The Convention assembled at the appointed hour. In the absence of the President, the chair was occupied by Mr. Soper.
Following reading and approval of the record, the Chair announced that resolutions or reports of committees would be in order.
MR. STEVENSON of Wood. If it requires a motion, I would move that the Convention proceed to the consideration of the additional section offered by the gentleman from Marshall (Caldwell) and the substitute of my Colleague from Wood County.
MR. POMEROY. The difficulty in regard to that is that the gentleman who offered this additional section appears not to be in the house. I suppose it would be hardly proper to consider any business thus specially offered by a member in his absence. As this report on the legislative department is not finished I think it would be better to pass to the report of the Committee on County Organization until Mr. Caldwell can be present. I think we will not lose any time by this course.
MR. STEVENSON of Wood. I was not aware that the gentleman was not present. Of course, I should not have made the motion, and will withdraw it for the present.
MR. POMEROY. I move we take up the report of the Committee on County Organization,
MR. DERING. I am opposed to that motion. We will get our reports so mixed up we will not know where we are at. I think we had better keep on, and the gentleman from Marshall will be in in a few minutes. We had better wait a few minutes, and not be driving at this thing and that and get things mixed up till we will hardly know where we are. I think we had better keep on and let us bring up the substitute the gentleman from Wood has offered and discuss that until the gentleman from Marshall comes in.
MR. VAN WINKLE. That is a matter in which the gentleman from Marshall is interested.
MR. POMEROY. I insist on my motion to proceed to take up the report of the Committee on County Organization.
The Chair put the question on the motion and it was agreed to.
The Secretary reported the first section of the report as follows:
"1. Every county shall be divided into townships having an area of not less than thirty square miles, lying compactly, and containing not less than four hundred white inhabitants. Each township shall be designated "the Township of in the county of ," by which name it may sue and be sued."
MR. VAN WINKLE. Mr. President, as I have hinted on more than one occasion the Committee on County Organization was under the necessity of devising almost, if not quite, an entirely new scheme of county organization; and whatever objections arise from the mere novelty of any project that is submitted here will, of course, raise themselves against this. I apprehend, sir, that the feelings and wishes of our constituents the citizens of what is to constitute the new State, have been expressed so frequently through so many years as to convince us undoubtedly that we cannot mistake the indications that the old county system as a means of discharging the fiscal and business matters of the county is repudiated by them, and should be considered and made by us an exploded institution. In considering what should be substituted for this, for the former scheme the committee have had no hesitation in coming to the conclusion that the township system, as it is called, which in nearly all the states of the Union - at any rate, those lying north and west of us - a scheme which may be said to be perpetuated in the mode in which the general government has divided its public lands; a scheme which has many recommendations from other sources - the committee had no hesitation - for I believe there was no difference of opinion among them as to that - in coming to the conclusion that the township system in some form should be substituted for our former county organization. Of course, the whole report - every provision in it, almost - depends upon the single fact whether the first line of this report is adopted - that is, whether these words: "Every county shall be divided into townships" meet the approbation of the Convention. In order to test that question, in order to simplify it by separating it from the size of the townships and any other of those questions on which there might and will be a difference of opinion, I will move, sir, to divide the vote on this section, or will move, in the first place, the adoption of that first line, or so much of it as declares that "Every county shall be divided into townships."
The great principle, sir, of popular government, or of bringing the government as nearly as possible into the hands of the people themselves; the great principle of equality of representation wherever the business of the people is to be attended to; the convenience of bringing nearer to every man, as it were, those matters in which he has most interest, to enable every citizen to give, as it were, his personal supervision to the affairs of his county and neighborhood, all indicate that a system something like that which is proposed here, a township system - call them by what name you will - a sub - division of the counties into smaller districts, with the view that these smaller districts shall do for themselves all the business they conveniently can and which concerns no other subdivision. And this is what the counties shall do for themselves; all the business they conveniently can, not affecting another county, leaving to the legislature to attend to that portion of the business in which the counties have an equal interest or in which all are interested more or less.
That is the scheme and principle on which this is founded told in a few words.
Supposing the counties to be divided into these townships, we then endeavor to ascertain what portion of the public business it is which the people of the townships themselves in town meetings, acting in this as a pure democracy, can best attend to in these township meetings. Whether the committee have put the matter into the best form is a question for the Convention to determine. I can only say they have been actuated by a sincere desire to place this plan as they at least thought it should stand. They have also by the creation of a county legislature - this may be thought an ambitious name for it, but it is the true technical name and makes the true distinction between the body that is to transact the business of the county and the old county court. We have created a county legislature, called a Board of Supervisors - names, of course are nothing - to which is confided the business of the county, especially that to which the attention of the county court was formerly given. The county court, as all know, was a judicial body, exercising when united as a court judicial function of all kinds, and that the members of the court which did this county business were also when sitting in the court each one a judicial officer and justice of the peace, charged with the administration of the judicial business that was not confided to the courts of record, peace officers, acting as such within their respective jurisdictions. Now, sir, whether that institution might not have been a better one if the practice under it had been different - if after they had discharged their judicial functions they could have come down off the bench and assembled in a room, sitting as a legislature, could have discussed among themselves, without hearing from lawyers whatever they chose to say on the subject, confining them, as they are confined, to written petitions and memorials; if they could have sat in that form and discussion, as is usual in a legislative body, could have taken place between the members; if the opinion of each could have been given and the vote of each taken in a proper way - many objections to that system would have been avoided. But instead of that, the court, without being closed - sitting still as a court, under the same proclamation of the sheriff, without any order of adjournment entered on their minutes, and sitting still in the exercise of judicial functions, they undertake to do the legislative business of the county. If a citizen trail or road, if you please, of five miles opened, he was mostly under the necessity of employing a lawyer to advocate that before the county court; and then a lawyer would appear on the other side, and all the technicalities of the law would be interposed between the gratification of the wish of a few citizens of the county or town and their object. All these legal impediments were interposed and the evil was growing constantly; for it had got to be supposed all these were judicial functions; and I was not so surprised to hear gentlemen state yesterday in the debate we had that the granting of ordinary licenses had been called by some process a matter of law that could be appealed from to a higher court. It was a matter of pure discretion reposed in the county court, as many other matters of this kind must be. They could refuse to grant license according to circumstances; and whether they granted or refused, even that could be carried to a higher court! There was but one conclusion for it to arrive at and that was that whatever the county court had done the discretion had been soundly exercised. They could not go behind to look into the reasons. They had no right to supervise this matter of mere discretion in the exercise of their power of legislation. If legal steps had been taken and wrongly, an appeal lies certainly to the higher court, or could have been taken up in the way other cases are taken up; but in this exercise of discretion, the higher courts had nothing to do with that. They could return but one judgment, and that was that the decision of the county court must be final. They may in some of these cases - I do not say in the particular one before us - where they had refused to exercise their discretion, and according to law, it is possible they might have been reached by a mandamus from the higher courts compelling them to go on and act. I am not prepared to say that there are, but there might have been such a case in the refusal to do anything with it. A mandamus would certainly lie with the higher court. But here is the blending - the evil of blending - the judicial and legislative matters - the evil of reposing them in the same set of men. I would have no objection at all, so far as I am acquainted with them to take the very gentlemen for the most part who fill the offices of the justices of the peace and elect them to the very first Board of Supervisors we have to elect. I can say so, I know, as to many of the justices of the peace in my own county. But the evil is not in this, that the men are unfitted for the position. But in reference to the legislative business of the county they are like the rest of their fellow citizens from the very fact of their own interest in it, capable of judging what is right and wrong in it. Put them into the Board of Supervisors, separate them from the influences as a judicial body and their actions would have been as satisfactory to the public as the actions of such bodies are usually. The difficulty is in blending these different functions. Another difficulty is in the mode in which they proceeded to carry out these legislative functions reposed in them. Now, when laying a levy or determining the expenditures of money raised, all these are questions of discretion. Not one of them is a question of law. Shall so much money be expended for a certain purpose, within, of course, their powers to expend it? But if that question comes up in the shape of a judicial question, shall five hundred dollars be expended in building a bridge over such a creek? Now, where is the legal point connected with that? It is a question that should be met as questions are usually met in the legislature when it comes to erecting a bridge over the Ohio river. Will the good of the public generally be promoted by it? Or if the matter is of a more private nature, can this private claim be granted or this private beneficiary act be passed without injury to the public? These are questions that involve no legal points whatever.
Now, this is the evil we propose to get rid of. Until the constitution of 1850, we had not even the hold on these justices that we had the right to elect them. They were appointed for life - that is - during good behavior, which amounted to life always. They had to behave very badly indeed if they ever got out. But it was a life tenure; for the most part they named their successors; and thus the power of the county was perpetuated in and wielded by a body which was self - perpetuating, which had the power for the most part to elect successors of their own way of thinking; and after that was done, they took and divided among themselves the principal offices of the county. The sheriff's office, the chief executive office of the county, the most important office of them in regard to private and public interests, was a mere perquisite of the office of justice of the peace! Not by law, I believe, but by custom, they took that office in rotation; and not one of them that I ever heard of ever discharged the duties of it himself. The iniquities - for it is iniquitious, whether sanctioned by law or not - of a system under which life appointees simply divided around among themselves the most important and remunerative office in each county, need no comment. Persons who were willing to discharge the duties of the office, to undergo the personal labor for the reward became bidders for this office from the members of the county court to whom it had fallen. He who gave the most got it, or else it was given to some relative as a matter of favor; but always, I suppose, for a given price. In some cases these deputy sheriffs, as they were called - who was in fact sheriff - furnished the securities, so that the justice of the peace if he lived long enough to take his turn as sheriff got a pretty considerable plum without any trouble, risk or liability.
But I am sure I need not go on to particularize all the evils connected with the old system. Suffice it to say that whatever they were they are put an end to by the system reported by the committee; and the question now for the grave consideration of every member is whether that which it is proposed to substitute for the old system, or that which shall be substituted for it, shall be better adapted to the wants of the counties. That will depend on this Convention; and while the committee have been sincerely desirous that the great change - for it is a change, a total change you may say - should take place as easily as possible, is for the Convention to say. The committee do not suppose for one moment that they have hit upon positively the best scheme. The wisdom and anxious reflection of every member of the Convention ought to be given to this subject, and I trust will be; that we shall all approach it in the same spirit; that we will all remember that it is a novel scheme, whatever we adopt, and that difficulties of putting it into operation will attend almost any scheme you can name, because it is new in some sense - practically new to all our citizens. Some may have heard of it, read of it, but very few will have ever have been living under a similar scheme. With this view the committee has endeavored to leave as much to the legislature as possible. While indicating the principles or rules by which these bodies are to be governed, they have left it to the legislature to pass general laws - that term is, I believe, now well understood - but to pass laws which shall affect not this township or that but every township and every county in the State. And every county and township shall be equal before the law; that what is the rule for one will be the rule for the other; and gentlemen must remember that we have already on our statute books several general laws, as, for instance, there was - I do not know, but it was perhaps in the Code of 1819; it is in that, however - a general turnpike law. When a turnpike company was incorporated it was said they were made a company for the purpose of building a turnpike over such a route to such a point; that they would be subject to the provisions of the general turnpike law; so that beyond a few local matters the whole powers of turnpike companies were the same. So, at a later date, they passed a general railroad law, and this general law is made a part of the charter of every railroad. These general laws, sir, can as well be answered altered as well as any other law on the statute book. That right is generally reserved, but we will suppose in the case of railroads. Suppose the experienced principal officers in charge of those railroads find there is a fault in the law; that some provision is too stringent, on the one hand; that some other does not go far enough on the other. Then what do they do? They do not go to the legislature to legislate for the correction of the matter in their particular case, but with a petition to alter it by a general law. Now if the amendment proposed to this general law is really a good one, every company in the State will be in favor of it; if it is one that would work injuriously anywheres, a portion at least will be opposed to it. In this way in the course of a few years what the situation and circumstances of railroad companies really demand is made known to the legislature and put practically into operation; and what at first view might have seemed to be sound provisions but which practice has proved to be otherwise, those provisions are repealed.
That is what we mean by general laws; and it was passed into the amendment yesterday that removals should be made by general laws and not by special laws. It is these special laws that occasion the long sessions of the legislature, of which complaints are made; which occasion the imputations - and I trust they are only imputations - of corruption if not of receiving bribes and so on; but all the members being moved by private interests of their particular friends, it is all these things which protract the sessions of the legislature by the endeavor of this member or that to get in some provision for the benefit of some particular party. Because it takes more time to pass perhaps one of these laws in which these private interests come into contact than to pass a law of a general character in which private interests were not so prominent.
If we could succeed in taking from the legislature the necessity of any private or special acts - and that we can in a great measure unquestionably - they come together for the passage of those laws which affect equally every part of the State; which are necessary no doubt for its prosperity and concerning which every member comes there to express his views, the wisdom of the State is elicited in this way, and the law becomes, perhaps, in time as nearly perfect as a law can be.
But, sir, there is another point of view to which I wish to call the attention of members of this Convention, and that is to this subdivision of counties as a merely political institution; as one that is favorable to what we call political liberty and civil liberty; one that is favorable to the preservation of republican institutions; and one which derives its very existence from the attempt to reach as nearly as possible perhaps the one true system of government, were it always practicable, that of a pure democracy. Such democracies have existed in ancient times where every act of legislation was done by the whole people assembled. It is true, sir, when the great cities of Athens and Thebes, if I mistake not, lay only as far apart as Parkersburg and Wheeling, in territories perhaps as circumscribed as that of a few counties of our State - when the whole territory of Greece, lying, I believe, between the same parallel of latitude as the State of Virginia, and not of great extent from east to west, embraced within its bosom those nations whose history we read with surprise and admiration; nations in this limited territory that have given the stamp to all the civilized world; nations whose remaining works of art are superior to any that subsequent times have produced; nations whom we know to have in a dark period of the world's history to have stood out as the bright spot illuminating the darkness around them - these nations, comprised within this limited territory, which although occupying no more room than a few of our counties were able to carry out the purely democratic system. For many years, in Athens, at least, the whole people met in a building the ruins of which are still remaining, or in front of it, there to decide the legislation of their state. That, of course, is the true idea. It is the idea that when we form a little society here within our own limits for any purpose whatever, and the very principles we engraft on that society are the principles that underlie the great constitution of society itself, as it is called, wherever it exists - of every community, if it is only a township, on the face of the earth. We never think of any other thing. When we form a temperance society, if you please, it never occurs to us that one member is to have more voice in it than another; nothing but the absolute equality of the members is ever supposed or thought of. And in the legislation of this society, in its transactions, that every member shall have his vote, is another thing that it would be supposed an unheard of matter if we should offer to change it. It has, like other organized governments, its officers by which it transacts its business; but their powers, as in a larger government, are limited and defined. In this way these societies may be considered, if they were acting in reference to government they would be, pure democracies, every member having his vote. This is the way that every member who constituted a citizen of Athens - for many were not citizens - had his direct vote on all the legislation of the country. That, sir, became inconvenient there; and it must be particularly inconvenient when a territory as large as even the proposed new State is the theater of action. The people cannot all at one time leave their business and go up to the seat of government in order to transact this business. They must therefore have the intervention of representatives. They grow out of the necessity of the case; that is, they are demanded by the convenience of the people; and it follows from that as conclusively as one proposition ever follows from another that when you go to create a representative you should confer on him no more power than is necessary to promote the convenience of the people. If you are to appoint an agent to transact even the smallest business for you, you put into his hands just so much power as is sufficient for his purpose - no more. And so whenever you select a public agent who is to administer your government in any department you should seek to put in his hands no more power than your own convenience demands and is necessary for the purpose. What you conveniently can transact, you transact for yourself; what you cannot, you place in the hands of an agent. And so in government, what you can retain in your own hands you should retain as the only safe plan; but what you cannot conveniently you must commit to agents, and place around them such safeguards and restrictions as will insure due attention to their duty.
In reference to the representatives of a people in government, we have endeavored to do this in this country. It is an avowed principle in reference to the making of the Constitution of the United States, which took its tone from state constitutions already made, and gave back the same tone to them and to those subsequently made. But it was the frequent return of these agents to their employers to receive fresh instructions; that is, in short, frequent recurrence of elections; that these agents should surrender their power at stated times in order that those for whom they I were acting might say whether they would choose to continue them I in the office.
Not to protract this discussion too much - for I believe I could go on all day - is a matter I have studied for many years and have devoted some of my leisure to writing upon - I am convinced that the only safety for any people is in making their institutions as nearly democratic as circumstances will permit that the only real safety is in having them in their owns hands, and when they are obliged to depart from it to do it as little as possible; for if I had anything to call upon the putting into operation two systems one of which preserved that principle and the other departed from it, I should expect that the former only would come out right.
I wish, sir, to show that, as much as I claim to have thought and reflected on this subject; as much as I approve it and endeavor to uphold it, that the scheme is by no means mine; that it originated before I had sufficient discretion, at any rate, to reflect properly on such matters; and, as I have already shown, it perhaps is older than Christianity itself. I did on a former occasion, with the permission of the Convention - which I invoke again, if the Convention will pardon me - read some extracts from the letters of Mr. Jefferson, of which, unfortunately I have not preserved the date; but as he died in 1826 they must have been written previous to that time, but when the subject of having a new constitution in Virginia began to be agitated. They may therefore be fixed about 1820. They were the result of his preparation given to them as the result of his reflections. I did not read the whole that he said on the previous occasion, but I am satisfied there is no member here that will not be interested to hear all he had to say on so important a subject. In reference to this novelty and in reference to the fact that we are about to make a radical change, I will read also a short extract from Mr. Jefferson on the subject:
"Some men look at the constitutions with sanctimonious reverence, and deem them, like the ark of the covenant, too sacred to be touched. They ascribe to men of the preceding age a wisdom more than human and suppose what they did to be beyond amendment. I knew that age well: I belonged to it and labored with it. It deserved well of its country. It was very like the present but without the experience of the present: and forty years of experience in government is worth a century of book reading; and this they would say themselves were they to rise from the dead. I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because when once known, we accommodate ourselves to them and find practical means of correcting their ill effects. But I know also that laws and institutions must go hand in hand with the progress of mankind. As that becomes more developed, more enlightened, as new discoveries are made, new truths are disclosed and manners and opinions change with the change of circumstances, institutions must advance also and keep pace with the times. We may as well require a man to wear still the coat which fitted him when a boy as civilized society to remain under the regimen of their barbarous ancestors. It is this preposterous idea which has lately deluged Europe in blood. Their monarchs, instead of wisely yielding to the gradual changes of circumstances, of favoring progressive accommodation to progressive improvement, have clung to old abuses and entrenched themselves behind steady habits and obliged their subjects to seek through blood and violence rash and ruinous innovations which had they been referred to pacific deliberations and collected wisdom of the nation would have been acceptable and salutary forms. Let us follow no such examples, need we believe that one generation is not as capable as another of tinkering of itself and of ordering its own affairs."
- Extract from letter of Jefferson to Mr. Kercheval. It will be remembered that Mr. Jefferson was writing nearly fifty years after the Declaration of Independence. He considered himself to be a part of the former age; that is, as I understand him, the age which gave a start to this great country. He says: "I knew that age well: I belonged to it and labored with it. It deserved well of its country. It was very like the present but without the experience of the present." With them it was an untried scheme, to a great extent; "and forty years of experience is worth a century of book reading; and this they would say themselves were they to rise from the dead."
A gentleman called on Mr. Webster once and found him reading Shakespeare. A conversation arose on the book, and Mr. Webster asked his visitor which play of Shakespeare he preferred. His visitor, who was probably from the same section of country, Yankee land, answered by putting the same question to him. Mr. Webster thought a moment and said, that the play he read last was the best. And so it seems with these papers, as it were, of Mr. Jefferson's. The one you have under consideration seems always to be the strongest; there is so much of forecast, so much of simple - mindedness in reference to results; so much love of country; so much statesmanship in all that he has left us of the productions of his mind, that we are almost astonished when we get hold of them, at not merely the wisdom but the foresight they evince.
I now come to another extract which I beg leave to read, more at length than in the former case. He says, after recommending the equality of representation and an elective judiciary, now, I believe that was before anybody else had talked of such a thing. He says:
"The organization of our county administrations may be thought more difficult. But follow principle, and the knot unties itself. Divide the counties into wards of such size as that the citizen can attend when called on and act in person. Ascribe to them the government of their ward in all things relating to themselves exclusively. A justice chosen by themselves in each, a constable, a military company and patrol, a school, the care of their own poor, their own portion of public roads; the choice of one or more jurors to serve in some court. The delivery within their own wards of their own votes for all elective officers of higher sphere will relieve the county administration of nearly all its business; will have it better done, and by making every citizen an acting member of the government and in the offices nearest and most interested to him will attach him by his strongest feelings to the independence of his country and its republican constitution. The justices themselves chosen by every ward would constitute a county court, would do its judiciary business, direct roads and bridges, levy county and poor rates and administer all the matters of common interest to the whole county. These wards, called townships in New England are the vital principle of their governments and have proved themselves the wisest invention ever devised by the wit of man for the perfect exercise of government and for its preservation. We could thus marshal our government.
"First, the general Federal Republic for all concerns foreign and federal;
"Second, That of the State for what relates to our citizens exclusively;
"Third, The county republics for the duties and concerns of the county, and
"Fourth, the ward republics for the small and yet numerous and interesting concerns of the neighborhood.
"In government, as well as in every other business of life, it is by division and subdivision of duties alone that matters great and small can be managed to perfection; and the whole is cemented by giving to every citizen personally a part in the administration of public affairs."
In a letter to Major Cartwright after stating that it was proposed to call a convention to revise the constitution of Virginia, he says again:
"Among other improvements I hope they will adopt the subdivision of our counties into wards. The former may be estimated at an average of twenty - four miles square. The latter should be about six miles square each, and you answer to the hundreds of Saxon Alfred. In each of these might be
"First, an elementary school; "Second, a company of militia with its officers; "Third, a justice and constable; "Fourth, each ward should take care of its own poor; "Fifth, their own roads; "Sixth, their own police;
"Seventh, elect within themselves one or more jurors to attend the courts of justice;
"Eighth, give in at their folk - house their votes for all functionaries reserved to their election.
"Each ward would thus be a small republic within itself; and every man in the State would thus become an acting member of the common government, transacting in person a good portion of its rights and duties, subordinate, indeed, yet important and entirely within his competence. The wit of man cannot devise a more solid basis for a free, durable and well - administered republic."
If there ever was emphatic language it is embraced in these extracts. No one can be left in doubt a moment as to this great statesman, one who had exhibited so strong a regard for the welfare of his country. We cannot suppose this man, with such grasp of mind as he possessed had not studiously and deeply examined this subject; and that these are not the conclusions or notions or whims of a day, but that they are the conclusions of the best reflection he was able to give to that subject.
It is true, sir, this report departs necessarily in some things from his scheme, although even that one would be so novel here that no one would think of adopting it; but even that proposition to elect the jurors is worthy, I think, of consideration. We have progressed some since the time of Jefferson; or, if we have not progressed so rapidly, they have been progressing all around us. Circumstances and influences have been going according to his views we must adapt ourselves to the present times and not to those which are past. But the principles he has laid down which are to be the salvation of free government, as he contends, because they make the safest depository for it, are as eternal as the hills. Principles can never die if they are worthy of the name. Principles survive all else and all changes of humanity. But it is in the application of them that changes are required. In order to carry out the same thing sometimes, perhaps at one time you make a different body of men or a different feature from what you do at another. So far they may change, but the principles themselves remain. The principle here is to bring right back into the hands of the people the exercise of the powers of government. I say bringing it back, for it has escaped them wonderfully in Europe, escaped them a good deal in this country, and a good deal in this State. But the bringing back into the hands of the people the direct administration of such of their own affairs as they can transact with convenience to themselves is the object sought. Their convenience being, in my opinion, the only measure of what is proper to put into their hands. And Mr. Jefferson has the very idea, tracing it down through our Federal Government, which is in charge of our external relations and those relations in which all the states are interested, leaving to each state the administration of those affairs which pertain to itself exclusively; and then proposes to carry this system further by confiding to the counties that which in our history has been a great deal confided to the legislature, and confide to these bodies, where it may be safely confided if properly constituted, to these county boards much that has heretofore been transacted at the capital; and then, to come still nearer to the people, as he says it may be convenient for every man to attend to it because he would not have to go far in order to do it, he proposes these subdivisions of the county and makes the people themselves living within the township or territory, makes them actually the government itself for such matters as pertain exclusively to their townships, by their own votes at their "folk - house," the old Saxon term. And it is no doubt true, what he wrote to Major Gartright, that we are going back to the same principles that prevailed in the days of our remote English forefathers - in the time of Alfred, one of the remarkable men who has sat on the English throne, who have had so many. These institutions in the hands of the people have been the safe - guard of liberty everywhere. In the history of modern Europe we find that the associations of the trades - as, for instance, the clothiers or the fish - mongers, as in London, and other bodies engaged in different branches of business, in many of these cases they were the saviors of the liberties of their country. We find these "Guilds" as they were called, on the continent, gradually obtaining certain privileges; and then when the struggle for liberty commenced it was always the guilds fighting for the liberty they had thus acquired. Well, we find it to some extent the same in the boroughs of England in later times - contending for privileges and resisting the crown in its efforts to subvert them. The whole of history is full of it - these corporations, or whatever you may call them - these guilds - that they were where all the liberty was during the dark ages of Europe.
But we propose now not to take a separate trade or profession and erect them into a guild, but to divide the whole State into small territorial departments and erect a corporation, with its own privileges right there in everyone, consisting of the whole people of the township. We will not have a centralized government even in the State such as France is at this day; such as it was under the republic of Lamartine and lost its liberty. Paris was France; and when Paris was subdued, France was subdued. A French friend of mine of republican principles asked me at the time if I thought that republic would endure. I replied to him that if they would decentralize; if the prefects of the departments were no longer to come from Paris, if the people were to be allowed to elect their own county rulers, they might maintain their French Republic. But that if they were to pursue that system of centralization which has always existed; if the prefects must be sent out from Paris and, of course, be in the pay and under the sole influence of the central government at Paris, they could maintain no republic, for it was contrary to the very idea of one. I think, sir, but one of the different riots intervened before it brought us the news that the French Assembly, deliberating from day to day, concluded these prefects should be still sent from Paris. I prophesied then that their republic was gone; and if it had not been overthrown by Napoleon usurping the power, it was gone practically and would have become the spoil of some other usurper, for there was nothing in such a system as - could be called a republic.
I call attention particularly to that idea of Mr. Jefferson that this is the best organization for the preservation of the liberties of the republic; and it is the best always because of what I have already adverted to several times, to place the matter in the hands of the people themselves. We need not ask whether these people are capable of managing these affairs. We do not want to know how much book learning, how deeply studied in the principles of government. It would be well if all would pay more attention to these things. But what we do know is this, that when acting in their townships and acting in their counties also, they are acting on matters which come home to their own business and bosom. The citizen is interested. The controlling motive with mankind is self - interest, not always an improper one if a man will take an enlarged view. It includes the welfare of others. It will dictate to them what measures are proper. They will know whether their situation demands an improvement here or can spare it there; whether money may be expended here or could be saved there; whether these officers who are going into these matters so near to them are discharging their duties. They will see it, for it is under their every day observation, and those must be very blind to human nature and to the character of human nature if they suppose that having detected improper practices in these offices that even the strong links of party can bind them to re - elect them. They may do it without knowing or caring much who we have elected as members of Congress. We did not know how Congress operates on us until this war broke out. We never felt the United States Government before. We had very little interest in the money of the government. It is true it was as efficient for our protection as now, but it did not press itself home to us as in these matters that lie nearer to our daily business. We might then be careless about who we would elect to Congress; but we would not be so careless about who we would elect to the county legislature. We know the action is to be on us, and our own interest, feelings and regard for our own self - respect would lead us to select proper men.
And look what a school it is. I have said in reference to some nations when I was told that they could not bear liberty; that the South American republics, for example were not fit for liberty, I replied: That you did not give them liberty enough. There you had the centralization again. The people had nothing to do but to elect the members and officers of the government. Give them the direct charge of those matters which come right home to them and they will know how to discharge their duty in reference to them; and this, as I have said, is a most excellent school to teach them to act correctly in regard to their interests in other quarters. For they learn to canvass the character, meaning and how to administer their township affairs, because they are obliged to look into them, their interest being so nearly connected with it. It is the same in regard to their county officers. They are obliged to look into his character and watch the operations of those they invest with power in order to see that the principles on which they are based are being carried out and to learn what those principles are in practical application. Tell me if after a few years have passed spent in this sort of education, whether the people of this new State that we propose to erect, with such an education in reference to public matters it will no longer be possible to deceive them by sending inferior men to the higher legislative bodies, the state legislature or the Congress of the United States. No, sir, by keeping these matters out of the hands of the people as far as possible; by doing as the new constitution recently made for this state does, take away from the people again everything except the election of members of the legislature and the governor, I believe; or, as South Carolina has done, take away from the people even the choice of presidential electors - they sink down into apathy. They are not permitted to take an active interest in these matters, and they will cease to take any; and the oligarchy that is thus created over them still more and always steadily encroaches on their liberties until their liberties are gone.
These, sir, if the other reasons were not as forcible as they are, if there was not a practical and immediate benefit to flow from some such system as this, yet in the views that I have given and perhaps others that could be stated, they are the great preservers of republican liberty and republican institutions - this system of townships ought to be adopted. I do not believe, sir, enthusiastic as I may be, if you please, to call it so, in their favor, I do not, from the best reflection I have been able to give this subject, that in striving to make my remarks forcible here that I have exaggerated in the least degree the benefits they may confer upon us; not, perhaps, immediately, because we want a practice under it. Then, sir, let me conclude by saying that if but a tithe of the benefits and advantages which I have mentioned are to be derived from institutions of this kind if this Convention shall conclude to adopt this kind of organization and division into townships, let me ask that every member will endeavor to view the subject as free as possible from all local influences and will endeavor to institute a system in its purity, adapting it to our present situation in the new State, guarding in every possible way against abuse and confirming the grand leading principles of republican government, giving the people the administration of their own affairs as far as possible. Convenience demands this division into townships; and the evil of small counties, as I have already indicated on this floor, will perhaps be done away with by the very fact that they will no longer be cared for. The greater part of the business is not to be done at the county seat. It will make a more equitable distribution throughout the whole territory of the State of these things in which the county interests have had some advantage. But these are minor considerations; and I confidently leave the subject with this Convention, believing from what I have seen here in reference to other matters that this subject will be approached with a sincere desire to retain at least all the benefits of which it is capable.
MR. BROWN of Preston. I move to strike out the word "townships" and insert "districts" in lieu thereof. I have no particular attachment to names; yet the gentleman of this Convention will remember that the people of the State of Virginia, at least for the last ten years, have been accustomed to districts. I think the word is preferable to the word township. There is a prejudice, I confess, in my own mind against this word and there is a prejudice, I believe, on the part of the people of Virginia to the word township. It is a Yankee institution, and some of them at least have very serious prejudices to institutions coming from that quarter.
MR. BROWN of Kanawha. I move to amend the amendment of the gentleman by inserting in lieu of "districts" the word "parishes" (Laughter). I fully concur with the gentleman that in adopting new and radical change it were best to preserve language with which we are all familiar and that has rather Virginia vernacular. Township is a word that has been sought to be introduced into our state on more than one occasion. The convention of 1850 had the same question up and excluded it. It is a New England name I believe peculiarly; and while I am one of those who are never averse to taking anything from New England or old England that comes to us on its merits, yet have a preference arising from familiarity and prefer that which is my native country's. Parish is a Virginia word; rather an English word, and has come down to our people from the earliest settlement until its abolition under the state government as formed in the revolution. Still it is retained in many respects in our books; and I do not know but some parishes still exist in a not local form; but land that belonged to several parishes of Virginia are some of them questions not disposed of. It is said there is much in a name; but I confess that whenever a thing is presented to you in a form that is familiar by association it is always preferable, particularly if the one or the other seems to make a distinction and to give a preference to that which is not Virginian to that which is Virginian. There is another reason for it, and that is the simple merits of the words. Parish is a simple word easy of enunciation. Township is a compound word, rather harsh and not euphonious at all. So that in every view parish is preferable to township and I think equally so to district. District is more objectionable than parish from the fact that that is a word that means not the peculiar idea that will be attached to this territorial subdivision but the larger area or extent. It is a word of much larger latitude. So that I decidedly prefer parish to the other words proposed.
MR. POMEROY. As a member of the committee, I am opposed to the amendment that is presented to the amendment. I cannot see that "parish" would be a preferable word to the word "township." Parish is strictly an ecclesiastical word and has reference to the boundaries included within a minister's congregation. I do not think that would be proper in this case.
In regard to "district" I would say that we have the legislative districts, the senatorial districts; we have the congressional districts, the judicial districts; and it is a complication to call the townships districts or have the county divided into "districts." I would rather have what we now call them - I would rather call them "precincts"; but I think "township" is the preferable word. Mr. Jefferson suggested the word "ward," but I am not favorable to that. I am in favor of the report of the committee in this respect. I will therefore give my vote against the amendment to the substitute - "parish."
MR. MAHON. Having the honor of being one of the members of the Committee on County Organization, this question was before that committee, and the committee adopted the name "township," as I understood it, for convenience' sake. The names "ward" and "district," however, were before the committee. I do not think that there is anything particularly in the name. I do not think there is; but as the gentleman from Kanawha thinks something that is familiar to the Virginia people should be adopted, I should think "parish" would be a name as new and strange to the majority of the people in Virginia as "township," and a good deal more so. Some gentlemen seem to object to the name because it originated up here in the North. Well, now, I am very fearful, Mr. President, that others in West Virginia might object to the name "parish" from the fact that in Louisiana they have their parishes, and it comes from the South. I think objections of that kind are very weak, and should not have weight in the minds of this Convention. I know of no name at the present time that suits me better than "township." I have no objection to ward or district only that we have the different districts named in the Constitution. I think township would be the best name to adopt.
MR. LAMB. I believe the Yankee term is "town," not township. Township is a Pennsylvania establishment I know, because I came from Bullskin Township (Laughter). Township is an United States word. All the public lands are divided into townships.
MR. STEVENSON of Wood. I was just going to make the remark made by the gentleman from Ohio in reference to Bullskin Township; but the fact that the public lands are laid out into townships - that seems to me to be an important consideration, because it will conform the organization of the new State to probably a larger extent of territory than is settled even at the present time when that land is settled up.
There is another consideration, sir, that has been adverted to slightly, and that is this: that we have already provided for districts for congressional purposes, for senatorial purposes and for house of delegates; and as the other reports come in - for instance, the school report - we will have, I suppose, school districts; so that it seems to me to adopt the name district for these proposed county subdivisions, we will complicate the difficulty. I think we will have, as it will be without adopting this amendment, probably too many districts already.
There is another consideration that has been alluded to and that is this: that by preserving the name "district" the matter will become mixed up in the minds of the people in this way and lead to a difficulty that we have had heretofore. For instance, magisterial districts will be confounded in the minds of the people when you speak of a district with the districts which we will adopt here and which we propose to call townships. I think as a matter of clearness and convenience it would be better not to adopt the word "district" although I have no special objection to it on any ground. I think, though, the term "township" is better understood even by the people in western Virginia than any other name you can attach to a subdivision of a county - better understood by a majority of the people; and I think it will continue to be better understood as we progress in the new State. Some of these objections will lie against the amendment offered by the gentleman from Kanawha, and the other objection alluded to by the gentleman from Hancock, that it is, I think properly, understood to be some ecclesiastical division of territory rather than one for political purposes or the purposes for which people use such divisions. It is so regarded, I believe, even where it is preserved in this country, at least to a great extent. It is certainly that idea that is attached to it in the older countries, almost universally so far as my reading of history goes. Besides, sir, it is a name that I do not think is understood so well by the people of the new State as the word "township" or even the word "district," so that I think it is even more objectionable than district; and neither of the names so much desired as township for the reasons which I have given; and I hope both amendments will be voted down and the name reported by the committee will be preserved. I was sorry to see the name objected because it was of New England origin. Twenty millions of American people have adopted, in substance, the township. Twenty millions now American have adopted what Mr. Jefferson recommended, what originated in New England, what received there the name of township and which has been so ably presented here by the gentleman from Wood (Mr. Van Winkle). Twenty millions of the American people have adopted the thing in substance; they have also adopted the name. The United States government has adopted it for the subdivision of the great public domain which will in time be the homes of a hundred million more American people. I was sorry when it was contemplated to adopt this form of subdivision for this new State that these attempts should be made to excite prejudice against the word because it had been first employed by our fellow - citizens in the North. "Parish" is no more known in western Virginia. It is only peculiar to Louisiana and South Carolina. Just at this time we are not looking to South Carolina for examples.
MR. VAN WINKLE. The whole territory of the new State is divided, I believe, by the Episcopal church into parishes. They use the term to apply to the extent of the jurisdiction of every preacher.
MR. PARKER. There is an insuperable objection to the word "district." We are filled with districts - some five or six kinds, as gentlemen well remarked; and it seems to me a conclusive objection. Do you want to pile on another district? Township is a distinctive name. It could never be mistaken for anything else.
MR. BATTELLE. If you please, Mr. President, I do not want to make a speech, but let me correct one remark dropped here. I think that very much more than twenty millions of people of this country have adopted this thing and to a general extent the name. The land sold by the United States is divided into districts of country, usually called townships, throughout the Southwest, in Alabama, Georgia, Mississippi, Arkansas, and throughout all the western states. By far the largest portion of our territory. South as well as North, is divided into that sort of districts and usually under that name. The United States calls them "townships," not towns.
MR. BROWN of Kanawha. I am by no means satisfied that the gentlemen from Wood are correct and that this name is adopted by the general government in application to lands belonging to the general government and being sold out; and I would like to ascertain from the gentlemen how it would affect my view of the case if it was so. But I think they are in error. All I have ever known of the public lands was a simple adoption of those lands into sections and so on, whenever a territorial government chooses to fix names to those subdivisions.
MR. LAMB. There is no doubt that the United States have adopted townships, sixty - six miles square.
MR. BROWN of Kanawha. It may be so, sir: but whether or not it has adaption to us is the question here. I confess in the selection of a name I prefer that which is more familiarly and emphatically a Virginia name. There is no reason here except the mere preference about a name. The thing is the same whether you select township, district, parish, section, or any other name. It is a mere name. Because it is a New England name and parish more particularly a Virginia name, I prefer the parish. It has another preference, that it is a simple name: not a compound word even. There is another consideration that strikes me if this section is to be adopted, about which I now express no opinion, and do not discuss the merits of the case. I am determined to hold myself open to all the arguments and lights that can be thrown on the subject by the papers now under consideration. But I say, sir, that the radical changes you are proposing to introduce in your Constitution may commend it in some respects to the popular wish but it may, on the other hand, meet popular prejudices; and I wish it distinctly understood, so far as I am concerned - and I know what the feeling of the people of Virginia is - that the popular prejudices and sentiments of those people, without regard to whether they have or have not any reason for them, should receive due consideration here. When you introduce radical changes, it is not necessary to needlessly imperil the success of what is good by this kind of a name which will meet the prejudices of the community whether unfounded or not. The gentleman tells us the parishes of Louisiana are ecclesiastical divisions there. They are political, legislative or constitutional subdivisions. They were adopted there by Mr. Livingston of New York, who wrote the constitution of Louisiana, as comment says, because they are southern. I consider myself, and every Virginian - a part of the South. We are all southern people; and I have yet to learn that we have any prejudices against that which is southern because it is so, apart from the rebellion that is going on by those who are warring against our institutions and government. I imagine we are all southern people as much as ever we were, with southern prejudices and preferences; and when a mere name is addressed to me which in itself has no particular preference, it does not commend itself to my favor at all because you select the name that wears a prejudice from the other side. The very difficulties that are now existing have arisen out of these grounded prejudices in both sections of the country, and because of the eternal agitation of men that are purely sectional in character and determined never to let the people alone or attend to their own business.
I, therefore, decidedly prefer "parish." Because they are ecclesiastical divisions that can be no difficulty. There are all sorts of churches and there is no clash between their ecclesiastical and civil jurisdiction. There can be no objection urged against it on that score. The simple question addresses itself to us is a word which has come down to us from the English nation into our colonial government and then on to the revolution - whether we prefer that to a new introduction which comes from a local and is purely local in its introduction now. I have no hesitation in decidedly preferring "parish."
MR. BATTELLE. It seems to be a sound principle that of two competing things or names, both equally good, sound wisdom will always dictate that we take that which the people are most accustomed to, both being equally good. But it seems also still further to be a part of that principle that of two competing things one of which we have had, the other of which we have not had, that if the one we have had is determined to be the best thing that we are to take it, whether we have been used to it or not. It seems to me that to proceed on any other principle here in our deliberations is to forego, at least in great part, the very object for which we are assembled here; that is, to collect together from every quarter and every place from the results of the experience of the world that which has proved to be, whether among ourselves or others, the best thing adapted to our purpose. Now, I hardly know whether it is necessary to state or elaborate that principle in view of the matter on hand because it really is not a matter in itself, the mere question of a name, which should detain the Convention any great length of time. The gentleman from Kanawha insists on the use of the word "parish" because it is a Virginia name. Well, now, even on the hypothesis that we ought to take the name on that ground, it seems to me the gentleman is in error. It is not, I beg leave to say, with all due deference to the gentleman, a Virginia name. It was originally known and used simply and chiefly as an ecclesiastical name, as a name devoted to ecclesiastical purposes in England. It is now known as a division of political or geographical territory in South Carolina; but it is not known and used in Virginia. If I mistake not, it is not employed at all in the present constitution of Virginia. Now even if Virginia did once employ it as a political division, and has abandoned it, for any reason whatever, the question is: shall we for the simple reason that Virginia once did employ it go back and take up what she cast aside for reasons which were sufficient for herself, of course, in casting it aside?
The question was taken on the amendment to the amendment (to substitute "parish" for "district") and it was rejected.
The question recurring on the amendment, to substitute "district" for "township," it was rejected.
The question was then taken on the motion of Mr. Van Winkle to adopt so much of the first line of the report as reads: "Every county shall be divided into townships" and the motion was agreed to.
The residue of the section being under consideration,
MR. STEVENSON of Wood. I move its adoption, sir.
The Secretary reported the full section:
"1. Every county shall be divided into townships having an area of not less than thirty square miles, lying compactly, and containing not less than four hundred white inhabitants. Each township shall be designated "the Township of........................................ in the county of ......................................................," by which name it may sue and be sued."
MR. CALDWELL. Mr. President, if I understood the chairman of the committee in his remarks, which we listened to with profit and patience, he regarded the action of this Convention on this first section as the test of the question on the whole report. I do not know why he bases it on that ground. Now, for myself, sir, I might be disposed to adopt this first section - that is to say: that the counties should be divided into townships, and might be opposed to other sections of this report. It is to have an understanding from the chairman of the committee whether that is his view, sir, whether I am mistaken in it or not that I have arisen to ask the question.
MR. VAN WINKLE. I do not understand the gentleman.
MR. CALDWELL. I understood the chairman to say that he regarded the action on the first sentence as the test consideration of the Convention on the whole report.
MR. VAN WINKLE. Oh, no, sir. I only wanted it to vote that way because it is evident - very evident - that if the Convention had voted negative on that the whole report must go back and nothing could be done with it. I thought it best for the Convention to express their opinion, which they have done.
MR. CALDWELL. I beg leave then to call attention to the first provision, which is that the counties are to be divided into townships and that these are to be not less than thirty square miles in area and are to contain not less than four hundred white inhabitants. Let us take the case of Ohio County. By this division, you would necessarily have to divide her into townships of not less than thirty square miles. You would make, as I understand it, only two and one - half, or less than half, townships in Ohio. Some of these would contain much more than the number of inhabitants required. You might secure the election of more justices and more supervisors according to the number of inhabitants in these townships; but, sir, then you provide in the second section for only one supervisor for each township and one clerk of the township. Now, sir, it seems to me that in referring to the situation of the county of Ohio, because it is a small territory, and when you come to these small counties in the State - take Tucker, for instance - you divide that county into townships of not less than thirty square miles, and you necessarily have to increase the size of the township to get the four hundred inhabitants. In Tucker, with a small population, and I think, sir, a small territory, you would have a difficulty in arranging and forming these townships.
I make these remarks to call attention, especially of the committee, and that of the chairman of the committee, to this probable difficulty in arranging these townships.
MR. LAMB. Mr. President, I move to strike out from the word "having" in the first line the words "an area of not less than thirty square miles," so much, in short, of that section as prescribes the area. I do not see how the section could be applied, in Ohio County, for instance. If you require an area of not less than thirty square miles, Wheeling must be one township, with an adjoining territory. If the plan is to apply generally throughout the State it must in certain cases render these townships unwieldy, so that it would be impossible for the inhabitants to meet together to transact their business. Defining the township by the number of the white inhabitants alone, it strikes me, will enable the system to operate more properly.
MR. HERVEY. Lest the Convention might not be disposed to come at once to the proposition of the gentleman from Ohio I have an amendment to his amendment to offer, to strike out the word "less" in the third line and insert the word "more"; which would admit of smaller subdivisions to any extent desired. It would be certainly true that the rule laid down in this section could not be applied to the panhandle counties. We have about eighty square miles in Brooke County and between five and six thousand population. This provision would give us perhaps less than three townships; which would cause two townships to have a population of about 2500 each. By the present article of apportionment, our county is divided into four districts. That would suit us better. Each county could then be districted to suit the weakest sections, while more sparsely settled counties might perhaps desire to have the full number.
MR. SINSEL. Mr. President, I am opposed to the amendment of the gentleman from Brooke, to lessen the number of square miles.
MR. HERVEY. That does not do it, sir, absolutely.
MR. SINSEL. Well, that is still worse. They may make them larger. The way it is now - the way the report of the committee stands - they cannot make them less but they may make them to contain a hundred square miles. I would surely prefer that. If they will look at the officers that are created by these subdivisions and the expense that the county will incur from them, I think they will find a serious objection. Now, suppose you take an average of 480 square miles for the county; and 30 square miles as the least: that would give 15 townships to each county on an average. Well, these 15 townships, with a population of 9000 on an average numbering 600 would be entitled to 15 supervisors. Now, there are 15 officers to start with. It would then be entitled to 15 clerks, one for each township. Then would follow 15 overseers of the poor. Then the least number of justices of the peace would be 15 justices, and of constables the least number would be 15. Then one clerk of the county. Now, these are additional officers created by this arrangement with a few exceptions of justices and overseers. The sum of these officers would be 76 officers now created by this township arrangement, or these divisions, all to be paid at the expense of the county? And that is not all. Here the people are to assemble in person in these townships at stated periods and transact the business of their township in person. Well now, it is an old saying and a true one that a man's time is his money. When you take the loss of time in attending these meetings, then the amount of money that you would have to pay to officers, I believe they would begin to cry out, "Would to God I was back in Egypt again" (Laughter). It does seem to me so. Now, I prefer the old division as made by the last convention of Virginia. Counties might be divided into districts or townships; I would say not less than four and not more than eight; adopt this division of the gentleman from Brooke and you may make thirty or forty instead of fifteen. If you made it thirty, which it is liable to be, then instead of 76 officers you would have twice the number. Well, now if these officers are allowed a per diem of three dollars a day, or two dollars, and meet and hold adjourned meetings, you have your thirty supervisors assembled in legislative form transacting business at three dollars a day and two dollars a day, would there not be a strong temptation to go on and protract business; and where would the expenses end? Instead of adopting any amendment which will increase the number of the townships we ought to be very careful to lessen them in order to save expenses.
MR. BROWN of Kanawha. I am opposed to the amendment of the gentleman from Brooke. My county, sir, has 750 square miles. If this amendment should prevail it would require that territory to be divided into 25 townships; and my mind has taken somewhat the turn of that of my friend from Taylor in looking over the offices to be provided under this section. I find that in my county there would have to be 25 supervisors, 25 clerks, some surveyors of roads, one overseer of the poor; making according to the estimate I have made, 150 officers aside from the number assigned to precincts. Then in addition to that, there is a clause at the end of the sentence "and such other township officers as may be directed by law." How many they would be I am not prepared to say; but a friend has made the calculation making the number of officers under this system in a county amount to about 300. This is a little too strong for me. So I am certainly opposed to any such system. I do not think the people will submit to a system that creates such a vast number of office holders. I am certainly opposed to the motion of the gentleman from Brooke.
MR. LAMB. The gentleman from Brooke, if he will reflect on the character of this amendment will see that it involves a physical impossibility. Take Tucker, for instance. These townships are to contain 400 white inhabitants. There cannot be over three townships in that county, upon one clause of this. Well, Tucker certainly does not contain less than 300 square miles in area; so that the two clauses could not operate together with his amendment.
MR. HERVEY. I will with leave of the Convention so change my amendment as to relieve it of that objection. I will move to strike out the words "and containing" in the second and third lines and insert "if it shall contain," making the districts conform where the population is sparse; making them at least include 400 inhabitants. That would relieve it of the objection referred to by the gentleman from Taylor.
MR. LAMB. I yielded to the gentleman from Brooke for purposes of explanation, but I did not quite finish my remarks. I wanted to finish by apologizing to the gentleman from Tucker for citing that county as an example again in the discussion; but it comes in so often as an illustration, I hope he will accept the apology.
MR. BROWN of Kanawha. While I was struck with the theory of both Mr. Jefferson and the gentleman from Wood, which like a surveyor in his office drawing diagrams on paper, works beautifully I could not but think of the difficulty of the application when you come to apply the principles on these rugged hills. Take Tucker (the best one) or McDowell, and you have a county of perhaps 450 or 500 square miles in either of them, the country in sitting on its edge. But I do not in this computation mean to use the hillsides but take the base. In this each district is to be not less than 30 square miles and to contain not less than 400 inhabitants. Now, survey off your 30 square miles and the surveyor will run the angles and from that determine where the 30 square miles will be, and then you will come inside that line and count the people and find that there are 400 in it. You will find about 50 or 100; you will find your rule will not apply; and you then increase your number of individuals and count the 400 first and run your line to include them; and then you will find you have got a much larger area. Well, you will continue on and we will soon find you will include half the county before you have gotten half the number; for these counties are not settled precisely equal. Some sections of them are settled thickly but in the more mountainous districts there are scarcely any settlements at all. That will be one of the difficulties which I suggest in the application of this system to a country like ours. Its application to the western plains where they have flat lands and good lands already settled pretty much, an average like 30 miles square will be like any other equal area. You can lay off your townships there and have the people in the district that they can all reach one point to attend to ordinary business. When you come to apply that to this country you will find it very difficult to make it apply at all. If you throw your district into squares to get the smallest area you will find this is thrown on one side of a mountain range across which there is no access between populations living on one stream and those on another, and have perhaps twice or thrice the distance to the center of the township to communicate and go by the other fork. I know something of this country; and I think gentlemen will find the application of this rule will be very different from what they anticipate.
And while I take no ground against this report now, while I say in all candor I come to the discussion of it with a disposition to hear all that can be said in its favor, I only throw out these suggestions of difficulties and make the effort to reconcile them before I am called on to vote.
MR. HERVEY. The gentleman must have misunderstood my proposition, which was simply this, that the districts shall not be divided into townships of more than 30 square miles unless the population is 400. That is to say that if there is less than 400 of a population within the prescribed district that then we might have the power to go out and include the sufficient number of population to make 400. It provides against the very thing which the gentleman apprehends: that is to say, where there is not 400 population within the 30 square miles they may go outside of that limit until they get that population and add the necessary territory on their area. This provision would allow them to go both below and above and thus accommodate the size of townships to circumstances.
MR. LAMB. Will not the object of the gentleman be attained precisely by striking out the word proposed in my motion?
MR. VAN WINKLE. I am inclined to favor the amendment proposed by the gentleman from Ohio. I see there is a difficulty in the practical working of it. Judging of myself, I may say what the committee had most in mind in making these limits was the first arrangement of townships. It is intended after they are once erected a mode is proposed by which their boundaries can be altered, in which if a township is found inconvenient and operating against the very object it is designed to promote it can be changed. And I apprehend that in the schedule we will have to devise some way by which the townships can be laid off and that in doing that we can give general directions; as, for instance, if this clause which is now proposed to be stricken out was thought of that much importance it could be placed there, that they should be divided as nearly as possible where circumstances would permit it. But I perceive it is difficult, from the sparse population in some districts of the State and from the comparatively denser population in others to fix a compound rule - that is, one that shall involve both territory and population. I think as the power to create new townships in the county is preserved that probably to follow the amendment of the gentleman from Ohio and strike out the restriction so far as it is territorial, leaving it simply as to the minimum number of inhabitants so that there shall not be too many, would perhaps be the wisest course at present; but if when the schedule is to be made, if it is thought best to provide for the laying off of townships in the first place, rules can be given that may be applied in the first instance that may possibly serve as permanent rules. I am in favor of striking out.
I would like, while I am up, to answer a remark made by one of the gentlemen, from Preston, I believe (from Taylor), in reference to the number of officers and expenses. I have stated my belief here on a previous occasion that it would be a cheaper government than the old, and I am very much inclined to think our officers, if you are going to count the county legislature, who are to officiate at a single town meeting in the year, counting them as officers that are to be paid, it may be different.
The objection is to remunerating the officers of counties and townships as we do in cities and towns. But in my town, where we have three thousand inhabitants, we pay the members of the council nothing. They meet once a fortnight and generally get through business before ten o'clock. The councilmen of the city of Wheeling get no pay. These men are only required to meet four times a year; and even if any compensation is given them, which is left to the legislature to fix and can be changed according to the wishes of the people of the State, generally, why for the extent of the services the compensation must be very trifling, indeed. So it is with the township clerk. He is to keep the record of the township meetings. It may be convenient that he should keep a record of some other things; but his principal duty will be to attend the general township meeting which is held once a year; and if you give him a dollar or two for that and the other things that he does it will still be a very small matter for the township. I think the clerk of the town council at Parkersburg gets $150 as a salary, and he attends 24 meetings in a year and certainly besides several special meetings. Gentlemen will find, I am persuaded, they will get a cheaper form of government than they did before.
MR. DERING. I think it is apparent to the whole Convention, sir, that this thing of connecting area and population in laying off our townships is not practicable. I would suggest to the gentleman who moved to amend the amendment of the gentleman from Ohio that he withdraw it.
MR. HERVEY. I would say that as my amendment would accomplish precisely the same thing as that of the gentleman from Ohio, that I will withdraw it. They are identically the same though expressed differently.
THE PRESIDENT. The question is on the amendment of the gentleman from Ohio, to strike out the words defining the area.
MR. POMEROY. I am in favor of that. I think we can get along by some insertion afterwards.
The question was put and Mr. Lamb's motion agreed to.
Mr. Ruffner rose.
MR. VAN WINKLE. I was only going to explain in reference to this last clause that it makes the township a quasi - corporation particularly for the purpose of suing and being sued in order that persons who have claims against the township can resort to the courts to have them settled, and also that there may be no doubt - because where some of these subdivisions exist there have been doubts arise as to their rights to sue. This is intended to anticipate any difficulty as to that question and the same with counties, which gives them a name by which they sue and are sued.
MR. RUFFNER. I will move, in addition to the words that have been stricken out to strike out the words "lying compactly." I think practically as much difficulty will result in the arrangement of these townships under a restriction of that sort as in the limitation of the number of square miles allowed them. It is impossible, sir, that they should be strictly carried out in any arrangement of townships in the mountainous counties. I therefore move to strike out those words and give a general discretion to the courts to arrange these townships.
MR. VAN WINKLE. I have no objection myself. These words were intended to apply to the territorial shape. I have considerable knowledge of the hills, and it would improve the application of the provision to make this change.
The amendment was agreed to.
The question recurred on the adoption of the section as amended.
MR. BROWN of Kanawha. I desire to inquire of the chairman of the committee. It says "each township shall be designated the township of - ." Now, as this is a constitutional provision, unless there is some law provided to give it a name, that is to be the name. That is, to have a corporate name, it ought to be provided either in the Constitution or that the legislature should name it, or that the people should name it - that somebody should name it, which when done, it would be a constitutional provision. Without that it is defective and no name could be given that would be such a name as would entitle a corporation to sue. Because it is a constitutional corporation, not a legislative one to say "township of blank."
MR. VAN WINKLE. The supposition, sir, was that that matter would be arranged in the schedule. I believe the legislature will have general power in reference to these things to pass laws, you know, for the first. If the gentleman thinks it important, an amendment could be introduced at another place giving power either to the county board or to the legislature to supervise the names or change them as desirable. But for the first naming, the first laying off of townships we will have to provide in the schedule. That was the supposition of the committee. I suggested if it was thought desirable that an amendment could be introduced for that in another place.
MR. BROWN of Kanawha. I would move to amend by inserting: "By the name given by the people of the township."
MR. VAN WINKLE. How will the name be formed? If it should be "Scott," for instance, would it be "The Township of Scott, county of so and so?"
MR. BROWN of Kanawha. I withdraw it.
MR. BATTELLE. I do not know that it is a matter of much importance, Mr. President, but the amendment of the gentleman from Kanawha it seems to me should have also included the word "a" - a township.
MR. STEVENSON of Wood. What is the amendment?
MR. PRESIDENT. There is none, sir.
MR. BROWN of Preston. I propose, sir, an amendment to obviate, as I think, the difficulty arising from a combination of square miles and numbers. I propose to insert after the word "divided," striking out the remainder of that sentence, the following: "into not less than two nor more than eight townships, laid off as compactly as possible, having reference to natural boundaries and containing as nearly as possible an equal number of inhabitants."
MR. POMEROY. I would suggest this: to just leave the section to read as it is till you come to "inhabitants," and add: "but no county shall be divided into less than three nor more than eight townships."
MR. BROWN of Preston. Well, sir, so far as boundaries are concerned, natural boundaries must be observed.
The Secretary reported the amendment: "Every county shall be divided into not less than two nor more than eight townships, laid off as compactly as possible, having reference to natural boundaries, and containing as nearly as possible an equal number of inhabitants."
MR. VAN WINKLE. Is the gentleman referring to the first division into townships, or subsequent ones?
MR. BROWN of Preston. The first one.
MR. VAN WINKLE. If it is only the first, it had better be reserved for the schedule. In view of the extent of some of the counties - Randolph, for instance, with the sparse population, that ten had better be the maximum than eight.
MR. BROWN of Preston. I have no objection to increase the maximum.
MR. VAN WINKLE. I think by inserting what the gentleman from Hancock proposes after "inhabitants" providing that the county shall have not less than three nor more than ten, would give it about the thirty miles in the largest ones, which is inserted as a permanent provision; and then we can provide in the schedule, having reference to these permanent provisions, how these townships shall be first laid off. I would suggest to the gentleman, therefore, to accept the suggestion of the gentleman from Hancock and would vote for its adoption.
MR. BROWN of Preston. I offered this amendment, Mr. President, from the fact after looking at my own county, which is perhaps in territory one of the largest in the State and which was divided under our present constitution to contain eight districts, very compact and probably containing about an equal number of inhabitants.
MR. VAN WINKLE. Will the gentleman permit me to call his attention to part of the 9th section, where this subject is apparently provided for:
"The Board of Supervisors may alter the bounds of a township of their county, or erect new townships therein, with the consent of a majority of the votes of each township interested, assembled in stated township meeting, or a meeting duly called for the purpose; but the area of no township shall be thereby reduced below the limit mentioned in the first section of this article, unless the number of the white population remaining therein shall exceed one thousand."
The area is now stricken out, and there will have to be some alteration there; but there is the place perhaps where the thing should be reached better than in this section.
MR. BROWN of Preston. The districts in my county were laid off and had reference to natural boundaries, water - courses and mountains, as has been remarked by my friend from Kanawha, it is utterly impossible in this country, in a country like ours, to lay off townships or districts in any other way so as to accommodate the various communities and settlements in the counties. I think, sir, there will not perhaps be a county in the whole State that will require more than eight or ten districts. There is an objection, however, to the original division of this territory from the fact that where you have reference to inhabitants or square miles, the expense attending the surveying of the territory will be enormous, sir. To divide the counties as I propose now, to divide them by natural boundaries, they can be laid off with very little survey, and hence the expense of laying them off will be very greatly reduced. I think, sir, the proposition I offered will meet the case and will provide for the counties within the limits of the State, no matter what may be their size.
The hour for recess having arrived, the Convention took a recess till half - past three P. M.
The Convention on reassembling resumed consideration of the report of the Committee on County Organization, the question being on the amendment offered by Mr. Brown of Preston, which was reported by the Secretary as follows:
"Every county shall be divided into not less than two nor more than eight townships, laid off as compactly as possible having reference to natural boundaries, and containing as nearly as possible an equal number of inhabitants."
MR. BROWN of Preston. I do not propose to occupy the time of the Convention with any remarks on the amendment which I have submitted for its consideration. However, I would remark that I accept as a modification of the amendment a suggestion of my friend from Hancock county, to substitute the word "three" for "two" so that the minimum number of townships in a county shall be three instead of two.
MR. STUART of Doddridge. The chairman of the committee is not in, I believe. I would prefer to lay over a few moments till he comes in. It is courteous, I think.
MR. POMEROY. The chairman of the committee was consulted in regard to these townships. He is coming, however.
Mr. Van Winkle came in and occupied his desk.
THE PRESIDENT. The gentleman from Wood is now in, and the Secretary will please report the amendment.
MR. MAHON. Mr. President, I would suggest the propriety of raising it to ten, and I would merely state my reasons, which are these: our county is divided into five districts. They are large, and we have in each district two precincts, and I think our county is susceptible of being divided into eight townships. I say I think this; and if it is so, then we can have it divided without costing anything for surveying; and if they extend it to ten and leave it to the option of the people of the counties whether they will make it three, five, ten, or whatever they may choose, I would move to amend the amendment so as to make ten the maximum.
MR. DERING. I would prefer myself that the number be not increased to ten. It will avoid the creation of so many offices by keeping it down to eight, and that is a thing we should all look to. I think, sir, the original proposition of the gentleman is the best with that view.
MR. VAN WINKLE. The remark of the gentleman who has just taken his seat in regard to the number of officers has reminded me of a suggestion made to me about the time we adjourned. Some misconception on that subject has arisen from the fact that there is a considerable misprint in this second section. When the report was first introduced I called the attention of members to it, that the words in the 11th line "for every 600 white inhabitants" should follow the word "supervisor" in the 12th line; so that there is one supervisor for every 600 white inhabitants for each township, but only one clerk and one surveyor. As it stands, it might seem there would be a clerk for every 600 as well as a supervisor.
In reference to the pending amendment, I have only to say that the question of numbers ought to decide it. While I have no doubt that for the great majority of the counties eight would be sufficient, I apprehend it would make very large districts in Kanawha, which is a large county. Sooner or later it will be divided. It would make pretty large districts in Randolph. For the rest of the counties eight might do very well.
MR. LAMB. The voters of each township, according to the plan proposed, "assembled in stated or special township meeting, shall transact all such business relating exclusively to their township as herein or may be by law required or authorized." If this plan is to be carried out, it would be necessary that the townships should not be made too large, and I do not see that there is any objection to the number ten. You fix ten as the maximum. It does not follow that you are to come up to the number unless there is some necessity for it or the convenience of the people requires it. You fix eight as the highest number to which in any case you are to go, and you must necessarily have townships so constructed that it will be extremely inconvenient to assemble the voters to attend to township business. A provision that there should be ten townships in every case would be obviously improper; but the effect is merely to say that in any case the number shall not exceed ten. We have eight magisterial districts in this county, and this is a very small one. I think if you made eight townships the limit, you would find a difficulty in your township meetings.
Mr. Mahon's motion to substitute "ten" for "eight" was adopted.
The amendment, thus amended, was agreed to, and the question recurred on the section as amended.
MR. STEPHENSON of Clay. I would move that the word "possible" be stricken out and "practicable" be inserted in its place.
The motion was agreed to.
MR. VAN WINKLE. It strikes me there should be some limit in another direction, after the amendment made by the gentleman from Preston. I would move to make it read "an equal number of inhabitants as nearly as practicable," or something of that kind, "but not less than four hundred." That will prevent too many townships being made in a county of large territory but small population. If 400 is not considered a proper number here, gentlemen could move to amend it. Those who are most familiar with that class of counties could speak.
The amendment, to add at the end of Mr. Brown's substitute the words "but not less than four hundred," was agreed to.
The section thus amended was then adopted.
The second section was reported by the Secretary as follows: "2. The voters of each township, assembled in stated or special township meeting, shall transact all such business relating exclusively to their township as herein, or may be by law, required or authorized. They shall annually on the first Thursday of April for every six hundred white inhabitants, elect one supervisor, one clerk of the township, one surveyor of roads for each precinct in their township, one overseer of the poor, and such other township officers as may be directed by law. They shall also biennially elect one justice of the peace; and if the white population of their township exceeds one thousand in number, an additional justice, and as many constables as justices; but the same person shall not be elected constable for more than two consecutive full terms. The supervisor, or in his absence a voter chosen by those present, shall preside at all township meetings and election, and the clerk shall act as clerk thereof."
MR. VAN WINKLE. I have already called the attention of members to the misplaced words in the 11th line which should follow "supervisors" in the 12th line. The word "is" is left out between "as" and "herein" in the 9th line. Perhaps there ought to be a provision there that no township should have less than one and whether that number six hundred would be best is a question for the consideration of the Convention. The first clause may be considered.
MR. STUART of Doddridge. I would suggest to the gentleman that he move to strike out "600" and leave one supervisor to a township.
MR. POMEROY. Will the gentleman give way a moment? I was going to move that as there are four distinct clauses in this section and will lead to numerous amendments, that the first clause, which ends in the tenth line, be adopted.
The motion was agreed to.
MR. POMEROY. Now, I move the adoption of the second clause and that will enable the gentleman from Doddridge to make his amendment.
MR. STUART of Doddridge. Then I move to strike out the words "six hundred white inhabitants," leaving it so that every township will elect one supervisor.
MR. VAN WINKLE. That must necessarily work very unequally. Now, if a township contains - say his town of West Union; I do not know how many inhabitants that township contains - possibly double the number of any other in the county - and has this extent of representation, there ought to be an equality as nearly as we can get it. It is the same question we agitated in reference to the report of the Committee on the Legislative Department. The fault I see in the sentence I was striving to correct is that this says there shall be one for every six hundred white inhabitants; and though the inference would not necessarily flow from it the inference might be drawn that if it had not 600 they would get none.
MR. LAMB. I would ask the attention of the gentleman from Wood to the effect of the amendment adopted on the motion of the gentleman from Preston, that "Every county shall be divided into not less than three nor more than eight townships, laid off as compactly as practicable, having reference to natural boundaries, and containing as nearly as practicable, an equal number of inhabitants." According to that the different townships ought to be laid off so as to be as nearly as possible equal in population. Having adopted that principle, there will be no difficulty in striking out the 600 here, because if this principle is carried out, it would necessarily be a fair representation.
MR. STUART of Doddridge. I have another suggestion in addition to that. Whether they are laid off equally or not, I presume every township will transact its own business and pay its own officers. In that case if I happen to be in a large population, I do not want but one supervisor - do not want to pay but one.
MR. VAN WINKLE. I would call attention to the beginning of the next section, where it is stated that the supervisors chosen in the townships of each county are to constitute a board to transact the legislative business of the county.
MR. STUART of Doddridge. That is very true; but you propose to have general supervisors. I do not want to have a special class.
MR. POMEROY. I do not think the remarks of the gentleman from Ohio will apply, that a township shall not have less than 400 inhabitants. We have also said that counties shall not be divided into more than ten townships. Suppose the county has 12,000 inhabitants. There are ten townships; of course, there would be more than 400 to the township. If they had 1200 they would be entitled to but one in order to be equal in their representation on this board of supervisors. That would be a legislative body for the county. We have limited the number to ten, and therefore if a county has twelve thousand there would be more than a thousand for each township. The reason we made the limit was in order to meet the case of sparsely settled counties. Therefore, to maintain an equality it would be necessary in populous counties that a township would be justly entitled to two supervisors if you wish to keep up the perfect equality, though I myself might think one would be enough. But when they would come together to lay the county levy, why these people would have the same right to be represented in that board as those in a smaller county.
MR. LAMB. The provision to which I had special reference is that which requires that the townships should be equal as nearly as possible in population. That is the provision which has been adopted. All the townships in any county are to be equal as nearly as possible. Then, of course, giving one supervisor to each the representation will be equal. It is not in reference to four hundred but in reference to the other provision which was incorporated in the amendment of the gentleman from Preston that has been adopted.
MR. HERVEY. It seems to me the amendment of the gentleman from Doddridge relieves this section from all liability to exception in favor of striking out which the gentleman from Ohio has just remarked. They are required to be almost equal in population, as near as practicable; and I do not think the objection of the gentleman from Hancock applies.
MR. VAN WINKLE. I think the suggestion of the gentleman from Ohio meets the difficulty. That at any rate meets my views; and if that is carried out the townships will be so nearly equal in all probability that the representation will also be equal. And it is not my view nor wish that there should be two supervisors to a township unless it was for the purpose of equalizing with some other township; and in the very remark I made in reply to the gentleman from Doddridge it was that his town or mine might be made to constitute parts of different townships or each a township itself if its population was so great as to require it; might be made into two complete townships or more. I think, therefore, the amendment offered by the gentleman from Doddridge will probably meet the difficulty.
MR. BATTELLE. It does not seem to me it will meet the difficulty, though perhaps I do not understand it. Notwithstanding the amendment already adopted offered by the gentleman from Preston, it seems to me almost certain that some townships will include twice or three times, or four times, the population of others in the same county. I suppose it will be impossible to contract the dimensions of a township in the densely settled places so as to include but 500 or 600 inhabitants the number that seems to be proper to constitute a township in most parts of the State. I am not able to suggest now exactly what the amendment ought to be; but inasmuch as this board of supervisors will be assembled as a legislative body, according to the principle of representation passed on here already in another place, there ought to be some amendment affecting this case. For instance the ratio of the townships of the lowest population and then providing that townships with double that population should be entitled to an additional supervisor. I do not see how else we can arrive at a just principle; for I am satisfied notwithstanding the insertion of the principle of the gentleman from Preston - which is a very valuable one, but not absolute in its terms - and it must be in the nature of the thing that some townships must contain three times, or even four times, the population of other townships in the State. It would be the case in reference to this county, Marshall, Doddridge, Wood, Monongalia, Marion, and a half dozen others.
MR. HERVEY. If my recollection is correct, the language of this proposition is almost identical with the language in our present constitution. That is the principle already adopted and has been carried into practical operation; and the difficulty the gentleman alludes to has not arisen in this case. Suppose Wheeling contains ten or fifteen thousand population, it will be districted according to its population.
MR. BATTELLE. It would be utterly contrary to all precedent in other cases, so far as my observation goes. I never heard of a city of this size, or even of the size of Morgantown, being divided into two or three townships.
MR. SOPER. I beg the attention of the Convention for a short time. I believe, sir, all these restrictions as to number of inhabitants and as to extent are unnecessary in the Constitution. The safer way I think is to leave it to the people in the county, who best know what will be the more convenient for them. The inequality of inhabitants is inevitable. Wherever your county, town, or villages, if you are going to divide your county into townships containing an equal population, as near as may be, the limits of the town where your county buildings are, or where your villages, will necessarily be very small - entirely too small. Now, sir, I have had some experience in relation to these matters. I hope the Convention will not consider it out of place when I say I have represented townships as supervisor in counties where there was such; and I think we will find here that it will be necessary that whenever we have an incorporated city, which is necessarily divided off into wards, that every ward will have the powers of a township and the representation of a township, in the county board of supervisors and will have an officer to represent them by that name, or one of their aldermen will represent them. That will depend very much on the legislature. Now, sir, in the county where I have been in the board of supervisors, some of the townships had five thousand inhabitants but generally averaging between two and three thousand, and I have known them to be less than one thousand. But I never heard any complaint that there was any inequality in the board of supervisors, of any improper legislation or any transactions done there towards the communities of the small towns. I have never known a complaint of the kind; and I never have seen anything in these boards which looked like imposing upon or taking advantage of the small towns. And I apprehend it will be so in counties in this State, that they can be so fashioned as to get this county organization of townships into proper operation. I think everything will go on in these bodies, carefully, cautiously, harmoniously. Now, the smallest township ever I resided in was five miles by six; and I have known a township in the county I now have reference to which had the smallest number of inhabitants was a township four or five times as large as the one I represented in territory, composed of a large mountainous district, the greater portion of it utterly unfit for cultivation, and there were but few inhabitants in the township and those were along the two streams that were there. The township that I have reference to, that with 1000 inhabitants, was about 12 miles square, and it also had a portion of this mountain in it, and a mountain ran through one portion of it leaving the inhabitants in the town separated by this mountain. And yet when coming to the county seat for the purpose of transacting the township business no little difficulty was experienced owing to the particular manner in which the roads went. Now, we will meet with all these difficulties in this State, and I am satisfied the better way is to leave it to the people in the county to make their own divisions. Take Tyler, which I represent: we have divided that county into four districts under the present law, and in some of them we have two election precincts. That will be obviated under the township system. There will be but one and that will be as near the center as conveniently can be made. I suppose, probably, this Constitution goes into operation in time we shall divide that county into about six townships; and that is all we should require; but in dividing so I am satisfied that there will be an inequality in the number of inhabitants; necessarily so. And probably the townships containing the less number of inhabitants will be much the largest in territory; but yet I apprehend no difficulty can arise from it. And this notion of representation in our townships and counties where the supervisors are going to exercise legislative powers I think is altogether imaginary. Because I suppose these supervisors when they come together will be justifiable in consulting in what way and manner they can work to the best interests and satisfaction, the best interests of the various parts of the county. They will sit down just as a half dozen men here will sit down and each one will represent his section of the county, and they will compare opinions and then fix on what they think is right; and I think you will find it will give satisfaction all around; and it will make very little difference whether it be a small township or a large one. I should prefer to say nothing at all about limiting these townships in respect to population or extent of territory and leave it as I before said to the townships.
MR. STEVENSON of Wood. I would inquire what shape the question is in?
THE PRESIDENT. The motion is to strike out "600 inhabitants."
The question was put and the motion agreed to.
MR. BATTELLE. I now propose to offer an amendment to come in after the word "one" - in the 12th line the words "or more supervisors according to population," and leaving the precise definition of it in ratio to be determined by the legislature. I offer this amendment not simply in reference to the wants of the cities and towns, though they have their just rights as everybody else, but from what I conceive to be the right of the case generally and the necessity of the case. The amendment of the gentleman from Preston, which I very much approve of, requires that these townships shall be laid off somewhat with reference to natural boundaries; and in the nature of our country here, that will perhaps be indispensable. It will be found by using natural barriers it will necessarily for the sake of the convenience of the people throw one section of the county or territory with a small population with a township right along side of it with perhaps double population. That arises from the formation of the mountains and watercourses and streams of any country. It will be found, I apprehend, convenient to use the rule in reference to the formation of townships as a somewhat flexible rule; and it ought to be so and is wisely provided that it may be so by the amendment of the gentleman from Preston. Now, all I propose is that where townships differ so immensely, lying right alongside each other, that there shall be some indication at least in the Constitution of the right of these people to have double or triple the population to be equitable and equally represented in the county legislature. I move then to insert these words.
MR. DERING. I see this difficulty connected with the proposition of the gentleman from Ohio: if the supervisors are to constitute the county legislature for county purposes, who is to be the judge of how many supervisors each township shall elect? If you leave to the different townships to regulate this matter themselves, in order to get a preponderance in the county board they may go on and elect in each township an indefinite number. There must be some ratio by which to regulate representation in that county board.
MR. BATTELLE. The very fact that the precise number is left unfixed will make it, of course, a matter for legislative consideration and action. They will devise some rule by which the number shall be carried out.
MR. DERING. Who makes that ratio?
MR. BATTELLE. The legislature of the State.
MR. DERING. Why not fix the ratio at present, while on the section, to avoid the difficulty?
MR. CALDWELL. I feel constrained to make a motion to get rid of a difficulty as to supervisors. I propose, sir, to strike out of this section supervisors entirely, so that in fact we will have in the report no supervisors; but when we come to the other sections, I will propose to substitute in place of the supervisors of this board, to attend to the fiscal and police concerns of the county the justices of the peace themselves. I did not intend, sir, when I first thought about this matter of offices the necessity of striking out in this section the word "supervisors." I thought I would wait until we got to the other sections and then present my proposition. Now, sir, if this Convention will agree that the justices of the peace elected in the several townships of the counties are competent to discharge the duties that is imposed by this report on these supervisors, another set and class of officers, thereby increasing the expense and adding to the number of officers to be elected by the people, then I think they will entertain my proposition with some favor. The justices of the peace, notwithstanding, sir, in the country they are to some extent as a matter of course discharging judicial functions; but, sir, if you constitute them a board and he acted in the capacity and character of a court until added to this board of justices of the peace of the county for the purpose of attending to the police and fiscal concerns of the county, you get rid of this point as raised by the chairman of the committee of blending together the legislative with the judicial powers of each branch. I think, sir, myself, that there is very great objection. In the first place, this is by no means an experiment. At any rate, there is very great objection to the increase in the number of officers. I have been met in the streets of this town by persons of intelligence telling me we are going on here to uproot every Virginia doctrine and principle; that we propose to require the citizens of the county to elect a string of officers at every election as long as your arm; and all these things are urged, and I think with some force, sir. Now, sir, if you get rid of the supervisors, you get rid of the clerk too I think, and you have then but the justices of the peace. And in order to satisfy the Convention that this would be perhaps as cheap and free from the charge of expense as any other board that probably could be constituted by the report itself, there are to be two less number of justices than supervisors. In our county, for instance, we have 13,000 - a justice of the peace for every 1000; giving 13 justices - quite sufficient, I think. In Ohio, there would be twenty instead of thirty - two. If this board in place of supervisors is constituted, I think it would give more satisfaction because of the fact that we have had heretofore some experience in the manner in which the county courts have discharged their duties over the fiscal concerns of the counties. I do not, sir, agree with the gentleman from Wood that there is so much objection to the county courts of Virginia heretofore attending to the legislative and fiscal concerns of the county because my experience of our county is that there it has been done in a legislative way. To be sure, sir, they were required to assemble on a court day. They did not meet in the court room; did not ever have the clerk or myself with them. They met there for their own consultation with others' suggestions as to what should be done in the character that they were required to discharge their duty.
MR. VAN WINKLE. I am obliged to call the gentleman to order. If this thing is to go on, we shall never get on here. There is a rule of this Convention that says a matter once determined shall not afterwards be drawn into debate. Now, this Convention decided, I suppose knowing what they were doing, that the legislative and judicial departments shall be separate and that no officer shall exercise the functions of the two. If this is to remain in the Constitution - and it is there for the present - then any such proposition as the gentleman proposes to make is contradictory to that and of course to debate this matter without a motion for reconsideration or anything of that kind is out of order.
THE PRESIDENT. The portion of the Constitution adopted so far had escaped the recollection of the chair. Being called to his attention I suppose the amendment of the gentleman from Marshall would not be in order.
MR. CALDWELL. I want the President to consider whether the justices of the peace sitting as a board and not as a court would be infringing this fundamental principle established.
MR. VAN WINKLE. I will read the provision.
"4. The legislative, executive and judicial departments of the government shall be separate and distinct. Neither shall exercise the powers properly belonging to either of the others. No person shall be invested with or exercise the powers of more than one of them at the same time."
A man cannot be a supervisor and a justice of the peace at the same time.
MR. CALDWELL. I do not think so.
MR. STUART of Doddridge. We have taken up the report of the Committee on County Organization and we are now maturing this; and I understand after we get through this report and all the reports that we will make them conform as near as possible to each other, and hence it would be regular here to make any motion to mature this report, and after we have got through with it, we can regulate them and be bound to make one conform to the other. I think the motion of the gentleman to strike out supervisor and insert justice of the peace, because in the same section they elect justices of the peace, is certainly in order, unless we are tied down, sir. This comes up now in quite a different position and we may choose after we have adopted this report, fixed to suit ourselves, to change another report to make it conform to this report, and after we have done our work and at last test the question and see whether it is the wish of this body to change it in this form or not. I will not argue the question because I believe the Chair decided it was out of order.
THE PRESIDENT. The Chair would make this remark and call the attention of the gentleman from Wood to it, that it seems to me that there would be more lost by raising the point of order than gained if we find ourselves wrong in anything to go back and consider it before we get a full expression of the house. Consequently, in the opinion of the Chair we would lose much more time than we would gain by that policy. The Chair would certainly be disposed to carry out the rule to the fullest extent; but at the same time, doing so would be very much inclined to hear as far as he could any and all motions that might save time in any way.
MR. POMEROY. Why could not the Chair hear the gentleman who made a motion to strike out "supervisor?"
MR. CALDWELL. I made a motion to strike out "supervisor" simply, not to insert another word; and I will follow up, if that is stricken out, with my further object. I would propose next to strike out the third section entirely, and when we come to the 4th to substitute justices of the peace for supervisors.
THE PRESIDENT. By the motion of the gentleman from Marshall, the sense of the house would be obtained on a simple vote. If we dropped the question here on a point of order and passed back to reconsider the vote by which a provision was adopted, we have to get clear of this question before we could take up the question there. If, however, the question of order is pressed the Chair would sustain the opinion of the gentleman from Wood.
MR. VAN WINKLE. I insist on my call for order. I think it is important not only in this but in every other case. Having solemnly adopted a rule which is to govern in all cases, that rule was adopted on due consideration I have no doubt; and that was that legislative and judicial officers should not in any case be mixed; that no person should exercise the powers of more than one at the same time. I know that the principle was adopted here and settled after due deliberation. Now, sir, if what has been done can be called into question and a proposition can be made to do precisely what the Convention has agreed not to do, we shall never get through with our business. That report is not now in the power of the house to reconsider but it will come up again at the proper time.
MR. STUART of Doddridge. The question has never been discussed before this body and the point never was raised.
MR. VAN WINKLE. The question was discussed before this body, that no person could exercise offices of two characters at the same time. That was debated and passed, sir.
MR. STUART of Doddridge. I understand the section of that report is not to be brought before that body?
MR. VAN WINKLE. I insist on my point of order.
MR. STUART of Doddridge. Then I shall appeal from the decision of the Chair.
MR. BROWN of Kanawha. Whether this question is in effect that a fundamental provision once adopted can or cannot be reconsidered, I am not prepared to say; but I do think whether it is or not we are not precluded from considering it. I cannot think because we have adopted a provision in another report that we cannot debate in this report even that which would negative and contradict the former at all. That provision may be a restraint on the legislature or other authorities on whom it is intended to act, but surely not on us. We will not go back to alter that report, but we are considering another report, and it seems to me we can consider the whole question of this report now under consideration; and if our action now should be found in conflict with the provisions there it will be the duty of the Convention to harmonize that action though it may require that action to govern us instead of this. I imagine the object of the revisory committee is to harmonize conflicting action so that I cannot favor the view of the gentleman from Wood.
MR. SINSEL. If my memory serves me correctly we at the onset passed a rule that on the second reading of these reports it should be in order to strike out and insert. Well, now, when the second reading of that report on Fundamental Provisions is made, we may find it necessary to move to strike out that very section and insert one to harmonize with what we may do here. So it does seem to me the motion of the gentleman from Marshall is in order.
MR. WALKER. I wish to know of the gentleman from Wood whether this Board of Supervisors means in that to be the legislature; whether he intends that that board is to be equal with the legislature that meets in Virginia?
MR. VAN WINKLE. No, sir; it is a legislature for the county. The third section will show you what it is.
MR. STEVENSON of Wood. It seems to me that the matter in reference to this rule is one that would be worth submitting to the Convention to have its decision on.
THE PRESIDENT. That is the opinion of the Chair.
MR. STEVENSON of Wood. If that rule is to be enforced strictly, it would be a very arbitrary and unjust one in some cases; and as the Convention has, I suppose, entire power to change its rules by a vote, I would suggest, sir, that the matter be submitted to the Convention now to be settled by it so that we will know how the rule will be applied hereafter.
THE PRESIDENT. The decision of the Convention will govern the Chair in its opinion hereafter. The Chair has been free to say that it has some doubts on the subject but has made the decision with a view of giving the Convention the opportunity of settling the question.
MR. VAN WINKLE. The 8th rule is that a question being once determined must stand as the judgment of the house.
MR. STUART of Doddridge. The Chair has decided that the motion of the gentleman from Marshall to strike out the word "supervisor" in line 12 is not in order; from which decision I appeal.
THE PRESIDENT. The gentleman from Marshall not only moves to strike out but expresses his purpose to insert "justice of the peace."
MR. STUART of Doddridge. Yes, sir; but his motion is to strike out.
MR. CALDWELL. I move to strike out the word "supervisors." I followed it up then that the Convention might understand that if the word "supervisors" were stricken out I would move to strike out other portions of the report.
THE PRESIDENT. The gentleman intimated that his purposes was to substitute "justices of the peace."
MR. CALDWELL. Yes, sir.
MR. VAN WINKLE. The rule is that a question once determined it must stand as the judgment of the Convention, and cannot be called in question again. This is a parliamentary law essential to the progress of business in a parliamentary body. The gentleman was going on to debate the propriety of conferring on offices two characters in the same person, which the Convention had decided not to do. The particular rule is Rule 8 of the Rules and Regulations adopted for the government of the proceedings of this Convention:
"8. A question once being determined, must stand as the judgment of the Convention, and shall not again be drawn into debate."
My point of order is just precisely that the Convention having determined that no person should exercise at the same time both legislative and judicial functions that the gentleman by advocating in debate that these two functions be conferred on the same persons violates and this rule is therefore out of order. If the Convention choose to reconsider that decision at any time when it comes up in order, or at any other time, then the gentleman's motion would be in order, and not until then. As it has been suggested that these reports are to come up again and be proceeded with, the gentleman can offer his amendment on the second reading as well as now; which will probably follow the second reading of the report which has been passed upon and in which the section which makes him out of order is found. Now, it will all come up in order, take its regular course and the business of the Convention will go on. But if we decide one thing here - and it cannot be alleged in this case that anybody was taken by surprise, for the whole thing was explained and adopted. With another report that would contradict that precisely, we shall get into inextricable confusion and shall not know what we have done. Both reports are to come up. If the gentleman can succeed in striking out the clause which stands in his way, then he will be at liberty to make and adopt this motion he proposes; otherwise I think not.
MR. STUART of Doddridge. Suppose we go on with this report and it comes up for final revision before ever we take up the report on Fundamental Provisions for final adoption, and we come to this section, and the gentleman makes this motion, then -
MR. VAN WINKLE. Any gentleman can call it up.
MR. STUART of Doddridge. The gentleman is certainly in error. Now, sir, it might be possibly right in the Chair to decide that the argument of the gentleman from Marshall was not in order; but his motion was undoubtedly in order.
MR. VAN WINKLE. I find another fault with his motion: it is debating a proposition that is settled. He may make what motion he pleases, and the house may dispose of it as it pleases.
MR. STUART of Doddridge. I understand then that the motion to strike out "supervisor" is in order?
MR. VAN WINKLE. Yes, sir.
MR. STUART of Doddridge. The gentleman agrees that motion can be entertained? I suppose the Chair will not contradict that?
THE PRESIDENT. The Chair has no doubts about the motion being in order if it had not been accompanied by the declaration that he was to fill the blank with "justices of the peace." Still, the Chair would not have objected to the motion on that account thinking it likely it was the gentleman's way of obtaining the sense of the Convention on that particular subject. If the gentleman's purpose is just to strike out without filling, the Chair would entertain it.
MR. HERVEY. I hope the question will be decided by this Convention now that it is up. I have no doubt there is a misapprehension on the minds of a good many members in regard to the binding force of certain sections or so much of the action of this Convention as has passed. Now, sir, it strikes me that no part of the doings of this body as yet can be taken as a rule for this body. One of the rules adopted by us declares that reports may be taken up section by section and adopted; but that those votes shall not be final. Now, sir, does that mean, are we bound by a proposition which in itself is not a finality, which we have a right ourselves to reconsider? It is true, sir, that no one of those reports has been passed by the Convention finally disposed of. If it had been we would be bound by it; but until a report is adopted finally by the Convention it does seem to me that no part of it, according to our rule - the last one we adopted - can control it.
MR. DILLE. Mr. President, I would like to inquire what is the question or matter before the Convention?
MR. VAN WINKLE. Nothing but for the Chair to decide the point of order.
MR. DILLE. I understand that question is not debatable.
THE PRESIDENT. The Chair will admit the motion to strike out.
MR. VAN WINKLE. That is not the ground on which the motion is put. It is, as stated by the gentleman from Brooke, whether it is right to debate here, call in question, what has already been determined. The gentleman can move to strike out "supervisor." I know nothing to prevent him. It was the debate on a question already determined that I protest against.
THE CHAIR. The gentleman from Marshall will proceed.
MR. CALDWELL. After consultation with several members of the Convention, I have come to the conclusion that we can dispense with these supervisors. Now, sir, it is a little singular that I shall be restricted in assigning the reason why we can dispense with them. We must have some sort of supervisory board and it is singular -
MR. BROWN of Kanawha. I desire the gentleman shall have the opportunity to see the question settled. The gentleman can argue the question as he proposed to do and the gentleman from Wood can raise point of order.
MR. VAN WINKLE. The Chair will decide it. Will the gentleman let the Chair decide the point?
MR. CALDWELL. I thought the Chair had decided it.
THE PRESIDENT. Really, I would like to see the whole question decided if it would embrace the whole subject fully. If it is left to the Chair, the Chair is of opinion that the motion to strike out is in order, and whatever is necessary and proper to state as reasons for striking it out will be allowed; but latitude embracing arguments outside of the necessity will not be allowed.
MR. CALDWELL. In order to relieve the apparent difficulty, I will confine myself to these simple remarks that I have made and the further remark that I have done this with the expectation if I succeeded of satisfying the Convention that something else can be substituted for the government of the counties. The Convention will see that I am making no misstatement of what my object is. It will be for them to decide whether there is propriety in the motion to strike out these words; and in order to relieve the Convention of the difficulty and any argument, I forbear to say anything on the subject.
MR. POMEROY. I hope if there is any person a little out of humor, we will all get back to our common state in a short time now and we will go on pleasantly.
MR. VAN WINKLE. I can assure the gentleman and the Convention that my feelings have not been ruffled. I was very anxious to have this question settled, but I cannot get a decision from the Chair. I waive it therefore entirely.
THE PRESIDENT. In order to satisfy the gentleman from Wood, the Chair will allow the gentleman from Marshall to debate the whole subject.
MR. DERING. I was just going to make that motion.
MR. VAN WINKLE. I withdraw it, sir. We cannot get anything settled in this way.
MR. CALDWELL. I rise with some embarrassment now to attempt even to follow up what I designed saying in the first place. I think, sir, this Convention and the people of this commonwealth can repose confidence enough in justices of the peace whom they have elected to transact all the fiscal concerns of their county as well as any other that we happen to elect. Justices, sir, are selected generally from the most intelligent and most upright men of the community; and I think, sir, when these justices are elected in any county from this intelligent community that they should be entrusted with the discharge of the duties of this Board of Supervisors. Well, sir, why desire to go any further in the selection ascertaining what other tribunals shall discharge the duties of the several counties together? Now, sir, as I suggested before, it would only be adding to the expense and giving to the voters the trouble of electing additional officers. The fewer officers we elect the less trouble to the voters and the less expense to the people of the county. That is certain. I do not think there can be much objection to it when these justices are sitting as a board of supervisors and not as a court, not on a court day, not to be interfered with at all by attorneys or other such officers as are in the habit of attending courts on court days; that no objection to their being as it were at all a portion of the judiciary can exist notwithstanding in the matter of discharging the duties of justices of the peace they may, and do of course, constitute a judiciary.
But, sir, without attempting to say anything further, I will leave the matter to the Convention.
MR. SOPER. I ask to say a few things to the Convention on this motion, sir. The first question I want to call the attention of gentlemen to is this: what will be the duties of this officer which the report designates as a supervisor? Suppose, sir, that he is now elected, the first thing will be to go before a magistrate and take the oath of office and return that to the town clerk who will file it. Whether the town clerk or the justice will receive any fee for administering or filing that oath, I take that for granted, because it has been so wherever I have had experience in these matters. That is a matter for the legislature to say. The next thing he will do, sir, if there are any officers in his town who are required to give surety, they will come before the supervisor, and what instrument he will require, whether a bond or an undertaking will depend on what the legislature may say. He will pass on the sufficiency of the surety and he will give his certificate to that effect. For this, sir, he will receive no compensation. The next thing he will do will be to receive from the town clerk such certificates of what shall have been voted by the people in relation to charges upon the township for instance. Now, if there is a bridge to be repaired within the township - small bridges, I apprehend, will be repaired at the expense of the townships - large bridges, in the discretion of the supervisors of the county will be made a county charge perhaps, but in most instances the small bridges in the township will be kept in repair at the expense of the township - it will be left to a vote of the people at the town meeting. If the people for the purpose of making a bridge or making any other improvement in the town - a town house, if you please, or anything else they may deem necessary for the public benefit that they are willing to tax themselves for and will vote for in the township - an amount of money to be levied on the taxable inhabitants of the town to raise money for that specific purpose. If any vote of that kind will be taken the town clerk will give a certificate of that to the supervisor who will retain that until he meets with the general board. The next thing he will do after he receives the certificates from the town clerk he will receive from the overseer of the poor - that is, if your poor are to be made a town charge - if they are not to be made township charges but county charges then the board of supervisors will receive the certificates of the amount necessary and in order to bear the expenses of the board; but if a township charge the supervisor will receive the necessary evidence, generally in the shape of a certificate setting forth in detail the objects particularly for which it is wanted to be raised at the instance of the overseer of the poor and will hold it until he meets with the board of supervisors. Next, sir, will be the proceeding of your officer at your annual election. He will do very much what your conductor of elections does now - a - days. For that service he will receive this per diem allowance. I do not know of any other service in the township as a supervisor for which he will receive any compensation unless it be that of presiding at elections.
Well, now, if you carry out your judiciary system that you are now adopting, you will find it will become an absolute necessity that your justices of the peace should have jurisdiction over all light criminal offenses committed within your township, such as unlawful trespass, breach of the peace, threatening to injure property or person, cases of assault and battery. I shall insist when it becomes necessary here that justices of the peace have jurisdiction to try an assault and battery under certain restrictions. All fines that will be received by the justices of the peace will be paid over into the county treasury or your sheriff, who may be designated as the officer to receive it; and if there are any expenses incurred - if for instance the charge should be dismissed and any cost should be incurred by the constable or justice of the peace for it, a justice of the peace would make a bill for all these items of expense. That bill would be turned over to the supervisor to be passed on by the board when they come together.
Well, now, to carry out this system thoroughly of township organization you would want assessors one or more in each of your towns. What will be the duty of that assessor? I should if I had my own wish about it in every township that is six miles in length want more than one assessor. I have known usually three in a town. Their compensation has generally been $1.35 daily. Here I suppose it would be from 75 cents to a dollar. His duty is to go and call upon every individual in his township. He enters their names, the amount of personal property, of real estate, putting a valuation on both; and they have the power when they get an individual who is not willing to disclose to administer an oath to him and of making him answer such questions as will make him disclose truly what he is worth and in what his wealth consists, so as to get at all property taxable. These assessors will come together and look over to see if any one in the town has been omitted and then they will get among themselves and put what is called an equalization on the property. Well, I suppose this would take them, where there is more than one, each one from one to two weeks to perform that duty. When that is done, these assessment rolls are directed to the supervisor and he takes them with him when the board meets. That I believe will constitute what duties the supervisor will have to perform in the township and you will perceive at no cost to any person except the inhabitant of the town and then only for having presided at those elections.
Now, the Board of Supervisors meet. What is the first thing it does, or the most important duty? Gentlemen, let me tell you that board will have to perform the one that will require the most consideration, the best judgment is in getting the assessment rolls of the assessors in the different townships and equalizing the value of property throughout the whole county. Now, so far as it relates to the expenses of the township officers that is a charge on the township and the valuation has nothing to do with it; but when you come to look at charges on your county, to be borne by the whole county, then it becomes necessary that the property on which the taxation is to be laid shall be equally valued, that the valuation shall be equalized as near as possible; and when that is done there is no further difficulty, because the amount is a mere matter of calculation, to make out the amounts to be collected from each town. That will depend on the amount to be raised on the value of the property. It will include the portion chargeable on the county for state purposes, the moneys charged on the county for county purposes, the expense chargeable on the township. And when these assessment rolls have been prepared, why then these taxes will be collected according as the legislature may direct. If by a collector in the township, that will be an additional law; if not, probably by the sheriff of the county.
Now, what further duties will the supervisor have to perform? I mean now in their body as a Board of Supervisors. Why, if there is a bridge in your county which it would be unjust to put the whole expense of on one township - that will depend on who are to be benefited by it - these supervisors will determine whether it is to go on one township or on the whole county. They will also look at the accounts of your justices of the peace for services in criminal cases and the accounts of your constables and audit and regulate them and tax them according to the laws of your legislature whatever that may be, being extremely careful that neither the justices of the peace nor the constables include in their claim improper items, nor - as has been discovered in the case of municipal constables - that they do not bring in once or twice the same kind of charges. Here I will say that when a township understands its interests truly, they will select one of their best and safest men for the transaction of business. Now just so if there comes up a question about a ferry, about a mill, as well as a bridge - if there comes up a question about a road in which one or more towns are concerned, and every other local question applicable to the county or townships where the charges for the purpose of it are to be on the county. Well, now, if your legislature should pass any law directing that a certain amount for any specific purpose shall be raised in your county - for instance, if your supervisors should refuse to lay money for the erection of a bridge - I do not know of anything to prevent the people of the county going to the legislature and getting an act passed to require the amount of money to be raised on that county and directing the board of supervisors to levy and collect it in their annual tax. I see no objection to anything of that kind. The legislature would not interfere in a matter of this kind unless they had the most reliable evidence that application had been made to the Board of Supervisors and they had mistakenly refused to do it. Now, I believe that embraces about all.
Now, we come to this question of enormous expense. Why, if you could look at this new system and then compare it with your present operations - with your great number of Justices receiving three dollars a day, you will find it much more satisfactory. As for the expense, I suppose if there was but one annual meeting of the board, as the report provides for four - if it was all done by one annual meeting it could be done in the course of six or eight days. They generally used to occupy a week and a half. They meet in the morning at 8:00 o'clock; they meet again after dinner, and an hour after tea. It is generally in the fall when the days are long, and there they stay and transact their business and quit, because they do not receive a sufficient stipend to pay to make it any object to remain away from home. Their business is generally at home. They do this public business because it is doing a public good. It is not that they are desirous of getting the office, that they want the influence or emoluments of it. But where I have noticed, they have received two dollars a day each in a city or large town, when you are away from home and where you have to pay fifty cents for a meal and then a pretty large sum for your horse - keeping, you will find two dollars a day just about pays your expenses. In this State I suppose they would receive from a dollar to a dollar and a half a day. So that you will find that at the end of the year the supervisor might probably tax your county twenty or twenty - five dollars to transact all your business. Now, that would be all the expense of it.
The office ought not to be filled by the justices of the peace for two reasons. In the first place, if you are going to extend the jurisdiction of your justices of the peace to enable them to try all civil cases where the amount involved did not exceed $50 to $100, if you give them the power of disposing of criminal cases that may arise - small misdemeanors - why you will find that these justices will be almost constantly employed in his own township, and if you give them anything like the fees they ought to have for office business the position will be sought after as a source of profit; whereas, the office of supervisor will not. There it will be a matter of patriotism more than anything else; but the justices of the peace will be different. He will be wanting to remain at home and will be there waiting every day for applications to be engaged in the trying of causes for which he will receive a constant compensation which arise in many of your townships and in your cities will be an office that will be desirable. There is another reason. This magistrate will have more or less court claims, more claims against the county and town than any individual in it. To put these magistrates in a position where they would have to pass on their own claims, I never would consent to anything of the kind. You have either got to say your magistrates shall receive no compensation for their services that they do for the public at large, or otherwise you ought to say they ought not to be the men who are to tax our accounts and liquidate them and levy them on the people. But in comes your supervisor, a man that stands perfectly aloof from them, who is above anything like fear of influence; there they, the supervisors of all the towns are out, and they look at those bills and scrutinize them and audit them, and when they audit them, they are allowed. For that reason I think justices of the peace never ought to be put into the places where that report contemplates putting the supervisor. All of you will at once the necessity see there must be some individuals whom the report designates as a supervisor in the town, who is to be first officer in the town, who is to compose this part of the county board who take the money of all your taxes. There must be some individual of this kind; and ought it not to be a person such as I have described to fill this office in preference to a justice of the peace or any other officer of the county, liable to have claims to be passed on by that board?
I have briefly given you what I suppose to be the principal duties of the supervisor, and I am very decidedly of opinion that he is named rightfully there. These duties that I have suggested will be probably the principal duties he will have to discharge, bearing in mind at all times, gentlemen, that they will only carry out such authority and laws as the legislature will give them. I have heard a great deal said here and gentlemen have been frightened considerably at the idea of bringing here a large batch of officers of the government. All of this is imaginary. How many officers are contained in this report in your district now? You have got your four justices and constables, and overseer of the poor. You will have no more surveyors of highways than you have now. Four justices, an overseer and constable, make six. How many do you make under this law? Here is your supervisor, your town clerk, overseer of the poor, justice of the peace and constable. This idea of the enormous number of officers - why, gentlemen have not looked at this thing. They are counting them up by the hundreds. Why, they do not exist, gentlemen. Suppose they did exist? Who are they? They are your neighbors in the township. And let me say to you, gentlemen, I now speak from mature judgment. I have no feeling in this matter. If you want to make the people in your township active; if you want to raise up your young men and bring out the talent there is among them; you just adopt this township system, and instead of having the officers you have got there, instead of doubling them the number will not be over two - thirds as I could show you; and the effect of the change will be to set almost every man in the town to reading and understanding the duties and trying to become competent to fill these offices. They will all be reading; they will want to see the laws and newspapers and they will want to become competent to discharge these duties. And all this will be done in the best of good humor and they will become capable of understanding and explaining all these matters; and wherever you find real native talent it will be brought out in time and it will shine and cut a figure in the county; and this will be one of the best modes of bringing it out.
I have nothing to say against the county court. I lived in Virginia before they were elected, and I have lived in Virginia since. Many of them are very competent, respectable men in the performance of their duties. We have got in our county four districts and sixteen justices, and they will meet together on a court day; part will be occupied by the court and a committee or two will be engaged and they will sit from one to three days, and the whole business will be transacted by the county clerk, the sheriff and two or three of the justices of the peace, and it will be just taking the figures of whatever those gentlemen please to put down; and when your justice of the peace comes home and you ask him what is the amount of your taxes and what are they all for he cannot tell you for his life what composes the items. Not so with your supervisors. He will be able to tell you every item for which you are called on to pay taxes. As to the competency, I do not want to name names but I have known justices of the peace that could scarcely write their names and never pretend to follow up a precipe or enter a judgment on the docket. I have known them to be made a - I would not say cats - paw; that is perhaps a low expression - but they relied on the constable to say and do everything as that constable might direct; and I have known constables of that description that would not only influence justices of the peace in this way but were perfect tyrants in the community. The gross iniquities I have seen practiced on a small scale in Virginia through the utter incapacity of some of these magistrates and their constables, more particularly before the magistrates were elected by the people. As a general thing the magistrates of the present day are as competent men as there are in the county. The question might arise, how far would I extend, if I had my desire on this occasion, the number of officers? Why, I would leave it to the people of the towns to say whether they would have one or two overseers; I would leave it to the people to say whether they would have one, two or three. I would have also an officer whom I would designate as commissioner of highways. What would be his duty? Why, if there was a dozen reputable free holders who wanted to have a new road made or an alteration made in one already made, I would have these gentlemen send a respectful petition to the commissioner of highways wishing them to designate a day to go on the premises and have them say whether they would allow a road or make an alteration in the road. I would have them go on the ground and there refuse or grant the application. I would allow to these commissioners acting in the dispute 75 cents a day for their services in order to defray their expenses when away from home; and I would set all this road matter right in the township. I would give the parties who considered themselves aggrieved a right of appealing from the determination of the commissioners of highways to the board of supervisors, that the board to designate from probably an adjoining township two or three individuals to arbitrate the matter. Well, now, what is the present system here? Here is the court sitting and here are the people crowding in from all parts of the country, but nothing is done, and after a while the next court comes around: here has been some little error, and here will come a lawyer and they will want to have the whole thing reconsidered. Then you have got to sit down and call the aid of your sheriff to summon in the man on whose decision it was done; and there it will go court after court and the longer it goes the worse it gets, at an expense of three dollars a day for your magistrates and the expenses of your sheriff and the expenses of the individuals you are summoning and taking from home to attend to these things. If these commissioners of highways could go there and sit a day in the neighborhood, in a friendly manner, on the ground, I would have it done; and if after all there was a grievance, I would have it go up to the Board of Supervisors, and they could either decide it or appoint individuals in the same neighborhood to arbitrate it. I would then, gentlemen, have one, two or three highway commissioners, and they would receive 75 cents a day, not to be put on your county or the State, but upon the people themselves right in their neighborhood. That would relieve your county courts of nearly one - half of their business, dispense with the monthly terms, because the courts would have no business at all then only road business.
I am explaining this system and I am ready and willing in the course of debates on this subject to answer any question that may arise in the minds of gentlemen, I have only touched briefly on it to call the attention of gentlemen to the operation of the system as it will be. I suppose properly speaking I ought merely to have confined myself to the question of striking out this office, the supervisor. I am satisfied it would be an error for us at this stage of the proceeding to undertake to strike out that officer. I would retain him until I went through the whole report, and when it comes up on the second reading and gentlemen have had proper reflection on this subject and made up their minds, then I would hold the thing open for such amendments as the Convention in its wisdom might see fit to make. At present I am decidedly opposed to striking out the word "supervisor."
MR. PARKER. I am unable to see how anything is to be saved by the motion of the gentleman from Marshall. I go as far as any other gentleman for reasonable economy in all things. We have in Cabell, if I recollect right, six magisterial districts and twenty - four magistrates. The gentleman from Tyier, which is a smaller county, says that county has sixteen. As I understand where we stand now, with this report, there cannot be over ten supervisors nor under three. Gabell, in that proportion, would have about six supervisors; not over seven, certainly. She would have six or seven magistrates, making twelve or fourteen under different names - six or seven under one, six or seven under the old name of magistrates would perform all that is now performed by the twenty - four magistrates except that portion of it which the two additional terms of the Superior Court which is contemplated and which I hope will pass, will take care of. Well, there certainly would be a great reduction of numbers - very great. Now, if six or seven magistrates undertake to do the whole of that business, to say nothing now of this incompatibility - of this direct conflict with that great fundamental principle which we have here laid down unanimously - going back to the same difficulty which existed in the old county court - to say nothing of that, it must be to say that these six or seven magistrates can do all the business that must necessarily devolve on justices of the peace everywhere, and then take upon themselves the whole business of the county, legislative and fiscal. Why it seems to me the most extraordinary thing in the world. The great mass of the business that now rests upon the county court is to devolve on these six or seven magistrates, and they are to assume the double offices and functions of supervisors and magistrates. That does not combine the incompatibility beginning with the Federal Constitution and in every state constitution down to ours as far as we have got. I can see no reason on the score of economy; and if there was, how great soever it might be, I would not violate that great principle. I shall vote against the motion.
MR. STEVENSON of Wood. I feel satisfied that the Convention is ready to vote on this question, and if there is no member anxious to speak, I hope the vote will be taken now.
The question was stated as being on the substitute of Mr. Caldwell for Mr. Battelle's motion to add the words "one or more supervisors according to population."
The vote was taken on Mr. Caldwell's motion to strike out "supervisor," and it was rejected, the question recurring on the motion of Mr. Battelle.
MR. WARDER. I have an amendment I propose to offer in relation to surveyors of roads. I propose to ask for the same amendment that was proposed by the gentleman from Ohio, to insert "one or more" in the 12th line - "one or more surveyors of roads."
MR. VAN WINKLE. It says one surveyor for each precinct.
MR. WARDER. I will withdraw it. I did not understand it.
MR. SOPER. I was not aware of the amendment offered by the gentleman from Ohio. I think one supervisor in a township is abundantly sufficient; no necessity of having two unless you are going to have a supervisor for so many inhabitants; and in the working of this system I have never seen any necessity for it. Where I have had any experience in this matter there was great inequality so far as related to the number of the inhabitants in a town. One township would contain a great many more than another. One ward in a city will; but yet in this county board, having one supervisor from each town and from every ward in a city also I have generally seen, and I suppose it will be so here, a determination on the part of all these men to do justice and equity all around. I never saw anything like taking advantage. I do not see how it could be. Well, now, gentlemen will see at once that if we start on this inhibition the inequality would be very glaring, and I believe your Board of Supervisors, appointed one for each town is abundantly large for all purposes in regard to which they are called on to act; and if you get ten in your county, you will have a very respectable body. From three to ten can do the whole business, and I think we had better retain the one supervisor in each town.
MR. PARKER. Will the Secretary report it?
THE SECRETARY. "One or more supervisors according to population."
The vote was taken and the amendment rejected.
MR. STUART of Doddridge. I move to amend by striking out, in the 10th and 11th lines the words "First Thursday of April" and inserting the words "Fourth Thursday of May." My object is not to have two general elections within one month of each other.
MR. VAN WINKLE. This election is held in the township; is the annual township election, and cannot be held on the same day as the other, it is not possible, you cannot hold the township election and the other election on the same day.
MR. STUART of Doddridge. We will hear that objection after a while - with all respect. My reason for offering this is to make one election answer. Now here is an election on the first Thursday of April. It is true it is a township election. All the people are called upon and come out to vote on that day because their townships hold their elections on the same day in one month. After that time there will be the general annual election and the people will be tired, and, as I have remarked heretofore, under our present constitution they are really tired of elections and have become worn out with them; and if it is possible to make this provision to conform in that respect and we can have these elections at the same time of our general election, it would be a great convenience and saving to the people. It may be that it cannot be done; but if it can be done, sir, I favor the proposition. Our general elections are all held in these townships, which will constitute the various election precincts; and why not make one election answer all these purposes?
MR. SOPER. Mr. President, I cannot see the force of the argument of my friend from Doddridge, when he says that elections here are burthensome under this new proposed plan. Why, sir, they are not burthensome. True you have an annual election for the election of your town officers and to transact your town business for the year. The people will be called out but one day for that purpose, but suppose there is a vacancy, suppose your constable vacates his office, or your overseer of the poor. Your legislature will provide that your justices, your supervisor and your town clerk, one or two of them, will get together and fill the vacancy until the next year. How is it now, sir? We have had in Tyler some one half dozen elections within a year, and some of them for a single magistrate, some for a constable; and whenever a magistrate resigns, the court orders an election. The election within the last year, in consequence of the conventions and what not have been something of a burden on the people; but I have never heard them complain about it. I believe they are pleased to get out and have a day of recreation, many of them. It doesn't cost more than their dinner, unless they want to stimulate a little. Certainly I should not think gravely that the expense would be anything. It is true under your present system you have your conductor of elections that gets his pay. You have then three or four other individuals who are commissioners, but get no pay. You have then, from two to six or eight clerks that get pay. Well, now, when you once get this system in operation you dispense with all your clerks; you only want one or two clerks. The clerk of the town is the clerk of the town meeting and at the general election I have known the clerk of the town, the supervisor and two or three assessors to be the inspectors, and the justices and the town clerk would be the inspectors at the town meeting. Here in Virginia the way I have seen it I have seen from two to six clerks; they would have two clerks on almost every officer they were to vote for; which I conceive a very unnecessary expense; and where they have as many elections as they have been in the habit of having under the present system, it has been a considerable item of expense. But under the proposed system, the expenses will not rise to one - quarter.
Now, as to the time of holding this town meeting, if it could be done, it would be adviseable to have it considerably apart from the annual election; and if it is going to be the wisdom of this Convention here to have your elections on the fourth Thursday of May - if that is such a fortunate and happy day that it cannot be changed, when your legislature does not meet for some six or eight months afterwards - why, then, it might be well to consider whether or no you would not have the election a little earlier than April. I have known that to be held in some places in February; some in March. I never knew any of them later than the first Tuesday in April. But that has been generally where the election has been held six months or more afterwards in the fall. Now, it may be well to consider the suggestion of the gentleman from Doddridge so far as to prevent the township election and the annual from coming near to each other. But I should prefer seeing the election for state officers in the fall of the year. Township business you can have anytime before the farmers commence their work. March would be a very good month. They have but a little distance to travel, they come to the most populous part of the township, where there is a store, public house or something of this kind where the business is generally transacted. I think for the present we had better retain the first Thursday in April, until we see some gentleman suggest the propriety of holding the annual election. I mean for state officers. If this should be done, then this is right. If not, then when we come to the second examination of the report we could probably fix upon a proper and suitable day. In making the two elections as widely apart as we could consistently with the business of the people of the towns. But for the present, I think I should leave it where it is.
MR. POMEROY. I think a word or two is all that is necessary on this subject. I know of no state in the entire confederacy where they hold these elections on the same day. There is great propriety in keeping them separate. The township concerns immediately the people of the township, and they wish to be in that exclusively on that day attending to the interests of the township. This election ought not to be mixed with the election of the county and state officers at all; and if my friend from Doddridge would only think of that argument he has already used of the great importance to candidates seeing their friends, he would think this day of April would be a proper time to see his friends. As to the expense, there is no expense to this thing under this plan we propose to adopt worth mentioning. The supervisor is to preside, the clerk to take down the names of the voters. He would gain a small compensation - perhaps a dollar - for his services. It ought to be entirely separate from these political influences which are brought to bear at county and state elections. I hope the motion of the gentleman from Doddridge will not prevail.
MR. PARKER. It seems to me peculiarly appropriate that they should be chosen early in the spring. They are annual officers. They have peculiar duties and work that they have to perform, as, for instance, the surveyor. He has the year before him. Should he commence his work in the spring, or should he wait until midsummer? There is a special propriety in electing these officers early in the spring - that is, as early certainly as the first Thursday of April; earlier I should rather say than later; so they could enter on their duties for the year.
MR. VAN WINKLE. I was under the impression when I spoke a few minutes ago that this election must take place at the town meeting. That is not, however, so by the report. It might take place, therefore, so far as it is concerned on the day of the annual election; but I think there are reasons for separating them, and some that have been sanctioned in the case of the election of judges - and that is to separate them as far as possible from the party politics of the day. The different day on which these elections should be held would also answer on the day on which judges could be elected; and in that way we would have the same number of elections we have now in the year, when judges are to be elected, and it would separate it, as I said, from the political elections where party feeling is excited as the thing at present stands and all officers are to be elected by party.
In some states it is usual to elect township officers by ballot, and in some by dividing at the meeting. I think to elect them by ballot is preferable. We are not going to have as long elections, I trust, as we had under the other system, because, no matter how many candidates they can all be put on one ballot and taken in one day. I would for the reason I have stated, prefer to retain a different day. When this was fixed by the committee it was understood that the state election would be fixed in the Fall and was so reported, I think, by the legislative committee. These are put at a different time of the year.
MR. BROWN of Kanawha. One remark of the gentleman from Wood. It is in allusion to another topic but connected with this, and that is the freedom from all difficulty in voting by ballot. He tells us they will all be put on the same ballot. Now, I confess I am not aware, I do not know exactly what is meant by the word "ballot" in that sense. Do you have these eight or ten or a dozen officers to vote for on a given day - county officers, magistrates, supervisors, clerks, constables, overseers of the poor, surveyors of roads, and I do not know how many others? Well, I come up as an individual to vote and here a gentleman will hand me a ballot with a list of names. Well, now, I look over that and I find I am willing to vote for some on the list but not all. A gentleman hands me a ballot on the other side; and going over it I find I am willing to vote for some on that list and not for others on it. I have to cut the ticket in two; and whether there are as many ballot - boxes as there are men to be voted for I do not know. Now, I suppose the only ballot that has occurred to my mind would be the individual's name for whom you vote and the voters name upon it. And if there were five hundred officers there would have to be just as many ballots. Wherever the system is in effect if you have to put all of one side on one ticket and these have to vote the whole ticket through, it would render it much more objectionable than present methods.
MR. POMEROY. You are voting, for example, for supervisors and overseers of the poor. The man that is voting for supervisor just doubles his ballot so that the word "supervisor" is out and the name of the candidate is in. There are large boxes and a number of small boxes all labelled. The officer who receives the ballots puts those of supervisor in one box, those for overseer of the poor in another, and so on. When the election is over the boxes are opened and the ballots counted; the clerk takes down the names of the voters as they present their ballots, the tickets are cut apart; the gentleman is correct in that.
MR. VAN WINKLE. Where I have seen it - and I have seen it in more than one state - all the names are written or printed, as you please; "For Supervisor" such a person and such another; "For Clerk," so and so; and so on for all the officers to be chosen, setting forth the names of the candidates for each - all on one paper, folded up and put into one box. They had separate ballots for state, congressional and perhaps county and township officers. But all officers to be elected at one time can be put on the same piece of paper. I was a little surprised at the gentleman's idea of a man writing his name on the ballot. Of course this would disclose his vote to the election officers who examined the ballot and would defeat the object of the secret ballot. That is not done in any case.
MR. STEVENSON of Wood. There was one matter my friend here from New York and the state of Hancock forgot, to mention that the gentleman from Kanawha inquired about, the difficulty that he had in regard to the names on two or three different tickets, and his wish to vote for some parties upon probably two or three of these different tickets. I would just state what I have seen adopted in that case is to take one of the tickets and scratch out some of the names on it that you do not want to vote for and write in another name opposite the office designated until you get your ticket full. Supposing there were five persons running for legislature, and you wished to vote for two upon some other ticket. You write these two names on one of the tickets and scratch out the other names on that ticket. Where the system of voting by ballot is in operation, the matter is simple and accurate. There can be no difficulty in a man voting for all the officers he wishes to vote for and for any candidate of his choice, so that it shall not be known how he did vote in any case.
MR. BROWN of Kanawha. It seems that the reason urged by the gentleman from Wood against the placing of these elections on one day is not conclusive. The more I see of general and special elections the more I am satisfied that the only thorough, full, fair and satisfactory expression of the public sentiment is had when all the people are at the polls, and that that election is the best which secures that object, and that a general election which elects every officer in the commonwealth for that year on the same day is the best because you will have the people all there; that every other election that is chosen on some other day that does not excite general interests or divides the sentiment of the community is a real evil. And I believe further from observation of the community in numbers so great as to render it a public testimony, that the frequency of our elections is a crying evil as is the number of officers that are constantly annoying our people in elections. I am satisfied we should fix the general stated elections annually and at that election should choose every officer that is to be voted for in the year. And then everybody will know it and be there. I shall vote for the amendment of the gentleman from Doddridge with a good deal of pleasure, for I believe it is the true principle and ought to be carried out in this case.
MR. HERVEY. I hope the motion to strike out will not prevail. One officer is surveyor of roads. He cannot discharge the duties for the current year if elected on the fourth Thursday of May. The day placed here is the first Thursday of April. Every man who has had any experience in that line knows that the surveyor of roads should let early in the season the work that is to be done, so it may be done before the work of the farmer comes on, who must have proper time to prepare for his harvest and to cut his grass. If a surveyor is elected the last of May he cannot discharge the duties of his office that year, very well.
MR. STUART of Doddridge. The gentleman from Brooke seems to think these elections ought to be held on the first Thursday of April from the fact it would give the overseers of the road time to work the roads. Well, I think, too, it is the right season to work, but I want them to work the roads at the time they ought to work them, and there is nothing in the world to keep them from doing so. You can take the thousand persons that are to come out on the first Thursday of April and have them, instead of voting on that day put to work on the roads at the very time that work ought to be done and at the time they can do it instead of going to the election.
The gentleman from Tyler seems to think my reason assigned in relation to the expenses of the election are not valid, because only two clerks are employed. That is not the expense of the election at all. It is when the great mass of people come out and spend a whole day at the election. For instance, a thousand voters came out to vote. If not they cannot have any voice in who shall constitute these officers. If they come out, there is a thousand days lost, it is worth a thousand dollars.
MR. SOPER. How many days do your people attend the county court?
MR. STUART of Doddridge. These men who have business before county courts will still have business and they will go wherever their business calls them. They will pay the expense. But I do not want you to call on me to go out and work for overseer of the road when I would go to the general election. I do not want this question about work on the roads to be a test question as to the day the election shall be. The general elections have been set for the fourth of October. I would have made the same motion. Have these elections on the day of your general elections; and whenever you fix that time and see cause to change it let it all be changed alike. Because if you make them in October, I would make these the same day. Now, what is to be gained by keeping these elections separate and apart? Am I to be influenced, or suppose people are to be influenced by party feelings in voting for an overseer of the roads or overseer of the poor? Certainly there will be no such things. People will be all interested in their general elections and they will come out and vote, and as the gentleman from Kanawha said you will get a general expression of the people. They have become tired of elections in my county. Not long ago a man was elected overseer of the poor by two votes. He had only two votes, there was but two cast and those two elected him; and it proved that he was an idiot and the court would not permit him to qualify. All a man has to do is to peddle round a few friends and get them to come out, to be elected; because people will not come out, but if you wait until a general election, you will have good men elected.
The vote was taken on Mr. Stuart's amendment, and it was lost.
On motion of Mr. Soper, the Convention adjourned.
Chapter Eleven: First Constitutional Convention of West Virginia
