The Convention assembled and was opened with prayer by Rev. R. L. Brooks, a member.
After the reading and signing of the journal,
MR. LAMB. Mr. President, the first business I suppose would be the improvement suggested to the 11th section of the third report of the Committee on the Legislative Department which the Convention had under consideration last evening in regard to the apportionment of Raleigh, Wyoming and McDowell. Are the gentlemen present?
MR. HAGAR. Two of them are here.
MR. LAMB. If not ready, the subject I suppose could be passed by with general consent.
THE PRESIDENT. The gentleman from Marshall had intimated a purpose to make an amendment to this report. The motion would be in order.
MR. CALDWELL. The proposition that I made here which I discussed is a substitute offered by the gentleman from Wood, and as I stated last evening, I was willing to accept his substitute for my proposition, and by reason of his absence I do not wish the matter taken up just now. As there are some other matters connected with the legislative report that we cannot dispose of, perhaps we had better pass them by.
MR. LAMB. This other is the only matter that remains undisposed of except the apportionment of Wyoming, etc. If this is laid over I shall have to be absent an hour or so. The gentlemen are in now and perhaps can report whether they reached an arrangement or not.
MR. WALKER. In regard to these counties we have agreed on an amendment. We give Raleigh the first delegate; Wyoming the second; then return to Raleigh; then Wyoming; then McDowell. That is about as near as we could get to it.
The Secretary reported the amendment as follows:
"Strike out all the 11th section after the word 'for' in the 99th line, and insert the following: 'the first term, to be a resident of Raleigh, for the second term, of Wyoming; for the third term, of Raleigh; for the fourth term, of Wyoming; and for the fifth term, of McDowell county,' and so on in each case in rotation."
The amendment was adopted, as was also the section as amended.
MR. CALDWELL. I ask, sir, that the substitute offered by Mr. Van Winkle for the additional section proposed by me be taken up.
The substitute was reported as follows:
"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."
MR. LAMB. Mr. President, I hope it will not be the pleasure of the Convention to adopt the motion. While in perhaps nine cases out of ten these corporations ought to be created by general laws, yet it would unquestionably be unwise to insert an inflexible rule in regard to the subject in your Constitution. What would be the effect of it? You pass a general law prescribing the privileges, mode of organization, etc., of these corporations. Let us suppose you have inserted in that general law that the board of directors shall contain nine directors. A particular case comes up in which it may be expedient to have five or seven; and in that particular case your legislature provides for the incorporation of a company with seven directors, making that single change from your general laws. If you insert this inflexible rule in your Constitution the whole of the charter becomes void. The slightest variation from it, the slightest special provision incorporated in the charter of any company invalidates the whole act. It is a violation of the Constitution. Your corporation has no legal existence. Then the question is simply this: though it may be expedient, may be proper, and will no doubt be expedient and proper, in nine cases out of ten, or perhaps in 99 cases out of 100, that these corporations should be created only under general laws, is it expedient and proper that you should insert an iron rule in your Constitution? Is it expedient and proper that you should adopt here, in fact, the old fable of the bed of Procrustes and fit everything without the liberty of changing it under any circumstances, to your rule? This difficulty may be avoided, it is true, when it becomes necessary to adopt a special provision in regard to a particular corporation. You would have to alter your general laws as to all corporations. The alteration would apply not merely to the special case in hand but to all corporations which had been thereafter created. You would be compelled to alter as to those in all the State as to a particular case. Let us see how it would operate. You want companies for manufacturing purposes in Kanawha, to develop the immense mineral wealth that exists there; to work your coal mines. To incorporate those manufacturing companies and render them capable of securing the public benefit which ought to be anticipated from them. they must have something in their charters a little different from that of an ordinary manufacturinig company for the purpose of making iron or nails or something of that sort. And yet here you are to adopt a fixed and inflexible rule which is to govern in all things under penalty that if you depart from it in any special charter that charter becomes a nullity and the whole property which may be vested upon it is at risk; or you are to go to work and alter your general laws whenever these special cases make it necessary for the public benefit to adopt some slight change from the general system.
I think, Mr. President, all this is a matter which ought to be left to the discretion of the legislature; while I would say that in nine cases out of ten at least the legislature ought to act on the principles which are indicated in this amendment, yet I would regard it unfortunate that you should fix an inflexible rule in your Constitution. The resolution itself acknowledges the necessity which I am advocating. The resolution itself acknowledges that it would be impracticable to apply the same principle to internal improvement companies as to every other company. It leaves it subject to an invariable rule. And, gentlemen, in regard to the last clause of the amendment proposed, I must say that if this Convention undertakes to determine what system of banking shall exist for all time to come in this commonwealth, they undertake to settle more than any men can wisely settle at present; but I will undertake to say, however, that if they intend to fix inflexibly upon us the system of banking contemplated in the last clause of this resolution, they will have adopted the worst system of banking for the public interest, the interest of the stockholders and of everybody that can possibly be devised. I had supposed since the late occurrences that this system had been pretty well exploded. What have we seen recently in Illinois? The whole system throughout the state was based on this principle of stock security for circulation; and the whole system within the last twelve or fifteen months has exploded there completely. I recollect during last fall and winter when we used to be furnished by the banks in Cincinnati and other places with a schedule in regard to Illinois money, all secured by stocks, all announced as a perfect system of security; but here on this schedule you would find a half dozen banks to ten at ten per cent discount, and a dozen other down to twenty; some at thirty; some at forty and so on up to seventy or eighty! All the banks of Illinois based upon this principle were at these enormous discounts. Since then they have all gone out of existence. There was six or seven millions of circulation in that state all founded on this system; and out of that circulation no doubt the bankers and brokers of Cincinnati made some two millions of dollars, owing to its depreciation. No doubt the tax on the industry of Illinois owing to the deranged state of their circulation incident upon this system far exceeded the whole amount of the circulation itself, for all business was deranged and all business injuriously affected in that state owing to it. A bank based on this system cannot accomplish the end which a bank ought to accomplish. It cannot accommodate the trade and business of the community which surrounds it. We have had them here in Wheeling. We have had banks here in Wheeling on this system; and very wisely they concluded some three or four years ago to wind up and quit business. You have had them in Fairmont and the gentleman from Marion county can answer to this system operating there, has answered for the condition of the people and business of that district.
They commence by lending their whole capital to the State, and what have they to lend to others; what funds have they got remaining to accommodate and facilitate business operations? You incorporate a bank under this system with a capital of a hundred thousand dollars, and they begin by lending $100,000 to the State or investing it in State stocks, which amounts to the same thing, and then they are out of cash altogether. They have just got simply their circulation to work upon; and with that circulation they must supply their coin; and they must invest that circulation in such way as to be able to meet it when it is returned to them for redemption. With $100,000 of circulation they buy $25,000 of coin. That is the usual operation. They buy it with their circulation. Then they have $75,000 of circulation left, and they can only use that circulation in such way that whenever circulation is returned to them they shall have means of redeeming it. They cannot lend it out for the accommodation of business; and they are necessarily, by the very constitution of their existence, shaving shops. This system has been adopted in New York. But, gentlemen, it is a very significant fact that this system has not been adopted in a single New England state. I am not for imitating either New England or New York, but I do suppose that the Yankees understand something in regard to financial matters. Anyhow, gentlemen, whether the system be proper or not, is it proper to fix these things in your Constitution? Is there the place for them?
MR. BROWN of Preston. I move to strike out of the 12th and 13th lines the words "or of the United States." I am opposed to Congress interfering with our private affairs. I do not think, sir, that Congress has any right to interfere by legislation in our affairs either in banking or in other affairs, and really I do not see the pertinency of the words. I prefer that we should make our own laws, and that so far as our internal affairs are concerned, both as to this and everything else, that the Federal Government should not interfere with our institutions. I move, sir, therefore, to strike out the words "or of the United States."
MR. VAN WINKLE. My views in preparing this divides it into two provisions. When I came in the gentleman from Ohio was remarking on the latter one. The object of the first part of it, which I can have very little doubt will meet the entire approbation of this Convention in some form is instead of making these corporations for ordinary purposes have peculiar privileges and rendering it necessary to go to the legislature to petition them, to go round lobbying and log-rolling in order to get a little facility for doing business, is to draw the law, not for a small number of citizens but so that any number of citizens can have the privilege of doing their own business under general laws to be passed by the legislature and of course under such restrictions as it will throw around it for the safety of the commonwealth. I believe laws are already in force in reference to mining and manufacturing. There is also a general banking law under which certain independent banks have been chartered. And I believe they do require them there to come and get special permission. This simply in aid of what I have spoken of. We have had great cause in former years to complain of the legislature, of long sessions and little done. I think, as I have already stated, that taking these private matters out of the way and introducing the members to court, with matters involving State policy, it would purify your legislature - or if they do not need purifying by individuals, which is not what I mean, yet it will purify it as a public body; prevent that kind of solicitation which leads to unequal, partial, and very frequently unjust legislation. Now, what is there to hinder? Suppose that I go down to the country of the gentleman from Kanawha and I find a nice bed of cannel coal and I and a half dozen others go and purchase it. Now we want the facilities for benefits in this way. I have not capital enough to fully develop it, and we must try and associate others with us. Well, now get an ordinary partnership with three or four partners, nobody will go into it. We merely then want this legislative facility in order that we may transact this business conveniently; and everybody knows that when a company enters into an enterprise of this kind the welfare of the public is measured by the success of the company. A charter is applied for and refused though granted to a company just opposite us. Well, now what is the necessity of going to the legislature? We have a limited partnership law, an excellent law too. That allows a partner to go into a mercantile establishment and limit his responsibility. There are certain conditions which he has to file evidence of in the clerk's office. He puts in a cash capital of so much and is allowed to manage the business. It seems to me it is the same in reference to many of these small corporations. Internal improvement companies affect the State at large. Therefore it is a matter in which the State at large should have an interest. But whether it affects the State at large, whether we have one more or less bank in Wheeling or Parkersburg is what I am unable to see.
Coming to the latter clause, I do not pretend to be so familiar with this subject as to say whether it is likely to be entirely beneficial or otherwise. Let me try to explain how I understand the matter. Legislatures are here hammering at the banks and placing restrictions on them, and frequently the restrictions imposed are the very thing that go to destroy their usefulness. Now the government has nothing to do with any part of the business of banking except the circulation. That goes forth to the public, who receive the benefits of the endorsement a special charter gives to the bank. The furnishing of the currency of a nation is a high act of sovereign power. Coinage is not permitted to individuals. It is a function only of the sovereign power. It is proposed here that these banks shall give security for the circulation; nothing more, and the putting up of something that is tangible, that can be sold in the market to pay its bills in case of failure of the bank is what is contemplated here. Now, we are told by the gentleman - and of course, I do not pretend to be as familiar with it as he is - that this scheme has worked badly in Illinois and possibly in Michigan; but I notice it has worked admirably in New York and Ohio. In the other cases state stocks were permitted and about that time the funds were invested in Arkansas stocks, and the result the United States had to come up and pay the money. But I believe the New York banks were secured on their own state stocks, or the stocks of the United States, both perhaps as good as the gold itself. But, again, the gentleman is certainly mistaken in supposing them to put their whole capital that way. They put an amount equal to the circulation. If they are prepared to issue $80,000 in circulating notes, they put up $50,000 in stocks; and so on if they want to increase, but always retain something to do their business on; and I think that some of the banks in the West do the most of their business on their circulation anyhow. I cannot, of course, in a thing that gentlemen profess to be entirely familiar with set myself up as contradicting them; but it is something that each member of the Convention is able to judge of for himself, as to the principle whether banks are to be compelled to give security and indemnify the public against any loss by the circulation of their notes, and consequently whether the system here proposed is a good one or whether it all resolves itself into the first question of whether they are to be compelled to do it or not. As to the first portion of this subject, I think there will be hesitation. If you think banking corporations are improperly included, strike them out. But do give these small business corporations the power of going into business without going to the legislature at every session and encountering private opposition before they can get these ordinary facilities for transacting their business.
MR. SMITH. I entirely approve of the principle involved in this substitute. The thing itself meets my approbation with one exception. But it is pretty generally understood from what I have said in this Convention that I am opposed to enactments in the Constitution. I object to it on that account. I do not know whether it is generally known here or not, but this thing, with the exception of banking exists now under the law in Virginia. I have myself procured some half dozen charters under the existing law by an application to the county or superior court, which ever is the most convenient. It is now the law, and we are adopting the law into the Constitution. It is the existing law now of Virginia. You may apply to the county or superior court at any time and get a charter for any mining or manufacturing purpose, or any other purpose not banking. As to the banking part of it, I think it is a little questionable whether we ought to open the door to such innumerable banking establishments as may exist under this law. The legislature, however, have the power if they deem it proper to add banking to the other acts of incorporation. And here you make it the imperious duty of the legislature to pass this law, and if it works badly you will have to call a convention to get rid of it. You may fill the whole country with a spurious currency, and there is no redress at all. I think banking ought not to be in; and if it is necessary to be in, the legislature can put it there, and if it is found to work badly the legislature can repeal it. As to acts of incorporation for mining, manufacturing or any industrial purpose, I say the power now exists differently and I entirely approve of it. I don't want it in the Constitution because we have now got it in the law and I don't want to enact a new law and make it unbending in its provisions. I therefore object myself to the whole amendment, not because I disapprove of any of these principles except the banking but because I do not think it is proper to be inserted into the Constitution. I would prefer leaving it to the legislature; for they will have to repeal the existing law for every other purpose than banking or the right still exists. I imagine the lawyers here are aware of the fact that it is the existing law.
MR. VAN WINKLE. I do not know that the law of Virginia is necessarily the law of West Virginia.
MR. SMITH. I imagine that law will continue until it is repealed; or else the laws of Virginia will prevail here so far they are not in conflict with the Constitution that we have already adopted, and if it is necessary they may be re-enacted; and there ought to be a revision of the law, at any rate, under it and adopt such as are necessary. But I believe when you transfer one territory to another political division, the laws existing in that territory at the time of the transfer is made are in force until they are repealed. I believe that is a national principle. It is a law now, and if it is not the legislature will have power to make it a law.
MR. VAN WINKLE. I do not understand what inference the gentleman draws from the fact that there is a law.
MR. SMITH. Why, there is a law now by which the county court or the superior court may grant charters to any industrial association, mining, manufacturing - all but banking. Banking is not authorized by it; but for every other purpose the existing law of Virginia authorizes it; and I say I have secured as many as half a dozen charters in the county in which I live, and the applications there in the country are very common, and most of our companies or incorporations and under and by virtue of the existing general law now in Virginia. I am unfortunate in not being able to turn to the book, but I take it the act was passed in 1852 or 1853, under which the whole thing has been done in the country, and it is a thorough law to supercede the necessity of these frequent applications for incorporation. I think it an excellent law; but I do not want it in the Constitution.
MR. VAN WINKLE. If I understand the gentleman, whatever is on the old statute book is not to be put into this Constitution.
MR. STUART of Doddridge. I desire to amend by striking out the word "banking" in the second line and after the word "excepting" in the third line inserting "for the purpose of banking or."
MR. LAMB. I hope the objection I made to the insertion of the provision in the Constitution was understood. I, like the gentleman from Logan, considered that it was impracticable for the legislature in nine cases out of ten at least to act under this rule; and that it would therefore by no means follow that it would be wise or judicious in this Convention to insert the rule in the Constitution which would prevent them in every possible case from varying from it. For instance, this provides that "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." Now, if it be necessary, or if it be proper, to make the slightest change in the constitution of that company from that which is prescribed by the general law, the legislature will be prohibited from doing it; and in the case I mentioned, if the general law prescribes nine directors and you want but five or seven and go to the legislature and get a special act subjecting you to the general law with that single exception, your law is void if you incorporate this provision in the Constitution. The same object can be accomplished, as it has been accomplished, by leaving this matter where it properly belongs, to the discretion of the legislature. What is it that has occupied and delayed the proceedings of this Convention so long but this disposition on the part of certain members to incorporate first one provision of your code of laws and then another provision of your code of laws into the Constitution, where they do not belong? Is all wisdom to be gone when this Convention adjourns? Are we to institute a legislature under our system and then say in every line and paragraph of the Constitution that we hold them unworthy of confidence, that we do not believe they can legislate wisely or properly? And particularly in cases of this kind where the necessity may occur of adopting some special provision in regard to one company or another. The gentleman himself recognized the necessity of that in this, for he is not willing to apply it to works of internal improvement, while the gentleman from Doddridge is not willing to apply it to banks; and if we had anybody representing insurance offices, you would find they would be unwilling to apply it to insurance offices because it may be proper that an insurance office in Charleston, Kanawha, may operate with five directors, while one up here might properly have nine. The legislature by this provision here would be prevented from allowing the slightest variation in the organization of one company from that which has been prescribed by their general system. Is it not best to leave this matter to the legislature? Let the legislature of West Virginia have a wise and prudent and proper system for instituting corporations under general laws that will be just as effective as it would be if inserted in your Constitution where it does not belong; and if it ever becomes necessary to depart from that law, then the legislature would have the matter within their control. Men would not be called upon to invest large amounts in companies necessary for the improvement of the country or to develop its resources with uncertainty whether this provision of your Constitution did not render their charter entirely void.
MR. STEVENSON of Wood. There are two features, Mr. President, in the proposition offered originally by the gentleman from Marshall which I would like to see incorporated in this substitute if it is to become a part of the Constitution; and for that purpose I propose to offer one of them as an amendment.
THE PRESIDENT. There is already an amendment. There is already an amendment to it offered by the gentleman from Wood.
MR. STEVENSON of Wood. Yes, sir; I supposed, however, that this was acted on as an original proposition, and that amendments to it would be in order. If this is to be acted upon as a clause or section in the report of the legislative committee, then two amendments would be in order.
THE PRESIDENT. Would the proposition apply to the amendment of the gentleman from Doddridge?
MR. STEVENSON of Wood. No, sir.
THE PRESIDENT. Then, of course, it could not be offered as an amendment.
MR. STEVENSON of Wood. Then I will just suggest it. I propose to insert after the word "passed" in the 9th line: "except where the object cannot be obtained under such general law."
MR. BROWN of Kanawha. I desire to know precisely the amendment proposed by the gentleman from Doddridge.
THE SECRETARY. To strike out the word "banking" in the 2nd line and insert "for the purpose of banking or," after "excepting," in the 3rd line.
MR. STUART of Doddridge. Then it will be necessary to insert "or banking" again after the word "improvement," and strike out the word "money" in the 10th line. It would be necessary in consequence of the amendment I propose.
MR. VAN WINKLE. It is to put them on the same footing as internal improvements.
MR. BROWN of Kanawha. Then if that is the understanding it is my view exactly. I have written an amendment here expressing the same idea. I wish to place banks on precisely the same footing as works of internal improvement, and I desire that they should be retained in the hands of the legislature. That this plan of associated capital for mining corporations and manufacturing and insuring and other purposes useful to the public I think is highly proper should be done by general law; for it relieves the legislature of an immense amount of special legislation.
There is another view. We have adopted in the education report the principle that the bonuses are legitimate funds to be applied to educational purposes. Now, if you place the granting of banking charters in the hands of the courts, to be decreed whenever a party conforms to certain requisitions, there is an end of all your bonuses and you may have all the privileges of the State granted to little corporations to issue money and they may flood the country with worthless paper and as no bonus derived for the privilege and every little community turned bankers to break up the country. It is highly important therefore that that privilege is preserved in the hands of the legislature, where they may if they choose to prescribe a bonus which will go to the educational resources of the people. The same way with works of internal improvement. Those works that are purely local in their character, merely for purposes of private interest, manufacturing or for lumber or mining, it is proper they should be done by general laws. That is the law now and it has been found to work well in its operation. We have corporations all over the state granted under the provisions of our general law by the courts. But high public policy requires that banking and internal improvements should be retained in the hands of the legislature of the state.
MR. VAN WINKLE. One word in explanation, sir. I do not intend to be anyways tenacious about this matter. I wanted to submit it to the good sense of the Convention. I stated in reference to internal improvements that I had thought proper to except them; that they did operate directly on the public or involve public interests, and therefore it was proper the legislature should retain control of them. Now, I will admit as to the circulation of bills that that also should be considered a public matter, and I would not be at all strenuous in objecting to the amendment of the gentleman from Doddridge. I merely want to suggest that we should confine it however to banks of circulation; and then this last clause may come out. Of course, if they are put in the power of the legislature, I mean to say this, that there are in all the states - and I do not know but in this - companies that are doing a banking business, as they call it. They receive deposits, discount notes. I believe most all perhaps all the banking business in Cincinnati is done in that way; but they never had any power and are actually forbidden to issue bills to circulate as money. Now, under such corporations as that this operation does not arise. It is simply those that issue bills to circulate as money. If this amendment should be confined to them, which it might very easily, I would not object to it. Might take out "banking" or leave in the words "useful to the public excepting the issuing of bills to circulate as money or the construction of works of internal improvement."
With that modification, I am prepared to vote for the amendment of the gentleman from Doddridge, and I suppose that is what he wishes to reach.
MR. HERVEY. I am aware that the gentleman from Wood has consented to the modification suggested by the gentleman from Doddridge. I am opposed to striking out and would be in favor of placing works of internal improvement on precisely the same footing if we are to have a constitutional provision at all; and to obviate the objection of the gentleman from Ohio in regard to existing charters I had provided a line or two which I thought would do that; but it is not now proper to offer it, namely, that the provision should not affect existing charters until their expiration. But, sir, if this provision, as now stripped - as I regard it - of all individuality, of all practical utility, is sought to be incorporated and is actually incorporated in the Constitution, I shall regard it as of no avail. I see no reason, sir, why banks in this State may not be placed under the same general rules and regulations that they are in other states, and I see nothing in the associated banks of this city to entitle them to a position of credit over banks of other states. Has their history been a profitable one either to themselves or the community? Have not bank doors and vaults been locked for years and years in the very face of a state law, and the legislature at the very next session legalizing that violation of their charters and the law? Sir, there is no argument in it. But, sir, I am in favor of incorporating this provision in the Constitution for another reason and that is that we have heard a great deal in this country about the moneyed power of the country; about the concentration of the money power in the management of the affairs of the country. Now, sir, incorporating a provision of this kind in the Constitution as a general system of banking and for works of internal improvement constructed on a general system, you abolish this monopoly in banks, bank charters and in the systems of internal improvement. You avoid the very thing which gentlemen talked about here to-wit, log-rolling in the legislature. Strike this out and you incorporate a system of log-rolling in the legislature; and if individuals want a banking association they besiege the doors of the legislature asking for special privileges; and if chartered on this basis they have privileges that are possessed by their fellow citizens.
MR. STUART of Doddridge. I accept the modification proposed by the gentleman from Wood.
MR. BROWN of Kanawha. I fully endorse the amendment of the gentleman from Wood. I know there is a large portion of the banking business has no reference to the currency at all and in that as purely local and altogether private and men can bank without incorporation as well as with it if they choose. If I set up a bank and my neighbors come and deposit their money with me I may as well keep it and lend to anybody that may choose to borrow of me; and I would see no objection to allowing these private banks the same purpose. It is very common in almost every town or village almost. You have safety-fund banks where the citizens make their deposits and constitute a little banking fund. They may as well be incorporated by law under a general provision as anywhere else. But these banks of circulation that affect the public interest all over the State, and everybody takes them on simple credit that they are a bank authorized by law, and we ought therefore keep an eye on it and control it, that we may always have a safe and sound currency. I would reply to the gentleman from Brooke simply by a declaration that while we may not have had a better currency in Virginia in regard to banks than other states, I am confident we have had as good and have banks in Virginia that will compare any day with those in other states of the Union, and which will generally be rated above them in solvency and circulation, grown in the confidence of the people; and although our banks, when under the pressure of circumstances have been suspended, the banks of all other states of the United States have been suspended also. The eastern banks always have a premium on their paper simply because on account of the balance of trade we have to borrow money and have to pay it there. That is the only reason they have any preference, not because they are more solvent. On the contrary, I believe they are less so perhaps.
Mr. Stuart's amendment, with the modification suggested by Mr. Van Winkle, was agreed to.
MR. STEVENSON of Wood. I offer to amend, Mr. President, by inserting at the end of the word "passed" in the 9th line these words: "except when the object cannot be attained under such general laws."
MR. BROWN of Kanawha. I now move to amend by striking out all after the word "passed" in the 9th line as irrelevant after the amendments made.
MR. STUART of Doddridge. I would like to strike out all after "money" in the 10th line. I would like to retain: "But no company or association shall issue bills to circulate as money."
MR. VAN WINKLE. I see the object of the gentleman from Doddridge. If he will let the vote be taken on striking out, I suppose there would be no objection to let the provision stand that he wants to retain as it is a positive inhibition on all these companies against allowing them to issue bills to circulate as money. But the object of the gentleman from Kanawha is to strike out the clause that compels those that do issue to give security.
MR. BROWN of Kanawha. I do not want any to issue except those properly chartered for the purpose and for no other purpose whatever. It is a common practice in some states, and I have shown the obligation in this state already to grant charters.
Mr. Stuart withdrew his motion, and the amendment offered by Mr. Brown was agreed to.
Mr. Stuart of Doddridge then moved to add at the end of the section the following: "But no company or association authorized by this article shall issue bills to circulate as money," and the amendment was agreed to.
MR. STEVENSON of Wood. The other feature I spoke of is this: If the legislature will have the power which this amendment proposes to give them, I will not offer it. But for the purpose of getting an opinion on that I offer it as an amendment to come in at the end of the word "prescribed'" in the 6th line: "but all general laws passed pursuant to this section may be altered or amended by the legislature from time to time."
MR. SMITH. I beg leave to suggest that is one of the very excellencies of the legislature and its superiority of a constitution, that a legislative act may be amended at any time at any session they choose to act upon it, one year, two years or twenty years thereafter the legislature may alter the law. I suppose the gentleman is aiming at this, that when there is a charter granted it shall be competent for the legislature to alter that charter. They may alter the law, but they cannot alter the charter, for that is a contract. That is the objection to this whole proceeding. Now there is no provision here if your charter wants amendment. How are you going to get it ? The legislature it says may grant it and confine it to the general law to granting but having given them no power to amend or alter the charter after it is passed. That is involving the country in difficulty and involving all these charters in difficulty. There ought to be some provision at some place for all corporations that may need relief and redress through their charters. There ought to be some power somewhere to make these amendments, but I do not see under the provisions of this Constitution that there is any capacity on the part of the legislature or any other authority to change the charter even though the parties wanted it changed. The legislature shall pass the general law to grant charters, but that is all they have power to do by this Constitution. That wants amendment, and I do not see how you are going to amend it. Your amendment is supererogatory because that power exists everywhere, in every legislature, to amend a law. But it does not exist to amend a charter.
There have been so many amendments offered and they have not been announced from the Speaker's chair that I really don't exactly understand what has been amended. I think the proper rule is that whenever an amendment is offered it should be in writing and announced by the president of the Convention.
MR. VAN WINKLE. I think when the gentleman from Logan looked into this matter, his spectacles were not handy. He must have left them at home. Now this is the condition of these general laws. The legislature in every one of them reserves the right to change them at pleasure; and it is a good feature just in that respect that it does not for instance make the tolls on a railroad or on a turnpike, or through similar things does not make them vested rights, as they are under these special charters. On the contrary, when the legislature charters now, as when it charters a railroad company, for instance, it gives it certain peculiar functions, as, for instance, the place where the property is to be constructed, the amount of capital it may use and the authority to borrow money; but then the balance is that it shall be subject to the general railroad law which contains a provision that it shall be always in the power of the legislature, so that matters of importance do take vested rights because that without you could not get a corporation to act at all. But this power, the mere subject of regulation, is retained by the legislature. Again, the very beauty in these general laws is, you have a general law in reference to railroads. I have spent winters at Richmond endeavoring to prevent special restrictions being placed on this Baltimore & Ohio Railroad; and I always said to gentlemen there that if they would put it in the general law, make it binding on other companies in the state, we had not a word to say; but that we would resist as far as we could any special legislation against that road in the way of restrictions. Now see the advantage. If it is necessary for one company, it is necessary for all, and every matter of regulation, if you put it in the general law and it should operate inconveniently to the public and hence to the companies, why then the legislature is applied to to repeal that portion of the law. If for any other reason it is desired that the general law be changed, it is changed for the benefit of all. That is one of the beauties of general laws. So with a general law in reference to counties or townships, what powers they may exercise: we want general laws for them, so that if you change for one you change for all; you secure uniformity, equality and promote the interests of all alike. The public discuss the law; the legislature is informed and instructed; the legislation on any subject is settled by the great body of the people, not by a few individuals. The subject of regulating corporations should be thrown open to the public as far as proper to do so and not made the result of special, and generally favorite legislation; legislation that is favoritism and to a few influential men.
Under this system of general laws, whenever the legislature comes to act it must be honest, be governed by public considerations only. Now this exclusion of special legislation in these cases does not prevent any just amendment being introduced. If the legislature shall pass a law regulating insurance companies and in passing that law had overlooked some important point or should have placed some restriction in the law which would render their operation impossible, there will be a voice coming up from the whole public against that feature and demanding that the legislature repeal it.
If, on the other hand, you find these companies under this general law are enjoying too much privilege, or something about it operating injuriously to the public, the public voice comes up in protest and the legislature heeds it if it is just. In that way, instead of having log-rolling, the legislature is left free to act without that kind of pressure and solicitation. I wish to be understood. I believe we have as good men as any others; but this system of favoritism has grown up and we are now suffering from it. In relation to the propriety of this in the Constitution, we claim as the right of the citizen that these things should be open to the public and not confined to a few individuals. I leave it to the Convention to say if this is not precisely the case where we need a constitutional provision. The gentleman from Logan argues as if we were making your general law and putting a general law into the Constitution. We intend no such thing. We simply provide that these things shall be open to any number of individuals who choose to associate for the purpose, and that they shall be regulated by general laws, so that one shall have no more privileges than another; and unless they can show that their matter connects itself as directly with the public as internal improvements or banks of circulation or other objects that they ought not to ask, that there shall be no special legislation on the subject. Where a matter concerns the whole State, there the Convention will remember I have asserted it was the proper thing for the legislature. But where it concerned a single county, I want the county alone to legislate on it. It concerns nobody else. I think it is due to those we represent here that they shall have this right without going to the legislature to obtain a mere facility for doing business and that business generally beneficial to the public. I have complained of that ever since our railroad has been constructed. I have been at Richmond winter after winter to get facilities that could not injure anybody; but because they wanted to build a railroad in the other part of the state and the Baltimore & Ohio was a great rival - they thought so, but they were very much mistaken - but it was only by log-rolling that anything could be obtained and those representing this trans-Allegheny country here who had axes to grind have voted for the squandering of public money on the railroad in the east but they had no interest when they did not get one dollar for themselves. Such a system ought to be stopped, and this law will tend to do it to a great degree.
MR. BATTELLE. I must call the attention of the Chair to the fact that the gentleman's time has expired.
MR. HERVEY. I hope there will be no exception in any case.
MR. VAN WINKLE. What is the gentleman going to do if I just goon? I hope no such gag laws will be passed.
MR. STUART of Doddridge. I would like to accommodate the gentleman but if this is to be done, let it be understood the rule is to be done away with.
MR. VAN WINKLE. Well, sir, I have lost the connection. I do not think I have anything more to say. I only hope that what I have said is better remembered by the Convention than it seems to be by me now (Laughter).
MR. SMITH. I suppose there is a parliamentary rule that every amendment should be announced before anything is said upon it. That rule so far as I have observed has been utterly disregarded, and it leaves those! who are to act in the dark. I do not know oftentimes how to vote. There is no announcement of the amendment. I will ask as a favor to myself that the amendment of the gentleman from Wood be reported.
THE PRESIDENT. The Chair understood that if it was thought necessary, while listening to the opinion of those who understood it perhaps better than himself, he would offer it or would not, the gentleman from Kanawha rose to advise the Chair, who heard him through; and the gentleman from Wood followed on the same side, counseling his colleague from Wood; and in that way the question passed on. The Chair had certainly intended promptly to propound the question after the gentleman from Wood took his seat; but he took with the condition that he was inviting an opinion from other members as to the propriety of the amendment. Hereafter, the Chair will insist on the rule that whenever a gentleman offers a proposition that he takes his seat until the Chair has an opportunity of propounding the question. If he does not do so, the Chair will feel compelled to insist.
MR. VAN WINKLE. He may lose the floor, sir.
MR. POMEROY. I suppose the motion is simply to strike out and insert and is such a motion as will be plain and open without writing. The Chair can announce the motion and let the discussion goon.
THE PRESIDENT. The Chair has found whenever he departs from the rule it leads to great loss of time and that members will not draw the distinction whether it is one of those cases in which everybody understands the motion to be in order or whether it is not. And therefore it is necessary that there may be no mistake longer as to what the Chair does or does not entertain, the Chair will insist on having the privilege of propounding as distinctly as he can the question to the Convention.
MR. VAN WINKLE. The Chair is right in that; and then let the Clerk read it distinctly. But I remark that if you compel a member who gets up to sit down again, some other member may take the floor from him.
MR. BATTELLE. I wish to propound now that very question: if a gentleman gets up and makes a proposition, and pauses in his remarks until the Chair states it, is it understood or not understood with that relinquishing the floor, does he lose his place and his right to speak? That is an important point, sir.
THE PRESIDENT. He has a right to explain his proposition before offering it. In short, common courtesy allows five minutes perhaps of explanation. The Chair is not of the opinion that he can deny another man the right to the floor after the motion is propounded.
MR. VAN WINKLE. If a gentleman takes his seat, he leaves the floor. If one gentleman interrupts another the first must stand during the interruption or he loses the floor. We do not so much contend here yet, but the time may come before we get through.
MR. POMEROY. The idea is just this: suppose a member offers a resolution and is disposed to take an ungentlemanly advantage and move the previous question, I contend the parliamentary rule allows the gentleman offering the resolution to maintain his standing position until the resolution can be forwarded and read and then he can make a speech on the resolution before he takes his seat.
MR. BATTELLE. I wish to make another remark in reference to the proposition that has been interrupted by the conversation of gentlemen since I was up before. I wish to have a distinct understanding, on my part at least in reference to the proposition I made a while ago: whether if I choose to offer an amendment to the bill now pending, or a proposition in relation to it, whether the intervention of the announcement of that proposition from the Chair takes away my right to the floor. If that is a fact, it is a proposition that I never have heard of in any deliberative body elsewhere; and I wish to understand distinctly whether that is the ruling of the Chair.
THE PRESIDENT. How is that?
MR. BATTELLE. If a member offers a proposition to the pending question, does the announcement of that question from the Chair take away the right of the person making that proposition to the floor? For example, I get up and offer a proposition and propose to speak to it as has been the case all along.
THE PRESIDENT. It does not take away his right, but it puts him on a par, in the opinion of the Chair, with any other gentleman except so far as courtesy that other gentlemen may feel due to the mover of the proposition.
MR. BATTELLE. I wish then, now, here, with very great respect for the Chair, to express my most emphatic dissent from that doctrine. For one, I am disposed to take prompt measures to correct it.
THE PRESIDENT. The Chair would make this remark to the gentleman from Ohio that he indicates those general views, that gentleman may look into the manual; but where the Chair is thought to be wrong he will hear any remarks tending to show the Chair is wrong or which may change the decision.
MR. POMEROY. Do I understand the ten-minute rule? I may vote to extend the privilege to a gentleman, to any member even if he was making a direct attack on the member from Hancock? I want to understand the decision of the Chair. I understand the Chair to say that in extending the privilege of the gentleman from Wood the resolution was abrogated. The Chair is certainly mistaken.
THE PRESIDENT. The Chair understood the Convention very well as intimating that if the rule was extended, then they were in favor of abandoning the rule altogether. The Chair took it to be really a vote to that effect.
MR. STUART of Doddridge. The rule cannot be done away with without a vote of reconsideration directly put to this house, and I would remark, sir, that the Chair is certainly not correct in his other decision that when an amendment is proposed to this Convention no man is entitled to the floor until the Chair has propounded the question and then accorded as a courtesy only to the mover of the proposition.
THE PRESIDENT. The Chair is aware that the Convention have not voted to rescind their rule in relation to speaking. We have had no direct vote on that but the Chair has understood that he was not to apply his watch to gentlemen. The Chair has no disposition to be less liberal than the Convention is.
MR. STUART of Doddridge. We hope the Chair will keep the rule; we shall insist on it.
MR. BROWN of Kanawha. I desire to say one word. I am not very familiar with these matters of rules; but I confess, sir, I desire to understand what is to be the rule and to act upon it. The gentleman from Hancock inquires what is to be the rule and desires when he makes a proposition that some gentleman "ungentlemanly" makes some motion - I do not know what the motion is - whether it is to be enforced or not. Now I suppose if we have a rule it cannot be "ungentlemanly" to enforce it. If it is, it ought to be known beforehand and stopped. I desire to know another thing. If some gentleman "ungentlemanly" offers a proposition and then seeks to inflict an "ungentlemanly" speech on the house if they are bound to sit and hear it.
MR. POMEROY. To cut me off before I explain what I mean, by calling the previous question.
MR. BROWN of Kanawha. I did not hear anything about the previous question. I understand in other bodies - in the house of delegates - when a gentleman makes a proposition there the speaker propounds the proposition to the house, and that until the speaker has done this the party is not allowed to hold the floor nor stand on the floor, nor debate it; and I have seen the speaker invariably require the parties to take their seats until the proposition was propounded distinctly; and after that was done the speaker then announced that the question is open. Now, whether that rule is to govern here, a parliamentary rule - the rule of the house of delegates - I am not prepared to say, but I know nothing in the rule that is either ungentlemanly or improper; and those rules that are selected by this house to govern it ought to be enforced. Whoever takes offense at the enforcement of the rule, I say I am prepared to take the risk in consequences of the offense come whence it may. I shall never take offense at the enforcing the rules of the house so far as I am concerned for I feel very often I get out of order.
MR. POMEROY. I did not use the word "ungentlemanly" myself. I said I would not use the word. But here is a proposition and another gentleman sees proper, without its being discussed at all, to demand the previous question. He has the right to make the demand; but I do say that under such circumstances it is discourteous to do it. It is a legitimate subject of debate, and I have no doubt the gentleman from Kanawha, cut off from the right of free speech in this way, would feel just like the rest of us.
THE PRESIDENT. The Secretary will report the amendment of the gentleman from Wood, to insert after "prescribed" in the 6th line these words: "but all general laws passed pursuant to this section may be altered or amended by the legislature from time to time."
MR. STEVENSON of Wood. I hope the amendment will not be saddled with the sins of this waste of precious time. If that would have a tendency to shorten discussion at all I will withdraw it. I believe the object I had in view is attained.
Mr. Stevenson withdrew his amendment, and the question recurred on the adoption of the section as amended.
MR. BROWN of Kanawha. I wish to offer an amendment which I will read: "but no charter of incorporation shall be granted by the courts under the general laws unless the right be reserved to alter or amend the same at the pleasure of the legislature, to be declared, however, by general laws," to come in at the end of the section.
MR. VAN WINKLE. It does not appear yet that the court is to grant them. It would be better to say: "No charters shall be granted under general laws."
MR. BROWN of Kanawha. I accept the modification.
The amendment as modified was adopted.
MR. SOPER. I propose this as an amendment, sir, at the end: "Dues from corporations shall be secured by such individual liability of the corporators and other means as may be prescribed by law."
MR. VAN WINKLE. This is peculiarly in the province of the legislature in framing these general laws; and I am not sure but the amendment just adopted goes a little too far. It ought not to be admissible to amend a charter granted under general laws. It strikes me the legislature would not have power to prescribe all this and then have it in their power to alter it.
MR. SOPER. Was the gentleman opposing the proposition?
MR. VAN WINKLE. I think it is unnecessary, sir. It had better be left to the legislature.
MR. SOPER. We are giving the legislature to prescribe by general laws for the formation of incorporated companies. Now, there is a class in the community wherever those incorporated companies exist who are very often induced to lend their money to give credit to the corporation and debts are otherwise incurred in the neighborhood around where these corporations are. If the incorporations are prudently managed it is all well, but if they get into the hands of some speculating men who go for the purpose of getting what credit they can out of the community in which they reside and then suffering their incorporation to become insolvent, to turn round to the creditor and say, why, there are no funds of this corporation and therefore we lose our debt. What I want is that the legislature shall at all times have the power to render such individual liability on the part of all men engaged in the corporation that people around in the neighborhood who are getting credit on the strength of it shall be secured for their debts against the corporation.
MR. BROWN of Kanawha. There is but one class of corporations against which this doctrine ought to be enforced, and even there it is doubtful. That is the case of banks of circulation, which have a peculiar privilege conferred on them more than any other institution in the state. Every possible security that can be given the note holder within the power of the law-maker should be required that does not destroy the institution itself.
MR. PARKER. It is policy to protect our people in all cases where we can from giving credit where it is not deserved but it seems to me to adopt the policy suggested by the gentleman from Tyier would prevent any association of wealth from incorporating under this law. If all individuals that enter into an incorporation are to be liable for all the debts that the corporation may contract it will make it a mere private partnership.
MR. VAN WINKLE. The amendment proposed by the gentleman from Tyler destroys the very idea of an incorporation. A mercantile incorporation is that of limited responsibility. It is just that thing that induces men to incorporate, for each knows exactly how much he is going to risk.
The hour having arrived, the Convention took a recess, Mr. Van Winkle having first presented the following report, which on his motion was laid on the table and ordered to be printed:
The Committee on Fundamental and General Provisions respectfully report the following additional provisions, and recommend their insertion in the Constitution.
By order of the committee,
P. G. VAN WINKLE, Chairman.
All officers elected or appointed under this Constitution may be removed from office for misconduct, incompetence, or neglect of duty, in such manner as may be prescribed by law, and unless so removed, shall continue to discharge the duties of their respective offices until their successors are elected or ap- pointed and qualified.
The terms of all State and county officers, and of the members of both houses of the legislature, not elected or appointed to fill a vacancy, shall, unless herein otherwise provided, begin on the day of next succeeding their election. All elections and appointments to fill vacancies shall be for the unexpired term. All vacancies in elective offices shall be filled by special elections.
The privilege of the writ of habeas corpus shall not be suspended, except when, in time of invasion, insurrection or other public danger, the public safety may require it. No person shall be held to answer for treason, felony or other crime, unless on presentment or indictment of a grand jury. No bill of attainder, ex post facto law, or law impairing the obligation of a contract, shall be passed.
No law abridging freedom of speech or of the press shall be passed, but the legislature may provide for the restraint and punishment of the publishing and vending of obscene books, papers and pictures, and of libel and defamation of character, and for the recovery, in civil actions, by the aggrieved party, of suitable damages for such libel and defamation. Attempts to justify and uphold an armed invasion of the State, or an organized insurrection therein, having in view the overthrow of the government thereof, during the continuance of such invasion or insurrection, by publicly speaking, writing or printing, or by publishing or circulating such writing or printing, may be, by law, declared a misdemeanor, and punished accordingly.
Private property shall not be taken for public use without just compensation. No person, in time of peace, shall be deprived of life, liberty or property without due process of law.
The military shall be subordinate to the civil power.
The right of the citizens to be secure in their houses, persons, papers and effects, against unreasonable searches and seizures, shall not be violated. No warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons and things to be seized.
In suits at common law, where the value in controversy exceeds twenty dollars, the right of trial by jury, unless waived by the parties, shall be preserved. No fact tried by a jury, shall be otherwise re-examined in any case than according to the rules of the common law.
The trial of crimes and misdemeanors, unless herein otherwise provided, shall be by jury, and shall be held publicly, and without unreasonable delay, in the county where the alleged offense was committed, unless, upon petition of the accused, and for good cause shown, or in consequence of the existence of war or insurrection in such county, it is removed to some other county. In all such trials the accused shall be informed of the character and cause of the accusation, and be confronted with the witnesses against him, and shall have the assistance of counsel for his defense, and compulsory process for obtaining witnesses in his favor.
In all criminal prosecutions, the jury shall be the judges of both law and the fact. In prosecutions and civil suits for libel, the truth may be given in evidence; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives, and for justifiable ends, the verdict shall be for the defendant.
Excessive bail shall not be required, or excessive fines imposed, or cruel and unusual punishment inflicted. Penalties shall be proportioned to the character and degree of the offense. No person shall be compelled to be a witness against himself, or be twice put in jeopardy for the same offense. No citizen shall be subjected to corporal punishment, except to death by hanging, for treason, murder, rape or arson. All prisoners shall be bailable by sufficient sureties, except in capital cases where the proof is evident or the presumption great.
The enumeration in this Constitution of certain rights and privileges shall not be construed to impair or deny others retained by, or inherent in, the citizens of the State.
Such parts of the common law, and the laws of the State of Virginia, as are in force within the boundaries of the State of West Virginia when this Constitution goes into operation, and are not repugnant thereto, shall be and continue, the law of this State, until altered or repealed by the legislature. Nothing herein contained shall affect grants of lands, legally issued by the Commonwealth of Virginia before the seventeenth day of April, in the year one thousand eight hundred and sixty-one, or subsequently thereto, by authority of the restored government thereof, or any inchoate or imperfected right to such grants. All civil and criminal suits and proceedings pending in the county or circuit courts theretofore held within the said boundaries when this Constitution goes into operation, shall be docketed and thereafter proceeded in, in the circuit court of the proper county; and all such suits and proceedings then pending in the Supreme Court of Appeals of the State of Virginia, if the defendant resides within the said boundaries, and the plaintiff is entitled to prosecute in this State, shall be docketed, and thereafter proceeded in, in the Supreme Court of Appeals thereof.
The Convention re-assembled.
The Chair stated the question to be on the motion of Mr. Soper to amend Mr. Van Winkle's substitute for the additional section offered by Mr. Caldwell to the legislative report, Mr. Soper proposing to add these words: "Dues from corporations shall be secured by such individual liability of the corporators and other means as may be prescribed by law."
MR. SOPER. I was going to amend that motion by inserting the words "to citizens of this State," so it would read; "Dues from corporations to citizens of this State, etc."
THE PRESIDENT. The gentleman cannot modify his proposition if there is any objection.
MR. HERVEY. I object to the modification. I make the announcement immediately after the question has been stated. If the objection is not out of order I desire to be considered as objecting to any change.
MR. SOPER. If the proposition is varied very materially, it is a new proposition.
THE PRESIDENT. The Chair is of the opinion that an amendment with a view of fighting again merely would not be in order. The gentleman could not obtain by a mere modification of his own proposition the right to additional privilege in debate.
MR. HERVEY. That is the point I make.
MR. SOPER. It is an entirely different proposition.
MR. LAMB. I will make the motion, and the gentleman will understand me as not intending to vote for it. I suppose it would be perfectly in order for me.
THE PRESIDENT. The amendment would be in order; but really the Chair would dislike to see a parliamentary management of that kind to effect a purpose against which the Convention had decidedly shown opposition to.
MR. SOPER. I hope the Chair and the Convention will see that this kind of gag operations will not answer the purpose. There is but one fair way, and that is to allow every question here to be discussed in moderate time. We will have this whole question up every day during this session unless there is some modification of this; and instead of getting through in a week or ten days we will be here two or three months.
THE PRESIDENT. Such a thing could be brought about but it would be a very unfortunate condition of things and would divide the house into factions upon rules of order, which would be greatly to be regretted.
MR. SINSEL. It seems to me there is nothing more clear than that after a proposition has been submitted and fairly stated and discussed, or whether discussed or not, that the mover of the proposition cannot withdraw it only by general consent. Now that I think is clear; and this would only be an evasion in order to protract and delay. If this Convention wishes to get along, they have established the rule and the only way is to adhere to it without regard to persons or individuals. Every member of this Convention ought to have at least an equal chance here. No one member is entitled to more respect and courtesy than another is, provided he conducts himself in that way. When a proposition is submitted the matter can be modified only by general consent. If any one member objects it cannot be done.
MR. POMEROY. The Chair has already decided the point, and the gentleman from Tyler has been speaking upon it; but now it is an amendment offered by the gentleman from Ohio. Of course if a motion is to be discussed and the vote is about to be taken on it, it is proper for another man to offer an amendment to that; and therefore the objection cannot lie in this case.
MR. SINSEL. No one objects to that.
MR. POMEROY. And I believe the Chair has already so decided.
THE PRESIDENT. The Chair is of opinion that the motion of the gentleman from Ohio would be in order. The Chair only expressed regret that the purpose, in all appearances - I cannot say what the object is by any means, but it would seem to carry an indirect way of doing what the house decided should not be done. And while the Chair would very much regret, the Chair would not depart from the rule.
MR. LAMB. In justification of myself I may say that I have held but one principle in regard to this power from the start: that in attempting to shut out free discussion in this Convention instead of saving time the Convention will do what it has done at present, waste time. If you have forty provisions to that effect, it will be the result of every one of them. Instead of saving time, you are delaying and confusing the proceedings of the Convention. The best way to expedite business is to leave discussion free.
MR. BROWN of Kanawha. It seems then the rule that the Convention has prescribed is to be departed from. It is to be driven from its purpose by this delay in order to throw annoyances in its way. I may be led but I cannot be driven; and whenever any gentleman, or set of gentlemen, undertake to pursue a course for the purpose of harassing and annoying, and, if I may use the expression, baffling the Convention, to drive them into abandoning a rule they have prescribed, it would only make me adhere to it with ten-fold more tenacity. And I say further that if this Convention has not the resolution to maintain its ground when it has taken it, then it ought to dissolve itself and go home. I regret exceedingly that the gentleman may have made the motion for the purpose as I understand it, for if any gentleman makes a motion right and proper in itself - but I regret that a motion is made to do indirectly what the house has made a rule not to do. Now, I could not vote for a motion of that sort.
MR. BROWN of Preston. Has the gentleman from Tyler avowed that he made that motion with a view of making a speech?
THE PRESIDENT. The gentleman did not declare in words that that was his purpose. The question is on the amendment offered by the gentleman from Ohio.
MR. SOPER. I disclaim any intention to offer anything by way of threat or anything on this body. If in the warmth of debate I use words that would be construed that way, they are not intentionally so uttered. The amendment which now is proposed, sir, to the section that is offered shows more clearly what object I had in view in proposing the original proposition. I endeavored to call the attention of the Convention to the necessity of the case, and I was met by the gentleman from Logan with expressions by which he characterized it as a New York measure and said if I understood him correctly that he wanted nothing from that quarter to come and interfere with the business of this Convention, or something to that effect. I did say that unless you guarded your authority here to grant companies of incorporation, you would have a class of men from New York and other eastern states besieging your legislature and courts for acts of incorporation for speculative purposes. I did say that, and that was all that I did say; and if the gentleman had combatted that proposition I should not have said anything in reply. But the gentleman then rather inconsistently said -
THE PRESIDENT. The gentleman will confine himself to the question between the amendment and the original proposition.
MR. SOPER. I know, sir. He instantly said there was a great deal of money in New York and he wanted it to come here. -
MR. SMITH. I did not say a word about these speculative people that would come here after incorporation; but I objected to the amendment because it was calculated to drive capital out of the State, and I want to bring capital into the State.
MR. SOPER. I know, sir; I only referred to the speculators. It is true this proposition is taken mainly from the State of New York - at least substantially. But it is a provision which if adopted here will prove wholesome and beneficial.
There are two classes of men that combine together for corporate purposes. The object of both is to make money. One set of men have got capital and discretion and honesty and will transact their business in the most careful and prudent manner. They do not care how many restrictions you throw around them. If their operation is profitable they will continue it and whenever it becomes unprofitable they will stop it and pay up their debts and discontinue business. There is another class without capital, or who, if they have got some capital, are without integrity and honesty; and they will come and get your acts of incorporation, and then by means peculiar to themselves they will by an inflation of the stock contract debts in your neighborhood; and whenever they can amass money and get such credit as they can from the community, that institution or corporation will become insolvent and then your honest citizens in and around your neighborhood are the kind that will suffer. It is to protect those men that I have offered this proposition; and if gentlemen will look at it, it has no other effect. And they will find it by sore experience if they should be driven to make constitutional provisions similar to those in order to protect their citizens.
Well, now, sir, the amendment here goes so far as to protect citizens in Virginia - and who are they? Not stockholders; not the gentlemen combined in these incorporated companies, but your farmers and laborers who have made a few dollars to lend to those men supposing them to be wealthy and honest who will meet their engagements. That is the class to be protected by this provision; and I submit to this Convention whether or not you do not want to protect your citizens. You are laying no unjust burdens on those men. That don't permit them to come in and say how business shall be transacted. After they have got all they can get from you, they will blow up and throw you away and say, why, here the corporate funds are gone, and there may be individuals out of that very institution rolling in wealth and you gentlemen who have contributed to aid and assist them as you pleased will be deprived of getting a cent. Now, it is to take care of citizens who are defrauded by companies of that kind.
I merely in a few words wanted to present this proposition directly to the Convention, and I will now again remark that there is a similar provision in the State of New York, and put there after a most sore experience solely to protect honest citizens throughout the country. The men of capital will always take care of their own capital; but as I before remarked if capital is employed by honest men they do not regard a provision of this kind in your Constitution. It is one they calculate to act up to anyhow. All it requires is that they pay their honest debts, and if they find themselves in failing circumstances and if they will be resorting to hidden means of extending their credit, and if they will be guilty of things of that kind, sir, they ought to be followed wherever they go and compelled to pay every cent.
I want to be directly to the point. It has come down now to a very small compass. If you incorporate this provision in the Constitution, it does not affect honest men that intend to and are able to pay their debts. If you do not incorporate this, you are liable to be dissatisfied if you get into the hands of dishonest men.
Well, then, there is another provision about it: If some gentlemen come together to form a corporation they will be very careful into whose hands they let their stock go. They will be very careful how they contract debts. It throws guards around all parties. So that you will perceive, gentlemen, that if the act of incorporation is a profitable business conducted on honorable principles, why they are not injured by it; but, as, on the other hand, if it turns out to be unprofitable, it ought to be stopped instantly, and this provision would have a tendency to stop it. And, gentlemen, they would not sell out their incorporation after it had become insolvent to a set of worthless men because the legislature will make them responsible. They will not permit a set of men to get an institution and keep it going until they get it unprofitable and then sell it to a set of insolvents. Not if the legislature follows up this provision, because they will ask every individual shareholder for a number of years if he has been the owner of stock in the institution. And what effect will it have? Why, gentlemen say, no man of means will go into it. If money is to be made by it, men of means will go in; and if that is not the result, they will wind it up and he will be careful to part with it to responsible men.
(Here the President's gavel fell.)
The question was taken on the amendment offered by Mr. Lamb and it was rejected; and the question recurring on Mr. Soper's original amendment, the vote was taken and it also was rejected.
The question recurred on Mr. Van Winkle's substitute for the additional section proposed by Mr. Caldwell, which as amended was reported as follows:
"The legislature shall pass general laws whereby any number of persons associated for mining, manufacturing, insuring or other purpose useful to the public, excepting the issuing of bills to circulate as money or 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 issuing of bills to circulate as money or the construction of some work of internal improvement, shall be passed. But no company or association authorized under this section shall issue bills to circulate as money; and no charter of incorporation shall be granted under such general laws except where the object cannot be attained under such general laws."
Mr. Soper offered the following as a substitute:
"The legislature may pass general laws by which any persons may be incorporated on complying with the provisions to be contained in such laws and be subject to all such general laws as may from time to time be enacted not inconsistent with the provisions of this Constitution.
"The share-owners in any incorporation except insurance companies, in case the corporation shall become insolvent shall be liable for the unpaid debts of such corporation contracted while he was such share-owner to an amount in the same proportion as his or her share shall bear to the whole stock of such incorporation. Liabilities shall not extend to any indebtedness which shall not have been demanded by suit within two years after it shall have become due."
MR. LAMB. I am obliged to call the question of order in regard to the last resolution. It is exactly the same as we have voted down - the latter part of the resolution.
THE PRESIDENT. The Chair is of opinion that in substance it is about the same.
MR. VAN WINKLE. It is modified by other provisions. It is obnoxious to the same objections that is certain; obnoxious as a whole to the objections made this morning. I particularly ask the attention of the Convention to the remarks made by the gentleman from Logan on this occasion and the previous one. The bowels of our earth are filled with the wealth that could be extracted, and these corporations have proved to be the only means by which it can be extracted. Then to attach such provisions to these corporations as would make their grants perfectly nugatory is to defeat the very object of the whole measure. If the Convention agree with the views that have been so ably presented by the gentleman from Logan as to the importance of promoting these corporations for these beneficial purposes, having now removed from this section banks of circulation and internal improvements, and all that is asked for the others being facilities for transacting their business in a certain way - if the Convention agree in the importance of having these corporations afforded facilities for creating them without soliciting the legislature and being subject to have to vote for some enormous expenditure of money; if they think they are desirable in this way, I shall ask them, then, to stick to the substitute as we have amended it here this morning. Although I do not pretend to say for one moment that the gentleman from Tyler is sincere in the view he presents, I feel satisfied that in this country, at any rate such provisions as he has introduced there by way of substitute would be fatal to all these corporations.
MR. SOPER. Well, sir, if the Chair overrules the second proposition I am entitled to be heard on the first. There are two distinct sections in the paper that has last been sent up.
MR. PRESIDENT. The Chair was willing to hear the gentleman from Tyler as showing the difference between the substitute and his other proposition as voted down, if he shall have satisfied the Chair that there is a wide and distinct difference, the Chair may modify his opinion.
The Secretary read the first paragraph.
MR. SOPER. That I apprehend to be new matter entirely. But then again, sir, I have a right to be heard on the proposition. I have not spoken to it at all.
THE PRESIDENT. On the merits of the proposition not without the Chair entertains it. The Chair has heard the gentleman from Tyler, desiring to know whether he ought to entertain it or not, the Chair was first led to the impression it did differ in important provisions from the other; but other gentlemen who had a better opportunity to attend to its reading than the Chair thought it was the same, and the Chair then determined to hear the gentleman from Tyler. If he could show that the proposition was in substance and effect different from that voted down, the Chair would entertain it, but if it was the same proposition, he would not entertain it, and its merits could not be spoken to. The only point on which he was prepared to hear from the gentleman from Tyler was whether it was in substance or was not the proposition heretofore voted down. If it was in substance the same though in language very different, it ought not to be entertained under the rules of the house. But with a view of cutting short and saving time, the Chair is disposed to put it to vote.
MR. LAMB. The point of order I raised was that it was not competent simply to alter a portion of what was offered by the gentleman from Tyler and claim it as a new proposition. It has no application I presume to the first. The substitute consists of two distinct propositions. I thought the second offered was substantially that which we had just voted upon. But the first proposition is a different matter altogether.
THE PRESIDENT. The Chair is of opinion that the substance and effect of the proposition now offered would be just about the same as the one offered previously.
MR. STUART of Doddridge. It strikes me, Mr. President, if you were one of these incorporated companies you would see it in a different light. Suppose you and I and the gentleman from Logan were incorporated to carry on some particular business. I put in ten thousand, you twenty thousand, the member from Logan forty thousand. If the proposition of the gentleman from Logan makes me liable for ten thousand dollars and the proposition of the gentleman from Tyler makes me liable for the whole amount, then if there is any difference between $10,000 and $70,000 there is a difference between these propositions.
THE PRESIDENT. I was not in the chair when the other was offered. If the two propositions bear that distinction the Chair would be of opinion that it would be in order.
MR. BROWN of Kanawha. It looks to me as if the proposition of the gentleman now embraces a different proposition from that of the first. By the first proposition, as remarked by the gentleman from Doddridge, as he supposed or necessarily implied, each stockholder would be liable for the whole; but this confers on the legislature the power to prescribe; and the legislature might if it saw fit impose the same liability for the whole or for a part only.
MR. SOPER. What disposition of the first section, sir?
THE PRESIDENT. The Chair will entertain the proposition both on the first and second proposition.
MR. SOPER. Mr. President, the first section is not obligatory on the legislature. I use the word "may." They may pass general laws to authorize the incorporation of companies for various purposes, or they may not. I submit the whole thing by this proposition to the legislature. If I recollect the proposition for which this is offered as a substitute is binding on the legislature. They in certain cases shall pass general laws. That is the difference between the two. There is nothing to prevent, if this substitute is adopted, the legislature may reserve to themselves the whole power of granting a company or incorporation or may pass general laws for the incorporation of specific companies or for specific purposes. They may do that, and it appears to me, sir, if this whole matter is to go before the legislature at all it had better go in that way and then the legislature are free, as time shall disclose necessities, either to enlarge these corporate powers or restrict them. They will have the whole control of the matter within their own jurisdiction.
That is the difference, sir, between the two propositions. There is another difference.. The other is limited. It is not applicable to banking institutions or works of internal improvement. Now, according to the laws of Virginia you can organize an association for public improvement, if I understand it correctly for almost every other purpose. As the laws now exist you can do it, and why not leave this general authority and power with the legislature. You can get rid of this difficulty we have so often heard of here, that we are legislating in the Constitution, that we are going too much into detail. If you adopt the first section of the proposition I now offer as a substitute, you will give the general authority to the legislature, give them unlimited power over the whole matter without going into detail and saying where they shall go and where they shall not go and what they shall do and not do. You get rid of that objection. Now, if we are going into detail and cannot go far enough to take care of what we suppose to be the interests of the people at large, then we will leave this matter to the legislature and let them become wise from experience. Why, sir, you invite capital to come here, to get your institution, your cannel coal companies. Why how did the gentleman get those things? Why, they may get some learned man to apply to the county court and get an act of the legislature. How do they become insolvent? Why, they issue some hundred thousand dollars worth of stock without receiving a cent and then they will go to Wall Street and inflate it and crowd it off on the community and then let the thing blow up - and then where is your improvement? If you want to get responsible men to come here and develop the resources of your country, bring men of real capital who will come with it and look after it personally. But if you do not take some plan of that kind in your act of incorporations you will be fleeced most horribly, or the people of the country will. I believe I have seen since I have been here in Wheeling an act of incorporation that will prove one of the greatest engines of speculation that can be drawn in the city of New York accompanied by responsible names an act of incorporation granting to several millionaires (professedly) wanting to purchase all your lands and settle them; and this stock will be distributed in the manner I tell you of and the lands will be got hold of and then held at speculative prices, and instead of increasing your population they will be set so high that men will not touch them and held by men who can put this stock up in Wall Street, and whenever it becomes necessary to buy it in can down with it until they can make fortunes out of it out of the unsuspecting people. And, sir, I have seen an incorporation for a bank passed by this legislature that you no more could get where men understand the effect of these institutions than you could jump over this house. You will find these instances all around you and I call upon gentlemen here to pause before they tie up this legislature in a way that they save unsuspecting men under this cry of taking care and bringing out the resources of this country and settling it up. No, gentlemen, every one of you are capable of taking care of your own affairs and you manage it prudently. You will do it yourself. And whenever you find men coming among you that have got capital they will come with it; and whenever you see individuals of that kind coming among you and settling down and distributing their capital in the improvement of their country you may look for real improvement.
MR. VAN WINKLE. The perfect answer to all this is that if a parcel of schemers come out here and act as the gentleman describes, his provision will not be worth one straw in the protection of the public. You cannot protect it by legislation against schemers. You may punish them if you can catch them; but I would say if you compel them to go to the legislature to get a special charter they would go« there and get it when honest men could not because they would have no scruples as to what they would promise, and it would be utterly impossible to guard against them; and if they come here men of no property they would be the same then they got to the end of it. If they were New York speculators, you could not enforce your law, for they would keep out of your way; so that the thing would be perfectly nugatory for the very case in which he cites it.
MR. SMITH. It seems to me the amendment of the gentleman from Tyler is exceedingly objectionable. The original proposition excludes from the general law banking privileges. He embraces all corporations within the discretion of the legislature; and while he is protecting the citizen against corporations, he is giving everybody in the community a charter for banking. He proposes by his amendment to give the privilege to any set of men - these scoundrels he speaks of in New York - an opportunity to get a corporation, then go and deal in Wall street, cheat one another with it, and bring out a set of bogus stockholders here, with a bogus institution, and whenever you get to this liability clause, why these men of property are not in the bill. It is only these bogus men you could look to. They are not worth anything. Get a bank of circulation with these bogus stockholders; get from New York these speculators, and they will flood the country with money that is of no value. Now we don't give the privilege in this law of ours - in the original - the permission to establish banking institutions and make them as common as the leaves on the trees, to make their notes fill the whole air and cover the whole country, till they would have no value. That is the character of his amendment, for it gives that privilege. But we want a charter that will bring solid capital to the country. As I said on another occasion, we want corporations framed in such way as will induce men of substantial capital to adventure their money in the improvement of the country. He wants, by putting the liability feature in it, to bring bogus stockholders and bogus charters to flood the country with it. That is his plan; but I want one of a liberal character that will induce men of capital to engage in it. Now by the very terms of the law, by the very terms of every charter all the stock and all the capital which any man puts in that association is liable anyhow. He loses his whole capital if the company becomes insolvent; and a wealthy man when he takes stock will say I cannot afford to lose this much; if I cannot attend to it, I will not subscribe to it, I am willing to make a substantial act of incorporation and to make that capital subject to the debts of the corporation and no more. A man if he gets into an association of that kind can tell how much he does adventure. He may adventure his whole estate. Now that does not suit people without money. They want to get money. It is the worst means in the world to induce capital into the country. I know there has been a system of fraud in New York, and they are very jealous of it, and because of that they are very much shocked because there are speculators there. We have got them here. You give power to the legislature to make general laws and whenever speculators come into the country and want money out of an incorporation, why, here is the legislature, how prevent it? The whole subject is open to the legislature. They can compel it. By leaving the Constitution as proposed in the original section we trust it to the legislature; but are we so foolish, so ignorant, so wilfully blind to our own interests that we will not take care of ourselves by requiring the legislature to guard the country against loss. You had better provide in your Constitution that no man shall enter the business unless he has some capital to secure his creditors; unless he places on record somewhere or other a mortgage or trust to the amount of $150,000 or $200,000 to indemnify the world against the debts he shall contract. That is only to guard the creditor with an individual dollar; and you may as well ask that proposition as the other. The best way is to leave commerce and trade open to every man's own judgment. If you are unwilling to trade, with a corporation, demand security for the debt you contract. Every man has the right to demand it. If I sell them property, I will ask that corporation to give me personal security. If the legislature shall hereafter see fit or deem it necessary to place on corporations let them have it in their power; but to put it in here you make it imperative and you destroy the power of the State to help itself when it needs aid, and you leave it all the advantage of the proposition whenever the occasion does arrive for introducing that protection which the gentleman here asks. It is in the hands of the legislature. While we are poor and want to invite capital, we are left in a condition to invite it. I object entirely to it. I do it from a strong sense of duty to the country; looking to the country as it is; not to legislating for a wealthy community where individual wealth is counted by millions, but here where we can hardly count it by thousands, and where we have more natural wealth than those who live in the land of millionaires. All we want is capital to develop it; and you are tying the hands of the legislature.
I hope it will be the pleasure of the Convention to leave this matter to the legislature, as the original proposition leaves it, and not tie up the hands of the people and say to them they are wholly unworthy to be trusted to manage their own affairs.
MR. SOPER. There seems to be a misunderstanding between my friend and me. The original proposition here, sir, is one of restriction. The proposition that I have offered is general. It may be it authorizes the legislature to establish banks by general laws. Banks in the first proposition are excepted out of it. Incorporations for internal improvements are excepted. The legislature are prohibited from granting any general law for these objects under the first proposition. But the one I have introduced is general. It includes all banks or corporations; and I do it because I want to give this power to the legislature; because I find that gentlemen differ with men so much on the subject, they are unwilling to incorporate without any restrictions. The second section of my proposition I understand the Chair rules out. It is the simple proposition that the legislature may pass general laws to organize incorporated companies. They may do it for any purpose or for all purposes. But the first proposition says they shall not do it for banks nor as to companies for internal improvements. This is the difference between the two. I am placing more confidence in the legislature than the gentlemen. There is no difficulty, and the legislature will come up to it before long. They will not grant an act of incorporation unless there is security given to protect the bill holder. If you confine them to your own stocks and those of the United States, you are safe. But add to that the personal security of your stockholders and then the bill-holders are safe. Not only hold the stockholders individually responsible, in addition to that giving the bill-holders the preference first to be paid out of the fund if the institution becomes insolvent.
MR. SMITH. If the first clause is merely permissive, what is the use of it? The legislature have the power already.
MR. SOPER. I suppose they have if we pass nothing at all on the subject. But I would rather see every proposition here before the Convention voted down unless the power is given to them generally and discretionary. They shall have a discretionary power over all acts of incorporations. I am satisfied, sir, that these are prudent regulations. Now, sir, banks, we have no business with them unless they be necessities. It is not on the circulation of the bank that banks make their money but in the deposits and they are only to be found in the cities.
I want my friends to bear in mind what remarks I make here. I speak in soberness and I think in truth, and I think many of you gentlemen who may probably represent this new State in the legislature, if you do so, your experience may bring to your recollection some words I have now dropped out here to show the necessity of protecting your people.
MR. LAMB. This whole discussion has had one effect at least on my mind, to convince me that the best and wisest course for this Convention to pursue is to put no provision on the subject in the Constitution. The legislature will then have full authority in regard to the matter. They can adopt, as undoubtedly they will adopt, general laws for the purpose of establishing corporations in all proper cases; and if the securities which are contemplated by the gentleman from Tyler become necessary the legislature can provide for that also. It strikes me this is the wisest and most prudent course for us to pursue.
MR. BROWN of Kanawha. The gentleman from Ohio has come to his conclusions too slow. If we had adopted that course before we entered on this discussion we would have saved much time; but now that we have gone through the work and got the section into a shape that I think is about right, we had better stand to it. I am for maintaining the proposition as it stands and as we have adopted it part by part.
MR. VAN WINKLE. I want to strike out the words "or other" in the 7th line. That might be construed, for instance, municipal corporations and others.
There being no objections the elision was made, and the question recurred on the adoption of the section.
MR. BATTELLE. I merely want to say it seems to me that I shall feel constrained to vote against this proposition as it stands; and I hardly think the framer of the substitute would recognize it in its present form. It seems to me a proposition to restrict somebody, I don't know exactly who, about something, I don't know exactly what; and feeling persuaded that the legislature, at any rate, will have perfect competency over all this question I am disposed, for one, to leave it to their discretion.
This is intended, first, to make it obligatory on the legislature to pass such general laws and in the second place, to restrain the legislature from granting exclusive privileges to any of them. Now, most certainly, if all these are legislative acts, it is intended to operate directly on the legislature to insure to the community this easy mode of obtaining corporations for useful purposes; on the other hand, to prevent partiality being shown among them; that is, that whatever is done or denied to one is done or denied to all.
MR. HARRISON. Like the gentleman from Ohio, it seems to me this proposition as it is now before the house is a very different proposition from what was printed. It has been bandied about from member to member until it seems to have no particular meaning. It has had so many different amendments to it that I don't understand it now; but if I did it accomplishes nothing at all. One object of the proposition is that it shall be mandatory on the legislature to pass general laws; and then there is a provision inserted by the gentleman from Wood that if the object cannot be accomplished by general law then the legislature shall pass a special law. Well, now, sir, will not every corporation or association consider that its wants are peculiar, that it will require special legislation; that these general laws will not meet its case; and will not they be at all times applying to the legislature for special acts in reference to their particular association? It does not prevent that application or log-rolling in the legislature, which was the object of the original proposition to prevent. Again, sir, the legislature, we all concede has the general power to pass these laws. This requires that they shall pass a general law. Is there any necessity for putting into this Constitution any such regulation? Why, the very thing proposed here the legislature has seen the wisdom of, the necessity of having general laws; and having power on the subject of corporations is on our statute books to-day. That has prevented special applications. So it seems to me the way the proposition now stands it really accomplishes nothing. We say the legislature shall pass general laws to incorporate these companies; but we turn around and say that if you can't do it in this way you can have a special law. And who is to judge whether a special law is necessary or not? Why, sir, it amounts to this only that it gives to the legislature the discretion. We are prescribing a rule to the legislature saying you shall have the discretion to pass a general or special law just as the case may require. Now what is the use of our prescribing the method of legislation on a matter of this kind? It is utterly useless, sir; utterly useless. Because I can see no necessity for it. I think like the gentleman from Ohio that I shall vote against it.
The vote was then taken on the additional section, as amended, and it was adopted.
MR. LAMB. I move to lay the report and amendments on the table and have it printed as amended - the whole three reports.
The motion was agreed to.
MR. VAN WINKLE. I am requested by the chairman of the Committee on Taxation and Finance to ask that that subject may be made the order of the day for tomorrow and so on until completed. The reason given is that he is obliged to leave town on Monday. It is a short report, as the Convention will remember, though it may excite considerable discussion and require mature deliberation. But I hope the Convention will accede to the request. We were at a loss last evening which we should take up first; and as it will promote the object in view I hope we will accede to the request of the chairman. I move the report of the Committee on Taxation and Finance be made the order of the day for tomorrow morning at nine o'clock.
The motion was agreed to.
MR. VAN WINKLE. The report of the Committee on County Organization was passed by to permit me to prepare a clause I had intended to offer but had forgotten. To fill in the time and get rid of the matter, if the Convention please, I will indicate what I propose. I desire to offer as an additional section, the following:
"Either party to a civil suit brought before a justice of the peace when the value in controversy or the damages claimed is less than $20, or the defendant in cases of misdemeanor or breach of the peace cognizable by a justice of the peace where the penalty is imprisonment and the fine exceeds five dollars, shall be entitled to trial by six duly qualified jurors."
When this is either adopted or rejected, the report can be printed.
I will now offer this with a single remark that I think the justice jurisdiction being a hundred dollars a jury might be interposed when demanded and some of this criminal business given to the justices of the peace. It will leave it entirely to the legislature what description of business; but whatever they make cognizable by justices may be tried in this way. It would relieve the circuit courts of a good deal of small business, and it seems to me the mode of trial contemplated here would be agreeable to the citizens of the country. These small misdemeanors if a man is taken up promptly and fined on the spot, it has a terror about it that the far- off grand-jury and quibbling of lawyers does not have; and in a case that is punishable by a fine so small, it is not improbable a short imprisonment would be put in their power. It would be better they should be disposed of at once and in a fair way before a justice instead of going into the courts.
The Secretary reported the section as proposed:
"Either party to a civil suit brought before a justice of the peace when the value in controversy or damages claimed exceeds twenty dollars, or the defendant in cases of misdemeanor or breach of the peace cognizable by a justice of the peace, when the penalty is imprisonment or a fine exceeding five dollars, shall be entitled to a trial by six duly qualified jurors."
MR. VAN WINKLE. I would remind the Convention that the criminal jurisdiction by the section passed is such as the legislature may give them, and the reason I did not offer this at once was that I had prepared a section in contemplation that it would be best as originally reported; but that change induced me to withhold it at the time, and so it was forgotten.
MR. SOPER. This is a very important provision, and I want gentlemen to look at it and see how it will operate. I am for giving the trial by jury in all cases unless waived by the party in the proposition, and I move, sir, to strike out the words "twenty dollars"; and then it will read, if I understand it rightly, either party may have a jury before a magistrate.
MR. STUART of Doddridge. I cannot vote intelligently on this matter now in the present state of affairs. I understand the section in the judiciary report has not yet been completed so as to determine in what amount circuit courts shall have jurisdiction concurrent with justices.
MR. VAN WINKLE. It is not in the proposition you speak of as printed.
MR. STUART of Doddridge. Then I make the inquiry of the gentleman from Wood to inform me what is the concurrent jurisdiction of the circuit courts and justices?
MR. VAN WINKLE. This by the proposition of the gentleman from Kanawha, which has not been acted on, the jurisdiction of the circuit court is made down to twenty dollars. That has not been voted. It is to be called up when it is convenient for the gentleman to do so.
MR. STUART of Doddridge. I should much rather the question should come on that first.
MR. VAN WINKLE. I have no objection if the chairman of that report is ready to take it, up.
MR. BROWN of Kanawha. I do not desire to enter on that this evening I confess the proposition printed there is not complete as I desire to present it. I have prepared another that was handed in at the time and printed as I desired to have it, and I so announced at the time; but I think the proper place is to consider this subject here, for that was one of the difficulties in preparing the judiciary report - not knowing what the Convention were going to fix the jurisdiction of the justices at.
MR. VAN WINKLE. If the gentleman thinks the amendment should be acted on at all -
MR. BROWN of Kanawha. It occurred to me in settling the jurisdiction of justices of the peace, in the report on county organization is the proper place to do it. The judiciary committee did report a jurisdiction for the justices of the peace, but the Convention declined to consider that and went on and considered the whole question of the justices' jurisdiction in the report on county organization, treating him as a county officer and settling his jurisdiction. Now, I say whatever that jurisdiction is that ought to be made complete so that when you define your circuit court jurisdiction it shall conform to what is provided. As you have done the thing in part, I am not able to say whether it should not be done in whole. Now, I cannot coincide with the proposition of the gentleman from Tyler. I am opposed to giving these justices of the peace juries in the country - opposed to it in toto.
MR. SOPER. There seems to be a misunderstanding about it. The jurisdiction of justices was fixed at one hundred dollars. Well, the gentlemen opposed to it said that if the circuit court could have concurrent jurisdiction to a certain amount they would be satisfied; and I think there was a vote taken here giving the circuit court jurisdiction in all sums above twenty dollars.
MR. BROWN of Kanawha. I think it has not been passed.
MR. SOPER. I rather think it was, sir.
MR. STUART of Doddridge. Jurisdiction of justices of the peace is settled undoubtedly as to the amount. Jurisdiction of the circuit courts is not settled except that they should have concurrent jurisdiction to twenty dollars and upwards.
MR. DILLE. I would suggest to the gentleman from Wood that if he proposes to introduce that proposition, or introduce it this evening, let it be printed; and when the subject comes up properly let the thing be before the Convention; and now, in compliance with the order this morning let us take up the executive report and proceed with it as far as we can.
MR. VAN WINKLE. With the consent of the Convention, with a view of taking up the executive report, this proposed additional section is withdrawn.
MR. CALDWELL. I want to bring to the attention of the members of this Convention the fact that in nothing that has been brought before this Convention for its consideration has there been proposed anything like a probate court, or, in other words, a tribunal for the admission of wills to probate, the granting of letters of administration, the appointment of curators, etc. I believe in the report on the judiciary department the power of probate is conferred on the circuit courts; but I want to remind the members of the Convention that in other states they have probate courts sitting all the while, from day to day, and in our state we have had the facility of these probate courts from month to month twelve times a year. Therefore, it is, I want to bring to the attention of the Convention whether it will be sufficient to satisfy the wants of the people of the new State to say they shall only have the tribunal of the circuit court for the admission of wills to probate, etc. I think, sir, too much delay, too much loss might result if we do to wait from one term of the circuit court to another; and, therefore, with a view of establishing some tribunal in each county of the State, I don't propose to establish and operate a court in each county of the State, because I am satisfied a probate court could not maintain itself without an incumbrance on the people. I do not know precisely what probate would be in the county of Ohio; I know what it has been in the county of Marshall. In that county for the year 1861 the number of wills admitted to probate was six and of letters of administration granted eight; number of guardians appointed, together with one committee, seven. The fees resulting would not amount to more than thirty dollars. So that Marshall county, one of the largest in the State, could not maintain a probate court.
I propose, sir, in this report now before the Convention to establish some sort of a tribunal in place of this probate court that might answer the purpose and prevent delays. I propose to give to the recorder of wills and deeds power to admit wills to probate, grant letters of administration, appoint guardians, curators, etc., with right of appeal to any party aggrieved to the circuit court; to bring this in as section 5 at the end of the word "Recorder." I see, sir, my amendment is prepared to come in as a section after the end of the 5th clause. As well there perhaps as after the word "Recorder."
The Secretary reported the provision as follows:.
"That the recorder of wills and deeds shall have, under such regulations as may be prescribed by law authority to admit wills to probate, grant letters of administration, appoint guardians, curators, etc., with right of appeal to any party aggrieved to the circuit court."
MR. VAN WINKLE. I would suggest to the gentleman to make an independent section.
MR. CALDWELL. I will offer it as an independent section, then. I do not desire to detain the Convention with any further remarks. I think there ought to be some tribunal of this kind for the discharge of the duties of probate.
MR. STEVENSON of Wood. I would call the attention of the gentleman from Marshall to the fact that "deeds and wills" were stricken out.
MR. DILLE. I supposed the Convention had accomplished the same purpose when they had adopted this 5th section. We have provided there for a recorder. The committee when they reported that section contemplated that the recorder there referred to would be the party who would have charge of just the same department and perform the same duties as is contemplated by this section just introduced, and I can see no reason for changing my notion on that subject. If the gentleman will look at the latter part of that clause he will find that the legislature may from time to time direct and authorize the duties, all of whom shall be prescribed by general laws. Suppose you have a recorder, why then you can throw just such duties on that recorder as the legislature in the exercise of its wisdom upon that subject thinks proper. The object of striking out the words "of deeds and wills" was to express the very matter contemplated. If you definitely fix here that he shall be the recorder of deeds and wills alone why then you might exclude the other powers; that would preclude the idea that other powers might be conferred on this officer by general laws. It seems to me the very object contemplated by the gentleman can be effected by a provision of law conferring the power on this party of admitting wills as well as deeds to record and also appointing guardians, granting letters of administration, etc. It seems to me as though there is nothing inconsistent with the idea, and that was my object when the words "and deeds" were stricken out, as it was on my motion. It seems to me in looking at it that the same object can be accomplished - has been - by the legislation as is attempted to be accomplished by the provision of the gentleman from Marshall.
MR. VAN WINKLE. I am inclined to regard with favor the proposition of the gentleman from Marshall. I coincide with what the last gentleman who spoke has said. The power is there, but there is this same distinction that there was in the proposition that has been in debate to-day. The one, as the report stands now gives the legislature the power to do so if they deem it expedient. The proposition of the gentleman from Marshall, with a view to relieve the circuit courts as much as possible inasmuch as they sit but once in three months to have it open every day, makes it obligatory on the legislature to do so. Now, that is the practical question for consideration. It is a matter with which I am not very familiar. I know that there is an inconvenience in having to wait term after term in the county court. I had some conversation with the gentleman from Monongalia, now absent, on this subject. In the Convention of 1850 he was anxious for the establishment of probate courts throughout the state for this very purpose. I asked him when he first came on here whether he still favored them and he said, no; his subsequent experience had shown him that it would be too costly an operation; that some officer, he observed, could as well discharge the duties, in the first instance, at all events, and that the erection of these courts would be a costly thing in the country where so little of it was done. He has I know given considerable attention to this subject, and he has had a great deal of experience in it. He seemed to think it might be confided in this way to some officer, and said the county courts would probably be abolished and it would devolve, as it used to, on the clerk of that court or some other officer, who could do it as well as the clerk. The legislature, if they acted on the subject at all, would provide that such a case should not be proceeded in before the recorder. The gentleman who last spoke as to the views of the judiciary committee assumed that if he was charged with the record of these things he would also be charged with the admission to probate, etc.; but the question is now raised by the proposition of the gentleman from Marshall whether it shall be made obligatory on the legislature to pass the proper laws for enabling the recorder to discharge these duties, or whether it shall be left an open question that they may give it to him or to some other officer as they please. On the whole, I am inclined to favor the amendment because I should like to give the matter that direction, that the recorder of these papers should have the charge of it in order that the people who have business of that kind to transact might not be delayed.
MR. BROWN of Kanawha. I am glad the gentleman from Marshall has brought this before the Convention. It is one of the difficulties that struck me when we had provided for the election of a recorder but had prescribed no duties. The recorder is to my mind a word without meaning in the judicial sense; for the word means a various number of things, and there is nothing in our laws to define it; and, as the gentleman from Wood has remarked the legislature may give it no duties in the world - not even the recording of a deed or will or any other thing, may set him to keeping accounts. I go on the idea now that no court has been proposed to be substituted in lieu of the county court. That is not the proposition yet before this Convention, whether they will have a county court. If on the idea that we are to have no county court and that is to obtain, then it is essential we should provide something in its stead. Now, it is essential to have a probate court of some character. There is an attempt in the judiciary report to give the circuit courts probate jurisdiction; but they would only sit four times a year, and here are necessary wants arising between times. I have very strong objections to giving the power of the probate court to an officer where the whole thing is fixed up between two men about a dead man's estate. I do admire the old plan of Virginia, that whatever is done is done in open court, and whoever undertakes to do anything it is generally done before the world and it is read out loud; where fraud is very difficult to keep in. It is an embargo on fraud. To transfer this to the office of a man who sits in his office every day about other duties, and when some person comes in it is all settled up there among themselves, and you have no assurance except in the honesty and integrity of the officer. But I do not know where else to provide for this office but to give it to this recorder. The gentleman from Marshall has answered to my mind not only what I had expected would take place, that you cannot maintain a probate court, and you are compelled to impose the duties on somebody else who is not a probate court, or any court at all, but who is to be chosen for other qualifications altogether, that of recorder. Well, while this is not an objection so much to confer it here in this state of the case, it is rather an objection that arises out of the course we are proposing to adopt, of abandoning the organized courts we have already. That it is essential to have some probate court somewhere all over the state admits of no question. I think the gentleman from Preston is in error in permitting this to be left to the legislature. If it is intended the recorder is to have any such office, it must be conferred in the Constitution, for the legislature may throw it somewhere else. I think there is greater fitness in providing for this here than for the magistrates in the provisions about townships. I think also the other duties of the recorder might be more legislative. Inasmuch as the first section of the judiciary report as adopted declares the judicial power of the state is to be in the courts, the legislature could not confer this judicial function on the recorder if it were not provided for expressly in the Constitution. The Constitution is, therefore to determine whether this judicial function is to be conferred on the circuit court or on the magistrates' court. The magistrates' court has its jurisdiction expressly delegated; to the circuit court it is proposed to give all the general jurisdiction of the State that is not expressly prohibited to it and conferred on some other court. Then here would be the whole residium of the jurisdiction of the courts and all the judicial power in the State. It is therefore proper that this probate power should be conferred on this recorder in the Constitution if it intended he shall have any power at all; and if we fail to provide some other tribunal on whom it can be conferred, then I see no better place to confer it than on the recorder. For the present I shall vote for conferring it there.
MR. CALDWELL. I am glad to see that I have brought to the attention of the Convention a matter that seems to be regarded as of some considerable importance; and with a view of considering it further so that we may be able to perfect this matter, I think we had better defer it until morning, and with these views, I now move the Convention adjourn.
The motion was agreed to and the Convention adjourned.
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Chapter Eleven: First Constitutional Convention of West Virginia