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Debates and Proceedings
of the
First Constitutional Convention
of West Virginia

February 12, 1862

*The Convention met at 9 o'clock, A. M.

*See note Vol. II, page 219.

Prayer by Rev. Mr. Ryan, member of the Convention.

The journal was read and approved.

The question being upon the adoption of the report of the Committee on Boundary as a part of the fundamental and general provisions, the question was put and decided in the affirmative.

On motion of Mr. Brown of Kanawha, the following additional section to the fundamental and general provisions was adopted:

"All lands lying within the State of West Virginia, which have been vested in the State of Virginia by purchase at sheriff's sale for taxes and damages delinquent thereon, whenever they become vested in the State of West Virginia, may be redeemed by the former owner by the payment to the State of West Virginia of the amount of taxes and damages due thereon, within five years after this Constitution goes into operation, and the net amount so paid in redemption shall go to the school fund. And the residue of such lands so vested and not so redeemed shall be treated as forfeited lands."

And, on motion of Mr. Van Winkle, the amended reports of the Committees on Fundamental and General Provisions; on the Judiciary Department; on the Legislative Department; and on the Executive Department, were referred to the Committee on Revision and Engrossment.

On motion of Mr. Battelle the report of the Committee on Education, as amended, was taken up on its second reading.

Following is the amended report, as now taken up for second reading:

As Amended by the Convention.

1. All money, being the proceeds of forfeited, waste and unappropriated lands; all grants, devises or bequests that may be made to this State for the purposes of education, or where the purposes of such grants, devises or bequests are not specified; the revenues accruing from any stock, not pledged to the sinking fund, hereafter acquired by this State in any bank, and the proceeds of the sale of such stock, if the same be sold; any sums due this State from any other state, on account of educational purposes; the proceeds of the estate of all deceased persons that may have died without leaving a will or heir, and of all escheated lands; the proceeds of any taxes that may be levied on the revenues of any corporation hereafter created; and all moneys that may be paid as an equivalent for exemption from military duty, and such sums as may from time to time be appropriated by the legislature for that purpose, shall be set apart as a separate fund, to be called the school fund, and invested under such regulations as may be prescribed by law, in the interest bearing securities of the United States, or of this State; and the interest thereof shall be annually applied to the support of free schools throughout the State, and to no other purpose whatever. But any portion of said interest remaining unexpended at the close of a fiscal year, shall be added to, and remain a part of, the capital of the school fund.

2. The legislature shall provide, as soon as may be practicable, for the establishment of a thorough and efficient system of free schools. They shall provide for the support of such schools by appropriating thereto the interest of the invested school fund; the net proceeds of all forfeitures, confiscations and fines accruing to this State under the laws thereof; and by general taxation on persons and property, or otherwise. They shall also provide for raising, in each township, by the authority of the people thereof, a sum not less than one-half the amount required for the support of free schools therein.

3. Provision shall be made by law for the election, powers, duties, and compensation of a general superintendent of free schools for the State, whose term of office shall be the same as that of the governor, and for a county superintendent for each county, and for the election, in the several townships, by the people, of such officers, not specified in this Constitution, as may be necessary to carry out the objects of this article, and for the organization, whenever it may be deemed expedient to do so, of a state board of instruction.

4. The legislature shall foster and encourage moral, intellectual, scientific and agricultural improvement; they shall, whenever it may be practicable to do so, make suitable provisions for the education and maintenance of the blind, mute and insane, and for the organization of such other institutions of learning as the best interests of general education in the State may demand.

*Mr. Battelle moved to amend the same by striking out the clause embraced in the 8th and 9th lines, and inserting in lieu thereof the following, which was agreed to.

*See note Vol. II, page 219.

"This State's share of the Literary Fund of Virginia, whether paid over or otherwise liquidated; and any sums of money, stocks or property, which this State shall have the right to claim from the State of Virginia for educational purposes."

On motion of Mr. Smith the word "that," in the 15th line, was stricken out, and the word "the" inserted.

Mr. Smith moved to strike out all after the word "land," in the 18th line, to the word "and" in the 19th line, which was disagreed to.

On motion of Mr. Stevenson, the word "deceased" and the word "that" in the 10th line, were stricken out, and the word "who" inserted after the word "persons."

Mr. Van Winkle moved to amend the 30th line by inserting after the word "thereof," the following: "and of all lands hereafter sold for taxes, and purchased by the State of Virginia, if hereafter redeemed or sold to others than the State," which amendment was adopted.

Mr. Battelle moved to amend the 33rd and 34th lines by striking out all after the word "thereof" to the end of the section, and insert "such a proportion of the amount required for the support of free schools therein as shall be ascertained by general laws," which was agreed to.

Mr. Battelle moved to amend the 47th line by striking out the words "the education and maintenance of," and the 48th line by striking out the word "other," which was adopted.

On motion of Mr. Van Winkle, the word "shall" in the 35th line was stricken out, and the word "may" inserted.

And the question then recurring upon the adoption of the report, as amended, it was put and determined in the affirmative.

And, on motion of Mr. Battelle, the said report was referred to the Committee on Revision and Engrossment.

Mr. Harrison then moved that the subject of all forfeited, waste and unappropriated lands be referred to a special committee of seven, and the question being put it was decided in the affirmative.

The President then appointed the following gentlemen said committee:

Messrs. Harrison, Smith, Stevenson of Wood, Brown of Kanawha, Irvine, Hall of Marion, and Van Winkle.

Mr. Dering then moved that the report of the Committee on Taxation and Finance be taken up and made the order of the day for 3 o'clock this afternoon.

Mr. Stuart of Doddridge, moved to amend the motion by taking up the report of the Committee on County Organization on its second reading, which was disagreed to and the motion of Mr. Dering adopted.

On motion of Mr. Stuart of Doddridge the President was directed to lay before the two houses of the General Assembly of Virginia, the section of the Constitution fixing the boundaries of the proposed new State, and to request their consent to the formation and erection of the said new State.

The Convention then took a recess.


The Convention re-assembled at 3 o'clock P. M.

The report of the Committee on Taxation and Finance was taken up as the order of the day.

Mr. Dering moved that the 5th, 6th and 7th sections be referred to a special committee of nine.

Mr. Smith remarked that when this report was last before the Convention he thought he had observed a disposition on the part of the house - a liberal kind of disposition to take this subject in hand and endeavor, if possible, to make an arrangement that would be satisfactory to all. But gentlemen say there is no principle in this; it is a question of policy altogether. Now, I ask as a question of policy is it expedient and proper to send home some of us utterly dissatisfied with this arrangement, and especially so when I said before, I am not blaming any of the committee? But is it expedient and proper to send us home where not one from that section of the country has been represented on the committee, and when they ask an opportunity of being heard to some extent on the committee with a view of a fair compromise on a question of policy, not principle at all? Will it tend to soothe them and put them in a better frame of mind to say that we will not grant them that little boon? To say, you shall not have anything? Now, I ask if that is a proper spirit with which to meet us? I hope and trust it will bci the pleasure of this house to give us some little opportunity of being heard on this question. And I can say it was never designed in the slightest degree to impugn the motives or action of the committee. But we are dissatisfied with the results of the work of that committee and we think injustice has been done us, not wittingly but unwittingly, and we ask to be heard; and I ask gentlemen who represent this majority to show a little liberality on this subject.

MR. SINSEL. The gentleman from Ohio seems to think because this Convention has passed once or twice on certain subjects that they have no right to meddle with it afterwards; that what we do once must be like the laws of the Medes and Persians - unalterable. Now what is the fact of the case? The Convention voted twice to have our elections on the 4th Thursday of May, and finally turned round and put it on the 4th Thursday of October. Now, I made no fuss about it. The Convention had a right to do it; and they have a right to change anything else here if they choose. Well, one gentleman spoke of this as no compromise. Now, sir, was the city of Wheeling subscribed (?) to make her roads? She might complain at being taxed to make her own improvements and then being taxed to make improvements in another part of the State. There would be some hardship in that. This compromise proposes to put that on state account and do as much in the other sections of the State on state account. The State of Virginia made our turnpikes through all these counties. Yet in settling the old state debt the people of the southern counties will have to foot that bill; and I only propose now to spend about an equal amount in that section of the State. It does seem to me nothing on earth could be more fair and reasonable than this proposition. She would also be required to transfer that stock, the $500,000, over to the State of Virginia. The State of Virginia then would own it. We are taxed now probably to keep up these roads. There are many counties in the southern part that have none of these turnpikes. This $500,000 was simply offered there to make these roads, and it was to be expended in ten years, so as to put these counties on about an equal footing with the counties in this part of the state. Now, if that is not fair and just I am incapable of deciding what is right.

MR. HERVEY. I hope this motion will not prevail. This report has been adopted by this Convention; and now, sir, after the action of the Convention, deliberately considered and solemnly passed, it is proposed, on the very heels of this Convention, when we are told we would probably have this Constitution completed by Saturday, it is now proposed to recommit this report to another committee and await their action and its submission and its discussion in this body and the action of this body. Where is the propriety of it? If gentlemen desire to incorporate any particular provision in the report, they have a perfect right to propose it and the Convention have a right to incorporate it if they see fit. They have been doing so at every step of our progress; and simply because the Convention did what these gentlemen did not want done, therefore it has become absolutely necessary that a new committee shall be created and a new report brought in! Why, sir, the door is open here for substitutes either for the whole report or for any section of it. Why not reach it in that way? The Convention, of course, will hear and decide on any propositions that may be introduced here; and any gentleman is perfectly competent to introduce any particular feature he sees proper at once, and not retard the action of the Convention on this subject.

MR. RAYMOND. I think if this report is sent back to the committee, it would not be necessary to send the whole report. The first four sections have been adopted and I believe are satisfactory to the Convention. As to the balance of the report, I am opposed to sending back to that committee. I would prefer a committee of nine, with the idea of a compromise being brought about, to report a compromise on the balance of the report.

Mr. Dering's motion was agreed to and the Chair appointed the special committee as follows:

*Messrs. Dering, Smith, Lamb, Ruffner, Harrison, Brumfield, Stevenson of Wood, Sinsel and McCutchen.

*See note Vol. II, page 219.

Mr. Brown of Kanawha moved to amend the 9th section by striking out the word "portion," and inserting the word "proportion," which was agreed to.

On motion of Mr. Paxton, the report, as amended, was adopted and laid on the table.

Mr. Battelle then submitted the following resolutions:

"1. Resolved, That at the same time when this Constitution is submitted to the qualified voters of the proposed new State to be voted for or against, an additional section to article ; in the words following:

"No slave shall be brought, or free person of color come, into this State for permanent residence after this Constitution goes into operation; and all children born of slave mothers after the year eighteen hundred and seventy, shall be free - the males at the age of twenty- eight, and the females at the age of eighteen years; and the children of such females shall be free at birth.

Shall be separately submitted to the qualified voters of the proposed new State for their adoption or rejection; and if a majority of the votes cast for and against said additional section, are in favor of its adoption, shall be made a part of article of this Constitution, and not otherwise.

2. Resolved, That the Committee an the Schedule be, and they are hereby instructed to report the necessary provisions for carrying the foregoing resolutions into effect."

Mr. Battelle remarked that the Convention could take what ever action in reference to these resolutions they might think proper. If they chose to make them the order of the day for any fixed future day, as an individual he did not care; but he supposed there were some gentlemen who would wish to discuss this matter, and they might proceed a while at least in that discussion.

Mr. Sinsel moved to lay the resolutions on the table, and make them the order of the day for to-morrow at 10 o'clock in the morning.

MR. HALL of Marion. I move to amend the motion by moving to lay on the table.

MR. BATTELLE. I sincerely hope that this Convention will not. I hope that no such gag rule will be instituted here in this Convention.

MR. STUART of Doddridge. That question is not debatable.

MR. POWELL. On that question I ask the yeas and nays.

MR. VAN WINKLE. I understand that is a privileged motion, to lay on the table without day. That can be made without amendment.

THE PRESIDENT. It is a substitute and will be voted on as such.

MR. HALL of Marion. I design to make the motion merely to accomplish the object.

THE PRESIDENT. It will be regarded as a substitute.

On the motion to thus lay on the table indefinitely the vote resulted:

YEAS - Hall of Mason (President), Brown of Kanawha, Brumfield, Chapman, Carskadon, Dering, Dolly, Hall of Marion, Haymond, Harrison, Hubbs, Irvine, Lamb, Montague, McCutchen, Robinson, Ruffner, Sinsel, Stephenson of Clay, Stuart of Doddridge, Sheets, Smith, Van Winkle, and Warder - 24.

NAYS - Brown of Preston, Brooks, Battelle, Caldwell, Dille, Hervey, Hagar, Hoback, Lauck, Mahon, O'Brien, Parsons, Powell, Parker, Paxton, Pomeroy, Ryan, Simmons, Stevenson of Wood, Stewart of Wirt, Soper, Trainer and Wilson - 23.

So the resolutions were laid on the table.

*On motion of Mr. Van Winkle, the amended report of the Committee on County Organization was taken up on it second reading.

*See note Vol. II, page 219.

Following is the amended report, now taken up on second reading:

As Amended by the Convention.

1. Every county shall be divided into not less than three nor more than ten townships, laid off as compactly as practicable, having reference to natural boundaries, and containing as nearly as possible an equal number of inhabitants, but not less than four hundred. Each township shall be designated, "the Township of in the County of ", by which name it may sue and be sued.

2. The voters of each township, assembled in stated or special township meeting, shall transact all such business relating exclusively to their township as is herein, or may be by law, required or authorized. They shall annually elect one supervisor, one clerk of the township, one surveyor of roads for each precinct in their township, one overseer of the poor, and such other township officers as may be directed by law. They shall also, every four years elect one justice of the peace; and if the white population of their township exceeds twelve hundred in number, may elect an additional justice, and every two years as many constables as justices. The supervisor or in his absence a voter, chosen by those present, shall pre- side at all township meetings and elections, and the clerk shall act as clerk thereof.

3. The supervisors chosen in the townships of each county shall constitute a board, to be known as "the Supervisors of the County of ," by which name they may sue and be sued and make and use a common seal, and enact ordinances and by-laws. They shall meet statedly at least four times in each year at the court house of their county, and may hold special and adjourned meetings. At their first meeting after the annual township election, and whenever a vacancy may occur they shall elect one of their number president of the board, and appoint a clerk, who shall keep a journal of their proceedings and transact such other business pertaining to his office as may be by them or by law required, and whose compensation they shall fix by ordinance and pay from the county treasury.

4. The board of supervisors of each county, a majority of whom shall be a quorum, shall, under such general regulations as may be prescribed by law, have the superintendence and administration of the internal affairs and fiscal concerns of their county, including the establishment and regulation of roads, public landings, ferries and mills, the granting of ordinary and other licenses, and the laying, collecting and disbursement of the county levies; but all writs of ad quod damnum shall issue from the circuit courts. They shall from time to time appoint the places for holding elections in the several townships of their county, and shall be the judges of the election, qualification and return of their own members and of all county and township officers.

5. The voters of every county shall on the day appointed for electing members of the legislature, whenever it may be necessary, elect a sheriff, prosecuting attorney, surveyor of lands, recorder, one or more assessors, a superintendent of schools, and such other county officers as the legislature may from time to time direct or authorize; the duties of all of whom shall be prescribed and defined as far as practicable by general laws. All the said county officers shall hold their offices for two years, except the sheriff, whose term of office shall be four years. The same person shall not be elected sheriff for two consecutive full terms, nor shall any person who has acted as deputy of any sheriff be elected his successor, nor shall such sheriff act as the deputy of his successor; but the retiring sheriff shall finish all business remaining in his hands at the expiration of his term, for which purpose his commission and official bond shall continue in force, the duties of all the said officers shall be discharged by the incumbents thereof in person or under their superintendence. The recorder, in addition to the duties incident to the recording of deeds and other writings, the recording of inventories and other papers relating to estates; the registering of births, deaths and marriages, and the issuing of marriage licenses, shall have authority, under such regulations as may be prescribed by law, to receive proof of wills and admit them to probate, appoint and qualify personal representatives, guardians, committees and curators, to administer oaths, take acknowledgments of deeds and other writings, and relinquishment of dower.

6. The legislature shall, at their first session, by general laws, provide for carrying into effect, the foregoing provisions of this article. They shall also provide for commissioning such of the officers therein mentioned, as they may deem proper, and may require any class of them to give bond with security for the faithful discharge of the duties of their respective offices, and for accounting for and paying over as required by law, all money which may come to their hands by virtue thereof. They shall further provide for the compensation of the said officers by fees, or from the county treasury; for their removal, in case of misconduct, incompetency or neglect of duty; for filling vacancies, not herein provided for, and for the appointment, when necessary, of deputies and assistants, whose duties and responsibilities shall be prescribed and defined by general laws. When the compensation of an officer is paid from the county treasury, the amount shall be fixed by the board of supervisors, within limits to be ascertained by law; but -no reduction of the compensation of any officer shall take effect during the term for which he was elected.

7. The civil jurisdiction of a justice of the peace shall extend to actions of assumpsit, debt, detinue and trover, when the defendant resides, or, being a non-resident of the State, is found, or has effects or estate within his township or when the cause of action arose therein, and the amount claimed, exclusive of interest, does not exceed one hundred dollars; but a justice of any other township of the same county may issue a summons to the defendant to appear before the justice of the proper township, which may be served by a constable of either township. In case of a vacancy in the office of justice or constable in any township having but one, or of the disability to act of the incumbent, any other justice or constable of the same county may discharge any of the duties of their respective offices within said township. The manner of prosecuting the aforesaid actions and of issuing summonses and executions and of executing and making return of the same shall be prescribed by law, and the legislature may give to justices of the peace and constables such additional civil jurisdiction and powers within their respective townships as may be deemed expedient.

8. Every justice of the peace and constable shall be a conservator of the peace throughout his county, and have such jurisdiction in criminal cases therein as may be prescribed by law. Jurisdiction of all misdemeanors and breaches of the peace, punishable by fine not exceeding ten dollars, or by imprisonment for not more than thirty days, may be, by law, vested in justices of the peace. The board of supervisors shall designate one or more constables of their respective counties to serve process and levy executions when the sheriff thereof is a party defendant, in a suit instituted therein, or is under any other disability. But in all cases an appeal, writ of error, supersedeas, or certiorari shall lie from the judgment or proceedings of a justice of the peace, recorder, corporation or other inferior court, the circuit court of the county in which the case may be; excepting, however, judgments of justices of the peace in assumpsit, debt, detinue and trover, and for fines, where the amount does not exceed ten dollars; unless, in cases involving freedom or the validity of a law, or the right of a corporation or county to levy tolls or taxes.

9. Either party to a civil suit brought before a justice of the peace, where 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 be made by law cognizable by a single justice, when the penalty is imprisonment, or a fine exceeding five dollars, shall be entitled, if demanded, to a trial by six jurors, under such regulations as may be prescribed by law. The board of supervisors may alter the bounds of a township of their county, or erect new townships therein, with the consent of a majority of the voters of each township interested, assembled in stated township meeting, or in a meeting duly called for the purpose subject to the provisions of the first section of this article.

10. No new county shall be formed having an area of less than four hundred and fifty square miles. Nor shall a new county be formed if another county be thereby reduced below that area; or if any territory be thereby taken from a county containing less than four hundred and fifty square miles. And no new county shall be formed, containing a white population of less than four thousand. Nor shall a new county be formed if the white population of another county be thereby reduced below that number; or if any county containing less than four thousand white inhabitants be thereby reduced in area. But the legislature may, at any time, include any county containing less than four thousand white inhabitants within an adjoining county or counties as part thereof.

11. Nothing contained in this article shall impair or affect the charter of any municipal corporation, or restrict the power of the legislature to create or regulate such corporations."

*Mr. Harrison moved to amend the 25th and 26th lines by striking out the words "and enact ordinances and by-laws", which was disagreed to.

*See note Vol. II, page 219.

Mr. Dille moved to amend the 26th line by striking out the word "four," and inserting the word "two," which was rejected.

Mr. Brown of Kanawha, moved to amend the 26th line by striking out the word "ordinances" which motion was rejected.

On motion of Mr. Smith, the following words were added after the word "by-laws," in the 26th line: "not inconsistent with the laws of this State."

Mr. Sinsel moved to amend the 57th line by inserting after the word "sheriff," the words "and prosecuting attorney," which was rejected.

Mr. Stuart of Doddridge, moved to amend the 57th line by inserting after the word "sheriff" the words "and surveyor of lands," which was disagreed to.

Mr. Sinsel moved to strike out the 9th section, which being put was decided in the negative.

And, on motion of Mr. Lamb, the Convention adjourned.

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Chapter Eleven: First Constitutional Convention of West Virginia

A State of Convenience

West Virginia Archives and History