TRANSFER OF COUNTIES TO WEST VIRGINIA.
JANUARY 12, 1866. - Ordered to be printed.
Mr. W. LAWRENCE, from the Committee, on the Judiciary, made the following
REPORT.
[To accompany H. Res. No. 17.]
The Committee on the Judiciary, to whom was referred House resolution. No. 17, "A joint resolution giving the consent of Congress to the transfer of the counties of Berkeley and Jefferson from the State of Virginia to the State of West Virginia," now report:
That, immediately after the passage of the ordinance of secession by the Virginia convention and the announcement of its ratification, the people of the northern and western portion of the State assembled, in convention at the city of Wheeling, and organized a government, and restored the State of Virginia to its allegiance to the Constitution and government of the United States.
This restored government was, for a time, at least, and until recently, recognized by all the departments of the federal government as the lawful and constitutional government of the State of Virginia. Senators, elected by its legislature, and representatives, whose election was certified by its governor, have been received and recognized by Congress as the senators and representatives of the State of Virginia in the Congress of the United States.
Francis H. Peirpoint, who was elected temporary and provisional governor by the convention which assembled on the 11th day of June, A. D. 1861, and was afterwards elected governor by the people under the restored government, still holds his office under that election, has been recognized by all the departments of this government as governor of the State of Virginia, and is now so recognized by the people of Virginia,
On the 20th day of August, A. D. 1861, the Wheeling convention passed an ordinance to provide for the formation of a new State out of a portion of the territory of the State of Virginia.
The first section of the ordinance enumerated the counties which shall compose the new State, and the second section provided that the convention "may change the boundaries described in the first section, so as to include within the proposed State the counties of Greenbrier and Pocahontas, or either of them, and also the counties of Hampshire, Hardy, Morgan, Berkeley, and Jefferson, or either of them, and also such other counties as lie contiguous to said boundaries, or to the counties named in this section," &c.
The convention provided for in the ordinance was elected, and assembled in pursuance of it, and agreed upon a constitution on the 26th day of November, A. D. 1861, which was submitted to the people and ratified by them on the 3d day of May, A. D. 1862. This constitution includes within the new State the counties mentioned in the ordinance, and also Greenbrier, Pocahontas, Hampshire, Hardy, and Morgan, and the county of Pendleton, which lies adjacent to the county of Hardy.
The second section of the first article of the constitution, after naming the counties absolutely made part of the State, provides: "And if a majority of the votes cast at the election or elections held as provided in the schedule hereof, in the district composed of the counties of Pendleton, Hardy, Hampshire, and Morgan, shall be in favor of the adoption of this constitution, the said four counties shall also be included in and form part of the State of West Virginia; and if the same shall be so included, and a majority of the votes cast at the said election or elections in the district composed of the counties of Berkeley, Jefferson, and Frederick, shall be in favor of the adoption of this constitution, then the three last-named counties shall also be included in and form part of the State of West Virginia."
In pursuance of this provision a vote was taken in the counties of Pendleton, Hardy, Hampshire, and Morgan, at the election provided for in the schedule, and a majority of the votes cast at the election were in favor of the adoption of the constitution, and they thereby became and have ever since been recognized as part of the State.
But no vote was taken at this election in the district composed of the counties of Berkeley, Jefferson, and Frederick.
The second section of the act of the legislature of Virginia giving the consent of the State to the formation of the State of West Virginia, passed May 13, 1862, provided:
"That the consent of the legislature of Virginia be, and the same is hereby, given that the counties of Berkeley, Jefferson, and Frederick shall be included in and form part of the State of West Virginia, whenever the voters of said counties shall ratify and assent to said constitution, at an election held for the purpose, at such time and under such regulations as the commissioners, named in said schedule, may prescribe."
On the 13th of December, A. D. 1862, Congress passed an act for the admission of West Virginia into the Union as a State when the convention and people of the State should amend their constitution, by providing for the abolition of slavery in the State, whenever the President, by his proclamation, should announce that such amendment had been duly made and ratified by the people of the State.
In pursuance of this act of Congress the convention which framed the constitution reassembled, and on the 18th day of February, A. D. 1863, adopted the constitution as amended in pursuance of said act. The constitution, as amended, was submitted to the people, and ratified by them on the 26th day of March, A. D. 1863. On the 20th day of April, A. D. 1863, the President issued his proclamation, declaring that the amendment of the constitution provided for by the act of Congress had been made and ratified by the people of the State; that the said State of West Virginia should, after sixty days from the date thereof, be one of the States of the Union.
The convention which framed and amended this constitution, anticipating the possibility that the disturbed condition of the country might prevent a vote from being taken in some of the counties which the people might desire to be included in the new State, made the following provision on that subject in article 4, section 16, of the constitution:
"Additional territory may be admitted into and become part of this State with the consent of the legislature. And in such case provision shall be made by law for the representation of the white population thereof in the senate and house of delegates, in conformity with the principles set forth in this constitution. And the members of which each branch is to consist shall be increased by the representation assigned to such additional territory."
Owing to the military operations in the counties of Berkeley and Jefferson, no vote could be taken in these counties under the ordinance calling the convention under constitutional provision, or under the act of the legislature of Virginia of May 13, 1862.
But the legislature of Virginia, still determined that these counties should have an opportunity of going into the new State, if the people desired it, on the 31st day of January, A. D. 1863, passed the following law:
AN ACT giving the consent of the State of Virginia to the county of Berkeley being admitted into and becoming part of the State of West Virginia.
Whereas, by the .constitution for the State of West Virginia, ratified by the people thereof, it is provided that additional territory may be admitted into and become part of said State, with the consent of the legislature thereof, and it is represented to the general assembly that the people of the county of Berkeley are desirous that said county should be admitted into and become part of the said State of West Virginia:
1. Be it enacted by the general assembly, That polls shall be opened and held on the fourth Thursday of May next, at the several places for holding elections in the county of Berkeley, for the purpose of taking the sense of the qualified voters of said county on the question of including said county in the State of West Virginia.
2. The poll-books shall be headed as follows, viz: "Shall the county of Berkeley become a part of the State of West Virginia?" and shall contain two columns, one headed "aye" and the other "no," and the names of those who vote in favor of said county becoming part of the State of West Virginia shall be entered in the first column, and the names of those who vote against shall be entered in the second column.
3. ***** And the governor of this State, if of opinion that the said vote has been opened and held, and the result ascertained and certified pursuant to law, shall certify the result of the same, under the seal of this State, to the governor of the said State of West Virginia.
4. *****
5. If a majority of the votes at the polls opened and held pursuant to this act be in favor of the said county of Berkeley becoming part of the State of West Virginia, then shall the said county become part of the said State of West Virginia when admitted into the same with the consent of the legislature thereof.
And on the 4th day of February, 1863, the legislature of Virginia passed the following:
AN ACT giving consent to the admission of certain counties into the new State of West Virginia, upon certain conditions.
1. Be it enacted by the general assembly of Virginia, That at the general election on the fourth Thursday of May, one thousand eight hundred and sixty- three, it shall be lawful for the voters of the district composed of the counties of Tazewell, Bland, Giles, and Craig, to declare, by their votes, whether said counties shall be annexed to and become a part of the new State of West Virginia; also, at the same time, the district composed of the counties of Buchanan, Wise, Russell, Scott, and Lee, to declare by their votes whether the counties of the said last named district shall be annexed to and become a part of the State of West Virginia; also, at the same time, the district composed of the counties of Alleghany, Bath, and Highland, to declare by their votes whether the counties of such last-named district shall be annexed to and become a part of the State of West Virginia; also, at the same time, the district composed of the counties of Frederick and Jefferson, or either of them, to declare by their votes whether the counties of the said last named district shall be annexed to and become a part of the State of West Virginia; also, at the same time, the district composed of the counties of Clarke, Loudoun, Fairfax, Alexandria, and Prince William, to declare by their votes whether the counties of the said last-named district shall be annexed to and become a part of the State of West Virginia; also, at the same time, the district composed of the. counties of Shenandoah, Warren, Page, and Rockingham, to declare by their votes whether the counties of the said last-named district shall be annexed to and become part of the State of West Virginia; and for that purpose there shall be a poll opened at each place of voting in each of said districts, headed "For annexation," and "Against annexation." And the consent of this general assembly is hereby given for the annexation to the said State of West Virginia of such of said districts, or either of them, as a majority of the votes so polled in each district may determine: Provided, That the legislature of the State of West Virginia shall also consent and agree to the said annexation; after which, all jurisdiction of the State of Virginia over the districts so annexed shall cease.
2. It shall be the duty of the governor of the Commonwealth to ascertain and certify the result as other elections are certified.
Polls were opened in the counties of Berkeley and Jefferson in accordance with the provisions of the above acts, and the result certified by the governor of Virginia to the governor of West Virginia, as follows:
THE COMMONWEALTH OF VIRGINIA,
Executive Department.
His Excellency A. I. BOREMAN, Governor of West Virginia:
Whereas it is represented to me that, in pursuance of an act of the general assembly of Virginia, entitled "An act giving the consent of the State of Virginia to the county of Berkeley being admitted to and becoming part of the State of West Virginia," passed January 31, 1863, polls were opened in said county on Thursday, the 28th day of May, 1863, for the purpose indicated in said act:
Now, therefore, I, Francis H. Peirpoint, governor of the Commonwealth of Virginia, in accordance with a provision of the act aforesaid, do hereby certify that, from the returns on file in this department, a very large majority of the votes cast at said election were in favor of the said county of Berkeley "becoming part of the State of West Virginia."
Given under my hand and the less seal of the Commonwealth this 22d day of July, 1863, and in the 88th year of the Commonwealth.
[SEAL.] F. H. PEIRPOINT.
By the Governor:
L. A. HAGANS, Secretary of' the Commonwealth.
THE COMMONWEALTH OF VIRGINIA,
Executive Department.
His Excellency A. I. BOREMAN, Governor of West Virginia:
Whereas it is represented to me that, in pursuance of an act of the general assembly of Virginia, entitled "An act giving consent to the admission of certain counties into the new State of West Virginia," upon certain conditions, passed February 4, 1863, polls were opened in the county of Jefferson (one of the counties named in said act) on Thursday, the 28th day of May, 1863, on the question of annexation to the said new State:
Now, therefore, I, Francis H. Peirpoint, governor of the Commonwealth of Virginia, in accordance with a provision of the act aforesaid, do hereby certify that, from the returns made to this department, a very large majority of the votes cast at said election were in favor of annexation to the State of West Virginia.
Given under my hand and the less seal of the Commonwealth, at the city of Alexandria, this 14th day of September, 1863, and in the 88th year of the Commonwealth.
[SEAL.] F. H. PEIRPOINT.
By the Governor:
L. A. HAGANS, Secretary of the Commonwealth.
It will be seen from the foregoing acts of the legislature, and the reports of Governor Peirpoint, of the result of the vote, that the laws authorizing the vote, and the vote taken under those laws, were all before the 20th of June, 1863, when West Virginia became a State. It was therefore supposed by the senators and representatives of West Virginia in Congress, that inasmuch as West Virginia was not a State, and had not the capacity to enter into any "compact or agreement" with the State of Virgina [sic], that the action of the State of Virginia in providing the means of transferring these counties to the State of West Virginia, and giving her assent to such transfer, was not a "compact or agreement," within the meaning of the Constitution of the United States, and that therefore no ratification by Congress was necessary to the validity of the transfer.
It was also supposed that inasmuch as the constitution of the State made an express provision for the acquisition of these counties on a vote of the people, and had in express terms authorized the acquisition of additional territory by the consent of the legislature, all of which have been approved and ratified by Congress in admitting the State into the Union, that no further ratification could be required.
On the 5th of August, 1863, the State of West Virginia accepted the transfer of the county of Berkeley, as follows:
AN ACT admitting the county of Berkeley into and making the same part of this State. Passed August 5, 1863.
Be it enacted by the legislature of West Virginia: 1st, the county of Berkeley, lately constituting part of the Commonwealth of Virginia, is hereby admitted into and made part of this State, and shall constitute part of the tenth senatorial district and of the tenth judicial circuit, and shall at an election herein provided for, and at every annual State election thereafter, choose two members of the house of delegates.
On the 2d of November, 1863, the county of Jefferson was in like manner accepted by the following act ;
AN ACT admitting the county of Jefferson into and making the same part of this State. Passed November 2, 1863.
Be it enacted by the legislature of West Virginia: 1st, the county of Jefferson, lately constituting part of the Commonwealth of Virginia, is hereby admitted into and made part of this State, and shall constitute part of the second congressional district of the tenth senatorial district and of the tenth judicial circuit; and shall, at the election herein provided for, and at every annual State election thereafter, choose two members of the house of delegates,
Since the passage of these laws, West Virginia has exercised exclusive and undisputed jurisdiction over these counties. They have been organized into townships under the laws of West Virginia. Justices, constables, and supervisors have been elected, and are discharging the duties of their respective offices. Taxes have been assessed, collected, and disbursed, according to the laws of West Virginia. Courts, civil and criminal, have been exercising jurisdiction, rendering judgments, issuing executions, selling property, real and personal, and making titles thereto.
Offenders against the laws have been convicted and sentenced to fines and imprisonment in the county jail and in the penitentiary.
Wills have been probated and recorded, estates settled, and distribution made. In short, all the acts of municipal sovereignty known to the Constitution and laws of the country have been exercised without interference or interruption for between one and two years.
But as doubts have been recently thrown over this transfer of allegiance and jurisdiction, the State of West Virginia, for the purpose of removing all doubts, and settling what is claimed to be a controverted question, asks Congress to ratify the action of the States of Virginia and West Virginia, in transferring the counties from the old State to the new one.
On the other hand, the State of Virginia asks Congress to provide for taking another vote of the people of the two counties on the question of transferring them from the State of Virginia to the State of West Virginia; and this is asked upon the ground that a full vote was not polled at the former election.
Your committee do not understand that it is claimed that all might not have voted if they had chosen to do so. But many of those who would have voted against the transfer of these counties to West Virginia were absent in the rebel army, and therefore could not vote. Others who were at home and might have voted did not recognize the restored government as the legal and constitutional government of Virginia, and therefore declined to pay any respect to its laws, or the order of its governor.
But if Congress were inclined to respect the wishes of those who desire another vote, by what authority may we enter the boundaries of a State and order a portion of its people to vote upon the question of transferring their allegiance to another State? For that these counties are now de facto a part of the State of West Virginia is a matter about which there can be no controversy.
Not only has the State of West Virginia exercised jurisdiction over them, as has already been stated, but the President and the executive departments of this government have also recognized them as a part of the State of West Virginia. The Postmaster General establishes post offices and appoints postmasters at various places in the county of Berkeley and in the county of Jefferson, in the "State of West Virginia."
Since the transfer of these counties to the State of West Virginia, the Secretary of the Treasury, by order of the President, has transferred them from the third internal revenue collection district of the State of Virginia to the second collection district of the State of West Virginia.
A short time previous to the last general election in the State of Virginia, the governor of West Virginia ascertained that a portion of the people of Jefferson county intended to hold an election in that county under the laws of Virginia, and cast their votes for candidates for office in that State. He immediately issued his proclamation, forbiding any person from attempting to hold elections in that county under the laws and government of the State of Virginia. Fearing that this proclamation might be disregarded, he called upon the President for a military force to aid him in enforcing obedience to his proclamation. The President promptly responded to the call, and in pursuance of his order the Secretary of War ordered a body of troops to be sent to Charlestown, in Jefferson county, to enforce obedience to the governor's proclamation. The troops were sent and the proposition to hold an election under the laws of Virginia was wisely abandoned.
It seems to your committee that these acts constitute a most perfect and unequivocal recognition of the transfer of these counties to the State of West Virginia by the President and the executive departments of the federal government.
If Congress is to take measures for having another vote on the transfer of these counties, what shall we do? Shall Congress pass a law fixing the time, place, and manner of holding the election, and prescribe the qualifications of voters? If so, by what authority? If not, shall we pass a law requiring the governor of West Virginia to have an election held at such time, place, and. manner as he may prescribe?
Suppose he disregards our mandate, and refuses to hold any election or to permit one to be held, what is Congress to do about it?
The information in possession of the committee leaves no doubt on their minds as to what would now be the result of a vote for the restoration of these counties to the State of Virginia. The question is one which has since the close of the war entered largely into the local politics of these counties. The party which styles itself the "Union party," and is called by its opponents the "radical party," is unanimously in favor of retaining these counties in West Virginia; while the democratic, or, as it styles itself, the "conservative party," is generally in favor of restoring them to the State of Virginia.
At the annual election held on the fourth Thursday of October, A. D.1865, the Union ticket received in Berkeley county 923 votes, and the so-called democratic 137 votes; and in the county of Jefferson, the vote as returned by the supervisors of the county to the governor was for the Union ticket 304 votes, and for the so-called democratic ticket 199 votes.
At this election the "test oath," prescribed by the laws of West Virginia, which prohibits any person from voting who shall refuse to make an affidavit that he has not been in the rebel army, nor voluntarily given any aid or comfort to the rebellion, was rigidly enforced in. the county of Berkeley, and also in the county of Jefferson, so far as the votes were counted and returned by the supervisors of the county.
In an election for the transfer of these counties to the State of Virginia, the vote in favor of West Virginia would certainly be quite as large, and probably larger than the vote for the Union ticket at the late election, while the vote in favor of the State of Virginia could not be larger, and would probably fall short of the vote for the so-called democratic ticket. This, we think, appears from petitions to Congress on this subject now before the committee.
But it is claimed by the so-called democratic party that the "test oath" is unconstitutional, and wherever they have the control of the elections it would, undoubtedly, be disregarded.
If the whole population, loyal and disloyal, should vote, the result would be that from three hundred to four hundred votes would be added to the so-called democratic vote in Berkeley, and a still larger number in Jefferson; and Berkeley county would remain with West Virginia, and Jefferson county would go with the State of Virginia. This is a result which it is presumed nobody would desire. The great thoroughfare for trade and travel of these two counties is the Baltimore and Ohio railroad. Their business relations are with Baltimore and Wheeling. They have no direct railroad or other connexions with Richmond or any other part of the State of Virginia, except the valley counties adjacent to them. And it is certainly not desirable to multiply or increase the number of State jurisdictions that are to have authority over so important a thoroughfare as the Baltimore and Ohio railroad.
Your committee cannot conceive how any good can result from another vote, while the postponement of the final settlement of the question cannot fail to be productive of strife, and animosity, and discord, very prejudicial to the best interests of the community.
It is perfectly clear to your committee that Congress has no power to institute any measures or proceedings to change the boundaries of adjacent States, or to transfer territory from one to another. The States alone can make any changes in their boundaries or transfer territory from one to another, and Congress has no power over the subject except to ratify what they may do; and certainly, the power to ratify implies the power to refuse to ratify.
In the case of Green vs. Biddle, 8 Wheaton, 1 to 108, the Supreme Court of the United States had before it the clause of the Constitution which prohibits any two or more States from entering into any compact or agreement without the consent of Congress. The compact before the court in that case was the compact between the States of Virginia and Kentucky, preparatory to the admission of the latter State into the Union.
The compact was contained in an act of the legislature of Virginia, passed December 18, 1789, and incorporated into the constitution of Kentucky as an article of compact. This compact was never expressly ratified by Congress. But the court held that the admission of Kentucky into the Union with this clause in her constitution was an implied ratification of the compact.
In discussing this subject the court say, page 85: "Let it be observed, in the first place, that the constitution makes no provision respecting the mode or form in which the consent of Congress is to be signified; very properly leaving that matter to the wisdom of that body." Hence the people of West Virginia claim that by the admission of that State into the Union, with section 16, article 4, in her constitution, Congress consented to the acquisition of these counties, and that no subsequent ratification is necessary to the validity of the transfer.
In the case of Georgia vs. Florida, 17 Howard's Rep., 478, the court decide that the power of changing boundaries, or transferring territory from one State to another, is one of the essential attributes of sovereignty which was not surrendered by the States of the Union in adopting the Constitution of the United States.
But for the purpose of protecting the interests of the United States from being prejudiced by interstate arrangements, the consent of Congress was required to make any compacts or agreements between two or more States valid.
Your committee therefore are clearly of opinion that the only power Congress has over the subject is to ratify the transfer, or decline to take any action on the subject, and leave the parties to the courts to determine the legal effect of what has been done.
If it be true, as claimed by the State of West Virginia, that the action of the States of Virginia and West Virginia is not a "compact or agreement," within the meaning of the Constitution, or that the admission of the State by Congress into the Union with a constitution which expressly provided for the acquisition of these counties, as well as for the acquisition of "additional territory," is such consent on the part of Congress as makes the transfer of these counties valid, certainly Congress has no power to transfer them back again without the consent of West Virginia.
Your committee are aware that since the commencement of the present session of Congress the body styling itself the legislature of Virginia has repealed the acts of Virginia giving her consent to the cession of these counties to the State of West Virginia.
But the repeal comes too late even if said legislature was such de jure, which the committee are by no means prepared to admit. No principle of law is better settled than that an executed grant cannot be revoked by the grantor without the consent of the grantee.
If a man gives his house to another and delivers the possession to the donee, the title passes, and the donor cannot revoke the gift and reclaim the property.
So if a man grant another an easement in his land, as the right to erect a dam and flow the water back upon it, or to have a right of way across it, and the grantee accept the grant, and incur expenses in building his dam or making his road with the knowledge of the grantor, and without objection from him, he cannot afterwards revoke the grant without the consent of the grantee. The same principle is applicable to the grant of a franchise. Even since the great case of Dartmouth College vs. Woodward, 4 Wheaton, 518, it has been recognized as settled law that the grant of a franchise to a private corporation, upon the faith of which capital has been invested or expended, cannot be revoked or repealed by the legislature without the consent of the corporation.
If a legislature grant to a corporation power to erect, enclose, or maintain a college, to build a railroad, or turnpike, or exercise banking powers, and money is expended by the corporation upon the faith of the grant, the law cannot be repealed, or the grant revoked, without the consent of the corporation, unless the right of repeal is reserved in the charter.
Numerous laws have been passed by the legislatures of the various States of the Union, granting to the United States exclusive jurisdiction over certain places for the erection of forts, arsenals, and dock-yards. Can these laws be repealed and the grant of exclusive jurisdiction revoked? We suppose this will hardly be claimed.
The States of Maryland and Virginia granted to the United States exclusive jurisdiction over the ten miles square originally composing the District of Columbia. When Virginia wanted to reclaim the jurisdiction over the portion ceded by her, she did not claim the right to revoke the grant and resume the exercise of jurisdiction without the consent of the United States; but she applied to Congress to retrocede the jurisdiction over her portion of the District, and in form it was done, though its constitutionality is yet to be determined. The transfer of sovereignty may be the exercise of an irrevocable power. The power when exercised may be regarded as functus officio. The Constitution does not provide for the revocation of sovereignty transferred.
But if the State of Virginia may repeal the laws and revoke the grant of jurisdiction over the counties of Berkeley and Jefferson to the State of West Virginia, why may she not repeal the law and revoke her consent to the creation of the State of West Virginia?
If it be said that the transfer of sovereignty and jurisdiction over the counties of Berkeley and Jefferson is incomplete for want of the ratification of Congress, we answer that it is not necessary that a grant should be formal and perfect, to invest the grantee with rights of which the grantor cannot divest him. No matter however informal or irregular a grant may be, if it is made and accepted in good faith, and the grantee incurs expenses on the faith of it, it confers an equity upon the grantee, which a court of chancery will protect and enforce.
These parties have done everything in their power to complete this transfer of sovereignty and jurisdiction, and if it is still incomplete and imperfect, it is no fault of theirs.
It has been executed and acted upon, and the rights acquired and liabilities incurred upon the faith of the grant affect the peace and quiet of a community of more than 20,000 people.
Your committee therefore submit that the State of Virginia cannot now disturb the peace and happiness of this community by repealing the law and revoking the grant of jurisdiction,
And your committee are clearly of opinion that any action of Congress that would postpone, and leave open to question and controversy, the status of these counties would only increase the bitterness and strife which already exist.
The effect of delay and uncertainty cannot fail to be to foster and encourage a spirit of insubordination and disloyalty wholly inconsistent with the peace and good order of the community.
Your committee therefore recommend the passage of the joint resolution.