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Debates and Proceedings
of the
First Constitutional Convention
of West Virginia

February 5, 1862

The Convention was opened with prayer by Rev. Gordon Battelle, member from Ohio county.

The President stated that the business before the Convention when it adjourned last evening was the consideration of the 4th section of the second report of the Committee on the Executive Department.

The 4th section was reported as follows:

"4. The governor shall be the commander-in-chief of the military forces of the State; shall have power to call out the militia to repel invasion, suppress insurrection and enforce the execution of the laws; shall conduct in person, or in such manner as may be prescribed by law, all intercourse with other and foreign states; and during the recess of the legislature, shall fill temporarily all vacancies in office not otherwise provided for, by commissions to expire at the end of thirty days after the commencement of the succeeding session of the legislature. He shall take care that the laws be faithfully executed; communicate to the legislature at each session thereof the condition of the commonwealth; recommend to the consideration of the members such measures as he may deem expedient; and convene the legislature in extra session when in his opinion the interest of the commonwealth may require it. He shall have power to remit fines and penalties in such cases and under such regulations as may be prescribed by law; to commute capital punishment, and, except when the prosecution has been carried on by the house of delegates, to grant reprieves and pardons, after conviction; but he shall communicate to the legislature at each session, the particulars of every case of fine or penalty remitted, of punishment commuted, and of reprieve or pardon granted, with his reasons for remitting, commuting or granting the same."

MR. BATTELLE. I believe we are considering it sentence by sentence.

THE PRESIDENT. That has been the course pursued on the others.

MR. BROWN of Kanawha. I think it would be better to proceed by clauses. I would inquire of the chairman whether any such intercourse as here indicated is conducted by the governors of any of the states. It seems to me that is peculiarly the province of the United States. I will not make any motion to strike this out but I rose merely for the purpose of making the inquiry.

MR. STEVENSON of Wood. The chairman of the committee does not seem to be present. I am not certain but my impression is that this is the language of the present constitution. I have not got a copy here.

MR. HARRISON. It is not in the present constitution.

MR. HERVEY. Does not the Constitution of the United States make provision for conducting the intercourse with foreign states?

MR. BATTELLE. I move to strike out the words "and foreign."

MR. HERVEY. I was going to read the existing provision in the Constitution, but as the governor can only exercise his power in obedience to the law, which law must of course be constitutional, I see no impropriety at all in retaining it. If a controversy should arise between this State and any foreign state, unless there is a special person designated by the Constitution who shall act as representative of the State, we would have no representative.

MR. BATTELLE. I now renew the motion to strike out the words "and foreign." I think the suggestion of the gentleman from Kanawha is well taken; and that inasmuch as this is a function committed by the Constitution of the United States to the Government of the United States there is no necessity for it here. I move to strike it out as merely unnecessary.

MR. STEVENSON of Wood. Mr. President, I am not certain that the amendment ought to be carried. My impression now is from what little I have known about the connections of states with circumstances sometimes arising in which the executive of a state has some business such as is proposed here with those states. I cannot recollect just now the case. I think, however, that probably the case which has attracted a good deal of attention in Pennsylvania in regard to state bonds which have been disposed of in European markets and which has excited a great deal of controversy in state courts there has required the intervention of the executive of that state in these matters; and my recollection is that some difficulties occurred in some of the southern states some years ago in reference to their commerce, in which the resident consul of the foreign nations and the executives of those states had frequent exchanges of correspondence. In some of these cases the matter in controversy was finally referred to the general government, but not in all of them. I do not think there is any provision that prevents action of this kind on the part of governors of the states. If it is necessary at all even in some cases I can see no impropriety whatever in leaving it in the section as it is reported. If we strike it out we might get into what would be a difficulty. I think the fact of this having been in the Constitution and regarded as proper by those who put it there and not seriously objected to since, that that is probably another reason why it should be retained. I think it would be safer probably to keep it here, and on the second reading if it is found really unnecessary there will be no difficulty about striking it out.

The question was taken on Mr. Battelle's motion, and it was rejected.

MR. BATTELLE. I wish to call attention to the provision authorizing the governor to convene the legislature. That is very different, as I understand it, from the present Constitution of Virginia.

THE PRESIDENT. That can be very well reached on the next reading.

MR. BATTELLE. I should prefer, Mr. Chairman, to reach it now, if it can be done without any violation of order. I am not satisfied in my own mind whether the provision is best as it stands here, or best in the former constitution. I simply wish to call the attention of members to the difference. The present requires a majority of the members of the legislature. I doubt very much the expediency of putting it in the power of one man to convene the legislature just whenever he pleases, to put the whole land in a muss, it may be.

MR. STUART of Doddridge. He has the same power under the old constitution. The provisions both are here. In the old constitution, "he may convene the general assembly on application of a majority of the members of both houses, when in his opinion, etc."

MR. BATTELLE. I waive the point, sir.

MR. STEVENSON of Wood. I was going to call attention to the 15th section of the legislative report, which embraces the same idea.

The section as amended was then adopted, and section 5 reported:

"5. The governor may require information in writing from the officers of the Executive Department, upon any subject pertaining to their respective offices, and also the opinion in writing of the attorney general upon any question of law relating to the business of the Executive Department."

The section was adopted without amendment.

Sections 6 and 7 were read and adopted without change, as follows:

"6. Returns of the election of governor shall be made in the manner and by the persons designated by the legislature, to the secretary of the commonwealth, who shall deliver them to the speaker of the house of delegates, on the first day of the next session of the legislature, who shall, within ten days thereafter, in the presence of a majority of each house of the legislature open the said returns, when the votes shall be counted. The person having the highest number of votes, if duly qualified, shall be declared elected; but if two or more shall have the highest and an equal number of votes, one of them shall thereupon be chosen governor by the joint vote of the two houses. Contested elections for governor shall be decided by a like vote, and the mode of proceeding in such cases shall be prescribed by law.

"7. In case of the removal of the governor from office, or of his death, failure to qualify within the time prescribed by law, resignation, removal from the seat of government, or inability to discharge the duties of the office, the said office, with its compensation, duties and authority, shall devolve upon the president of the senate, and in case of his inability, or failure from any cause to act, on the speaker of the house of dele- gates; and the legislature shall provide by law for the dis- charge of the executive functions in other necessary cases."

Section 8 was reported as follows:

"8. A secretary of the commonwealth, treasurer, and an auditor shall be elected at the same time and for the same term as the governor, their compensation and duties, and the mode of making returns of their election shall be prescribed by the legislature."

MR. BROWN of Preston. I move to make this read "secretary of the State."

MR. BROWN of Kanawha. I think it was the understanding that the word "state" was to be substituted for "commonwealth" throughout.

THE PRESIDENT. The Secretary has adopted "state" throughout instead of "commonwealth."

MR. STUART of Doddridge. I move to strike out "commonwealth" and insert "state" wherever it occurs.

THE PRESIDENT. The Chair understood the gentleman from Preston as making that motion.

MR. STUART. I understood as a matter of course "state" would be inserted in lieu of "commonwealth."

MR. VAN WINKLE. Gentlemen were requested to make that correction throughout on the printed reports.

MR. STUART. Then I make that motion. My object is to fix the salaries of these officers as we fix the salaries of all others.

MR. POMEROY. I am in favor of that. I move the blank in regard to the salary of the secretary of state be filled with $1600.

SEVERAL MEMBERS. There is no blank.

MR. HARRISON. We shall have to provide another clause for these salaries.

MR. POWELL. I move to amend by saying his compensation shall be $1200.

MR. VAN WINKLE. I would suggest that in fixing the compensation of these officers we ought to define their duties. This section provides that the compensation and duties shall be prescribed by the legislature.

MR. BROWN of Kanawha. I am in the dark. I do not know what are the labors and duties of these officers though I have had some intercourse with them. If I were to judge of the office by the salaries of the relative offices heretofore paid, I believe now one of these officers should be paid about $2000 to compare with the governor's, which is $5000. As three is to five, so is the new to the old. Why then we should have this down to $700 or $800, I suppose. A man could not live on it. I don't suppose these officers ought to have the same salary as the governor. I confess myself a good deal in the fog what to do about it.

MR. STEVENSON of Wood. I would have preferred myself that this secretary had been left to the legislature, but it appears we have got to fix all the salaries in the Constitution, and if it is to be done, why I am in favor of a reasonable salary but not a very high one, as I have been in all other cases. I suppose the duties of this officer will be something such as are performed in other states. Well, I discover that officer in Ohio gets $1400 a year at present. The Auditor gets $1600; Treasurer $1500, Attorney General $1000, Governor $1800. I think, sir, twelve to fourteen hundred; the latter I think would be sufficient. I would prefer to leave it to the legislature, but if we are to fix it I shall go I believe as high as $1400 for the office of Secretary; not any higher.

MR. STUART of Doddridge. I presume the duties of the treasurer, auditor and secretary will be very much the same as at present, and I am very much opposed to these sliding salaries. It will be recollected that under our present law, until the ordinance of the Convention changed it the salary of the Auditor of Public Accounts was $3000; that it had been $2000 and a legislature or two previous in order to accommodate a certain gentleman raised it from $2000 to $3000 - Mr. Bennett; I suppose you all recollect about it. It was thought necessary to retain the services of Mr. Bennett and the salary was raised from $2000 to $3000. That was done by a kind of logrolling with the legislature down at Richmond winter before last. I want to place this thing entirely out of the reach of the legislature, and let us fix the compensation. Let it be a reasonable one and that will be the end of it and there will be no more logrolling or interference with the legislature for the purpose of getting these salaries raised. I have no doubt the first legislature will fix these salaries quite low and as soon as things become settled down and the people lose sight of it you will see these salaries raised above the governor's; and I have not any doubt if we do not fix this too, it will be $2000 and perhaps in time $2500 or $3000.

THE PRESIDING OFFICER (Mr. Pomeroy in the chair). The Chair understands the motion before the house to be that of the gentleman from Brooke, to fix this salary at $1600, and that of the gentleman from Harrison to make it $1200. The best way would be to take one of these figures at a time, first on the motion of the gentleman from Harrison, to make the salary $1200.

The question was taken on the motion to make it $1200 and it was rejected.

MR. STEVENSON of Wood. I move to make it $1400.

MR. BATTELLE. There is force in the suggestion since it has been made that we are rather going it blind here. I do not know, for one, what a secretary of state is expected to do under the new Constitution; whether he is a mere clerk such as would be obtained to do business in a first-class business house; whether along with that he requires large experience and learning in state affairs; and until we are informed from some source either by writing it down in the Constitution or by some other accredited authority what he is to do, I am not prepared to say what we ought to do. I would like to hear from gentlemen learned in these matters.

MR. BROWN of Kanawha. I am like the gentleman from Ohio. I do not know exactly the duties of the secretary, but I suppose he is really nothing more than another name for a clerk of the Executive Department. But I was inquiring what the present Secretary gets and it is remarked it is $1250.

MR. CARSKADON. I was told this morning it was $1500 - Secretary and Auditor each.

MR. SIMMONS. The present Auditor gets $2000.

MR. BROWN of Kanawha. I wish to vote for a competent salary for the officer to discharge the duties and it occurred to me that, when the executive head was put down to $2000, it was an undue disproportion between the offices fixing the clerk at nearly the same price, and I hope gentlemen will give us some experience on the subject.

MR. VAN WINKLE. I have not only the difficulty of ignorance in regard to the duties of this office; but there is another consideration that seems to be lost sight of by many of the members of this Convention. Nothing is to be allowed for except the mere time in the discharge of the duties. Nothing is said, nothing is thought of the different responsibilities of the different offices. Now, sir, men all the world over expect to be paid when they assume responsibilities. Speaking about the auditor of the old state, if his office ought to be compensated by $2000 fifteen or twenty years ago, $5000 would be a small compensation now. I do not say what he ought or ought not to get. I only say the responsibilities under the old state have been greatly increased from the very fact that the state has undertaken to issue coupon bonds. There is a tremendous responsibility on the officer having charge of them. Again, since the state has been accumulating so vast a debt, for which the bonds of the state being in circulation for millions and millions, interest to be paid on them at the proper time, and so on, the duties and responsibilities upon that officer have been greatly increased. The secretary of state is something more than a mere ministerial officer. He has the great seal of the state, if I am not mistaken, in his charge; the responsibility of seeing that it is only affixed to the proper documents. He countersigns all the acts of the governor; keeps the records of the Executive Department. And while the actual labor, perhaps, or the difficulty of the labor is not as great as that performed in the auditor's office, except for the amount of responsibility, I see no particular reason for discrimination in the salaries of these three officers. That responsibility is a matter that men expect to be paid for. You compel all these officers to give bond in heavy sums for the faithful discharge of their duties and because you put them under heavy responsibility for many things. It is a very different thing from going as clerk into a mercantile establishment; from being a mere writer, for instance, in a lawyer's office; a very different thing from many other duties that are daily done by men who would be qualified for these. It has always been usual, and always should be usual, to take these responsibilities into consideration and pay for them. If you have responsible duties to discharge you want responsible men to discharge them, and it is no use of thinking you can get fit men for these places as you would hire men by the day to shovel coal or something of that kind. If you fix your salaries too low the result is you get inferior men in the offices, because men whose capacities are better suited to the office will not take it at a low sum for the State when they can get a much higher sum in private employ. It is only men of property who can give heavy bonds, and such men are not going to accept heavy liability for a salary which is about equivalent to "working for nothing and boarding yourself." I think you run great danger if you fix your salaries too low of having incompetent men in all your offices. You run that risk anyhow, and always will as long as the world stands, but some things we can guard against and some we cannot. I think we ought to offer a sufficient reward as an inducement for men of sufficient abilities to accept the office. That ought to guide us in reference to every office to which we affix a salary.

I would like to ask the chairman of the Judiciary Committee whether any provision is made in that report for the compensation of the attorney general.

MR. BROWN of Kanawha. I do not remember without referring to it.

MR. VAN WINKLE. Well it is not, perhaps, necessary now.

MR. STEVENSON of Wood. I was going to say just this: if it would suit the Convention to take the vote on the lowest number, as we have commenced in that way, I would withdraw my amendment of $1400 so that the gentleman from Doddridge could get his vote on the $1300 with an understanding that I would renew it if it carried.

Mr. Stevenson, there being no objection, withdrew his motion to make the salary of the secretary of state $1400, and Mr. Stuart of Doddridge moved to make it $1300.

Mr. Harrison read from the ordinance of the June convention the provisions fixing the compensation of certain state officers.

These officers he remarked now constitute a Board of Public Works and the first auditor discharges the duties of the second auditor.

The question was taken on Mr. Stuart's motion to fix the Secretary's salary at $1300 and it was agreed to.

Mr. Stuart of Doddridge moved to fix the salary of the treasurer at $1300.

Mr. Hervey moved to amend by making it $1500.

Mr. Stuart said the legislature would be overrun at $1300, and the great difficulty would be in selecting from the applicants.

MR. CALDWELL. I understand the gentleman to say the legislature would be overrun at $1300 with applicants for this office. I do not know that the Convention have decided that the legislature shall have the appointing power. It is contemplated by this section that the treasurer is to be elected as the governor and other officers are.

MR. STUART of Doddridge. I am corrected, sir. I was thinking of the present constitution.

MR. CALDWELL. The 10th section makes the governor, treasurer and auditor a board of internal improvements and board of public works. If we are to have one, it will throw further duties on the treasurer, whose compensation we are about to fix; and for that reason alone it seems to me there ought to be a difference between the compensation of the treasurer and the secretary. I would favor making the salary $1500.

MR. STUART of Doddridge. We are going to sell out what little public works we have and never going to make any more; and what on earth use will we have for a board of public works? And I believe the gentleman was for that up to the hub.

MR. CALDWELL. At the instance of the gentleman yesterday this was laid on the table, and it has been shown to me this morning that I am willing to go into a compromise.

MR. STUART of Doddridge. Still I do not think there is any great need of a board of public works; and I think this compensation is ample and sufficient for the treasurer who will have very little to do in our new State.

MR. BROWN of Kanawha. While in this case I am at a loss to know exactly what to do beyond the question of the labors, but it does occur to me that although we may make no very great improvements yet we will be compelled to have a board of public works, and there will be some duties and no little annoyance attendant on this office, and that $1300 is insufficient compensation for an officer who will discharge the duties of the treasurer and who will be required to live at the capital in the meantime.

Now, sir, there is another idea, and that is that these officers are all proposed to be elected by the people. The result of that is that there will be an everlasting change and the more competent the officer the more certain almost of being turned out at the end of the term, and it will bring in new officers every term who will have to go from their homes to the capital with their families or leave them at home, while the old officers will have to tear up and go back. This will produce a great deal of inconvenience and expense. If these officers were elected by the legislature they would, ordinarily, be continued through a number of years. When a man has made his arrangements at a place, has selected his clerks and done all these things necessary to put the office into operation, it would seem wise not to disturb these arrangements too frequently. Again if these officers are to be chosen at popular elections, whenever we start your governor, your secretary, treasurer and auditor will have to be named by party nominations and put on the state ticket; they have got to canvass the State and the whole controversy becomes then a party concern. I think there are a great many objections to it; and in every view of the case I cannot see that $1300 is a sufficient salary.

MR. VAN WINKLE. I am a good deal of the opinion of the gentleman from Kanawha. I think all the officers named in this section are simply ministerial officers. I am not aware that there is any political power or patronage attached to either of them; and, therefore, while I have been very earnest about the people electing those officers who had some political power attached to them, or who dealt with purely local matters, I am not in favor of electing either mere ministerial officers nor in favor of making their terms as I would make those of officers of a different character. I do not know that in the fiscal office, that of the auditor, there is any political power; and, sir, if I could have my way I would have the auditor a mere clerk during good behavior, because I think the knowledge a man acquires in the discharge of a duty of this kind is very valuable to the public; and it is general now in the departments at Washington and at Richmond that there is some old clerk who is depended upon for almost everything when a new officer comes in. I do not propose to make that proposition here; but I think we are getting in the dark attempting to fix salaries of officers whose duties we do not know and giving it in the power of the legislature to change those duties without any power over the salaries. I suggest if it would not be a considerable saving of time to strike out the word "compensation" and leave that to the legislature.

MR. BROWN of Kanawha. I would say, in reply to the remarks of the gentleman from Wood that having entered on the fixing of salaries in the Constitution, I can see, it strikes me, that there are many reasons why we should continue, not only to avoid the anomaly of the case but to avoid the objections of the gentleman from Doddridge that after an officer gets in he solicits increases of his salary from the legislature. I believe in a fixed salary; that when a man comes into office, knowing what the salary is, he should not ask for increase.

MR. LAMB. Mr. President, the Committee on the Legislative Department supposed they had already obviated the objection which is made by the gentleman from Doddridge and repeated by the gentleman from Kanawha, when they had provided that the salary and compensation of any public officer shall not be increased or diminished during his term of office. While he continues in the service, therefore, he cannot be an applicant to the legislature for an increase of salary. It strikes me this does away with the only reason which exists for taking this matter out of the hands of the legislature. If there is anything that is proper for legislative action it strikes me it is the salaries of these subordinate officers; and if we are to go on and regulate these small matters, when are we to get through? What sort of a constitution are you going to present to the people? I should be very much in favor of reconsidering the matter and leaving the section in this respect as originally reported.

MR. STEVENSON of Wood. I wish only to say, sir, that if the Convention insist on fixing the salary I shall myself vote against the $1500 amendment with the view, however, of getting in $1400 if that should not be carried. I will go that high but no higher. It seems to me the offices then may be graded from the secretary up to auditor by saying the treasurer shall have $1400, the secretary $1300 and the auditor $1500.

MR. STUART of Doddridge. You will recollect that the secretary's labors are much greater than the treasurer's.

MR. STEVENSON of Wood. I myself, like other members, do not know but the gentleman from Doddridge may be right on the subject, but I am not certain what the duties will be. I, of course, would be willing to give the treasurer no more than the secretary gets; and that is another reason why I should vote against $1500 for the auditor, if that is the case.

MR. BATTELLE. I believe I voted to strike out the word "compensation."

MR. STUART of Doddridge. I believe not.

MR. BATTELLE. I feel to say positively I did. I know I did not vote against it.

THE PRESIDING OFFICER. The Chair would have doubt whether a motion to reconsider would be in order after an amendment to the amendment is pending before the body; would think it is not until this motion is disposed of.

MR. VAN WINKLE. I think it would while the amendment pending relates to the subject to be reconsidered.

MR. DERlNG. What is the object of reconsideration?

MR. BATTELLE. That I have felt since the question has been raised great doubt as to what is my own duty. I do not know what these officers are to receive, for I do not know what they are to do and I suppose we cannot know until the legislature defines their duties. My object in proposing to make a reconsideration of that was that the compensation might be left as reported by the committee and the whole subject referred to the legislature. But as I said before I cannot say positively that I voted in favor of it.

THE PRESIDING OFFICER. Hence you do not make the motion.

MR. STEWART of Wirt. I move the reconsideration.

MR. STUART of Doddridge. On that question I would say to my friend from the county of Ohio that these officers all have clerks; in proportion as business accumulates additional clerks are given them. They are mostly gentlemen of leisure and the work is always done by their clerks. The office itself is a sinecure.

MR. HAYMOND. I am opposed to reconsidering. I think we had best fix the salaries, and then I would be in favor of the legislature electing them.

MR. BROWN of Kanawha. Is it competent to reconsider while another question is before the house?

THE PRESIDING OFFICER. The Chair thought not, but the explanation of the gentleman from Wood was that the reconsideration would be proper so long as it relates to the exact question under consideration.

MR. BROWN of Kanawha. I would hope that the Chair would stand to its decision.

MR. VAN WINKLE. I will read the rule on the subject:

"When a motion has been once made it shall be in order for any member to move for a reconsideration of it, and such motion shall take precedence of all other questions except a motion to adjourn."

The vote was taken on the motion to reconsider and it was rejected.

The question recurred on the motion of Mr. Hervey to make the salary of the auditor $1500.

MR. SMITH. I will offer a substitute for the whole section if it is in order.

THE PRESIDING OFFICER. It will not be in order while this motion is pending.

MR. STUART of Doddridge. I will withdraw my motion in order to hear the gentleman's substitute.

MR. HERVEY. I will withdraw mine with the understanding that I have the right to renew it.

MR. SMITH. I will read what I propose:

"A secretary of the state, an auditor and a treasurer shall be elected by the joint vote of the legislature, to hold their offices for the term of one year, and shall be allowed such compensation as may from time to time be prescribed by the legislature, but the compensation for any term after election shall not be diminished."

MR. LAMB. I would suggest that the last clause is unnecessary. We have already adopted a similar provision in regard to all public officers.

MR. SMITH. I think there is abundant evidence manifested here today to justify that substitute. You hear gentlemen get up on all sides and ask what are the duties of these officers, and not one of them can tell you. They do not know the duties that they have to perform and are utterly unable to state what salary ought to be allowed, because they do not understand the duties. Now, if so enlightened a body as this Convention shall be in such straits as is shown here to ascertain what the duties are I should like to know how you can call upon a people to vote for them throughout the broad extent of the commonwealth. Let the selection and the fixing of compensation rest with the legislature, who will know what their duties are, their capacity for the offices, their fitness for it. Besides, each is merely a ministerial officer. The legislature are supervising it. They have to report to that body. They have a review of all the duties they have to perform in their reports. They see it, they know it and can vote more intelligently than the people can. But this is an age of economy; and I must congratulate my friends from other quarters of the country to see them showing some degree of liberality in this matter. Some of them particularly who have been so persistent in opposition to everything like expenditure of money. But this is an age of economy, and this professes to be a body seeking to establish the principles of economy. Now, I understand there is a gentleman here who is able to tell us how much it will cost the State to elect by vote each and every one of these officers. There is to be at every precinct commissioners and clerks and of those appointed to keep the poll-books and have them returned; and by the time you begin to calculate you will ascertain it will take the amount of the salaries to elect them - or take a large portion. My friend on my right here has made the calculation. But they are purely ministerial officers; and in the convention at Richmond, despite the rage in that body for political election, all concurred in the opinion that these officers ought to be submitted to the legislature. They were deemed the most competent to judge of it; that it was purely a ministerial, not political, office. The governor is but the others are not. Merely clerks of the State. They have no other duties than to record business that comes before them, and for these clerkships you raise a hue and cry all over the State and have candidates for auditor, and secretary of the commonwealth and treasurer traveling from county to county electioneering for this office. It is I think very unfortunate to say the least of it to commit this to the people, and it is expensive, too, I imagine.

MR. DERING. I am sorry to differ with my old friend again from Logan. I am decidedly in favor of letting the people elect all these officers. Why, sir, you elect your governors and judges by the people; and you elect all the subordinate officers of the State by the people; and in this age of progress I go for enlarging the powers of the people instead of diminishing them. The old maxim that the power is always stealing from the many to the few is illustrated in the substitute of the gentleman from Logan. I desire, sir, most emphatically, to say that I shall oppose the substitute on that ground, that we add to the power of the people and save expense. I think it will be a very small item if the three are elected at the same time the governor is elected. It will require very little additional expense. And it seems to me, sir, if the people have intelligence enough to elect a judge, they have intelligence enough to elect a governor; and if they have intelligence enough to elect a governor, they have enough to select these subordinate executive officers. Sir, the people will not be satisfied unless you permit them to select their own servants. I have confidence in their intelligence and honesty; and I believe they will be willing and able to bear the little additional burden that will be put upon them in the way of expenses. I trust it will not be the pleasure of this Convention to adopt the substitute of the gentleman from Logan.

The question was taken on the substitute, and it was rejected.

MR. HERVEY. I now renew the motion to make the salary of the treasurer $1500.

MR. STUART of Doddridge. Then I amend with $1200, because the duties of the treasurer are nothing like those of the secretary. Twelve hundred is amply sufficient for a treasurer, and I believe we fixed the salary of the Secretary at $1300.

MR. VAN WINKLE. Cannot the gentleman from Doddridge see a difference between the responsibility of the two offices? The treasury is a much more responsible office. Got to give a very heavy bond; got the handling of the finances of the State. Certainly it seems to me responsibility ought to be paid for. It has to be in private life.

MR. STUART of Doddridge. Don't handle a dollar only as it passes through the auditor's hands. The auditor has to give the same security.

MR. VAN WINKLE. I understand that.

The question was taken on $1200 and it was rejected.

Mr. Stevenson of Wood moved to make it $1300; but the motion was rejected.

Mr. Powell moved that the salary of the treasurer be $1400, and it was agreed to.

MR. MAHON. I move now that the salary of the auditor of state be $1800.

MR. STEVENSON of Wood. I will amend that by saying $1500.

YEAS - Messrs. Brown of Preston, Brown of Kanawha, Brum- field, Battelle, Chapman, Carskadon, Cook, Dering, Dille, Dolly, Hansley, Raymond, Hubbs, Hervey, Hoback, Hagar, Irvine, Lamb, Montague, McCutchen, Parsons, Powell, Robinson, Ryan, Simmons, Stevenson of Wood, Stephenson of Clay, Stewart of Wirt, Stuart of Doddridge, Sheets, Soper, Trainer, Walker, Warder, Wilson - 35.

NAYS - Messrs. Brooks, Caldwell, Harrison, Lamb, Mahon, O'Brien, Pomeroy, Sinsel, Smith, Taylor, Van Winkle, John Hall (President) - 12.

MR. HERVEY. I move to add at the end of the section: "The powers and duties of the secretary of state, treasurer and auditor shall be such as they now are or may be hereafter prescribed by law."

MR. VAN WINKLE. That does not change the section. "Now" means the day the Constitution is adopted. "Now are" is anywhere.

MR. CALDWELL. I ask the attention of the member from Brooke to this fact: Suppose he is to perform his duties as prescribed in the Constitution of Virginia - the duties of these officers shall be as they are now prescribed by the Constitution and laws of Virginia. I beg him that we are not to be governed by the Constitution and laws of Virginia, so far as I am aware, and that there will be no duties prescribed "now."

MR. HERVEY. I cannot see that there is any impropriety in the addition to the section. If I understand the report of the committee on the subject of the Legislative Department they have reported a provision precisely to this effect, that the laws now in force in this commonwealth shall remain in force until they are changed hereafter by law, and this provision is now in our present constitution. The third section of the constitution, after specifying some of the duties says "and such other duties as may be prescribed by law." And then the 13th, "the powers and duties shall be as they now are or may be hereafter prescribed by law." Well, now, that is precisely a parallel case.

MR. LAMB. The main idea of the gentleman from Brooke is eminently proper, but this is not the place for it. We must have some place in the Constitution a provision that the laws which are in force in the State of Virginia shall remain in force in the new State until they are properly altered by the legislature. But we must have a general provision of that kind, but here is not the proper place to insert it.

The 8th section was then adopted and the 9th reported as follows:

"9. The legislature shall have power to establish a land office whenever it shall be deemed expedient, assign the duties thereof to a proper officer, and prescribe his compensation, term of, and manner of appointment to, office."

MR. VAN WINKLE. I move to strike out that section. It will be remembered by most of the members of the Convention we offered, and not knowing how else to dispose of it had referred to the Committee on Education because the proceeds were to go to the school fund, a provision for the disposition of all the waste, forfeited and unappropriated lands that fall within the new State. The scheme offered was not an untried one. It was in force under the laws of the state from 1838 until 1848, and operated very beneficially in quieting land titles, and within my personal experience has done an immense amount of good. Some of us tried to get a provision introduced into the constitution of 1850. A committee on the subject consisted of my friend from Logan, the late Governor Wise and some other gentlemen who were equally earnest on the subject. I think, sir, I have already stated, perhaps, when I offered this proposition, my own belief that if we can succeed in extricating the land titles from the almost inextricable confusion into which they have fallen, or if we can cut the Gordian knot, we will confer a greater benefit, or as great a benefit on this new State as we could by any other single measure. Various causes are assigned as tending to prevent immigration to this portion of the State. I think I would be justified in saying, sir, from my personal experience that the reputation of our land titles in the first place deters many from looking to West Virginia at all as a place of settlement; and that, secondly, when they come here and have picked out a piece of land, why somebody will advise them that there is some outstanding title and they are deterred from this and go elsewhere. I have in my hand, sir, a part of a letter written to me in the convention of 1850-51 by a very distinguished gentleman on the committee on this subject, a late governor of the state. I suppose from the style, at any rate, it will be understood who the writer is. I do not wish as it is a private letter to have it go to the public, although I think it may be entirely proper as it was written in advocacy of our cause, to read the opening part of it. It is a suggestion in relation to lands in Virginia:

"First stop all sales of land under patent. The whole system as at present in operation is one of gross fraud and incompatible with the honor and dignity of the state. Throughout the whole western portion of the state, every sale of lands for forty years past has been fraudulent ab initio; and it is no excuse to say that the maxim caveat emptor justifies. The state knew that her own field books showed more land sold than she owned and her sales should have ceased long ago. And yet she has been selling her land over and over again until she has shingled her whole western domain about two and half deep in it. Now comes the old patentee and sweeps away the new titles by the sworn statesments of state officers. And yet the state having thus taken money from several patentees for the same lands now turns on them with an insolence that would be insufferable in a private individual and tells them she will sell their land again for taxes. If the patentee offers to pay his taxes which have been in arrears for some time he is again told by the state he can pay all his taxes, principal and interest and that he can yet have back only a part of his lands. This is running the poker up to the hilt - and being paid for heating it too."

He then goes on and advises what is best to be done, in accordance with the action of the committee of 1850, and what is proposed here. Yesterday, I think, the Committee on Education reported, as their second report, the provision I have indicated, which went into the hands of the printers. I would ask the Convention to strike this section out here as the whole subject will come up when that report is before us. I do believe the only way which would be effectual for straightening all these land titles within a few years is proposed in that report. I would call upon my friend from Logan who is much more expert than I to state what it may please him to say in reference to both the operation of this land office and the operation of the scheme that was in operation from 1838 to 1844. I think he can make the members of this Convention understand that by adopting something like the latter they can do their constituents and the State at large more good than by any single measure they can adopt. They can save an immensity of litigation and bad feeling in the neighborhoods wherever the matter is controverted and lead indirectly to the rapid settlement of the State. And I have very little doubt that if we could once get it reported abroad that a system was in operation, or still better that titles had been straightened out, the price of lands would at once rise one hundred per cent. Take off that bad reputation in any way, and you will find our lands have been depressed in price by these fears in reference to titles, and in such way have the records been kept that it is almost impossible for a man to state how many outstanding titles there may be to a piece of land. You cannot certainly do it in a land office. There is more difficulty in the matter the more it is contemplated by allowing a man to locate wherever he pleased and the records do not furnish the evidence of these locations in a way that is accessible. I trust it will at least be the pleasure of the Convention to strike this section out and let that subject come up on the report of the Committee on Education as an independent proposition.

MR. CALDWELL. In view of the fact that this proposition that is brought out in the remarks of the gentleman has not been taken up and considered, and I presume that with other members as well as myself the proposition is not distinctly understood - I have some recollection of it and have a favorable impression in regard to it - but as it has not been acted on, there would be an impropriety in striking out this section, because that proposition may not be adopted by the Convention, and then if this section is stricken out we might be put to difficulty of establishing this office of registry or land office. I think it would be better to pass by this section until the proposition of the gentleman is considered, and if it is adopted then as a matter of necessity this section will have to be stricken out. I propose to pass it by until the Convention takes action on the other report involving the proposition the gentleman speaks of.

MR. SMITH. I should have risen to sustain the motion of the gentleman from Wood though I had not been personally called upon. I most heartily concur in the propriety of striking out this section.

The land system of Virginia began in '77, I believe; and that system authorized any person to go to the register's office and buy a land warrant and go into the country and locate that land just wherever he pleased to have it surveyed and get a patent for it. Well, it became a subject of speculation. I had very little compassion for those who got it, because they went into it generally for speculation, to get large titles and send them abroad for sale. But it has operated badly in this country and that more than any other cause existing I think has delayed the advancement in population and wealth of western Virginia. People were afraid to buy lands; afraid to improve them; afraid to build on them, lest some greedy speculator should come in at the moment they were improved and snatch the land from them; and whole sections of country have entirely been kept in wilderness, where if this system had not existed, there would have been a dense population under any good well-established and secure system of legislation on the subject. This matter occupied the attention of the legislature from that period down to 1831, by innumerable acts of the legislature trying to correct the wrong, and finally in 1831 it was ascertained and determined that this Gordian knot must be snapped at once by legislative power. There was an act passed which forfeited all these delinquent lands. Well, that act was found inefficient. It provided that all lands that were returned delinquent were forfeited. But a large amount of land was never returned delinquent because it had never been entered for taxation. Immense tracts of land that had never been on the commissioners' books at all. In 1835 an act was passed which embraced every possible class of land and secured its forfeiture whether it had been or had not been entered; and afterwards it is distinguished by lands forfeited for delinquency and lands forfeited for non-entry. This land became absolutely forfeited in case of delinquency in 1834, and in case on non-entries absolutely on the 1st of July, 1836. In the winter of 1836-7 there was a delinquent law giving the power to district courts to sell this land; but there was some imperfection in that law, and by the act of 1838 that law was amended and this forfeited land was directed to be sold by the Commissioner of Forfeited and Delinquent Lands. In that act of 1838 there was a provision that the land office should be closed, or to this extent, that no patent should issue on any lands afterwards surveyed. It was absolutely closed now. You will see the reason of it. The act of 1838 appointed commissioners in every county of western Virginia whose duty it was to hunt up all lands forfeited under these several acts and report them to the court who would direct a survey of them. The evidence of forfeiture and a plat of the land were reduced before the court and the court then ordered the sale of this land. The sale was made, reported to court, confirmed and deeds ordered to be given by the commissioner to the purchaser of this land.

After this act was passed prohibiting these patents to issue, but before these sales had commenced, the legislature, in its wisdom, as some would say - in its folly, as I say - repealed that act that prohibited the issuing of new grants by the registrar. The Commissioner of Forfeited and Delinquent Lands was making his titles, the people in the country at the same time were going about with their land warrants and laying them on the very same land. And here were a couple of title-makers, one in Richmond, the other in each county of the state; and this created a new batch of land suits. The act of 1835 was intended to put an end to this - to close up this whole matter and secure the titles, not create any more conflicting titles such as had existed antecedent to that time; but by the repeal of the last section of the act of 1838 a vast number of patents were issued on new surveys, and these new surveys, and these grants made by the commissioner of the counties became subjects of conflict. I have had more land suits, and I have defended and prosecuted more suits growing out of this conflict arising between the land office and the commissioners than I ever had before in land law. They are innumerable; and you look at the reports of the court of appeals and you will find case upon case settling these conflicts of titles growing out between the two laboratories engaged in patent making.

Now I say it was a great legislative error to repeal the act of 1838 and now we have come up to the very same thing again. We want to stop this and to make the matter complete the legislature or some other tribunal ought to place the whole of these forfeited lands, of those forfeited and those liable to entry and survey, put them in the hands of the circuit courts; let the circuit courts take such proceedings as were taken by the act of 1838. Let the court sell the lands, let everybody come in and buy them at their fair value and let that value go to the State, or to the owner if you think proper or make some provision that he may at some time or other get a portion of it. But I don't propose going into details. My object is merely to give of the facts to show the folly of this land office. It is an expense to the State - an unnecessary expense. You would have to pay a registrar $2000 or $1500, gentlemen, and only to inaugurate lawsuits about lands and disturb the titles of the country. The great object in this country is to secure and quiet land titles, and wherever you disturb them you make them uncertain, you deal a death-blow to increase of population and wealth, and if you do establish these, here will be again, and continue to be open lands perhaps that are sold and difficulties arise between those titles that have been made by the commissioner and those that may be made by the land office. And another difficulty will arise. Here will be two people that will go and enter the same land. Well, that will be the fruitful subject of caveats and ejectments and all that sort of controversy in courts about land that ought to be stopped. Why let one try to get it and another try to get the same land and get into law and difficulty about it? Put the whole of it, every foot of forfeited land, in the hands of the courts where it may be publicly sold and where there will be no conflict of title. By adopting this policy I think you will be doing a great service to the country; but by opening this land office you will do immense mischief to the land titles of the country. I do not know that there is any, I do not suppose there is, a foot of land in western Virginia that ought to be entered. There may be some that might be the subject of forfeiture. But I don't believe the greediness of land speculators has left a foot of unsurveyed land. The whole of it is now taken up and there is no necessity for an office of that kind. There might be a provision where if a grant was ever made by the commonwealth the matter should be in the hands of the secretary of state and governor to issue such patents as might be required. But you don't want an independent office of registry. It has done mischief enough, God knows, already in this country.

MR. VAN WINKLE. I would like to ask whether the decisions of the court of appeals have not confirmed these sales in such ways as to make the titles given by the commissioners and declare them good and valid titles?

MR. SMITH. Yes, sir, I believe the decisions in the court of appeals have given strength and vigor to all these titles made by the commissioner equal to any other title now existing; and I believe I would rather have a title now such as were made under the act of 1838. I have never seen one defeated for want of title. The court of appeals have said that law was constitutional. They have tested its constitutionality most directly and positively; and the titles are acknowledged on all hands to be good; and such is the effect of the various laws that have been made that every single forfeited title - they are all vested in the first purchaser at a delinquent sale, and it thus aggregates all the titles in that which is obtained by the purchaser at the commissioner's sale under the act of 1838. I believe now they constitute the best titles in this country. That view of the case has been sustained by the court of appeals, and, in fact, almost every question that can arise on this series of land laws has been settled.

MR. CALDWELL. I hope that question will prevail. The committee did not contemplate the establishment of a land office but they thought it might be expedient at some time and hence proposed it here. I hope it will be passed by.

MR. SMITH. I would suggest whether the legislature has not the whole subject under their charge, and may they not make provisions?

MR. VAN WINKLE. I can apprise the chairman that the Committee on Fundamental Provisions have reported a provision preserving all the rights that have been acquired in reference to grants from the State, to show that the adoption of this Constitution is not to affect any acquired, even inchoate, right; and I think the suggestion of the gentleman from Logan, if it is necessary to provide who may issue these grants, that it may be done when you come to consider the second report of the Committee on Education (which is now printed and has just been laid on our desks), is a good one. I have no objection to pass by until this report on education comes up; but it must be with a distinct understanding, so far as I am concerned that I will not go for establishing that land office.

MR. BROWN of Kanawha. I have two objections to this section. The first is that this is in so many words concurring specifically with an affair which the legislature has charge of and is therefore useless. The legislature unquestionably has the power to establish a land office, to appoint a registrar of that office, without any such special grant as here delegated; and if there were no other reason at all, that would be sufficient to induce me to vote to strike it out. But there is a stronger reason: that is, that this would seem to imply a sort of direction to the legislature to do the very thing that I don't want them to do. I have no doubt the same experience showed not only the propriety but the necessity of closing the Virginia land office forever. That had become an instrument of fraud and oppression, of unmixed evil with very little good. I know, sir, that in all my own instances as a land-holder, in order to secure myself against annoyance in this operation of the land office, a man is absolutely compelled to go and purchase the return entry of his own lands, going to the expense of surveying his own land, and going into the state office to obtain a patent for that which has been his own all his life, in order to keep somebody else from doing the same thing. Well, now, that ought to be ended. The simple question then is to strike this out. When the proposition comes up on the report of the educational committee, the question will be in review as to the proper course to take in regard to the subject.

MR. HARRISON. I hope they will just at this time not pass it by but put the seal of extinction on this plan. I entirely concur with the remarks of the gentlemen who have spoken on this and I only beg leave to add that short experience, if it is worth anything and that it is proper for us now at this time to strike out and kill it forever.

The Convention refused to pass by and the question recurred on the motion of Mr. Van Winkle to strike out the section.

MR. CALDWELL. I know myself, from my own observation and experience, I know of persons residing in this city and of citizens of my county, and I think I might designate some in each of the counties along the Ohio river, who have been purchasers of this forfeited and delinquent lands - very large tracts; and for some reason or other they have permitted them to become forfeited again. Now, I have not much doubt that even in the region of the country where the gentleman from Logan comes there are large bodies of these lands that have been forfeited and liable to entry. Now, sir, you see the difficulty in which the whole question is involved: When, for instance, the gentleman from Logan may have a hundred thousand acres of land in this position, of which he does not regard the taxation important, he will suffer it to remain in that position and liable to entry by persons who may choose to migrate into that section of country. Well, sir, if we have not a land office, how are they to avail themselves of their right of entry? How can others who would desire to locate those lands get at them? We are not satisfied with the titles of these gentlemen; therefore, we will not purchase one of them. They are forfeited to the commonwealth; and under this old commonwealth we might secure patent that would enable us to get title to this land. I would much prefer this proposition of the gentleman from Wood to have been considered first by this Convention. Then it might have been determined that the legislature could not have had even the authority to establish a land office. I cannot help but think cases may arise in which there may be the necessity of establishing a land office for some purpose or other by the legislature. This provision only authorizes the legislature when it shall deem it expedient to establish a land office and assign the duties of the office to some proper officer, contemplating that in time the duties may not be so arduous but they may be performed by some other executive officer. Let it remain then with the legislature to judge and determine of this. And if they see fit to establish a land office, give them the authority and power to do it. That is all this provision asks, and I think it is one that may be granted.

MR. SMITH. If that were true which the gentleman supposes to be true then there is propriety and force in his remarks. But he is under a total misconception of the law in his reply. He says that lands that have been sold under the act of 1838 have been forfeited since. Now, that has been an error to some extent, and I have known some lawyers who gave that opinion, and on which opinion there has been a number of entries, and very improperly. Now, under the land law of Virginia there is not a foot of land forfeited for non-entry or for delinquency since the 1st of April, 1831. The acts themselves confined the forfeiture expressly to that period, and there can be no forfeiture to any lands you purchase at delinquent sale. The act of 1836 also put it on the same footing as forfeitures of 1831. It was there expressly provided that forfeitures for non-entry should not take place for any period after the 1st of April, 1831. There is not one foot of that land that was bought since 1831 that is liable to entry or that can be entered under the law. Not a foot of it. It all has relation to a period antecedent to 1831; and therefore there is no necessity for making a provision for forfeitures of lands sold under the act of 1838. There is no necessity for making provision for this for there is no forfeiture and no liability to any entry of those lands. Now, in the county of Nicholas, under the advice, as I was informed, of a distinguished lawyer there, some friends in my county had some 20,000 or 30,000 acres of land bought at delinquent sale in 1841-2-3. Under his interpretation of the law the gentleman went to Nicholas and went to work and entered all that land as forfeited. I heard of it, and I wrote a letter to the authorities telling them the entries were of no value. Well they asked them to withdraw their return and save their money. They were very stubborn and a lawyer went to my friend - Sam Price, who is an excellent land lawyer, and laughed him out of countenance, and he quit it. Now, that is one of a few cases where this has occurred. There can be no forfeiture and no necessity for a land office on that account at all. And I tell the gentleman to go home and tell his constituents that so far as my estate is worth anything, it shall be a guaranty of all forfeitures of land sold under that law; and if they will pay me a reasonable fee, I will come and defend them and save them against any such forfeiture. But if you let it lie fifty years it is liable to be sold as delinquent land under the general law.

MR. VAN WINKLE. The case spoken of by the chairman of the committee, if there were a hundred thousand acres or any other quantity of land in Marshall, would be one for the operation of what I myself consider this proposed beneficial provision. Instead of allowing entries and other land returns on this land, supposing it was forfeited and interfering with one another, the commissioner would go and ascertain all the facts and report them to the court. If in the opinion of the court the land was forfeited the court would so declare and order that land to be sold at public auction in parcels. Every citizen then has a right to come in and become a purchaser. When he has purchased, the court orders the deed to be made by the commissioner. Then he has got all the title that ever vested in the commonwealth in reference to that land; and there is nothing under the sun that can set aside his deed to that land, unless they do show an actual payment of taxes or fraud on the part of the commissioner.

MR. SMITH. They cannot do that.

MR. VAN WINKLE. Now, sir, it would be much better to preserve peace and quiet and the parties would get an infinitely better title and it would save all heart-burning. If any provision is necessary to insure that those who have heretofore bought and located land-warrants may get the proper deed, I am perfectly willing that should be inserted if it can be done, however, when the subject comes up under the report of the Committee on Education.

MR. STUART of Doddridge. I would inquire of the gentleman from Logan where these lands are sold for delinquent taxes and the State becomes a purchaser, then is that land liable to entry?

MR. SMITH. No, sir. No land is liable to entry except for delinquency or non-entry before 1831; and until it is absolutely sold it is not liable to entry at all under the law.

MR. CALDWELL. I will just say in a hasty reading of this second report of the Committee on Education, I like its provisions very well; and while I think the majority of the Convention will agree with me that this provision may be adopted, we are rather forestalling the thing, I think. There ought to be action on this proposition before we determine to dispense with the authority of the legislature to establish a land office. The second clause of this provision seems to contemplate that there are forfeited lands and that grants may be issued for them, because that prohibits, after adoption of this house, any grants or patents for such lands. I am satisfied, sir, that I was not in error when I expressed the opinion that there were such lands in the state. To what extent they are I cannot say. I am verily of the opinion that there are some in my section of country that are. The gentleman from Logan, however, thinks it cannot be so. I merely advert to the fact that the gentleman from Wood is not exactly clear on that question because if it was not the fact this provision would not be in this section forbidding any grants or patents being issued for such lands. I rather think it is better that the Convention should take up this section and consider it; and if it is adopted, why, then, perhaps there might be propriety in striking out the section in this executive report.

MR. VAN WINKLE. I have already stated that even if this proposition of mine as reported is rejected I shall still vote for striking out the land office.

The motion to strike out the 9th section was put and it was agreed to.

The 10th section .was reported as follows and adopted without discussion:

"10. The legislature shall have power to vest the management and control of the works of internal improvement of the State, the disposition and investment of the fund arising therefrom, or that may be created for that purpose, in the governor, treasurer and auditor, and to prescribe their duties as a Board of Public Works."

Section 11 was reported as follows:

"11. The legislature shall have power to provide for the organization of the militia and the appointment of militia officers; but no officer below the rank of brigadier general shall be appointed by the legislature."

MR. VAN WINKLE. The gentleman from Ohio (Mr. Lamb) left with me an amendment which he designed offering here with request to offer it, and in which I believe I concur. It is to strike out all after the semicolon in line 87 and insert: "but the governor shall nominate, and by and with the advice and consent of the senate shall appoint, all military officers above the rank of colonel." I do not suppose I am the appropriate person to advocate this, though it strikes me favorably. I have but little familiarity with military matters.

MR. CALDWELL. I am no part of a military man. I have never mustered in my life, even. This provision is taken from the present Constitution of Virginia. I like the amendment proposed. I think that in the appointment of all these officers by the governor, that they are properly invested in the governor with the advice and consent of the senate. Being of that opinion, I shall at least, although chairman of the committee, make no objection to the amendment. I do not know what the opinions of the members may be, but as one I favor the amendment.

The amendment was agreed to and the section so amended adopted.

The 12th section was reported as follows:

"12. Commissions and grants shall run in the name of the Commonwealth of West Virginia and bear teste by the governor, with the seal of the commonwealth annexed."

Mr. Brown of Preston moved to strike out "and grants."

Mr. Caldwell moved to strike out the section and it was agreed to.

The report was then laid on the table to be printed as amended before final action.

MR. BROWN of Kanawha. I move to return to the report of the Committee on the Judiciary and finish a section left undetermined there.

The motion was agreed to.

MR. BROWN of Kanawha. The Convention had under consideration the 7th section and adopted so much of it as determined the jurisdiction of the court of appeals, but left undetermined the question as to the jurisdiction of the circuit courts. I now offer the following as a substitute for the additional section heretofore offered by me:

"The circuit courts shall have the supervision and control of all inferior tribunals, by mandamus, prohibition or certiorari. They shall also, except in cases confided exclusively by this Constitution to some other tribunal, have original and general jurisdiction of all matters whatsoever at law, where the amount in controversy, exclusive of costs, exceeds twenty dollars, and of all cases in equity, and of crimes and misdemeanors. They shall also have appellate jurisdiction in all cases civil and criminal, when an appeal, writ of error or supercedeas may be allowed to the judgment or proceedings of any inferior tribunal. And they shall also have such other jurisdiction, whether supervisory, original, appellate or concurrent, as may be prescribed by law."

This section contemplates a number of tribunals in the State whose specific jurisdiction is given and which have no jurisdiction whatever except that specifically conferred. The circuit courts - as are the circuit courts of Virginia - are intended by this provision to cover all the other conceivable jurisdiction that is left undivided and any attempt to add an enumeration of it will wholly fail. The circuit courts at present have a supervisory jurisdiction over all the inferior tribunals by writ of mandamus, prohibition and certiorari. While it just of its own volition refuses to decide his case at all, the writ of mandamus therefore lies in the superior court to compel that jurisdiction to go forward and discharge its duty. In all such cases the superintending power of the superior court is always at hand, by writ of prohibition to prohibit it from doing what it has no lawful right to do.

At the usual hour, the Convention took a recess.


The Convention re-assembled, and resumed consideration of the report of the Committee on the Judiciary, the question being on the substitute offered by Mr. Brown of Kanawha for the additional section previously offered by him defining the jurisdiction of the circuit courts.

The question was put and the substitute adopted as an additional section.

The 2nd section, which had been passed by, was taken up and reported as follows:

"2. The State shall be divided into nine circuits, as follows:

1. The counties of Hancock, Brooke, Ohio and Marshall shall constitute the first circuit.

2. The counties of Monongalia, Preston, Tucker and Taylor shall constitute the second circuit.

3. The counties of Marion, Harrison and Barbour shall constitute the third circuit.

4. The counties of Wetzel, Tyler, Pleasants, Ritchie, Doddridge and Gilmer shall constitute the fourth circuit.

5. The counties of Randolph, Upshur, Lewis, Braxton, Webster and Nicholas shall constitute the fifth circuit.

6. The counties of Wood, Wirt, Calhoun, Roane, Jackson and Clay shall constitute the sixth circuit.

7. The counties of Kanawha, Mason, Putnam and Fayette shall constitute the seventh circuit.

8. The counties of Gabell, Wayne, Boone, Logan, Wyoming and Raleigh shall constitute the eight circuit.

9. The counties of Pocahontas, Greenbrier, Monroe, Mercer and McDowell shall constitute the ninth circuit."

Mr. Brown of Kanawha moved to transpose the counties of Barbour and Taylor.

Mr. Dering opposed, and Mr. Brown explained that it was a mere suggestion.

MR. STEVENSON of Wood. I do not wish to suggest any change in this arrangement of judicial circuits unless I thought it was really proper and right, but it does seem to me injustice is done in this arrangement of the 6th circuit. Clay county belongs naturally, it seems to me, both geographically and by its trading relations to the counties in the 7th circuit. It would make the number of counties equal in the two circuits. It will make the population larger in the 7th; but it has been argued here, and I think correctly, that the amount of law business that goes into the courts does not depend on the population entirely. Now, if gentlemen will examine the map here, they will find but two counties in the 6th circuit which can be reached by river - Wood and Jackson. That leaves four counties, if we keep Clay which have to be reached over the most difficult avenues of travel in the country. It seems to me we ought to look as well to the amount of labor in traveling over the circuit as well as to the amount of specific judicial labor to be done by the circuit judges. Now I believe all the counties in the 7th circuit, Kanawha, Mason, Putnam and Fayette, I think they can all probably be reached by water. My impression is that they lie on the Kanawha river.

MR. HAGAR. Fayette cannot.

MR. STEVENSON. At all events they are much more easy to cover than the other counties which I have alluded to in the 6th circuit; not only that they can be reached by the river but have the accommodation of roads in that country. Now, sir, to reach Clay from Wood is something like trying to reach the North Pole or the equator. Again, sir, the Elk river runs through Clay county, and the travel and trade of the people of that county is run by that river down into Charleston until it empties into the Kanawha; so that I think, sir, Clay belongs properly in that circuit. If it is added to that circuit it will be an accommodation to the people of Clay. While it will be an accommodation to the people of Clay, will it impose an unnecessary task upon the gentleman who may act as judge of that circuit, either physical or mental ? I think not. He can reach all the other counties as I have endeavored to show more easily than any of the counties can be reached in the other circuits except Wood and Jackson, and the amount of mental labor he will have will not be so great as that in the other circuit.

I move that Clay county be placed in the 7th circuit.

MR. BROWN of Kanawha. The gentleman seems to think it would be an accommodation to the people of Clay to have that county added to the Kanawha circuit. Now, I suppose the people no matter where they trade or what their business is do their business at the court house; and as the judge lives one place or another it is wholly immaterial to the people who bring their suits in his court. I am not able to perceive any reason why a people are advantaged by having the county attached to another circuit so far as business is concerned. The whole question is dependent on the judge; and going on the hypothesis that we will have competent judges in all these circuits there is no difference between them. But there is a very strong reason why this should not be done - not because the people of Clay, or of Kanawha are any more allied to each other than Kanawha and any other adjacent county; not because there is any dissimilarity in the people, for this has nothing to do with the lawsuits and the man who decides them. But there is no justice to the Kanawha circuit in this. In the first place it has a larger population than Wood circuit with Clay in it. There is therefore a larger number to bring their suits than in the other circuit. But apart from that there is more business, I maintain, wherever it shall be examined carefully and critically, in Mason and Kanawha than in the whole Wood circuit put together; and therefore to take from the less and attach to the larger and thus diminish the less and increase the labors of the larger is manifest injustice. The only objection urged I see of any force is that a judge has more traveling to do. Why, sir, the travel is not equal to the travel in the circuit on the other side of the Kanawha circuit. There are six counties and much larger in territory - almost half as much more, and the country altogether more inaccessible. I have traveled through them all. There is no comparison to it. And yet you cannot avoid it from the very nature of the case. And the court usually sitting there two months at a session; and that, too, when the county courts sat four times a year in Kanawha.

Then there is no reason for it in the question of population or on the score of business. There is no reason for it in any way unless the object be to lighten the one and so encumber the other that it will be impossible for one man to do the business of the circuit.

The question on the motion to transfer Clay from the 6th to the 7th circuit was put and decided in the negative.

Mr. Van Winkle proposed to substitute the senatorial districts for these judicial circuits. He said those districts were laid out with reference to the circumstances which ought to govern in this case and which these circuits were not. They were laid out on the basis of equality of population, and he thought population was a very good criterion of the business, and he did not believe better districts could be arranged.

He moved the substitution proposed, but the motion was not agreed to, and the section as originally reported was adopted.

Mr. Lamb offered the following as an additional section:

"The legislature may establish courts of limited jurisdiction within any city of the State."

MR. LAMB. As we are adopting a constitution which we hope may be permanent and cannot see well what the necessities of the future may require, I think it would be judicious perhaps to leave that authority within the scope of the legislative power.

The additional section was adopted.

The report being completed, was laid on the table and ordered to be printed as amended.

Mr. Van Winkle moved to take up the report of the Committee on County Organization.

The motion was agreed to and Mr. Van Winkle moved to insert in the 8th section, at the end of the first sentence the following: "Jurisdiction of all misdemeanors and breaches of the peace, punishable by a fine not exceeding ten dollars or imprisonment for not more than thirty days, may be by law vested in justices of the peace."

The amendment was agreed to and Mr. Van Winkle offered the following as an additional section:

"Either party to a civil suit brought before a justice of the peace, when the value in controversy or the damages claimed exceeds twenty dollars, and the defendant in such cases of misdemeanor or breach of the peace as may by law be recognizable by a single justice, when the penalty is imprisonment or a fine exceeding five dollars, shall be entitled to a trial by six jurors, under such regulations as may be prescribed by law."

Mr. Soper moved to amend the same by inserting after the word "civil," in the first line, the words "or criminal," and striking out all after the word "peace," in the second line, to the word "shall," in the 8th line.

Mr. Stuart of Doddridge moved to amend the amendment by striking out the word "six," and inserting "one," which was rejected.

And pending the consideration of the amendment of Mr. Soper, On motion of Mr. Hagar, the Convention adjourned.

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Chapter Eleven: First Constitutional Convention of West Virginia

A State of Convenience

West Virginia Archives and History