By James Henry Jacobs
From West Virginia History
Volume Seven, Number Four
July 1946
"Four wise men" claimed the state executive office when only one of them, whoever he might be, was legally "staked" to the office. The claimants were E. Willis Wilson, A. B. Fleming, Nathan Goff, and Robert S. Carr.
| The occurrences of March 4, 1889, were not "chance happenings." They were assertive, yet methodically planned for the peace and quiet of the state.328 West Virginians, with an eager but quiet tenseness, awaited inauguration day. There was no established legal precedent to determine who should become governor at the expiration of Wilson's term. It was plainly a case requiring new judgment and fitted to become precedent in itself. Toward the end of February, Wilson invited Goff, Cowden, and Walker to discuss inauguration day.329 Wilson "regarded it . . . his duty to hold the office in trust . . . until the contest was decided" and Goff "was determined to have his rights." It was agreed that both parties would abide by the decision of the Supreme Court.330 |  W. J. W. Cowden |
In several more days Carr was reported as preparing to become governor ex officio.331 As president of the senate, he was permitted by the constitution to hold the governorship under specified conditions when a seated or a new candidate failed to qualify for the office.332
Fleming was the fourth contender "to the throne." On March 4, he remained firmly attached to the background where he preferred to trust to the devices of the Contest Committee in pursuing his proposed election against the prima facie election of Goff.
When the assembly purposely avoided the gubernatorial issue, it appeared before the session's end that the Committee had not been able to unravel the contested votes within the two weeks following adjournment and preceding inauguration day.333 More depositions of illegal votes could be taken until March 10,334 the end of the forty days allowed for such action after the serving of the counter contest notice upon the original contestant.335 Feeling that enough evidence could not be properly gathered within that time to justify the contestants' positions the legislators extended the time limit for taking depositions until May 10.336
 E. Willis Wilson |
Events of March 4 read like a "blood and thunder" story of gold-rush days. Excepting for a few strangers in Charleston and also for the small groups which congregated on the streets late in the morning to discuss the pending inaugural drama, there was little else to denote that Wilson's exalted position would be shortly challenged.337 A rumor was heard by the Democrats in the capitol that Goff had an armed force, three or four hundred men who were ready to accompany him. Democrats were determined that Goff would not take the oath of office. Armed men were dispatched throughout the building, sixteen of whom were hidden directly in the governor's office vaults. Before entering the building "Goff counselled moderation on the part of his followers." Armed Democrats prevented many of the Goff followers from entering the building.338 It appeared that Goff might take oath under duress. |
Goff, Cowden, Captain Henry C. McWhorter, and some spectators entered the governor's reception hall. There the prima facie governor-elect accepted Wilson's courteous invitation to his office for a few moments. At high noon Goff mounted a chair in the crowded reception room and in an inaugural speech of defensive oratory flailed the means brought to prevent him 'from being declared governor.339
He declared the Democratic venture a "pre-arranged plan" by a legislative caucus and that "the Speaker of the house of delegates [sic], in obedience to his party, failed to perform his constitutional duty of 'opening and publishing the returns,' and declaring the person . . . elected who had received the highest number of votes for . . . Governor." Goff was administered the oath of office by McWhorter, and then with Cowden he marched into Wilson's office and there demanded possession of the property, and insignia of the gubernatorial office. As pre-ordained, Wilson refused, saying that since no declaration of office was made by the joint assembly "he believed it his duty to hold office" until a declaration would be made. Goff replied that the legislature's failure to declare who was elected did in no wise affect the election. He told that certified returns from every county in his possession proved his election by a plurality. In his suave and dignified manner he thanked Wilson for promising assistance to secure an early settlement in court.340
A few minutes later Carr went to the governor's office and A. D. MacCorkle administered to him the oath of office, whereupon he formally demanded Wilson's office. He quoted Article VII, Section 16 of the Constitution as his authority to office, applying the clause "failure to qualify" to Wilson, because his four year term by election ended on March 4. Wilson repeated the reasons he had given Goff for continuing in office.341
Goff's and Carr's inauguration brought two questions before the West Virginia Supreme Court of Appeals for settlement: Was Goff entitled to discharge gubernatorial duties? And if not, who should act as governor? Goff petitioned the Court for a mandamus writ to require Wilson to show why he should not surrender his office.342 The plaintiff's attorneys stated that the legislature's failure to declare Goff elected was non-effectual upon his right to office, and that Wilson's legitimate term ended March 4, 1889.343
Agreement was reached between the plaintiff and the respondent that the case should be decided purely upon the petition and Wilson's demurrer and motion to quash the petition.344 At the outset the Court conceded that Goff's title, if proved, could demand a mandamus writ.345
According to the Court's reviewal of the case, the joint assembly had to consider seriously whether it was duty-bound to declare a person governor before the contest was decided.346 A declaration might have resulted in a non-elected person's heading the executive office, but the contest decision was needed to determine the fact that election before the declaration could be made. A person had no legal right to office, the Court believed, before the determination of the fact of election.347
| It was decided that the case of Goff v. Wilson did not warrant adjudging the assembly's actions though it was written, favorably to Goff, that the law providing a declaration of a governor, based on the prima facie title to office, might have been intended to precede the contest.348 On the other hand, President Adam C. Snyder said the constitution's framers contemplated that the legislature would provide for the settling of a contest before March 4, and that it was scarcely feasible that they or the adopters ever contemplated a non-designated person's discharging the gubernatorial duties. "The . . . guarded provisions of the constitution . . . [and] its general policy forbid any such construction, unless there be no escape from it,"349 continued the justice. |  Adam Snyder |
The defective statute, wherein it failed to provide for a determination of a contest before the end of the incumbent's term, had only increased the joint assembly's dilemma. Joint assembly action allowing the election returns and certificates to be sifted by a contest committee without immediately naming an apparently elected governor was deemed, in the Court's decision, as not "unreasonable or unjust under the peculiar and embarrassing circumstances of the situation . . . "350
In this case the Court had to seek chiefly whether the assembly possessed "the constitutional right" to determine the election question. Furthermore, it had to decide whether the assembly had legal and inherent possession of discretion, when it chose the manner and the time for determining the question. Here, the Court wrote that mandamus could be invoked "to compel the decision of a discretionary question," but it could not be used to dictate, control, review, or correct the decision. It reasoned that the house speaker and the joint assembly were quasi-judicial, because they were looked upon as possessing discretionary power to determine false and contested certificates and to declare a person elected. Snyder said, "it is hardly possible to conceive of a public office, the duties of which do not require of the officer filling it the exercise of discretion."351
Since county election commissioners, acting as counting boards, used discretion to determine the genuineness of election certificates, Snyder held that it was equally reasonable and proper that the joint assembly should also determine the legality of certificates which determination "involves the exercise of a discretion . . . ," not controllable or reviewable by mandamus.352 The Court was powerless to issue the mandatory writ because the assembly had not failed to use its discretionary power.353
Goff had appended to his petition the House Journal containing the joint assembly's proceedings. From it Snyder easily deduced that the few county election certificates for governor considered by the assembly were insufficient proof of Goff's claim of 78,714 votes.354 The Court cited that it was not privileged to exercise the power of another department of government, that is to exercise the power to name or declare a new governor, when the power was expressly conferred upon the legislature.355 With this opinion it held that "declaration . . . [was] the only constitutional evidence of . . . [a candidate's] title to . . . office. '356 These matters were decided by the constitution's framers and by the people when they adopted the constitution.357 These opinions were responses to Goff's counsel, who had argued that their client was the holder of the highest number of votes, that a declaration of election was not necessary to qualify him as governor, and that the judiciary had power "by absolute necessity" for the people's rights to decree the next governor.358
On March 13, the day following Goff's failure to win his round in Court, Carr prayed for a mandamus writ, this one to compel Wilson to surrender his office to him.359 Carr used Section 1 of the constitutional Article VII, "in case of the death, conviction on impeachment, failure to qualify, resignation, or other disability of the Governor, the President of the Senate shall act as Governor until the vacancy is filled or the disability removed . . . ."360 He argued that Wilson's term had ended and claimed that since Goff had failed to qualify for office, as laid down by the court in Goff v. Wilson, he himself, was ex officio governor. 361
Wilson's authority was the clause which related that, "All officers elected or appointed under the constitution may, unless in cases herein otherwise provided for, be removed from office for official misconduct, incompetence, neglect of duty or gross immorality, in such manner as may be prescribed by general laws, and unless so removed they shall continue to discharge the duties of their respective offices until their successors are elected and qualified."362 Generally, Wilson's filed return was echoed in the Court's decision. He portrayed his stand relating to the proposed vacant office, Carr's right to act as governor, and the idea that the elected candidate for office was known.363
The Court looked upon the constitutional clause quoted by Wilson as a general rule and considered that it applied to the governorship unless deviated therefrom by an exception which would have to be strictly and concisely construed. Carr's authority was dubbed an exception which did, wherein it applied, remove the governor from under the general rule.364 Brannon rationalized that an exception had not arisen within the true meaning of the term "failure to qualify," and "other disability" to allow Carr to be ex officio governor, and that they could only apply if Goff had been declared governor and then failed to "qualify."365
The justice regarded the law stating the governor must be declared elected, and all other constitutional requirements as mandatory and indispensable.366 Using the case of People v. North, of the New York Court of Appeals, he determined that the declaration and certification of an officer were necessary to complete his election, and (quoting People v. Crissey, in the same court) that where the necessary declaration of an officer had not taken place as a qualifying factor the old incumbent "held over."367 The prerequisite declaration of governor dashed Carr's hopes to fragments because, the Court ruled, a predecessor must have been declared elected before he could legally fail to qualify.368
 Robert Carr |
Without a declared governor there existed a vacancy or "disability of the governor," argued the plaintiff's counsel. The clause used by Carr, here reiterated in abridged form, read, "In case of the death, . . . failure to qualify, . . . or other disability of the Governor, the President of the Senate shall act as Governor . . . ." The Court clearly imposed its opinion in certain terms that Carr misinterpreted the usage of the word "governor." The term was attached to one who could properly act as governor and Carr would have to fill an incumbent's place.369 The weak spot in Carr's argument was again that he would have to displace a predecessor who would have to be sitting in order to have a disability attached to him, but he himself had said that after March 4 the governorship was vacant. |
A governor suffering a disability, wrote Brannon, was not a person who was incompetent in the light of the "votes of the people and the authority selected to declare his election," but rather it was some disabling feature attached directly to him.370 Before the disability clause could apply to Carr to make him governor, the people and the legislature, it was said, must 'have first done all constitutionally required of them.371 A non-declaration was not, therefore, a disability as meant by the constitution. Brannon believed death, failure to qualify, etc., enumerated in the law used as Carr's authority would produce a vacancy.372
Wilson's authoritative source was respected as binding his continuance in office because, according to the Court, the clause relating to the president of the senate, provided for a different class of cases "where the election is complete, but [where] there is a vacancy caused by death or other fact, or a disability preventing his action."373
In order that he might be said to have a predecessor's place to fill, Carr contended that either Goff or Fleming was bound to have been elected in November, 1888. This opinion the Court considered was untenable, because it could not be legally proved and furthermore a tie might have been the result.374 Carr's case, for the purpose of deriving any benefit from the election, was a failure. Especial mention was made by the Court that Carr did not come within the exception to the general rule relating to the governor's "holding over." Under the general rule, Wilson was entitled to keep his seat until deposed by a qualified governor.375
The case of Goff v. Wilson decided Goff was not entitled to office, but that of Carr v. Wilson bore two answers. It invalidated Carr's title to office, and consequently safeguarded Wilson's.376
Considering the constitutional provision disallowing a governor to succeed himself immediately upon the completion of his term,377 Henry Brannon declared Wilson entitled to a prolonged term.378 His eligibility and qualifications for the previous four-year term, it was ruled, "tested" his competency and permitted him to "hold over."379 The precedent here established allows a governor to continue in office "in cases where the president of the senate [sic] can not act as governor . . . ."380
It is of more than passing interest to note that Justice Brannon spoke of Wilson continuing his old term, wording which might reflect a paradox in his mind. To be consistent why had he not spoken of Wilson's term, in this case, as a mere continuation of his official duties? No doubt this was his intent. Old term would seem to suggest that Brannon presumed Wilson's continued duties marked a new term, an implication which would probably have been disliked by the justice because it smacked of the unconstitutional. He may have been momentarily adrift from his mooring of cautious phraseology.
In the interim of the legislature's adjournment and these occurrences, supra, the Contest Committee made small progress in gathering evidence to be used by the assembly in deciding upon the person properly elected governor. And until his successor was qualified Wilson's position as governor ex officio was confirmed.
THE CONTEST COMMITTEE
| Working from the political pivot of the state, the capitol, the
Joint Contest Committee labored at length and with diligence. Under
state laws the Committee was composed of two sections: a minority
of two senators, who, in this case, were the Republicans Edwin
Maxwell and Presley W. Morris; and a majority of three delegates,
who were the Democrats Joseph Sprigg, William E. Lively, and
Chairman, William L. Kee.381
After it had convened several times in Charleston, from April 25 until May 8, for the primary purpose of hearing testimony, the Committee sought and culled legal evidence by visiting various parts of the state. It completed its hearings in mid-September. From then onward the time was consumed with the gigantic duty of compiling the results of its labors into a readable report.382 Governor Wilson was informed of its completion on December 18, 1889, and on that date issued a proclamation to convene the legislature in extra session. The call had as its foremost point the completion of the contest.383 |
 William E. Lively |
The Committee's objective was not to determine whether Fleming or Goff was elected, but rather to examine the evidence of the case, the county returns delivered to the speaker of the house, and, as a whole Committee, to decide specific voting cases. Only in the latter respect might the final result be influenced, but the objective to avoid settling the question was furthered by the joint assembly's judicial power to consider the entire case as it wished, and to pass opinion as it viewed it. The arguments and the evidence mentioned in the Committee's reports might be more readily termed factors in settling the contest.
Each contestant's motion to quash certain evidence of his opponent attracted the preliminary attention of the Committee. The causes of the motions varied, and the decisions might be cited as an index to the nature of the Committee, which felt a necessity to protect the bona fide voter.
Counsel for Goff, the contestee, failed to suppress, as wished, all Fleming's depositions taken after March 21, 1889, and to quash all his notices. This counsel stated that if Fleming's allegations were true they would not change the election to his favor nor render impossible the election's determination. Counsel for the contestant motioned to have Goff's notices quashed but made no mention of depositions.384
The Code provided that after the serving of Goff's counter notice forty days would be allowed for the parties to take depositions. The deadline was thus set for March 10. It was further provided that "in other respects . . . [than those provided] so far as . . . applicable" the statute relating to contested legislative seats would apply in a gubernatorial case. A point involved arose from the clause of that statute which, if new facts were discovered, permitted additional notices to be served without limitation to an adversary.
Without taking cognizance of the amount of evidence to be gathered, which was the legislature's reason for extending the time for taking depositions until May 10, Goff's counsel argued that the time for taking depositions expired on March 10. This stand was an affront to the joint assembly, and the question to be settled was whether that body had authority for its act.385
In its reasoning, based on authorities, the majority held that when the time or form of a statute did not appear essential to the judicial mind it could be regarded as directory rather than mandatory and that the proceedings, consequently, were valid. The joint assembly was considered a judicial body when determined by law to settle gubernatorial contests. The majority further held that the statute's command, when not strictly obeyed as to time and form, was not the essence of the thing required to be done. The legislature's time extension "as justice and fairness would require," and in which liberality even the contestee clothed himself, was described to be "a discretionary power."386
Denying that the time statute could be repealed, the minority reported that Fleming's counter notice and a supplemental notice of Goff "did not appear to be in time" after March 10. These had been served under a regulation of the statute applying to contested legislative seats by which additional notices were permitted any time after the discovery of new facts. The members, nevertheless, examined the notices which they termed "defective," and also examined all the depositions which they believed could not be considered by the legislature because they were not finished on or before March 10. They opposed the unlimited time provision by citing a West Virginia case where the court decided that additional notices must be given and depositions completely taken not more than forty days after the original return notice was delivered.387
The contestant's specifications against Goff relating to the vote cast in Bowyer's precinct, Putnam County, was quashed and a governing principle formulated. Here the election officials had changed the place of voting established by law. The majority did not consider this change of sufficient import to reject the votes cast due to "the absence of fraud or irregularity" and because the voters were not deceived nor "defeated of their right to vote" nor the election in the "precinct changed or affected thereby."388
This rule, in turn, was applied to and quashed Goff's specifications against Fleming relating to Austin precinct, Lewis County,389 Gilbert precinct, Logan County,390 the voting place of Dillion Church precinct, Mercer County,391 the voting place of Sandyville, Jackson County, and the voting place of, Curtis, Roane County.392
|
Because Goff had stated only the number of votes cast for Fleming in his specification relating to Austin precinct. Lewis County, a rule was declared necessary that whenever the validity of a poll is attacked the full extent must be shown to which the result of the election is affected.393 It was also used against Goff's specification touching Bluefield and Dillion Church precincts in Mercer County,394 and the voting place at Sandyville, Jackson County.395 Certainly if a precinct were declared illegal for one rival, it would be illegal for the other.396 The total votes of each would have to be fairly affected. |
The majority agreed with the opinion of Fleming's counsel to quash Goff's specification referring to the Laural voting precinct in Logan County, where it was alleged that the commissioners were not sworn and that the votes, consequently, should be rejected. Fleming's counsel based its opinion on the statute requiring election officials' oaths to appear on the poll books before any votes could be counted unless where it did not appear the court commissioners could be satisfied that it was taken before an official embarked upon his duties.397 This was considered "an unreasonable regulation," unconstitutional, and not authorized under Section 11, Article IV which reads:
The legislature shall prescribe the manner of conducting and making returns of elections, and of determining contested elections; and shall pass such laws as may be necessary and proper to prevent intimidation, disorder or violence at the polls, and corruption or fraud in voting, counting the vote, ascertaining or declaring the result, or fraud in any manner upon the ballot.
Resting on the idea that all provisions of the statute, where not prohibitory, are merely directory, the majority believed, when no harm resulted or fraud charged, that no votes were voided nor voters disfranchised because of negligent officers.398
After dealing at length with the Laural precinct, the majority accepted similar complaints of the contestant relating to Rock House precinct, Logan County, and the voting place of Missouri, Wayne County, and permitted their polls to be counted.399
Fleming's supplemental specification relating to Fields' Creek precinct, Kanawha County, where a commissioner allegedly had remained unsworn before receiving his trust, was quashed because the case was known before Fleming's original notice was prepared. The committee reaffirmed the rule that in West Virginia new facts learned after the service of the original notice, if not discovered with diligence, were to be in the additional notice.400 This rule aimed to prevent a party in a contested election from holding "back any substantial part of his contention either by defective pleading or failure to exercise diligence in discovering the grounds of the contest or of defense to same, until the time for taking evidence had substantially ended."401
Because of the absence of any allegation that Goff's second contest notice to Fleming contained new facts the majority held that the notice was defective and that it "should be quashed." His third notice attempted to amend the second, an amending act which the majority members thought was without authority through any West Virginia court or statute.402
Bluefield precinct, Mercer County, attracted momentary attention through Goff's specification that the prescribed publication of the establishment of a voting place there was unheeded. From the appearances of the complaint the majority reasoned that courts would not set aside an election unless it was clearly illegal. Since, in this case, no illegal voting had been ascertained, and since the count had been properly conducted, it was believed there was inference enough that the precinct had been properly established and that the election notice had been properly published.403
Against Fleming's quash motion Goff failed to maintain his specifications wherein was questioned the vote of the whole county of Greenbrier. No record had been made of the proceedings of the commissioners of the county court when they computed the poll and forwarded the certificate of election to the secretary of state. Records were not required, maintained the majority, the only necessary record being the election certificate, unless a recount of ballots were had.404
The minority members of the Committee made an effort to gratify the more optimistic citizens of the state and possibly to allay the pessimistic feeling that persisted that the election was influenced by systematic fraud. They exonerated the political parties and reported that there was a "total absence of either systematic fraud on the part of the voters, or any corruption of voters, by any candidate, politician, or any one else, either before, or at, the election. Both the contestant and the contestee and all their friends and adherents must be praised, and deserve praise for their pure and clean methods in election matters." It was further declared that if fraud were rampant it would have been "disclosed in the voluminous proof" in the case.405
One tends to sense, perhaps falsely, an effort in the reasoning of the minority, in its report, to eulogize the ballot box of 1888 in West Virginia. The report reads that the few illegal votes cast resulted "through misunderstanding and in debatable cases"; that the illegal votes intentionally cast were cast without any purport of affecting the general result, and that the proclivity of men to vote because they saw others voting was especially true of men of non-voting age. Judging from the evidence at hand, however, the minority discredited any idea of "systematic fraud" and said that, "The statement that the voters of West Virginia are purchaseable in great numbers is untrue, and deserving of the scorn of honest men."406
The similarity between the presidential contest of 1876 and the Fleming-Goff contest in West Virginia lay in the fact that men held to their political views yet remained unified in their allegiance to their government. In neither case was there civil strife, and in each case the legislative body automatically played its roll in the judicial manner provided.
In its report the minority expressed the opinion that the gubernatorial case was one of such magnitude that it involved more than the rights of two men; that it involved "issues vital to good government within the scope of which are the interests of the whole people of the State. "407
To ascertain the facts under the law, which the minority declared necessary, and to scrutinize the evidence, which it said had been done,408 the whole Committee agreed that, before a vote could be rejected, a party in a contest had to prove three points when charging that his opponent had received illegal votes. In short they were: (1) that the person charged with illegal voting voted; (2) that for some specified reason or reasons he was not entitled to vote; (3) that he voted for the opponent. These precepts applied to both parties in the case when specifications in each contest notice were adjudged.409
The majority, whose opinions in matters of policy held sway, took exception to the general rule that evidence in contested election cases should be treated the same as by courts for determining the truth of an ordinary fact. It preferred to relax adherence to the rule "when necessary, in order to reach the truth where justice might be defeated if the strict legal rules were applied."410 The minority members were more inclined toward a stricter interpretation of the rule.411
In view of the relaxation of the aforesaid general rule, the evidence permitted was divided into three divisions respectively, paralleling the three points which a party had to prove of an allegedly illegal voter. They were: (1) that poll books and oral testimony were permitted to prove that a person voted; and (2) that circumstantial evidence and the statement of the voter himself before or at election were acceptable to prove how an illegal voter voted. The majority felt, however, that a voter's statements or declarations "made so long after the election" could not be admitted as part of the res gestae. (3) To prove for which candidate the charged voter voted any facts and circumstances were declared competent, admissible, and sufficient unless refuted "by other competent proof."412
Here, the minority opined that direct evidence, rather than circumstantial evidence, should prove for whom a person's vote was cast. That it was not dogmatic in its opinion can be gleaned from its statement: "We are now of the opinion that this rule wisely administered is as fair as any, but there is great danger of the unjust use of it." It cautioned against using insufficient, flimsy, or unusual circumstantial proof in deciding for whom a voter voted. Though holding to the opinion that there is less latitude for abuse in requiring direct proof, the minority further showed a cooperative spirit in accepting the majority's view as to circumstantial evidence by writing that " . . . the wrong can not be in the use, but in the abuse of this rule. "413
Contest committees in this country did not insist that the same strict attitude prevail to obtain the best evidence as courts required. The minority held that the burden of proof of an assailed certificate or vote was on the party making the attack. In accepting evidence, it further contended that without factual support mere statements "that voters were non-residents, minors or paupers are only to be considered as expression of opinion" and that "the opinion of witnesses should not be admitted to determine the issue in a case."414
Now arose the problem of counting votes which had been rejected at the polls. According to the Committee, four points which had to be proved in such cases were: (1) that the person who voted was a legal and qualified voter where he offered to vote; (2) that he offered to vote or was prevented from voting; (3) that his vote was rejected; and (4) for whom his vote was offered.415
Ordinarily prima facie returns are accepted, but in a contest of this kind the Committee definitely decided that it was authorized by well established rules to ascertain their validity or invalidity.416 The minority, whether or not it meant to guard the prima facie returns for the Republicans, reiterated that the onus probandi was upon the assailant of a vote.417
A vote was considered legal where and when the election officials had presumed it to be legal and had complied with the laws in its reception.418 Here, the minority quoted the American and English Encyclopaedia of Law that when election officers had acted in this way the presumption of a vote's legality could not be "rebutted by proof of suspicious circumstances."419 In any case where illegal votes were cast but no charges were made, the election was not to be affected unless the number was "great enough to affect the general results."420 There seems to be no evidence that any votes were deducted which were not charged to be illegal.
The votes specified in the depositions were alleged to be contrary to one or more of five points of law in the constitution and state statutes. The points were concerned with residency in the state, county and/or district, the unsound mind, pauperism, conviction under felony, and the minor.421 National citizenship, or nationalization, was a sixth point which emitted from the charges that the Committee held to be a voting prerequisite.422 On this score several votes were voided.
Because of the diversity of opinion among text writers and courts, perhaps, the most vexing problem for the Committee to clarify was that of residence or domicile, both terms used interchangeably.423 After a lengthy discussion, four principles "held to be so well established . . . as to be axiomatic" were gathered.424 They pointed out (1) that every person must have a domicile, (2) that no person can at the same time have more than one domicile, (3) that every person who is sui juris and capable of controlling his personal movements may change his domicile at pleasure, and (4) that a change of domicile is a question of act and intention.425 To help determine a voter's place of residence these maxims were used with the known facts.
Non-residency of a voter, that is not being a bona fide resident of the district, of the county for sixty days, nor/and of the State for one year, caused the greatest number of challenged votes.426
Regardless of the period of one's residing in a place, the Committee, to determine a legal domicile, judged that the fact of residence had to be accompanied by an intention "of making the place a home . . . ."427 The intention was accepted as evidence of domicile when it was based on facts and circumstances, rather than on a mere declaration.428 The minority's opinion accentuated the argument on intention when it held that the shortness of residence, when accompanied by an intention, "did not defeat the acquisition of a legal residence . . . ."429 Of course this idea did not abrogate the time requirement for voting. The minority also felt that voting was evidence "of the voter's intention to claim a domicile at the place of voting."430 The strength of the Joint Committee's position on residence evolved upon "the intent of the person . . ." which criterion applied to cases as a true test of domicile.431
Several votes were rejected because of a failure to comply with the statute which mandated a voter to be a bona fide citizen of the district in which he voted. In this regard, the majority pointed out that the requirement was "a reasonable regulation of the constitutional right of suffrage . . ." rather than an added voting qualification and was, therefore, constitutional.432
Another statute of some consequence in the election contest prohibited an employee of an incorporated company or of the state from voting simply because he was employed in a different county or district than his own.433 An example will serve to illustrate a case affected by this regulation. Goff lost the vote of one James Powers, who was believed by the majority to have possessed a legal home in Marion County, while he had voted at Latrobe House, Marshall County, near where he had been employed by the Baltimore and Ohio Railroad for three months. Though the minority felt differently, the majority may have ascertained that the facts in this case had not borne out an intention of residence in Marshall County and in a definite district.434
Persons of "unsound mind," as specified in the constitution, the Committee said also included idiots and lunatics, as in common law, all of whom were held to be non- suffragists. When the assailant, by evidence, proved a case to come under this limitation, the vote was rejected.435
Some cases presented knotty or technical questions on degrees of mentality. The minority made the significant statement that the law was distinct but its application rendered a conclusion difficult because of the diverse statements of witnesses who knew an accused voter.436
If a man were of "unsound mind," incidentally continued the minority members, he could not have become the partisan of any candidate. Their belief implied that a vote could not be rejected because the accused voter had no politics, and the rule of evidence to presume for whom he voted did not apply.437 In other words, in such a case, it could not be known for which candidate a vote should be deducted. Nevertheless, a number of cases warrant the conclusion that the Committee accepted evidence on partisan affiliations. Among these there were several cases in which the minority unanimously concurred with the majority in rejecting votes. Some of these voters were considered Democrats and some Republicans.438
At least votes were not rejected if a voter had enough intelligence to comprehend the more "ordinary affairs" of his life, could care for his property, perform "ordinary labor," use and value money, do his own trading, make "his own bargains, though vacillating [sic] and easily persuaded, or laboring under some hallucination or illusion, which . . . [did] not extend to political affairs, or incapacitate him for business . . ." and if he understood for which candidate and/or party he voted.439 In these cases he was not of "unsound mind" within the meaning of the law applying to suffrage.
Quite a few cases were cited by both Fleming and Goff in which the voter was alleged to be a pauper. Both groups of the Committee concurred in the opinion that, under the meaning of a statute and the constitution, a pauper was a financial unfortunate who received public aid provided by law.440 If he were independent of aid at election time his vote was counted. The person claiming the benefit of the vote bore the burden of proving that the voter was not a pauper.441 The minority further felt that the case of a man or his family partially assisted by the county was one which did not necessarily fall into the pauper category. Actually, cases of this nature were decided by their "own particular facts."442
Another class of voters alleged to be prohibited from voting because they were, to quote the constitution, "under conviction of treason, felony, or bribery in an election" evoked considerable discussion. The majority members opined that a conviction in these cases was a voting disability which could be obliterated only by a governor's pardon. They held that if "conviction" ended with the "punishment" the meanings of the two terms as intended were being confused or confounded, and that punishment was merely a consequence of conviction. On these grounds the majority members by power of numbers were able to reject every vote in this class except in cases of an executive pardon.443
The senators of the Committee believed that, after a man had paid the prescribed penalty for a crime, it was absurd and unreasonable to deny his right of suffrage. They held that the provision was meant solely for interned prisoners, selected by a partisan prison official, who would allow those to vote whom he chose by transporting them to the polls. These Committee members interpreting the constitutional phrase "under conviction" placed emphasis on the word "under." They found it difficult to comprehend "how any one who has passed from under a thing, conviction, punishment or whatever it may be, is still under it."444
As to the condition of the terms minors and national citizenship there was agreement within the Joint Contest Committee. When the evidence proved an alleged voter to be under 21 years of age, thus a minor, his vote was deducted from the total of the person for whom he voted 445 which deduction was made, of course, in all cases where a vote was rejected.
Of the 15,000 pages of manuscript depositions examined by the Contest Committee 446 the testimony taken by Fleming's counsel relating to Mercer and McDowell Counties, usually under the scrutiny and frequent cross-examination of Goff's counsel, was deemed most difficult to arrange systematically. They were perhaps the most pivotal counties in the contest and deserve special consideration. Though these counties, like the other counties, were discussed separately, Fleming's deposition relating to these two were appended to the majority report.447 Probably this testimony, rather than some other, was intended to influence the legislature and to bolster Fleming's charges of illegal voting.
The proximity of Mercer and McDowell Counties to Virginia, the influence of the Norfolk and Western Railroad (the only road in the area) and the recent growth of collieries were set forth by the majority as causes of the increase in population of these two counties. The laborers were predominantly Negro, mostly from Virginia. With two exceptions, one proved, they were alleged by witnesses to be Republicans. Elkhorn district's most remote precinct, in McDowell County, via the railroad was shown to be within seven miles of the old Dominion line.448
The depositions relating to Mercer and McDowell Counties had been taken intermittently from March 25 through May 7, at places within those counties, and a few were taken within Page and Tazewell Counties in Virginia. Fleming's counsel, at times, in these two counties was St. Clair, C. W. Smith, or John A. Douglass. Here Goff was represented by Edgar P. Rucker, J. W. Hale, or Charles P. Latham.449
Witnesses, some of whom were Negro miners,450 indicated the resident status of others and sometimes of themselves. Among the many 451 were mine workers,452 foremen and bosses,453 railroaders,454 and precinct election commissioners.455 Others who testified were operators,456 and officers of coal companies,457 but the most important, in view of the contest, were the payroll clerks,458 and the bookkeepers.459
For the year preceding the election, the payroll clerks, and bookkeepers, by request, compared their companies' lists of workers with the persons charged by Fleming to have voted illegally. From them they filed, with their depositions, duplicated names of present and former employees, naming the months each worked.
Of fifteen companies represented those giving lists were: John Cooper and Company, Booth, Bowen Coal and Coke, Caswell Creek Coal and Coke, Goodwill Coal and Coke, and Buckeye Coal and Coke Company, all of Mercer County; Turkey Gap Coal and Coke, Houston Coal and Coke, Elkhorn Coal and Coke, Crozier Coal and Coke, Norfolk Coal and Coke, Powhatan Coal and Coke, and the Shamokin Coal and Coke Company, all of McDowell County; and the Southwest Improvement Company of Pocahontas, Virginia.460 Pocahontas was reputed to be largely Negro and located only about two miles from Mill Creek and about one and one-half miles within the Virginia border.461
The poll lists where the alleged illegal voting took place completed Fleming's information concerning Mercer and McDowell Counties. These were from Mill Creek, Simmons Creek, Honaker's Mill, in Rock district; from Cross Roads in Beaver Pond district, in Mercer County; from Maybeury and Perry Bottoms in Elkhorn district, and from Board Camp precinct in Big Creek district in McDowell County.462
The bookkeepers and payroll clerks were further examined for other bits of information which may have helped test any of the illegal voting charges and especially to help determine the residence of voters.463 In Mercer County, of six collieries operating at election time, the first was established in 1883 and the last in the summer of 1888. Two coal companies, of seven in Elkhorn district in McDowell County, were being developed at election time; and in the others, the majority reported, few men were employed until August 1888, when coal was transported on the railroad then completed from Mill Creek in Mercer County.464
| Fleming's bill of particulars for the two counties declared certain votes void because of non-residency. Had he charged deliberate fraud, undue persuasion, importation of voters, or some other impropriety he would have been frowned upon by the minority members of the Joint Committee, who approved his position by affirming that none of these acts was committed at the election. No cases before the Committee proved that Goff or the Republicans unethically influenced a vote. Fleming's strongest claim was said to be that non-residents had voted without solicitation.465 Perhaps the majority, which remained silent here, preferred to substantiate the non-resident claims. Certainly Fleming proved himself wise in limiting his claims to non-residency, because of the apparent accessibility of confirmation. |  Aretas Brooks Fleming |
Coal barons were responsible for bringing the bulk of Negro laborers into Mercer and McDowell Counties. Unorganized labor, combined with a natural coal bin, afforded golden opportunities for a capitalist or any exploiter. The unschooled Negro, and often his white counterpart, fitted into the economic drama being written in Mercer and McDowell Counties.
Negro partisanship, descending from Carpetbagger Radicals, and, with one exception, mine owners were reputed to be Republicans.466 At least the Negro's presence at pre-election Republican meetings, in Mercer and McDowell Counties marked a partisan curiosity. The minority members protested, however, against witness' opinions, in depositions, that the Negro was Republican because some of them had applauded at a political meeting. This idea they considered a generalization, especially since the Negroes could not be specifically identified.467 In truth, such may have been generalizing, though evidence when general and specific too often coincided to dismiss the idea of the "generalization."
Opposing the majority, the minority members deplored accepting the evidence which was rendered in Mercer and McDowell County depositions to determine men's origins and political affiliations. The evidence was considered to be general, inconclusive, garbled, and based on guarded expressions of witnesses. They strongly urged that such evidence should not be accepted, holding that it was "highly improper and unjust" to deduct votes from the contestee "on the evidence of a few men" and pointing to the "general political reputation of a mass of unrecognized, unidentified persons."468
Before the day of the colliery, the whole Committee agreed that there were few Negroes in Mercer or McDowell Counties.469 Census reports for both counties gave 369 Negroes in 1880 and 3,613 in 1890. The white increase, though comparably less than the Negro increase, had soared higher in each of these counties than in any other county in the state, except Cabell and Fayette Counties.470 To interpret the picture more clearly, one might consider the majority report. It claimed two-thirds of the laborers employed in the collieries to be Negro, the implication being that many of them were newly arrived and, consequently, had a suspicious legal domicile.471
The majority considered the Negro to have been a migratory people "coming and going all the time," along the Virginia-West Virginia border, with no intention of accepting permanent employment.472 This was an effort to prove them to have no political residence. The minority members, rejecting the idea, believed that men's failure to work regularly did not affect their domicile and further cited authorities who wrote that "the habits of [all] our people are migratory" but that they still had "true homes and political domiciles." They indicated, thus, that one always has a legal residence some place.473
However correct the minority may have been, the majority believed that for voting purposes one had to meet the resident time requirements. The minority did not mean to deny this requirement, but it implied that one need not to have remained continuously in the state for one year, in the light of his intention to be a citizen.474
The minority complained that Negroes could have come from within the state, perhaps from the large Negro population of Jefferson or Kanawha County, rather than from Pocahontas, or elsewhere in Virginia;475 and that many could have met the citizenship requirement a year before the election, certainly as early as 1883, when the first colliery was established.476 The number that had may never be known.
The minority furthermore maintained that the fact that a person's name did not appear on a company payroll was insufficient proof that he was a non-resident of the state. They pointed out that a man might have resided within one state border, for example Mill Creek in Mercer County, and worked in another, as in Virginia. A duplication of names likewise caused the majority to reject votes.477 These were found on West Virginia payrolls and compared with the payroll of the Southwest Virginia Improvement Company or with the voters' registration book of Clear Fork district, Tazewell County, Virginia.478 The minority held that a person whose name had been duplicated in Virginia should not have his vote rejected until it was absolutely proved that he had been registered twice. A duplication of names, they insisted, was a common occurrence among the Negro, one manufactory having been compelled thereby to designate certain employees with numbers.479
Most affected by the majority's deduction of votes for non-residency were Negro Republicans. In all, from Mill Creek, Simmons Creek, Cross Roads, and Oakvale precincts in Mercer County and Perry Bottoms and Maybeury precincts in McDowell County, Goff lost 204 votes and Fleming lost six. On 190 of the rejected Goff votes, the minority failed to concur.480
After the Committee had coped with the difficult situations in Mercer and McDowell Counties, they had yet to solve many problems in regard to the voting in the important counties of Kanawha, Braxton, Ohio, and Brooke.
In Kanawha County the certificate for governor, certified to the secretary of state, was based upon the recount, except for Alum Creek, St. Albans, Charleston, Lewiston, and Coalburg precincts. For the first three precincts the original returns were counted. The last were entirely ignored because the commissioners there had not taken oath before entering upon their duties.481 Complying with its primary regulation on unsworn commissioners, the Committee counted these two precincts.482
The original certificate gave Fleming 3,082 votes and Goff 4,601.483 The majority blamed the court commissioners' bias for causing the certificate to be signed without due evidence.484
Kanawha County Circuit Court annulled the original certificate and referred the election to the Joint Committee for decision, after Fleming obtained a writ of certiorari and supersedeas, affirmed by the Supreme Court, to review the recount.485 The minority held that the subject matter lay within the jurisdiction of the legislature and not within the Jurisdiction of the courts.486
Upon investigation, the Committee found that all the original counts in Kanawha gave Fleming 3,283 votes and Goff 4,794 and all the recount results gave Fleming 3,296 and Goff 4,779. 487 Twenty-two votes rejected from the recount total gave the result tabulated: for Fleming 3,295 votes and for Goff 4,758. 488
In Braxton County a district line had been changed in 1874. Goff, on the belief that the change was illegal, contested thirty-seven Democratic votes. These were of voters who lived in the area that had been transferred from Otter district to Holly district.489 Fleming submitted evidence from the county court showing the order of the justices of peace changing the Otter-Holly line, and an order of the justices, in 1875, defining the Holly voting district.490
The majority members, quoting the law, had credence in the legality of the change, and, thus, in the validity of the votes cast in the disputed area. Consequently, the judgment of the county court ordering the change was not impeached. Lest they err in their opinion they qualified it by declaring that the changed line was based, at least, on "the color of a legal order and the voter . . . [was] not to be disfranchised because the court did not properly act, if that were the case." They reiterated that one entitled to vote should not be deprived of his privilege by actions of authorities.491
The minority backed Goff's contention that the justice might have acted without jurisdiction due to the fact that no evidence could be found of a court order, a primary requirement in the law, calling the justices to consider changing the district line. But because of the doubt in the case they did recommend, though the contestant or contestee might win through rejected votes, that the votes be counted on the ground that innocent voters were confused as to their voting precinct.492
For Ohio County no evidence of district lines could be found in the offices of the secretary of state or the clerk of the county court. If ever there were any records, which the law required, apparently they had been insecurely guarded or preserved. Nonetheless, the minority applied to the Ohio County question a view similar to that used in Braxton County. It was acceptable to the majority, which wrote no special report about Ohio County. The minority members may have felt a need to mention the question, perhaps for consistency's sake, or wished to show an impartial attitude. Too, the majority may have wished the minority to recite the case.
Had the minority members not upheld the thirty-five Democratic votes, which Goff opposed, certainly the majority, stronger by one vote, would have won a decision. The minority refused to reject these votes, for they claimed proof of districts was essential before votes could be rejected.493
Seventy votes in Wellsburg and Cross Creek districts in Brooke County were disputed by Fleming.494 The corporate limits of Wellsburg were conterminous with the district of Wellsburg until, as the minority claimed, they were extended in 1877 by the circuit court.495 Because of the absence of a record, the majority members refused to consider the extension. They said, furthermore, that if the circuit court had changed the town boundary it had no authority to go beyond the law and, thus, infringe upon the jurisdiction belonging to the justices of peace. According to the constitution only the justices of peace were allowed to change the magisterial voting districts.496
To muster strength the minority cited instances recognizing the alleged new district lines. The foremost instance, which was cited, took place on August 13, 1878, when the county court conceded the change by ordering a new voting place for Cross Creek district. This it did because the former voting place was located in the area supposedly included in the Wellsburg district.497 Nonetheless, in this affected area Fleming won the day.498
The facts in the Ohio and Braxton County cases were more obscure than in Brooke County, for the justices alone had authority to change the voting districts, there was no record. The circuit court was empowered to change only the town line of Wellsburg.499 Through the majority's eye these facts nullified the votes; but the minority members, also with valid arguments, said that the voters polled at the only place available, and where they had voted for ten years. They preferred adherence to the legal maxim, "when a vote has been received . . . by officers who have complied with the law in its reception, the law will presume that the vote is legal."500
Willingly the minority members referred to the majority's decision in Braxton County. They claimed that an irregular order in Brooke County ought to be sufficient to change a district line if an irregular order, as they termed it, were sufficient in Braxton County. They quoted verbatim the majority's declaration (Braxton County) that the change had the color of legality and that authorities' actions could not deprive one of his voting right.501
The problems arising from Mercer, McDowell, Kanawha, Braxton, Ohio, and Brooke Counties required more committee work than those from elsewhere. Problems from other counties were ephemeral in comparison, though collectively the individual votes treated in them, mostly through the majority, aided in voiding enough Republican and Democratic votes to give Fleming a lead of 237 votes. Only thirteen of the 54 counties remained unscathed by the charges and by committee work.
A tabulation by the Democratic majority counted 78,697 votes for Fleming and 78,460 for Goff; and on the strength of these, the majority reported that Fleming had been the candidate elected.502 Holding to its views, the minority accredited Goff with 78,792 votes and Fleming with 78,652, an insecure but true lead of 140 votes for Goff, and recommended that "Goff be placed in the possession of the . . . office until the . . . contest . . . be disposed of."503
Even though they may have endeavored to interpret problems unbiasedly the political leanings of both Republican and Democratic members of the Joint Committee are apparent in their reports. It is difficult to say that the Committee, chained to politics, can be credited with solving the contest, for the facts were often too controversial for settlement. Its greatest achievement was the gathering of evidence and calling it to effect conclusions. The legislature received the fruits of the work.
THE DECISION
Governor Wilson's message of December 18, 1889, calling an extra session of the legislature to consider primarily the settling of the gubernatorial contest,504 brought about a renewal of faith among the Democrats and Republicans in the right of their respective views. This renascence of feeling followed the many dismal months of waiting for the time when the election of 1888 would be settled.
As a judicial body, the joint session of the legislature met for the first time on Thursday, January 16, 1890, to try the case of Fleming vs. Goff.505 Astute representatives of political circles and the people were drawn together to name West Virginia's new governor. We are told by a Republican journal that Fleming's success was generally conceded, though some of his friends remained doubtful of it.506 The Democrats who had apprehensions realized the extremely close partisan alignment between Fleming and Goff men in the joint session.507
 Okey Johnson |
Roger P. Chew, Alexander C. Moore, and John M. Sydenstricker of the house, and George E. Price and Presley W. Morris of the senate were appointed a committee on rules to determine regulations for the government of the joint session.508 The legislature accepted the five rules presented on January 20 and 21 by the committee chairman, Mr. Price; and at 11 o'clock on the morning of January 22 the struggle began.509 Okey Johnson, as counsel for Fleming, opened the debate, and, following the Goff argument, St. Clair concluded it within the five hours allowed the contestant for the closing round. William P. Hubbard argued for Goff and was followed by Goff in his own behalf.510 |
While the committee on rules was convening, Hubbard approached it and suggested that Fleming be invited to argue his case.511 This wedge, of course, could be interpreted as an effort to obtain a hearing for Goff, who realized his oratorical capabilities. Contrariwise, though Fleming was a good and earnest persuader, he was not a Cicero, nor did he possess any of Goff's captivating flash.512 Answering Hubbard's suggestion, which had reached him through the papers, Fleming discreetly wrote to St. Clair from Fairmont that he had confidence in the ability of his counsel, and that "it would be out of place, indelicate and presumptuous, for the parties to appear . . . in the attitude of counsel." Though Democrats were divided on the proposition of allowing Goff to speak, Fleming at the same time made it clear that he did not object to Goff's arguing his own case, if the joint assembly were willing.513
Consequently, among the rules presented to the joint session, there was one which permitted either the contestant and/or the contestee to appear within the time allowed for each counsel's argument.514 Fleming kept his word not to appear before the bar for himself. Throughout the proceedings he could often be found among his Democratic friends within the rear of the assembly chamber.515 Goff and his counsel sat near the bench, and when Hubbard finished the contestee's opening argument, his client, despite Democratic chiding, rose and availed himself of the opportunity to speak. His utterances brought a gusto of plaudits from admirers and derision from his opponents.516
Under the rules the majority and minority of the Contest Committee were each permitted six hours "to discuss the matters involved in the case," with the chairman having the right to conclude the discussion.517 Sprigg spoke for the majority, and Maxwell and Morris divided the minority time between themselves and addressed the assemblage. Under the accepted rules, committee members could yield some of their time to members of the legislature. As a result, Samuel L. Flournoy and Price each expostulated the Democratic view for one-half hour through the courtesy of Chairman Kee, who followed them.518
Rabid partisanship formed the core of all these harangues. They dealt with sundry matters in the Contest Committee's reports and frequently dwelt on isolated voting instances, according to speakers' views. Various arguments, some questionable, and the Supreme Court cases were used as battering-rams in the verbal melee. As he saw them, each speaker gave his rendition of the wrongs in the case, and drove them against the opponent. In newspapers, the defense speeches and those of the Contest Committee and of the two legislators who spoke were denounced and eulogized along party lines. Regardless, considered together the speeches themselves are imponderable.519
Democratic arguments declaimed their position and their right to protect themselves from being fraudulently deprived of the state's most influential office. Republicans derided the 46-45 vote of the 1889 legislature not to declare which candidate was elected until the illegal voting charges were probed. They declared that the prima facie returns should have been given first consideration, and that no systematic fraud existed at the election. Before his listeners Goff himself said that the case was not a "personal controversy" but one of the people who elected him. He further declared that trainloads of voters were not brought into the state in Mercer and McDowell Counties, and that no colonizers were brought into those areas for voting purposes.520 .
The statement that there was no systematic fraud was apparently true. If one wishes to call votes fraudulent on the grounds of non-residency, minority, pauperism, insanity, conviction for felony, and/or non-citizenship then the term applies. Here a distinction ought to be drawn between illegal votes and votes cast fraudulently, that is, influenced by undue means. No evidence at hand, however, supported the charges of systematic fraud or vote buying.
An isolated incident in the speeches exhibits the strategy used by each side to enforce its views on the audience. This instance refers to poll lists. In their arguments Hubbard, and on the following day, Goff had accused the majority of the Contest Committee with the responsibility of having rejected Goff votes in Mercer and McDowell Counties, when the voters' names were not in the poll lists. A like imputation had been made, according to Kee, chairman of the Contest Committee, when Hubbard, the day preceding his speech, had been permitted to eye the poll lists printed in the majority report. Kee was amazed, because Hubbard was sustained by the majority report.521
The Democrats, after an investigation, said that Goff had in his hands the original poll lists when he made the charge and implied that Hubbard knew of them, for, they said, it was he who gave them to Goff. St. Clair said Hubbard possessed the original lists for twenty-four hours before making his speech. When the original lists were returned to Kee after Goff's tirade, Kee therein discovered the names of all the rejected voters. The majority had simply erred in copying the lists into its report.
St. Clair said both Hubbard and Goff based their argument on a "false and deceitful assumption."522 Before the assembly Goff chided St. Clair for remaining silent when he publicly asked for certification of the lists and the case as he had painted it. St. Clair explained that he remained reticent because he did not propose to help Goff's argument.523
On Friday, January 31, the last argument was made by Kee as chairman of the Contest Committee. Immediately thereafter he resolved, in compliance with an accepted regulation reported two days previously by the majority of the committee on rules, that, because of the evidence and the reports, Fleming be "declared to have been duly elected . . . . " Price, however, apparently, because of the late afternoon hour, moved for the adjournment until the next day, Saturday, which motion was sustained by the body.524
| Another anticipated moment in the contest was due to arrive but
not without an obstruction. The Wheeling Register reported that
there was a Republican effort to search for an "honest man" whose
vote could be bought.525 William A. MacCorkle in his
Recollections of Fifty Years, tells us that two necessary
votes were unpredictable.526 What transpired on the next
day may have been a threat of the Democrats to keep party weaklings
in line. It is possible, however, that the evidence found in the
House Journal and newspapers is representative of the facts.
Nonetheless, just as the resolution declaring Fleming elected was about to be considered, delegate David M. Harr of Marion County, arose to a question of privilege and sent a manuscript to the clerk's desk to be read.527 A stillness cloaked the joint session during the reading of the paper. In it Harr related a story of bribery which, with any other discovery of an attempt to influence voters improperly, a committee was appointed to investigate and report to the joint session. The committee men were Price, Nathan B. Scott, David W. Shaw, Alexander C. Moore, and Roger P. Chew.528 |
 Nathan B. Scott |
 David M. Harr |
According to Harr's story, A. R. Stollings, engrossing clerk of
the senate, sent for Harr while he was in the Opera House Friday
evening and offered him $1800.00, if he would vote for Goff. He
also promised Harr the mine inspectorship of the first mining
district of the state, if Goff were elected. Harr pretended that he
wanted the money before voting and refused even to agree to vote
for Goff, unless he received one-half the amount offered. Stollings
preferred to wait until the morning and after consulting friends
would pay $900.00, in which case Harr agreed that he would vote for
Goff.529
In his statement Harr clearly stated his adherence to Fleming's cause. To explain his position and objective, Harr further wrote, "in view of the fact that there has been so much said by . . . Goff and his friends . . . that there was no fraud in the election . . . I regarded it my duty to listen to the corrupt propositions of this Republican official, to which I have referred, and to expose the same to this Joint Assembly."530 |
Among the many remarks Morris considered the affair a plot to discredit Goff and wanted the joint session to continue its work before making an investigation. Alexander R. Campbell insinuated that "the communication was only a Democratic move to gain time." On the other hand, Kee in his speech, tried to implicate W. J. W. Cowden, chairman of the state Republican executive committee, in political improprieties and Price made the motion establishing the investigating committee.531
| In the interim, a Democratic effort to win the contest got under way two days before the final voting was expected and the Harr charges were made. From the time that MacCorkle had, of his own volition, instituted Fleming's recount in Kanawha County he had been left out of the contest proceedings and, as he said, "had been dismissed summarily." He blamed Henry S. Walker for his "undoing." On Thursday, Walker had entered MacCorkle's office and asked him to overlook his personal feelings for the sake of his political tradition and because the Democratic vote was narrowed down to two persons. One, he said, could be influenced only by MacCorkle.532 |  Henry S. Walker |
Walker explained that it was understood that Senator Azel Ford of Raleigh County was not satisfied with the majority testimony and intended to support Goff. He said Ford was interested with a J. C. Bullett, a Democrat in Philadelphia, "in some very large interests" of the Norfolk and Western Railroad. It was believed that Bullett could influence Ford. MacCorkle left immediately to see his old college mate, Josh C. Bullett.533
 William A. MacCorkle |
At ten o'clock Friday morning MacCorkle arrived in
Philadelphia, and was amazed by Walker's mistake which he
discovered when Mrs. Bullett, in the office, introduced him to
Bullett. The man explained that he was L. C. Bullett, a cousin of
Josh C. Bullett. MacCorkle was perplexed and, as an only course,
boldly explained his mission. Bullett was not disposed to interfere
and practically dismissed the conversation, when Mrs. Bullett
intervened.534
MacCorkle was encouraged, when Mrs. Bullett explained to her husband that she was a southern Democrat and that she knew MacCorkle's people in Virginia. She felt that MacCorkle should be heard and suggested that Bullett go to West Virginia with MacCorkle. The three parties arrived at the Charleston station Saturday morning at twelve o'clock, and were met by Walker who told that Ford had freely expressed himself for Goff.535 Immediately after Harr's charges and the partisan discussion relating thereto, they all arrived at the capitol in a swiftly moving carriage. |
Maxwell had just offered a substitute resolution for the one declaring Fleming governor. The substitute declared Goff duly elected, but before it could be finally considered Bullett and his wife walked over to Ford, amidst the intense excitement. Mexico Van Pelt craftily moved for an adjournment until Tuesday morning, which motion, against Republican wishes, carried by a 46-40 vote, leaving the investigating committee time in which to work and also allowing enough time for Bullett to convince Ford of a need of voting for Fleming.536
| Since partisanship was paramount on both sides, Fleming
probably would have been elected, at this time, by a vote of 44 to
42. The Democrats must have felt, however, that they could not take
a chance to lose, or that they should not risk a break in their
political solidarity. This 44-42 conjecture gives the Republicans
the votes of Ford and the other Democrat, Lindsey Merrill, delegate
of Wirt County, whom Walker had mentioned to MacCorkle. Carr, the
labor man and presiding officer of the joint session, is computed
among the 44. It was during the elapsing period between Saturday
and Tuesday that both these Democrats who had wandered from the
fold were brought within the political confines of their
party.537
During the reading of Harr's paper, Goff sat amidst his Republican friends. When the assembly was almost clear Goff and Hubbard approached Stollings in the rear of the chamber, where he had stood throughout the making of the charge against him. It appeared that they questioned and advised Stollings.538 |
 Lindsey Merrill |
At the investigation, in the room of the senate committee on the judiciary, held privately against Hubbard's wish, those concerned appeared. Stollings was accompanied by his counsel Wesley Mollahan and Henry C. McWhorter; Harr was accompanied by St. Clair. At great length Harr testified, and was cross-examined until the adjournment. His testimony was substantially the. same his charges, except that he described a previous effort Stollings to bribe him. Harr made it clear that the incidental reference in his notice to the joint assembly stating that he had seen the money, was a misunderstanding on the part of St. Clair who prepared the writing.539
After a Sunday of high speculation on political matters in Charleston,540 the investigating committee resumed its searching. Among several witnesses the most important to the case were Henry Cunningham, state mine inspector, Stollings, Carr, and Goff. Cunningham said that he was told by Stollings that $1200.00 might be secured to influence votes for Goff, that Goff could be seated, and that Harr was the weakest member in the house of delegates. He said, however, that he had had no conversation with Stollings "to bribe Harr." In regard to an interview he had had with Goff, Cunningham denied ever offering him the mine inspectorship, meaning of course, as a gift for someone.541
 Adam E. Aultz |
Stollings denied the charges placed against him. He said that on Friday evening, January 31, someone, whom he did not know, informed him in the hall of the Ruffner Hotel that "Dave" Harr wished to see him. Delegate Adam E. Aultz of Kanawha County, accompanied him as far as the Opera House. Stollings said that in a note he had asked to come out but neglected to inquire of his business. According to Stollings, Harr had revealed that he was asked by Azel Ford to vote for Goff and was impressed with Ford's reasoning. Not only this, said the witness, but Harr wanted a meeting with Ford to be arranged by Stollings. |
Stollings stated that he had returned to the Ruffner Hotel in an unsuccessful search for Ford. He then proceeded to a place near the Opera House, where he said he had, as planned, met Harr, accompanied by his cousin, John M. Harr.542 It was learned in Harr's testimony that his cousin at this point had returned to the Ruffner Hotel.543 Stollings testified that Harr and he moved up Capitol Street and at the Capitol their conversation terminated.
| Stollings related that he hoped Harr would vote with Ford but that money was not mentioned. He said that on Saturday morning he saw Ford and Harr conversing at the door of the joint assembly and, in passing, he quickly whispered to Harr, "I see you have your man."544 Harr had testified that on that morning Stollings, in the assembly hall, said he had the money in his pocket.545 Carr's testimony is similar to and reaffirms that of Harr. He recalled being told by Harr of the Stollings meeting and of suggesting that Harr play the game. He had further suggested that Harr have a paper containing the facts made out by St. Clair for presentation to the joint assembly.546 |  West Virginia State Capitol |
 Ruffner Hotel |
Goff had spent the entire day observing the proceedings and in the evening, shortly after eight o'clock, he testified. His honesty and truthfulness, which he mentioned, were not questioned and in no way was he embarrassed. He said that if it had not been for the manner in which his name became involved in the case he would not have requested to appear before the committee. Goff declared that he had never spoken to Stollings about Harr's vote and had not agreed to give money for it. He said, furthermore, that he had never promised any offices in return for votes and that Stollings had had no power to promise the mine inspectorship, if he did. |
Cunningham had called upon him in his room in the Ruffner Hotel, Goff revealed, and complained that his office was being raided, that he intended to resign and have Governor Wilson appoint Harr. According to Goff, Cunningham had thought this would assure one less vote for Fleming. When Goff asked him to discontinue his conversation, he left the room.547
When the joint session convened, Tuesday morning, Chew, Shaw, and Chairman Price, Democrats, presented a laconic report. It held that the evidence in the Stollings-Harr case was of such a contradictory character, embracing Harr's charges and Stollings' denial, that they could not feel justified in saying the charges were sustained or that the evidence justified any further action by the joint session.548
Though Moore and Chew, Republicans, agreed to the foregoing report, including the statement that Stollings' explanation was unsatisfactory, they took exception to the majority statement that the evidence "was sufficient to create in our minds a grave suspicion" that Stollings had made improper proposals to influence Harr.549 Perhaps their exception also was intended to nullify the view that Stollings' explanation was unsatisfactory.
Carr, the presiding officer of the joint session, upon request, caused a statement by Moore to be entered upon the House Journal. It stated that nothing was disclosed in the investigation to implicate Fleming or Goff "in any improper measures to influence any vote . . . ."550
The tall angular Mr. Ford was then heard. He said that in justice to himself, because his name had been connected with charges of corruption, he wished an apologetic letter which he had received from Harr to be recorded in the minutes. This was done. In this significant letter Harr cited his testimony before the investigating committee in which he had referred to a conversation he had had with Ford on the previous Friday evening, the same evening Stollings had talked with Harr. It should be mentioned here that Harr had told the Committee that Ford had offered him a mine superintendency, if he would vote for Goff.
In his letter Harr said that he had not intended to intimate that he regarded Ford's offer as a bribe or inducement but rather he intended to show it to be an expression of Ford's friendship to be manifested independent of Harr's action in the choice of governor.551 Though in the joint session he voted with the Democrats,552 this splitting of hairs may be indicative of Ford's real sympathies, it would seem. It may also have been a Democratic attempt to vindicate him.
Amidst anticipation the members of the joint session had passed through the portals of the assembly hall to their seats at ten o'clock on that historic Tuesday morning of February 4. Visitors were numberless. The hour of triumph and defeat had really come. During the preceding twenty-four hours, it was reported, the Democrats had readied themselves for the final voting. The Republicans, too, remained tense and hopeful.553
Immediately, after Harr's letter to Ford was read, after the report of the investigating committee was received, and after the investigating committee was discharged, Carr, presiding officer of the joint session, called the session to order. He announced that the substitute resolution declaring Goff elected was the first business for consideration.554
Price opposed the resolution's wording as being contrary to an accepted rule made by the committee on rules.555 After assurances from Morris and the resolution's sponsor, Maxwell, that the resolve would be considered in the same manner as a prescribed resolution, Carr ordered the question. Without any further ado the voting began. Every Republican voted in the affirmative and every Democrat voted in the negative. A short time after the roll call was completed the clerk declared that the substitute resolution was lost by a vote of 40 to 43. 556
When Senator John W. Arbuckle of Greenbrier County, rose to vote, he explained that the question was whether Fleming or Goff received a majority of the legal votes cast. He did not believe the case was one of personal fraud against either man, but he understood that fraudulent votes had been cast and that they should be eliminated. With that in mind he was convinced that Fleming had received a plurality of votes. Moore claimed that both the majority and minority reports could be used to prove "everything and anything" in the case and, probably basing his views on the original prima facie returns and on his party affiliation, voted for Goff.557
Though his voting with the Democrats on the previous Saturday for the adjournment 558 signaled his position, Carr, the Laborite, who often seemed to possess a quintessence of political strategy, remained a matter of some speculation. He dispelled all doubts when he gave his support to the Fleming forces rejecting the substitute resolution.559
| The original resolution declaring Fleming the duly elected
governor recurred.560 The voting was interspersed with a
few voters' short speeches. After the roll was finally called the
clerk tabulated the result. "As the hands of the Capitol clock
pointed to the hour of twelve," February 4, 1890, precisely eleven
months past inauguration time, the clerk announced that Fleming had
been officially declared governor by a vote of 43-40. Carr declared
the resolution adopted.561 The votes of Carr and the two
Democratic voters who were held in line, proved to be, for the
Democrats, the victorious turning point in the contest.
After the applause, the joint session, upon the motion of the aged Senator Joseph Snider of Monongalia County, adjourned sine die. Thus ended the first judicial court of its kind in the history of West Virginia.562 |
 Joseph Snider |
Both Fleming and Goff were tactfully absent from the assembly hall when the result was declared. But at the Ruffner Hotel, Fleming was given an informal ovation by both Democrats and Republicans.563 Congratulations were heaped upon him for several days.564 Due to their success St. Clair and other Democratic leaders were fraught with generous phrases of well wishers.565
In the afternoon Fleming and some friends consulted with Governor Wilson who, because he no longer considered himself entitled to office, wished Fleming to assume "the duties as soon as possible."566 In the evening, John M. Hamilton, clerk of the house, presented the governor-elect with a commission on which to base his claim to office, the first document of its kind in the state's history.567
 Odell S. Long |
As the last morning hour of February 6 approached high noon
Fleming descended from his room in the Ruffner Hotel and was met by
Governor Wilson, other state officers, and friends. With Wilson and
Fleming in the lead they formed a procession and walked to the
Capitol, escorted by Governor Wilson's guard.568 Of this
incident the Charleston Gazette wrote, "The march was begun,
and thus in true Jeffersonian simplicity the Governor [Fleming] . .
. walked to his inauguration."569 A motley crowd milled
about the Capitol steps as the party approached. Near the gate in a
carriage were Mrs. Wilson and Mrs. Fleming.570
Besides Wilson and Fleming there were assembled on the Capitol steps various state leaders. Among them were: Judges John W. English and Okey Johnson, state Democratic leader, Thomas S. Riley, Clerk of the Supreme Court Odell S. Long, Fleming's leading attorney St. Clair, and legislators Benjamin H. Oxley, Anthony D. Garden, Malcolm Johnson, and Alex R. Campbell.571 |
| Riley called the assemblage to order. After a prayer, offered by the Rev. H. Wallace Torrence, Pastor of the Kanawha Presbyterian Church, Wilson introduced Fleming. The Governor-elect stepped forward 572 and gave a brief inaugural address. He lauded the state and looked forward to its future development, especially industrial, and hoped for pure and honest elections. He pointed out that the election contest was officially recorded, and that its testimony would remain against the perpetrators, who had schemed to corrupt the election, as long as the records of it were preserved. Of corrupt election practices he significantly stated, "The popular tendency to adopt the methods of the Quays and Dudleys for the achievement [sic] of party victory, is a menace to free institutions and free government that challenge the thoughtful attention and serious consideration of patriotic citizens of all parties."573 |  H. Wallace Torrence |
He proposed to do his duty as governor and in concluding his address he said, "I am ready to take the oath of office, and, 'with malice toward none and charity to all' enter upon the discharge of my duties." As he turned, Judge English "extended the well worn Bible [sic] on which so many solemn oaths . . . [had] been taken." Fleming reverently touched it and after English administered the oath of office, Aretus Brooks Fleming "bowed, and kissed the book ... ."574
Truthfully, the candidate who had been legally elected by popular votes on November 6, 1888 will never be known. Considering the prima facie election returns and the number of votes accredited to him by the minority report, Goff was elected. Likewise, deliberating upon the majority's computation of votes only Fleming could have been elected. The Democrats did not err in charging that illegal votes were cast, especially by non-residents. The evidence, if reasonably observed, exonerated the Republicans so far as systematic fraud was charged. Rather, the illegal votes seemed to have been cast by individual accord, the Republicans, perhaps, receiving more of them. Partisanship played its diabolical role throughout the contest. Except for giving the Democrats some information on which to base their claims, which they did not officially possess at the 1889 legislature, the work of the Joint Contest Committee was useless in deciding the election. The way to discover who was legally elected was not feasible, that was, to trace the conditions under which every vote was cast.
Notes for Part II
328. The Preston County Journal, February 28, 1889.
329. Ibid.
330. Ibid.
331. Ibid.; The Sentinel, February 16, 1889.
332. Constitution of 1872, Art. VII, Sec. 16.
333. The Preston County Journal, January 31, 1889; The Sentinel, February 9, 1889.
334. House Journal, 1889, p. 308.
335. Code of 1887, Chap. VI, Sec. 13.
336. House Journal, 1389, pp. 396-397.
337 The Preston County Journal, March 7, 1889; The Wheeling Intelligencer, March 5, 1889.
338. MacCorkle, op. cit., 437.
339. The Preston County Journal, March 7, 1889; The Wheeling Intelligencer, March 5, 1889.
340. The Preston County Journal, March 7, 1889; The Wheeling Intelligencer, March 5, 1889.
341. The Preston County Journal, March 7, 1889; The Wheeling Intelligencer, March 5, 1889.
342. 32 W. Va., pp. 394-395.
343. Ibid., p. 394.
344. Ibid., p. 395.
345. Ibid., p. 396,
346. Ibid., p. 398.
347. Ibid., p. 399.
348. Ibid., pp. 399-400.
349. Ibid., p. 400.
350. Ibid.
351. Ibid., p. 401.
352. Ibid., p. 402.
353. Ibid., p. 404.
354. Ibid.
355. Ibid., pp. 393, 404, 405; Constitution of 1872, Art. IV, Sec. 11, Art. V, Sec. 1 Art. VII, Sec. 3; Code of 1887, Chap, III, Sec. 23.
356. 32 W. Va., p. 406.
357. Ibid., p. 405.
358. Ibid.
359 Ibid., pp. 419-420.
360. Ibid., pp. 420, 423; Constitution of 1872, Art. VII, Sec.16.
361. 32 W. Va., pp. 420-421.
362. Ibid., p. 423; Constitution of 1872, Art. IV, Sec. 6.
363. 32 W. Va., p. 421.
364. Ibid., pp. 424-425.
365. Ibid., p. 425.
366. Ibid., p. 426.
367. Ibid.
368. Ibid., p. 427.
369. Ibid., p. 428.
370. Ibid., p. 429.
371. Ibid., p. 428.
372. Ibid., p. 429.
373. Ibid.
374. Ibid., p. 430.
375. Ibid., pp. 430-431.
376. Ibid., p. 431.
377. Constitution of 1872, Art. VII, Sec. 4.
378. 32 W. Va., p. 431.
379. Ibid., pp. 431-432.
380. Ibid., p. 420.
381. Report of the Minority of the Contest Committee, p. 392. This, and the Report of the Majority of the Contest Committee, and the Deposit one of Mercer and McDowell Counties, are found in the House Journal, 1890, in the Joint Session section which also contains the legislature's minutes of the election contest. Bach of the first three hereafter respectively referred to as Minority Report, Majority Report, and Depositions.
382. Appletons', 1889, New Series, Vol. XIV, p. 825.
383. House Journal, 1890, pp. 8, 10.
384. Majority Report, pp. 3-4. . ..
385. Ibid., p. 4; Minority Report, p. 396.
386. Majority Report, pp. 4-5.
387. Minorty [sic] Report, pp. 396-397.
388. Majority Report, p. 6.
389. Ibid., p. 7.
390. Ibid., p. 8.
391. Ibid., p. 9.
392. Ibid., p. 11.
393. Ibid., p. 7.
394. Ibid., p. 8.
395. Ibid., p. 11.
396. Ibid., p. 9.
397. Code of 1887, Chap. III, Sec. 8.
398. Majority Report, pp. 7-8; Constitution of 1872, Art. IV, Sec. 11.
399. Ibid., pp. 8-9.
400. Ibid., pp. 6-7.
401. Ibid., p. 10.
402. Ibid.
403. Ibid., pp. 8-9.
404. Ibid., p. 11.
405. Minority Report, p. 397.
406. Ibid., p. 398.
407. Ibid., p. 399.
408. Ibid.
409. Ibid., pp. 400-401; Majority Report, p. 12.
410. Majority Report, p. 12.
411. Minority Report, p. 408.
412. Majority Report, pp. 12-13.
413. Minority Report, pp. 401, 409.
414. Ibid., p. 409; Majority Report, p. 13.
415. Ibid., p. 13.
416. Ibid.
417. Minority Report, p. 403.
418. Majority Report, p. 13.
419. Minority Report, p. 402.
420. Majority Report, p. 13.
421. Minority Report, p. 400; Constitution of 1872, Art. IV, Sec. 1; Code of 1881, Chap. III, Sec. 9, p. 53.
422. Minority Report, p. 405.
423. Majority Report, pp. 14, 18.
424. Ibid., p. 17.
425. Ibid., p. 18.
426. Minority Report, p. 404.
427. Ibid.
428. Ibid.; Majority Report, pp. 18-19.
429. Minority Report, p. 404.
430. Ibid., p. 403.
431. Majority Report, p. 18.
432. Ibid., p. 23; Minority Report, p. 400.
433. Code of 1887, Chap. III, Sec. 9, p. 53.
434. Majority Report, pp. 19, 83.
435. Ibid., pp. 20-21.
436. Minority Report, p. 406.
437. Ibid.
438. Majority Report, pp. 49, 56-57, 61, 67, 77, 95, 112, 113, 131-132.
439. Ibid., p. 20; Minority Report, p. 406.
440. Ibid., pp. 406-407; Majority Report, p. 21.
441. Ibid., p. 21.
442. Minority Report, p. 407.
443. Majority Report, pp. 22-23.
444. Minority Report, p. 406.
445. Ibid., p. 405.
446. House Journal, p. 10.
447. Majority Report, p. 87; Depositions, pp. 1-234.
448. Minority Report, pp. 437, 457; Majority Report, pp. 87, 88, 89; Depostions [sic], pp. 6-8, 10, 12, 14, 16, 18, 20, 22, 24, 33, 34, 44, 52, 72, 87, 89, 93 96, 100, 122, 168, 192-193, 210-211.
449. Ibid., pp. 3, 4, 48, 105, 112-126, 129, 130, 169, 183, 194, 198, 204, 207 209-211.
450. Ibid., pp. 180-181.
451. Ibid., pp. 16, 23, 27-29, 49, 57, 67, 72, 77, 78, 83, 86, 89, 100, 103, 113, 115, 118, 120, 122, 123, 126, 127, 163, 171, 173, 175, 190, 191-199, 202, 205, 208-209.
452. Ibid., pp. 50, 95, 130, 174, 180, 181, 183, 184, 187.
453. Ibid., pp. 13, 19, 21, 64, 74, 148, 187.
454. Ibid., pp. 18, 27, 92, 172-173.
455. Ibid., pp. 109-111, 134, 189.
456. Ibid., pp. 143, 148, 154.
457. Ibid., pp. 45, 55, 141, 169.
458. Ibid., pp. 106-108.
459. Ibid., pp. 4 29, 34, 49, 57, 63, 67, 69, 109, 165.
460. Ibid., pp. 5, 29-30, 34-35, 45, 49-50, 57-59, 63, 69, 71-72, 80-83, 212-226.
461. Ibid., pp. 9, 16; Majority Report, p. 87; Minority Report, pp. 437-438.
462. Depositions, pp. 227-230, 232-234.
463. Ibid., pp. 6, 9-13, 29-32, 35, 45-47, 57-59, 63, 69-70, 71-72.
464. Minority Report, pp. 437, 456; Majority Report, pp. 87-88.
465. Minority Report, pp. 436-437.
466. Majority Report, p. 88.
467. Ibid., pp. 88-90; Minority Report, pp. 457, 465.
468. Ibid., pp. 458, 464-465.
469. Ibid., p. 437; Majority Report, p. 88.
470. See Table I, pt. I, "Gubernatorial Election Contest, 1888-1890," In WEST VIRGINIA HISTORY, (April, 1946), pp. 213-214.
471. Majority Report, p, 88.
472. Ibid., p. 89.
473. Minority Report, pp. 456, 458-459.
474. Ibid., p. 461.
475. Ibid., p. 457.
476. Ibid., pp. 463-464.
477. Ibid., pp. 461-462.
478. Majority Report, p. 89.
479. Minority Report, p. 462.
480. Ibid., p. 437: Majority Report, pp. 90-91, 153; Table IV, pt. I, WEST VIRGINIA HISTORY (April, 1946), pp. 219-220.
481. Majority Report, pp. 63-65.
482. Ibid., p. 66.
483. Ibid., p. 64; Minority Report, p. 394.
484. Majority Report, p. 64.
485. Ibid., p. 64.
486. Minority Report, p. 432.
487. Majority Report, pp. 63, 66.
488. Ibid., pp. 67, 153; Table IV, pt. I, WEST VIRGINIA HISTORY (April, 1946), pp. 219-220
489. Majority Report, p. 24.
490. Ibid., pp. 24-25.
491. Ibid., p. 30.
492. Minority Report, pp. 435-436.
493. Ibid., pp. 415-416.
494. Majority Report, p. 36.
495. Ibid., p. 37; Minority Report, pp. 428-429.
496. Majority Report, pp. 37-38; Constitution of 1872, Art, VIII, Sec. 25.
497. Minority Report, pp. 428-429.
498. Majority Report, pp. 38, 153; Table IV, pt. I, WEST VIRGINIA HISTORY (April, 1946), pp. 219-220.
499. Majority Report, p. 37, paraphrasing Chap. LXXVIII, Sec. 6, p. 112, Acts of 1877.
500. Minority Report, p. 429.
501. Ibid., pp. 429-430.
502. Majority Report, pp. 153-154; Table IV, pt. I, WEST VIRGINIA HISTORY (April, 1946), pp. 219-220.
503. Minority Report, pp. 467-468.
504. House Journal, 1890, pp. 4, 10.
505. Ibid., pp. 32-33, 469.
506. The (Weekly) State Journal, January 16, 1890.
507. Ibid., January 23, 1890; Wheeling Register, February 5, 1890.
508. House Journal, 1890, p. 469.
509. Ibid., pp. 469-470.
510. Ibid., pp. 471-474; The (Weekly) State Journal, January 24, 1890; Wheeling Register, January 23, 1890.
511. Ibid., January 20, 1890.
512. MacCorkle, op, cit., pp. 432-435; The (Weekly) State Journal, January 30, 1890.
513. The Charleston Daily Gazette, January 24, 1890; Wheeling Register, January 20, 1890.
514. House Journal, 1890, pp. 470-471.
515. Wheeling Intelligencer, January 24, 1890.
516. The (Weekly) State Journal, January 30, 1890; Wheeling Intelligencer, January 25, 1890; Wheeling Register, January 23, 1890; T. S. Riley to Fleming, January 23, 1890, Fleming MSS.
517. House Journal, 1890, p. 471.
518. Ibid., pp. 471, 474-477; The (Weekly) State Journal, January 30, and February 1, 1890: Wheeling Register, January 31, and February 1, 1890.
519. The (Weekly) State Journal, January 25, and 30, 1890; The (Weekly) State Journal Supplement, January 30, 1890; Wheeling Intelligencer, January 24, 25, and 30, 1890; Wheeling Register, January 27, and 28, 1890.
520. Ibid.
521. The (Weekly) State Journal, January 25 and 30, 1890; Wheeling Register, January 25, 1890.
522. The (Weekly) State Journal, January 30, 1890; Wheeling Register, January 25, 1890: Wheeling Sunday Register, January 26, 1890.
523. Wheeling Sunday Register, January 26, 1890.
524. House Journal, 1890, pp. 475, 477; Wheeling Intelligencer, February 1, 1890; Wheeling Register, February 1, 1890.
525. Ibid., February 1, and 27, 1890.
526. MacCorkle, op. cit., p. 441.
527. House Journal, 1890, pp. 478-479.
528. Ibid., p. 479; Wheeling Register, February 3, 1890; Wheeling Sunday Register, February 2,1890.
529. House Journal, 1890, p. 478; Wheeling Register, February 3, 1890; Wheeling Sunday Register, February 2, 1890.
530. House Journal, 1890, pp. 478-479.
531. Ibid., p. 479; Wheeling Register, February 1, 1890; Wheeling Sunday Register, February 2, 1890.
532. MacCorkle, op. cit., pp. 439-441.
533. Ibid., pp. 441-442.
534. Ibid., p. 442.
535. Ibid.
536. House Journal, 1890, pp. 479-480; 483-484.
537. MacCorkle, op. cit., pp. 443-444; The (Weekly) State Journal, February 6, 1890.
538. Wheeling Register, February 3, 1890; Wheeling Sunday Register, February 2, 1890.
539. Ibid.
540. Wheeling Register, February 3, 1890.
541. Ibid., February 4, 1890.
542. Ibid.
543. Ibid., February 3, 1890; Wheeling Sunday Register, February 2, 1890.
544. Wheeling Register, February 4, 1890.
545. Ibid, February 3, 1890; Wheeling Sunday Register, February 2, 1890.
546. Wheeling Register, February 4, 1890.
547. Ibid.
548. House Journal, 1890, p. 481.
549. Ibid.
550. Ibid., pp. 481-482; The (Weekly) State Journal, February 6, 1890.
551. House Journal, 1890, p. 482; Wheeling Register, February 5, 1890,
552. House Journal, 1890, pp. 480, 483, 484.
553. Wheeling Register, February 5, 1890.
554. House Journal, 1890, pp. 481-482; Wheeling Register, February 5, 1890.
555. House Journal, 1890, p. 475; Wheeling Register, February 5, 1890.
556. House Journal, 1890, p. 483; Wheeling Register, February 5, 1890.
557. Wheeling Register, February 5, 1890.
558. House Journal, 1890, p. 480.
559. Ibid., p. 483; The (Weekly) State Journal, February 6, 1890; Wheeling Register, February 5, 1890.
560. House Journal, 1890, pp. 483-484; Wheeling Register, February 5, 1890.
561. House Journal, 1880, p. 484; Ambler, op. cit., p. 462; Appletons', New Series XV, p. 853; Callahan, op. cit., pp. 245, 446.
562. House Journal, 1890, p. 484; The (Weekly) State Journal, February 6, 1890; Wheeling Register, February 5, 1890.
563. Ibid., February 5, 1890.
564. Ibid., February 5, 1890: John E. Kenna and Charles J, Faulkner to Fleming, February 4, 1890; E. Boyd Faulkner to id., February 4, 1890; J. A. Fickinger to id., February 4, 1890: D. W. Gell to id., February 4, 1890; John C. Pendleton to id., February 4, 1890; Charles Powell to id., February 4, 1890; T. F. Rowand to id., February 4, 1890; Silas P. Smith to id., February 4, 1890: Robert White to id., February 4, 1890; Alexander Parks to id., February 5, 1890; D. R. Paige to id., February 5, 1890; C. J. Harrington to id., February 5, 1890; Joseph Gallagher and Son to id., February 5, 1890: L. T. Gray to id., February 5, 1890; B. W. Price to id., February 6, 1890; B. B. Wilson, to id., February 6, 1890; John J. Jacob to id., February 8, 1890, Fleming MSS.
565. Wheeling Register, February 5, 1890.
566. The (Weekly) State Journal, February 6, 1890; Wheeling Register, February 5, 1890.
567. Ibid., February 5, 1890.
568. The (Fairmont) Index, February 14, 1890.
569. The Charleston Gazette quoted in The (Fairmont) Index, February 14, 1890.
570. The (Fairmont) Index, February 14, 1890.
571. Ibid.
572. Ibid.
573. Fleming's Inaugural Address. (MS), Fleming MSS.
574. The (Fairmont) Index, February 14, 1890.