men. Drink as much as you please, but you shall not sell it to your neighbor, provided the legislature passes that kind of a law.
MR. RAYMOND. I am opposed to the section, and opposed to the amendment; opposed to this Convention inserting in this Constitution anything in relation to liquors. I do not desire to show to the world that this new State of West Virginia are drunkards. (A Member: "It will show itself") I do not desire, Mr. President, to say to the legislature, to future legislatures, that they must take away, that they have the right to take away, the liberty of men. If you want a man to be a drunkard, say to him that he shall not buy or drink liquors, and, sir, he will risk his life for it. Sir, I am opposed to anything of the kind going into this Constitution.
MR. POMEROY. It is said by some of the speakers on the opposite side that this is not necessary because the legislature has already the power. I think I fully agree in that, that the legislature has the power; but it has been a moot question raised in various parts of the country; and the gentleman from Harrison has seen proper to offer this in order that this may no longer be a moot question.
I want to reply to an argument about the county courts. Who is to be the judge if a man asks under the present regulations whether a certain house is proper or not? When the county refuses and decides that there shall be no licensed house in the county, why was it that our liquor men did not take an appeal to the court? Because they understood very well from both our former judges and from the charges to the jury by Fry and Thompson, they knew there was no use making an appeal, that the judge would sustain the lower court, that he would not have houses licensed there when the county court had refused. As result of that, we have had no license; we have no inmates in our jail; we have a temperance community; and it is greatly owing to this fact. But if the legislature has already the power, in order to settle a vexed question, what great harm can it do to place this there?
But it is asked, has not a man a right to drink liquor when he pleases? Why do you say he has not the right to play cards for money when he pleases? Which is the greatest evil throughout this land - gambling at a table for money or drinking liquor in these low "doggeries?" Why, of course, drinking is. Yet you have a statute in every state prohibiting gambling? Why have not men a right to do anything if they have a right to do as they please? Why not let men run horse-races in the city? What led this State into the ranks of Secession but having a majority of the members at Richmond in the habit of getting pretty well "how- come-you-so" if not drunk? Does any man believe in the light of this century we would ever have had any such thing as Secession if it had not been for intemperance? It was not an intemperate lust of power that made the devil secede out of heaven. He was the leader of this whole Secession army; and if it had not been for ardent spirits these evils would not have been here.
This is a question, Mr. President, regarding which a man can be very well satisfied if he finds himself in a minority; because the day is coming when no man can stand up and be in favor of the traffic in ardent spirits. There is a time coming when righteousness shall cover the whole land; and then where will these liquor-sellers be? Why they will be gone under - and the Secessionists with them.
MR. HERVEY. The illustration of my friend from Hancock in regard to gambling and liquor-selling does not prove that there is no constitutional provision on this subject. That is one of the enactments of the legislature. To the provision before the Convention I am going to offer an amendment, and if this amendment carries I will vote for the concern. Otherwise, believing that the legislature has the power just as effectually in the one case as in the other, I should have to vote against. I move to add the following: "If in any county a majority of the votes cast at any election in such county so desire, the legislature shall prohibit the sale of intoxicating liquors therein." It is a simple provision, sir, that if the people of any county by a majority of the votes desire that the legislature shall enact a law prohibiting the sale of intoxicating liquors in that particular county, that then the Constitution shall make it obligatory on the legislature to do so. Without that provision, sir, I shall vote against the whole concern. It is just occupying that much space and paper to no practical effect whatever.
MR. LAMB. I want to make a mere explanation. If the remarks of my friend from Hancock are intended as having any application to my argument, he has misapprehended the point of it entirely. I did not contend that any man had a right to drink as much liquor as he pleased. I insist upon it that that is wrong; but I also insist on it that many wrongs may be committed that the legislature are not the proper body to regulate. We may commit wrongs in the management of our families, or in extravagant expenditures. So far as religious matters are concerned we recognize that principle in our Constitution. But though it may be right and proper, and it is, for people to attend churches, yet the legislature have no right to interfere with matters of that kind. This is the position I take: not that the thing is right but that there are wrongs which it is not proper that the legislature should attempt to regulate.
I would ask the gentleman from Doddridge, as a lawyer, taking the proposition as it stood, is there any doubt whatever that the legislature has just without inserting these two lines that they would have after you do insert them?
MR. STUART of Doddridge. Certainly, no doubt of it in my mind.
MR. LAMB. Then, as the matter stood, the object is simply to prevent lawyers from raising questions. Why, has this Convention any idea that by inserting any provision in the Constitution they can prevent lawyers from raising questions about it? Lawyers will dispute the construction of the ten commandments and the Lord's prayer (Laughter). Every provision you insert by way of avoiding question will give rise to forty questions that had never been thought of before. If that is the object - to prevent lawyers raising and arguing questions about this matter - you are misspending your time, gentlemen, in attempting to accomplish any such object. There will be as many questions raised after you have inserted this clause, or any other you may see proper to insert, as there would be if you had left it out. If the matter is clear and we all agree that the legislature has this power, why, then, insert it? We certainly will not prevent the lawyers from starting doubts and difficulties about this thing. Perhaps you may raise them - as is frequently the case, by the very provision by which you intended to obviate it.
MR. BROWN of Kanawha. I am seeking to avoid some of the difficulties that have been raised in this discussion. I will put in the form of a substitute in lieu of the proposition as it now stands a provision which I now offer:
"No contract for the sale of ardent spirits shall be enforced in any court of this State."
Then it presents the case that those who choose to sell them have to take the risk if they sell on credit. When you have struck at the pay, you have struck at the sale. We will thereby avoid another difficulty that I have known to exist in some parts of the country: that sellers permit parties to go on and buy until a large account is run up, and then bring suit to recover it, while the husband has been destroyed by drinking and the family is made destitute by the execution of the debt. Again, it might be said that would be objectionable in regard to wholesale dealers in any large quantities. Well, sir, those are the gentlemen most likely to be affected, and if you never will let any liquor come in by enforcing contracts in that way, you will not have so much of it in the State. At least that leaves every man free to buy or not to buy, but if men sell on credit they cannot collect by the courts.
I will offer that as a substitute for the proposition and amendment.
MR. DERING. I do not like the substitute as well as I like the original section as amended. And, sir, we have had a good deal of discussion here this evening, with all due respect to the gentlemen who have engaged in it, that has not been relevant to the point in question. It has been settled here by the highest legal authority in our body, and not denied by any on this floor, that the legislature has the right already to legislate on this subject. Then, sir, the whole question resolves itself into this: shall this Convention by these two lines express and settle definitely and forever this question of constitutionality, between the lawyers and the county courts? It seems to me that is the only question for us to decide. Gentlemen tell us all around that the courts and the lawyers differ on this question. The question arises in this shape. Shall the Constitution settle by a couple of lines this moot constitutional question? I prefer, sir, the original section as amended by the gentleman from Doddridge to the substitute now offered by the gentleman from Kanawha. For one, I am willing to say by those two lines that this constitutional question shall forever be settled.
MR. STUART of Doddridge. I am opposed to the substitute being adopted, in lieu of the proposition, because there is not the least necessity in the world for the substitute. In all my experience, "rot-gut" is better than gold and silver always. It passes for change itself; and there is never any credit system about it - hardly ever, sir. It will demand money when meat and bread will not bring it. And it will not affect the sale of it a particle; because it will go on just as it is going on; and the legislature never can legislate in the world prohibiting the sale of it in that way, because I believe it passes as currency, over in my country at least (Laughter).
MR. HERVEY. I will have to rise to a question of order on this substitute. I do not think it accomplishes the same purpose. It is a different subject entirely from the original proposition as amended. This declares the contracts void. The original proposition was with reference to the license, not with reference to contracts at all, regulating the sale, not prohibiting the sale. I think it looks like a different question entirely.
THE PRESIDENT, pro tempore. I think, sir, it is nearly connected with the original proposition.
The question was put to vote and the substitute rejected.
The question recurred on the amendment of Mr. Hervey: "If in any county a majority of the votes cast at any election in such county so desire, the legislature shall prohibit the sale of intoxicating liquors therein."
MR. POWELL. If I understand the amendment is to come in after the word "State."
MR. HERVEY. That is the case, in the second line.
MR. VAN WINKLE. If I understand the amendment it proposes that if any one county desires it, it prohibits it throughout the State. That is the way it reads.
MR. POMEROY. O, no; only one. I can say that in the county I have the honor to represent we could carry a question of that kind by a vote of nineteen to twenty; and I would have no objection to it at all. I would hope it was so in every county within the limits of the commonwealth. Of course this whole matter does not say the legislature shall ever pass an act. It only gives the power to do it; and of course they would not pass it unless desired to do so by the people.
Mr. Hervey's amendment was rejected, and the question being taken by yeas and nays on the original proposition, as amended, the vote resulted as follows:
YEAS - Messrs. Brown of Preston, Brooks, Battelle, Chapman, Caldwell, Dering, Dille, Hansley, Hall of Marion, Harrison, Hubbs, Hagar, O'Brien, Parsons, Powell, Parker, Pomeroy, Sinsel, Simmons, Stevenson of Wood, Stewart of Wirt, Stuart of Doddridge, Taylor, Trainer, Walker, Warder, Wilson - 27.
NAYS - Messrs. Brown of Kanawha, Brumfield, Haymond, Her- vey, Irvine, Lamb, Lauck, Montague, McCutcheon, Robinson, Ruffner, Stephenson of Clay, Sheets, Soper, Smith, Van Winkle - 16.
MR. VAN WINKLE. I suppose the successful party ought to treat (Laughter)!
MR. SIMMONS. As the hour is getting late, I move to adjourn.
The motion was agreed to and the Convention adjourned.
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Chapter Eleven: First Constitutional Convention of West Virginia