text:
The Convention assembled at the appointed hour.
Prayer by Rev. R. L. Brooks, a member of the Convention.
In absence of the President, Mr. Hall of Marion occupied the chair.
Journal read and approved.
The Chair stated the question as being on the 5th section of the report of the Committee on County Organization.
MR. VAN WINKLE. It would be proper to explain to this Convention what these offices are intended to be so far as the committee intended. What the sheriff and prosecuting attorney are, everybody knows. The surveyor of lands is the regular surveyor of the county for the purpose of surveying lands and so on; and then there is a surveyor of roads, in a previous section. There is a recorder of deeds and wills: that also explains itself; one or more assessors. That name was preferred by the committee to "commissioner of the revenue," which consists of four words and is rather a description than a name. "Assessor" is well understood, not only abroad but in Virginia. We have the officers who make the assessment of real-estate called assessors. Superintendent of schools also explains itself. I would say it would be best to have the same understanding about these officers as about the township officers, that the Convention may adopt or reject any of these names, and put in others if in the progress on the report it should be found necessary; that the report should always be considered open for that purpose until it is finally disposed of.
THE PRESIDING OFFICER. Under the rule under which we are acting the report would be subject to amendment on final action.
MR. VAN WINKLE. Well, I mean previous to final action; that we should not be excluded from putting in another officer if necessary.
MR. DILLE. In looking over this first clause of this 5th section, it struck my mind that there is something in the 54th line probably unnecessary. It may be that I am under a misapprehension: "a recorder of deeds and wills." I am inclined to the impression, upon a little reflection on this subject, that it would be better to strike out the words "deeds and wills" and say "a recorder." It seems to designate a little too particularly the duties of the office; whereas, the provision here, the latter part of the clause would seem to indicate that the powers and duties of these officers is to be fixed or prescribed by the legislature. Now, in thinking upon this subject, I have thought probably it would be necessary for this officer to have charge of estates, the recording of estates and everything pertaining to them. If so this expression here would seem to exclude the idea. By using the simple expression "recorder", then the legislature in its action under this section may direct or authorize the duties of that officer and define them by general laws. I think it would be better, and I move to strike out in line 54 the words "deeds and wills."
MR. VAN WINKLE. I would state that those words were introduced by the committee rather for the benefit of the Convention in order that they might understand what the committee meant rather than to retain them as the permanent name of the officer. A recorder is an officer that is well know elsewhere by the simple title, and it would soon get to be so here. I have no objection, therefore, to strike out the words; and I think there is a good deal in the suggestion that the legislature go a little further than we propose in reference to the recording of deeds and wills. Something of that kind might be done. It would relieve the circuit court very much; and as it is not the intention to continue this limitation here, it will be left to the legislature to consider that suggestion.
Mr. Dille's amendment was agreed to.
MR. STEVENSON of Wood. I believe, sir, that there ought to be an amendment in the 58th line. At least I will offer one to elicit an opinion from the Convention. To insert after the word "defined" the words "as far as practicable." The section will then read: "the duties of all of whom shall be defined, as far as practicable, by general laws." I offer this amendment, sir, for this reason, that although I believe the practice to be a correct one, and I am decidedly in favor of it, of regulating the duties of these different officers by general laws, yet I think it is possible in the course of time - particularly as many of these are new offices - cases may arise where it will be, good and proper causes may arise, where it will be impossible to apply these general laws. Now, it is to meet such particular cases which may possibly arise that I think the words should be inserted. We do not know how these general laws will operate in every particular case; because it is impossible to see now, whatever foresight we may have, the different particular cases which may arise as we come to apply them to the duties of these officers in actual practice. If these words are not inserted, the duties of these officers must be prescribed only by general laws; and if a difficulty should arise in a particular case, or in a number of particular cases, where some special law would be needed, you would have no remedy. Now, sir, if you insert this provision, it seems to me it does no harm but it may do good if such cases should arise. Then you can have a special act for the purpose to meet the case or any number of cases. If such cases should not arise then it will be the duty of the legislature to apply the general law in all cases and you will have to apply it in all cases at all events if this is inserted unless some special contingency of this kind should arise - which is quite likely, I think.
MR. PARKER. I would suggest: "defined by law," whether that would not meet that suggestion.
MR. STEVENSON of Wood. I would like "general laws" to be in. I would like that to be the rule; the other the exception.
The motion on the amendment was put and it was found there was no quorum voting.
MR. BROWN of Kanawha. Mr. President, I would say to the Convention when the gentleman from Wood proposed this amendment it struck me as being objectionable; but after hearing his suggestion and that of the gentleman from Cabell, I have changed my mind and I think it is highly proper that it be inserted. It is very possible, it occurs to me that many cases might arise in which it would be very difficult perhaps by general law to provide for the case that might be required and that special legislation might cure, and that the power to give it ought to be had. Therefore, I would vote for it.
The vote was taken again and resulted: Ayes - 15; Noes - 11.
So the amendment was adopted; and the question recurring on the sentence as amended it was agreed to.
MR. LAMB. Mr. Chairman, I have a report to make from the Committee on the Legislative Department, which I move to have laid on the table and printed. Following is the report:
The committee having reconsidered so much of their report as relates to the number and apportionment of members of the legislature, recommend the adoption of the following provisions as part of the Constitution of the State, instead of the 2d, 3d, 4th, 5th, 6th, 7th, and 8th sections of the 2d report:
2. The senate shall be composed of eighteen, and the house of delegates of forty-seven members, subject to be increased according to the provisions hereinafter contained.
3. The term of office of senators shall be two years, and that of delegates one year - commencing, in each case, on the 4th day of July succeeding their election; except that the terms of the senators and delegates first elected shall commence twenty days after their election. The senators first elected shall divide themselves into two classes, one senator from every district being assigned to each class; and of these classes, the first to be designated by lot, in such manner as the senate may determine, shall hold their offices for one year, and the second for two years; so that, after the first election, one half of the senators shall be elected annually. Vacancies, in either branch shall be filled by election, for the unexpired term, in such manner as shall be prescribed by law.
4. For the election of senators, the State shall be divided into nine senatorial districts; which number shall not be diminished, but may be increased as hereinafter provided. Every district shall choose two senators. The districts shall be equal, as nearly as possible, in white population, according to the returns of the United States census. They shall be compact - formed of contiguous territory - and be bounded by county lines. After every census hereafter taken by authority of the United States, the legislature shall alter the senatorial districts, so far as may be necessary to make them conformable to the foregoing provisions.
5. The legislature may at any time, by law, divide any senatorial district, by county lines or otherwise, into two sections, which shall be equal, as nearly as possible, in white population. If such division be made, each of the sections shall elect one senator, instead of the district electing two; and the senators so to be elected shall be classified in such manner as the senate may determine.
6. Until the senatorial districts be altered by the legislature after the next census, the counties of Hancock, Brooke and Ohio shall constitute the 1st senatorial district; Marshall, Wetzel and Marion the 2d; Monongalia, Preston and Taylor the 3d; Pleasants, Tyier, Ritchie, Doddridge and Harrison the 4th; Wood, Jackson, Wirt, Roane, Calhoun and Gilmer the 5th; Barbour, Tucker, Lewis, Braxton, Upshur and Randolph the 6th; Mason, Putnam, Kanawha, Clay and Nicholas the 7th; Cabell, Wayne, Boone, Logan, Wyoming, Mercer and McDowell the 8th, and Webster, Pocahontas, Fayette, Raleigh, Greenbrier and Monroe the 9th.
7. For the election of delegates, every county containing a white population of less than half the ratio of representation for the house of delegates, shall, at each apportionment, be attached to some contiguous county or counties, to form a delegate district.
8. When two or more counties are formed into a delegate district by the legislature, they shall provide by law that the delegates to be chosen by the voters of the district shall be, in rotation, residents of each county, for a greater or less number of terms, proportioned, as nearly as can be conveniently done, according to the white population of the several counties in the district.
9. After every census hereafter taken by authority of the United States, the delegates shall be apportioned as follows:
The ratio of representation for the house of delegates shall be ascertained by dividing the whole white population Of the State by the number of which the house is to consist, and rejecting the fraction of a unit, if any, resulting from such division.
Dividing the white population of every delegate district, and of every county not included in a delegate district, by the ratio thus ascertained, there shall then be assigned to each a number of delegates equal to the quotient obtained by this division of its white population, excluding the fractional remainder.
The additional delegates which may be necessary to make up the number of which the house is to consist, shall then be assigned to those delegate districts, and counties not included in a delegate district, which would otherwise have the largest fractions unrepresented. But every delegate district, and county not included in a delegate district, shall be entitled to at least one delegate.
10. Until a new apportionment be declared, the counties of Pleasants and Wood shall form the 1st delegate district; Calhoun and Gilmer the 2d; Clay and Nicholas the 3d; Webster and Pocahontas the 4th; Tucker and Randolph the 5th; McDowell, Wyoming and Raleigh the 6th. The first delegate district shall choose two delegates, and the other five one each.
11. The delegates to be chosen by the 1st delegate district shall, for the first term be both residents of the county of Wood, and for the 2d term one shall be a resident of Wood and the other Pleasants county, and so in rotation. The delegate to be chosen by the 2d delegate district shall, for the first term be a resident of Gilmer, and for the second of Calhoun county. The delegate to be chosen by the 3d delegate district, shall, for the first two terms, be a resident of Nicholas, and for the third term of Clay county. The delegate to be chosen by the 4th delegate district shall, for the first two terms, be a resident of Pocahontas, and for the third term of Webster county. The delegate to be chosen by the 5th delegate district shall, for the first three terms be a resident of Randolph, and for the fourth term of Tucker county. And the delegate to be chosen by the 6th delegate diistrict, shall, for the first and second terms, be a resident of Raleigh, for the third term of McDowell, and for the fourth and fifth terms of Wyoming county - and so, in each case, in rotation.
12. Until a new apportionment be declared, the apportionment of delegates to the counties not included in delegate districts, shall be as follows:
To Barbour, Boone, Braxton, Brooke, Cabell, Doddridge, Fayette, Hancock, Jackson, Lewis, Logan, Mason, Mercer, Putnam, Ritchie, Roane, Taylor, Tyler, Upshur, Wayne, Wetzel and Wirt counties, one delegate each.
To Harrison, Kanawha, Marion, Marshall, Monongalia, and Preston counties, two delegates each.
To Ohio county, three delegates.
To Greenbrier and Monroe counties together, three delegates, of whom, for the first term, two shall be residents of Greenbrier, and one of Monroe county; and for the second term, two shall be residents of Monroe and one of Greenbrier county; and so in rotation.
13. If the counties of Pendleton, Hardy, Hampshire and Morgan become part of this State, they shall, until the next apportionment, constitute the tenth senatorial district, and choose two senators. And if the counties of Frederick, Berkeley and Jefferson become part of the State, they shall, until the next apportionment, constitute the eleventh senatorial district, and choose two senators. And the number of the senate shall be, in the first case, twenty, and in the last, twenty-two, instead of eighteen.
14. If the seven last named counties become part of this State, the apportionment of delegates to the same, shall, un- til the next apportionment, be as follows: To Pendleton and Hardy, one each; to Hampshire, Frederick and Jefferson, two each; and the counties of Morgan and Berkeley shall form the seventh delegate district, and choose two delegates; of whom for the first term, one shall be a resident of Berkeley and the other of Morgan county; and for the second term, both shall be residents of Berkeley county, and so on in rotation.
But if the counties of Pendleton, Hardy, Hampshire and Morgan become part of this State, and Frederick, Berkeley and Jefferson do not, then Pendleton, Hardy, and Morgan counties shall each choose one delegate, and Hampshire two, until the next apportionment.
The number of the house of delegates shall, instead of forty-seven, be in the first case, fifty-seven, and in the last case, fifty-two.
15. The arrangement of the senatorial and delegate districts, and apportionment of delegates, shall hereafter be declared by law, as soon as possible after each succeeding census taken by authority of the United States. When so declared, they shall apply to the first general election for members of the legislature to be thereafter held, and shall continue in force, unchanged, until such districts be altered, and delegates be apportioned under the succeeding census.
16. The regular elections for members of the legislature shall be held on the fourth Thursday of May.
By order of the committee. DANIEL LAMB, Chairman.
HOUSE OF 47 - Ratio, 1 Member to 6,477 Whites.
By general consent the report was received, laid on the table and ordered printed.
The Secretary reported the second sentence of section 5 as follows:
"All the said county officers shall hold their offices for two years from the first day of October next succeeding their election, except the sheriff, whose term of office shall be three years."
MR. DILLE. In the 61st line I move to strike out the word "three" with the intention of proposing "two;" and when the next clause comes before the Convention, to propose that he may hold the position for two consecutive terms.
THE PRESIDING OFFICER. The gentleman's object would be accomplished by moving to strike out the exception, all after "election" in the 60th line.
MR. DILLE. That will accomplish the same object. I think really that a sheriff should hold his office at least two terms if the people choose to elect him. At least all my observation and experience in connection with the sheriff's office would induce me to vote in that way. It may be that others have more experience in reference to these officers and have had worse officers and desire a rotation in them; but still I am inclined to believe that a sheriff should at least hold that office for two years and be eligible for two terms.
MR. VAN WINKLE. I do not know whether I understood the gentleman from Preston correctly. I understood his object is to reduce the term to two years and then allow him to be elected for two consecutive terms, making his whole term four years. He will notice it is the next clause that forbids) the re-election for a second consecutive term. I have not on this as on many other subjects connected with these officers the practical knowledge to enable me to say except on general principles what I would think right about it. I believe, however, that in accordance with the practice that is contained in the constitution of 1850 it seems to have been indicated that the sheriffs should not have too long a term of service, but be obliged to give up the office at reasonable intervals in order that settlements may be made. I would call the attention of the Convention at this time to another clause of the next sentence: "but the retiring sheriff shall finish all business remaining in his hands at the expiration of his term, for which purpose his commission and official bond shall continue in force." There will be no handing over of business from one sheriff to another. He will go on and finish up the business; which will give him sufficient employment and profit after settling with those who have placed business in his hands. I am, so far as I can judge about it, I am rather indifferent to this amendment - whether the sheriff should serve altogether three years or four years. That is the only question involved. I should like to hear from those who have more practical experience. I think in my own county we never had one defaulting sheriff - that is, within the last four or five years. We have had a few defaulting constables; but we have not been subjected to the evils of which others complain.
MR. SMITH. In case the amendment shall prevail, what would be the effect of it as regards the second term?
MR. VAN WINKLE. It is with a view, as the gentleman who made the motion stated, to also strike out the provision in the next sentence which forbids the sheriff from serving more than one term at a time and allow him to serve two terms, making a service of four years.
MR. SMITH. I would concur in the motion to strike out if it were not that I think another plan is much better for the country. Instead of having two terms, I should prefer to have one term of four years. The sheriff for the first two years, so far as my observation has extended, devotes himself entirely to preparing the way for a new election, and the county and parish levies are neglected and the revenue is neglected, and he is a defaulter. Then he gets in for a second term and tries to make up for his default. I should like the term to be four years because a sheriff in two years only learns the duties of the office, and when he becomes an expert sheriff he is removed and we lose the benefit of his past experience. But give him four years and one term and you avoid this difficulty, this objection to it of electioneering the end of the first year for his re-election. He has no inducement then. Give him the four years. But to make a good sheriff, who will perform his duties, a rigid sheriff, is better for the country; but a loose sheriff is ruinous to the country, the tax-payers, because they are delayed from year to year until they become a heavy and onerous duty, and then it is perhaps lost and it becomes exceedingly onerous, three or fours years of taxes resting on an individual at once and all to be enforced at once. But if he is rigid, collects it in small sums, the party does not suffer. I think it would be greatly preferable to make his term four years, when all these causes which exist for inducing him to neglect his duty are disposed of and he has no other thing to occupy him but his duty to the country and to himself. I would object therefore to striking out for that reason, that the term should be four years instead of two - three certainly.
THE PRESIDING OFFICER. It would be competent to strike out "three" and insert "four."
MR. SMITH. I now make that motion, if it is proper.
MR. LAMB. I think we had better dispose of the first amendment first. The question will be more distinct.
MR. VAN WINKLE. The question is now: shall it be two years, three years or four years. Well, I believe in such cases it is usual always to take the vote on the longest term first, no matter in what order the amendments are offered. The Convention will, of course, understand that by voting one they exclude the other.
MR. BROWN of Kanawha. I think that past experience under the operation of the constitution of 1850-51, which gave us the election of sheriffs in two-year terms has demonstrated the wisdom of the proposition of the gentleman from Logan; and I think it is the experience of the country as the records of the office at Richmond manifestly show, that the sheriffs throughout the commonwealth, as a general thing, have appropriated the first term to secure an election to the second. When they cannot secure a re-election for the second term (or the third, whichever the prohibition is in the constitution), the same thing is attained by running a deputy for sheriff and the sheriff becomes the deputy in turn of the newly elected party. Now, that is the practice, and the result is that collections of taxes go neglected and everything is delayed, deferred, favoritism shown, in order to make friends for the second term. Now, as the gentleman remarked, it is manifest if you make it at once four years and forbid re-election for a consecutive term and forbid a sheriff from being a deputy for his successor, he has no inducement but to go forward and discharge his duty and save his securties from the penalties. Everywhere you find securities are being mulcted in heavy defaults. Well, now, the policy should be not only to secure the amounts that result from the liabilities of the sheriff but to secure people from being drawn into these. I hope it will be the wisdom of the Convention to adopt four years instead of three and make one term final, however, the sheriff at the end of his term shall be conducted and wound up by him thereafter.
MR. VAN WINKLE. I should like to say one word - to call the attention of the members - because my own mind is not entirely clear on this subject. The sheriff's, I suppose, is the most valuable county office proposed - the most valuable office we have. My experience - or speaking from recollection, of those I have known to go into office is that a man by taking the office either makes money or ruins himself. And also it may be said that there is no medium course. A man hardly ever comes out of the sheriff's office without having either made a lot of money or lost all he had. He either makes or he loses and breaks himself up. A delinquent case that I knew of in my county was a singular one: a man of property; he had collected very closely; and yet his securities have actually paid in cash up to this time some eight or nine thousand dollars and neither he nor any one else can tell what has become of the money. This and my experience particularly with the office of constable, where I have seen it more, has led me to the conclusion that the difficulty is that the temptation of the office is great to any man; but unless a man has peculiar business qualifications it is utterly impossible for him to manage it so as to make money.
We propose now to make the term four years and to continue till the business is wound up. The sheriff will unquestionably be compelled by the legislature to give security, and ample security, for the discharge of the duties of his office. Now, how, I want to know, is this long term going to operate in reference to the security? Will it induce the securities, who are frequently men as well qualified for the office as the sheriff himself - will it induce them to look at what they are about to do? If the person who asks for security is not a man of business habits, to refuse to give that security; or will we go on giving security and signing the bonds of anybody who asks it? If by fixing the term long it will induce these securities to see that they have got to trust to something more than luck in the matter; that during the long period the office is to continue a great many things may happen to induce them to be more particular whose bonds they sign, then it is an argument in favor of four years. The true remedy, sir, would be, of course, with the people who elect this sheriff; but a knowledge of a man's business qualifications relating to figures and finances are not usually very extensively disseminated among our agricultural population. They are not perhaps the best judges in reference to a man's qualifications for that particular office. They know him to be a good neighbor, an honest and upright man; they see him in the possession of property; they find perhaps he is even by means of his ordinary business operations accumulating property; but they are not, nor is every one, able to tell what a man can do in reference to things of this kind till he is tested, because it requires peculiar qualifications. It requires peculiar qualifications to make a good shoemaker as well as a fine statesman; and I don't believe Daniel Webster ever could have learned to make a pair of shoes. For this long term of four years unquestionable the sureties must run more risk than they would for the shorter term; but is it likely that with the best nominations, and the best intentions on the part of the candidates themselves, despite the greater risk of the longer term, there would be any greater caution on the part of those asked to go on the successful candidate's bond? My own impression is that in ordinary cases the longer term would make them more cautious. But then, on the other hand, if the term should be reduced to two years and the sheriff allowed to double it, making four years in all, would not this return to the people for confirmation be of some importance? Or would it have the effect such as, if I understood the gentleman from Logan, that the sheriff devotes his first term to secure the second? It is one of those exceedingly responsible offices, in which the people are so directly interested that the utmost caution should be used in everything that relates to it. And I state frankly that since what I have heard, my own impressions are in favor of four years. I should like if any gentlemen who know more about it would confirm me in it or tell me if I am wrong in that impression.
MR. DERING. I should not trouble the Convention on the present question did I not feel myself instructed to some extent by the people of my county on this subject. They are decidedly, sir, wherever I have heard an expression of the people, in favor of but one term for the sheriff; and it occurs to me that three years would be sufficiently long. A new broom sweeps clean, sir; but if you continue a sheriff in office too long, he becomes careless and negligent. You give any man or set of men power too long, and keep them in power and office, they become careless and negligent. Some gentlemen have proposed a term of four years. The committee themselves have recommended three years to be the term of the office. It seems to me three years would be sufficiently long for a sheriff to be compensated and that they might then very well retire. If you make it two years you will make the time too short to receive that compensation which he should have. If you make it four years you increase the liability to negligence and neglect of business. Our people, sir, are clearly in favor of a moderate one term for the sheriff.
Why, sir, in our county we have a signal illustration of the facts that where sheriffs are permitted to be elected and re-elected, as they were under the old constitution eligible to the same office for two terms, the whole business of the sheriff during the first term is to provide for his re-election to the second; and during the second, his whole business is to procure the election of one of his deputies; and in that way, sir, the office has been handed down from high sheriff to his deputy ever since we adopted the constitution of 1850-51. He makes it his business the first two years he is in office to electioneer for sheriff for the next two years; and then for the next two years the sheriff and his deputies make it their business to electioneer for the election of one of the deputies for the following four years. And so the sheriffs have been a self- perpetuating body. The sheriffs in our county have been handing down the office to either themselves or their deputies ever since the change in the constitution. It is important, sir, that we should so guard the office of the sheriffalty that they will be held properly amendable to the people and be confined to one term of office, themselves and their deputies both being made ineligible thereafter. I shall vote for the three years term.
MR. SMITH. I beg leave to withdraw my amendment for the present. It is put in the front of battle, and I have an army on either side striking at me. I am competing with two propositions instead of one. I would maybe let them have the first fight, and then I will come in with my amendment and compete with the other. I think it would be better for my little bantam to be out of the ring for the present and come in after one of them is disposed of. I therefore beg leave to withdraw my amendment for the present and let the two-year and three-year men have their struggle first. I concur entirely in what the gentleman from Monongalia has said; but that is provided for in the Constitution, that the deputy shall not be a substitute. That thing has been practised in our county to a very considerable extent and was the cause of a good deal of exception. I have seen the operation of electioneering for the second term. I am opposed to two terms and to the election of a deputy. My experience and observation in the various counties in which it has been my business to become informed is that it is mischievous. These amendments not only strike at the root of the evil; but I do think that after a sheriff has become competent to discharge the duties the public, who are then interested in the residue of the term ought to have his enlightened services. I therefore prefer four years. If I cannot get four, I would prefer three to two. But for the present, I will withdraw my amendment and ask that the question be put on the two and three years.
MR. SINSEL. I see nothing in this clause to prevent the retiring sheriff from being deputy to his successor.
THE PRESIDING OFFICER. The question will arise in the next sentence. The exclusion is not under consideration now.
MR. SINSEL. And then you will see, if you go on with this, that you are here prohibiting the deputy sheriff from being elected while the principal himself may be the deputy of his successor.
THE PRESIDING OFFICER. The gentleman from Taylor does not understand it. So far as the matter of exemption is necessary to be used as an argument it is proper; anything on that point would be proper when we arrive at the next sentence.
MR. SINSEL. Very well.
MR. BROWN of Kanawha. The gentleman from Logan having withdrawn his motion, I shall have a word to say. What I wish to say will be to the general question, whether the amendment is offered hereafter or now, the difficulties suggested by the gentleman from Wood in regard to these bonds. Now I have some experience in this matter, and I know that the difficulties on that score are very great. I alluded before to the general history of the state. Unless gentlemen are familiar with that, perhaps it would not strike them with force in this argument. But I believe it cannot be controverted by any gentleman that the defaults of the sheriffs to the commonwealth are three-fold what they were before this constitution which elected sheriffs by the people was adopted. It is the experience of the last ten years. I know in Wood, Jackson, Putnam, Kanawha and Cabell, and I have been informed in Boone and Logan - of the other I cannot say -
MR. SMITH. Raleigh.
MR. BROWN of Kanawha. In those counties, in every single instance, sir, have the sheriffs been sued and judgments recovered for their defaults against their securities to the amount of thousands upon thousands. Innocent men. are deprived of all that they have. Now, take these same counties under the old constitution and I doubt whether in the whole of them any such thing can be found from the date of the commonwealth to the inauguration of this constitution. There may have been a notice against an officer for some trifling default, but no such thing as a judgment against the sheriff and his securities was a rare occurrence. Now, why this mighty change but for the fact that this thing of electing your officer by the people prompts the incumbent to use his position to secure his continuance in it, and as a result the officer becomes a defaulter and his securities are liable. If he fails of a second election, then comes the judgments. If he succeeds, what then? It is the general understanding, and I believe it cannot be successfully questioned that all his collections are applied to supply the defaults of the first term. Every security of the defaulting sheriff of the first term is bound to aid in the success of this officer or deputy who is to step into his place in order that the funds and revenues that may come into the hands of the second officer may discharge the first liabilities, and the second men are drawn in unwarily into liabilities they have little understood to find themselves involved for more than they are worth at the end of the second term.
Now these are existing facts that have grown out of this very condition of things. The question is, will you perpetuate it? The matter is one of practical experience of ten years all over your state; for I doubt very much whether in one-half of the counties of the state there have not been judgments against sheriffs and their securities for defaults. With this experience and light before you, you will now learn wisdom by experience. The question is whether you will, in the light of this experience, lengthen this term to a time sufficient to allow this officer a full opportunity of fulfilling his duties; and when he has done it, we should permit neither him nof his deputies to become his successor, nor permit him to be the deputy of his successor, which will accomplish the same end. In most of the counties I know it is the rule that the deputy this year is to be the sheriff the next, and the outgoing sheriff then becomes his successor's deputy; and then at the end of that term the tables are to turn again; and thus it is kept up by turns as long as these men can effect the election of each other. Now, the object is to end that. The reason we desire to end it is the evils that grow out of it. That is to be accomplished by giving to your office four years. I concur in much that was said by the gentleman from Monongalia, but I differ from his opinion that three years is a long enough term. I think experience shows four years is barely long enough and that the termination of the office will have to continue on to wind up the business if that term is found insufficient. In this case you always understand when a man goes security for the sheriff he knows that officer never can subject him to any other law by any other change. He knows he has got to stand up to the liabilities to the end of the four years, and it will make him more chary about how he goes into the bond and more watchful to see how he discharges his duty; and the sheriff will not find it so easy to mulct the whole community. When you have accomplished these two ends you will have done much to secure the rights and property of the people. For this office is important. It comes in contact with the whole community, debtor and creditor. And here I beg to remark another thing. Under the old constitution the sheriffalty was always farmed out. The high sheriff never in any instances that I know of undertook to discharge the duties himself. The consequence was that he always selected his deputy with a view to his qualifications and cared nothing about the matter of popularity. He wanted the man who would save him harmless from all liabilities; and that is the reason the man was chosen by the high sheriff with a view to his qualifications - the reason why you never had judgments against the sheriffs; because they were so much better. Now, our object is to secure that very same qualification in the officer. Give him time to qualify himself and to carry out and execute the office and make his securities liable for all defaults, with no possibility of shifting that liability on the shoulders of some other securities who are not aware of what is transpiring.
MR. STUART of Doddridge. I believe that to be the greatest good to the greatest number of people. I have been sheriff and the surety of sheriffs for the last twenty years and I believe I know as much about it as most persons. I am for frequent recurrence to the people myself; and if I was addressing now the mass of the people before my friends of the township meeting, I know that I would have no difficulty in carrying my point, and that is adopt the shortest possible term for these sheriffs. I presume the reasons assigned here now to increase the number of years, is, that they will go on and execute the office without any regard to the sentiment or feelings of the people at large. If we elect a sheriff, my experience is, that one year would be the best term we could elect him for, because then he would be disposed to perform the duties of the office courteously and kindly towards citizens and be disposed, sir, to pay over in order to satisfy his sureties. If you give him four years it will be that much more latitude, and if he is disposed to be a rascal it will give him an opportunity of defrauding the sureties out of a greater amount of money. We want none but honest men as sheriffs; and the great difficulty the gentleman from Kanawha has now spoken of is the fact that after this election the sheriff - a majority of them - were totally unfit for the position. And my experience in the losses by these sheriffs is not that they did not clear, but that they cleared and squandered and spent - were reckless. If they had not collected it, the sureties would not have been hurt, because the debts would have been there and could have been called in and the claims could have been met with the taxes to have been collected. In nearly every instance in my knowledge it has been squandered and spent by the recklessness and dishonesty of the sheriffs in that he was holding out inducements to be elected again and used the money.
Now, sirs, if we have an officer of that kind, is it not better that he should return to the people in one year, than that he should be allowed three or four years? It would be much better. If a man proves himself to be a good sheriff, an honest, faithful man who looks to the interest and welfare of his constituents ought not the people have a right to elect that man again, if they choose to do so, instead of trying another experiment and picking up another man whose qualifications they are totally unacquainted with? Let them return at short periods. They will soon find out who is the man that should be sheriff, and who is the man that is not to be trusted; but they cannot do much wrong in one year, and if he proves himself to be an efficient and good officer in one year the people will elect him again. If he is a kind and well disposed man and looks to the interest of the people they will elect him; but if he is arbitrary, selfish, and does not care for the interests of his fellow men, as I have seen some do, of course they will not elect him. Is that the kind of a man you want to make out of your sheriff? Or is it the man who will look to the interests and feelings of his constituents and indulge them as much as possible? Should we seek to make out of the sheriff an unfeeling tyrant by saying to him that he is never to look to the people again for any continuance of his office? He may oppress and destroy the people as much as he pleases, still it makes no difference he has his office four years and need not look any further. Now that would be the result. When I acted as sheriff, I acted for one year and renewed the bond next year. I believe nobody ever lost any money by it; and if you had the same rule this day, there would be no defalcations. There are more defalcations at present than there were under the first constitution. A sheriff had to renew his bond every year; and if he had to do the same now we would have very few defalcations because the case would be scrutinized at the end of every year. I would be for fixing it at four years, and I believe the gentleman from Logan has withdrawn his amendment. I now move to amend by making it one year and I cannot see anything that would result unfavorably but everything that is right in my honest opinion - the safety of the people, the safety of the government, the safety of everybody. Now I have been a standing surety for twenty years as I remarked, and I do assure you I would be very unwilling to go on a bond for four years, or three or even two. In one year the sheriff would show what he was, whether capable and reliable. At the end of that time if he was not such, his surety would be out of the way and the people would understand the character of the man and they could re-elect him or let him alone.
MR. DERING. I am decidedly opposed to the amendment of the gentleman from Doddridge; and, sir, I think I fully appreciate his arguments - his last argument that the people should be favored. Why should the people be favored? Why, sir, in the election of a sheriff above every other officer in the commonwealth, qualifications and promptness should be required at his hands. What is the object of electing a sheriff? It is that he may collect your taxes and the debts that are sued for and that he may be prompt in a discharge of the obligations he takes on himself. And shall he be elected, sir, with a view to please the people? Shall he be elected for his qualifications and the promptness with which he discharges his duty, or shall he be elected every year to electioneer for the succeeding term to favor the people at the expense of the State, the counties and the creditors? Sir, I am not in favor of this doctrine. The sheriff above every other officer should be elected with a view to the full and prompt discharge of his duties; and if you will make him returnable to the people for his election a second year, he will perpetuate his office. In our county some of our sheriffs have let their old taxes lay over and accumulate until there are thousands of dollars that cannot be collected. They have let their old debts run on until you cannot get a cent out of them. Why, sir, I was the security of a sheriff some six or eight years ago and he has got into the ring of deputies until he has perpetuated himself in his office ever since. His old business is not closed up to this day. I do not know what liability I am liable for. I am in favor of favoring the people wherever it can be done. The State requires that these taxes shall be paid promptly; and I am of the opinion that the sheriff when a trust is put into his hands has nothing to do with favoring the people; that he is traveling out of his road when he gives them indulgence at the expense of the creditors. The law lays down his duty and it is his duty to fulfill the obligations of his oath and the law. He has no discretion left him, he is to go on and fulfill the law and the oath he has taken on himself to discharge his duties faithfully and promptly. I would be in favor of three years; but, sir, if I cannot get three I will accommodate myself to four years. I am not in favor of these short terms for offices, giving them time and leisure to operate on the people and get their favor so as to be re-elected again. I trust that it will be the pleasure of this Convention not to adopt the amendment of the gentleman from Doddridge.
MR. HAGAR. It seems to me we are getting too much linked together. To strike out and insert is two amendments. I understand the first thing is to strike out before anything can be inserted. I am in favor of striking out, and then will hear the amendment by insertion.
MR. VAN WINKLE. I perhaps misled the Chair in slating the manner of voting on time and numbers. The motion of the gentleman from Preston was to strike out the exception, leaving the term of sheriff two years. Well, now either it is competent for the gentleman to move to amend the sentence proposed to be stricken out by inserting one instead of three and then the question be taken on the motion of the gentleman from Preston.
MR. DERING. I ask for a division of the question.
The vote was taken on the motion of the member from Preston to strike out three and insert one, but before it was announced -
MR. HAYMOND. I am decidedly with the gentleman from Doddridge, for the shortest term. The sheriff is a very important office, and if we happen to get a bad one the sooner we dispose of him the better. If he is elected for three or four years and he is a bad one, it becomes ruinous to the whole people. The gentleman from Monongalia appears to think that a sheriff should be everybody. I will say to the gentleman from Monongalia that a sheriff is not the people; I will say to him that the people are the sovereigns of this country and the people need not be ruled, and they do not intend to be rode over by any sheriff. I am in favor of the shortest term, and if we get a good one we can re-elect him; and if we get a bad one we can turn him out.
MR. VAN WINKLE. I would call the attention of the gentleman from Marion to a subsequent section which provides for the removal of the sheriff for neglect of duty and various other things. I think this may obviate the objections of the gentleman from Marion to the longer term and perhaps the objections of the gentleman from Doddridge also.
MR. BATTELLE. Have we created any other office the term of which is three years?
THE PRESIDING OFFICER. I am not able to answer as to any.
MR. STUART of Doddridge. There is none.
The motion to strike out "three" was put and decided in the affirmative.
The question recurring on the motion to insert "one" it was lost.
MR. SMITH. I now move to insert "four."
MR. STUART of Doddridge. I move to amend by adding "two."
THE PRESIDING OFFICER. The amendment is not in order, because the proposition of the gentleman from Preston is the same.
MR. VAN WINKLE. If the "four" is voted in, then the question will recur on striking out the whole and leaving it "two"; so he will still have a chance at "two."
MR. STUART of Doddridge. I thought the amendment of the gentleman from Logan was subject to amendment.
THE PRESIDING OFFICER. It is an amendment to an amendment. He offered it as an amendment to the motion of the gentleman from Preston, which is to strike out after the word "election" in the 60th line, which would leave the term two years. The gentleman from Logan proposed to amend by filling the blank with "four" years.
MR. WILLEY. I da not know, sir, whether it is very becoming in me even to express an opinion - just popping in by accident, as it were just now, and not very able to think or even express an opinion. But I have a very strong wish that this blank shall be filled with four years. Almost all my active life, sir, has been spent more or less with business in connection with this office of sheriff. I have had occasion to observe its operations. I have occasion to form a very decided opinion in regard to this matter, and I simply desire now to express that opinion without being able at all to give any particular reasons for it. But this Convention will do well for the people if they insert four years. As to the objection of my friend from Doddridge as to having an oppressive sheriff, to making the officer frequently responsible to the people, that may do in regard to your representative officers, but I think it can have very little reference to executive officers, especially of this character. The law prescribes the duties, it marks out and defines his duty, and he has got nothing to do but to perform his duty. He has but to walk where the law directs that he shall go and do what the law directs him to do; and if the laws be good, such as will promote the interests of the people then the interests of the people will be promoted, not by departing from them, not by bending the laws to suit the imaginary emergencies of the people, but it will be by executing those laws devised by the people's agents in the legislature for their own good and for the promotion of their own interests. That sheriff best promotes the interests of the people who is prompt and efficient, exact in the discharge of his duties as those duties are laid down by law; and if you are to hold out the necessity on the part of the sheriff to be elective every year, year by year, or be frequently elected, I know, sir, by 25 years practice at the bar, that you will have little done in these short elective periods but juggling and management on the part of the sheriff with a view of currying favor that will secure his re-election. Let the law lay down the duties of the sheriff as they ought to be performed; let it be required that he shall perform them as they are laid down; prescribe the necessary penalties to compel him to do it and the necessary punishment if he varies from it. That will promote the interest of the people much better than this frequent recurrence of elections. I have executions that I paid off six years ago that I cannot get out of the hands of the sheriffs of Monongalia county. Rather than press the sheriffs I have executions in their hands now six years old. The sheriffs have told me that they favored individuals with a view of propitiating favor for a re-election. I know it is the case. All the difficulties of the gentleman from Doddridge ought to be provided against by the laws defining the duties of the sheriff and punishing him for malfeasance if he be guilty. I hope the longest period possible will be inserted. I speak but from experience, sir.
MR. RUFFNER. I rise to inquire, sir, whether it would be competent to move an addition to this sentence after the period for which the sheriff shall be elected? To add a clause requiring his bonds to be renewed annually, if that, sir, would be lawful ?
MR. VAN WINKLE. It will come in the next section.
MR. RUFFNER. It would do away, very greatly with the objection to these long terms.
MR. VAN WINKLE. When we come to the next section, it will be the proper place. It provides there the legislature may require security. If the gentleman chooses to offer the amendment, it will be proper there.
MR. RUFFNER. Under a requirement for the renewal of these bonds, I should decidedly favor the long term and deprecate a frequent recurrence to a vote of the people where so much juggling and unfairness is practised by the sheriffs to secure re-election.
MR. HAYMOND. I am at a loss to know what kind of laws they have down in Monongalia. One of the gentlemen told us on Saturday that they could not collect a single dime from any officer, and we have been told today by the other member from that county that he has claims out six years and cannot get a dime. Well, now, in other counties there is some way to force officers to pay. I do not know whether this law is limited to Monongalia or not.
MR. DERING. Did the gentleman from Monongalia say sheriffs.
MR. HAYMOND. From constables.
MR. STUART of Doddridge. The gentleman from Monongalia seems to think the sheriff was a life-long officer perhaps my objection would be good, but as he is simply an officer who is to execute the law, it is not well taken. I would like to make the inquiry whether it is the officer the people elect, or the officer of the government, or the officer of the party, who are collecting these debts?
MR. WILLEY. It is pretty hard to tell in our county whose officer he is.
MR. STUART of Doddridge. I suppose he is the officer of the people - the servant of the people; and the people certainly ought to have a reasonable power over their own officers. They ought not to be made these unmitigated tyrants, who I know meet the views of all the blood-suckers in our country. I do not mean the gentlemen from Monongalia and Logan; but that is a fact, travel through our country wherever you will. I have been through it a great deal in the last four or five years and this question has often been discussed; and wherever you find one of these blood-suckers - one of these unfeeling tyrants - one of these, men who are not disposed to consider the interests of the people - you will always find that man saying that this sheriff ought to be a life-time office and he ought never to be amenable to the people at all, because if he is he is disposed to favor the people. Now, that is the argument; that is the true position of this class. If it was left to the majority of the people of this State to say, they would want to have the control over these officers they are called on to elect. And I will venture to say that if this amendment is adopted, inserting four years, there will be a greater clamor against that in less than three or four years than against any other provision of this Constitution. Now mark what I say. This will convert these officers into unmitigated tyrants; and what is the operation of our present constitution on these officers? Every one present will answer, it authorizes the sheriff to pay in the revenue against a certain period of time - so much against March, and such a time. Well, now, it will be the interest of these sheriffs when the books are placed in their hands in June or July, to collect immediately - collect at once; make one trip, call upon a man and if he does not pay his taxes, here's your horse, sir. Under our present law, the sheriff having to pay in the revenue at a certain time, I have known fifty instances where the sheriff rather than distress his people, the citizens of the county whom he knew to be good and honest men, drew up a bond and went to the bank and paid the required sum necessary to pay in to meet his obligations and keep his sureties from being notified. Now, sir, if we left the thing to the people, that thing would never occur. The sureties would be the best kind of men. But instead of seeking to accommodate the people, he will expose their property to sale, and no good could possibly result to any party. The government would only get their money while the poor man's cow and horse would be sacrificed on the streets for the want of a few days or months indulgence. That will be the experience and practice under this provision. I want the sheriff to be elected and to have no provisions inserted here disqualifying him for re-election provided the people choose to elect him and he can give the security. Well, the gentleman says the law exempts a poor man's cow and exempts a bed from taxes. I, do not know how our law may do, but a man cannot live on one cow, and of course his second cow would be just as good to him as the one cow. I would be disposed to hold out inducements to these sheriffs to accommodate this poor man who he knew was honest and would pay him. But if you adopt the long term, the blood-suckers will be benefited and the mass of the people will be distressed. Now, that is the truth of it, mark what I tell you.
MR. HAGAR. One of the arguments introduced for four years seems to be the qualification of the sheriff - learns how to do the business. From what I have learned from observation, it is hard to get a man with a good heart and a good head. Perhaps there will not be a county in this new State that will not have a man competent to discharge the duties of sheriff. Give them four years and then time sufficient for them to settle up the business in their hands, and we might just as well say five or six years. In the county where I live we had one sheriff over two years; and then when he could be no longer elected his. son was elected. One of our good friends came out against him; and we thought these life-long office-holders were not altogether right and we voted the other man in and beat his son. Hence they had it only six years. As soon as the term was up, his son must have it. I have never seen any advantage accruing to the public, so far as my observation goes by men holding office too long. Now, if we could always get just the right men in, and nobody else was fit for it, I would go in for a long time, but the object of this Convention is to frame a Constitution to give every man an equal chance. Well, now, there must be some one man in every county who is qualified to do this sheriff business. Then when this man had had it two years, if there was another provision in the Constitution to wind up his business - about three - that would be the shortest time anyhow. I am opposed to the amendment. I am opposed to these life-long office-holders. This has ruined, to some extent, our state and nation. We are here to frame a Constitution to give all an equal chance. The sheriffalty, if it is worth anything, will pay a man for discharging the duties two years, or three, because he will have a year's work to do after his term is ended. I am against the amendment.
MR. WARDER. I would like to ask the yeas and nays on this subject.
On the motion to make the term four years the vote was taken and resulted:
YEAS - Messrs. Brown of Preston, Brown of Kanawha, Battelle. Chapman, Dering, Dille, Hall of Marion, Harrison, Irvine, Lamb, Montague, Mahon, Parker, Robinson, Ruffner, Sinsel, Stephenson of Clay, Stewart of Wirt, Smith, Taylor, Van Winkle, Willey, Warder - 23.
NAYS - Messrs. Brooks, Brumfield, Hansley, Raymond, Hagar, McCutchen, O'Brien, Parsons, Powell, Simmons, Stevenson of Wood, Stuart of Doddridge, Soper, Wilson - 14.
So the motion was agreed to.
THE PRESIDING OFFICER. The question recurs on the amendment of the gentleman from Preston, to strike out the exception, which will leave it two years.
MR. DILLE. Mr. President, I have, I believe, by the amendment probably obtained what I desire; if not, I can do so and I will now withdraw my amendment. When I proposed it with a view of making it four years by an additional term.
MR. STUART of Doddridge. It may be, Mr. President, that some person voted with an understanding that they had another chance to strike out. I do not make any objection myself.
There being no objection the amendment was withdrawn, and the question recurred on the sentence as amended.
MR. VAN WINKLE. I move to strike out( "the 1st day of October" and insert the day we fixed for the commencement of the term of State officers, the 4th of July, in the 59th line. I think there was a general understanding to have all these terms commence, as nearly as possible, at the same time. The fourth of July was inserted in the report of the legislative committee as the commencement of the terms - with perhaps an exception - and I simply wish to conform this to that.
The amendment was agreed to.
MR. STUART of Doddridge. I move to amend by striking out, in the 36th and 37th line, all after the, word -
THE PRESIDENT. We have not yet reached that section.
The second sentence, as amended, was then adopted, and the Secretary reported the third sentence:
"The same person shall not be elected sheriff for two consecutive full terms, nor shall the deputy of any sheriff be elected his successor; but the retiring sheriff shall finish all business remaining in his hands at the expiration of his term, for which purpose his commission and official bond shall remain in force."
MR. VAN WINKLE. The gentleman from Doddridge will pardon me, to perfect this sentence. After the sheriff has been out four years he can be elected again, but it is suggested to me that a deputy might resign one week before the election and thereby evade the operation of this clause. I would therefore ask to amend it by adding after the words: "The same person shall not be elected sheriff for two consecutive full terms," these words: "And no person who has acted as his deputy within one year shall be elected as his successor." If the deputy wants to be his successor, he will have to go out one year preceding the time. Strike out the words: "Nor shall the deputy of any sheriff" and insert those other words.
MR. BROWN of Preston. What is the necessity of inserting the words: "within one year?" "Nor shall any person who has acted as his deputy," I think would cover the whole ground.
MR. VAN WINKLE. My view was this, that a deputy who had abandoned the office a year previously was so disconnected with it -
MR. DILLE. Better embrace the full term: "Nor shall any person who has acted as his deputy during his term be elected his successor."
MR. BROWN of Kanawha. I confess that if the motion of the gentleman from Wood were confined to one year, I should have no objection. But if it is made to apply to the whole four years, then it operates to the exclusion of all the men perhaps who by their official acts have, to some extent, qualified themselves for the office. The only object in excluding is to avoid the evil of a party preparing himself by virtue of his office, using it for the purpose of re-election. The withholding that from a party who has acted as deputy within a year next preceding the election attains the end sought, I think. I can understand that in the office of the sheriff those gentlemen who have acted as deputy will generally be the best qualified for the next office, and if their official duties ever shall place them in a position to have a tendency to put them to electioneering for the office and prostituting the office for the purposes of the succeeding election, they ought to be free and the people free to choose from that class of men; and I think this unnecessary restriction is liable to that objection. I will offer that as an amendment.
MR. VAN WINKLE. I accepted the modification without much reflection.
MR. BROWN of Kanawha. Then I will renew the motion to fix the time at one year for his exclusion.
MR. STEVENSON of Wood. I only wish to say, sir, that I prefer the modification of the amendment if it is to apply to a person who had acted as deputy any time during the term, and for this reason: that a deputy, in many places at least, in many populous towns, where there is a large tax collected, can very well afford to resign one year before the expiration of the term in order to be elected sheriff, and would do it in many cases. That is an objection to this last amendment. I am in favor of the other; but I think, from my present view of the matter, I am opposed to this for that reason simply.
The Secretary reported Mr. Van Winkle's motion as being: strike out "Nor shall the deputy of any sheriff" be elected his successor, and substitute: "Nor shall any person who has acted as deputy of any sheriff" be elected his successor. Mr. Brown's motion was to qualify this by inserting after "sheriff" the words "within one year."
The vote was taken on Mr. Brown's amendment, and it was rejected.
MR. SINSEL. I move to insert "within two years."
The motion was not agreed to.
Mr. Stuart of Doddridge asked for a division of the question on Mr. Van Winkle's motion.
The question was first taken on striking out and it was agreed to.
The question recurred on inserting the language proposed by Mr. Van Winkle.
MR. STUART of Doddridge. The object of inserting this - it indicates that even the deputy sheriff shall not favor the people or look to a promotion of his office by acting kindly and generously towards the people.
MR. DERING. I am opposed to the motion of the gentleman from Wood. I think to make your sheriff ineligible for one term, it is highly important we should so make his deputy.
MR. WILLEY. That is precisely the motion.
MR. DERING. I misunderstood the motion.
The question was taken on the amendment of Mr. Van Winkle, and it was agreed to.
MR. WILLEY. I propose the following amendment: I do not know whether it ought to come in in the 63rd line, after "successor," or in the 62nd, line after the words "full terms."
MR. VAN WINKLE. The Committee on Revision will attend to that.
MR. WILLEY. I propose to amend by the insertion of the words: "Nor shall said sheriff act as the deputy of his successor."
The amendment was agreed to.
And the question recurring on the sentence as amended, it was adopted.
The Secretary reported the next sentence: "The duties of all the said officers shall be discharged by the incumbents thereof in person or under their personal superintendence."
MR. VAN WINKLE. The effect of this clause, Mr. President, in the conception of the committee at least, is to make the principals in all cases the responsible officer, and also to compel them in person to discharge those parts of the duties of their office which they can so discharge. If the law fixes that the sheriff, and as is already implied, his deputies, they will, of course, have certain duties to perform and the sheriff certain duties; but nevertheless, the high sheriff must be held accountable for their acts because they are to be done under his personal superintendence. He cannot afterwards plead any excuse of himself for what his deputy has done wrong. So also in the case of deputy clerks. The clerk in many offices will have to have assistants; but he must be responsible personally for the acts of his assistants. I suppose it is not necessary to say anything more to show what is the intention of the clause, and which I think it will effect.
MR. BROWN of Preston. I would inquire of the gentleman from Wood the effect of this sentence that we now propose to adopt - whether it is intended that the prosecuting attorney may act by deputy?
MR. VAN WINKLE. Not unless the law authorizes it. It is for the legislature to say. The gentleman will observe the committee have been cautious in that respect. They have not put anything more in this in the nature of legislation than they could avoid. Some things were rendered necessary by the very fact of a change; but they have left to the legislature entirely to prescribe the duties and so on in reference to these officers, as appears in the next section. Whether a prosecuting attorney may so act or not will be for the legislature to decide. He may have assistants, of course. But it is not precisely one of those cases that would be reached here because he acts as deputy. Well, there is no use speculating about what the legislature may do respecting it. It will be in the hands of the legislature.
MR. WILLEY. I am entirely favorable to the purposes designed to be accomplished by this clause; very much in favor of it especially in regard to the sheriff. I have seen its practical operation in the county of Preston where the sheriff required his deputies to report to him and he settled all the business himself, and I never saw business better done. But I would suggest to the gentleman from Wood whether difficulties might not grow out of this with some of these offices. Suppose, for instance, some of these principal officers should be sick for a while, entirely incapable of attending to his business - would not there be a constitutional rule that would suspend the operation of his office entirely during that casualty? It seems to me there may be a thousand circumstances when many of these officers could not be present to superintend. It might lead to difficulty. I do not know; I merely throw out the idea.
MR. VAN WINKLE. The case of inability to act, of course, excuses performance. No constitutional provision could be strong enough to force a man to do what he is unable to do. There are discharge clauses in the next section, as, for instance: "The legislature shall, at their first session, by general laws, provide for carrying into effect the foregoing provisions of this article." The gentleman might add -
MR. WILLEY. A somewhat qualifying term: "Whenever practicable," "possible," or something of that kind.
MR. VAN WINKLE. Might add at the end of the sentence I have just read: "And for the discharge of the duties of said office in case of the inability of the incumbent." But it would come in more properly in the next section than here, I think, in authorizing the legislature to provide for what are to some extent exceptional cases. This sentence now under consideration might stand. If the gentleman will defer it, I will make the amendment at the proper place.
MR. WILLEY. Yes, sir.
MR. BROWN of Kanawha. The gentleman from Monongalia gives more importance to the personal superintendence than it warrants. If that is to be carried to the extent indicated, then I must oppose the whole sentence. But I confess I do not so understand it. I understand all the acts of the deputy are the acts of his superior. His very office is at the will and pleasure of his superior and he can be discharged whenever the principal chooses, who assumes all the liabilities and responsibilities of his conduct, whether he does right or wrong. Without that it would not do; never have any deputy at all. But to avoid any difficulty about it, I will move to strike out the word "personal." Now I do not understand that if a deputy goes out in the far edge of the county and serves a writ that the principal must be there and see that it is rightly done; that if a deputy settles an execution with a creditor and settles up and disposes of the whole matter and returns the execution satisfied, that that must be examined by the principal to see that it is all right. But I understand superintendence of the principal is the general superintendence of the deputies' conduct, for which he is responsible. The word "personal" seems to imply that he is to be present superintending everything that is to be done.
MR. VAN WINKLE. I think the gentleman has very truly stated what actuated the committee. I do not see that there is any objection to striking out that word.
The amendment offered by Mr. Brown of Kanawha was adopted; and the question recurring on the adoption of the amended sentence, it was agreed to, as was also the section as a whole.
MR. WALKER. I hold in my hand a petition from several citizens of McDowell appointing John P. Hoback a delegate from McDowell.
The petitions, signed with thirty-five names, were sent to the Secretary's desk and read by him.
MR. VAN WINKLE. I will move to make that matter the order of the day for half-past three.
MR. BROWN of Kanawha. I desire to vote for the admission of that gentleman; would be very highly pleased that McDowell has sought to be represented in this Convention, but at the hour indicated I cannot be here.
MR. VAN WINKLE. Well, sir, I will withdraw it.
MR. STUART of Doddridge. I would like to know whether those petitioners are citizens of McDowell?
THE PRESIDING OFFICER. The opinion of the Chair is it would be irregular to take up this without a motion.
MR. BROWN of Kanawha. I move, therefore, Mr. President, to suspend the business under consideration and take up the petition.
MR. STEVENSON of Wood. I think, sir, it would be better to refer that petition and all such others to the Committee on Credentials. The way we are proceeding in reference to adding members here is rather irregular. The committee can report, and we can act immediately.
MR. WILLEY. I concur most heartily in the suggestion. I rejoice that these counties are seeking representation; but I think it is a matter of importance enough to require at least the forms of law. We ourselves, regularly elected, had to submit to the scrutiny of the Committee on Privileges and Elections, and I think this should go there. I shall rejoice in being able to vote for the admission of that member.
MR. STUART of Doddridge. We have adopted the precedent here, and I am not in favor of making fish of one and flesh of another. Treat this gentleman as we have treated other gentlemen who come here with petitions. Consider it now and dispose of it.
MR. VAN WINKLE. The precedent was set in the case of the gentleman from Calhoun. I made the motion; but the Convention will remember that that was a very plain case. It stated in the petition all the facts, that they had been prevented from holding an election; that the whole Union vote given on the question of the secession ordinance was about fifty and they produced signatures to the number of seventy, with the intimation that they were very nearly all the Union men in the county. But, sir, it had more than that. On the back of it was the affidavit of several respectable gentlemen who were known to persons here testifying that the facts set forth in the petition were true on their oaths. I asked in that case to dispense with sending it to the committee, because we could have no more facts before us than were presented by the petition. I think it was a remarkably strong case. The Convention concurred with me, and the gentleman was admitted. A few days afterwards a gentleman was admitted from another county, very properly, I dare say, but on a bare fifteen signatures; so that I think the precedent set in the case I had the honor to present to the Convention has not been followed in the subsequent case. In this case we are referred, for the truth of the statements to Mr. Walker, a member of this Convention, and it would be very proper, I think that the committee should take it in hand and ascertain that the thing is what it purports to be, when I have no doubt the gentleman will be admitted. Merely that we may have some evidence before us that the facts as set forth are the facts and that the document is a genuine one.
MR. WALKER. In regard to the credentials here offered, I am very well acquainted with the gentleman that is here asking for a seat and tolerably well acquainted with the most of the citizens of McDowell and with a portion of the signatures here that are those of Umon men. The county voted for the secession party strongly; but in that county I am apprised there are a good many strong Union men who desire to come with us and wish to be represented as such. This gentleman who is asking a seat here is, I think, of sound principles in regard to the Union and a very respectable citizen of the county.
MR. STEVENSON of Wood. The motion is to suspend the order, I believe. I offer that amendment, if it is in order, to refer to the committee.
MR. BROWN of Kanawha. I do not see that anything is to be obtained by the reference. When the report of the committee comes back, the house has got to act right, precisely in the same way, that is on the recommendation of the Committee on Credentials. I understand there is a gentleman near me who is conversant as to the citizenship of the signers there - one of the members of this body. It seems to me it is only making bites at a cherry and changing a rule that we have adopted as to others. I hail with pleasure the voice from McDowell, one of the first counties that have been induced by our action within the limits of the new State. I hope we will meet them at the threshold with a warm welcome and the right-hand of fellowship.
MR. STEVENSON of Wood. I hope it will not be understood that I have any objections whatever to receiving this gentleman to represent that county if the Committee on Credentials can be satisfied that he ought to represent that county; but it does seem to me that if we are to set a precedent of this kind we may have yet quite a number of these petitions and a great deal of the time of the Convention will be occupied in considering them when the same thing could be considered by the committee of some three or five persons who could easily ascertain the merits of each case and report their conclusions to the Convention, and the Convention could act on their report without much discussion. These may give rise to discussion and consume a great deal more time than if referred. Besides, it is more regular and I think far better in the end. I hope, sir, if the facts are such as they ought to be this gentleman will be admitted. But I wish myself that hereafter, and shall undertake to enforce this view on the Convention, that every such petition of an irregular character coming in shall pass through the regular Committee on Credentials. The Convention owes this much to its own dignity.
MR. WILLEY. I beg to repeat that I shall exceedingly rejoice to admit the gentleman from this county to a seat on this floor. These precedents to which I am referred have happened since I left. In regard to the members admitted on certificate before I left, they were referred to the committee and received very rigid scrutiny and the facts reported back, and then they were admitted. I rose principally to ask my friend who presented this petition, whether he is acquainted with the signatures to it. I understood him to say he was acquainted with several of the parties; whether the petition, from his personal inspection appears to be a genuine paper? It is more especially with reference to this fact that I think it ought to go to the committee.
MR. WALKER. In regard to that, I am not so personally acquainted with the signatures as the citizens. I have not had business sufficient to do with those gentlemen to know their handwriting when I see it.
MR. WILLEY. It occurred to me that perhaps the body of these signatures are in the same hand-writing. I do not know that fact.
Mr. Hagar rose.
THE PRESIDING OFFICER. The question is on the substitute of the gentleman from Wood for the motion of the gentleman from Kanawha. The substitute is to refer to the Committee on Credentials.
MR. HAGAR. My impression is the thing may be settled in a few minutes. I have considerable acquaintance with McDowell. I taught school three months and preached at the school house. So far as this applicant is concerned, he is "sound on the goose" question. I think I would know some of the names there. I would like to see the petition.
MR. DERING. I would much prefer that the petition be referred to the Committee on Credentials. I should have to vote against the delegate until we have it examined and reported on. It will be only a couple of hours, at any rate, until we shall act upon it, and that is but a short time to defer the matter. The Convention can certainly wait that long, until we examine it regularly, and then I suppose we shall all, with pleasure, vote for the admission.
MR. BROWN of Kanawha. I will withdraw the motion and let the case go to the committee.
Mr. Stevenson's motion to refer was then agreed to.
The Convention resumed consideration of the report of the Committee on County Organization. The Secretary reported the first sentence of the 6th section:
"The legislature shall, at their first session, by general laws, provide for carrying into effect the foregoing provisions of this article."
MR. VAN WINKLE. I will simply state that there will be, no doubt, some general provision carrying the Constitution generally into effect; and if so, why this clause would be transposed by the Committee on Revision. If a general one is passed, the Committee on Revision will leave this out.
The sentence was adopted, and the second sentence reported:
"They shall also provide for commissioning such of the officers therein mentioned as they may deem proper, and may require any class of them to give bond with security for the faithful discharge of the duties of their respective offices, and for accounting for and paying over, as required by law, all money which may come to their hands by virtue thereof."
The sentence was adopted and the third reported as follows:
"They shall further provide for the compensation of said officers by fees or from the county treasury; for their removal in case of misconduct or neglect of duty; for filling vacancies not herein provided for, and for the appointment when necessary of deputies and assistants, whose duties and responsibilities shall be prescribed and 'defined by general laws."
MR. WILLEY. I confess I do not understand that exactly: "They shall further provide for the compensation of the said officers by fees or from the county treasury." How is that?
MR. VAN WINKLE. Compensation from the county treasury.
MR. LAMB. Mr. President, I would suggest to insert the word "incompetency" after the word "misconduct," in the 79th line. It was inserted in another clause. Probably it had better be inserted here.
By general consent the word was inserted.
MR. DILLE. I would like, in the 73rd line, to have the word -
THE PRESIDING OFFICER. That sentence was adopted.
MR. STEVENSON of Wood. I only wish to suggest that the Convention this morning adopted an amendment in reference to these general laws and inserted the words "as far as practicable." Would it not be well enough to insert the same phraseology after "defined" in the 82nd line? I simply suggest that.
MR. VAN WINKLE. This clause only refers to the duties and responsibilities of deputies, and it strikes me that if we are going to insert the clause generally with reference to "general laws" occurs, we shall needlessly encumber our work. The idea that was adopted somewhat extensively in the present state constitution is that all these things shall be equal and uniform throughout the commonwealth; that they shall not be prescribed by special law, to make a deputy in any one county do one thing, and another thing in another county, but that they shall be uniform; and that thereby this constant application to the legislature to grind an axe will be rendered unnecessary or of no avail. As I have also stated before, if these general laws are found to operate hardly or imperfectly, they are always within the power of the legislature; and when a question comes up for amending a general law of this kind it is not only the parties who are seeking that amendment that are to be heard or whose views are to be considered on that subject but the representatives of all the counties in the State; and in that way, as it is to be only a general provision, you get, as it were, the united wisdom of the State and your chance for a good provision is much greater.
Now, sir, I do not think that in this there is anything to prevent the legislature passing laws of relief in certain cases. There is nothing to prevent the legislature making a special law for a special occurrence - for that which cannot be the duty and responsibility of every officer in every county, for instance, in the State. They cannot, of course, provide by general law; but if any such cases arise - and I cannot conceive of any - why, the legislature has it in its power to reach them; but it is that general duties shall be prescribed by general laws. I am afraid the conditional clause already inserted may defeat a good object; and I shall therefore be opposed, for the reasons I have stated, to introducing it here. I do not think the reason can be as strong in this case as they were in the other - the duties and responsibilities of deputies merely. Certainly this can be effected by general laws. Now, if a deputy in any case has made himself liable in some way that seems to be unjust, I do not conceive that there is anything here to prevent the legislature from affording him relief. Therefore, I am unable to see any mischief to be apprehended from leaving the clause as it is; and then there is no necessity for a remedy.
MR. STEVENSON of Wood. I do not offer it as an amendment, Mr. President. I merely suggested that as we had introduced a phrase of that kind in reference to general laws, it might be well enough to introduce it here.
THE PRESIDING OFFICER. The Chair understood the amendment was offered; otherwise, the discussion was out of order.
The Secretary reported the last sentence:
"When the compensation of an officer is paid from the county treasury the amount shall be fixed by the board of supervisors, within limits to be ascertained by law; but no reduction of the compensation of any officer shall take effect during the term for which he was elected."
MR. VAN WINKLE. It is the intention of this that where an officer is paid from the county treasury, it will be a salary, in all probability, ascertained by law, as, for instance to say that it shall not be less than $300 but not more than $1,000, or any other amount - the legislature shall fix the limits, the minimum and maximum; and then, as the duties of these officers will be unequal in the different counties it is left to the board of supervisors to fix the precise salary somewhere within those limits. It was analogous to the case of the legislature providing that imprisonment, for instance, shall be not less than one nor more than five years, and the jury strike somewhere between those limits. The population of the counties is very diverse and consequently the duties of the county officers will be different in different counties, so it is necessary to leave the discretion somewhere to fix these salaries at greater or less sums. Well, now, the facts on which these things depend cannot be made known as well to the legislature. It is troubling them, also, with business which would occupy them much more time than it would the board of supervisors on the spot who know all about it; and as these supervisors are themselves the direct representatives of the people, it is I think safely confided to them. In the case of a prosecuting attorney for instance, where an allowance has been made, they may say the prosecuting attorney shall receive not less than fifty nor more than three hundred dollars, if you please, and the board, knowing what duties are required of him - how much of his time is likely to be occupied in it - will fix the compensation somewhere within these limits. The limits being fixed will prevent extravagant salaries on the one hand, and, what is equally to be avoided, too diminutive salaries, on the other.
The concluding sentence, and the section, were in turn adopted.
The Secretary reported the first sentence of the next section:
"7. The civil jurisdiction of a justice of the peace shall embrace all actions of assumpsit, debt, detinue, trespass and trover, where the defendant resides, or, being a new resident of the State, is found, within his township, or where the cause of action arose therein, and when the value in controversy, exclusive of interest, does not exceed fifty dollars, subject to an appeal to the circuit court of the county; but a justice of any other township of the same county may issue a summons to the defendant to appear before the justice of the proper township, which may be served by a constable of either township."
MR. SOPER. I am requested to present a petition to admit Richard M. Cook to a seat in this Convention from the county of Mercer.
The paper was received and referred to the Committee on Credentials.
MR. LAMB. I move the insertion of the following as an additional section:
"The preceding provisions of this article shall not extend or be applied to any county, town or city, nor shall they be deemed to restrict the power of the legislature to correct and regulate muni- cipal incorporations."
MR. LAMB. To come in just after the section as adopted. I have no particular anxiety to insert it just here, though as it applies to the preceding provisions of the article this might be a proper place. It may, however, be deferred until the 7th Section is considered. Perhaps it would be as well. I will not offer it now but after the next section.
MR. DERING. I move to strike out "fifty" in the ninety-third line, and insert "one hundred" as the limit of amount of which justice shall have jurisdiction.
MR. IRVINE. I am opposed to this amendment. I would greatly prefer twenty to a hundred. I see no reason for extending the jurisdiction of justices of the peace. The cases that are tried before justices of the peace are tried, Mr. Speaker, without any pleadings in the case; there is no issue joined in the case. In consequence of it, in a majority of litigated cases the cost is greater before a justice of the peace than when the case is tried in court. There is more danger of surprise. It is a more difficult matter to ascertain the facts on which the controversy turns. It is a more difficult matter to decide the questions of law arising out of the events. The pleadings, Mr. President, have the effect to simplify the grounds of the controversy, by keeping separate and distinct the questions of law and the questions of fact, and by reducing the whole controversy to an issue either in law or fact, thus narrowing down the controversy to some matters of law or fact that are affirmed on one side and denied on the other. In order to establish the truth of the propositions I have stated, I will first lay the foundation for the argument I intend making. (I would like to have a glass of water.)
(The sergeant-at-arms brought him one.)
Suppose suit is instituted, Mr. Speaker. We will suppose suit to be instituted in court. The plaintiff must state in his declaration the facts that constitute his cause of action. And we will suppose that the defendant undertakes to defend the suit upon its merits. He must do one of three things. He must either deny that the facts constitute a good and sufficient cause of action, which is done by a demurrer to the declaration. That raises the question of law, which is referred to the court, keeping the question of law separate from the question of facts. But suppose the facts do constitute a cause of action. If controverted by the defendant, then he must do one of two things: he must either join issue on the facts stated in the declaration, or, if not, the legal conclusion follows, unless that conclusion is repelled by alleging new matter. Well, we will suppose that he cannot controvert the facts stated by the plaintiff in his declaration. Then he must put in a plea alleging other facts. By so doing he admits the declaration - the truth of everything contained in the declaration; because if he denies the facts stated in the declaration he must take issue on them. If not, he is considered as admitting them, and if he puts in the plea, the facts in the declaration are admitted in the eye of the law. That dispenses with all proof of the facts stated in the declaration. Well, when the same questions again recur on the plea, he must do one of three things. He must either demur to the plea or take issue on the plea or he must allege new matter for the purpose of repelling the legal conclusion that would follow. Well, suppose that the plea constitutes a good cause of action and the facts are true and that the plaintiff is under the necessity of alleging new matter for the purpose of avoiding the effect of the plea. Well, pursue this process as far as the replication to the defendant's plea for the purpose of laying the foundation for an argument. The plaintiff then comes in and in his replication he states the facts in his replication for the purpose of rebutting the facts stated in the deduction; and we will suppose that the defendant takes issue on those facts. We will suppose that we have constituted good cause of action and the defendant takes issue on these facts. There is no necessity then for any evidence establishing the facts stated in the plea, for the plaintiff by putting in his replication admits the truth of the plea. Then the greater part of the evidence is excluded from the case. The whole controversy is narrowed down to a single issue, to the facts stated by the plaintiff and denied by the defendant. Then all that is necessary is to introduce evidence for the purpose of proving or disproving the facts stated by the plaintiff in his replication. This excludes most of the evidence from the case. But then it avoids one effect of submitting the whole question without any issue to a justice of the peace. There is no danger of surprise, for the parties can with unerring certainty ascertain from the issue joined in the case the points of the controversy. The issue gives the facts upon which the whole controversy turns. There is no danger of surprise. But suppose that the whole controversy is referred to a justice of the peace without any issue in the case. The questions of a law and fact are all blended together. The party is more liable to be surprised at the trial. He has no means of knowing what are the facts upon which the controversy turns. And, in addition to that, there is not the whole history of the matter to ascertain the facts of the case, when the whole controversy is narrowed down to the facts affirmed by the plaintiff on the one side, and denied by the defendant, on the other.
This issue serves to guide the parties in summoning their witnesses. The whole attention of the tribunal that decides the case is concentrated on the particular facts that are affirmed on the one side and denied by the other. But if it was a trial before a justice of the peace, they would have nothing to guide them; no means of ascertaining the facts upon which the controversy turned until they had first heard all the evidence in the case.
Now these pleadings do not at all change the character of the cases. It neither increases nor diminishes the number of the facts in the case. But it simplifies the grounds of controversy and greatly facilitates the administration of justice by keeping sepa- rate and distinct the questions of law and fact and by resolving the questions of fact into successive alternate statements, until the whole controversy is reduced to a single issue which serves to guide the parties not only in summoning their witnesses, but every question that is propounded to the witnesses is propounded in reference to the particular facts that are put in issue by the pleadings.
I am very much opposed to making war on our system of pleadings. This is entirely dispensing with our system of pleading in all cases between twenty and one hundred dollars. You would still dispense with it altogether, because a majority of cases do not exceed a hundred dollars. I remark that the amount of cost is greater; that it is not necessary when you have the issue joined in the case and the facts stated in the declaration are considered as admitted. The facts stated in the plea are considered as admitted. All the legal questions - the whole controversy - turns on the issue joined in the case. The jury is sworn to try that issue, and that is the only question to be decided.
Now, Mr. Speaker, this disposition to make war on our system of jurisprudence has proceeded, I think, from gentlemen who did not fully appreciate the system. It is a system of principles. They have a deep foundation in reason and in the nature of things. The process by which you are conducted to an issue is a beautiful, logical process. And when I speak of its being a logical process I do not use the word "logical" in a loose sense, but I use it in its strict and limited sense. For every pleading is a syllogism. The declaration shows the cause of action; the facts stated in the declaration are to constitute a good cause of action; the declaration constitutes a perfect syllogism of a major premise, or in other words the major premise, which is the rule of law, is understood or implied the facts stated in the declaration constitute the minor premise, and the conclusion is the third term. The same remark might be made in relation to the plea. The plea constitutes a perfect syllogism, with a major premise implied, which is the rule of law; and the facts would amount to nothing if the rule of law was not implied. The facts stated in the plea constitute the minor premise and the conclusion the third term. Now you by adopting the amendment will entirely dispense with our system of pleading in all cases between twenty dollars and a hundred dollars. The justice of the peace, when you commence the investigation of a case, has nothing to guide him at all. There is no issue in the case. There is nothing to point to the facts on which the whole controversy turns. There is nothing to point to the legal questions on which the whole controversy turns; but all questions of law and fact are blended together and a complete state of chaos and confusion prevails.
Our system of pleading, Mr. Speaker, I regard as the most valuable part of our system of jurisprudence. It has been regarded in that light by the sagest founders of our system from the very commencement of it. Gentlemen ought to be cautious, as we are now about to embark in a great enterprise, how they strike a blow at this system, because we cannot tell where it will stop. If there are any sufficient reasons for dispensing with our system of pleading in cases between twenty and one hundred dollars, the same reasons would apply with equal force to all cases. I can see no reason for it. Our system of pleading is not the product of the wisdom and experience of one generation of men; but is composed of the accumulated wisdom of many generations. Mr. Speaker, I am very much attached to this branch of the law. It is the one that I took more delight in than any other branch, because I have never seen anything better adapted to any purpose than our system of pleading is to the purpose it was intended to answer. It is admirably adapted to the purpose of facilitating the administration of justice. But without this system, the parties would be always liable to be surprised; not only liable to be surprised, but it would be much more difficult to ascertain the facts when they did not know the facts upon which the whole controversy turns.
And I made another remark in my preliminary remarks, that it would be much easier matter to decide the legal questions growing out of the events when the evidence is offered and to know to what purpose it is to be applied. It is an easy matter to decide whether it is admissible, whether it is relevant or not, but if you have nothing to guide you no issue to test the question whether or not the evidence is admissible, without knowing for what purpose it is introduced, it is impossible for a justice of the peace in trying a case where there is no issue in many cases to tell for what purpose the evidence is introduced.
With these few remarks and for these reasons and many others I might assign, I am opposed to this amendment.
The hour having arrived, the Convention took a recess.
The Convention reassembled at the appointed hour and the President took the chair.
THE PRESIDENT. When the Convention took a recess it had under consideration the report of the Committee on County Organization the immediate question under consideration being the 7th section, and the amendment offered by the gentleman from Monongalia, to strike.out "fifty" and insert "one hundred."
MR. DERING. It was with great diffidence that I could bring my mind to the conclusion to offer any amendment whatever to the able report of the Committee on County Organization; and more particularly, sir, was I diffident about offering any amendment to the section under consideration from the fact that that section pertains to the profession of the law; and as a majority of that committee, sir, is constituted of lawyers, it was with great diffidence that I offered the amendment to the section under consideration. But, sir, believing it to be my duty as one of the representatives from Monongalia county, I screwed myself up to the sticking point. And permit me here to say that I read the report of that committee with great pleasure; and although it will produce an entire revolution in the whole affairs of the State, in every county of the State, in reference to our mode of doing business, yet sir, I could wish that the very able and instructive explanatory remarks of the chairman of that committee could go with this report, if it is incorporated in our organic law, to the people. It would be of value - of great service - to them, sir, in carrying out, and in the practical working of this report should we adopt it. I listened, sir, with pleasure to the remarks of the gentleman from Lewis on this amendment. I was not surprised when he opposed it. I gave him all the attention I was capable of, sir. I cannot follow him through his elaborated legal course of argument. I make no pretension to be any part of a lawyer; but, sir, there were one or two items in his remarks that I may be permitted to advert to as I pass along. He took the position, sir, that if offering this amendment we were making war on the system of jurisprudence. Not so, sir, so far as I am concerned; for I consider a well regulated system of jurisprudence one of the greatest safeguards of the citizen.
MR. IRVINE. System of pleading, was my argument.
MR. DERING. I say, though, that I regard a well regulated system of jurisprudence as one of the greatest safeguards of the citizen for the protection of life, property and character. He furthermore said, sir, that a magistrate - and it is an argument I can appreciate and understand, having no particular legal lore about it in the trial of a cause, could not have any guide before him. Now, I trust the gentleman will permit me to differ with him. In Virginia and in many of the states, magistrates have judicial jurisdiction as well as law jurisdiction. He has this before him, the great principles of justice to subserve and mete out to the parties. That after all is the great law that should control all magistrates as well as judges. He has the great principles of justice to mete out, sir. If he adheres toi that, if he makes justice his polar star, if he is a man of ordinary intelligence, he will arrive at proper conclusions in most things that affect his adjudication. Now, I owe a man a hundred dollars and give him my plain note of hand payable after date. If he fails to prove any payment whatever and appears before the magistrate to defeat me from the collection of my just and honest due, what plea can he make, what guide does the magistrate need; what law to prevent him from giving justice in his decision? The plain matters of fact have been placed before him, and his only object should be to do justice to the plaintiff; and if he finds no plea of payment put in whatever, or if he fails to make good his plea of payment by proof, the plaintiff is entitled to a judgment. Sir, he needs nothing but the plain principles of justice to guide him there. So in many transactions that will be brought before him, even if the jurisdiction should be extended to one hundred dollars. Why, sir, the principle will apply to a case of fifty or twenty. The same arguments will apply to them that apply to a jurisdiction of a hundred dollars. And, sir, if the defendant feels himself aggrieved, that he has not had justice done him by the magistrate, he has an appeal to the circuit court. He has his remedy there so that there can be no injustice done him on account of the tribunal that tries him. In several of the states, when justices have jurisdiction, varying from twenty to one hundred dollars -
MR. WILLEY. I would ask the chairman whether that jurisdiction applies to cases of trespass?
MR. VAN WINKLE. That word "trespass" got in accidentally and was not intended by the committee.
MR. STUART of Doddridge. I rise to a question of order. This is a question that was specially referred to the Committee on the Judiciary, and it is made one business of that committee to inquire into the jurisdiction of justices. It seems to me we have taken it out of its proper place in considering it in this report.
MR. DERING. I presume I am in order as the section and report has been acted upon until we are nearly through it and it may as well be met in this connection as any other. In Michigan, sir, a single justice of the peace has jurisdiction to the amount of one hundred dollars, and has concurrent jurisdiction to the amount of three hundred and up as far as five hundred. I admit, sir, there are other states in like condition but in many of the states the jurisdiction is left by their constitutions to be prescribed by their legislatures. But in some of the states they have limited and in others extended it, varying the jurisdiction from twenty up to one hundred dollars. In our state, Virginia, our legislature has been increasing the same from twenty dollars up to fifty and from fifty to one hundred dollars. It is now one hundred dollars. The jurisdiction of a single magistrate is made to go as far as one hundred dollars. Now, sir, I have never heard any complaint of injustice on account of the jurisdiction of a magistrate reaching one hundred dollars; not a word. I have never heard in all my experience and observation and knowledge of anybody that complained of any injustice on this account. There are quarters where I might have heard complaint if I had sought for it, but I have never heard a single word. The people, then having enjoyed this right in Virginia, the legislature in their wisdom having enacted that the jurisdiction of a single magistrate should amount to one hundred dollars, we should let it be where the legislature has fixed it and incorporate a clause in the Constitution of the State of West Virginia placing it at that amount. Now, sir, I hold we ought to be very careful how we rob people of rights that they have enjoyed. They have enjoyed this right; and having enjoyed it for so long a time, will you deprive them of that right - take it from them? It seems to me if you do you will have the maledictions of an incensed community on you and the country would not justify any such robbery of their rights.
Again, sir, I am in favor of making justice as cheap as possible. I am in favor of throwing off all the guards that the lawyers may throw around it, of preventing them arguing before their courts, of putting in pleas, staving off and all that sort of thing. Why, sir, if a man goes into court and his client is disposed to be a little unruly he may have it slaved off for an indefinite length of time and men thus deprived of their property and almost destroyed. I hold it is the duty of this Convention, so far as they can consistently, to strengthen the great principles of justice, to promote justice by all means possible; to give to the people all the rights they have enjoyed and as many more as they are entitled to. I trust, sir, that this Convention will see the thing in the proper light and that they will give to the people the right to bring this up to as high as one hundred dollars. Then the defendant, if he considers himself the aggrieved party, if he thinks he has not had justice done him, can appeal to the circuit court, and there perhaps he may think he will have a better chance to obtain it. But, sir, there are very few cases of appeal on plain business transactions. Yet it seems to me it would defeat the ends of justice almost entirely if you take this jurisdiction out of the hands of the magistrates. There are many plain transactions between neighbors that amount to one hundred dollars. Indeed, most of the small litigation of the country is under that amount. Will you deprive the people of the right of seeking a magistrate and there obtaining justice? Or will you put them under the necessity of going to a lawyer and feeing him to get what is their just and honest due? Prevent them from a speedy collection of their debts? Throw it into court, where they would be kept out of it an almost interminable length of time? I trust, sir, that the sense of justice to the people, rich and poor, will bring this Convention to the conclusion that the amendment should pass.
MR. STUART of Doddridge. I desire to know whether if this passes whether the word "trespass" is to be stricken out. If the word is to be stricken out, I am for extending the jurisdiction in civil cases.
MR. VAN WINKLE. No, sir, the word "trespass" is there by mistake.
MR. STUART of Doddridge. Is it to be stricken out?
MR. VAN WINKLE. It ought to be.
MR. SOPER. I apprehend not; the gentleman is mistaken.
MR. VAN WINKLE. Thinking it would be better, I changed the language and accidentally left "trespass" in.
MR. STUART of Doddridge. I do not know whether it would be proper to offer such an amendment.
MR. VAN WINKLE. It being an accidental error, like my friend, I suppose by general consent the committee will be allowed to strike it out.
MR. SOPER. I think the chairman of the committee is under a misapprehension. In the draft he will find we had actions for assumpsit, debt, detinue and trover. I suggested to him the pro- priety of adding trespass. I am serious in it, sir, and will give my views at the proper time why I think it ought to be retained.
MR. STUART of Doddridge. Is it in order, then, to move to amend by striking out "trespass"?
MR. VAN WINKLE. Not now, I suppose. I will move to strike it out at the proper time.
MR. STUART of Doddridge. Yes, sir, but it might not be stricken out and you want to get me to vote on another amendment.
MR. DERING. I withdraw my motion, for the present, then.
MR. STUART of Doddridge. I move, then, Mr. President, to strike out the word "trespass," in the 2nd line.
MR. SOPER. That word was added, I think at my suggestion, and I will state to the Convention my object in having it placed there. I would have been satisfied myself if the report had generally authorized the legislature to confer on magistrates such civil jurisdiction as they saw fit; but when I found that actions were to be designated in the report I caused this word "trespass" to be inserted. I see gentlemen here apprehend that by introducing that word that they include all actions of trespass. I do not mean any such thing, sir, and before we get through with this section I will introduce such power of restriction, or giving the legislature such power, of restricting the exercise of the jurisdiction of magistrates under this section as I think will be safe and proper. Now, sir, I do not mean that a justice of the peace shall try an action of trespass where the title of land shall in any wise come in question. I exclude it entirely, and that power will be given if not named in this section to the legislature in order to secure it. I do not mean, sir, by giving them jurisdiction in actions of trespass that they shall try cases of assault and battery or false imprisonment or anything of that kind; but I do mean this, sir. If my neighbors' hogs come in and destroy my garden, I want to have a remedy. Or if my neighbors' cattle got over into my field and destroyed my grain, I want to have a remedy without going into the circuit court.
MR. VAN WINKLE. This is only the civil jurisdiction of a magistrate. He would still have jurisdiction of trespass as a criminal offense.
MR. SOPER. I know, sir, but I am not seeking to get a remedy for a criminal act. It is a civil act of trespass. Now, sir, a man who is on my land, if you please, takes off anything without my consent. True, I waive the tort and bring an action of trover: I can only recover the actual value of the property. But if a trespass is committed on my land, my action against him is a civil remedy, to recover damages, and it will be discretionary with the court and jury to make him pay what we usually call summary money. Whereas, in the other, I could only get the value of my property and interest on it. Now, why should not justices of the peace have jurisdiction of this kind? We hear almost constantly of neighborhood controversies, and what is the result? Why, one neighbor is injuring the cattle and hogs of another; trespassing upon him; killing them; quarreling about it and making a great deal of disturbance, and probably getting into assaults and batteries and various other difficulties. Now, sir, a man takes your property, if you please, without your consent, or he goes on your premises without your consent, or he runs against you when you are on the public highway and breaks your wagon or whatever you are riding in; commits any action of tort of this kind by which you sustain damages, why should you not bring the case before a justice of the peace and recover your five or ten dollars for it? Can any gentleman tell me ? So that when gentlemen suppose that in putting the word "trespass" there is to drag before magistrates the various actions I before named - assaults and batteries, false imprisonment - all that will be excluded; the legislature will take that away. Power will be given here to permit the legislature to do so. If I understand our present law on this subject, if I go into the court about it, if I do not recover ten dollars damages, why, I cannot maintain my action; I have got no remedy. But if I go there, then it requires the certificate from the judge in certain instances to entitle me to cost - a certificate that this breach or act was done, and something of that kind.
But, sir, I will repeat again, and then leave it for the consideration of the Convention: it is to give a remedy for these damages that I have named by going before a magistrate to have him assist in recovering the debt or claim I might have. I would have no objection to restricting the magistrate here as to the amount; restrict it to $20 if you please in these small cases. But I hope we shall not say that when a man has suffered an injury he shall not have a remedy for it.
MR. STUART of Doddridge. I must take things as I find them. Whether the gentleman from Tyler might be able to modify it to suit his views, I do not know; but if this section is modified as it stands, it may be modified, and it may not. If he has any amendment to offer I should like to see him introduce it.
MR. SOPER. I will tell you what amendment I propose.
MR. STUART of Doddridge. I will withdraw the amendment.
MR. SOPER. I wish to add at the end of "trover," "and such other matters, with such restrictions as may be prescribed by law." I will explain what I mean by "such other matters" besides those actions which will be named. If this is not broad enough -
THE PRESIDENT. Does the gentleman from Doddridge withdraw his amendment?
MR. STUART of Doddridge. I was very anxious for the gentleman to indicate what he proposed; but he only makes it worse. He gives additional power to the justices of the peace. I will insist on my motion to strike out the word "trespass." The section now stands that a justice of the peace has jurisdiction in all matters not exceeding a hundred dollars. As the gentleman from Monongalia remarks, on actions of trespass a great many legal questions arise; and I think justices are totally unprepared to decide questions of that kind. Besides, sir, men having cases litigated to that amount and cases of trespass would always want a jury. I see no provision here for giving justices of the peace a jury; and I would be opposed to that anyhow. Therefore, I think we had better strike out this word and consider what further jurisdiction we would give to justices of the peace. I cannot vote for it at all in its present form.
MR. VAN WINKLE. I certainly misunderstood the wishes of the gentleman from Tyler in regard to the insertion of this word. I may be incorrect in my recollection of how it got there, or I may have been overruled in inserting it; but certainly it was not my wish or intention that actions of jurisprudence on which bounds or titles of land come in question should be tried by a justice of the peace. I am therefore in favor of the motion of the gentleman from Doddridge to strike it out. Then I apprehend, sir, that what is left as the jurisdiction of a justice of the peace in the country will be perhaps as far as we ought to go. These actions are all plain - those that will be left here and enumerated and can all be tried in a summary way without any difficulty, and will not, I think, in any case, require those proceedings of which the gentleman from Lewis spoke. I think his argument was rather unfortunate in this, that for the last twenty years - I may say for 40 or 50 years - the tendency of the legislation of Virginia has been to simplify this matter of pleading. The tendency everywhere has been to simplify it. The old system of pleading was abolished several years ago in Massachusetts and in New York. Several western states have followed suit; and the reform party in England - that is, the party that are in favor of reforming their law, at the head of which is Lord Brougham, who has been indefatiguable, are in favor of the same thing. It is not worth while, I am aware, to address to other than legal gentlemen here any particular remarks about pleading. It is a matter too indirect, that is, what is technically called pleading; I mean in bringing the case, of course, to an issue. That is all that pleading does. It may consist of syllogisms, sir, but I apprehend that one end of them is a fiction, somehow or another. Now, sir, in the cases here that are presented for adjudication of justices of the peace in the country, there is scarcely possible but one issue, at any rate in 99 cases out of every 100. An action of assumpsit; the technical reply is, non-assumpsit. Is the charge one of promise? He says he did not promise. That is all that is to be tried. A promise to pay a certain sum of money; the question is whether he promised or not. In debt: there is very seldom anything can come up there before a justice of the peace except the question of payment. I apprehend that any person who held a note or execution which was likely to be disputed would not go before a justice of the peace. Well, so with the other actions of detinue and trover. They may almost be considered money actions. One party has come into the possession of the property of another. A suit is brought for the value of it, or in detinue to recover the identical property back. Now, these are all summary actions that require, as I think, no pleadings. It strikes me, therefore, sir, that if there is no advantage in this technical pleading nothing is to be lost in these cases that are confided to the justice of the peace, because they are not cases in which this technical pleading is of value in any case. I was reminded at the recess of what has been omitted from this report - ought to come before the committee, I believe, but it certainly was my intention to have said something on the subject. I was reminded that by the Constitution of the United States every case at common law where the value in controversy exceeds twenty dollars there must be necessarily a jury. My own opinion is that that clause has nothing to do with the courts of the states. It says such matters shall not otherwise be examined in courts of the United States. If it had meant states, it would have said courts in the United States. But the more recent interpretation is of all such amendments to the Constitution, that unless specially applied to the states in direct terms, or the people themselves in so many words, that they are not binding on the states. However that may be, sir, I believe full concurrence everywhere has been paid to it and provision made for trial by jury where the matter was over $20. I beg to read a clause which I will offer at the proper time:
"Either party to a civil suit brought before a justice of the peace when the value in controversy or the damages claimed exceeds twenty dollars, and the defendant in such cases of misdemeanor or breach of the peace as may by law be cognizable by a single justice, when the penalty is imprisonment or a fine exceeding five dollars, shall be entitled to a trial by six jurors, under such regulations as may be prescribed by law."
I apprehend the introduction of a provision of that kind would still further involve the objections to a jury. But if either party chooses to demand a jury, then he has it, in the specified cases. That jury I have fixed at six men instead of twelve as being less expensive. Yet I believe that jury being unanimous is as likely to do justice as twelve.
I trust, sir, that the amendment to strike out "trespass" will prevail. While we should very properly seek to relieve the circuit courts of all this matter-of-course business, or as much as we can consistently while it is desirable for the convenience of the neighborhood that the business of the people of a township should be as far as practicable be transacted within their township, or by a justice of the peace, where the operations are much more summary than in a court of record, however, sir, there is a line that should not be over passed. If we undertake to impose on our justices interests which are very complicated, which require a tedious examination of witnesses, and especially those interests which, as in the case of trespass of land, would require an investigation of written documents, admissability of which must always be decided on strictly technical grounds, we are compelling our justices to try matters of which we are by no means certain they will be competent. Where a question arose on the admissability of a deed or will or other legal writing, a dozen or a thousand questions may arise, we are so far complicating the business that it is not likely to be decided for a great while. The trial would be long and exceedingly tedious and the decision perhaps would not be satisfactory. It is precisely the case where we want the acumen of the learned judge, aided by intelligent counsel and jury. I think, therefore, that by confining the jurisdiction to these plain actions we shall rather tend to serve the people than by throwing other actions which are more complicated into the hands of the justices of the peace. They may be overrun if such actions go before them.
MR. SMITH. I came in the midst of this discussion, and if I understand the amendment it is that the word "trespass" should be preserved.
THE PRESIDENT. The motion is to strike it out.
MR. SMITH. Well, I think it is a very proper motion. It would seem to me to be a remarkable fact that such a jurisdiction as this should be given to a magistrate. It does seem to me that the mover does not perceive the extent of the power it grants. Why, sir, what is an ejectment but a trespass? Every action of ejectment is nothing more nor less than a trespass in a given form. Every action of unlawful entry is nothing but a trespass; and here you propose to say that a magistrate shall try a question of trespass involving the title to any amount of land you please and introduce any amount of written testimony that you please. I know one case that was 31 days in trial that under this law a magistrate might try. Why suppose he would have to summon a jury for forcible entry and detamer; the case would have to be tried by him. Actions of trespass for intrusion on land, where another party intrudes on the title or possession of another. He may bring his action for it. The other may plead laborum tenendum. The very moment that is introduced the whole title of that land is in doubt. Such a state of things as this cannot be tolerated. It cannot be submitted to for a moment that a magistrate should have such power of jurisdiction as this. And again, in trespass there are some of the most difficult cases we have in the law. Here it is; vindictive damages may be given. Vindictive damages I have known as high as ten thousand dollars. The magistrate is to exercise all that power and jurisdiction! This will not do; it ought not to be, and I am really surprised that it is seriously urged to give such sweeping power and jurisdiction to a magistrate. As this question was once decided in general court - I do not distinctly recollect the case, but I think it was one that went up from Winchester - in which a suit was brought for four dollars worth of quit-rent on land; and the action was maintained by the court below, and it went up on some proceeding to the superior court and thence to the general court. The general court says that a magistrate has no plea of land whatever. That is an old fixed and established rule of law, as old as the common law, that a justice of the peace shall not have pleas of land at all. It is a sound principle and a just principle. I hope it will not be the pleasure of the Convention to sustain a proposition fraught with such mischief as this would be.
MR. SOPER. The gentleman did not meet this question fairly. I stated, sir, when I was an advocate for having action of trespass maintained here that I did not intend to have it apply to any of the cases which the gentleman from Logan has just named. This, sir, is not a new proceeding. It may be to some gentlemen but not to me. I have been accustomed to it all my life, and I intend to have it applicable to cases of this kind. Here are two neighbors who have divided their line fence. One neighbor keeps up his fence, and the other neighbor suffers it to go to decay and fall down, and the cattle of the latter get over and damage the crops of the other from one to twenty-five dollars. Where is his remedy?
MR. SMITH. If he should offer a plea of laborum tenendum, will not the whole title to the land be involved?
MR. SOPER. If he put in that plea it would be by giving bond and surety to indemnify him in case the party saw fit to bring his case in the circuit court. And what additional security would the plaintiff get in the case? Why under the statute, if that case was put in, he would recover triple damages. That will be the way of it, sir. Now I state that over again, so the gentlemen will understand it. I bring an action of trespass for coming on my land and destroying my personal property, destroying so many bushels of corn, if you please, or taking off so much wood, or anything of this character. The defendant comes before the magistrate and puts in a plea of title. That plea would oust the magistrate of jurisdiction. In putting in that plea of title, the legislature ought to require him at the time he puts it in to tender a bond with sufficient surety to the plaintiff that in case that suit in the county or circuit within so many days he would appear there and interpose the same plea, namely, title; and in case he failed, he would pay double or triple the damages. Now, sir, where would be the safety? Why, sir, it would prevent a man putting in a false plea to oust the justice. And then, sir, the matter would be settled before the justice as any other case is settled, according to the evidence and the law.
Why, here we are to have but one court in this State - a supreme court and a circuit court. These are the only courts we are to have; and are we to take and crowd these courts with cases which may be settled before a magistrate below just as well as not? Why, from the argument of some gentlemen, the chairman of the committee who reported this provision if I understand him he means by it that a justice shall only try cases where there is no defense. Why you may as well give the justice in that case jurisdiction to ten thousand dollars. Well, now, sir, he says the report states that justices shall have jurisdiction in action of assumpsit upon a contract. Some of the most litigated cases in our courts arise upon contract. Take a building contract; a man undertakes to put up a building for you according to the written statements and measures, extras and design. There is something wrong in material or work in various ways. Action is brought before your justice. Defendant appears there and it is litigated, inch by inch. Not so in an action of trespass. If you can prove that his cattle destroyed your property, or he did it himself, or it was done by his direction, it is the simplest action in the world, unless he interpose this special plea which would oust the justice from jurisdiction. If he does this, I told you where the remedy would be.
I would submit to the Convention that this is one of the most useful provisions, and all these great actions that gentlemen have spoken of can be excepted from the jurisdiction of the justice, and rightfully, too. Action of ejectment, assault and battery, false imprisonment, where the title of land comes in any wise in question - all these cases may be taken away because the wisdom of the law seems to think that they ought to be tried in the most intelligent courts we have got. But the simple coming and destroying your property, why that is one of the cleanest actions in the world and there ought to be a remedy for it and that is all I intend to give here when I want that word "trespass" retained as part of the jurisdiction of the justice. It is to meet cases of the kind I have named. I say to you, gentlemen, give the party a remedy for these plain and aggravated cases or little injuries which produce neighborhood quarrels and difficulties. It is with a view of having them settled in the neighborhood that I have put in this word.
MR. LAMB. I shall vote for striking out the word "trespass"; but I must say to the Convention that I think these details are all improper to be put into a constitution. Why should we attempt to regulate all this matter in the Constitution, which from its own nature is irrepealable, where if we commit an error the error is irretrievable? Are we not interfering with the proper sphere of the legislature? Is not this whole matter a legislative matter and not properly a matter for constitutional regulation? If the legislature is prescribing the forms of actions which may be brought before justices of the peace, in prescribing the duties of constables and their authority, in prescribing the jurisdiction and power of one of these officers or the other, has committed an error or an oversight, it is easy to be remedied. If we commit one, it is, to say the least, a matter that cannot be very easily corrected. I should be much better satisfied to see here, in place of this section, and the succeeding one, a summary provision that the powers and duties of justices and constables should be prescribed by law, and stop there. If we do attempt to regulate all this matter, we will find that we must go on from one detail to another; one provision will necessarily involve the necessity of inserting a half dozen exceptions, and we must go on, if we do it properly from one provision to another, with one exception and another, until we insert into our Constitution the whole of the laws in regard to justices and constables. Is not this almost the necessary result? The gentleman suggests one provision very proper in itself as a general provision, but it immediately becomes necessary to engraft an exception on it; and so one detail will necessarily lead to another until you must have almost a code of laws in your Constitution on this subject.
I have been examining, with reference to this matter, the constitutions of the several states. Our own Constitution contains a provision something like I suggest. Our own Constitution says, simply, "The power and jurisdiction of justices within the limits of their respective counties shall be prescribed by law." The Constitutions of Louisiana, of Michigan, of Arkansas, of Georgia, Mississippi and Alabama, all contain a provision fixing the limit of the jurisdiction of justices by a specific sum. The constitutions of all the other states, if my examination of them is correct, contain the simple provision that the jurisdiction of justices of the peace shall be regulated by law. The gentleman from Monongalia referred to the Constitution of Minnesota. That constitution contains the express provision that jurisdiction of justices of the peace shall be regulated by law; but a further provision that their jurisdiction in civil cases shall not exceed one hundred dollars. There is only that limitation on the power of the legislature. But a very large majority of these states have not attempted in any way to regulate these details. It does strike me that there is a broad distinction between the proper sphere of legislation and the making of a constitution; and there is, on that account, a grave objection to this whole section.
MR. VAN WINKLE. I think, sir, the Convention will pardon me a few moments in reply to the gentleman from Ohio. If he will advert to the fact that the jurisdiction of justices has common-law matters to a great extent; that the jurisdiction they have exercised in Virginia has been under a different state of things, a different organization of counties from that which we now propose; if he will reflect that we are changing in other respects as well as in this; that we are altering, abolishing, the county court in which many functions which were done by justices in the country and elsewhere were discharged - he will find that there is some reason at least for inserting these specific provisions in the Constitution. I admit that matters that are purely matters of legislation ought not to be inserted in the Constitution, and that in the practical application and carrying out of the Constitution the legislature should be left free to act, at any rate, within certain limits. But where we do anything to introduce a change in the very Constitution of these offices - these justices of the peace - it appears to me unavoidable that the terms of that change must be expressed in the Constitution itself.
And, now, sir, if you say leave all this to the legislature, then why not strike out the whole report of the judiciary committee and leave all that to the legislature. I apprehend we go no more into particulars than the judiciary does, and I apprehend we go no more into particulars here than we do in many things that have been inserted into this Constitution with the entire approbation of the gentleman from Ohio. In reference to the legislature, sir, in the report of the committee of which he is chairman, there are certainly a great many things that are rendered necessary by the changes that we propose in the Constitution of the State. If we make constitutional changes, those changes must be embodied in some way in the Constitution; and I do not think these sections are obnoxious to the charge he brings against them. The rule is broad enough; either leave everything to the legislature and go home, or else we must define, to some extent, the powers and duties of the legislature in reference to these subjects, on the one hand, and the powers and duties of the offices which we establish, on the other. This provides what the civil jurisdiction of a Justice of the peace shall be. Suppose we leave it here without any provision. The legislature may perhaps almost render your circuit courts nugatory or may so cripple them that an amendment to the Constitution would be necessary.
One argument I used when on the floor before in favor of the proposition of the gentleman from Monongalia to raise the jurisdiction to one hundred dollars in these plain cases - not, I would say to the gentleman from Tyler, in which there is no defense but cases in which there is a simple issue - to raise the jurisdiction of these magistrates, the object being to relieve as far as possible these circuit courts. We are to have four courts in a year instead of fourteen. We are endeavoring to be as economical as possible, not to create too many judges; and we will find, I think, that if we can relieve these courts by imposing duties on the magistrates in the country, in some cases of which, with the aid of a jury, and some without, they are entirely competent to deal, we are rendering benefit to the people of every county of the commonwealth by so doing.
Now, sir, the necessity for these very provisions grows out of the existence of townships, and so grows out, remotely, of the abolition of the county court. If these had been retained - if the county court had been retained - it would be easy to say jurisdiction should be the same as under the former laws. But the jurisdiction of the justices was co-extensive with the county court in all civil suits; and I think gentlemen will find that there is a very large majority here who deem that the interests of the people would be greatly promoted by confining these magistrates to their own townships, bringing justice, as it were, to every man's door. Now, sir, how is this to be done without a constitutional provision? To me it is impossible. These officers, with their civil jurisdiction should be confined to their townships. Then we follow with the criminal jurisdiction should be confined to their townships. Then we follow with the criminal jurisdiction; and, notice, it is made as mere conservators of the peace at least co-extensive with the county. He shall have the power to suppress a riot or breach of the peace. And having confined his civil jurisdiction here by one section, necessarily, as I think, we have to put in the other section saying that in criminal cases it is not so confined. Here, again, have these constables been county officers. I apprehend very few gentlemen here wish the civil jurisdiction of a constable to be co-extensive with the county. If you can confine small courts to a township, you want the constable confined in the same manner. How will you do this? If those here who represent the people are not in favor of these changes and restrictions that are to be placed on the jurisdiction of the justices and constables, why, of course, this section will be taken out; but if a majority of this Convention is in favor of these restrictions, how are they to signify it except by enacting it in the Constitution? I think gentlemen will find as this discussion goes on that there is a good deal of feeling on this subject. I do not mean excitement; but I mean conviction. It is a subject that has been studied and thought upon by most of the members here; and that in relation to it almost every member has an opinion which he would like to see carried out, and that a majority of these opinions will be in favor of this restricted jurisdiction. That is my impression. But unless this subject is brought to the knowledge of the Convention, how are we to ascertain what are the wishes of our constituents in reference to it? Or of a majority?
It strikes me, therefore, that the charge in this instance of endeavoring to crowd the Constitution with legislative provisions is not a sound charge. It strikes me that in view of the changes we are making, the changes we have agreed to make, with great unanimity, too, that these provisions are absolutely necessary to be inserted as a guide to the legislature. I have stated before that throughout this report, the Committee on County Organization were willing to leave everything out from which inconvenience might possibly arise within the power of the legislature; that we are to set down in the Constitution what shall be the rule and practice that is to be incorporated in it and that the legislature is to carry out the details subject to that rule. But we must define, we must give a different status to the office of justice of the peace; change it from what is was under the former laws and under the county court law. But a great deal of our powers arise under the common law and will be enforced unless they are precisely restrained by this Constitution.
I think, therefore, sir, that the gentleman had better permit us at least to go on and amend this and see if we cannot make something that will be acceptable even to him; see when the wisdom of this Convention is brought to bear on it, when such provisions as may be superfluous are stricken out and other provisions that may have escaped the investigations of the committee are inserted - when the wish and will of the majority of the Convention is ascertained and we have altered and amended this and made it as perfect as it can be made - then it will be the best time to judge whether it is at all superfluous.
But I go back to where I started, that as we had already voted in a great and fundamental change in reference to our county organization, abolishing the county court and instituting a township system, that these sections are absolutely requisite in some form or other; that similar provisions - something on the subject, is absolutely necessary to be inserted in the Constitution.
MR. LAMB. Mr. President, I have not sought to embarrass the proposition of the gentleman from Wood. I have proposed none of my own. I made the suggestion I did rather as a suggestion to the friends of the measure than with any view of embarrassing it. I think that a provision such as I suggested to the plan of the gentleman from Wood will work better than it will work if he attempts to regulate all these details in the Constitution. I do not know that my remarks are in order as I made no motion in regard to it, but I hope the Convention will indulge me for a moment.
The gentleman's argument on that matter is that, as we are adopting a new system here these details are necessary; that to put the township system into operation it is necessary to have these matters prescribed in your Constitution. Now, gentlemen, how is it where this township system is in operation? Look at the Constitution of the State of Ohio, and you have there the simple provision - and it is the whole that I can find on the subject - that the powers and duties of justices of the peace shall be prescribed by law. Look at the Constitution of Indiana; look at the constitutions in the eastern states, where this township system is in full operation, and have they attempted to encumber it by these numerous details in the constitution at all? They leave the matter with that simple provision that "the powers and duties" of these officers "shall be prescribed by law." I am I trust as fully impressed as any man with the ability of this Convention to adopt a set of regulations on this subject. I know they could do it as well as a legislature could do it at the present time; but our Constitution is to be unalterable; we have to adopt regulations here in the Constitution which we hope, at least, will continue to govern this Commonwealth of West Virginia for 20 or 50 years to come. Can we adopt regulations now that will operate 50 years hence as understandingly, as judiciously, with as much probability that they will suit the circumstances of our people then existing as the legislature which will meet 50 years hence, meeting in the midst of the circumstances for which they are to legislate, with all the light before them that will enable them to fit their laws to the condition and circumstances and even prejudices of the people? For even such matters are proper to be considered both in constitutions and in the enactments of legislatures. I do not think that the change we propose to make in the system here renders these things necessary; and I am confirmed in this by finding that in every state where the system which the gentleman from Wood desires to introduce is in full operation they have left this matter, as I would prefer, if I do not propose - as I would prefer to leave it - to the Legislature of West Virginia, which can act from time to time to suit the circumstances and emergencies which may then surround them.
MR. STEVENSON of Wood. I propose to add but a very few remarks on the amendment of the gentleman from Doddridge. I do it as much for the purpose of bringing the Convention back to a recollection of the fact that that is the subject before it, as the matter has been extensively discussed, as of contributing anything to the discussion of the amendment. I may say this, sir, that this word, "trespass" does not seem to be the word exactly that I would like to have here, and yet I do not feel like casting my vote to take it out unless there is something preserved or offered here that will meet the difficulty suggested by the gentleman from Tyler. He referred to a class of cases which prevail in the agricultural regions of the State and always will prevail. Gentlemen who live in the country, as I do, can appreciate the force of that remark, such as entering on a man's land, taking off lumber; such as one man's cattle or hogs breaking over the fences of another farmer and destroying his crops; and a hundred other things of like kind that any gentleman who lives in the country can call up to his mind. Now, sir, they form a very large class of cases, of difficulties, in the country. Is there anything here that will give the justice jurisdiction in such cases? The gentleman from Tyler has said there is not; and at least the remedy given is not such as is desirable or would be equitable in cases of that kind. I have not heard any gentleman in reply to him undertake to answer his declaration in the matter.
MR. VAN WINKLE. I remarked once that the criminal jurisdiction of the magistrate over trespasses is not abolished, and that if a man's cattle invades the field of another man, he can get a warrant for trespass and put a stop to it, I think. I am not very recently from the bar, and I appeal to the legal gentlemen here to say whether the remedy is complete. The only thing the gentleman from Tyler wishes to retain is to sue him for damages, and that he can go into the circuit court and do.
MR. STEVENSON of Wood. Yes, sir: but it is not altogether fair to carry one's neighbor some 15 to 20 miles to the court house to state the matter of destroying his cabbage patch or a few acres of corn. I know they have that remedy; but if it is the only one, it is oppressive on the people. I understand the gentleman from Tyier to say that farmers do not wish to pursue, for reasons which gentlemen would feel the force of if they lived in the country; they do not wish to resort to the mode indicated by my colleague, in consideration of the perishable nature of their property and the danger of stirring up neighborhood antipathies and animosity; and hence they are left without any remedy.
Now, sir, I look at it, of course, as a practical question, because I am somewhat different from my friend from Ohio. He said at one time that he was no lawyer, although he had plead law a great many years. I may say that I am no lawyer, never plead law and I do not know that I ever expect to. But I look at this as a practical question; and if these difficulties can be met by the insertion of other words such as: "and in such other cases as may be provided by law," or something of that kind, something that shall meet these difficulties, I should favor it. I shall vote to strike out this word because it is not the word for the purpose. But unless we can have something of that kind, the difficulties are such as the gentleman from Tyler suggests.
MR. WILLEY. It seems to me my friend from Wood seems to labor under a misapprehension; perhaps the Convention has a misapprehension. The argument seems to be conducted on the hypothesis that unless we include something of the kind in the Constitution, that these rights never can be obtained; that these wrongs never can be redressed. Why, not at all, sir. Now, I had hoped the gentleman from Ohio would have gone further and not only have "preferred" but "proposed" the amendment he indicated. It is one which I had prepared before he rose and intended to offer at the proper time. That will certainly give power to remedy the evils of which gentlemen complain. And, by the way, they are not so far without redress under existing circumstances as they may imagine. A man's hogs get into my corn-field and they destroy. I make out my bill for the corn, sue him for the value of it and recover it. He takes a tree off my land. I sue him for the value of it and recover it. We have in this a law for petty cases setting forth ample remedies. The whole design in giving this power to the legislature is to devise wise means by which actions may be had before justices in the country under certain restrictions to right these small wrongs. It can be very easily done. But if you are going to cram this Constitution full of every kind or mode of redress - if you are going to fix limits on the power of the legislature, now, henceforth and forever, let us abolish the legislative department at once and go on until we have legislated for all posterity to come, and fix in this Constitution every rule and regulation for the redress of every grievance, present and to come. Why, sir, what kind of a condition would we get into? Now, sir, I have a profound respect for the wisdom of this body, and especially for my own, but really I do not conceive that either this Convention or myself has all the wisdom in the world of this progressive age and era; and it is to be supposed the people hereafter would be competent to send to the legislature men who would be able to pass laws and regulations for the full redress of their grievances and the maintenance of their rights. If we incorporate in this Constitution certain powers that shall be exercised by the justices of the peace, we involve, in addition to the difficulties indicated by the gentleman from Ohio another of a very serious character, we affirm by implication then that the Constitution having prescribed the duties and powers of the justices of the peace, that if it should be found necessary to enlarge these the legislature would not have authority to do it. We may wish to give them authority to redress grievances and to do the community service in some capacity or other not foreseen by this Convention; but by implication it may be considered that the legislature has not the power to do it. It may be said the powers of the justices of the peace are defined by the Constitution; the Constitution, the fundamental law of the land has regulated their powers and duties. Outside of that, as strict constructionists, we are not authorized to go. We ought to leave this entirely to the wisdom of the people, through their legislative agents, in time to come to shape these details as experience may prove necessary. It is perfectly competent for them to make a law that will accomplish the very purpose indicated by the gentleman from Tyler. We all acknowledge that there are these little grievances. Whether the general interests of the county will be better promoted by fostering and providing for keeping up this eternal petty litigation is a serious question in my mind: and it is on that very principle of policy that our legislature have hitherto refused, because they have said it is better we should suffer a little wrong than to keep the community by the ears all the time. But if it should be deemed otherwise better, in the wisdom of the legislature, and the people through their legislative agents, they have the authority at all times to do it; and they would give to justices of the peace whatever jurisdiction they see proper - jurisdiction of a thousand dollars if it is necessary. My colleague says they now have a jurisdiction of a hundred dollars. I do not know what this legislature has done. This legislature I understand has extended it to that. Well, now, is not there a practical exemplification of the fact that there is no necessity of incorporating such an unbending principle in the Constitution? There is practical exemplification of the wisdom of leaving this to the legislature, when even this legislature is extending the jurisdiction because they see the people demand it? Let the people have some discretion, through their legislative agents, hereafter in matters of this kind. Let us not impose binding rules and obligations on them from which they never can escape, however great the necessity for a modification of the rules. Circumstances may change; the condition of the people may change. Besides, sir, there is another reason, that I draw an entirely different inference of the necessity of caution here, from the fact that we are entering on a new order of things - an inference entirely different to my mind from that drawn by the gentleman from Wood (Mr. Van Winkle). We are entering on an untried state of policy. If we fix unbending rules in our Constitution and they do not work well, we will have no power to escape. The detriment, and the hindrance will be upon us because it will be a fundamental law over which the legislature has no control. Therefore, it does seem to me except where there is an obvious necessity for such constitutional legislation such matters had better be left to the discretion of the legislature, to be exercised under the exigencies which may arise and the indications of the necessity that will constantly present themselves for such kind of legislation. Let us see the operation of this new system, how it will work; how our new justices of the peace will get along. I am very willing to co-operate with my colleague in every way that will facilitate the administration of the law and that will cheapen it. I never heard - and if he were to apply to that other quarter he never would have got a complaint from me, because I am a lawyer. I shall expect my fees as a lawyer to be abundantly increased by any such legislation as this; and you have but to go into those states where this extended jurisdiction is, and I appeal to any member of this Convention who has had business to do there if the costs are not! three-fold, sometimes five-fold, what they have been in Virginia and are now?
Why, sir, how is it you give jurisdiction to justices of the peace for all these cases under one hundred dollars? What is the result? We have pettifoggers enough; but go into these states where these justices have this jurisdiction of land cases and some little pettifogger is the right-hand man of the justice, some man who wants to get up this petty litigation, and the litigants are induced to go before this tribunal with ten-fold the costs they would have in our courts in the State of Virginia. I know this from personal observation, not from what I think would be the result, in states where this extended jurisdiction exists. Now in the plain cases of debt, where there is no defence, where there is no litigation, it is a hardship that a party should be saddled with an attorney's fee and all that sort of thing in court. Are you going to allow, or compel, these justices of the peace under this new order of things to discharge their duties without being paid for it? I understand that not to be the policy, sir. The new policy is to be, few officers and pay them for the performance of their duties. I venture to say that when you collect your hundred dollars before the justice of the peace you will have as much cost to pay as you have now in a Virginia court of justice. It may facilitate the collection of it. I do not think that would benefit the majority of the people. It would not benefit me, and I fear the majority of the community are just like me; and instead of my colleague accommodating the community by placing these fast laws in the Constitution for the collection of debts, most people would be better accommodated by a little more delay if they could get it.
I am very willing to extend the jurisdiction of justices of the peace in all cases where there is no litigation. I do not care what amount you extend to. But where there must necessarily be litigation, as in case of detinue, up to a hundred dollars, you not only authorize and confine the trial right to the property detained but the justice has to fix the alternative value and one man has to decide on the value of all the articles of property that are detained. And so in action of trover. It does seem to me the better way would be to get rid of all these difficulties, to allow the powers and duties of justices of the peace and constables to be prescribed by law; and that as experience, propriety and necessity would indicate, the grievances which gentlemen allude to may be provided for. You may have remedies provided for these small actions in the country by extending the jurisdiction of justices or in some other way. The legislature will have ample power to do it; but if you incorporate these unbending rules in the Constitution, if you get a bad bargain you are bound to abide by it until the Constitution is amended. Sir, redress of every grievance which gentlemen have alluded to can be amply provided for by legislative discretion and authority.
MR. SOPER. One word in answer to the gentleman from Wood. He answered my objection by saying that where a wrong of the kind I had referred to should occur the party could go before a justice and pursue him criminally. Anything in the nature of a criminal proceeding does not compensate the party for the injury. It only punishes the individual and satisfies public justice. The county and state get the benefit of it, but the man who is wronged does not get redress. The gentleman from Monongalia says no need of retaining this word, because if a man destroys his personal property he can waive the tort and bring an action for the value. That is the rule of law I admit, yet it does not meet the case. It meets it so far as the actual value of the property is concerned. My neighbor's property is destroyed by his negligent neighbor - not wilfully but carelessly if you please. He can waive the tort and bring the action of assumpsit to recover the value of the property. He loses his own time without getting any compensation whatever, and yet he does not effect a remedy. But if you retain this word, the magistrate in the exercise of sound discretion will say that the individual should not only compensate the neighbor for his time and trouble but then make him pay something by way of summary money. I think he ought to, sir. I think it is a wholesome provision, one that will operate better than to allow this civil action for trespass to be brought to correct these evils. Why, sir, if a man's property is destroyed by a neighbor who is not friendly to him, what will he do? Why, if the destruction is done by cattle he will be for injuring them in some way. They get into a fight and are brought before a grand jury, or the case comes before a petty jury; and thus a great and extensive injury is done.
No, gentlemen of the Convention, think of this thing seriously, if you are going to institute this new system and give jurisdiction to magistrates and compensate them so that you will get competent talent and so that they will be prepared to decide and determine these cases as well as you can get them determined in the circuit court, and it will be done in the neighborhood and before the excitement spreads far and wide and before other injuries have been committed.
Well, now, sir, as to the propriety of this report, I believe it will have most beneficial effect on the community at large. And while receiving the attention of gentlemen in this Convention who represent all the counties in this State, it will call their attention to various matters that will be broached here on which some have reflected and which the greater number will see the necessity of; but I am not willing to let this report go from under our hands until a clause is given to it giving the right to the legislature to give additional jurisdiction, and restrictions on the exercise of jurisdiction, as they, in their wisdom hereafter may see fit. Now, sir, there are a great many things not embraced in this report. Here is the subject of attachments; here are the matters between landlord and tenant. And there is another power not conferred on justices of the peace. It is this, sir, in cases between landlord and tenant. You have a tenant that occupied your premises and his time expires; and how are you to get him out? Suppose he be a man, for some cause or other -
MR. HALL of Marion. I dislike very much to do it, sir, but feel compelled to raise a question of order. I am very anxious to get at this question at issue.
MR. SOPER. I am not talking to the question, sir. It is merely answering such questions as gentlemen have permitted to answer without any proposition before the Convention.
THE PRESIDENT. The Chair is aware that there has been much latitude.
MR. VAN WINKLE. I will move that the gentleman from Tyler have leave to proceed.
MR. SOPER. I was remarking, sir, upon a branch which will be new to gentlemen here is Virginia where to remedy the evil I would give jurisdiction to the magistrate; and it is in a case now between landlord and tenant, whether at will or sufferance. After a third notice I would put an end to that tenancy. But I will take a tenant by the year and the time expires on the first of April; and your tenant is unable to remove and he puts you at defiance. How are you to remove him? Why, unless jurisdiction is given to the magistrate to that effect you have got to go to your circuit court and' bring your proceedings for unlawful entry. It may be three months, if it may be tried then, or it may not. After all this you have got to go to a litigation of at least twenty-five dollars. Where would I remedy it? Why, sir, if the tenancy expires by contract at the end of the year, or a fixed period, I would get a summons from the magistrate requiring that individual to appear and show cause why he should not be removed immediately, and unless he could show some good reason I would authorize the constable to set him and his property out the next day, at an expense probably one, two or three dollars.
There are a great many other cases, sir, which will come up to be disposed of by magistrates and which ought not to go into the circuit court.
And now as to the wisdom of this report. It goes into detail; it calls the attention of gentlemen to what their jurisdiction will extend; what kind of cases it will probably embrace; and then by having a general provision in it that the legislature can restrict and add additional powers to this court, why it will be a safe one because although I would have been satisfied myself if there had been a general provision to this effect that the general jurisdiction of justices in civil and legal cases shall be provided by law, if there had been a clause to that effect I believe it would have been sufficient. Then it would have given the legislature power from time to time to make such alterations as they saw fit; and I hope that provision will be annexed to it, while we have all these special cases designated in it with the general power given the legislature to regulate and control all those not specified.
Well, now another thing. The gentleman from Monongalia talks about expenses. We are, gentlemen, aware of what the expense will be. Comparing a judgment here in this district court and the cost in a court of record, why there is no comparison. Your magistrates will get probably a dime for his summons; five cents for his copy, five for his opinion; and the constable will get probably five per cent on executions that do not exceed fifty dollars and what goes over two and a half per cent for collecting. That is about all the expenses there are. Why, sir, extend the jurisdiction if you please to a hundred dollars and claims of that description will be collected for one-fourth of what they cost now. But if you are going to give them jurisdiction in these cases to a certain amount, why not embrace all the causes which will come legitimately in their power? Why not give jurisdiction over them? There is as much objection almost to the action of detinue as there is to trespass. I would not give a justice jurisdiction in a case of detinue at present, while I would give him action in trespass and trespass on the case. Now, that is not embraced. Why, sir, a case is there. I will take that of trading horses or the buying of a horse. A man commits a fraud upon you by concealing the defects of the horse or misrepresenting. What is your remedy? You suffer a damage of twenty or fifty dollars. Where is your remedy? You have got none if that clause passes there. Now, your justice ought to have jurisdiction of a case of that kind. He ought to bring the suit right in the neighborhood where the fraud is perpetrated, and decide it right away; not bring the party into the circuit court. That is not the way to administer justice in an enlightened community. Dishonest men and incompetent men you must expect. It will arise under any circumstances in a community. But these are exceptions to the general rule that we must remedy as well as we can. The remedy lies in the interest and intelligence of the people. There is where the remedy is. And in these townships, when gentlemen understand the mode and operation of this plan, that is said to be a new plan - when they see how it operates - the more they will advance in it, the better they will look at it and be prepared to carry it out. When the motion before the Convention is upon striking out this action of trespass, I hope the Convention will not strike it out, because all these faults may be remedied by giving the legislature general power to restrict, and you ought to give the friends of this report the opportunity of making it what they think it ought to be, and after you get the whole of it before you if you think it will not work we will strike it all out and give a general clause that the jurisdiction of justices in civil and criminal cases shall be prescribed according to law. But before we have gone into a consideration and have had it properly investigated and discussed, I think gentlemen would do better to retain these parts of it until we get through or until the second reading of it, and then we will be prepared to say what will be proper for this Convention to pursue. I hope, therefore, the word will not be stricken out.
The motion to strike out the words "action for trespass" was put and it was agreed to.
MR. DERING. I now renew my motion to amend by striking out "fifty" and inserting "one hundred."
MR. STUART of Doddridge. I think the amendment to the amendment will perhaps save time; and I move to strike out the whole section and insert: "The powers and duties of justices of the peace shall be prescribed by law."
THE PRESIDENT. The Chair would be disposed to consider the motion of the gentleman from Doddridge as a substitute, and in that form would put the question.
MR. SINSEL. Mr. President, I am opposed to the substitute and in favor of the amendment offered by the gentleman from Monongalia; and it does seem to me that persons who have done business in court and before justices will see at once that it will be a great saving of cost to both the plaintiff and defendant if the motion of the gentleman from Monongalia should prevail.
THE PRESIDENT. The real question is, whether we ought to make these provisions or turn them over to the legislature.
MR. SINSEL. I would like to know, then, Mr. President, how we could make ourselves understood if we have not the right and privilege to show the practical working of the two systems? It seems to me in discussing amendments very frequently it is absolutely necessary to refer to the whole subject. How can you do it intelligently otherwise?
MR. DERING. I move that the gentleman have leave to proceed.
MR. WILLEY. I would be very willing to accord that, but I think he is perfectly in order. He proposes to show that the substitute is not as good as that for which it is proposed to be substituted. He cannot avoid it.
MR. VAN WINKLE. I think the gentleman is certainly in order. The question is broader. A gentleman has a right to show that every line, every word that is proposed to be stricken out is there properly; nor can any one judge until they hear the gentleman out whether his remarks may be relevant or not. Our experience here has been that whenever a new subject comes up the first amendment to some extent affects the whole subject. After the merits of the whole case have been examined we go on and despatch the business rather than recapitulate all this debate whether on this precise question or another yet to be had. It strikes me by not restricting gentlemen too much we shall get through sooner.
THE PRESIDENT. But the substitute provides also that this jurisdiction shall not be given in any other form.
MR. HALL of Marion. I would desire the recognition of the Chair to say that I am as full of courtesy, really, as anybody, but I think we may be courteous to an extent here that may not be courteous to our people; and I think it is a matter of the utmost importance that we confine our debate to the question more closely than heretofore. And I must differ in that I presume to set up my judgment against others; but it is to my mind so plain a question that I would be allowed to say that as the question now stands the only legitimate argument that can arise upon it is whether we shall insert fifty or a hundred, or whether we shall leave it to the legislature. There is no part of the section under consideration but the simple proposition to strike out "fifty" and insert "one hundred." And I will be pardoned for differing with my distinguished friend from Wood. But really it strikes me as so plain a fact -
MR. VAN WINKLE. The gentleman from Doddridge has moved to strike out the whole section, and that is the pending question.
MR. HALL of Marion. My position was founded upon a misconception as to that particular motion.
MR. SINSEL. I was about to show that instead of striking out the whole of this and leaving it to the legislature I prefer retaining the whole of it with the amendment offered by the gentleman from Monongalia; and in showing the advantage that retaining that amendment will have over any proposition that has been discussed here I will refer to the item of expenses.
Now, if I have a note against you for one hundred dollars - a plain note of hand - 1 will go to a lawyer. The first thing he does is to give the clerk a memorandum of the suit he is about to bring. The clerk issues a summons and I am required to appear at rules. The gentleman then goes on and my counsel files my declaration. You know that the claim is just; you know it is unnecessary to go to any other expense, to make any defense and you intend to just let judgment go by default. Now, the very least amount of cost that will be due the clerk in such a case as that is $2.91. Well, now, the expense does not end there. The commission, then, to the sheriff will be five dollars, the attorney $2.50. So that you have, in round numbers, the clerk $3.00. That would be $10.50 and to the sheriff 50 cents more. There is $11.00 minus nine cents; or $10.91, as the cost that I would recover off of you. Well, does it end there? No, sir. The attorney, in addition to these costs absolutely charges me five per cent for collecting that money. So there is an expense of $16.00 incurred to the parties plaintiff and defendant in order to collect $100.00 where there is no defense, where the judgment goes by default. Well, now, it will be less than that even before a magistrate. But allow the magistrate the same fees for like services as the clerk of the circuit court would get. Well, where would I pay then in this instance? I would have no declaration to file; there is no charge by the clerk; no continuance at rules and I would not have copies handed out by the clerk. There also would be a saving. That is as to the defendant; and add to that two dollars and a half and I will save at least a dollar from the clerk and two and a half from the attorney - three dollars and a half saved to you, and at the same time I save five dollars myself. I have no commission to pay the attorney. The commission to the constable might be the same as to the sheriff for serving summons might be the same; so that in the collecting of that money the litigants would save five and three, is about eight dollars and a half: one-half the expense saved at least.
Well, now, it was argued here today very strenuously that you would not be likely to get justice in cases of that kind; that it was necessary to have these pleadings; and here now in this case, as I have referred to, what pleadings are there? Yet the attorney files his declaration, and it is hardly ever looked at. The clerk enters up the order; the case comes into court and nine times in ten judgment is entered without any investigation, the court scarc'ely paying any attention to it. The clerk does nearly the whole of it himself. In cases where any controversy will arise, why the Constitution of the United States makes a provision that a party shall have the right to trial by jury where the sum is over twenty dollars. What does the law do? It simply says the magistrate shall certify the set-off, over twenty dollars, to the court before trial by jury. It then is optional with the defendant whether he will go into the circuit court or not.
MR. IRVINE. I do not think there is any such provision in that section.
MR. SINSEL. Well, but the Constitution being the supreme law of the land it is not necessary to reiterate it here. It takes that course, and the legislature will provide to carry out this as taken in connection with the Constitution of the United States in framing the statute. Well, then in addition to that the party plaintiff is not likely to bring his suit before the single magistrate if he sees it ultimately will go to the circuit court. It is against his interest. If he sees it is a complicated case, why he will at once bring his suit.
MR. WILLEY. This law absolutely confines it to the justices of the peace. You may appeal after judgment, but you are bound to bring it to the justice of the peace according to this section. "Shall embrace all questions of that kind."
MR. SINSEL. Well, it is very evident that there may be a provision here of that kind. But surely, as we have in a former part of this Constitution we have embodied in it provisions acknowledged to be the supreme law of the land, and as that instrument itself makes a provision of this kind, the two must be made to harmonize, and the legislature will surely do that.
They say that the cost will be greatly augmented on account of appeals. Now I appeal to every gentleman in this house who has seen these litigated cases - cases which have gone into the circuit court on appeals from a single magistrate - to know of them, in ninety-nine cases in a hundred, of the cases that go there on appeal where the costs are great if the amount in controversy is not frivolous - not twenty dollars - scarcely any cases where the appeal is over twenty dollars - that there is such an amount of cost accumulated on it as stated by me. They originate very frequently in these little frivolous suits. To strike out the whole of this clause, as proposed by the gentleman from Doddridge, why the legislature may possibly contract, limit, the powers of the justices of the peace so that the people may experience great inconvenience from it. If the people do not want justices of the peace to try their cases they will take them into the circuit court; and as he has been such a strong advocate of the people, I hope he may give them at least the opportunity in this case. If they do not want to bring them before the justices they will take them into the circuit court; and if the plaintiff is anxious to bring them there and the defendant prefers them in the circuit court, he can just say: Mr. Magistrate, certify this to the circuit court. I have certified many a one as justice, and I hope hereafter may have the privilege of doing the same thing.
MR. STUART of Doddridge. If I were discussing the question now whether we should legislate so and so, it might be the gentleman from Tyler and myself would agree on many points. But, sir, this gives justices of the peace jurisdiction, and we are seeking to increase that exclusive jurisdiction. He says I have always advocated the rights of the people. The people through the legislature might want to change this thing, and here it is irrevocably placed. I am sure the argument of the gentleman from Monongalia was satisfactory; but it is not necessary I should reiterate the arguments used by that gentleman. If the people want this jurisdiction extended and want them to have jurisdiction even in trespass, why the legislature will have the power to give it; but if we prohibit it or grant it here, it is then out of the reach of the people and out of the reach of the legislature. Why not leave it to the legislature, then? There is no provision here in the section that you are seeking to adopt giving to the defendant the right to move the case. But it gives it exclusively to justices of the peace; and there is no remedy except by appeal. Now, sirs, go before a justice of the peace with a litigated case - a case in which hundreds would arise. This amount I will venture to say that in a litigated case there will not be one in twenty that will not go up to the higher courts and which will go there in such a form that the costs probably will exceed the amount of the debt in every case; and very likely the plaintiff would be the party at court who had carried up the case. And what is gained by it? Only heaping cost upon cost. I saw a litigated case where the cost amounted to forty dollars. I am willing that when men go into court and accumulate that amount of costs it should be among them; but it shows that it is not the proper tribunal at least for cases to the amount of fifty or a hundred dollars in litigated cases. If we propose to go into detail and legislate, fix up your section so that it will be fair, giving either party at least the right to move these litigated cases to court. Our Bill of Rights declares that trial by jury should be preserved. Are you going to repudiate that? Are you going to try cases of this kind before justices of the peace without the privilege of having a jury?
Another thing, sir: when you go into details in a Constitution like this which we are framing to govern the people in all time to come, look at the difficulty that may arise. Here: "In a controversy where the amount involved does not exceed fifty dollars subject to appeal." Now, sir, what construction would be placed on that? It is subject to appeal. Is it liable to any legislative restrictions? Does a party have a peremptory right to appeal, or would he have to give security? Now, there would be a legal question that we are not prepared to solve. It is much better to leave this to the legislative body, and if they legislate wrong on any question, why, it is easily remedied. If we adopt principles here in your Constitution, they are permanent and you cannot reach them through legislation. Now, sir, let us leave our legislature to fix these things. I am with the gentleman from Tyler that where plaintiffs desire to bring their action before justices of the peace I would give jurisdiction to one hundred dollars. That would be plain actions. In such cases it would be the interest of both that justices should have power to render a judgment settled. Our present legislature has increased their jurisdiction to one hundred dollars, but it is with provision that the parties have the right to remove the case into court if either desires it. There is concurrent jurisdiction of the justices in county court and circuit court.
MR. VAN WINKLE. I do not think gentlemen have fully considered the provisions of this section. I do not think the arguments that have been adduced here apply to it on the part of those who wish to strike out. I do not think the redeeming feature of the section has been alluded to by any of those who have spoken. Now, sir, all that has been spoken against is embraced in about four lines of this section. The section is principally occupied in defining the territorial jurisdiction of the justices and constables. Two or three lines in the beginning show what kind of actions they may try. But one line again confines it to fifty dollars and all the rest is employed in defining their territorial jurisdiction to making it co-extensive with their townships. Now, sir, I do not know from anything gentlemen have said here whether this feature they wish to get rid of or not, but if that is the case I ask the friends of the township system to stand by the section. I do not know - gentlemen do not know - with what degree of favor this system is to be received in the next legislature - the first or any succeeding legislature. I do not know but there may be that kind of prejudice against it arising from the mere want of acquaintance with it. I do not know, sir, but there may be that kind of prejudice which arises from the fact that it has been heretofore untried among ourselves, and also that kind of which we have had some times evinced here, that it happens to be in force somewhere else.
Now, sir, if the members of this Convention are satisfied in their own minds that we have done a good thing in getting rid of this incubus of the county court and substituting the township system for it, then I hope that gentlemen will stand by it so as to give it a fair chance.
The great idea of the township system, the great benefit that is to be derived from it, as we conceive, is the fact that we are reducing the territory within which the citizens will be called upon to act, that we are bringing all their public business nearer to them; that we are enabling them to decide in many cases for themselves. And in reference to these justices of the peace, according to the spirit of these sections we are giving to each township, to each limited neighborhood, its own justice of the peace, to do its own business instead of giving a certain number of justices of the peace to the whole county, any of whom may be called on under any circumstances.
This section connects itself, then, very distinctly with the township system; and the powers and duties of the magistrates are scarcely involved in the section. You may, if you please, leave it to the legislature to say what shall be the extent of their jurisdiction of dollars, leave it to say what actions they shall try and determine; but unless I knew what is to be the constitution of the succeeding legislature, for one I am not willing to place it in their power to strike out the beneficial portions of this township system. Now, sir, can I see, even if we do fix the precise actions which they shall be allowed to try, or if we do limit their jurisdiction to a certain number of items that it is objectionable in the slightest degree to what has been represented so often as legislating in the Constitution. Sir, I do not hear anything about fixing the jurisdiction of the circuit courts.
MR. WILLEY. The jurisdiction of the circuit courts is such as shall be prescribed by law. Such is the plan the committee proposes.
MR. VAN WINKLE. That may or may not be; but I apprehend that if anybody had said they should not try suits involving less than a certain amount the objection would not have been raised. What We propose here, and what is the distinctive and most important part of it, is that which confines the jurisdiction of these magistrates to their townships, and the necessary provisions to guard against the absence or illness of the magistrate, and also to confine the operations of the constable to the same limits. Now, if the Convention think this as important as I do - if they agree With me in this, then this Constitution is precisely the place to put it. If they think it is a matter of no importance, and if they think it is a matter of no importance how high or low the jurisdiction of justices of the peace shall be, what description of actions they shall be allowed to try, let it go. But if they do think it is a matter of importance - anything dependent on it - then let us fix it in the Constitution and do not let us be scared or frightened off because the cry is raised that we are legislating. Sir, we had that cry raised a hundred times in the convention of 1850. I apprehend there was a great deal more legislation put into that constitution by the very ones who raised it than we are likely to put into this. We will have many things new to the legislature to fix about these justices; but it has been a question in this community - a question that has been a good deal debated in the country - as to what should be the extent of magistrates' jurisdiction. We have seen here that there are different notions on the subject; we have been told in this Convention that the legislature now in session has raised the jurisdiction to one hundred dollars. And now, sir, if we are establishing a system, it is the more important that we place some limits upon it. I do not see, sir, that the objection is a valid one; for if you allow it to be a test that legislative matters are to be introduced here - then all matters to be decided on here are legislative matters. It is proper for a constitution to fix limits to every department of the government. We say here what the legislature may do and may not do; we will say what the executive may do or not do; we will fix the amount which may be appealed from; we will fix many other things that are precisely analogous to the few provisions in this objected to. My opinion is in reference to these matters, it had all better be put in the Constitution. We had better give the general outline of the duties and powers of these magistrates. I am certain, sir, that if we wish to see our township system carried out in anything like its integrity, we had better provide that jurisdiction of these justices shall not extend beyond their townships. I ask gentlemen to consider that point. I ask those who are friendly to this system and who, with me, expect to derive great - 1 may say immense - benefit from it if we will not risk something in reference to that system if we do not make it apply to justices as well as to other officers? That is a consideration which legitimately addresses itself to the members of this Convention; a consideration which, if they agree with me, that it is important we should limit their territorial jurisdiction, they cannot for a moment hesitate to say should be there properly placed in the Constitution. If we are giving a guide and direction to the future - establishing a rule for fifty years, as gentlemen say; if we are to choose between that which we know to be in accordance with the rest of the system we have instituted and fluctuating every year - restricting jurisdiction and enlarging it, had not we better fix it at once and let it be tried? We have adopted, at the recommendation of the gentleman from Ohio and others a system by which any little amendment may be secured in a summary way without the necessity of calling a convention of the whole State. We have adopted a plan by which amendments can be proposed by the legislature; and we certainly risk no very great thing if we do understand what we are about and do want this system carried out - then, I say we can risk nothing here by fixing that limit to the jurisdiction of magistrates. If, on the contrary, we want to be all at sea, with a system that has one part fixed and another part unfixed, why, then strike out this section and let it go. But my own opinion is that if we do we shall regret it. But, on the other hand, I cannot see what evil is to arise from fixing a limit to their territorial jurisdiction. No gentleman has argued that part of the question, when in fact it is the great question involved in the section. We are brought to a discussion of the section before we have an opportunity to amend it, to make it more satisfactory to those who are not opposed to it, and the question arises on the section as it stands. There is no doubt some judicious amendments can be introduced and make the whole more acceptable to the great body of the Convention. But now, whether we will abandon the principles of township organization so far as they are involved in this section, or whether we will stand by and maintain them, then I go for the latter, and I trust the Convention will sustain me.
Mr. Brown of Preston offered the following:
"Resolved, That when the Convention adjourn, it adjourn to meet each day hereafter at nine o'clock A. M. until otherwise ordered."
The resolution was rejected.
Mr. Hagar rose.
MR. BROWN of Kanawha. I wish only to call attention to the subject. I will move, if it is in order, to substitute in place of the 7th section the 18th section of the judiciary report on the same subject.
MR. VAN WINKLE. That is made without any reference whatever to townships.
MR. BROWN of Kanawha. Ah! It is not in order.
MR. HAGAR. Mr. President, I move this Convention now adjourn.
The motion was agreed to and the Convention adjourned.
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Chapter Eleven: First Constitutional Convention of West Virginia