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The Convention, was opened with prayer by Rev. J. M. Powell, member from Harrison.
MR. DERING. I hold in my hand a petition signed by Judge Miller and a large number of the loyal citizens of Monongalia county, which I will ask may be received and laid on the table.
The petition, signed by 103 citizens of Monongalia county, prayed the Convention to insert in the Constitution a provision prohibiting the legislature from appropriating money for internal improvements, and also a provision limiting the per diem of members of the legislature to thirty days after the first session.
Laid on the table.
THE PRESIDENT. When the Convention adjourned, it had under consideration the second sentence of the 5th section of the report of the Committee on the Judiciary. The question is on the adoption of the clause.
MR. BROWN of Kanawha. Last night I took the trouble to get a constitution of the state and compare this latter sentence with the provision in the constitution and I think it will not be found to be obnoxious to any objections that might have been supposed to exist. The provision there is that the judges of the districts - two circuits constituted a district - might be authorized or required to hold their respective courts alternately. We have no districts, and therefore it was necessary to strike out the word "districts" and make the sentence apply to the judges generally, and it is the more appropriate. What is the object of requiring these judges, or giving the legislature power to require them, to do this? I understand the whole Constitution is predicated on the fact that the people of each circuit are to elect their own judge and the judge elected by one people is not to be the judge of another people without some necessity arises for it. But it also provides, looking to the fact that there will sometimes be a necessity for a change from inability of a judge to act in his own circuit that judges may be required to alternate, and it is proper there should be in the Constitution a general provision, for you cannot tell what judge is going to be in this position. If you say the neighboring judge, perhaps both may be under the same kind of disability. I think the Convention will see the propriety of adopting this clause.
MR. BROWN of Preston. I last evening suggested an amendment to the language in this clause; but upon a careful examination I find the language embraced here is probably as concise and answers the purpose as well as any that could be substituted. The propriety of requiring the judges to alternate with each other both in their courts and circuits is manifest. It may so happen that in one circuit the business may be very large and the labor connected with it very great, while the business in another circuit is very light. In cases of that kind, sir, the propriety of this clause is very manifest. The legislature may authorize or require the judges to alternate in circuits so as to lessen the labor - exchange with each other so as to equalize the labors of the judges, not impose all the labor on the judge of one circuit. I shall support it just as it is.
MR. RUFFNER. Perhaps it may be hypocritical, but I see no necessity for the word "But" in this connection and move to strike it out.
MR. BROWN of Kanawha. I think if my colleague will look at this he will find it necessary. Each judge is assigned to the circuit to which he is elected, and whenever you make him go out of his circuit you change his duty, and there must be a reason assigned for this additional duty, and that is intimated in the word "But."
THE PRESIDENT. Does the gentleman from Kanawha withdraw his motion?
MR. RUFFNER. It is a matter of no consequence. I thought it was superfluous and still think so. I withdraw it.
MR. HERVEY. By the structure of this latter clause are inhibited, as I understand it, from exchanging unless authorized of record. They cannot do so unless authorized of record. I would move to strike out the latter clause and insert: "the judge of any circuit may exchange with the the judge of any other circuit," without waiting on legislative enactment.
MR. BROWN of Kanawha. The gentleman's amendment proposes to make this matter discretionary with the judges of the circuits they will sit in and for which they were elected. Under this kind of provision a judge may select a circuit different from that in and to which he was elected without any authority of law. Now, that I am opposed to. I understand when these judges are elected under the Constitution, that they are not and ought to be allowed to change at their discretion without some reason existing and that that ought to be a matter regulated by law. The legislature alone must be the body that from year to year and from time to time, as circumstances arise and indicate a necessity, can declare and prescribe it. To give the matter into the hands of the judges is, I think, departing from the principles on which we have been acting. I am in favor of the clause as it stands.
MR. HERVEY. It seems to me there would be a necessity for the existence of a case of this kind. A judge may have a case before him in which he is personally interested or in which he would feel a delicacy in acting. Now, it does seem to me it would be a great hardship to require him to act in such a case. The case might arise before there could be any general legislative act that would authorize the exchange. We know under the present constitution judges frequently exchange, and it is very frequently the interest of parties that they should exchange. Without a provision of this kind they cannot do so; and even under a general law they might not be able to do so so as to satisfy the necessities of the case that might arise.
The amendment proposed by Mr. Hervey was rejected, and the section adopted.
The Convention proceeded to the consideration of section 6:
"6. The Supreme Court of Appeals shall consist of three judges, any two of whom shall be a quorum. They shall be elected by the voters of the State and shall, at the time of their election, be at least thirty-five years of age. They shall hold their offices for the term of twelve years, unless sooner removed in the manner prescribed by this Constitution."
MR. BROWN of Kanawha. This section provides for the number of the judges of the court of appeals. That number is fixed at three; which may be regarded perhaps as a very small court, yet as large as the committee thought advisable in this State. It is difficult to reduce it below that number and yet circumstances would not allow us to go beyond that. In the present boundary of the State there are now only two of the judges of the court of appeals. We are therefore increasing the judiciary in that particular one judge. To have less than three it would be difficult ever to come to a decision, with one on one side and one on the other. That may often happen anyhow in having a quorum of two; but is one of the difficulties which cannot be avoided unless you increase the court to four, which would cause some difficulty again by having two on each side. The Convention has endorsed the age of thirty-five and might not be disposed to change it with regard to this court. The judges of courts of appeals are generally expected to be men of greater years, larger experience and more knowledge of law than those elected for the circuits. The labors of the court of appeals it is known are upon matters of record exclusively, but they determine the law for all the citizens of the State. Therefore it is that greater time is necessary and greater deliberation, and few are the causes for decision. They shall be elected by the voters of the State. In this there is another and new principle asserted here. At present under our constitution the judges of the court of appeals are elected by the districts, there being, I believe, in the state - six or seven, I don't know which - that constitute the number of the court of appeals; each of which districts elects one of the judges. Inasmuch as the State we will have is greatly diminished in size it is proposed to increase the number of judges in that area and it was thought most wise and prudent to make these three judges elective by the people at large in the whole State. Inasmuch as they do not come from any particular locality it will be their duty to act on the cases that come from all parts of the State. Their duties and labors are the things in which every citizen of the State is alike interested. Therefore it was highly proper their election should be made by the people at large.
There is another advantage that is urged - perhaps very justly so - in favor of it, that in having the whole state at large to select from, you are not confined to select your judge from some particular locality, where you might not be able to find a competent man, but having the whole State you can command the best merit in the State. It is a consideration that is not to be lightly cast away or disregarded.
Those are the distinctive ideas that are contained in the first and second clauses. The other provides for the term, twelve years, one over which we have had much discussion in relation to the circuit judges. What may be the wishes of the Convention in that respect I am not able to determine; but one thing I feel convinced of that the term of twelve years for the supreme court is a very short term. The labors and duties assigned to this court are those of a scholar in seclusion. These judges have little or nothing to do with the people - ought, in fact, to have as little to do with them as possible. Their duties should be peculiarly to discover the truth in the trial of causes, and to deliver an opinion which not only settles the law as between the parties in the case but which determines it for all the people of the State. Longer experience and greater ability are more likely to be secured by the longer term, because the men who go upon this bench bury themselves to the world almost forever.
MR. POMEROY. I think very likely there will be amendments offered to this section, and therefore I move that the first clause be adopted.
The motion was agreed to.
The question recurring on the second sentence, it also was adopted without amendment.
MR. HAYMOND. I move to strike out "twelve" and insert "eight."
The motion was rejected.
MR. POMEROY. I move to strike out "twelve" and insert "ten." The amendment was rejected.
MR. STEVENSON of Wood. I move to strike out "twelve" and insert "nine."
MR. LAMB. I ask for a division of the question, whether "twelve" shall be stricken out or not.
MR. BROWN of Kanawha. Is it in order after we have voted down a higher number and a lower one, to insert a middle number?
THE PRESIDENT. The Chair is of opinion that they might test the house with any other number.
MR. STEVENSON of Wood. I call for the yeas and nays.
MR. SOPER. In the organization of this court, I think it is safe for the Convention to reserve to the people the same supervision. If from any cause it should result in the inefficiency of one or more of its members. By adopting this term of nine years and then a clause that one of their number shall be elected every three years, we will hold a control over the competency of that court so that we can make it what we contemplate it should be. I am therefore in favor of the amendment and hope it will be followed up by another one so as to classify these judges and have one of them elected every three years.
The vote was taken on striking out "twelve" and the Convention refused to strike out by the following vote:
YEAS - Messrs. Brumfield, Cook, Hansley, Haymond, Hervey, Hoback, Hagar, O'Brien, Parsons, Powell, Pomeroy, Stevenson of Wood, Stuart of Doddridge, Soper, Van Winkle, Walker, Wilson - 17.
NAYS - Messrs. John Hall (President), Brown of Preston, Brown of Kanawha, Birooks, Chapman, Caldwell, Carskadon, Dering, Dille, Hall of Marion, Harrison, Hubbs, Irvine, Lamb, Montague, Mahon, McCutchen, Paxton, Robinson, Ruffner, Sinsel, Simmons, Stephenson of Clay, Stewart of Wirt, Sheets, Taylor, Trainer, Warder - 28.
MR. LAMB. I would inquire of the chairman of the Committee on the Judiciary whether there is any objection to a provision for classifying the three judges so that one may be elected every four years?
MR. BROWN of Kanawha. No, sir; I have no objection. It is a matter that never occurred to the committee, and I was struck with the force of the suggestion when it was mentioned to-day.
MR. LAMB. Then I would offer the following:
"Of the judges of the supreme court first elected, one shall hold his office for four years, one for eight years and one for twelve years, so that thereafter one shall be elected every four years."
I suppose under a provision drawn this way, they would be elected in this way and the tickets would designate the time for which each candidate was elected for.
MR. SINSEL. The usual way is to classify them by law. Elect the three for twelve years and they classify themselves by law.
MR. LAMB. The people might have some preference.
MR. SINSEL. Just elect the three judges and let them classify themselves by law.
MR. LAMB. Well, this contemplates that the people should determine; but I have no particular objection to the classification by law. It struck me this would be the simplest way to get at it.
MR. HERVEY. How is it possible to carry out that amendment? How can they determine which is elected for four, which for eight and which for twelve years?
THE PRESIDENT. How would you do it? - Say the largest vote has the longest term?
MR. LAMB. There is no difficulty. The people would write or print on the ticket the name of one man for four years, another man for eight and the other for twelve. I have no objection to the other way if gentlemen prefer.
MR. SOPER. I suppose the more satisfactory way would be for the judges themselves to determine by lot or agreement. The legislature will undoubtedly provide for it. That, I believe, is the usual and better way.
MR. HALL of Marion. I understand this proposition to elect the judges by the State at large: let it be provided that the man who has the most votes is for the longest term, and so on; and thus the people will determine who shall have the long and the short terms. I much prefer that to adjucating them by casting lots.
MR. HERVEY. I prefer the suggestion of the gentleman from Tyler. This is the plan adopted by the Senate of the United States. When a state is taken into the Union and senators are elected, they qualify and decide who shall have the long term by lot. The proposition of the gentleman from Marion might possibly be liable to this objection: two might have the same number of votes. That is possible - not very probable.
MR. SINSEL. Mr. President, the way I would have them classified: of those first elected, one, to be designated by lot, shall remain in the office four years only, one other to be designated in like manner shall remain in office eight years only the other will remain for twelve years, of course. You will find this as in document No. 1, section third.
MR. BROWN of Kanawha. I would ask the Clerk to report the provision in regard to the senate. I want to see the language adopted there. I think that might very appropriately be applied here, making the language run through consistently.
MR. LAMB. I would suggest, if there is any difficulty in determining the mode that we act on this proposition, and then an amendment can be inserted to determine the way in which the judges shall be classified.
MR. BROWN of Kanawha. I see no objection to the mode suggested by the gentleman. I think it is very well provided in the mode determined for the senate and that it would be well to keep up the form in the Constitution by using the same language precisely in relation to judges as in relation to the senate.
MR. LAMB. I have no objection to determining the classification in any language that gentlemen may prefer.
The Secretary read the provision adopted by the Convention for classifying senators as follows:
"The senators first elected shall divide themselves into two classes, the first being designated by lot in such manner as the senate shall 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."
MR. BROWN of Kanawha. I believe I prefer the plan suggested by the gentleman from Marion. It is the most simple. I offer that as an amendment.
MR. DILLE. I prefer the amendment as proposed by the gentleman from Ohio. It seems to me there can be no difficulty in determining this matter. We let the people designate at the time they elect these judges whom they propose to elect for twelve years, whom they propose for eight and whom for four years. It seems to me that is the better way of determining to let the people do it at the polls whom they wish for each term. I think there would be less difficulty connected with it than in the mode proposed by the gentleman from Marion, from this fact that they might all of them get the same number of votes. If you leave the matter to the people, they can determine it; and if they have preferences, they can give them expression.
The Secretary reported Mr. Brown's amendment to Mr. Lamb's amendment, that the term depended on the vote received by each candidate, the highest vote the longest term and so on.
MR. SINSEL. The Convention for the last day or two, it seems to me, have been doing all they could to prevent judges from electioneering as much as possible, and this will hold out a strong inducement at the very first election to go round electioneering with all their might to see which will get the biggest vote. Now, will not this be much better:
"Of those first elected, one, to be designated by lot, shall remain in office four years and one other to be designated in like manner, shall remain in office for eight years."
Well, then, it gives judges in some localities this advantage over others. For instance, there was two men running in this end of the district where the population is much more dense: they might absolutely be inferior men; but the one running where the population was more sparse - well, these men in here would naturally receive the largest vote while the best man in all probability would only serve for four years.
MR. HAGAR. There is an idea suggested to my mind that it would not be fair to let the foremost have it twelve years, and so on, for this reason: the man who lives in the largest population is in that district, of course would get the most votes, because there is the most got in that district. It will be the case, of course, according to that man's election for twelve years is sure and so on down. I go again the amendment to the amendment on that ground.
THE PRESIDENT. Is the gentleman aware that the whole State will vote together on these elections?
MR. HAGAR. Well, that will not make it any better than to elect the three judges and let them divide by lot. It has been the common rule in such cases, so far as I have been able to judge in the past.
MR. HALL of Marion. There can be no greater hardship or more injustice in that mode than there will be in the fact that one man who may not get enough to elect him at all is not elected. It certainly is a fair way of getting an expression of the people whom they will farthest trust. No difficulty at all.
MR. STEVENSON of Wood. I think I do see some difficulty in the matter suggested by the gentlemen who oppose the amendment offered by the gentleman from Marion in the respects which they have mentioned; and I think myself probably the Convention will see that difficulty on a little reflection. Besides, the practice generally adopted, I believe, in most of the states, at least the working of such states as I am familiar with, is the practice of deciding these matters by lot. It would seem there should be some good reason for a practice which has become general. We have adopted this principle as far as relates to matters of this kind in our Constitution so far, that of deciding the different lengths of the terms of office of senators, I believe, by lot. That is another consideration, to keep up a uniformity of action in reference to such matters in our Constitution. I think we had better settle on the plan of letting these judges select by lot.
MR. HERVEY. Suppose three judges running for the long term receive nine-tenths of the vote of the State and there is but one- tenth of the votes cast for two of the three judges. Don't you see what an inequality would result? Suppose there was half a dozen candidates running for the long term and nine-tenths of the votes of the State was cast for those three judges; it leaves but one-tenth to be distributed among the other two. They may be elected by one-tenth.
THE PRESIDENT. The Chair would remark that it would make no difference as the three highest on the list would be the judges whether they were running for the long or short terms.
MR. HERVEY. Not according to the proposition of the gentleman from Ohio.
I see a difficulty in the matter pointed out by the gentleman from Brooke; and I am willing to accept, to avoid that difficulty, the amendment proposed by the gentleman from Tyler, and propose my amendment in this shape:
"Of the judges first elected, one to be designated by lot, in such manner as they shall determine, shall hold his office for four years; one to be designated in like manner, for eight years; and the other take twelve years; so that thereafter one shall be elected every four years."
MR. BROWN of Kanawha. I withdraw the amendment proposed by me.
MR. LAMB. I would remark that if the matter be determined by the vote, and the best men ran only for the twelve-year term, we should lose the services of two of them, since only one could be chosen. Under the amendment first suggested by me, there would be three distinct offices to fill. You might have all your best candidates running for the twelve years term and no candidates of that grade for the eight-year or four-year terms.
The amendment as just offered by Mr. Lamb was voted on as one proposition and was adopted.
The question recurred on the section as amended.
MR. VAN WINKLE. I will offer, to come in after "thirty-five years of age," the following: "but no person shall be eligible who has not served at least three years as a judge of some circuit court."
MR. SINSEL. It might be impossible to get a court.
MR. VAN WINKLE. I believe I will have to withdraw it. You may not make the first court. There is too much "secesh" in this country (Laughter). I had the future elections more in my mind.
The section was adopted, and the Secretary reported the next:
"7. The Supreme Court of Appeals shall have appellate jurisdiction only, except in cases of habeas corpus, mandamus, and prohibition. It shall have no jurisdiction in civil cases when the matter in controversy, exclusive of costs, is less in value or amount than two hundred dollars, except in controversies concerning the title of boundaries of land, the probate of will, the apportionment or qualification of a personal representative, guardian, committee, or curator; or, concerning a mill, road, way, ferry, or landing, or the right of a corporation or a county to levy tolls or taxes; and except in cases of habeas corpus, mandamus and prohibition, and cases involving freedom, or the constitutionality of a law."
MR. VAN WINKLE. I would like the chairman to inform us how far it differs from the present constitution.
MR. BROWN of Kanawha. I desire to say that the change the Convention have made in the first section seems to necessarily demand a change in the whole structure now of this section. The first section presented the whole judicial power to the legislature, to be disposed of by law as the legislature saw fit in appropriating it to the various courts that are established by the Constitution. By the change that was made in that section, the whole judicial power of the State is transferred directly by the Constitution to the courts.
MR. VAN WINKLE. Is it not the concluding sentence of the first section which provides the jurisdiction shall be prescribed by law, and that so far as this is concerned by this Constitution is retained, is it not?
MR. BROWN of Kanawha. Yes, sir; but now this section has been altered by this Convention and now the judicial power of the State is presented to these courts, and the question therefore arises now how far your legislature can confer the jurisdiction. Upon consultation with Judge Harrison on this subject last night, though I have not had an opportunity of consulting the committee, I have drawn this change in the language of the section to meet this case:
"The Supreme Court of Appeals shall have original jurisdiction in cases of habeas corpus, mandamus and prohibition. It shall have appellate jurisdiction in civil cases where the matter in controversy, exclusive of costs is of greater value or amount than two hundred dollars; and in controversies concerning the title or boundaries of land, the probate of wills, the appointment or qualification of a personal representative, guardian, committee, or curator, or concerning a mill, road, way, ferry, or landing, or the right of a corporation, or a county to levy tolls or taxes, and also in cases of habeas corpus, mandamus and prohibition, and cases involving freedom or the constitutionality of a law. It shall have appellate jurisdiction in criminal cases wherever there has been a conviction for felony or misdemeanor in a circuit court. It shall have such other appellate jurisdiction in civil and criminal cases as may be prescribed by law."
MR. BROWN of Kanawha. The Convention will perceive that under the structure of this section, the Supreme Court of Appeals shall have appellate jurisdiction only in civil cases above an amount specified and has original jurisdiction by inference, because it is not expressly stated. It has original jurisdiction by inference in cases of habeas corpus, mandamus and prohibition just as the circuit courts have on the same subjects. Habeas corpus is that writ which secures to all men their freedom when illegally detained. It is considered of high importance that that writ should be of original jurisdiction in both courts. These are the only cases in which those writs have original jurisdiction and properly belong to the highest tribunal. Again, the writ of prohibition - that is a writ which commands an inferior tribunal not to do a thing which it is attempting to do and has no right to do. So it will be perceived at once that these three writs are the highest writs known to the law and properly belong to the highest tribunal, and is the means by which that highest tribunal commands and controls the inferior tribunal to compel it to do what it ought to do when it places a measure to prohibit it from doing what it ought not to do. That high writ belongs to every freeman who is illegally detained without authority of law. It entitles him to be speedily brought into the proper forum and confronted with his accusers.
The great jurisdiction, however, that belongs to the supreme court, however, is: "it shall have appellate jurisdiction in civil cases" and in other subjects detailed. In regard to the appellate jurisdiction in habeas corpus, etc., it is necessary to have this as well as original, because if a man should be brought on a writ of habeas corpus before a circuit court and his rights denied, it becomes proper that the supreme court should have appellate jurisdiction from the circuit court for the remedy which the appellant might have demanded of the supreme court in the first instance. In cases "involving the constitutionality of a law," here is an addition. By the present Constitution of Virginia there is no prohibition. You have a criminal appellate jurisdiction in the court of appeals, an appellate jurisdiction in criminal cases in Virginia was in the general court, which was a court created by law, not by the constitution, and was held by the judges of the circuits when they all assembled together at the capital once a year. When that court was abolished the necessity of conferring that jurisdiction somewhere was apparent. That was done by law and the jurisdiction of the general court is, by a statute of the state conferred on the state court of appeals. Therefore, when we undertake in this Constitution to define the authority of this court of appeals you are obliged to give it the appeal jurisdiction which the court of appeals now has, but to find out which you have to go and find what the jurisdiction of the general court was; and to do that you have got to range through the whole decisions of the commonwealth from the earliest history to the present time. Then this provision I have inserted to cover that criminal appellate jurisdiction: it shall have appellate jurisdiction in criminal cases whereever there has been a conviction for felony or misdemeanor in a circuit court. "It shall have such other appellate jurisdiction in civil and criminal cases as may be prescribed by law." The latter clause being thought necessary because it is not likely. In the wit of man you could set down and define the jurisdiction of the general court in any set of words and not find out you had omitted something. I believe, however, convictions in cases of felony and misdemeanor will cover every species of crime known to the laws of Virginia.
MR. VAN WINKLE. The word "treason" you get in there. Treason is almost always named in most of these constitutions.
MR. BROWN of Kanawha. I have no objection to the insertion of it. Then the following clause, "It shall have such other appellate jurisdiction in civil and criminal cases as shall be prescribed by law" is a mere safety-valve for fear you have left out something in the Constitution without giving the jurisdiction to this court. If you should find you have not provided for this appellate jurisdiction, then you have no remedy and would have to go back and alter your Constitution to meet the necessity. A criminal jurisdiction here is only proposed to be given an appellate jurisdiction from the circuit courts - none direct from the justices of the peace to the Supreme Court of Appeals. In every instance the appeal must be first from the magistrate to the circuit court and an appeal from the circuit court to the supreme court in criminal cases.
In the first clause of the first section of this report the Convention have determined that all the judicial power of the State is to be vested in these courts that are named. This makes it necessary for the Constitution to apportion that. You have provided in the section preceding for the jurisdiction of the supreme court. Now, let us dispose of the jurisdiction of the circuit court. I have done this in these words:
"The circuit courts shall, except in cases confided exclusively by this Constitution to some other tribunal, have original and general jurisdiction of all cases at law, where the amount in controversy, exclusive of costs, exceeds twenty dollars, and of all cases in equity, and of all crimes and misdemeanors, and of all controversies concerning the title or bounds of land, the probate of wills, the appointment or qualification of personal representatives, guardians, committees or curators, and concerning mills, mill dams, roads, ways, and ferries, and in cases of habeas corpus, mandamus and prohibition, and cases involving freedom, or the constitutionality of a law, or the right of a corporation, or of a county, or of the supervisors thereof, to levy tolls or taxes.
The circuit courts shall have appellate jurisdiction in all cases, civil and criminal, wherever judgment has been rendered by any inferior court or other tribunal, or by a justice of the peace, except that no appeal, writ of error, or supersedeas shall lie where the judgment is rendered by a justice of the peace, in assumpsit, debt, detinue or trover, and is for less than ten dollars.
And the said circuit courts shall have jurisdiction of all such other matters as shall be prescribed by law."
If there be any case not covered by that, I am at a loss to discover it.
I will move the adoption of the 7th section as far as it is confined to the jurisdiction of the court of appeals as a substitute for the 7th section as it stands in the report of the committee, the object of which is to embrace precisely the same subject with the addition of the criminal jurisdiction, etc.
MR. VAN WINKLE. I think the section as the gentleman now presents it is an. improvement upon the other even if the change had not been made that he adverts to. It is, at any rate, more specific, and I think will be less liable to misinterpretation. I am therefore decidedly in favor of it as a substitute for what is here. As a mere matter of language, the first sentence might say they should have both original and appellate jurisdiction, but that is rather a matter for the Committee on Revision. I am in favor of expressly giving the appeal in criminal matters as he has it there, and I may say I decidedly prefer it. I suppose it could be open to amendment in minor particulars, though I am not disposed to change it. In that respect I think in reference to the smaller nature of our transactions in amount I think that two hundred dollars would suit us less than five hundred did under the old constitution. The object would be to give an appeal in all cases that you could give them; and I know the fact that one reason why the former court of appeals was crowded so was the jurisdiction of five hundred dollars. I believe I would be in favor of the section as a whole.
The Presiding Officer (Mr. Caldwell in the chair) stated the question to be on the substitute offered by Mr. Brown. The question was submitted and the substitute adopted.
MR. BROWN of Kanawha. Then I would move as an additional section this, to cover the jurisdiction of the circuit courts:
"The circuit courts shall have original jurisdiction of all cases in law and equity, and of all crimes and misdemeanors not confided exclusively to some other tribunal."
That simply determines that wherever the Constitution has not given exclusive jurisdiction to some other tribunal that this circuit court shall have original jurisdiction of the subject of the matter. It may be concurrent unless it is exclusive.
MR. VAN WINKLE. I was going to ask the gentleman from Monongalia who raised that question two or three times when we were on the justices of the peace, and I constantly assured him it was intended to prevent a concurrent jurisdiction. It may be for consideration further whether that concurrent jurisdiction is to go down to one dollar, or one cent. I would suggest fifty dollars.
MR. BROWN of Kanawha. I do not fix any amount. I think it ought to be twenty dollars, as the constitutional limitation for a jury. It might be amended then in this way:
"The circuit courts shall have original jurisdiction of all cases in law and equity over twenty dollars and all crimes and misdemeanors not herein confined exclusively to some other jurisdiction; and they shall have appellate jurisdiction in all cases civil and criminal wherever judgment has been rendered by any inferior court of justices of the peace to - "
There it will have to be limited again above ten dollars, as I understand the proposition in regard to justices' jurisdiction is that no appeal is to be allowed below ten dollars. I will so alter this.
MR. LAMB. I would ask the chairman of the Committee on the Judiciary to consider this proposition, whether the circuit courts should have original jurisdiction in cases involving the right of a corporation or county to levy tolls or taxes and involving the constitutionality of a law, whether the amount involved in the particular case may be five dollars or twenty dollars. I have seen in cases of this character, when I was practising law, a fifty-cent case which involved the most important rights perhaps of a municipal corporation. And in reference to that same difficulty, it strikes me the right of appeal from a justice of the peace ought to be modified. The right of appeal from a justice is now restricted rigidly to a case where the value involved between the two parties shall exceed ten dollars; and although the value in question in that particular case may not exceed ten dollars, the case itself may involve the right of a corporation or county to levy tolls and taxes and the real question decided may settle the matter involving a hundred thousand dollars. So far as the decision of the justice of the peace may affect the right of a corporation or county to levy tolls and taxes, or may involve the constitutionality of a law, it strikes me it ought to be able to appeal without reference to the amount involved in the particular case.
MR. VAN WINKLE. I certainly should have no objection to making that alteration in the articles or sections in reference to the jurisdiction of justices of the peace if the constitutionality of a law comes into question or where the right of a corporation to impose tolls or taxes was involved. It certainly is not the proper tribunal to decide it as the last resort; but I would suggest, on the other hand, that cases of that kind, even if they originate with justices of the peace, might be allowed to go from there up. But I should like to mention here an incident in the history of another state, the facts of which were brought to my attention by a distinguished lawyer who was afterwards a member of the court of appeals of that state - and I do not know but he is now. When the State of New Jersey established, or revised, its system in reference to justices of the peace - my impression of the jurisdiction was then a hundred dollars - I believe it is one hundred and fifty now - but what ever it was - they provided that the appeal would lie direct from the justice of the peace to the court of common pleas, from that to the circuit courts and from them to the supreme court. They had no court of appeals, of that name, at that time. He told me that for the first two or three years the docket of the supreme court was crowded with these appeals from the justices of the peace, so that other business was hindered and interrupted; and he suggested that Chief Justice Pennington - the father of this Pennington whose name we are more familiar with, who was one of the broad seal members of New Jersey and was a few years ago Speaker of the House of Representatives. He, at that time, chief justice of the state, sat down to write a book, which he called "The New Jersey Justice," in which he brought in all those questions that had been determined in reference to the jurisdiction of justices of the peace - in reference to the practice before justices of the peace. He incorporated all these decisions in his book, adjusting them and arranging in such way as to make them very easy of reference. This gentleman told me that after that there was scarcely such a thing heard of as an appeal coming from the court of common pleas. I believe that appeal went then from the common pleas to the circuit courts precisely as they come here from a justice to our county courts formerly: that is to say, the whole case went up and another jury was had if it was a jury case.
I would suggest that cases of the kind indicated by the gentleman from Ohio should have a further ventilation if the circuit courts do not decide them to the satisfaction of the parties. I would suggest to the chairman of the committee, if he desires it, whether it would not be well to pass this by until the afternoon session and give him leisure to draw it up in such way as to embrace suggestions that have been made. It would not prevent us considering subsequent sections; and the gentleman would then have time in the dinner interval - I do not know whether it would give him any time, either.
MR. BROWN of Kanawha. I very fully concur in the suggestion of the gentleman from Wood. I had drawn this which I will read for the consideration of the house though I adopt the suggestion of postponing this to the afternoon or tomorrow morning.
"The circuit court shall have original jurisdiction of all cases in law and equity where the amount in controversy exclusive of costs exceeds twenty dollars, and of all crimes and misdemeanors not herein exclusively confided to some other tribunal, and appellate jurisdiction in all cases civil and criminal in which judgment has been rendered by any inferior court or justice of the peace, except that no appeal in such cases shall be allowed where the judgment is for less than ten dollars."
I confess very candidly that in thus attempting a limit there is great danger there may some cases arise that you have not covered, and that suggested by the gentleman from Ohio may be one of them. My further impression is that a justice of the peace would not have jurisdiction of that case. Therefore those clauses giving this court both appellate and original jurisdiction of everything not exclusively confided to another tribunal would secure these courts' jurisdiction.
MR. VAN WINKLE. The language might be to give them jurisdiction from justices of the peace. We changed it in the other. You could take that and change it in a few moments if it was necessary. Let it be passed by, and if the gentleman is not ready with it this afternoon he can bring it in the morning. He will have more time for reflection on it himself and can arrange it better.
By general consent, further consideration of section 7 was deferred, and the Convention proceeded to consider section 8, which was reported by the Secretary:
"8. When a judgment or decree is reversed or affirmed by the Supreme Court of Appeals, every point made and distinctly stated in writing in the cause and fairly arising upon the record of the case, shall be considered and decided, and the reasons therefore shall be stated in writing and preserved with the records of the case."
MR. BROWN of Kanawha. In regard to this section I desire to say that it is a new feature in our Constitution and to my mind is one of very great importance. To the lawyers the question is more familiar from this: A trial is had before the circuit court and a verdict is rendered; the exceptions are taken in the course of the trial and rulings of the court made. For instance, say ten exceptions are taken upon as many distinct several propositions of law. Those exceptions are preserved and the case is decided, and the party taking those exceptions against whom the judgment was rendered takes an appeal to the Supreme Court of Appeals. It may, as the law now stands, turn out that every one of those exceptions may have been well taken; that the opinion of the judge was wrong in every single one of the ten rulings. The reversal of them may involve a fundamental principle which would forever settle and determine the case; and yet the court of appeals can reverse the judgment on some incidental matter that passes observation; some quirk; some defect in the petition some clerical error, which is a defect when discovered but never was discovered before. On this the court of appeals can adjudge the decision all over again made in the case and upon which the case turned, and return it back to be retried without any enlightenment on the principles involved. And then the party is put to the necessity of going all the way back to the court below to have all these cases tried and determined.
The object of this is to require the court of appeals to decide every case that is fairly stated in writing on the record and arises properly out of it, so that when the case comes back to the circuit court the judge may there have the judgment of the supreme court on all points of law that arise in the case and know what he is doing and save the party the second trial. A similar provision is in Kentucky, and I first became acquainted with it there, where they found the same difficulties and where they provided that their supreme court should decide every point that is made fairly in the record; and if there are fifty of them they shall be all decided and determined, whether when the case is once adjudged by the supreme court or finally.
There is another amendment I propose to this growing out of the provision of our present constitution requiring that the reasons for the decision of the court of appeals shall be stated in writing; to state to the judge in sitting the matter of the argument, why he decides so and so. The result has been under it that it is bringing down the judges; that every judge is writing a book in every case almost. Reports of the court of appeals are becoming so voluminous that they are a burthen; and that by getting such elaborate arguments before the judge in the cause, all different to some extent you have confusion worse confounded. So that it is a burthen. I have therefore proposed to avoid that difficulty by inserting that the reasons shall be stated "concisely and briefly." The object is to get the substance of it and not have a book written in every case. I think the amendment is both necessary and proper.
MR. VAN WINKLE. I concur in the remarks of the chairman of the committee. I have had more than one case in which I was concerned go to the court of appeals after being elaborately argued in the circuit court, and then again elaborately argued before the court of appeals involving no question about which even the judge of the circuit court was in doubt about but decided so that the case would be sure to go up because he thought it necessary the highest tribunal should pronounce upon it; and when it got up there some little flaw was found in it and was decided on that ground and the public none the wiser and the lawyers of the inferior tribunal had no guide by which to go in future cases. I should be in favor of the section, I think, as it is reported.
The amendment was agreed to, and the question recurring on the section, it was adopted.
The Secretary reported section 9:
"9. Special courts of appeals, to consist of three judges may be formed of the judges of the Supreme Court of Appeals, and of the circuit courts, or any of them, to try any case, or cases, which may come before the Supreme Court of Appeals, in respect to which any of the judges of said court may be so situated as to make it improper for him to sit on the hearing thereof."
MR. VAN WINKLE. I wish to offer an amendment, if I may anticipate the chairman a moment. I think the creation of this special court of appeals under the former constitution was owing to the immense accumulation on the docket of the old court of appeals; and I do not think that starting afresh here we should create a special court of appeals. I have been endeavoring to suggest a matter. I have written it here hurriedly:
"When any judge of the Supreme Court of Appeals is so situated in regard to any case pending before it as to make it improper for him to aid in the trial of the same, or is any other disability, the remaining judges may call to their assistance a judge of the circuit court who shall act in the Supreme Court of Appeals in the case to which such disability relates."
MR. BROWN of Kanawha. I do not perceive any great objection to the amendment proposed by the gentleman from Wood. It to all intents and purposes constitutes a special court and leaves the judges to determine the necessity of it instead of the legislature. The section as it is here is copied from the constitution as it now stands substantially, and is a mere provision, knowing it would often happen that some of the judges of the court of appeals could not sit and try causes before it because some of them will be found to have been counsel for clients whose cases will come up to them. The necessity was then to have somebody that could try them, and one advantage in having a special court of appeals is that those cases after they are tried by the special court are hardly ever regarded as authority. The law of the case is determined as between the two litigants and there settled forever, but the decision of it is regarded as of little authority because it is as called only for that occasion. Well, that to some extent must be the case where cases are tried by some special court of the kind suggested by the gentleman from Wood.
MR. VAN WINKLE. It is to be the court of appeals, no matter who sits on the bench. If one judge is unable to attend they invite the circuit judge to come and sit there.
MR. BROWN of Kanawha. Suppose they were all three so situated that they could not try a case ? It may very easily happen.
MR. VAN WINKLE. If they were all in that condition, it would still be the court of appeals.
MR. BROWN of Kanawha. By the amendment it would, be a court of appeals, and yet composed of not a single judge of the court of appeals, and therefore would not have the weight without the men to give it weight. I do not feel very particular about it. Both are efforts to accomplish the same end, and either will accomplish the end.
The vote was taken on Mr. Van Winkle's substitute, and it was adopted.
The 10th section was reported:
"10. Judges shall be commissioned by the governor, and shall receive fixed and adequate salaries, which shall not be diminished during their continuance in office. The salary of the judge of the Supreme Court of Appeals shall not be less than two thousand and five hundred dollars and that of a judge of the circuit court not less than two thousand dollars, per annum, and each shall receive a reasonable allowance for necessary travel."
MR. HERVEY. I move to insert "or increased" after the word "diminished" in the first clause.
The amendment was agreed to and the first sentence thus amended was adopted.
MR. BROWN of Kanawha. Mr. President, the section follows pretty much the same provisions as are in the present constitution except the salaries of the judges of the court of appeals are reduced from three thousand to twenty-five hundred dollars. The distinction in the opinion of the committee between the labors of the two offices and the responsibility attaching to the two being as here indicated, rather than as indicated in the former constitution, by the salaries affixed to the offices. I do not know whether it is the intention to take vote on the salaries of these two courts at the same time or separately. We have two different classes of officers to deal with.
THE PRESIDING OFFICER. I would suggest taking the salaries of the supreme court judges first.
MR. BROWN of Kanawha. I have only to say this on that subject, that the salary of twenty-five hundred dollars for judges of the court of appeals, in the opinion of the committee, is the lowest amount to which they believed these salaries could be reduced and at the same time secure that learning and ability that this bench ought to possess. Its importance is understood by everyone when it is considered that it sits not merely to discharge questions of right between the two individuals who are litigants but that its decisions are to become the law of the land, to govern and control all other litigants in like cases. Further not that this court is to fix the law simply but the judges who compose it must have the learning and ability and the integrity to deliver the law as it really is. For they are not to make the law, but declare the law; and their declaration is the final declaration of it; that when it is done, it should be so done as to certainly do justice to the parties in the trial but give satisfaction to the people; because whenever the people are dissatisfied with their supreme tribunals, then they lose at once their regard and esteem for the laws of the land and for the tribunals that deliver them; and to strike at that is to strike at the foundation, because in a republic whenever the people lose their regard for the laws and tribunals of the country, then the government cannot very long exist; they are then tending rapidly towards either anarchy or monarchy. The great modern idea is, was announced by the gentleman from Logan the other day, that in this country the law of the land rules supreme.
MR. VAN WINKLE. That is the theory; not the fact.
MR. BROWN of Kanawha. It is a law which is mandatory on the people; it is the supreme law that is the government, and it is the authoritative declaration of that law that this tribunal is to make. It is therefore one of the most important, one in which every citizen has a deep interest - a peculiar as well as general interest. I think, therefore, it will be found in securing the parties proper and requisite to conduct this office as it is expected to be done that the salary allowed is the lowest that ought to be fixed.
MR. POMEROY. I move to strike out the words "not less than." I do not believe in a sliding scale. Let us know that the salary is fixed when we go before the people so we can tell them exactly what the salary is.
MR. SINSEL. Mr. President, I have some objections to this section. It is true we are considering one part now, but at the close we find another clause allowing mileage. Now before the salary we determine upon here, I hope the Convention will fix it so that the country will know exactly what we have to pay. If twenty-five hundred dollars is not enough without mileage, why add what is necessary and fix it so there will be no slip either way. But I think myself without mileage $2500 is a pretty big fee, big allowance. You will recollect a few days ago here it was advocated that the makers of the laws, the legislators ought not to have over three dollars a day, and it was so provided. This was advocated by the gentleman from Kanawha, who now says more than double that ought to be paid to the interpreters of the law; that the man who interprets the law ought to have more than double the man who makes the law. Well, I can see no reason for that. I am opposed to little contemptible allowances; but, at the same time, I am opposed to exorbitant prices. It was advocated also here that the honor and so on was something to be considered in legislation. Why not equally something in the interpretation of the law? It is more honor to be a judge than to be a representative; and if you should forfeit him all the emoluments for the honor to be a representative, why should not you lose something to have the honor of being a judge? Now the representative, suppose he was elected for a whole year, to receive his pay for a whole year, would only receive $1095 a year. The judge who is to give his whole services would receive $2500. Now, in order to test the sense of this Convention, I will move to amend the amendment of the gentleman from Hancock by fixing the salary at $2200. Two hundred dollars will pay his traveling expenses and then he can draw a thousand semi-annually, and I think it is a pretty liberal allowance.
MR. POMEROY. I would prefer the vote on this amendment be taken and then let the gentleman offer his. Let the sense of the Convention be taken on this matter, that we will fix the salary definitely; and then when he makes his motion to strike out $2500 and substitute $2200 we have a definite proposition.
MR. SINSEL. If you will make it to include $2500, I have no objections.
MR. VAN WINKLE. This has no relation at all to the amendment proposed by the gentleman from Hancock. We are constantly embarrassing ourselves in this way.
MR. SINSEL. I will withdraw the motion for the present and let the Convention vote on his.
MR. LAMB. The amendment of the gentleman from Hancock necessarily involves the striking out of the words we have already adopted in the first clause - that the salary shall not be increased or diminished during continuance in office. If we fix the salary at $2500, those words, of course, must be stricken out or they will have no effect whatever. As to the ability of the legislature to change it, the gentleman from Hancock will recall the force of the provision we have already adopted. After the office is full the salary cannot be changed. The legislature could not increase it. So it only applies after the termination of the offices of the incumbents, whoever they may be. Then before the office is filled, if the legislature shall have found this to be inadequate let them have the right to act according to the lights which are then before them. This is a very small matter in one aspect of the case but a very important one in another. We have three judges of the Supreme Court of Appeals; and even if the plan as suggested by the gentleman from Taylor be adopted our saving will be $900 a year, while we may run the risk of reducing the salaries so low that you cannot fill the office with any except a set of pettifogging lawyers that would be a disgrace to the position and in whose decisions and rectitude the community would have no confidence. The risk we run is out of all proportion, it strikes me, to the saving that can be effected by a measure of this kind.
THE PRESIDING OFFICER. I understand the question to be the striking out of those words, not upon the amount.
MR. LAMB. Well, with the provision which has been adopted, attached to your first clause, that the salary is not to be increased during the continuance of the party in office, I do not see that the amendment of the gentleman from Hancock will have much to operate upon. We can only operate in this case. During the existence of the first term of office, if the legislature should find by experience that the salary was inadequate, it might prevent you from profiting by the results of that experience. I think you may leave this matter to the legislature. There will be in the legislature members who will be disposed to make motions of this kind in order to carry out the impression that they are the peculiar advocates of economy. But if the legislature finds the exigency does exist, leave them at liberty to act as they may have found by experience it is necessary that they should act in order to secure the proper constitution of your court of appeals. A great deal, gentlemen, will depend on that. A great deal will depend on having judges in your court of appeals in whom your people will have full confidence and judges who will do honor to the office.
MR. POMEROY. I deem a word of reply necessary. I do not wish to stand before the world with any particular tenacity as the advocate of saving to the people; but I want to go by principles that are right, and act consistently throughout. And, gentlemen, that is the very thing. I do not want the legislature at the end of ten years to say the judicial salaries are too low. I say there is not even a possibility of $2500 not being enough. I only say I do not want this sliding scale. If it was to be. I would prefer to insert the words, "not more than $2500." But we are as well competent to decide that matter as the legislature will be as long as the world stands. Let us say it shall be a certain amount - what we believe to be right and not leave this sliding scale. I want these three words stricken out. If it is wrong for the legislature to run salaries up, let us say so. If they believe they ought to run them up they can vote for this provision. What I want to settle is that it shall be a fixed amount.
MR. VAN WINKLE. "The question presented, as I understand it, is simply, shall the Convention permanently and positively fix the amount of the salaries of these judges - for while the principle applies to the circuit judges as well as the court of appeals, shall the Convention permanently and positively fix the amount or leave the legislature at liberty to act upon it under any circumstances whatever. Most certainly if I thought the Convention would attach an adequate amount of salary to the office I should be in favor of the legislature being deprived of any power to act upon it. I hope or expect to have something to say on this subject when the amount of salary comes up. My inclination is to admit the amendment of the gentleman from Hancock in reference to both classes of judges because I would keep the two departments of the government - legislative and judicial - as far apart as possible. I do not wish to have one in the power of the other in any way. I would suggest another difficulty. Let us suppose this salary is too low and you fix it that it shall not be increased or diminished during the term of service. Suppose the first judge goes out at the end of four years, and in the meantime, why, the legislature have provided for an increase of salary, or a diminution, what is the consequence? Here you would have one judge receiving a higher salary than his fellows, and they would resign and then we must have the whole election over again. It strikes me in case of these other provisions the Convention had better fix these salaries permanently. I want to say I am in favor of getting adequate salaries but I wish them to be fixed permanently so the judges will not have any favors to expect from the legislature and I believe that it will be better that it is so. If there was any reason why these salaries should be fixed at a very low rate - which I do not perceive, however - it might be that the legislature might be authorized to raise them when better times come. But I apprehend that we will not give a salary that will admit of much diminution at any time, and unless we give higher than is named here, we certainly are not. I am in favor of the amendment for the reason stated.
MR. BROWN of Kanawha. The objection of the gentleman from Hancock to the section as it stands, as I conceive, is a distinction without a difference; it effects nothing. I regard a salary fixed here as the minimum. The legislature will never venture to raise it a dime. We have lived under the present constitution for ten years with this clause in it precisely, and they have never attempted to increase the salary; and very certain it is that had they done so, one universal hue and cry would have scared half the legislature to death. That is to say, not exactly the extinction of animal life; something of political. So that the simple question of raising or diminishing - or raising it - is not changed in my opinion by the amendment proposed. It might have effect, however, on the subsequent part of that sentence which I regard material and proper: "and each shall receive a reasonable allowance for necessary travel." Judges are supposed to perform that universally in the discharge of their duties of office, so far as concerns the labor of discharging and determining the questions before them; but inasmuch as it is, suppose they will not always live exactly in the same town but that they will go from various sections and that some will be nearer the capital and some farther from it; some will have a railroad to travel on and some a mud road; some by steamboat, some horseback, to get to and from the capital, and that their travel and expenses will be unequal, it is only fair that each should be paid for his necessary traveling expenses. Now I understand that when members of the legislature are paid a per diem, they are equal in that respect; that it is not thought at all unequal, that members coming from different parts of the State, by different means of travel, different distances and conveniences and inconveniences, that this should be equalized by a compensation based on the distance traversed - mileage. This is simply to indemnify for the time, the expense, the fatigue and risks of travel. The gentleman from Taylor will permit me to remark that I distinctly stated when the pay of the legislature was under discussion that I regarded three dollars as no pay to any man who was fit to be a legislator, and any man who went to the legislature for the purpose of making money out of his office ought not to be allowed to go there. I stated that I understood and expected that three dollars a day would about pay a man's expenses while attending to a public duty and that he worked for nothing. I think so still. When I serve in the legislature, I am content to take that amount to meet my expenses.
THE PRESIDING OFFICER. Bear in mind there is a proposition made by the gentleman from Taylor.
MR. BROWN. Very well; I will defer to another time to notice that. I think it is best to let this stand as it is.
MR. STUART of Doddridge. I am opposed to striking out the words the gentleman has indicated; but I am willing, for one member of this body, to experiment a little; and if by experience we find the salaries too low to command the services of our best men, I think it ought then to be in the power of the legislature to increase these salaries and it will affect my vote very materially on the salaries that are proposed. If they are too inflexible, I shall be compelled to vote to make them pretty large; but if you will let us experiment some, try a reasonable salary and leave it in the power of the legislature to enlarge the salary if it be found too low to command the services of our ablest men.
The question was taken on Mr. Pomeroy's motion and it was agreed to.
The question recurred on fixing the salary for the Supreme Court of Appeals.
MR. SINSEL. I moved that we fix it permanently at $2200. It has been argued here over and over again that in order to get the best men we must have a large salary. I will admit that is more desirable. But let us look back a few years. I recollect very well in our county, the circuit in which I lived, of which Judge Duncan was the judge. Some members of the legislature got a little crusty with him and they concluded they would so legislate as to throw that man out of office, cause him to resign, get rid of him in some way; and although he had a large district, more labor to perform probably than any judge in the state, yet in order to carry out their plan towards him they got up in the legislature and made an effort to include other counties in his circuit and add additional labor to him. Well, what was the result? Why he felt incensed at it and resigned his judgeship. He was then receiving $1500 and traveling expenses. Immediately, sir, the best lawyer that was in Virginia, now one of the court of appeals, applied immediately. The governor of the state appointed him at $1500 per annum - Judge Lee; the best lawyer in the whole western part of the state, and not excelled by any in the state. There we have a practical illustration of the best material in the whole country went immediately for the position at a salary of $1500. I do not now recollect what the court of appeals got at that time; but you will always find the best material willing to accept these positions. How often do we see the best material in the whole country seeking position in the legislature? What is it for? So far as my experience has gone, it is that they might do a public service and leave a name associated with the service of their country. If we pay this officer before us $2200, he will probably live one-third, perhaps one-half, his time at home. If there are three courts held in the State he will surely be one-third of his time at home. Well, the $200 will pay the additional expenses. Then he will receive the net sum of $2000 for his services. If he has only a moderate family he can save $1500 of that unless he just goes and spends it any way. I know very respectable families that live on $500 a year. But let him go, even half of it, twelve years; he would save $12,000 net - a pretty handsome sum, and I assure you the best lawyer will accept it. Add to that the honor, which is no inconsiderable consideration. So I am in favor of the $2200.
MR. HAYMOND. I move to amend the amendment of the gentleman from Taylor by inserting $2000 - to strike out the $500. It appears to be the opinion of gentlemen that we cannot get the best men unless we give a large salary. That is not my opinion. I am satisfied the best men in this State can be had for $2000 and a little less. In looking over the proceedings of the Legislature of Ohio, I see some years ago the judges of the supreme court got $1800. Well, at a time when everybody thought they ought to have large salaries it was increased to three thousand. But I see now, sir, there is a bill before the Legislature of Ohio to allow them only $2000. They have seen the $3000 was too much and $2000 a plenty. I have no doubt we can employ the best talents in this State at $2000. Men like to be judges. I am therefore, sir, for reducing their salaries to $2000. I think there will be no difficulty in obtaining the best men. I am in favor of offices hunting the men to fill them. I am opposed to politicians hunting offices and salaries. I wish to see a new era started in this country. I therefore, sir, am for low salaries. This government has been nearly ruined by high salaries for the last five or six years. Salaries have been increased both in state and general governments. What has been the cause of it? Rebellion throughout the land has taken place of peace. But for high salaries, sir, I have thought it best to go in for low salaries and our country and our country's cause.
Mr. Brumfield called for a division of the question - vote on striking out first.
MR. VAN WINKLE. Merely a division on striking out and inserting. Probably the best way. As I insisted the other day, the costs that are taxed in the bill of costs are not the whole expense of a lawsuit. So I say now, the expense of this court of appeals does not consist in the salaries of the judges and clerk. What an institution of that kind is to cost a people will depend far more on the purity and business tact with which the business of the court is transacted than on the amount of a salary you pay the judges. If you get into that court men of competent abilities, men of industrious and business habits in their profession; men who will thus go on and do business and decide cases, the saving to the community at large can hardly be calculated. If, on the other hand, you get some of those gentlemen whom the gentleman from Taylor seems to think it would be well to have there - who go there for the office, or the honor of it, or the pay of it - who take a small sum - much less than they could earn in their profession - the business of the court will be delayed, the decisions not relied upon by the bar when they get them - why, sir, the court of appeals may cost you a great deal more than you can calculate.
In reference to the sum proposed: there has been some whispering around that I was trying to make myself pass for the friend of the people. It may shock some of my good friends, but I just want to make the remark that I think the people are a little too stingy for their own good (Laughter). I have some knowledge of what it costs a man to live, particularly what it costs a man to live who has got to have his brains at work on something much more engrossing than dollars and cents. I should have been disposed to raise this salary above the amount the committee have fixed; but in the present condition of the state and people, believing the consequences of this war would be felt not only for the present but for several years to come, I am willing to leave it at the amount fixed by the committee. I have had some experience with living on salaries - some experience of maintaining a household in this western part of the State. I think I speak understandingly upon all these points. I have something to govern me, and though I do not intend to detain this Convention with minute calculations, yet I think the sum proposed by the committee is as little as ought to be tendered to a judge of so important a tribunal. In the first place, the amount is less than the gross earnings he would be able to make as a lawyer. This will be the judge's gross earnings and he will have all his expenses to pay out of it. He will have to buy books for his own use to keep for his use at home, and some other expenses such as a practising lawyer has, and after that is all paid he will not have as much as the net income of an industrious lawyer in good practice in the City of Wheeling, in Charleston and perhaps other points in this State. In these places living is higher, and this court of appeals will have to be held at the capital of the State, I suppose, or some other prominent place where the price of living very rapidly counts up. This judge, if he has a family - as I hope he will have - for that is some security for him, for his family has to be maintained at home. There is his household, all his household expenses going on. If he rents a house, the rent is to be paid just the same as if he was there with his family; got to maintain his table, his household furniture and everything of that kind precisely the same, and then he has to pay his board at a hotel, and probably a costly one, when at the seat of government. Now, these are considerations that some attention ought to be paid to. The question is here, not how much a man can live on - that ought not be the question. Everybody in this world that I am acquainted With looks to laying up a little, to make some provision either for his old days or for his family. If his family are young, they are destined to be more expensive as they grow older. A man going into business, if he does not, with due industry and economy have something saved at the end of a year, has very little inducement to continue in business. If he is a man who is willing to live just from hand to mouth rather than exert himself, he is not a man calculated to conduct an important business or to sit on the judicial bench. You want a man of more energy and industry of disposition than that amounts to. This salary is reduced from your present constitution, and circumstances in the west have so changed within the ten years as to make a salary of the description that was given there under an average. I believe they made the judge of the Richmond court a salary higher than the others because living there was more expensive. When the price of wheat per bushel at Richmond was one dollar it was 60 cents at Parkersburg. All our property was valued at about the same proportion. You might take a farm with the same quality of land in the same repair precisely the same style of buildings and every other. That farm there might be worth ten thousand dollars; here probably six thousand. At that time the Baltimore & Ohio Railroad had not penetrated to this state, nor, of course, the construction of the Northwestern Virginia Railroad commenced. But the effect of connecting those works with the Ohio River has been to raise the relative prices of property in the west, and I apprehend if the price of wheat is one dollar at Richmond it will beat least 80 cents on the Ohio River. Just about the difference of transportation. Well, if this is true then the cost of living here has increased since this constitution under which we are now living was made thirty-three per cent; and I think the experience of gentlemen will bear me out in it that it is much more costly to live here now than ten years ago owing to the very fact that we are deriving that benefit from these railroads which have brought up western prices nearer to eastern. It is decidedly a benefit to us, but when we come to draw the money to pay for things we must realize that it takes just that much more to go around than it used to. Twenty-five hundred dollars may have been a high salary for a judge of the court of appeals ten years ago, but the indications are it would be no more than proper at this time; and so of other judges. They cannot live now on what they could at the time Judge Duncan was receiving $1600. Nor does any man suppose the $1500 was an inducement to Judge Lee, who was a wealthy man. The office was one he felt himself peculiarly qualified for. His mind was one of those peculiar minds adapted to the judgment of causes, and he desired to go into the office. The salary was fixed beyond his control; he could make no bargain; he could take it or leave it; and being well off and desirous to fill such a position, and the sequel abundantly illustrated that he had great fitness for it. I hope that we are all agreed in everything that has been said here upon the importance of a good judiciary. Gentlemen should remember that it is the highest court in the State. This court of appeals is going to give character to your judiciary from the highest to the lowest. I do not care, according to a suggestion I made this morning, appeals should go even from your magistrate up to the court of appeals or whether they stop at the circuit courts, still in the same way the court of appeals will give character to the whole judiciary of the State, to some extent at least. If that court is fitted as it should be by getting good and able judges, men who have devoted their nights and days to the study of law until they can see through all these intricate cases that are constantly going there and give rules of action for the circuit courts; and if you can obtain such men there - if you could insure it - I was going to say ten thousand dollars apiece would be no object.
But now the question arises here, can you induce men in the vigor and prime of life to serve for the small sum you propose? A man's mental faculties may remain until he is eighty; but his physical powers will fail. We fix the junior age at thirty-five and from that to sixty-five you have him in the prime of his intellect. Can you ask men of capacity and experience to give you the best period of their lives for a compensation of perhaps not more than one-tenth what they could earn in that period in the practice of their profession? If you want such men you must hold out some inducement - you must make it a business by which they can live. The difficulty with men of that character, whose minds are constantly intent on some intellectual problem is that they seldom have the faculty of accumulating money. There are various considerations, sir, that all lead up to the same conclusion, but I will not trouble the Convention with any more remarks on it at this time; but if they will take my experience and the result of my reflections on this subject for anything - if they believe me - 1 will not be for giving these gentlemen one dollar more than I thought was perfectly just and for the highest public interests. I would at least leave this salary as the committee have fixed it. Most certainly, at the first blush, if I had been a member of that committee, I should have proposed $3000; but if the Convention are willing to come up to this, I am willing to come down to it and leave it where the committee have placed it. I think, sir, the $900 proposed to be saved by the motion of one gentleman and the $1500 by another is no such great consideration; in fact would not be saved, but would be better invested in better salaries for better judges than you can get for the meager pay proposed. Economy does not mean the saving of money; it means the judicious investment of it so as to get the result you seek.
MR. DERING. Mr. President, I am opposed to striking out the sum already fixed by the committee. The people of Monongalia instructed me generally on the subject of making a cheap an economical government, and I am in favor of that as a general principle; but while they desire me to give what weight I can towards that object they do not wish me to be economical at the expense of justice. It does seem to me we ought to give an adequate salary to the judges of our courts; that it is cheaper in the end, as the gentleman from Wood has just argued and that it will promote the ends of justice better by securing the best talents in the State for these important offices. Stinginess and extravagance are the two extremes. It seems to me in putting down the salary of the judges of the supreme court to a very low figure you cannot secure the best talents of the State, because there is scarcely any lawyer of a high order of talent that cannot make more than double that much at his practice. But while there is some honor attached to the position, honor is no compensation to a man where he must suffer in his pecuniary affairs to such an extent as some would make him by putting his salary too low. In Monongalia our county court costs us from $12,000 to $15,000 per annum. We have abolished that court and inaugurated a system to take their place. The salaries of the judge of the circuit courts will not amount to near as much as the expenses of the different county courts in the counties would have amounted to. There is a great saving of money there. Let us not be too penurious about this thing. Let us give such salaries as will command adequate talents, men who will confer honor on the bench by giving right interpretation of the laws and carry them out promptly. I shall therefore oppose the amendment to strike out, and agree to the committee's report.
MR. STEVENSON of Wood. I believe I shall favor the amendment made by the gentleman on my right (Mr. Haymond) and do so for many of the reasons which have been urged against doing so. If I could be convinced that $2000 would not secure the services of good professional men to occupy the position of judge of this court, I should either favor making the salary higher or leaving it with the legislature to run up to any amount even as high as $10,000, which has been suggested here, in order to obtain the services of such persons. But I do not think that is the case. I am very well persuaded in my own mind from a great variety of circumstances in the history of this country in the past that a salary of $2,000 a year will secure probably as good legal talent as the new State can turn out. I recollect that the argument was used in reference to the pay of Congressmen, that in order to secure the services of talented representatives of the people, and of the states in the Senate, it was necessary to make a very large salary; and to give not only a large salary but incidental expenses to an almost incalculable amount; to give in addition to this salary the franking privilege, by which a member of Congress could send home a cart-load of books to his constituents every day and if he saw proper make the people pay for it. The result of one of these abuses has been that Congress itself has seen the futility of such arguments and are beginning to retrench and abandon these abuses of expending the public money by the abolishing of the franking privilege and I hope it will be followed by a reduction of the salaries of members of Congress as it ought to be. A less salary, probably less than one-third of the amount paid to members of Congress at the present time secured the services of Daniel Webster and Henry Clay and John Adams, and a host of others I could mention, with whom there is probably but few men in the present Congress who will compare in point of ability. These men were willing to devote not only a session of Congress and a whole lifetime of fidelity to the people for a small recompense. It is true, so far as my observation goes in reference to the judgeships in the different states, I have seen men of excellent legal abilities, I might say of superior legal abilities, occupying judgeships for $1500. So that I think as a matter simply of experience, as a question of practice the evidences are as strong in favor of moderate salaries as in favor of very high salaries. I am not in favor of reducing the amount too low but I am opposed to this principle of extravagance either in the state government or any department of it, or in the general government or any department of it. It is one of the crying sins of this time - extravagance of men in public office in squandering the people's money through high salaries and all the other processes of muniment.
But to come more directly to the question. We are to look at this now differently from what we look at it at other times and under different circumstances. Now it is an important consideration. If we are to fix these salaries in the Constitution we must consider the circumstances which surround the people of this new State at the present time. And we must also consider the circumstances which will surround them five, ten, fifteen or twenty years hence. What are the facts in the case? We are bringing this Constitution, this new State into life in the very midst of revolution. Are the people of this State affected by this revolution? Most unquestionably they are - in all their affairs in all their motives in life, the industry of the country the mechanic arts, the great agricultural interest. In fact, in every respect and interest the people of this new State are affected adversely, for that is the rule, by this civil war raging in our midst. That being the case it becomes the duty of this Convention to fix the expenditures of this new government with respect to that condition of circumstances, because it will not merely be an evanescent and short-lived state of circumstances. These circumstances will extend and affect these great interests of this State for many years in the future before the industry of the State can recover from the stroke it will receive in every department of that industry. Years will elapse in the history of this new State. That is a very important consideration. And I hold there is another principle here that is a correct one. I think the salaries attached to these public offices should bear at least some proportion to the recompense which is received by the labor performed. I am aware that that ought not to be a strong rule of obligation. I do not say you should take the standard of what is paid to men in other positions to make as an unbending standard to measure the amount. But circumstances will dictate that the recompense of men in public life should be higher than that of men in the gainful occupations. It does seem to me they should bear at least some proportion to the recompense received in other positions or occupations. You may take the mechanic. He serves three, five to seven years to learn his trade; and if that mechanic becomes proficient in his craft or trade, I mean, of course, those trades that belong especially to what are properly termed the mechanic arts - if he applies himself for this period to acquire a knowledge and proficiency in that particular branch of industry it requires as much expenditure of time and as close application as is required in acquiring even a knowledge of the profession of law. That large class of our citizens after they have undergone this servitude and acquired this knowledge are compelled to give their labor for from three hundred to eight hundred dollars a year and to get that amount they must work 52 weeks every year. If they work less than that their pay will be less in proportion. Take a larger class, the farmers, they will be for a long time the largest class in this new State - probably forever. The history of this class of men, particularly for the last three or four years, if men would study it, would develop the fact that they have not even made a scanty living as a general thing off their farms. Their industry has perished just about as they were about to realize it. A good wheat crop has been destroyed in almost every part within the boundaries of this proposed State. And it is likely to be so for a number of years to come. That class of men have not realized, I believe, even a dollar a day for their labor, for their industry, for their expenditure for their enterprise; and yet they have labored long and assiduously through the heats of summer and the frosts of winter. I would urge it on this Convention not to saddle a class of people who have been so unfortunate, if it can be avoided, with one dollar more than is absolutely necessary to carry on properly and vigorously and successfully the operations of this new State. I might go on with other branches of industry but I merely advert to this, not, of course, as a rule that could be applied rigidly but in order that the officers that we are about to create here shall bear some proportion at least - be modified to some extent by circumstances in which we are bringing this new State into existence. Let us be a little consistent. In order that the people should be saved from the expense attending and making of laws to govern this new State, I voted against fixing the pay of the members of the legislature at $3 a day but the majority saw fit to fix it at that amount. I was willing it should be left to the legislature to regulate the matter to some extent but it was fixed at three dollars a day. After your representatives are elected and your senators are, they come up to the capital to make your laws and you give them $135 a year. The men who occupy a position not less responsible nor less important than anything in the State. And now you propose to give $4 a day to men for the whole year who are not probably occupied half of their time. Take the most liberal view of the case and suppose he occupies three-fourths of his time I want to know if $2000 is not a nice little sum under such circumstances as I have stated. Fifteen hundred dollars a year is about $5 a day for every working day in the year; $2000 is between six and seven dollars every working day in the year. I think that ought to satisfy a man in these times.
MR. DERING. Will not the judge work in vacation?
MR. STEVENSON of Wood. I am supposing he will work every working day in the year. Say he works 300 days in a year, he has $6 or $7 for every day's work he does. I contend there ought to be something like consistency in the action of this Convention - something like economy in the offices it is likely to establish. If you look at the history of legislation going on in this country, from Congress down to every township in the different states, you will discover that the people are acting on the principle that their representatives must inaugurate economy and retrenchment. The governor of Ohio has lately told the legislature which assembled in that state, though it was a matter of sufficient importance to urge upon them the reduction of the salaries of nearly all the offices in the state including, I believe, his own; and the same recommendation has been made in other states and they are acting on it. Because it is a matter of necessity. It is impossible for the people as long as this rebellion is in their midst to be in a condition to pay such as they would be or have been when their industries were uninterrupted, and they will be in this condition for many years to come. Wherever you can economize, and I think this is one of the places you can it is the duty of legal gentlemen even; if this position is one of honor and profit, it is a duty they owe to the people, at least during these difficulties to give the benefit of their learning and of their experience for the welfare of this new State. If the time does come - ten or fifteen years or less from this time, when this red hand of civil war has passed away and our industries are again on their feet and the sources of revenue are restored, the people will be able and willing to pay high salaries to the gentlemen who occupy these different positions in the state government. If we are to incorporate here a fixed salary let it be as low a one as possible so matters may be carried on successfully. I think $2000 is ample, and therefore I shall vote for the amendment offered by the gentleman from Marion.
MR. BROWN of Kanawha. Gentlemen have taken a very wide range in this discussion. The gentleman from Wood (Mr. Stevenson) thought we ought in our conduct exhibit some consistency; and he disclosed to us a rule for the application of the principle governing salaries which while he said it could not be carried to its utmost extent yet should have weight in determining the application of it here; and he instanced various callings and trades and industrial pursuit and the remuneration obtained by those who pursued them; and he exhibited to us that great conservative and most extensive, and wound up by saying they scarce made a dollar a day, and in connection with that was the remark that we should preserve our consistency in applying this rule. Well, now if anything is to be drawn from that I must arraign the gentleman on the score of consistency himself. Can it be we are to judge of what salaries should be paid judges of the supreme court by the profits that may be made by the agricultural community? The most conservative and honorable upon whom rest in every last resort the liberties of the country - the government of the country. I do not imagine that that can be the rule, a guide for us in this case. I will call to the mind of this Convention the course of the gentleman in the application of this rule. Now surely this honorable class ought to be treated as respectfully as any other class, and I make no distinction between the citizens of the State. I believe we have an officer here, the janitor, a worthy and excellent man who has his labors to perform about the house, and I believe the gentleman from Wood moved that $2 a day as a meager compensation for the slight services he performs, and the Convention adopted it without hesitation. Well, now, sir, he does not perform any greater labors than hundreds of men who are toiling at the spade, and shovel, the plow, the loom, the anvil and at the other vocations of life to make perhaps half the price according to the gentleman from Wood. Now, this rule does not work both ways, if the gentleman is to be the judge of its application; but I imagine this rule will not do to apply in these cases at all, that we have a specific duty to perform, and that is to ascertain what is an adequate compensation for the officer you propose to employ - not what other men make in totally different kinds of employment. If anything is to be considered in relation to what other men are earning, it is what those men are making from whose ranks you are going to take this officer. If I were to employ a blacksmith to shoe my horses by the day and he should charge me a dollar apiece, I should not object; and yet perhaps a hard-working man plowing in the field perhaps could not make more than his dollar a day, while the blacksmith could shoe eight or ten horses in a day. The question is not what the farmer gets but what is customary among these smiths - what do the blacksmiths usually charge? Prices are regulated among those pursuing the vocation in which he is engaged. When I ascertain that they all do the same thing, all receive the same price, I pay him the same. The rule of the world, established by usage, in commerce, in trade fixed everywhere by the inflexible law of supply and demand, is that special knowledge and skill commands special prices. This is true in the trades, in the professions - everywhere; and this is the only rule by which we can be governed here. The farmer or the blacksmith, each the best and most deserving in his line of employment, could not render you the service you need on the judicial bench; could not tell you what the law is in any specific intricate case, nor give general interpretations of the laws of the land by which the people of the country are to be governed. That requires special knowledge and faculty, possessed by few; and if we are to secure it we must pay the price.
The gentleman from Taylor compares this salary for a judge with the per diem of the legislature. I said three dollars a day was no compensation for the duties of the legislature. I understand it as only a gratuity to the member to cover his expenses while he works for nothing. The question is how long is he to work for nothing. I do not understand he undertakes to work for nothing for the rest of his lifetime; but that any gentleman in the community whose pecuniary circumstances permit it may spend some sixty days laboring for the community if it involves only the loss of his time, and does not destroy his business at home. He loses nothing; there is no inconvenience to him; it is no compensation for his services. It is different if a man leaves his business and takes up another calling. If a man leaves the bar and takes this office for a term, he must abandon his practice; he must give it all up; he must turn his clients adrift. Not only so, he precludes himself by the very provisions of your Constitution from receiving salaries from any other source or any other office. He must devote his life and labors to the calling of his office. Now, to justify him in doing this he should have a compensation for the service he is about to undertake sufficient to give him a competent subsistence for his family. It may be that you could get judges if you put the salary at $5,000. You can have them at any price you choose to fix, for it was said by Lord Walpole that, "every man has his price." The question for a convention forming a constitution is, will the sum proposed secure the best men?
There is another principle that strikes my mind. I have seen people in the country who go about dealing, and who when they offered to buy any article always seemed disposed to get it a little lower than it was offered at; that everything must be squeezed down a little lower. Well, I never had that feeling; I despise it. I always like to see a thing have its fair, reasonable market value, and then pay it. If members of the bar receive double the salary you propose, or the full amount of it or less, these being the men from whom your judges are to be obtained, the probability of their accepting the place at a less compensation than they are earning is one of the considerations for the Convention. Another is, which grade you desire to have the services of. Lawyers who are earning no more than the salary you offer, or who are earning less, will be ready to accept; but are these the men you want? Is it better to save a few dollars in the salary and take the risk of an incompetent bench, or to invest a few dollars more and get the best the market affords?
Do our economical friends consider that while we are discussing this matter we are taking many dollars out of the public pocket; all this Convention under pay, wasting in this debate perhaps more than will be saved in a year on the salaries of the judges if they are even diminished as proposed. Gentlemen to be consistent ought to see that in the fixing of important public policies and public measures, we cannot be controlled by such penny-wise considerations as have been pressed upon us here. I imagine in providing for the expenses of your government, the salaries you attach to the offices are the smallest consideration; that the great evils to the country are not what is paid for honest services, but the corruption that is everywhere stalking through the land. It is not the fixed salaries given to officers to discharge the best ends of government but the extravagant drains on the public treasury in illegitimate and illegal ways. Take the expenses of the state government as prescribed by the constitution and you will find them a mere drop in the bucket of the expenditure that goes out of the treasury every year. It is these underground currents that are continually draining the treasury. While I am opposed to giving extravagant prices for any service, I recognize that if we want a good article we must pay the market price; I am in favor of giving a fair and reasonable compensation to secure the talent and learning fitted for the office proposed. When you have done that, I am not afraid to face the music throughout the length and breadth of this commonwealth, where the people have commonsense and intelligence. I stand here to represent them as determined on the subject of economy as any other of the people, but who will never seek to have a thing for less than its value or put the price below what will secure to the best talent a fair compensation for the services required; and I am prepared to go home and defend my case before my people at any time and under all circumstances.
Now, I know something of the expense of living. One gentleman tells us he can live with his family and discharge the duties of judge for $500 a year. I do not know where this could have been. Living in Virginia since I was "knee-high to a duck," practising law some years, I have lived exclusively on my profession, and I know my expenses have been more than that - far more. I have no doubt we live about as cheap in our country as we know how. Well, sir, I know that Judge Summers resigned his seat on the bench in our circuit, and that his income from his practice was largely over the salary; that in taking the position he actually condescended for he was able to make the pecuniary sacrifice and take the office that paid him much less than his practice. But he did not continue to hold it to the end of his term. Well, sir, I am not one for even reducing these offices below that which men in the ordinary pursuits of life can live on with respectability. I imagine that a judge, like other men, expects to move in the circles of society that all respectable men are expected to move in, and have an intelligent class of culture around him. If you reduce the salaries below what they can live on in their community you have got to deteriorate the whole class. You cannot degrade your occupation and win the respect and admiration of the people for those who hold your offices; you only bring them into contempt.
MR. HAYMOND. I have been making a few calculations. Give a judge $2,000, it will give him $24,000 in 12 years. Three times that will be $72,000. If you give him $2500 and expenses, it will make about $3000 a year. That would make the whole sum $72,000, from which we can save $18,000. The gentleman from Kanawha has told us the liberties of the country are in the hands of the judges; that we should have good judges and pay them well, and that the liberty and union of the country are in their hands. All I have to say, if the liberties of this country are in the hands of a few judges, God save us (Laughter). I tell the gentleman from Kanawha the liberties of this country are in the hands of another kind, the people; and the people of this country will rule it, sir. It is the old standby until the last hour when the flag is cut out. Sir, the people will let him know better than that (Laughter).
MR. SMITH. I do not intend to make any extended remarks. I yesterday, stated the opinion that there was nothing in a government more important than an intelligent judiciary - an independent judiciary. However, in that I have been over-ruled.
MR. STUART of Doddridge. I do not desire -
MR. SMITH. I must decline -
THE PRESIDENT. The hour fixed for recess having arrived, the Chair will be vacated.
The Convention re-assembled at the appointed hour.
THE PRESIDENT. When the Convention took a recess it had under consideration the motion to strike out "five hundred."
MR. HARRISON. As the chairman of the committee is absent and this section has a great deal of interest in it, I hope the section will be passed by and we will go on to the 11th section. It is not probable much discussion will arise on the 11th section. I therefore move to pass by the section now before the Convention for a few minutes until the chairman comes in.
MR. DERING. I hope we will not pass on to another but finish this before we go on. We will get things mixed up. I trust we will take a vote on the motion to strike out. I think we are prepared to vote on striking out, unless there is some person that wishes to speak.
THE PRESIDENT. The gentleman from Logan had the floor when the Convention took a recess.
MR. VAN WINKLE. He will not be here.
MR. DERING. He is up at the court-house making a speech.
MR. SINSEL. The judge remarked when he left that he could not be here this afternoon.
MR. HERVEY. If there is to be any discussion, I desire to pass by this section for the present. I make that motion.
MR. POWELL. I do trust we will not do this. We have been passing by frequently for the accommodation of gentlemen and thereby delaying the business of the Convention. I think it is highly important we push right on. I am not opposed to a discussion of every question that comes up here but I am opposed to this thing of passing on and delaying and losing time. I hope we will put down this motion.
MR. HALL of Marion. But whilst that is a fact, and in view of another fact in connection with any action we take in this question, that we have made a precedent of passing by under like circumstances, would it be acting in good faith towards those who are absent to continue our course of proceeding in their absence? We ought to let it fall equally. The very fact that upon this question depends whether anything else is to be introduced makes it proper we should determine the question whether we will or will not strike out. If it shall be determined in the negative, it is what the party who is entitled to the floor wishes to impress on the Convention. If the Convention say so, it will very much expedite by avoiding what must necessarily follow if it be stricken out, for various proposals will then arise as to what will be inserted. Time will be saved and it will be more just and in accordance with our proceedings in other cases to pass by this section until the party can be here. It is only a courtesy that is extended to others; and if it be decided that we will not strike out it will save time. I trust it may be the pleasure of the Convention under the circumstances to pass by.
MR. SINSEL. I would just suggest the propriety of letting persons who are absent cast their vote. Let us take the vote now as they come in, if they choose to vote on it let them do so.
MR. HALL of Marion. If this should be done how will the business of the Convention be advanced? Suppose we vote to strike out, and the vote should be so close that the absentees coming in and recording their votes afterward should change the result? Meanwhile we have gone on with other measures based on the presumption that the $500 was stricken out. Might we not get into a tangle that would be difficult to straighten out? I think we should extend this courtesy to the absentees, to pass by till they come in. I would not ask this if they were negligently absent; but we all know the absence is unavoidable.
MR. VAN WINKLE. It is but justice to the chairman of the committee to say that his resignation as member of the legislature takes effect to-day. He has more matters of importance to see to than if he had been intending to continue a member of that body. It is important the chairman should be here when the report from his own committee is under consideration. As this is probably the last time he will need this courtesy, I trust it will be extended to him. It can be passed by and be called up again at the pleasure of the Convention.
The motion to pass by was agreed to by a vote of 18 to 16.
The Secretary reported section 11:
"No judge, during his term of service, shall hold any other office, appointment or public trust, and the acceptance thereof shall vacate his judicial office; nor shall he, during such term, be eligible to any political office."
MR. VAN WINKLE. I think, sir, that perhaps under these words "public trust" in the 94th line "under this or any other government" ought to come in. He would be just as eligible to be elected Senator or member of Congress without this as with it. We cannot control that; and whether these words would be properly considered to mean an office under the United States, I do not know; but I think for safety they had better be introduced.
MR. HERVEY. I would call the attention of the gentleman from Wood to the 96th line.
MR. VAN WINKLE. We have no kind of right over the United States offices. The Senate of the United States is the only judge whether a man is eligible there; and the House of Representatives is its own judge of the same matter. My reason for offering the amendment is that standing in the connection it does, it is simply to exclude a conclusion. It might be inferred that it was an office of public trust under this State exclusively.
MR. BROWN of Kanawha. (who had just come in) What is the proposition before the house?
THE PRESIDENT. The Secretary will report the amendment offered.
The Secretary reported Mr. Van Winkle's motion to insert after the word "trust" in line 94, the words "under this or any other government."
MR. VAN WINKLE. I would explain in the first place, we have temporarily passed by the preceding section on account of the absence of the chairman. The next section was taken up and I moved to insert these words to exclude a conclusion because the last part of the section - "nor shall he, during such term, be eligible to any political office" would not prevent him being elected to either the Senate or House of Representatives.
MR. BROWN. I do not see any particular objection to the amendment. I confess I do not think it is necessary. This is a similar provision to that in our Constitution as it stands. I do not think it has ever been misunderstood. It would govern every public trust, crown, king or country.
MR. VAN WINKLE. It leaves the thing in doubt.
MR. BROWN of Kanawha. It strikes me a public trust within the United States is in it as -
MR. VAN WINKLE. The last part of the section must necessarily be confined because we cannot control election to the other places mentioned and therefore it might be inferred from the language of the latter part that the first also referred exclusively to this government. I think it would render it more certain.
Mr. Van Winkle's amendment was agreed to.
MR. VAN WINKLE. I move now the 10th section be taken up.
MR. BROWN of Kanawha. This has not been adopted. I suppose we had better finish the 11th. The last sentence in that section "nor shall he during such term be eligible to any political office." The gentleman from Ohio yesterday made some inquiry which struck me on looking into this sentence which seemed to involve obscurity, which reference to the sense rather inclines me to think it does. Whether "nor shall he during his term be eligible:" whether that means the time he is in office or the time for which he may have been elected. To relieve the sentence of all ambiguity I propose to insert in place of "such term" the words "his continuance in office."
The amendment was agreed to, and section 11 as amended was adopted.
Consideration of the 10th section was resumed.
THE PRESIDENT. When the further consideration of this section was postponed, the Convention had under consideration a motion to strike out "five hundred" after "two thousand."
MR. SINSEL. I understood the motion to be to strike out "twenty-five hundred" and then alter the clause of the sentence "He shall receive a reasonable allowance for traveling expenses," and insert "twenty-two hundred" and there was an amendment offered to insert "two thousand." Then there was a division of the question called for, whether they would strike out at all or not.
THE PRESIDENT. The Chair held that the division of the question applied only to striking out "five hundred."
MR. VAN WINKLE. I hope the gentleman will leave that about the traveling expenses alone. It is not in the motion as I understand it.
Mr. Simmons called for the yeas and nays on the motion to strike out "five hundred."
MR. SINSEL. One word, Mr. President, I still insist the motion was to strike out the whole and then fill the blank, and one proposition was to fill it with $2200 and another with $2000.
MR. VAN WINKLE. The question was divided.
MR. SINSEL. Well, yes, to strike out first and then see what to insert. I don't want to be cheated out of my proposition in that way. This might compel me to vote for $2000 when I am in favor of $2500. If you only strike out the five hundred it would only leave it $2000.
THE PRESIDENT. The motion is only to strike out.
MR. VAN WINKLE. The gentleman wants to include with this the traveling expense question. To set his mind at ease, I will call for a further division of the question so as to take the vote on five.
The vote was taken by yeas and nays on striking out "five hundred" and resulted:
YEAS - Messrs. Brown of Preston, Brooks, Brumfield, Caldwell, Carskadon, Cook, Dille, Hansley, Haymond, Hubbs, Hoback, Hagar, Montague, Mahon, O'Brien, Parsons, Powell, Pomeroy, Sinsel, Simmons, Stevenson of Wood, Sheets, Soper, Taylor, Trainer, Walker, Wilson - 27.
NAYS - Messrs. John Hall (President), Brown of Kanawha, Battelle, Dering, Hall of Marion, Harrison, Hervey, Irvine, Lamb, McCutchen, Paxton, Robinson, Ruffner, Stephenson of Clay, Stewart of Wirt, Stuart of Doddridge, Van Winkle, Warder - 18.
So the motion to strike out was agreed to.
MR. SINSEL. I presume it will be in order to take the vote, and I move to insert "$2200".
MR. BATTELLE. It seems to me we ought in the first place to vote, if we are going to, on the last clause. I judge from what was said that there is to be a vote on this last clause. I confess I am not able to vote on the other until I know what our decision is to be on that. If we are to allow judges no traveling expenses, we, of course, should allow them more salary. If we allow them the expenses necessary for travel, we might reduce the salary. I felt this same necessity in the vote just given; and it does occur to me that the proper way to get at this thing is to first settle the question and then determine the salary they are to receive absolutely.
THE PRESIDENT. The Chair is of opinion that the better way would be to dispose of the motion.
MR. DERING. I move to amend the motion, if it is in order by way of testing the sense of the Convention on this point. I think we had better have a test vote on that question. I move therefore to strike out the words "and each shall receive a reasonable allowance for necessary travel."
THE PRESIDENT. That is the question.
MR. VAN WINKLE. Yes, sir, but I understand from the Clerk that no such motion has been made. The pending motion is now on filling the blank with "twenty-two hundred."
MR. POMEROY. There was an. amendment offered by the gentleman from Marion to fill it with two thousand.
MR. STUART of Doddridge. He has got his amendment; it is two thousand now.
THE PRESIDENT. The question will be on the amendment to the amendment.
MR. DILLE. I supposed the motion was to strike out "and five hundred". The motion was not as I understood to strike out "two thousand five hundred" but "and five hundred." How was that?
MR. STUART of Doddridge. That was the motion. It leaves the salary "two thousand."
THE PRESIDENT. The gentleman from Preston will observe that there is a question of an amendment to an amendment depending here. It raises the question between $2000 and $2200. To dispose of that question would be in order. My own impression is that it would exclude other matter getting in until it was disposed of.
MR. POMEROY. Would not this relieve it, if both gentlemen would agree not to fill the blank until we settle the matter about traveling expenses. I do not understand that when we struck out "five hundred" we did so in order that we might fill the blank with something less than that. Our votes will be much governed by this matter of traveling expenses, and I am free to say I want to fix the salary and leave the men to pay their own expenses.
MR. SINSEL. I may have failed to express myself at the time but I aimed to make this kind of a motion, that we would strike out all that had reference to the salary of the judges of the Supreme Court of Appeals and insert $2200 in its stead. The gentleman from Marion offered an amendment to that motion, to insert $2000. Well, upon my motion there was a division of the question, that on striking out and then a further division; but as there has been a misunderstanding about it, I am willing if the gentleman from Marion will do the same to withhold mine for the present until we settle mileage.
MR. HAYMOND. I cannot consent to it. I think we had best fix the salary first. Then if there is any extras to give let us give it.
MR. STEVENSON from Wood. I hope my friend from Marion will reconsider his declaration just now. I think it would be much better; we could vote more intelligently to keep all these matters in reference to salary out of the question until we decide what we will do with the traveling expenses, whether it shall be included in the salary.
MR. DERING. In order that we may test the sense of the Convention in this matter I move that the rules be suspended in order, as the gentleman from Marion does not choose to waive his amendment, that we may first reach this question in reference to traveling expenses.
MR. HALL of Marion. I would rise to a point of order. How, when by striking out it leaves $2000, can an amendment be entertained proposing to make it $2000. It occurs to me that a proposed amendment cannot be entertained that is precisely as it now stands.
THE PRESIDENT. We are working on an amendment to an amendment.
MR. HALL of Marion. That amendment is that the amount shall be $2000 when it is already $2000.
THE PRESIDENT. Not until the original amendment will be adopted.
MR. HALL of Marion. I am not making myself understood. I would really like that I could understand somebody who would explain to me what the amendment to the amendment must be. You have amended the section now by striking out "and five hundred" as the salary of the judge of the supreme court, which leaves the provision that the salary shall be not less than $2000.
MR. SINSEL. They took the vote wrong. I insisted at the time when striking out the $500 that my motion was to strike out the whole. If they had done this we would have had none of this difficulty. I contended at the time.
MR. HALL of Marion. It is immaterial whether the vote was taken right or wrong.
THE PRESIDENT. What does the gentleman say? To withdraw his motion.
MR. DERING. I cannot withdraw it (Laughter).
THE PRESIDENT. The Chair will put the motion of the gentleman from Monongalia.
MR. LAMB. I beg leave to say to the Chair that the amendment of the gentleman from Marion is certainly out of order. The five hundred has been stricken out and it stands now $2000 with a blank after it. Then a motion is made to insert two hundred in the blank, and then the motion of the gentleman from Marion is simply to leave it as it is now - a motion which the Chair has no right to entertain. Is such an amendment in order?
THE PRESIDENT. The Chair sees no propriety in putting it, and in that view of the case will consider the motion made by the gentleman from Monongalia. The question is on the adoption of the motion of the gentleman from Monongalia to suspend the rules.
MR. PAXTON. It appears to me we have got into a good deal of a snarl. I would infer that probably a majority of the Convention would be satisfied if the salary was established at $2500, this "additional allowance for necessary travel stricken out." Now, in order to get at that question, I suggest the amendment be withdrawn for the purpose of reinstating the sum originally here and then take a vote on the motion to strike out the clause in reference to travel, so as to get a direct vote on a salary of $2500 without any allowance for travel. I think from the expressions I have heard that would probably meet the views of a majority of the Convention. If such is the case, if the gentleman would withdraw the amendment now before the house I would then make that motion to test the sense of the Convention on a simple proposition of a salary of $2500 without any allowance for travel.
THE PRESIDENT. Will the gentleman from Monongalia withdraw?
MR. DERING. I will do anything to bring about a conclusion in regard to this salary.
MR. HERVEY. I do not want to make the house any difficulty; but I am clear the object of the gentleman from Ohio cannot be reached by the vote he supposes. There must be a vote of recosideration. We have acted on $2500; we have stricken out the $500. Now, that proposition cannot be reached in the manner proposed by the gentleman from Ohio.
THE PRESIDENT. The Chair inferred that the object of the gentleman from Ohio was to first rid the report of the question of the allowance for travel, to vote on the other, and then it would be in order.
MR. PAXTON. My idea was simply that all pending amendments should first be withdrawn by general consent; that having been done I presumed some one of those who voted for striking out the $500 would move a reconsideration of that vote; that then we should reinstate the sum of $2500 and then take a vote on the paragraph here giving a reasonable allowance for travel, believing it would accommodate a large majority of the Convention.
THE PRESIDENT. Would it not be the shorter way to first move to strike out the traveling expenses?
MR. PAXTON. I am willing for anything that will bring about a settlement of this.
MR. STEVENSON of Wood. I will make a motion of that kind if it is in order - to strike out the words "and shall receive a reasonable allowance for necessary travel."
MR. BROWN of Preston. On that motion I call for the yeas and nays.
MR. BATTELLE. Before the call is responded to, allow me to say the question is in just the shape I desired to have it in order that the Convention might settle as a principle by itself whether these officers shall have an allowance for necessary travel without any reference to what they receive. We will afterwards then fix the salary at whatever sum the Convention think proper - that principle having first been settled whether there shall or shall not be such an allowance. I wish to vote on that separately and before the other sum is fixed, and for one I am in favor of that principle. I believe they should receive expenses for necessary travel; and having settled that I am prepared to consider the amendment offered by gentlemen here.
MR. STUART of Doddridge. I must say that I am opposed to striking out. I suppose if we fix salaries here, we desire them to be equal and uniform, that justice may be done between the judges. In the district composed of Ohio, Brooke and Hancock the judge will have little travel to do. Go out into one of our mountain districts judges will have to travel hundreds of miles and perform an equal amount of labor - do ten times the amount of travel. It is not a pleasant job to ride over the hills of West Virginia across through the mountains, through the weather and storms. The compensation would not be uniform if all were fixed at one figure. I have no idea it is going to affect the salaries of these judges anyhow. I believe a majority of this body have settled down on perhaps the amendment of the gentleman from Marion. I am inclined to favor that at least. If that is stricken out and the salary is fixed at $2000, I say it would be very unequal - very unfair - because one judge would have to perform perhaps a great deal more labor than another, in traveling - that additional labor. He ought, it seems to me, have some allowance for it. I do not see any other way to reach it if it is not in the way proposed in this provision now sought to be stricken out.
MR. SINSEL. The last Richmond convention increased the salary of judge from $1500 to $2000 and reasonable allowance for traveling expenses. The people universally thought the convention did wrong then; that the judges had not been complaining of their compensation more than after that; that we had good judges at a salary of $1500 and traveling-expenses and they thought the legislature should fix the traveling expenses very low. What was the result? Instead of giving them such mileage as you would pay for travel to and from court, if my memory serves me correctly, it was there 20 or 25 cents a mile in addition to the salary. This is the thing I wish to guard against. Whatever we pay the judge, let us pay him enough and have the sum settled so there shall be no cavil or dispute about it. A man may in traveling under this provision go to drinking saloons, spend money that way. He may have a receipt. Here's my bill at a certain place and this my traveling expenses. It will be allowed. If a man chooses to indulge in such luxuries he may do it at his own expense.
MR. BROWN of Kanawha. I think there is some misapprehension as to what this means. I have never known a case where a judge drew more than his mileage; and I confess it seems to me it would be most manifest injustice supposing this state capital should be here in Wheeling if one of the judges should live in Wheeling, another in Charleston and the other say in McDowell and they were all paid exactly the same compensation. It would seem to me great inequality to require a man to come from McDowell here some three or four times a year and return to his family to discharge the duties of his office and pay them all the same prices. All perform the identical same labor while here; but one would spend some two weeks in coming here and going back. The ordinary mileage is allowed a legislator from McDowell. That is on the principle of equality. Each will receive his per diem and his mileage for the distance traveled. That makes it exactly equal. Each will be remunerated according to his expenses. He is really giving his labor for nothing during the whole term and necessary traveling expenses coming and going. I cannot conceive upon what principle of justice and equality any distinction can be made between the judges unless it is the intention to monopolize everything about the capitol and exclude all those in the distant parts of the State from participation in the offices of the State; on what principle you give to the members of your legislature this mileage to equalize their traveling labors and refuse it to other of the officers in another department who are required to repair to the capitol in the performance of their duty. I should suppose the object of the Convention would be to carry out the principle of equality, to all officers of the State; that the man who resides in the extreme border county of the State shall stand on a perfect equality with the man who resides at the capitol, if he be chosen to any office in the State. I stand here to defend not only the provision as it stands in the report but the principle and the rights of those who are in the borders as well as those who shall be about the center. Unless therefore it is the determination of the Convention to discriminate between the legislative and judicial officers, against the judicial officers and in favor of the others, I am at a loss to see how it is possible to maintain the motion to strike out this provision. The idea that officers, either legislative or judical, are to be allowed to go about and increase their expenses as they see fit and ask the public to pay the bill is preposterous. That each will be allowed only the traveling expense which is covered by the shortest practicable route should be the rule with regard to legislators. The same rule will be applied to the judges as to the legislature. And whatever the law has fixed as the rule to determine the traveling expenses of the one must govern the other. Therefore the objection of the gentleman from Taylor is entirely a chimera in his own mind - that the gentlemen are to go to hotels and scatter the public treasure and ask the public to foot the bill. That will not be so; and I presume the judges to be elected would expect to be men of character.
MR. HERVEY. I am in favor of retrenchment and reform, but I am not in favor of taking away the support of our public men. What is the provision in the present constitution? Judges receive less than $3000 per annum and traveling expenses. Let us suppose the traveling expenses would be $500. Our judges are now receiving on an average say the sum of $3500. This Convention has expressed the determination not to retain the $2500 but propose $2000. Now, it is seriously proposed to strike out this provision for traveling expenses. That is retrenching to a fearful extent. Suppose you reduce the $2500 to $2000 and estimating the traveling expenses at $500 you allow them; it makes just $2500, which is a reduction of precisely 35 per cent on the present salary. I am of the opinion that in the course of the next 12 or 15 months money will be more wanted than anything else (Laughter). There may be such an expansion in the currency of the country - must of necessity be the case - such a vast increase of United States money - as must result in a serious depreciation in value. There will be consequently an inflation of prices. Property will go up; money will go down.
MR. HAGAR. I have changed my mind a bit. I believe in us having good judges if we can get them. In a few thoughts advanced the other day I said it was right to pay them a reasonable compensation for their labors. I think so yet. I incline to think it is right they should have mileage as well as other men who travel a distance to serve the public. It would be unreasonable, I think, to fix a sum without this allowance for mileage. I think with the gentleman from Doddridge that the Convention will not go above $2000. I do not know if we give them mileage but they will get under it if we do not watch out. I am in favor they be allowed regular mileage.
MR. SOPER. Strike out "reasonable allowance" and insert ten cents a mile.
THE PRESIDENT. That would be a substitute for the amendment.
MR. STEVENSON of Wood. My only object in making this motion was in order that the Convention might settle this matter. I had no particular feeling; in fact I had hardly formed an opinion about it; but I saw there would be a difficulty in the Convention settling with any kind of certainty on a salary until this matter was settled. I am very well satisfied it would operate unequally not to have the principle of allowing a reasonable mileage incorporated here. But I do object to the phraseology here; and the amendment made by the gentleman from Tyler meets the only difficulty in my mind. It certainly leaves the door open to abuse if we say a reasonable amount of traveling expenses and leave that to the legislature. They will take very different views probably about what the reasonable traveling expenses of a judge are, if you fix it as we have in this phraseology; but if you say so much per mile for travel I shall most unquestionably favor retaining the clause if it is so modified or amended. If not, I shall vote in favor of striking it out in order to get something else. But that will be a spur to the people and do justice to the judges.
MR. BROWN of Kanawha. I would suggest an amendment which I think the gentleman will accept; that is, instead of ten cents a mile "the same allowance for necessary travel as is allowed to members of the legislature."
MR. SOPER. That will do.
MR. HAYMOND. If we put in $2000, $2200 or $2500, I would like to know what that is for. I understand we are paying a man to do his duty and not paying him for travel. He may go in a balloon, or any way he pleases (Laughter). I don't see the use of paying a man twice for hoeing a row of corn.
The motions to strike out and to insert the language suggested by Mr. Brown were successively agreed to.
MR. POWELL. Would it be in order to make a motion to strike out $2000?
MR. HALL of Marion. I see no difficulty now if we take the question on the motion of my colleague. The salary of the judges of the supreme court shall not be less than $2000, will be the decision if we sustain it.
MR. SINSEL. I move to fill the blank with "two hundred," to make it "two thousand two hundred."
MR. VAN WINKLE. I move to amend, sir, by inserting "four hundred," to make it "two thousand four hundred."
MR. BATTELLE. I wish to inquire what will be the effect of these motions if the Convention refuses to insert either four hundred or two hundred. Will the salary then remain at two thousand?
THE PRESIDENT. In the opinion of the Chair, there is where the Convention has reduced it to - has placed it.
MR. BATTELLE. If these amendments then both fail, the salary will remain at $2000?
MR. HAGAR. If some one doesn't move to lower and carry it.
The vote was taken on Mr. Van Winkle's motion to insert "four hundred" and it was rejected by the following vote:
YEAS - Messrs. John Hall (President), Brown of Kanawha, Carskadon, Hall of Marion, Irvine, Lamb, McCutchen, Paxton, Robinson, Ruffner, Stephenson of Clay, Stewart of Wirt, Stuart of Doddridge, Van Winkle, Warder - 15.
NAYS - Messrs. Brown of Preston, Brooks, Brumfield, Battelle, Chapman, Caldwell, Cook, Dering, Dille, Dolly, Hansley, Haymond, Harrison, Hubbs, Hervey, Hoback, Hagar, Montague, Mahon, O'Brien, Parsons, Powell, Pomeroy, Sinsel, Simmons, Stevenson of Wood, Sheets, Soper, Taylor, Trainer, Walker, Wilson - 32.
MR. CALDWELL. I am inclined to think the "twenty-two" is not quite enough. I move therefore to fill with "three hundred."
Mr. Hansley called for the yeas and nays. The vote on Mr. Caldwell's motion was taken and resulted:
YEAS - Messrs. John Hall (President), Brown of Kanawha, Caldwell, Carskadon, Dering, Hall of Marion, Hervey, Irvine, Lamb, McCutchen, Paxton, Robinson, Ruffner, Stephenson of Clay, Stewart of Wirt, Stuart of Doddridge, Van Winkle, Warder - 18.
NAYS - Messrs. Brown of Preston, Brooks, Brumfield, Battelle, Chapman, Cook, Dille, Dolly, Hansley, Haymond, Hubbs, Hoback, Hagar, Montague, Mahon, O'Brien, Parsons, Powell, Pomeroy, Sinsel, Simmons, Stevenson of Wood, Sheets, Soper, Taylor, Trainer, Walker, Wilson - -29.
The question recurring on the motion of Mr. Sinsel to insert "two hundred."
MR. SINSEL. I just want to make one remark. I would insist on members of the Convention who are not making any more than I do myself that this is not too much. I think the people will be satisfied with it. We will want to make a little distinction between them and the circuit judges.
MR. STEVENSON of Wood. We have been very liberal on this side of the house. We have given now mileage in addition to the $2000, the only amount we intended to give you; and we are not so well satisfied the people will be satisfied with even that, but we are willing to give the gentleman from Marion the $2000 and nothing else.
MR. BROWN of Kanawha. I regret that we seem to be making a Constitution with reference more to the popular ideas than to our judgment of what is best. It seems to be we are the better judges of questions entering into the construction of this Constitution that the average man in the shop or the field who has perhaps never given an hour's study to the problems involved. If we are not, we ought not to be here. The rule that should govern our action ought to be to do what we think best and right, in confidence that the people will approve when they understand what we do, feeling that in any case their approval is much less important to us than the approval of our own conscience and judgment.
The vote on Mr. Sinsel's motion to insert "two hundred" was taken and the motion lost by the following vote:
YEAS - Messrs. John Hall (President), Brown of Kanawha, Battelle, Chapman, Caldwell, Carskadon, Dering, Dille, Hall of Marion, Hervey, Irvine, Lamb, McCutchen, Paxton, Robinson, Ruffner, Sinsel, Stephenson of Clay, Stewart of Wirt, Stuart of Doddridge, Van Winkle, Warder - 21.
NAYS - Messrs. Brown of Preston, Brooks, Brumfield, Cook, Dille, Dolly, Haymond, Harrison, Hubbs, Hoback, Hagar, Montague, Mahon, O'Brien, Parsons, Powell, Pomeroy, Simmons, Stevenson of Wood, Sheets, Soper, Taylor, Trainer, Walker, Wilson - 26.
MR. RUFFNER. I do not know what we are going to do with the blank; and as we have tried various other sums, I will move twenty-one hundred.
MR. SINSEL. The yeas and nays on that, sir.
The vote was taken on the motion and it was lost, the vote being:
YEAS - Messrs. John Hall (President), Brown of Kanawha, Battelle, Chapman, Caldwell, Carskadon, Dering, Hall of Marion, Hervey, Irvine, Lamb, McCutchen, Robinson, Ruffner, Sinsel, Stephenson of Clay, Stewart of Wirt, Stuart of Doddridge, Van Winkle - 19.
NAYS - Messrs. Brown of Preston, Brooks, Brumfield, Cook, Dille, Dolly, Hansley, Haymond, Harrison, Hubbs, Hoback, Hagar, Montague, Mahon, O'Brien, Parsons, Powell, Pomeroy, Simmons, Stevenson of Wood, Sheets, Soper, Taylor, Trainer, Walker, Warder, Wilson - 27.
MR. HAYMOND. If it is not already filled with $2000, I move to fill it with $2000.
MR. SINSEL. That would be $4000.
MR. HAYMOND. I said if it was not already.
THE PRESIDENT. The Chair is of opinion that the blank is already filled with $2000.
MR. HAYMOND. Well, that is what we thought.
MR. PAXTON. That section as amended now would leave the legislature to increase the salary of the judge of the circuit court. The salary "shall not be less than $2000." It fixes the salary of the court of appeals at $2000, but says the salary of the circuit judges "shall not be less than $2000." I suppose the intention is to fix it at a definite sum also.
MR. STUART of Doddridge. I move, as I think there should be a discrimination in the pay of these two officers, to insert "not less than $1600" in the 80th line.
MR. BROWN of Kanawha. As the gentleman's amendment contemplates two distinct propositions: the one a prohibition of the legislature from changing the salary, the other the reduction of it, I desire the question should be taken first on changing it. I desire to say, then, while on the floor in regard to the subject of the amendment -
MR. STUART of Doddridge. I have no objection to dividing it.
The vote was taken on striking out the words "not less than," and the motion was agreed to.
MR. BROWN of Kanawha. The question as it stands now in the report just places all the salaries at the same price - $2000, and it is not to be left to the legislature in any way. The proposition of the gentleman from Doddridge is to diminish the salary of the circuit judges $400 each, making it $1600. I think, sir, that there is not much use to discuss the question, but only to say this: The gentleman from Doddridge thought the reduction of the salaries of the court of appeals too low and has very consistently voted with me throughout against that reduction. The gentleman moves, as I understand him that there shall be kept up the same distinction between the two. Now, I am satisfied of one thing - very well satisfied - that the labors of the circuit judges are the more onerous; that the circuit judge performs more labor in a year, decides more cases in a year, more law propositions in a year and has to do it promptly on the circuit without aid of that deliberation and leisure that the court of appeals judge has; and so far as the question of labor is concerned, when this Convention have fixed the salary of the judge of the court of appeals at $2000 as the compensation for that service they have fixed, in my humble opinion, the lowest price that ought to be required for the salaries of the circuit judges, who will have to perform much more labor and discharge, in my humble opinion, much more responsible duties. The only question is of distinction; that there is some distinction attached to the position of judge of the supreme court, although he may have to perform less labor and do it under circumstances much less trying and difficult. Because he has nothing to do but decide a question with the paper before his eyes; to decide cases just sprung upon him, without the aid of libraries, in very many instances wherever he happens to be found on the circuit. Again, the circuit judge has to discharge another duty that is a very onerous one when connected with the balance of his duties, and that is the hearing of injunctions. He is met by the counsel seeking applications for rights of procedure to stop other tribunals from proceeding against them, with applications for injunctions at every turn, by motions to dissolve injunctions in vacations of which are extra duties outside of the regular duties he has to perform while sitting in court. I cannot therefore appreciate the argument of the gentleman from Doddridge which seeks to make a distinction by reducing the salary of an officer simply for the sake of creating a distinction between him and another. If the Convention had been content to keep the salary of the supreme judges at a higher price, I should have had no objection to the distinction; but to do it in order to create the distinction, it is a strange principle to limit those officers who perform the greater labor to the lesser salary, simply for the sake of the distinction. I hope therefore it will be the sense of the Convention to place all these judges on a similar footing, and especially so as we have already adopted an amendment which authorizes the judges of the court of appeals to call up the circuit judges to take their places in the supreme court in case of accident or disability on the part of a supreme court judge. So that they are not only required to perform their own duties, which are more onerous than the court of appeals, but in addition to that they are obliged to respond to calls to the court of appeals and made to discharge the duties of any of the judges of that court without any extra compensation. This discrimination ought not therefore to be made against them.
MR. STUART of Doddridge. It is absolutely necessary, in my opinion, that there should be a distinction between these two officers in point of salary. That will be illustrated almost by the report of the gentleman himself. I would ask why the distinction was made in the report. The report gives $2500 to the court of appeals and $2000 to the circuit judges. Now, there was a reason for that and the reason is this: it is absolutely necessary that the distinction should be made because unless you do, you will not perhaps get any man into the court of appeals, or at least your best men. It will be much easier to be elected to the circuit judgeship than to the court of appeals. Your best men will not risk getting the nomination for an office that covers the whole state when it is so much easier to get a nomination from the circumscribed circuit. Unless you make this distinction, you have no assurance that you can get the best ability to offer itself for a place on the court of appeals. Another thing: there is a difference in the expense of these judges. For these judges out in the country, living is cheap, while the judges of the court of appeals will have to go to the state capital where it will cost them more than the difference of $400 in living. Then, sir, the best talent could offer themselves for this office. You will always find men offering themselves for the best places. If the circuit judgeships should pay the best, you will find our best lawyers offering for those places; and somebody will have to fill the other places and it will not be the best talents.
MR. VAN WINKLE. I call for a division of the question, on striking out first. That will bring the Convention to a direct vote whether they want the $2000 to remain or not.
MR. POMEROY. I suggest an amendment, to come after the vote to strike out, that the salary be $1800.
The motion to strike out was agreed to.
MR. POMEROY. Then I offer that amendment to the motion of the gentleman from Doddridge, that the salary be $1800. I agree with the remarks of the gentleman from Kanawha. From all the knowledge I have of these two courts, the circuit judges have far more labor to perform. We have made provision of that expense already. A circuit judge in many districts would embrace six counties; has to get in each one of them four times a year and hold twenty-four distinct terms of court. I think he ought not to be paid much less than the court of appeals. I think this would be about an adequate salary. I am not at all particular about the amount, but I favor $1800 as being better than $1600.
MR. BROWN of Kanawha. I would direct the attention of the Convention to one fact. The gentleman from Hancock will find himself mistaken in his concession he has made, that the travel of the judges of the supreme court will be the greatest. On the contrary, I think when you take the circuits in the majority of them the travel will be much greater to the circuit judge than the supreme court judge. In addition to that there should be borne in mind by the Convention a fact that I think they overlooked. The salary fixed by the present Constitution of Virginia is $2000 a year to the judge and he has only two courts a year in his circuit. That is required to be fixed now at $1800 and he is to have four courts a year - just double the amount of labor. You have also transferred all the causes that arose in the county courts to the circuit courts. You will have increased their dockets by just so much as the county courts depleted it. Take some of the circuits, and we will find a number of them have six counties. There are a number of circuits now in the State that have not more than six, or six or eight; and while you will have diminished the circuits to a few counties you have doubled the labor by making them hold four courts a year. I wish gentlemen to bear in mind that our courts ordinarily begin in the spring. Take Kanawha circuit, with which I am more familiar, it begins on the 20th of March; very bad weather to travel in; when the waters are ordinarily very high and roads bad. The court goes from Wayne county to Cabell, to Putnam, to Mason, to Jackson, to Roane to Kanawha - never stopping a day but going from court to court keeping up the succession without a single moment's loss of time, and gets into Kanawha after the 4th of July. It is a very common thing for us to be found in the circuit on the 4th of July. Then the court begins on the 20th of August in Wayne, and this same court continues until after Christmas. Now, you have a little interval between the last of July and the 20th of August; and in that intermediate space are injunctions, writs of habeas corpus, motions to dissolve injunctions in the judge's chambers; all this continual pressure on the judge during all that time. Well, in the winter it is the same. Double these terms, and where will you be then? You see you are keeping up one continual round of court all the time and yet diminishing the salary: increasing the business, increasing the labor, doubling the number of courts, and at the same time diminishing the salary" - and for the only purpose and reason so far as I can ascertain, in order to make a distinction between the judges of the two courts. It seems to me we ought not to act from such a motive. We ought to give to these officers a salary that will compensate them for their labors. That salary, when you have counted the labors and increased number of courts, ought not to have been diminished.
MR. STEVENSON of Wood. I hope the amendment of the gentleman from Hancock will not prevail. I shall not go now into any argument on the subject, but merely say that the same reasons which were urged against $2500 in the other case lie with equal force against this $1800, if the report of the committee, in the first place, is to be relied on as giving a fair proportion of the amount of the recompense that should be received in the two positions. The committee themselves who have considered this matter make a report of a difference of $500 between the judges of the supreme court and the circuit judges. I suppose they had good reasons for making that distinction, and I am convinced of that after hearing the remarks of the gentleman from Doddridge and that there is good reason for making some distinction in regard to the amount of salary.
Now, sir, $1500 is the amount I had in mind as about the amount I have thought would be sufficient for the largest of these circuits. The people after all - and I am not ashamed to say so far as I am concerned that I wish to represent the opinions of the people, would be satisfied with this amount, or probably $1600, as proposed by the gentleman from Doddridge. I am willing, sir, in order that this matter may be settled this evening without any further discussion, to vote for the amendment of the gentleman from Doddridge for $1600. But I do think that $1800 under the circumstances is too much.
MR. POMEROY. I do not think the argument of my friend will hold good that because the committee made the distinction between the two courts, we should reduce the lower salary for a corresponding large amount. If we reduce the lower salary in the same proportion we might have no salary at all. So far as the labor and expense is concerned, the circuit judges earn as much as the others. We are accustomed to offer higher pay for the higher court to attract the greater knowledge and talent requisite for the peculiar service required. There is no need for the sake of a distinction to reduce the pay of these laborious positions below a fair compensation as this proposed reduction of $400 would do. We want to pay all our judges salaries sufficient for them to live without anxiety for the subsistence of their families. Every industrious man ought to be able to have a little saved at the end of the year. I am afraid some of my friends are possessed with the idea that everything must be reduced. I do not know but my friend from Wood will go home and take to reducing his own expenditures - take to making weak coffee and weak tea under the theory that everything must be reduced.
MR. HALL of Marion. I think a wrong conclusion seems to be drawn here by some members as the basis of their action. There seems to be an inclination on the part of some who have some knowledge of the ideas of their people that they are sent here to represent those ideas; and the gentleman from Wood county says he believes the sentiments and wishes of his people is to reduce, and that as a representative man he must represent that sentiment. Now, I beg to reflect a moment to see whether that is the correct foundation rule by which men who represent the interests of a people should be governed. I disclaim that I am expected - and I here declare that I will not - represent a mere idea - a mere whim, of my people, but I will represent what I believe to be their true interest. Their ideas, their impressions, their conclusions may have been formed without any investigation or even means of knowing what should be tke rule of action. It is the duty not to represent a crudely formed idea but the real and best interests of our people; and the man who stands as the representative of the people who has not the courage to do what he knows is his duty although every man in his county might denounce him, does not act up to the highest standard, is unfit for a representative, in my humble opinion. I know it is a popular idea to have a "cheap" government - cheap everything. It was a very good illustration of the gentleman from Hancock when he suggested to the gentleman from Wood that he would probably go home and curtail his expenses by getting weak tea and coffee. If he is consistent, he will do it. By the course he is pursuing, he wants everything weak. I guarantee if he has his way about these salaries, he will get a weak court if you are to beggar those who you ask to serve you in these laborious and responsible positions. I congratulated myself that we had knocked out that old fungus, the county court; but I am very much afraid it will be out of the frying-pan into the fire. It looks to me very much drifting in that direction. If you make your public offices cheap, you will get cheap men to fill them. Every man grown wise by experience knows that the lowest priced things are not the cheapest. The old darkey who gave the gentleman's boots an extra shine and charged a little extra for it, explained that so much was for the labor and the blacking; the rest was for the "know how." Let us bear in mind that the know how is what we want and what we ought to be willing to pay for. Can we expect to find men qualified for the judicial work, requiring much legal learning, experience, business capacity, tact, and by no means least undoubted integrity - for the pitiful compensation this Convention seems disposed to offer them - scarcely the interest on the money they have expended to qualify themselves for this work; for I tell you when a man has spent the time and money that is requisite to fit himself to do the work of the bench with advantage to the public and with credit to himself, he has made a very considerable investment. My observation is that men who are capable of filling positions and earning good wages will have them. Men in commercial business soon learn the lesson that they want capable and trustworthy men or none. They cannot afford to entrust important matters to cheap men. Can we, in framing this fundamental law for a state afford to be governed by this petty rage for cheapness at the expense of all other considerations? You want a circuit judge, to fill one of the most laborious and important positions in the State - one in which the whole community has a very intimate and vital interest. You offer him $1600 a year to compensate him for his time, his labor and his expenses in the continuous travel around the country which he has to perform. You ask him to relinquish a practice - which if he is a man fit for the post - if he has the knowledge and has had the experience that will fit him for the bench at all - a practice that will be worth at least one-half more, perhaps double; in the pursuit of which he can stay at home with his family, do much less labor and have the benefit of living as men like to live. Not the life of men on the circuit ten months in the year. I have lived at home all my life, except little trips to this place or that; and I find there is a material difference between such a life and that of an official who is obliged to be away from home a great part of the year, living in the court-room by day, boxed up in a little corner room at a hotel at night, ten months in the year. We ask high-class men to do this and pay all their expenses away from home, for $1600 a year. I ask where there is a man at all fit for the work who for much less labor in that time does not earn more money. Where is the inducement? Oh, the honor of the position. Well, there is some honor in it provided you do not degrade it until it becomes a dishonor.
In regard to the difference made by the committee, between the salary of supreme court judges and circuit judges, I know it was the general feeling of the committee that the former was made higher more because of the old custom than because of any real necessity or propriety. We followed what had gone before; that the position required higher talent; that the compensation should command the very best talent and capacity in the State. Having reduced the number of the court from five to three, we were content to stop there. A consideration that we did not care to meet until the question came before the Convention was this: under the old rule, the court of appeals acted not only for all the counties but for the entire state as it was before and not as now. Only there would be at least three times the business that would go to them that will go up from the territory forming the new State. I do not know whether I was like other members of the committee or not, but we did not care to have that mentioned. So far as I know it was not mentioned. I speak of that why there should not exist a difference between the compensation received by the circuit judges and those of the other court - unless, forsooth, the difference should be against the judges of the supreme court. The amount of business will be so much less, going from so much smaller territory that while the difference with reference to the matter may have been proper before that difference would not now exist and the scale would be turned, for that reason, on the other side. Now these are considerations.
This idea of cheap justice which seems to have taken a hold on the Convention, and which was happily illustrated by the suggestion of the gentleman from Hancock, reminds me of the old man in church who became enthusiastic under the preacher's talk about the free religion of the gospel, who thanked God for such a free religion, so cheap that it had never cost him a quarter; and of the minister's response: "God bless your stingy soul, it is not worth a quarter." But let me ask gentlemen if they are not responsible to the people and the country for the interests, and the result of the operations of what they propose now to submit to the people. If we act in this matter so that we have not an efficient judicial tribunal, how will the interests of the people be affected if not injuriously. Are we not responsible, no matter what may be the promptings or instructions of the people? If we are men, we will consider the true interests of the State, and if our people do not agree with us we will endeavor to satisfy them that we did represent their true interest. If they do not believe that, we will leave them to conclude anything they like. If there is anything at all that is important, it is that we have this tribunal at all events the very best that can be made. And talk about saving. You have saved a few dollars by cutting down the pay of your court of appeals. But suppose the effect should be to fill that bench with incompetent men, to destroy the efficiency of that tribunal - then have you saved anything? Have you not lost? We cannot shut our eyes to the fact that our lives, our reputations, our every interest, are dependent on the purity and efficiency of our courts. We have abolished one, reduced another to three members, and now if we fritter away the other until you can get nothing above a two-penny pedagogue on the bench, where are we? If I want to engage a man to attend to anything for me that is worth attending to, I will give three prices to have a man who will do it right rather than a man who will not do it right; and so will any man when it is a question between his pocket and a contingency. As a member of this body, sir, I do not care what the amount may be if it is necessary to have a matter done right. Every man has an interest more or less directly in our courts, because the good order of society, your rights, your every interest are dependent on the administration of justice; and as I before remarked your very lives and reputations are dependent on the purity and efficiency of that tribunal. I trust we will act in this matter with reference to the facts in our case; that when we acknowledge a necessity for a court we will then conclude we should have a good one. When we have come to that conclusion, we should do whatever is necessary to secure that sort of a court. I remarked to some gentleman that I thought I knew a man in our county who would go on the bench for a dollar a day, and charge nothing when not sitting - but I don't think he would be of any service there. I trust in acting on a matter of this sort, we will be governed by our own judgments, based on our knowledge and experience. I care not what may be the first impression or the clamor of the people I represent on this question when I know I am doing what is for their best interests; and I will dare to face them and show them so; and if I cannot do it, I will resign and let somebody else. I trust we are not to form a constitution here based on the idea that we are to keep an ear to the ground to discover what is the fragmentary and momentary popular whim in regard to every regulation that it is our duty to consider and formulate. We come here to consult, to compare views, to inform ourselves and then act upon our best judgment. How can the people scattered over the country, without special information or means of obtaining it in regard to many of the problems we have to solve, be prepared to form conclusions to govern our action? This is not a popular, representative body in the same sense as a legislative house. We are selected to do a peculiar and fundamental work. The great body of the people who chose us understand the fundamental features which they desire us to embody in the Constitution we are to make. They cannot be familiar with the detail, the adjusting of one to another, the special features that become necessary in harmonizing and adapting, which this body discovers in the process of construction. They have trusted us to do these things in their interest in such ways as we find necessary and best for the purpose. If they do not approve our work when it is done, they have the right to reject it. I know we will consider well all these things before we act, knowing that as we fix it so it must remain.
On motion of Mr. Hagar, the Convention adjourned.
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Chapter Eleven: First Constitutional Convention of West Virginia