LAW LIBRARY Duke University durham, n. c. SPECIAL APPROPRIATION DUKE LAW LIBRARY L00307272L Kf'J Digitized by tlie Internet Arcliive in 2015 https ://arch ive.org/details/reportofproceedi21 vi rg r - PROCEEDINGS AND DEBATES CONSTITUTIONAL CONVENTION STATE OF VIRGINIA HELD IN THE CITY OF RICHMOND JUNE 12,. 1901, TO JU.NE 26, 1902 VOI^, II. RICHMOND, VA. THE HERMITAGE PRESS. INC. 1906. COMMITTEE ON PRINTING DEBATES. CARTER GLASS, Chairman. C. V. MEREDITH, BEVERLY A. HANCOCK, J. H. LINDSAY, J. M. WILLIS, HENRY FAIRFAX, GEORGE K. ANDERSON. J. H. LINDSAY, Editor and Compiler. PROCEEDINGS AND DEBATES OF THE CONSTITUTIONAL CONVENTION WEDNESDAY, January 1, 1902. The Convention met at 12 o'clock Hon. John Goode, President, in the chair. INAUGURATION CEREMONIES. The invited guests having been admitted to the places on the floor reserved for them, the Governor-elect, Hon. Andrew J. Montague entered the hall, accompanied by the com- mittee of the Convention (Delegates Thom, Green, Himton, Stuart and Allen), the committee of the General Assembly (Senators Barksdale, Sears, Wallace, Ople and Rever- comb, and Representatives Cardwell, Folke«, Gumming, Lewis, Clarke, Stearns and Bland), the retiring Governor, Hon. J. Hoge Tyler; the Lieutenant-CxOvernor-elect Hon. Joseph E. Willard; the retiring Lieutenant-Governor, Hon. Edward Echols; the Attorney- General-elect, Hon. William A. Anderson; the Speaker of the House pf Delegates, Hon. J. F. Ryan; the president and associate judges of the Supreme Court of Appeals, and the Mayor of the city of Richmond. The Governor-elect, the retiring Governor, the Lieutenant-Governor-elect, the retiring Lieutenant-Governor and the Attorney-General-elect were escorted to seats on the plat- form near the President's chair. Rev. T. B. Thames, D. D., pastor of the First Baptist Church of Danville, Va., offered the following prayer: We seek Thy face and Thy favor, oh Lord, Thou who art the God of our fathers and the God and Father of our Lord and Saviour, Jesus Christ. We crave the bene- diction of Thy presence and the gift of Thy peace this morning. We give to Thee thanks- giving for all the blessings that have enriched and enlarged our lives, especially for those that have brought us liberty and that have maintained our Government. We give Thee thanks for all the memories that gather themselves about this place in which we stand. We give Thee thanks for the cherished traditions and for the history of our great and beloved Commonwealth. AVe thank Thee for all the great and good men that have lived and labored before us, witnessing for righteousness, achieving liberty, never counting their lives too dear for the weal of the Commonwealth. We pray that a double portion of their spirit may come upon all who gather under these gracious auspices this morning, especially upon Thy servant who, by the voice of the people, is thrust forward into this place of high usefulness and honor and responsibility. We pray that the spirit of the fathers of the elder days, whose mantle falls upon his shoulders, and into who^ee labors he now enters, may come to him with affluent and benignant power and grace; that he may have every girding and equipment, yea, even every imbuement and inspiration, that will give him fitness and competency for the discharge of the duties of this high office. Give Thou unto him health of body, sanity of mind and a conscience void of offense before God and man. and do Thou establish the work of his hands, yea, the work of his hands do Thou establish it. Likewise we invoke the divine blessing upon all these that are to be associated with him and that with him are to take upon themselves this morning the oath of office. The Lord grant unto them every gift of grace and wisdom that shall make them work- LAW LIBRARY 1708 DEBATES OE THE CONSTITUTIONAL CONVENTION OE VIRGINIA. men that need not to be ashamed in the great affairs of the State; and may the Lord bless us all, high and low, in whatsoever relation in life we stand, in whatsoever place God in his providence has thrust us, endeavoring, each of us, to be faithful and true, serving, by the will of God our generation; and then may we be gathered in peace unto our fathers; we beg for Thy name's sake. Amen. ADDRESS OF THE PRESIDENT. The President: Gentlemen of this Convention, in response to your invitation, the Governor-elect, the Lieutenant-Governor-elect and the Attorney-General-elect have come into your presence for the purpose of taking the oath of office. The occasion is one of extraordinary interest and is withont a precedent in the history of the Commonwealth. The retiring Governor and Lieutenant-Governor are here. The speaker of the House of Delegates and the joint committee of the General Assembly are here. The members of the Supreme Court of Appeals are here. The Mayor of the City of Richmond is, here; and the people are constructively here in the persons of their chosen representatives in the Constitutional Convention, which is temporarily clothed with their sovereignity. The office of governor of Virginia is one of great diginity and responsibility. It hasi been heretofore filled by some of her most illustrious sons. Two Virginia governors have become presidents of the United States. A Virginia governor wasi the father of one president and the great-grandfather of another. The first governor under the Constitution of 1776 was Patrick Henry, the inspired orator, whose heaven-born eloquence kindled the flame of liberty in the hearts of the people and incited them to revolution by the proclamation of the eternal truth that "resistance to tyrants is obedience to God." The lasit governor under that constitution was William B. Giles, who also served his State with great distinction in the House of Representatives and the Senate of the United States. The first governor under the Constitution of 1829-1830 was John Floyd, who partici- pated actively in the war of 1812, and represented his district in the United States House of Representatives. He was conspicuous for his valor in the field, his wisdom in council and hisi devotion to^ country. The last governor under that constitution was John B. Ployd, a prominent political leader, and an influential member of President Buchanan's cabinet, and a distinguished major-general in the army of the Confederate States. The first governor under the Constitution of 1850-1851 was Joseph Johnson, who Tepresented his district seven successive terms in the Congress of the United States and died in the ninety-second year of his age beloved and lamented by all who knew him. The last governor under that constitution was that noble old Virginian, William Smith, who served his people most faithfully and acceptably in the General Assembly of Virginia,, in the Congress of the United States and the Confederate States, as major- general in the Confederate army and twice as governor of the Commonwealth. The first governor under the Constitution of 1869-70 was Gilbert C. Walker, who, although not native and to the manner born, rendered most valuable service to the people of Virginia during the perilous days of reconstruction, and reprensented the metropolitan district most efficiently. The last governor under that constitution is J. Hoge Tyler, who retires from office to-day without a blot upon his admistration and with the plaudit of "well done, good and faithful servant." (Applause). The Governor-elect, Andrew Jackson Montague (applause), is about to be inducted into office in the 126th year of the Commonwealth and in the morning of the twentieth century, under the most auspicious circumstances. He is in the full vigor of mature manhood. He enjoys to an unlimited extent the confidence and esteem of his fellow- citizens. He will doubtless meet all their just expectations and measure up fully to the Jeffersonian standard of honesty, capacity and fidelity. (Applause). Under his patriotic administration and by the blessing of Almighty God we may confidently indulge the hope that our beloved Commonwealth, crowned with the traditions of history and bearing 1 DEBATES OE THE CONSTITUTIONS AL CONVENTIOI^ OE VIRGINIA. 1709 in her hands the splendid trophies of the past, will move forward over the bright track of progress upon a new career of prosperity and glory. The chair now has the honor to present Andrew Jackson Montague, the Governor- elect, who will address you. (Applause). The Governor-elect delivered the following. INAUGURAL ADDRESS: Mr. President and Gentlemen of the Convention'. My appreciation of the confidence of my fellow-citizens and of the invitation which brings me into this honorable presence can best be expressed by this public and un- reserved dedication of myself to the service which the oath about to be taken will legally proclaim. In this devotion of myself to the public weal, I am not unmindful of the conditions w^hich embarrass your most patriotic purposes. No similar convention was ever con- fronted with the difficulties which stand in your pathway — difficulties political, economic and sociological. You are called upon not only to extricate the Commonwealth from political conditions wrongfully imposed, but to safeguard and make room for great and rapidly-growing industry and commerce, and to preserve inviolate the precedence and mighty mission of our race. No political conditions threatening the intellectual freedom and the civic virtue of our people; no vast displacements of capital by machinery and corporate owner-ship, giving rise to new and difficult questions of taxation; and no racial problems, vital and profound, evoked the thought of the Convention of 1850; while all of these momentous changes and their consequent results tax your deliberations and demand your most exalted courage. Surely, therefore, these conditions must secure from your fellow-^ citizens a patient and just consideration. The Virginia of the convention just named and the Virginia of the convention in whose presence I now stand afford a striking contrast. And yet, despite the years of war and waste, and the succeeding period of industrial and social revolution, the present is full of satisfaction and promise. In 1850 our population was 1,119,316, and notwithstanding the fact that in 1890, the only year for which accurate figures are obtainable, 38 per cent, of the people born in Virginia were living in other States and Territories of the republic, our present popula- tion is 1,854,184. In 1850 our taxable values, excluding slaves, railroads and banks were, in round numbers, $385,000,000, while similar assessments 'are now $439,061,280, which our rail- roads and banks increase to a grand total of $513,151,849. In 1850 our railroad mileage w^as less than 500 miles, as against 4,700 miles in 1900, the latter not exceeding the former more in length than in mechanical improvements, comforts of service, and value. At the former date our railroads were chiefly engaged in intra State commerce, whereas now the five trunk lines which traverse our territory make our ports of world importance. This is conclusively shown by the fact that in 1850 our exports were $3,415,646, while for 1900 we have the enormous gain of $47,870,419. Half a century ago we had no plants comparable to those of our day for the manu- facture of wood and iron and ship-building. Virginia now has the largest ship-yard and the largest dry-dock in the Western hemisphere. In the past year we have put upon the seas the fastest battle-ship afloat, and we have launched the two largest merchant vessels ever built in America. A new plant, but recently established by home enter- prise and home capital, is now not only building merchant vessels but is successfully competing with old yards in the construction of torpedo-boats and torpedo-boat destroyers, the most difficult and delicate of all marine work. Indeed, in our various ship-yards the value work on hand is, in round numbers, $~26,0D0,000, giving employment to some nine- thousand laborers. L ^ ^ ^ 9 3 LAW LIBRARY 1710 DEBATES OF THE CONSTITUTIONAL CONVENTION OP VIRGINIA. The extensive manufacture of cotton and of machinery and the construction of electric plants, together with the increased impetus in old and new fields of manufacture, are the indisputable evidences of the new industrial life breaking in upon our people. ♦ While the acreage of staple crops is somewhat less, due perhaps, partially to western competition, our large returns from cattle and horses, and from truck-farming and horti- culture, bespeak an assured prosperity for these forms of industry. Our prodigious resources of field and forest, of mine and water, await the touch of capital and skilled labor for their full development. Capital must give the power, and educated labor must broaden and build. Wilh capital and industrial skill will come immigration. But what will bring capital? A government of law and order, of security for life, liberty and property, and a government of low taxes and small indebtedness. Taxes will wasite within, and debt will bar capital and people out. So it is of supreme moment that the tax rate should be at all times commensurate with economic govern- ment, and that our public securities be retired with all possible expedition. But what of education? This is a momentous question for the Southern States. Republican government founded upon an electorate without intelligence is a house whose foundation is sand. The predominant feature of the century just closed is the exten- sion of free education to the masses of the people, and with this extension goes hand in hand the wealth producing power of the people; for the material advancement of a State is measured by the school privileges of its people. But one education differs from another as one star differeth from another in glory. There is an education of the learned professions, state-craft, science and philosophy, and there is an education of agriculture and the mechanical arts; the latter is the foundation of wealth and comfort, and is laid in the common schools. The age of the hand is past and the age of the machine is come. Its mighty power is at play in modern industrial progress. What shall we do with this force? Shall we observe its march with unconcern, or shall we command it to our own uplifting? If so, we must engraft upon our common free schools some forms of industrial and mechanical education. In proportion to her prosperity Virginia's contribution to public free schools is second to that of no State in the Union, but it is now to be feared that our free schools do not awaken the enthusiasm nor possess the full confidence of our people, in that they do not meet the exigencies of the industrial life which is flowing across the threshold of the new century. We should not resist this economic impulsion. We should put our- selves within its sweep by the establishment of a practical industrial education. It is the bounden duty of our State to do this, unless we would withhold from generations yet to come the simple discharge of our patriotic duty. The decrease in the number of those engaged in agricultural pursuits in the State is both significant and regrettable. Whatever may be the several causes, one of the moment, I venture to offer, is the condition of onr public roads. In many of our coun- ties, from two in three months in the winter season, our roads are a social and industrial blockade. This blockade should be raised. We should facilitate the social and com- l^iercial intercourse of our rural population. We have spent in the past five years about $2,100,000 upon the public roads, but this great sum has been of no appreciable good. May not failure be largely due to the fact that our people do not sufficiently realize what good roads are, and what a contribution they make to man's comfort and wealth? We should at least start a good road in every county which now has none. This will at once prove of extraordinary educational value, and when the knowledge of such benefits is once perceived we need not fear for the results. Words are inadequate to express, my sense of the importance of this subject, and I simply suggest this, as I do that of industrial education, for the purpose, of inviting public consideration, for later I enter- tain the hope of presenting my views more concretely to the legislature. In the race for commercial supremacy it has been found essential among successful States to make their resources known to the world. For such purposes great expositions have afforded the best facilities. In the succeeding year perhaps the greatest fair of DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 1711 the world will be held in St. Louis. The occasion is of peculiar interest to Virginia, for in celebrating the Louisiana purchase we celebrate at once the sagacity and patriotism of Thomas Jefferson. Whether it be wise for Virginia to make a mere historic contri- bution to this exposition I need not now consider; but I would remind our people that perhaps no such opportunity outside of our borders will occur in the next half a century for us to show our resources and products, and to make an exhibition which will so greatly redound to our material benefit. Nor should we forget our ter-centenary. We have long been too indifferent to our history, and this occasion will impress upon the world that Jamestown wasi the first permanent Anglo-Saxon settlement in America, and that fourteen years before the landing at Plymouth Rock the colony at Jamestown had plowed the furrow and sowed therein the seed of this mighty western civilization. Therefore, let us make this occasion a great historic episode. My purpose ia not to over-estimate the needs of our material advancement, but I can- not forbear to urge that the fullest use be made of all the gifts with which nature and circumstances have endowed this Commonwealth. It is not to the neglect of the higher and better things of civic life that I now so earnestly seek the co-operation of our people in the development of our resources, and in the cultivation of those arts and industries which make for our peace and prosperity; but rather to the linking of the inspirations and achievements of the past with the energies and enterprise of the present that I invoke our people. Let us take the best of the old and give it to the conditions of the present. I believe with the great Greek that the best science of ethics is the best science of government. The force of civilization is the superiority of private life, and a com- manding sense of right and wrong is the imperial virtue that moves and lifts civiliza- tion. I revere the old Virginia; the Virginia of simple living and high thinking; the Vir- ginia of sacrifice, of patriotism and of courage; the Virginia as a leader of the armies of the American Revolution and the maker of the American Union; the Virginia under fire and sword and surging squadrons; the Virginia in the agony of her struggle for the resumption of self-government. Let us lay hold of these virtues that have made for her a matchless name and ap- ply them to our material upbuilding; to a tolerant public sentiment and a catholic patriotism; to the elevation and retention of high and efficient men in the public service, and to "a decent respect to the opinions of mankind." Then will the sound of the ap- proval of the people be more majestic than the sound of many waters, and the day that dawns will be one of exceeding brightness. And now, in the, presence of these witnesses, and of Him who witnesiseth all things, I am ready to take the solemn oath that is to seal my inflexible purpose to serve the people" of this Commonwealth withoiit fear and without favor. (Applause). The president of the Supreme Court of Appeals administered the oath of office to the Governor-elect, the IJeutenant-Governor-elect and the Attorney-General-elect, and thereupon the Convention took a recess for five nfiinutes to afford the members an opportunity to pay their respects to the newly inaugurated officials of the State. At the expiration of the recess the President resumed the chair. Mr. Boaz: I move that the Convention adjourn until to-morrow morning at 10 o'clock. The motion was agreed to, and accoTdingly (at 12:55 o'clock P. M.) the Convention adjourned until to-morrow, Thursday, January 2, 1902, at 10 o'clock A. M. (No sessions of the Convention were held January 2nd and 3rd, on account of lack of a quorum — Editor.) SATURDAY, January 4, 1902. The Convention met at 10 o'clock A. M. Prayer by Rev. Richard McIIwaine, D. D. . On motion of Mr. McIIwaine the Convention resolved itself into Committee of the 1712 DEBATES OE THE CONSTITUTIONAL CONVENTION" OE VIRGINIA. Whole for the purpose of further considering the report of the Committee on Education and Public Instruction, Mr. Flood in the chair. The Chairman: The section of the report of the Committee on Education and Public Instruction under consideration is Section 12. The Secretary will read the section. The General Assembly shall make provision for the maintenance of the University of Virginia by an annual appropriation not less than nov^ provided by law. Mr. Marshall: Mr. Chairman, is there not a motion pending to strike out Section 12? If not, I make that motion. The Chairman: The question is on the motion of the gentleman from Craig (Mr. Marshall) to strike out Section 12 of the report. The motion was agreed to there being, on a division, yeas, 28; noesi, 23. The Chairman: The gentleman from Lynchburg (Mr. Glass) moves to reconsider the vote by which Section 12 was stricken out, and moves to pass that by. The motion was rejected; there being, on a division, ayes 25; noes 27. The Chairman: The question now recurs on the motion made by the gentleman from Lynchburg (Mr. Glass) to reconsider the vote by which Section 12 was stricken out. Mr. Meredith: I simply rise, without any expectation of changing any vote in this house, to enter my protest against the proposed action. This State is struggling to build up a system of education. There is not in the State a college to which any man would rather send his son than to the University of Virginia. I speak without any personal attachment towards it. There is not a college in this State, however, through which any man would rather have his child receive his final education, if he could afford to send him to the University. And yet it is proposed to^ hamper this, the highest educational institution in the State. The result of this action would be, if we act so as to hurt or hamper the University, that men will send their children to Princeton, to Yale and to Harvard, and they will do right. We may as well meet the situation. I am, a trustee of one of the other col- leges of this State, and a graduate of some of the schools of that institution, and yel I do not hesitate to say that if anything is done to pull down the University from its high position, or hamper it in its career, I would not hesitate to send my child to some high institution out of this State, at which to get his education. It is proposed to hamper this institution when we know it is a State institution, and therefore somewhat out of the probability of getting individual endowments. You hamper it by having it a State institution. Men" shrink from giving their funds to it because it is a State institution; and yet the State does not help it as it should. You cut its throat both ways. Jt is the leading college of this State. It is the place where our young men hope to get their final education. With the knowledge on our part that our men are going there, knowing that they cannot even now, with the assistance you give it, get as high an education as they can get at Princeton and Harvard, and colleges of that kind, because they have such large endowmentsi, yet it is proposed to strike out the pro^ vision which would tend to put it upon a safe basis. Mr. Keezell: Has not the Legislature of Virginia in all the past years dealt liberally with the University of Virginia? ^ Mr. Meredith: The State has given annually; but the University has annually had the same fight on it that exists in this Convention, and it is going to have the fight on it all the time, if left to the Legislature. It is our duty to prevent that fight. It is a State institution, and we ought to put it beyond politics. We ought to put it beyond an annual strain to get the little pittance that it does get from the State. That is my position in reference to it. Mr. Keezell: I simply asked the question, because I know there has never been any disposition in the Legislature of Virginia, so far as my knowledge of that body is concerned, not to deal liberally with the University. DEBATES OF THE COXSTITUTIOXAL COXVEXTION OE VIRGIXIA. ins Mr. Meredith: Am I not right in stating that every year it has to make a fight to get an appropriation? Mr. Keezell: You are net right. It comes here by its representatives. I have been a member of the financial committee of the Senate of Virginia for about twelve years, and I know no institution in this State has been dealt with as liberally and as generously and as freely as has the University of Virginia. Mr. Meredith: That is all true as to its having dealt with it more liberally than with any other college in this State. Does any man think for a moment that it ought not to so act? Is it any credit that it has dealt with it more liberally than any other college? Is it not the highest educational institution in this State? Is it not the one we all look to as the place where the young men of our State will get their final educa- tion? I have been told by men who know as much about the matter perhaps as some of yoti gentlemen, that every year they have to come to the Legislature to try to keep their appropriation from being cut down. 'Mr. Chairman, I have no personal interest in the world in this institution. I never went to the University, but I look at it simply as a citizen of this State, with the hope that we will see it an institution of the highest character and reputation. Ve must look to the University for the final education of our young men. It is our duty to protect it and to put it so that it .can always be safe in the matter of its appropriations. Mr. Boaz: Mr. Chairman, in reply to the statement that has been made here that no fight is made on the appropriations for the University, with all due respect to the gentlemen who make the statement. I think they are mistaken. I have been a member of the Legislature for a good many terms, and it has never been the case that the University has secured its appropriation unless there was an organization on the part of its friends. Its friends were always kept uneasy. They were forced to organize and to combine with the friends of other institutions and go into a sort of log-rolling busi- ness. The fact that no fight has iDeen made on some occasions was due to the strength of the friends of the I'niversity. Time and time again efforts have been made to cut the appropriation down to a ridiculously small sum. and I do think it would be a wise provision on the part of this Convention to refuse to strike out this section. It would set the matter at rest. Gentlemen urge that we ought not to make any appropriation in the Constitution. If we will turn back to Section 7 it will be seen that we have made a very large appropria- tion for the maintenance of the public schools. Ve have set aside the present literary fund, and in addition to that, a minimum tax of not less than one nor more than five mills for the maintenance of the public schools of the State. Now, if the only objection to this provision is because it makes an appropriation in the Constitution, that does not hold good, because we have done so in reference to the public schools, and the University of Virginia is universally regarded as the head of the public school system. I do not see why we should not make an appropriation for the head of the system, since it has been done for the body of it. I hope the motion to reconsider will not be voted down. Mr. Mcllwaine: :\Ir. Chairman. I differ from the gentleman from Richmond (Mr. I\Ieredithl. in the respect that I am an alumnus of the University of Virginia. I have the profoundest respect for that institution, and nothing but the kindest feelings in regard to it. During the past few days I have been calling up the memories which cluster about my student days at that institution from 1853 to 1855, when, not as an immature boy, but as a graduate of one of our other institutions. I entered the University. I can recall nothing in connection with my student days there that is not pleasant, agreeable and de- lightful in the retrospect, and still, sir. I must differ from the gentleman, and on this ground. I do not believe the University, or any other of our State institutions, ought to be freed from allegiance to the governing power of the State of Virginia. If you make this appropriation to the University of Virginia, why not to the Virginia Militaiw Institute? Why not to the Virginia Polytechnic Institute? Why not to the Fa.rmville Female Normal School? These institutions are all doing valuable service. We all have a high regard for them. We believe they are subserving the interests of the State. If 1714 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. you are going to inaugurate this policy to fix a settled endowment for one, why not for all? That is the ground on which I place it. The gentleman says the fact that the University of Virginia is a State institution has debarred it in large measure from private endowment. In this the gentleman is vastly mistaken. The University of Virginia, in my honest judgment, without having the facts and figures before me, has received more endowment from private individuals than all the other institutions in the State of Virginia put together, leaving out alone the Virginia Polytechnic Institute and the Hampton Normal School. Look at the Coch- ran endowment. Look at the endowment of that Jeffersonian Democrat in Boston who left the whole of his estate, amounting to several hundred thousand dollars, to the University of Virginia; and many other endowments that it has received. Now, sir, I would not say one word against the University. I would do everything in my power to promote its welfare; but so far from believing that this step is advisable, and that it would redound to the welfare of the University, I believe to the contrary, and therefore I cannot support it. Mr. Keezell: Mr. Chairman, replying to the statement of the delegate from Albe- marle (Mr. Boaz). I wish to state that I have never known in my service in the Virginia Legislature of an effort, having any appearance of strength whatever, to cut down the appropriations for the University of Virginia. There have been times when it was not thought by the Legislature advisable to give the increases asked for by the representa- tives of that institution; and yet I think if you go back and look at the history of the last twenty years you will find that only once in that time has there been a reduction in the annual appropriation to that institution, and very frequently special appropriations for particular purposes. The reduction was some four or six years ago, at a time when there was a general cut all along the line of expenditures. At that time the appropria- tion to the Universfty of Virginia was reduced either from $45,000 to $40,000 or frorc $50,000 to $45,000, I am not sure which. It was reduced $5,000 a year for two years At the very next session of the Legislature, when the finances of the State seemed to be in better condition, the appropriation was restored to the original amount, either tc. $50,000 or to $45,000, whichever it was. As an evidence of the friendliness of the Legis lature towards the University of Virginia, when the University miet with misfortune and was burned out there was authority given the University to borrow $200,000, with practi cally little opposition, for the purpose of rebuilding; the State making the additional appropriation necessary to pay the interest on this debt and create a sinking fund, practically guaranteeing this loan, and when you consider that it was very questionable whether or not it was not an unconstitutional proposition, you can see how friendly dis- posed the people of the State were towards the University. The annual appropriation has been gradually increased by the Legislature from $15,000 in 1860 until now it is $50,000; and as I have said, in addition, has frequently made special appropriations, as well as the loan of $200,000, upon which it authorized and stood in the position of guaranteeing payment of the interest, which, as I have stated, if not in opposition to the letter of the Constitution under which' we live, was at least antagonistic to its spirit. It seems to me that of itself is a refutation of the idea that there is an unfriendly spirit towards the University in the Legislature of Virginia, and an effort to take away from this grand institution a proper support. My position to-day is not an unfriendly one towards the University of Virginia. As a member of the Finance Committee of the Senate, I have invariably voted to sustain that institution to the very fullest extent; but I think it is unwise, even from the standpoint of a friend to the University, to undertake to put into this Constitution, which we hope may last a' generation or more, a cast-iron provision to the effect that under no condi- tion which may arise in the future can there be any reduction of fhe appropriation to this institution; that if the very existence of the State should demand reduction along all lines, here is one favored institution which cannot be touched; that it matters not whether pestilence or famine or what not may confront the State, you must appropriate DEBATES OF TFIE CONSTITUTIONAL CONVEXTIOX OE VIRGINIA. 1715 to this institution not a dime less than is paid now, whether its necessities require it or not. There is another objection that may be urged to this appropriation, and that is that the language of the clause is vague and indefinite. The question arises, What does the University receive now? You will say it is $50,000, yet when you come to analyze this proposition you will find that a certain portion of it is to pay the interest upon debt. If I remember correctly — I did not expect to make any remarks this morning, or I would have had the exact figures — there is one item of $6,000 to $8,000 to pay interest and sinking fund, which will expire in 1905, because the debt for which that interest has been appropriated each year will have been wiped out at that time. I want to know how this provision will be construed if you pass it as it is presented here by the report of the Committee on Education, when that debt has been wiped out? It is claimed by the friends of the University that it is not an appropriation to the University, but that it is an appropriation to pay a debt against that institution. AVill you have reduced what is required in this proposed provision then by the amount you save in the way of interest and sinking fund each year, or will it still be held that you must appropriate a no less amount in the gross than you do now? Suppose all of its debt were paid and no money were needed for interest and sinking fund — what then? I think it is claimed by many that much less than half of the $50,000 which is appropriated each year goes to the Uni- versity for educational purposes. A certain portion of it is to keep up repairs. A certain portion of it is to pay fixed charges in the way of interest, provide sinking funds, &c., and it seems to me if you pass this section, in its present form, you leave it a matter of as much uncertainty to be dean with by the Legislature as if the whole matter were left in the hands of the Legislature. Then again, I desire to say I agree with the principle which some one else an- nounced, that it is not good for any institution in the State to be put in the position of being divorced from a certain amount of dependence upon the people of the State. I do not believe in putting any institution beyond the control and entirely out of the power of the people who pay the taxes and support the government and it. The people have a right to a certain amount of control over these institutions, and they should not be put in a position of superiority to the people who contribute the money to sustain them. Mr. Glass: Mr. Chairman, I had not anticipated that this matter would be brought up this morning. I had hoped that it would be brought up when there would be a full attendance of the members of the Convention, so that it might be decided once for all. If it is decided by and in the presence of a bare majority of the Convention we will have to traverse the matter again in the Convention, v/hich would be a regrettable waste of time. The chairman of the Committee on Education assigned to me the particular duty of defending this section of the committee's report. I think I will be in order in saying to this Committee of the A^Hiole that the Committee on Public Education discussed this matter from every possible standpoint; that on three or four occasions the committee afforded those members of the Convention who are opposed to this proceeding ample opportunity to be heard; that they were heard in numbers, and that on three occasions a vote was taken by your committee, and resulted in the almost unanimous adoption of this section by the committee. On no occasion were there more than two votes cast against it. Mr. Mcllwaine: Three: Mr. Glass: I do not recall that there were more than two votes on any one oc- casion. I recall that, perhaps, there were three members of the committee who were at one time or another opposed to it. I readily concede that, upon a superficial view of the question, it would appear to persons not understanding the reason for embodying this proposition in the report of the Committee on Public Education an unreasonable thing to do, and an indefensible discrimination against other institutions; but your committee thoroughly considered 1716 DEBATES OE THE COIS^STITUTIONAL CONVENTION OE VIRGINIA. that phase of the subject, and I want briefly tO' state the facts of the case. It is not a discrimination against any institution in this State. No other public institution of learning in Virginia occupies to the people of Virginia the same peculiar position that the University does. There is no other university in Virginia. This institution is the property of the Commonwealth, albeit gentlemen talk about it here as if we were making some donation to some institution as a matter of mere gift or charity. The University of Virginia is the property of this State. It is either a good thing for the State to own and operate it or it is not. If it is not, the appropriation ought to be discontinued and the institution abolished. If it is a good thing, then the State ought tO' sustain it, and there ought never to be any doubt that the State will sustain it, and sustain it well. Every denominational college in the State or Virginia — and it cannot be denied — is to-day in positive, aggressive hostility to the University of Virginia. Now mark that — I say every demoninational college in this State is to-day in positive, aggressive hostility to your State University, and I ask you to consider for a moment what that means. I will ask the distinguished chairman of your committee if a single student from Hampden- Sidney College, of which he is president, attended the University of Virginia last year. Mr. Mcllwaine: Not one; but the reason was not because of any hostility, but because the University of Virginia does not afford facility for post-graduate students from our colleges. Mr. Glass: Why does it riot? Mr. Mcllwaine: I do not know. Mr. Glass: It is because this State does not give it the proper support. It is be- cause this State requires it to pursue a policy that is not in strict accord with the policy of university education. It never will be a university if it is compelled always to go before the General As- sembly and encounter this talk about being a "rich man's school." It never will be a university as long as it has to go before the General Assembly year after year and fight for its very existence. I assert, again, that there is not a denominational college in Virginia that is not in aggressive hostility to^ the university; and why? I do not blame them for it. If I were in control of these institutions I would occupy the same attitude toward the University of Virginia; because, instead of having a university, with the public funds at its com- mand, this great State institution is compelled to take young men who are immature as to their habits, immature as to their mental capacity and without adequate prepara- tion for university life. The result is harmful to education. Thus it is the University of Virginia comes in active competition with the colleges of this State, and it ought not to be so. And yet, when the board of visitors has undertaken, as it frequently has, to establish an entrance examination in order to make the university what it purports to be — in fact as, well as name, a university — and to take it out of competition with the denominational colleges, thereby creating a feeling of co-operation with these colleges, we are invariably met with the statement that if we do that the General Assembly will cut off this appropriation; and thus the governing authorities at the University of Vir- ginia have been prevented from making it a greater university in fact. If the University of Virginia is not to get the material turned out by the colleges of the State, where must it look for its material? It will not get the graduates of our State colleges as long as it takes immature youths in direct competition with these colleges. Now, gentlemen of the committee, you must remember that your State University comes intO' competition with the wealthier institutions of this country at the North — colleges like Princeton, and Yale, and Harvard — that are richly endowed, some of them to the extent of $15,000,000, and yet the University of Virginia has available now, if I remember aright, an endowment of only a little more than $350,000. It must come in competition with these great institutions. Our people have no money to give it; or if they have, they do not give it in shape of endowments, and I will say tO' the distinguished chairman of our committee that the major part of its present endowment has come DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE VIEGIXIA. in: from sources outside of Virginia. If ihe lax-payers of Virginia, who own tlie universiiy, are not going to sustain it; if tliey are not going to enable tlie governing body of that institution to make of it what Mr. Jefferson designed it to be. and what it is to the interests of this State that it shall be, who is going to do it? More than one-half of the annual appropriatio^n made by the State of Virginia is used for stated expenses, such as maintenance of the buildings and payment of interest on account of the debt that came orer during the war and created by the nre; so that a very small part of this an- nual appropriation goes to sustain the university proper in its work. Moreover, the University of Virginia has lost, and it has failed to obtain, the services of certain eminent men because of the fact that its existence is always endangered. All of us know that the great teacher of Greek at the university. Professor Gildersleeve, went to Johns-Hopkins, when his heart was with the University of Virginia. Some of us know that in recent years, when the board of visitors of your university undertook to secure the services of Mr. Voodrow Vilson, a native of Virginia, an alumnus of the University of Virginia, whose heart vras constantly turning to his alma mater, one of the most accomplished men in this nation, a genius in educational work — when it undertook to secure his seiwices, and supposed it had succeeded, it failed because of the ver;:.* difficulty we are now seeking to cure. Had we secured Mr. Wilson the probability is that his intercourse and influence with the wealthy people of the North would have nearly doubled the endowment of the university in a few years. Vliat other institution in Virginia occupies this peculiar attitude? Vhat other insti- tution in Virginia is hostile to the denominational colleges, and to what other institution in Virginia are the denominational colleges hostile? Not one? I cannot say, from actual observation, but other members of the General Assembly do say to me that the University has a fight on its hands even.- time it gets an ap- propriation for a particular purpose. I have heard it said, and I believe it is true, because we have been met with the same opposition right here, that some persons do not want to "put the University in the Constitution"' because they avowedly do not want to lose the powerful aid of the University in lobbying before the Legislature when other institutions need appropriations. Is that the proper way to get an appropriation from the General Assembly? I wish, sir, the chairman of this committee had put somebody here better qualifled than I to state the case of this great institution. It seems to me we are deciding now the degree of usefulness which the University of Virginia shall be to the youth of Vir- ginia. If it is going to be continued along its present lines it will never reach that degree of usefulness which its founder designed it to reach, and which the people of Virginia should take pride in helping it to reach. It is hampered by the fact that its very existence is frequently dependent upon the whims or prejudices of gentlemen who designate it ''the rich man's school." I am not a graduate of the University of Vir- ginia or of any other institution. I belong to that large and ignorant body of people who, by reason of the fact that they have not enjoyed the blessings of a collegiate education, naturally entertain a prejudice against institutions of the sort. My own prejudice was so pronounced that when I was tendered an appointment to the board of visitors, I declined at first to accept, feeling that I could not be of service to the insti- tution. The fact that I take a different view and speak so earnestly for the University to-day is a testimonial to the power of enlightenment. I have gone there and have seen the great work the University is doing for Virginia, 3.nd I stand here to-day, with- out collegiate instruction, sadly and humiliatingly deficient, a plain man — to plead for the sons of the plain people of this Commonwealth, and to ask you to sustain this insti- tution, to put it on a permanent basis and beyond the assaults of demagogy, to the end that the sons of the plain people of this Commonwealth may get the advantages that the University of Virginia holds out to them; and I do sincerely hope that it will be the pleasure of this committee to reconsider "the vote by which the University was just now struck down. Mr. Gregory-: Mr. Chairman, it is with great reluctance that I occupy the time 1718 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. of the committee on this question. The position I occupy is such, however, that I feel constrained to do so, in view of the statement made by the distinguished gentleman from Lynchburg (Mr. Glass), who has just taken his seat. He has stated to this com- mittee that all of the denominational colleges of this State are in hostility to the Uni- versity of Virginia. It is that statement which calls me to my feet, and prompts me to ask the indulgence of this committee in making a few observations. I am an alumnus of the University of Virginia. I voted against striking out the twelfth section of the committee's report, and I did it for several reasons. The first one is that I think the University should be an honor to the State of Virginia. It is due to the memory of its founder that the State of Virginia should put it upon an Independent footing, that it may do the work that was assigned to it by its founder. I have been connected with one of the denominational schools of the State for the past eleven sessions, this being the twelfth session. It is my privilege to be permitted to give instruction in law in Richmond College, and for myself, and so far as I am able to know, I must say that the gentleman from Lynchburg is in error when he says that there is a feeling of hostility between all of the denominational schools of this State and the University of Virginia. There is no such feeling of hostility, so far as Richmond College is concerned; but I do admit that they are in a state- of competition. They are brought in competition with the University of Virginia, and I for one, wish to see the necessity for that competition removed, so that the University of Virginia may confine itself to such work as was designed by its founder, and leave to the colleges the work that they should properly do, and that that competition may be removed. I want to see the University of Virginia put upon such a footing that she may not be in a. position which makes it necessary for her to canvass the State foi* every pupil that can be induced to go there, without any reference tO' his qualification. If my friend (Mr. Glass) will qualify his remark by saying that the denominational schools are in competition with the University, I have no objection to accepting it as correct. It is true, and the ground for it should be removed. The best way to ac- complish this is to put the University upon a firm and solid foundation, and I do trust it will be the will of the Convention to do that. Mr. Glass: Mr. Chairman, just in that connection, I cheerfully confess that I was, perhaps, not entirely fortunate in the use of language. Of course I did not mean to assert that the denominational institutions of Virginia are in hostility to the University, as such. I simply intended to say that they are postively and righteously hostile to the policy that the University is forced to pursue; that they are hostile to this policy adopted by the University, of canvassing the State, as my friend has said, for the imma- ture youth, whO' ought to have his preliminary training in State Colleges. Mr. P. W. Campbell: Mr. Chairman, it does seem to me that the motion of the gentleman from Lynchburg (Mr. Glass) to reconsider the vote that has just been taken . should prevail. I have just been looking over the membership of the Committee on Education, in view of the vote on such an important matter as this, and there are only five members of that committee present here this morning. Some of the members who have been most active in support of the committee report are absent. Is it possible that we are to take — no, I will not say snap judgment, but that we are to take premature judgment and vote this matter down, when every other request to reconsider has been carried almost by unanimous voice? Mr. O'Flaherty: On the day we adjourned, just before Christmas, I begged the committee, almost with tears in my eyes, to wait until the members of the committee were all here, and they would not do it. Nov/ I want to know why they are not here. Mr. P. W. Campbell: Well, Mr. Chairman, if the gentleman from Warren (Mr, O'Flaherty) will recollect, we were on the eve of departing for our homes on that day. Everything w-as in confusion, and if he will recall the fact, the reason why the members of the committee did not want the question put then was for the same reason that they, do not want it put to-day — because there was a bare quorum. Mr. Chairman, the gentleman from Rockingham (Mr. Keezell), speaking for the DEBATES or THE C0XSTITUTI02^"AL CO'^'VEXTIO^' OF VIEGIXIA. i:is> Legislarure — and I have no criiicism to pasis upon any past Legislatures, in any way, shape or form — says that the University O'f Virginia has never heen in danger of losing- its appropriation. I knovr the gentleman is mistaken. It v;-as my fortune, sir, to be a student at the I'niversity of Virginia during the session of 1596-97. The State hac- just passed through a Presidential election, and political feeling vras high, As chairman of a committee representing the tvro literary societies at the University, I entered into correspondence v^ith ilr. William J. BiTan, inviting him, on behalf of those societies, to make an address there. The faculty of the University, it was reported, was in op- position to him, and such was the indignatio^n of a large portion of the people of the State, based on that report, that I have in my. possession now letters from members of the Legislature saying that unless the faculty withdrew their objection, when the matter of the annual appropriation came up before the Legislature of Virginia they would take pleasure in using their influence to defeat it. Ve are here to-day asking this committee to remove the University of Virginia from that very evil which threatened it then and which in the future may threaten it. It is not my fortune, sir, to be a graduate of the University of Virginia. Like my friend from LAmchburg (Mr. Glass), it was not my fortune to be a gi'aduate from any college, and I would not to-day utter my protest against the action of the committee if the members of the committee, who are more competent than I am to discharge the duty, were here. But they are not here, and it devolves on some one to ask that the Committee of the VThole accede to the request of the gentleman from Lynchburg — a request in no sense unreasonable, a request that has been granted on other occasions without a single question; and why not grant it to-day? Is it because the friends of the University, of their ovm volition or through misfortune, are not here to-day? Sir. I stand here pleading not only for the University of Virginia, but for the young men of the State. As the youngest member of this body I think I have the right to plead for the young men of the State. VTe are to-day. in my opinion, by this hasty action, threatening a blow at the deserving lioor young men of the State of Virginia. Ve all know the conditions that exist in The Iniversity of Virginia: and why do the^- exist? As pointed out by the gentleman from Lynchburg, they exist because the I'niversity of Virginia has to come in contact and competition with the sectarian colleges of the State. You say, "TVhy do they have to do it?" The chairman of the committee has asked" upon more than one occasion that you will not place the University- of Virginia upon a university basis, but that you will force it into competition with your colleges; and then because you put the yoke upon it. you sa^- that the University of Virginia, through State agencies, is ti^'ing to choke out the smaller colleges, 'SlT. Mcllw8.ine: VTlll the gentleman please tell me when I said any such thing as that ■? Mr. P. V, Campbell: Yes, sir; I remember early In the summer the distinguished gentleman and myself had a controversy, and the gentleman used the language that I have just quoted, if I am not mistaken. Mr ISIcIlwalne: I have no recollection of ever having any controversy wiih the gentleman on the subject at all. Mr. Chairman, before the vote is taken I just want to say a word, not on the merits of the main question at all. I have said ail I have to say in regard to the main question: but I do not want to be misunderstood, either by any member of this Convention or by any intelligent citizen of the State of Virginia. I want you to understand that I act fairly and squarely and above board in everything; and if any snap judgment has been taken in this matter it has been taken upon a caution given by me this morning before making the motion to go into Committee of the Whole. I sneclficaliy stated there were only three questions in the report of the Committee on Education that had not been determined on; that two of them had been passed by, and that this was the third. I made that statement in order that any gentleman might make objection to going into Committee of the Whole. There was no objection, and we went into Committee of the Whole and have progressed thus far. 1720 DEBATES OE THE CONSTITUTIONAL CONVENTION" OF VIRGINIA. I have not one syllable to say against the University of Virginia, when I think of the honorable gentlemen who filled those chairs when I was there, such men as Minor, under whom I took a course, Gessner Harrison, Frank Smith, and McGuffey, all of whom, I believe, are in heaven except the venerable Frank Smith, who was on this floor the other day, and whose hand I had the pleasure of grasping, a man who this year fills out his semi-centennial of service at the University of Virginia, has stood there not only as a grand professor, but as a grand Christian man, honored and beloved by all who came under his influence. Now I would say a word on the subject spoken of by the gentleman from King William (Mr. Gregory) ; but he has done it so effectively that I need not say another syllable. Mr. Chairman, there is no hostility on the part of the colleges of Virginia to the University of Virginia. We all recognize our indebtedness to it. I could say a great many good things about the University, and I reckon maybe I will some of these days when the question comes up again. I have no objection in the world, sir, to the postponement; but just remember that the Committee on Education is ready to go on now. (Laughter.) Mr. Marshall: Mr. Chairman, I do not care to take up the time of the committee for more than a few moments. I regret as much as the gentleman from Washington (Mr. Campbell) possibly can that the members of the Convention are not here. If the lashings by the public press and the mutterings of the people do not give us a quorum, those of us who attend here ought not to be held responsible for it, and we ought to go on and transact this business; for I will tell you there is going to be a hot old time in this State if we do not soon get down to business and do something here. You may mock and you may treat lightly the patience and forbearance of the people, but when you get them stirred once, they are not easily trifled with. Now, Mr. Chairman, if I understand this proposition, it is contended that by putting into this Constitution this appropriation that is to continue during the lifetime of the Constitution to the University of Virginia it will be enabled to become a greater and re- nowned seat of learning. What does that involve? You certainly concede that you do not intend to do any more, if this appropriation is put in there in its present form, than you do now. You come in here and say "You are not now doing the work of a great university and you will never get the Legislature to give you any more than this appro- priation." If this does not answer our purposes, when it comes in the shape of an appropriation in the annual appropriation bill, how can it efficiently be improved upon simply because it comes as a continuing appropriation in the Constitution of the State? The gentleman from Lynchburg '(Mr. Glass) says "Who owns the University of Vir- ginia?" The same query might well be made as to the Virginia Military Institute. That institute in its sphere and in its relation to the educational interest of the State has brought as much renown and lustre to this Commonwealth as even the University of Virginia. Its graduates have reflected honor upon this State as well as upon their Alma Mater; and if this appeal is to be heeded in behalf of the University, why would it not come with the same grace from the Virginia Military Institute and from these other institutions which the State owns and controls? If professors are leaving, and have left, and refuse to come because the Legislature has made inadequate appropriations in the past, how do you expect to improve that con- dition when you do not increase your appropriation in this Constitution, for the amount of the appropriation is just what the Legislature gave last year? Mr. Chairman, it is now more than a quarter of a century since I first occupied a seat in the other end of this Capitol. Twenty-six years ago there was an appropriation to the University of Virginia of $15,000 and to the Virginia Military Institute of $10,000, Gentlemen, the Legislature, whatever may have been its faults and its defects, and doubt- less it has them, has not been unmindful of your wants, nor has it been untrue to your interests. It has increased those appropriations until they are now beyond $50,000 to- this institution. I repeat, the Legislature has not been unmindful of its duty to the University of Virginia when you remember that fact. It has constantly increased the DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OE VIEGIXIA. 1T21 appropriation, and it is incredible to believe that it will be recreant to this trust in the future. I oppose putting any appropriation in this Constitution. I would relegate even the fixing of the salary of the Governor to the people who pay it, through their repres- entatives. But he does not succeed himself. We refused to put in the Constitution the appropriation for the salaries of the circtiit jtidges. It is true the provision was left in the Constitution fixing the salaries of the judges of the Supreme Court of Appeals; but it is very questionable to me, even when that question comes back on the floor of the Convention, whether that appropriation will not go otit. So I am opposed, on principle, to putting this provision in here. Make no appropriations in your Constitution. In reference to whether these denominational schools are antagonistic to the Uni- versity or not, I do not know. I took one of my own boys from one of them and sent him to the University of Virginia; so I have only had that one opportunity to patronize it, and I did so. I did not send my boy to Yale. Harvard or Princeton, but I did send him to the University of Virginia. I want to say that I have no enmity or hostility to this institution. It is not my good fortune to be an alumnus or ever to have been within its historic precincts. It was my misfortune to have received very little education, even less than the distinguished gentleman from Lynchburg, and that is very little, according to his own testimony here. (Laughter). But I will say in passing that I hope the good Lord will give us a few more ignoramuses in Virginia like him. (Laughter). Now I hope we will remand this question to the Legislature, where it properly belongs, and where it has received proper and creditable attention in the past. It is not fair to the children of the State that we do this, nor is it just to the free schools of the State. Let us first foster the common schools of the State, and leave it to the Legislature as to the higher educational facilities. The Chairman: The question is on the motion of the gentleman from Lynchburg (Mr. Glass) to reconsider the vote by which Section 12 was stricken out of the report. The motion was agreed to; there being, on a division, ayes 36; noes 16. Mr. William A. Anderson: I move that that motion be passed by. The motion was agreed to. The Committee rose and on motion of Mr. Garnett the Convention adjourned until Monday, January 6. 1902, at 12 o'clock meridian. MONDAY. January. 6. 1902. The Convention met at in o'clock A. :\I. ' ■ Prayer by Rev. AV. F. Dunaway. D. D. On motion of :\Ir. Hunton the Convention proceeded to the consideration of the report of the Committee on the .Judiciary. The Secretary read Section 1. which was adopted. Section 2 was read and Mr. Turnbull moved to amend by striking out the word "three" and insert "one," so as to make the jurisdiction of the Supreme Court of Ap- peals $100 instead of $300. The motion was rejected and the section adopted. Sections 3 and 4 were adopted without amendment. Section 5 was read. An amendment to have the judges of the Supreme Court of Appeals elected by the people was defeated by a vote of 29 to 38. and one to have them appointed by the Governor, with the consent of the General Assembly was defeated by a vote of 32 to 38. Sections 6 and 7 were adopted. Section 8 providing for twenty-four judicial circuits, was then read. On motion of Mr. Stuart. Giles county was put in the twenty-first circuit. Russell was put in the twenty-second circuit, and Grayson was put in the twenty-third circuit. 109 — Const. Deb. 1722 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Mr. Keezell moved to substitute "Highland" for "Rockbridge" in the eighteenth circuit. The motion was defeated. The further consideration of Section 8 was temporarily passed by. Section 9 was adopted without amendment. The hour of 2 o'clock having arrived, the Convention adjourned until tomorrow, Tuesday, January 7, 1902, at 10 o'clock A. M. TUESDAY, January 7, 1902. The Convention met at 10 o'clock A. M. Prayer by Rev. Richard Mcllwaine, D. D. On motion of Mr. Ayers the report of Public Institutions and Prisons was recom- mitted. Mr. Stuart moved to reconsider the vote by which his amendment to Section 8 of the Judiciary report was adopted. Messers. Blair, Gwyn and Wysor spoke in favor of the motion to reconsider. Messers. Stuart and Summers opposed reconsideration. The motion to reconsider prevailed — ayes 39; noes 36. The President: The question recurs on agreeing to the amendment proposed by the gentleman from, Russell (Mr. Stuart.) The amendment was rejected — ayes 32; noes 44. Mr. Portlock: 1 offer the following amendment: Strike out lines 1, 2, 3 and 4 of Section 8 and insert the following: "The State shall be divided into at least twenty-five judicial circuits, as follows: The county of Norfolk shall constitute the first circuit." The amendment was rejected. The President: The question recurs on the adoption of Section 8. The section was adopted. Mr. Hunton: Mr. President, I move that the vote by which Section 8 was adopted be reconsidered and that that motion be laid on the table, The motion was agreed to. Section 10 was read and adopted, Mr Turnbull: I move to amend Section 11 by adding after the word "circuit," the words "or city." The object of that amendment is simply to allow the circuit judges to hold courts in cities. The amendment was agreed to. Mr. Barbour: I move to amend Section 11 by striking out the word "separate" and striking out the words in lines 8 and 9, "as defined in Section 12 of this article until said city court shall abolish its existing city court," and substitute for them the words "having a separate city court," so lhat that portion of the section would read: But no separate circuit court shall be held for any city having a separate city court. The amendment was rejected — ayes 19; noes 55. Section 12 was read and Mr. Quarles proposed the following amendment: Strike out the following words in Section 12, after the word "exist," in line 50: In case of the abolition of the corporation or hustings court of any city of the second- class, such city shall thereupon become in every respect within jurisdiction of the cir- cuit court of the county wherein it is situated, until otherwise provided by law, and the records of such corporation court shall thereupon become a part of the records of such circuit court, and be transferred thereto. DEBATES OE THE COXSTITUTIOXAL COXTEXTIOX OE VIRGINIA. Iv23 And insert in lieu thereof the following words: In case of the abolition of the corporation or hustings court of any city of the second-class containing five thousand inhabitants or more, such ciiy shall thereupon have a separate circuit court and become a part of the circuit of the county in Y\-hich it is located, until otherwise provided by law; and in case of the abolition of the corporation or hustings court of any city of the second-class containing less than iive thousand in- habitants, such city shall threreupon become in every respect within the jurisdiction of the circuit court of the county wherein it is situated until otherwise provided by law, and the records of such corporation court shall thereupon become a part of the records of such circuit court and be transferred thereto. Mr. Quarles: 3,Ir. President, the ordinance under consideration, as adopted by the Committee of the Whole, provides that the people of any city of the second-class may abolish its corporation court by popular vote. The words which I ask to be stricken out provide that when such abolition shall take place, the city shall pass under the jurisdic- tion of the circuit court of the county in which such city is situated, and the records of the abolished court shall be transferred to the circuit court. These words were inserted by an amendment which was adopted just as the ordinance was completed in the Com- mittee of the Whole. Now, under the report as it came from the Judiciary Committee, on the abolition of the corporation court .in a city of the second-class, that city vvould have a separate circuit court; but the amendment mentioned, as adopted in the Committee of the Whole, changed the ordinance so that it now provides, as I have stated, that upon the abolition of the corporation court of any city of the second-class, it leaves the city without any separate court whatever. This I wish to prevent, and I propose hy my amendment that, upon the abolition of the corporation court, the city shall have a separate circuit court in place of the corpora- tion court, until otherwise provided by law — that is. in any city of the second-class con- taining 5,000 inhabitants or more. The amendment provides that in cities of 5.000 inhabitants and more, upon the abolition of the corporation court, a separate circuit court shall be establisned in that city, but in cities of less than 5.000 inhabitants, when the court is abolished, the city is brought within the jurisdiction of the circuit court of the county in which such city is located. I fixed upon 5,000 inhabitants because, under the present Constitution, this is the population necessary for a city. The municipalities in this State containing 5,000 inhabitants or more have had separate courts for thirty years, and I do not think it is right and fair to them that, upon the abolition of the corporation court, they shall be deprived entirely of a separate court. The people will be required to decide when they vote, as the ordinance now stands, between whether they will abolish the corporation court and have no separate court in its place, or retain the corporation court. I want them given the right to de- cide whether or not they will have a corporation court, or a separate circuit court in its stead in cities of 5,000 inhabitants or more. This right my amendment gives. Mr. Hunton: Mr. President, as I understand the amendment of the gentleman from Augusta (Mr. Quarles), It is, whenever the corporation courts in these cities of under 10,000 inhabitants have been abolished under the terms of the Constitutional provisions, the circuit court can be held specially for that city; whereas by the article, as it was reported by the committee, the city remains at once within the jurisdiction of the cir- cuit court for the county in which the court is held until the Legislature convenes and can make proper legislation to relieve the situation. In my judgment, if the amendment of the gentleman from Augusta prevails, it would produce inextricable confusion in the circuits in which these corporation courts had been abolished. ^Tien vrould the terms be held? How often would they be held? It is in the nature of a provision for the circuit court, without those details being worked out in the Constitution. It seems to me that the orderly, wise way to do, the way that would result in no confusion at all, would be that, upon the abolition of the corporation courts, let the Legislature pass 1724 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. upon it and arrange for the situation. Until that is done, that city falls, by the terms of the article as adopted in the Committee of the Whole, within the jurisdiction, and is always within the jurisdiction, of the circuit court of the county in which the city is located. In the judgment of the chairman of the committee this amendment would produce inextricable confusion, and I trust it will be voted down. Mr. Quarles: Mr. President, I fail to see the confusion that will result from this amendment. No terms of the courts are fixed by the Constitution; they will all have to be fixed by the Legislature; and all the Legislature will have to do, if the people shall abolish the corporation court of any city, will be to fix the terms of the circuit court for such city just as it will fix the terms of the courts for the counties and other cities of the State. From what will the confusion result? II is apparent there will be no con- fusion. And I insist that it would be most unfair and unjust to the people of cities of 5,000 inhabitants or more, when they shall abolish their courts, to be compelled, as they will be in some cases, to go great distances to attend court. The point I am trying to impress on this Convention is that cities of 5,000 inhabi- tants or more ought to have separate courts, and I simply provide by this amendment that when the people shall abolish the corporation court, they shall go at once from that court to a circuit court. As the ordinance now stands, when the people shall abolish the corporation court, they will be entirely without a separate court. Mr. Meredith; If Staunton abolishes her city court, the result will be, under your amendment, that there will be separate terms of the court for that city. Mr. Quarles: Yes, sir. Mr. Meredith: That would put an additional burden upon that circuit. Let usi take the city of Charlottesville. If Charlottesville abolishes her court, then you have to have separate terms in Charlottesville for the Charlottesville court. That will lessen the -opportunity of the judge of that circuit to perform his duties. Is not that the result of your motion — bringing about the confusion the chairman of the committee spoke of? You upset these judicial systems. Mr. Quarles: I understand this report was drawn with the expectation that these cities of the second-class will abolish their corporation courts, and the districts are arranged with reference to that. Why does the gentleman now talk about disarranging the circuits, when the report was drawn with the expectation that this very thing I am speaking of will happen. Mr. Meredith: Allow me to say that it was not drawn with any idea of a separate term. That is your distinction. You are not required to abolish your court, but if you abolish them voluntarily, then you become a part of that circuit, and the county of Albemarle will take charge of the business of Charlottesville and the county of Augusta ivill take charge of the business of Staunton. You propose to do what was never con- templated by the Judiciary Committee' — to have separate terms in these small cities, which would knock out the whole system so far as those circuits are concerned. Mr. Quarles: Mr. President, I did not so understand the report of the Judiciary Committee. I find in Section 11 of the Ordinance, as it came from that committee, this language: "But no separate court shall be held for any city of the second-class until said city shall abolish its existing city court." Does not that language imply that such cities are to have separate circuit courts on the abolition of their city courts? It certainly does, and this was what I understood to be the purpose and expectation of the committee. This language fully warrants the position I take. The amendment was rejected. Mr. Harrison: Mr. President, I desire to offer an amendment, and I do so with the consent of all the members of the Judiciary Committee that I have been able to see. T understand there is no controversy about it among the representatives of the smaller cities. It is to add at the end of Section 12 these words "And during the existence of the corporation or hustings court, the circuit court of the county in which said city is situated shall have concurrent jurisdiction with said corporation or hustings court in DEBATES or THE COXSTITUTIOXAL CONVEXTIOX OE YIRGIXIA. 1725 all civil matters." It leaves the jurisdiction of the circuit courts of these little cities exactly as it is now. In the smaller cities the circuit courts are considered a part of the counties, and the jurisdiction of the circuit court is concurrent with that of the city court. I understand there is no objection on the part of the Judiciary Committee. It is, in fact, carrying out in more distinct language what they intended; and there is no objection on the part of the representatives of any of the smaller cities in the body. I therefore ask the adoption of it. Section 12, as amended, was adopted. Sections 13, 14, 15 and 16 were read and adopted, after being amended in unimpor- tant particulars. Section 17, relating to the salaries of the judges, was then read. Mr. Marshall moved to leave the fixing of the salaries of judges of the Supreme Court of Appeals to the Legislature, and Mr. Ayers offered an amendment fixing the salaries of the Circuit Court judges at $2,500 per annum. Both amendments were rejected — the first by a vote of 25 to 46, and the second by a vote of 34 to 39. On motion of Mr. Barbour a minimum salary of $2,000 per annum was fixed for Cir- cuit Court judges — one-half of which salary is to be paid by the State. A motion by Mr. Parks, that the amount of salaiw provided shall include mileage, was defeated. Mr. James W. Gordon, moved to insert after the word "Richmond." in line 21, the words: The salaries of the judges of city courts in cities of the first-class shall be not less than $2,000 per annum." The amendment was agreed to. Mr. Barbour: Mr. President, I move to amend this section by striking out the words beginning in line 33, "one-half by the State, and the other half," and substituting the words, "respective cities" for the word "city," in line 35, so that the section will read: The salaries of judges of the city courts containing more than 10,000 inhabitants shall be paid by the respective cities. I wish to state. Mr. President, that the effect of this amendment will be to keep the expense, so far as the State is concerned, at just about what it is now. For instance, in the city of Alexandria they have exactly the same facilities they haA'e always had, and still the State comes in and says, "I will pay half of the salary of your corporation judge." That does not appear to be fair. The same thing applies to the cities of Petersburg, Danville and Lynchbtirg and other cities of that class. While yoti have deprived the counties of one-half of their court facilities, you have decreased the direct expense to them about $15,000 but yoti have increased the indirect expense about $4,000, and there is nothing fair about it. AYe are Avilling to have our court facilities done away with, but when they are done away with I think the expense of it ought to be done away with. I do not see any reason why, if these cities of from 10,000 to 30,000 inhabitants have exactly the same facilities they have always had, they should ask the: State to pay one-half of the expenses. I hope the amendment will be adopted. Mr. Meredith: Mr. President, I do not think the gentleman has seen the unfairness of his proposition. Otherwise I do not believe he w^ould have contended for it. Taking the city of Richmond, she pays one-seventh of the taxes of the State. She is entitled to court facilities, no matter whether they require one, two or three judges. Mr. Barbour: If the gentleman will pardon me a moment, I wish to call his atten- tion to the fact that she pays about one-seventh of the taxes, as he says, but gets about one-sixth of the judges. Mr. Meredith: Four out of forty do not constitute one-sixth. Now, Mr. President, I respectfully submit that this effort to draw distinction between cities and counties by talking about the counties having given up their court facilities is not fair. Does the gentleman favor the circuit court system? Why does he say he- gave up anything? 1726 DEBATES OF THE COXSTITUTIONAL CONVENTION OF VIEGINIA. You speak of having surrendered something. Did you not surrender it for the pur- pose of getting what you believed to be a better system? And has it not been given you? It has been given you as far as we have been able to give it to you, and you have gotten a better system. Now let us see as to the cost. You say the counties have as- sumed the burden. Does not this report show that $22,000 has been saved to the counties out of $47,000 that they have been in the habit of paying? If that is a fact, how can you say you are being subjected to an expense which you have not heretofore had to bear? On the other hand, the cities save $400. That is the total of the saving of the cities. If you take into consideration what the city of Richmond will have to pay extra there is not a dollar saving to the city. You save 50 per cent, of what you used to pay. The cities do not save over $400, under the most Jiberal estimate. Now, you say these cities of under 30,000 arfe getting more than they did before. Let us see. They used to have the circuit court. Who paid for the circuit courts hereto- fore? The State. Heretofore they had a city court, Wlio paid for the city courts? They paid for them. Now, what do you do? You make them divide both salaries be- tween them. It isi just as long as it is broad. Instead of each paying for a separate court, they both pay for both courts, so that there is no saving tO' the cities. When you come to the city of Richmond, you propose to throw a burden upon us of three courts. You propose to say to the city of Richmond, with 84,000 people, paying one-seventh of the taxes of the State, and with certainly one-seventh of the business of it, "Although you pay that, I propose to make you pay for three of your four judges." The judges are supposed to be given upon the theory of the necessity for them. You give so many judges according to the necessity of the business, and yet when you come to a place wfhere you see the necessity for it, which has been recognized for years, you say, "You can Kave it, but I am going to make you pay for it." Where is the fairness of it? We aye sl part of the State. You talk about us as if we were foreigners, as if we ought to be put by ourselves. We furnish our proportion of the business of the State and the prosperity of the State. I submit to the Convention that the gentleman did not see the unfairness of the proposition, or he would not have offered it. Mr. Flood: Mr. President, I simply want to say a few words in behalf of the amend- ment offered by the gentleman from Culpeper (Mr. Barbour). I have never undertaken in my life, as a member of the Legislature or otherwise, to draw any distinction between the cities and the counties of the State of Virginia, or to array the one against the other. I do not propose to do so now, but I do believe, and that belief is not confined to me, but is widespread all over the Commonwealth, that the counties have been unfairly dealt with in this report, and that the cities have not been so dealt with. I believe the people of Virginia in the counties were willing to surrender their county courts provided there was a considerable saving to them or to the State of Virginia. It had been held out to them that there would be a saving of $50,000 or $60,000, but when they found out they were surrendering a court which satisfied their wants, and to which they were much attached, and were saving little or nothing by it, the sentiment has become widespread that this committee made a mistake in abolishing the county courts. Now, Mr. President, the cities will have exactly the same court facilities fhey have now. This report does not propose to take from the cities any of their courts. Every city in the Commonwealth will have just as good court facilities after this ordinance is adopted and becomes a fundamental law of this land as it has to-day; and the counties are to have their judiciary reduced by about ninety-five judges. You leave the cities the same number of judges, and you take ninety-five judges from the counties. I repeat, the counties would be satisfied with that if they were saving any money by it, if there was any saving to them; but when we come to examine the figures we see that the saving is deminimis. We see the saving is not sufficient to induce the people to willingly give up their monthly courts. As it is at present, Mr. President, the cities pay for their judges. I have never heard any complaint from the cities. Mr. Meredith: The city of Richmond pays for the hustings court $2,900. The DEBATES or THE C0y5IITUTI0XAL COXYEXIIOX OF YIEGIXIA. 1:2: State pays for three courts liere §2,300 apiece. Under the present system we assume a burden direct of SSOO over and above wliat we now bear. ^Ir, Flood: Tliat applies only to tlie city of Rlclimond and tlie city of Norfolk. Mr. Meredith; I think you will find that in the cities that had the circuit court facilities the State paid for those facilities. Mr. Flood: Of course. The State pays for all of the circuit courts now. I am talking about the city courts. The State has paid for all of the circuit courts, and the counties have never been called on heretofore to contribute from their treasuiw to pay for the circuit courts. They have paid for their county courts, and thej ask to be relieved of that burden, or some of them did. Some were opposed to it in the first instance, and have been opposed to it all of the time; but they would have acqiuiesced in the abolition of these courts if they were to be relieved of any burden. When you take their county courts from them you take their monthly term from them, and you impose a burden upon them to pay for the circuit judge who has always heretofore been paid for by the State. The cities, with two exceptions, have paid for their judges in the past. They pay for their judges at present, and I see no reason why they should be relieved of that burden and an additional burden put upon the counties. For this reason, Mr. President, I think the amendment offered by the gentleman from Culpeper is right. I do not know anything that this Convention has done, or will do, that is going to give such dissatis- faction throughout the State as this judiciary report. We hear the rumbling of discon- tent coming up from every section of the Commonwealth, and when the people of the State realize the fact, when the country people realize the fact, that their courts have been taken away from them, that ninety-five of their judges have been abolished, and yet they have not been relieved of the burden of paying for judges, the discontent will be gi'eat indeed. Mr. Thorn: Mr. President, it seems to me there is a great misconception of the attitude of this question before the Convention. Under the old judicial system of the State the county courts were paid'tof entirely by the counties, and the city courts, with one or two exceptions, were paid for by the cities. Now the whole of this jurisdiction, which heretofore was exercised by the county court, has, by the present article, been conferred upon the circuit court, and the counties relieved of the whole cost of the county court system. Being relieved of that amount, it was nothing but a fair proposi- tion that they should contribute something towards the cost of the new system, which performed the service for them of both the circuit court and the county court. It was supposed that to divide into two the cost under the new system would be fair, the result being that the saving to the counties was 822,000 out of $47,000. When now the counties and' the city together in equal pay for the new judicial system of the counties, it is nothing but fair that the judicial system of the cities should be paid for one-half by the State and one-half by the city. In other words, it is a rule of equality, applicable in the counties and in the cities, ty which the State pays for one-half of the judicial system in both the localities. But how will that figure out in actual numbers, Mr. President? It figirres out a saving to the counties of S22,000 and a saving to the cities of nothing. ^Ir. Flood: Four hundred dollars. Mr. Thorn: It may be ?iOO, but it is practically nothing, and there is an additional cost to the cities of ST. 000. Mr. Flood: Is it not trje that the cities will have just as many judges under this provision as they have under the present Constitution, while the counties will lose about ninety-five judges? Mr, Thorn: It is true that under the proposed system there would be as many judges as there are now. It is likewise true that the counties will lose their county judges. But wh:-'? Because the cities have not heretofore had any judges but the number neces=an.' for transacting the public business; whereas there was a universal concession, or if not universal, an overwhelming concession, that there were too many judges in the 1728 i^EBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. counties, and that the county court system could go. The whole complaint in reference to the judicial system of this State has been to the county court feature. There has. been no complaint of the judicial system of the cities. Mr, Green: I understand it is necessary to make a motion to-day to reconsider a vote passed yesterday. I wish to ask the Convention to reconsider the vote by which the fifth section of this report was adopted. I will say that I voted for the section, and I expect to vote for the section again. I have not changed my own opinion on that sub- ject, but I know there are gentlemen absent who are very much interested in the question. They are necessarily absent, but they desired to be heard on it, and I ask the Convention,^ therefore, to^ allow me to submit my m-otion, and allow it to lie over until to-morrow. On motion of Mr. Portloek, the Convention adjourned until to-morrow, Wednesday, January 8, 1902, at 10 o'clock A. M. WEDNESDAY, January 8, 1902. The Convention met at 10 o'clock A. M. Prayer by Rev. W. F. Dunaway, D. D. The President: The business before the Convention is the report of the Committee on the Judiciary, and the pending proposition is the amendment of the gentleman from Culpeper (Mr. Barbour) to Section 17, on which the gentleman from Norfolk City (Mr. Thorn) has the floor. Mr. Thorn: When the Convention adjourned on yesterday I was calling attention to the fact that the whole jurisdiction of the court in the county is now performed by the circuit court; that heretofore that jurisdiction was divided between the circuit court and the county court; that under the conditions which then existed the county paid the whole cost of the county court system, from which they are relieved by ha^ang the juris- diction concentrated in the hands of one system of courts, and it was that fact that made it proper and just in the minds of the committee in dividing the salaries and cost of the present system of courts — one-half to the State and the other half to the county. I also* called the attention of the Convention to the fact that this had resulted in a saving to the county treasuries of over $22,000; that it had put an increased cost upon the Stat© of between $7,000 and $8,000, and that the system of courts for the cities had resulted simply in leaving, in roiind numbers, the cost to the cities exactly where it was under the laws as they heretofore existed. So that all the saving that has been made in this new system of courts has been to the counties. There has never been any complaint of the system of courts in the cities. The complaint was of the system of courts in the counties, and the city members on the Judiciary Committee subordinated their own views as to the new system of courts to the views of the county members in order that they might have the system they thought best for the people. If it is right that the State should pay one-half of the cost of the courts which do the public business in the counties, why is it not right that the State should pay one-half of the cost of the courts that do the public business of the cities? It is not only right as a system, and proper and just in itself, but I invite the attention of the Convention to the fact that when we take the con- tribution made to the public treasury by the counties and by the cities respectively we find that the net amount remaining in the treasury from the counties, after paying back to them what they get out of the treasury, is only a fraction over $400,000 a year, while the net amount remaining in the public treasury, over and above what the cities get back from the State, is $793,000 a year. Where, then, is the justice of saying to the cities, notwithstanding the large contribution they make to the public treasury, that in addition to that they should pay the whole cost of the judicial system? I cannot believe, for one instant, that any such proposition will find favor with this Convention. No court has been assigned to any of these cities except those which, in DEBATES OF THE CONSTITUTIONAL CONVENTION OF YIFvGINIA. 1729 the judgment of their representatives and of the committee, are properly required to do the public business. And now the proposition is that the cities shall not only pay about $400,000 more into the State treasury than the counties do, net, after what they receive, but that in addition to that the unjust discrimination shall be made that the cities shall pay for the whole cost of their judicial system, and that the counties shall pay only one- half of the cost of their judicial system, when the courts in both places are simply doing the business of the State and of the people. I shall not detain this Convention longer by discussing the question. I simply lay those facts before you. I appeal to the Convention against the spirit of enmity and hostility which is manifested here in the effort on the part of some gentlemen to make war upon the cities in the Commonwealth. The people of. the cities are as much citizens as are the people of the country. They are bearing their full share of the public burden. In my own city of Norfolk, property upon its main street is paying taxes to the State upon an assessment of about $700 per front foot. How does that compare with the cssessm-ent in the country? And yet, gentlemen, v/here has there been a city man upon the iloor of this Convention who has risen here to make war upon the country communi- ties of the State? I am told by the gentleman from the city of Richmond that Richmond contributes one-seventh of the entire revenue of the State. I have not verified these figures, but I accept his statement on the subject. My own city pays into the State treasury, after it gets back all the allowances to which it is entitled by law, over $113,000; and notwith- staii.luig this high assessment upon city property, notwithstanding the great contributions that they are making to the treasury of the State, notwithstanding the large share of the public charge that they are already bearing, the proposition here is to make war upon them and to declare that they are not entitled to the same rights in the State of Vir^ ginia, or to the same consideration at the hands of its representatives, as are the country communities. I appeal, gentlemen, against the injustice of any such position, and I ask, and I must say with some confidence, that the rights of the cities be protected by your vote. Mr. Barbour: Mr. President, I desire, in the first place, to disclaim, as a representa- tive of one of the counties of the State, any feeling of enmity or hostility whatsoever to the cities. I have as much regard, as mtich respect, for the cities of this State as I have for the counties, but when I see proposed a system by which grave injustice is done to the people I represent, I then claim the right to speak for my people upon the floor of the Convention. The gentleman from Norfolk has stated that the cities of the State under the present system pay into the treasury the same that they have always paid. The gentleman can- Qot substantiate that statement by figures. Mr. Thorn: Mr. President, not only do they pay as much as they have heretofore paid, but I believe they will pay more, for this reason, which I forgot to comment tipon in my remarks Where there is in a city not a large business for the circuit court, that matter has been taken into consideration in the formation of the circuit, and the small amount of business that the circuit court will do in the cities has made it possible for those judges to allot a larger portion of their time to county business; and notwith- standing the fact that very little of their time will be taken up in the cities, the cities still have to pay just as much of the salaries of those circuit court judges as the counties do. I will illustrate. Suppose it is only necessary for a circuit court to be held in some of the smaller cities of this State for one week twice a year; that matter is not considered in the portion of the salary that that city pays to the circuit judge, but the city pays just as much of that circuit court judge's salary as if it were necessary for them to hold elever, terms a year. Mr. Barbour: Now, Mr. President, the gentleman stated that there was no com- plaint on the part of the cities as to the present judiciary system, that the entire com- ji'aint came from the counties, and that the reason for the complaint was that it was regarded as an expensive system, and that the counties were willing to have their court 1730 DEBATES OF THE OONSTITUTIOi^AL CONVENTION OF VIRGINIA. facilities cut down, but it was with the hope of saving money thereby to the counties and not with the expectation of saving money thereby to the cities, I would like to request gentlemen of the Convention to follow closely the figures which I will now present to them, which will show conclusively that, with the possible exception of the city of Richmond and the city of Norfolk, every city in this State will save money and save large sums of money under the proposed system. These figures are taken from the official documents of the Convention. It appears that under the present system the city of Alexandria pays $1,400 a year for its corporation judge. Under the new system they increase the salary of their corporation judge so that instead of getting a $1,400 man as heretofore they will now get a $2,000 man, and at the same time they will only pay $1,000 of his salary, and they will pay fifteen per cent, of one half of the salary of the circuit judge, which will be $150, making the total cost of the court of Alexandria $1,150, a net saving of $250 tO' them, notwithstanding the fact that the salary of that judge is increased $600. Mr. Meredith: Is it not true that you propose now to do what never has been done — that the city judge shall be at the call of the Governor to go out into the counties and hold court? Mr. Barbour: Yes, sir. Mr. Meredith: And that the city courts have never had that power before. Mr. Barbour: They provide that if the circuit judges in the counties are nearly worked to death, you may then call on the curled darlings of the cities to come and help them. That is what it amounts to. Again, the city of Portsmouth at present pays $1,800 for a corporation judge. Under the proposed system they will pay $1,000 of his salary, whioji will be increased to $2,000, and pay $210, twenty-one per cent, of the salary of the circuit judge of that circuit, making $1,210 total cost to the city of Ports- mouth, and a net saving of $590. That is where they are paying the same they have always paid. The city of Petersburg at present pays $2,500 to its corporation judge. Under the proposed system the city would pay $1,000 of the salary of the corporation judge and twenty-five per cent, of the $1,000 that the circuit will have to pay to the circuit judge, making $1,200 that Petersburg will have to pay, thereby saving to the people of Peters- burg $1,250. But if they keep the salary of the corporation judge up to the point now provided for by law and still continue to pay $2,500 there will be a net saving of $750 to the city of Petersburg alone. Are they paying the same they have always paid? The city of Danville has always paid its corporation judge $2,000. Under the proposed system they would pay $1,000 and thirteen per cent, of the $1,000 which the counties would have to pay to a circuit judge of the circuit in which the city is located. Mr. Meredith: Take you own county. You pay your judge $500, do you not? Mr. Barbour: Yes, sir. Mr. Meredith: You will have to pay under this system $133. You recognize that you get a better system, and you save $367 out of $500. Then have you any right to complain? Mr. Barbour: Yes, sir; I have a right to complain. What right have these cities, when they are not doing away with their court facilities, to come in and kindly consent to divide with them what we save? That is what they are doing. They are getting the same facilities that they have always had and then they say, "It is true you are cutting down expenses, but we will divide the saving with you." In my own county we have at present three terms of the circuit court a year, three terms of court for the trial of civil cases, and I say that it is impossible for us to get those facilities under the pro- posed system. We could get along under the new system but we cannot get along as conveniently as we have heretofore gotten alouig. I hear a gentleman say near me that we get double that many terms. We do not get double that many terms for the ex- clusive trial of civil cases. Mr. Hunton: If the gentleman will allow me, what I said was that you get double the number of terms for the disposition of civil business that you had before. DEBATES OE THE COXSTITUTIO>s^AL COXYEXTIOX OE VIRGINIA. 1731 And it lias been one of the advantages of the new system which one of the gentlemen from the country has said induced him to accept it, though he was opposed to many other features of it, Mr. Barbour: Heretofore v,'e haA^e had three terms of the circuit court and twelve terms of the county court, making fifteen terms of court a year, and hereafter we cannot get over six terms. Novr, the city of Danville has all along been paying $2,000 to its corporation judge. Under the proposed system they will pay $1,000 only of that salary, and pay $130 towards the salary of the circuit judge, making $1,130, their total cost, a net saving of $870 to the tax-payers of Danville. Lynchburg has been paying $2,700 to its corporation judge. It would under the new system pay sixteen per cent, of the salary of the circuit judge, $160, and $1,000 towards the salary of the corporation judge, making $1,160, and a saving of $1,620 to the tax- payers of Lynchburg, Or, if they kept the salary at $2,700, which is paid at present, it would be about $920. Newport News in the same way would save $1,545. It pays at present $2,775. Under the proposed system it would pay $1,000 to the corporation judge and $230 to the circuit judge, making $1,230, a net saving of $1,545 to the city of Newport News alone. . Roanoke at present pays its corporation judge $1,800. Under the proposed system they would pay their judge $1,000 of his salary. The State would pay the balance, and they contribute $220 to the salary of the circuit judge for that circuit. In their case they get the salary of thelj' judges raised $200, and at the same time save $580 to the tax-payers of the city of Roanoke. Those seven cities save to their tax-payers $6,705. The city of Norfolk at present contributes $3,083 to the salaries of the judges. Under the proposed system they would only have to pay $2,440, a net saving of $643, if they kept the salaries at $2,000. I presume, however, they will keep those salaries at the present figures, and I did not have the information upon which to state what the additional cost of it would be. I suppose it would be something the same as the case of the city of Richmond. Mr. Brooke: Are you basing your calculation upon the salary of the judges of Nor- folk city at $2,000 a year? Mr. Barbour: Yes, sir, I say I have not the figures now showing just how much is paid by the State. Mr. Thom: I want to give you the figures. We pay $3,500 apiece. Mr. Barbour: Then it would be an additional cost of about $700 to the city of Nor- folk. So that every city in the Commonwealth, with the exception of the city of Norfolk and the city of Richmond, saves money, and seven of them save $6,705, Still the repre- sentatives of the cities say that we are actuated in this matter by feelings of hostility towards the cities, when they have everything that they ever had and all we are asking is that we may ourselves receive the benefit of the sacrifices which we are making. There are nine of these cities, Mr. President, with populations of from 10,000 inhabi- tants up, and of those nine cities, six, I think, have representatives upon the Judiciary Committee. Is it remarkable that they have protected the interests of their cities? I do not think it is. It is natural for them to do so, and I think there was nothing wrong about it. These gentlemen all thought that they were doing right, but they seem to have lost sight of the fact that the saving by this system has been brought about by sacrifice on the part of the counties. I insist that if we have to make these sacrifices the people of the counties are entitled to the benefit, and I think the amendment which I have offered should be adopted. Mr. Robertson: Does not your argument go to show that the counties have made an unnecessary and foolish sacrifice of their interests, and that the cities are getting more than they ought to ,get? Mr, Barbour: Yes; and the cities have gotten the benefit of our sacrifices. Mr, George K, Anderson: Mr. President, I should not take up the time of the Con- vention with the remarks which I desire to submit upon the subject, but for the fact that 1732 DEBATES OE THE CO^'STITUTIONAL CONVENTION OE VIRGINIA. on yesterday my friend from Appomattox (Mr. Flood), whom I do not now see in his seat, used language under which I am unwilling to sit silent. In speaking of the proposed change in the judicial system, he used this language: I do believe, and that belief is not confined to me, but is widespread all over the Commonwealth, that the counties have been unfairly dealt with in this respect and that the cities have not been so dealt with. And, again, further on in his remarks, he said: We see the saving is not sufficient to induce the people to willingly give up their monthly court. Now, Mr. President, if we have been in this Convention for seven months and have allowed a report to come into this body and be adopted in Committee of the Whole which, in its operation, deals unfairly with the counties, and discriminates against the counties in favor of the cities, it must be attributed, sir, to one of two causes. Either we are densely ignorant, or we have been culpably negligent in the performance of the duty which we owe to our respective constituencies. I am not willing to admit that either proposition is true. I have been in favor, Mr. President, of a change in our judicial system for a long time. I know that I could not, even with great preparation, interest this body, and of course in the reading of statistics I must necessarily be less interesting; but I purpose giving you gentlemen some figures which I believe will show you that the counties in the Commonwealth have not been discriminated against, but that the counties will be inestimably benefited from a financial standpoint as well as from every other view. Mr. President, I have taken up several of the circuits at random. When the gentle- man from Appomattox (Mr. Flood) stated upon this floor that the counties had been discriminated against, my mind naturally reverted to my own constituency and I asked myself "How can I justify any vote which I may make on this floor when I go back to' my people and say there is nothing saved in taking our courts away?" I find, in reference to the nineteenth circuit, composed of the counties of Highland, Bath, Alleghany, Craig and Botetourt, that those counties now pay, for county courts alone, $1,956.20. Their contribution to the salary of the judge of the circuit court of that circuit would be $1,000, thereby making a saving of $956.20. The county of Alle- ghany pays $700 to a county judge. Under the proposed plan she would pay $320 to- wards the salary of the circuit judge, and thereby save to that county $370. And the same thing is true through the whole list. As a matter of fact, for the county court sys- tem to-day, in the counties composing the nineteenth circuit, we are paying at the rate of four cents per capita, and under the proposed plan we will only pay at the rate of two cents per capita, or just one-half as much ; and certainly in our circuit I am satisfied the facilities furnished by the proposed plan will be fully equal to the courts as we now have them. Take the eighteenth circuit, composed of Augusta, Rockbridge and Rockingham. In that circuit the aggregate salaries of the county judges of the three counties is $2,332.40. Under the proposed plan Augusta county would pay tO' the circuit judge $369, and effect thereby a saving of $723 to the county of Augusta. The county of Rockbridge would pay $250 towards the salary of the circuit judge, and effect a saving of $290. Rocking- ham would pay $380 to her circuit judge, and effect a saving of $320. Those three counties to-day, sir, are paying towards the salaries of the county judges at the rate of two and three-fifths cents per capita, and under the proposed plan they would pay on© and one-fifth, or less than one-half as much. Now I come to the circuit in which the county of Appomattox is located, the county from which my friend (Mr. Flood) comes, and under th© proposed plan the saving in that county will be $946. Under the present plan the people in those counties composing that circuit now pay over three cents per capita for county courts alone. Under the proposed plan they would DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIEGIXIA. -I ^ o o 1 i OO pay one and five-eights cents — less than half as much. And yet it is charged that there is practically no saving to the counties under the proposed plan. The people of the county of Culpeper, from which my distinguished friend (Mr. Barbour) comes, now pay three and one-half cents per capita for county judge's salary alone, under the proposed plan they would pay one and one-half cents per capita, or less than half, and the saving in his whole circuit will be $1,363 under this system. :\Ir. Barbour: I will ask the gentleman if we have not teen paying for this county court that we do not need"? Mr. George K. Anderson: Certainly you have been paying for it. :Slr. Barbour: And if v^-e do not need that we certainly should be entitled to the saving when it is taken away. Mr. George K. Anderson: You get more than the savings. You are paying now just twice as much as you will pay under the new plan. The trouble with my friend is that. he is making a saving himself and yet is kicking up a fuss because the cities are saving something, too. I do not care how much the cities of the Commonwealth save. It makes no difference to me. Mr. Meredith: All the cities together save $400. ^Ir. George K. Anderson: I say under this system my county is saving money, and if the city of Richmond and the city of Norfolk can save money I am entirely willing that they should do it. I will take up one of those circuits, under the new arrangement, which includes a city. I take up the sixteenth circuit — Fauquier, Loudoun, Prince William, Fairfax, Alexandria and the city of Alexandria. Under the present arrangement the total salaries paid to the county judges alone in those counties aggregate $2,762. Under the proposed plan they will pay the judge in the circuit court $1,000, and save thereby $1,762. Mr. R. Walton Moore. I will say to the gentleman that he must not lose sight of the fact, and it is a fact tliat v t ought never to lose signt of, I think, that whenever you transfer a charge from a locality to the State treasury you increase the contribution that is being made by the tax-payers of that circuit. We pay a net revenue into the State treasury, after criminal charges, school charges and pensions are satisfied, of over $80,000; and you cannot substitute a treasury charge for a local charge without increasing the burden to us and diminishing the opportunity of the General Assembly to decrease the tax rate. Mr. George K. Anderson: The county of Fauquier now pays $800 to the county judge alone, within $200 of the quota of the whole district to the salary of the circuit judge. Under the proposed plan that county will pay $24.5 towards the salary of the circuit judge, saving thereby $550 to the county of Fauquier. The county of Loudoun pays $620 to their county judge. She will pay $220 under the new plan, thereby saving $400. The countj' of Fairfax, represented by my distinguished friend, now pays $442 to her county judge. She will under the proposed plan, pay $195 towards the salary of the circuit judge, saving thereby $247. But this is the point to which I wish to call the attention of the body. While the city of Alexandria apparently saves money, and actually saves money, and pays less for her system than she has heretofore paid, still the city of Alexandria will pay under the proposed plan eight cents per capita for her judicial circuit. I want to repeat that. The people in the rural districts in the sixteenth circuit t^uU pay one cent per capita for the service of their judges and the city of Alexandria will pay eight cents per capita. Does that look like discrimination in favor of the cities? Take another circuit, with the city of Danville in it. The total saving in that cir- cuit is $1,460 under the proposed plan. The people in that circuit under the proposed plan will pay eight-tenths of one cent per capita for their judge's services. Under the present plan they pay two and a half times as much for the cotmty court alone; and in the city of Danville, while there is apparently a saving, the people of that city pay seven cents per capita for their services of circuit and corporation judge. 'Mv. Thornton: If that is true, has the gentleman heard any complaint from the 173-1 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. section of the State to which he has just alluded, asking that this change be made? On the contrary, have not petitions come in here asking that they have monthly terms of courts for the reason that they do not believe that bi-monthly terms can transact all the business? Mr. George K. Anderson: I can say in reply to my friend that there are probably one hundred counties in this (Commonwealth and one hundred county courts and one hundred members of the Convention, representing the people who are interested in. those courts, and that almost unanimously the representatives upon this floor have been in favor of the abolition of the county court system. If any petitions have come here, they have been from probably not over three or four per cent, of all the counties in the Commonwealth. Mr. Thornton: Is the gentleman aware of the fact that there have been several petitions from the counties — I am alluding nov/ only to the district to which the gentle- man Just referred — asking that they have a monthly term of the county court under some plan? I mean the old eleventh judicial circuit, the one you were mentioning when I interrupted you? Under the present system Alexandria city has a corporation judge, and she pays his salary and gets the entire benefit of his services. She also has a circuit judge, who is paid by the State. Every county has the services of a county judge, whose salary they pay. Under the proposed plan you take from the people, against their protest, the benefit of a term once a month, and yet Alexandria city has two judges there, a circuit judge and a corporation judge, and the business is not nearly as great as in some individual counties composing that circuit. That is the complaint that the people in that circuit are making. They dO' not care how many judges you have in Alexandria. They have no objection whatever to the number; but under this plan the people com- plain that you take from them the benefit of having a monthly term. I do not say they want a judge for each county, but they do want monthly terms of the court, and that is what they are asking at the hands of the Convention. Mr. George K. Anderson: Does my friend want a monthly term of the court? Mr. Thornton: Yes, sir; I want it and my people have petitioned almost unani- mously for it. They have also petitioned in the county represented by my friend from Fairfax, I understand, and also in Fauquier. They are asking for monthly terms; not for a judge for every county, but they do ask, and they believe it is necessary in order to transact the business, that the circuit should be arranged so- that we can have monthly terms. Under the present arrangement we cannot have it. You have given us five counties and a city, and we believe under the present system we cannot have it. Mr. Pedigo: Mr. President, if it is in order I desire to offer an amendment. In Section 17, line 9, strike out all after "per annum" down to "city" in line 35, and all after the word "treasury" in line 38 to the end of the section. The section will then read: The salaries of the Judges of the Supreme Court of Appeals shall be not less than $4,000 per annum, and shall be paid by the State. The salaries of the judges of the circuit courts shall be not less than $2,500 per annum. The whole of the aforesaid sal- aries of said judges shall be paid out of the State treasury. Mr. Harrison: I offer the following substitute. Article 6 of the present Constitution, except as modified as follows, in Sections 9 and 10: Sec. 9. The General Assembly at its first session after the adoption of this Consti- tution shall divide the State into not more than fourteen judicial circuits, equalizing as far as may be the work among the various circuits, and providing uniform salaries for the judges. Sec. 10. The General Assembly may rearrange said circuits or any of them, and increase or diminish the number thereof when the public interests require at the end of periods of eight years. The President: The gentleman from Alleghany will proceed. DEBATES OF THE COXSTITUTIONAL CONVEjSTTION" OE VIRGINIA. 1735 Mr. George K. Anderson: Mr. President, I shall conclude what I have to say upon this subject in a very few words. I was proceeding to state, :\rr. President, that the gravamen of the complaint of my friend from Culpeper is that he has given up something that was of value to him. I think that proposition is very doubtful, in the first place. He says that he has gained something in dollars and cents, and he is unwilling that the cities should not give up something and gain something. I think the figures that I have submitted to you show that under the proposed plan the counties are benefited and that the cities are benefited; and if this Convention can make a Constitution that benefits both cities and counties it will have done a good work. Mr. Hunton: I desire, Mr. President, to say a word in reference to this question. With reference to the saving to the counties of the State of Virginia under the pro- posed plan of judiciary-, as compared with the existing order of things, it will appear by the report of the Judiciary Committee there is a saving to the counties of the State of $22,244.16. Those figures were based upon the salaries of the circuit court judges fixed at $2,500 per annum. This body, in its wisdom, has fixed those salaries at $2,000 per annum, instead of $2,500. Giving to the counties their proportion of that saving, which is five-sixths, it will make a saving to the counties in dollars and cents of $32,- 244.16, the saving by the- reduction of the salaries of the circuit judges of $500 in the twenty-four circuits. Five-sixths of it accrues to the counties and makes their aggregate saving $32,244.16. Now turn to the cities. Their saving under the proposed plan is, in the aggregate, $485, the cities of Norfolk and Richmond, I believe, paying more under the new system than under the old system. Our friend is in error in saying that the salaries of the city judges in a majority of the cities of the State have been increased — Richmond and Norfolk pay more to their judges under the new system than under the old system — upon the theory that they will keep the salary of their judges as at present. In the three cities of Petersburg, Newport News and Lynchburg the salaries proposed by this article will have to be supplemented by those cities in order to keep them at what they are to-day. That leaves of the ten cities of over 10,000 inhabitants but five in which the salaries: of their judges are increased. I will not undertake to name them, but there are but five cities in which the salaries of the judges are increased. The members of the Convention will remember, Mr. President, that the right to practice law has been taken from the judges of those cities, it being the concurrent view, practically with unanimity, that it is unwise to leave that power in the possession of the judge who is upon the bench trying cases, where the same questions are daily liable to arise that he has the day before probably argued as counsel in a case; because I care not how high he is, how impartial and how well-trained, it is impossible for the human mind not to have taken on bias from the advocacy of the positions he has assumed. More than tha.t, Mr. PresideEt, new duties are imposed upon the city judges, duties that are required of them in order to supplement the circuit judges, if there is any conges- tion of business: not "curly-headed city judges. but city judges who are capable and able and who are paid a sufficient salary to fill the highest judicial positions in the State, and who by their intelligence and ability will save more to the Commonwealth of Vir- ginia, in my judgment, than can be saved in salaries in .dollars and cents. A good deal has been said about petitions, about popular sentiment, and I was struck with the statement of my friend from Prince William (Mr. Thornton), for whom my affection is as strong as my respect, that his appeal was not for the monthly terms for the county of Prince William, because bi-monthly terms could not do the business of the county of Prince William, but because, as I understood it, of a desire for monthly terms. As to popular sentiment, it seems to me that this but revives the fight that has been fought over time and time again upon this floor for monthly terms of the court, for which I grant, there is a sentimental desire upon the part of some, a sentimental desire which, however, in my judgment, does not indicate a desire of the people for any change that will give them greater efficiency and economy in the administration of the 1736 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. affairs of our State; but I say that question has been passed iipon time and again, and I should not now refer tO' it except that the circuit which I, in part, represent has been referred to upon that subject. I do not undertake to speak for the county of Fairfax or the county of Prince William, but I do undertake to speak for the county of Fauquier, where the public press has stated that there was a meeting, the object of which was opposition to the abolition of the county courts. With great respect to the gentlemen who took part in that meeting and in its organization, with every desire to represent their views fairly and completely, I recognize in the gentlemen most active in getting up that meeting — and nuost naturally, too^ — the personal friends of the county judge of that county. I have in my desk a petition which I am informed is in favor of the abolition of the county courts and in favor of the judiciary system as proposed by this article; a petition addressed to the two representativeis of that county in this body, signed by more people, I am told, than were in attendance upon that meeting. I have received a number of letters from other citizens of that county in the same line, and have received from another end of the county a letter from a gentleman stating that if it was desired a peti- tion could be gotten up in that end, which in his judgment would be signed foT four- fifths of the property-owners of that section of the county, in favor of the judiciary article as reported by the committee, in preference to a retention of the county courts and in favor of this article as it was. Mr. President and gentlemen of the Convention, whatever I have been able to ac- complish in life has come from the generous support of the good people of the country of Piedmont Virginia, and if I were false to them, or to their interests, I would be un- worthy of the name of man. To them and to their generous support, and more than all, to the good, true, high people of the county of Fauquier, who^ have ever been generous and kind and forbearing with me, honoring me more than my deserts, and standing by me with a fidelity that I can never forget to my dying day, I owe whatever I have been able to do in life; and if I should stand upon the floor of this Convention and advocate that which in my judgment was unjust to them or to their interests, I would be unworthy of the respect of good and true men. I believe this report has done full justice to the counties and to the cities of the Commonwealth of Virginia. I know it represents the view of a majority of the county people of the State, as tO' what has been done for the coun- ties, and 1 believe it represents fairness and equality and justice to the cities of the Commonwealth. It has been stated upon the floor of this Convention that this complaint and trouble, with the exception of a few, has grown out of a limit that has been fixed to the establish- ment of new circuits in the State, and that the number has been placed too high, at 50,000 instead of 40,000, for the creation of a new circuit. I speak but for myself. It may be that that limit is too high. That limit was stricken out with my approbation and without my dissent in Committee of the Whole, and was put back by the Committee of the Whole; but if there is any strength in the impression that that ties the hands of the Legislature in giving tO' the counties suflScient judicial facilities under the pro- posed system, should it work a hardship I shall join hands with them gladly in recon- sidering that action, in order that the limit may be reduced from 50,000 to 40,000. I do trust it will be the pleasure and the will of the Convention to vote down the resolution of my friend from Culpeper which I believe does an injustice to a large portion of the State of Virginia. It cannot be right, it cannot be fair, to compel the cities of this Commonwealth to pay the entire cost of their judicial system, and to divide it as to the counties of the State. If you put it wholly upon the cities, it would be but fair and right to put it wholly upon the counties, which would merely put that expense upon them in addition to the tax rate that they are now paying into the treasury of the State. I regret to have been compelled to appear for a second time upon this proposition. Mr. Summers: Mi:. President and gentlemen of the Convention, I will not detain you but a moment. I agree with the present system. I consider the county court DEBATES OF THE CONSTITUTIONAL COXYEXTION OF VIEGINIA. 1737 system as an issue that is dead and past forever, and it will never be resurrected; but at the same time I am very much inclined, unless some gentleman answers me to my satisfaction, to support the amendment offered by the gentleman from Culpeper (Mr. Barbour). My reason in this: We must notice what w^e have done in this committee and w^hat will be done. You will notice that cities of the second-class cannot get a court unless they bear their own expenses. The city of Bristol, that I represent, and other cities of that class, have to bear all their expenses. ^A^iat did w^e of the Judiciary Com- mittee tell them? We said: "This is a luxury. If you want it you have got to pay for it." Will some gentleman answer me w-hen a good thing ceases to be a virtue? Mr. Meredith: Is it not a fact that the majority of the Judiciary Committee thought that those cities ought not to have a single judiciary, and you advocated it and earnestly urged that we should let it be done at their expense? Mr. Summers: Certainly; and on that very same principle I act here to-day. What is fair and just to the big man and to the small city should apply to the mighty and powerful. Now, let me ask you a question. Is not that equity? You are a lawyer of standing. Is not that equity? If it applies to a small city, why not apply to a large one? Mr. Meredith: I w^ill answer your question. It was thought by the committee that your population did not demand it, and that therefore there w^as no necessity for that judiciary system in those cities; and as a favor you came and asked it, saying you would pay for it. Now, w'hen you come to the large cities it is a necessity and not a luxury, and they stand just like the counties, simply asking for a necessity. Is there no distinction.? Mr. Summers: Yes, sir; but you do not carry it out. AA%y did you pay for half of it? Mr. Meredith: Because the counties pay for their half. Mr. Summers: I am willing to pay for half of mine. I do not know why it is that the city of Bristol should pay all of her expenses and the city of Richmond should not pay more than one-half. I do not want it to go down to posterity that we on the Judiciary Committee have thrown aside ever^^ principle of equity in forming our Consti- tution. If you want to do justice to the small cities, if that is a proper principle, let it apply to the mighty and strong; and under those cirumstances, unless I hear some better view advanced than that of the honorable and distinguished gentleman from Richmond (Mr. Meredith) I will certainly support the gentleman's amendment. The ayes and noes w^ere taken, and resulted, ayes 22, noes 59. Mr. Barbour's amendment was rejected. The president: The question is on agreeing to the amendment of the gentleman from Henry (Mr. Pedigo). The amendment was rejected. Mr. Portlock: Mr. President, I offer the following resolution as an addition to Section 17 of the report of the Committee on the Judiciary. Nothing herein contained shall be construed to prevent the General Assembly from permitting any county in the State, by the vote of its board of supervisors, to increase, out of the treasury of such county, the salary of the circuit judge having jurisdiction over such county. Mr. Portlock: Mr. President, I would like to say a word in explanation of that amendment. The report of the Committee on the Judiciary, as it stands, renders null and void all acts of the Legislature authorizing counties to increase the salaries of the present circuit judges, and this, amendment has reference especially to that condition of affairs. As I have stated, the provisions in this report have the affect of annulling the acts as they now stand, relating to the several and separate counties in the State, giving them authority to add to the salaries of the circuit judges. I do not think it was the object 110— Const. Deb. 1738 DEBATES OE THE CONSTITUTIONAL CONVENTION OE VIRGINIA. of the standing Committee on the Judiciary to bring about such results as those. There are a number of counties in the several circuits in the State to-day which have deemed it important to ask the Legislature to allow them to supplement the salaries of the cir- cuit judges presiding over the several counties. Such is the case, for instance, in the first judicial circuit of Virginia. "While it does not affect the county which I represent here in this Convention, it does affect one of the counties in that circuit, which espe- cially desired to supplement the salary of the circuit judge. I speak of the present judge of the first judicial circuit, the county of Nansemond. That county, by special act, is authorized to supplement the salary of the judge of that circuit, and the board of supervisors of Nansemond county have for several years past been adding from the county treasury of that county to' the salary of the judge of that circuit. The amend- ment which I offer has, as its special object, the retention of these special acts affecting the several counties in whose behalf they have been enacted. Now, sir, the Liegislature has heretofore authorized a number of counties to do thisi for the very best of reasons. In the place, as the matter now stands, under the present system, we all know the circuit judges are paid exceedingly small salaries, when you consider the ability, the standing and the mental calibre of the judges of the circuit courts under the present system; and in order to obtain the services of efiicient ofiicers upon the bench, many of the counties in the State have thought it necessary, in order to secure the talents and the services of some gentlem.an who would prove acceptable to them, as their circuit judge, to ask the Legislature to allow an additional inducement by way of a more adequate salary, in order that they, might secure the services of that particular gentleman. This is the case in the first judicial circuit, and I refer to this as an illustration of the reasons for sustaining my resolution. The gentle- man whO' now sits upon the bench of that circuit, when a practitioner — and by the way, he v/as a former partner of the distinguished President of this Convention — stood in the forefront and at the head of the bar of this State. His ability and standing as a lawyer, and as a high type of a gentleman, was fully recognized by the people of the district in which he lived and practiced his profession, and they felt assured that he would render them most efficient service in the capacity of judge of their circuit. This gentleman — I refer to Hon. Robert R. Prentiss — had a most lucrative and extensive practice. He was not a man who had accumulated a fortune by any means. He was in no' position to retire from active life and business pursuits. The people of that district knew that he could not afford to take the position as their judicial officer on the circuit bench, to which they desired to call him, if they were unable to supplement the salary of that position as provided for under the general law. They, therefore, applied to the Legisla- ture and obtained the consent of that body to add to the salary of the judge of that cir- cuit so that they might obtain the services upon the bench of a gentleman who would make, as he has made, a most acceptable, able and distinguished jurist. Now, sir, so much for the laws now in existence, which I ask this Convention may not be repealed and which is the main object of the resolution I have sent to the desk. Such special enactments affect not only the judge of the circuit to which I have alluded, but also several other circuits in the same manner. Under the new system it will work, perhaps, the same result. It is true that the limit has been fixed at $400 more for the circuit judges under the new system than under the old system; but I would say, with reference to that, that $2,000 would scarcely be an inducement in many cases for a judge, in active practice and business, life, to give up all the opportunities of his profession, all the prospects of a lucrative and successful business career, in order that he might receive the salary of $2,000 as judge of a circuit court. If these reasons have existed heretofore under the old system, when the salary was fixed at $1,600, I say it is scarcely less reasonable to assume that it will be neces- sary under a new system as to the limit of the salary recently fixed by this report of the Judiciary Committee. Then, sir, it will be putting the counties upon the same footing with the cities in respect to the salaries of their judges. No restraint is placed upon the cities. They DEBATES or THE COXSTITUTIOXAL COXVEXTIOX OF 'IRGIXIA. 1T39 hare ihe authority under this report to supplement, out of tlie city funds, the salary paid by the State to their judges ; and this is simply a request that the s.ame privileges and powers be conferred upon the counties such as you have bestowed upon the cities. I presume it may be urged, although I hope it will not be by any member of this body, whether he be from the cities or from the counties, that the boards of supervisors are not to be trusted in this matter, when they are confronted, as it may be urged they will be, by an influential judge or his friends to increase such salary. I ask if the same argument would not apply to the councils of the cities. Are they any more to be trusted in the matter of raising or adding to judges" salaries than the boards of supervisors in the counties of the State? If they are, there will be force in such argtiments on the part of those who may oppose this resolution. If the counties of the cities are not more to be trusted, are not more honest, are not more beyond corrupt influences, if you choose to put it in that way, than the boards of supervisors, then there is no more reason why the cities, through their councils, should be allowed to supplement the salaries of their judges than there is that the boards of supervisors, under special enactments, should be entrusted to do the same thing. In all justice and fairness, let me ask that the counties in this one minor respect alone be put upon the same footing with the cities. That is the effect of it. I do not ask that you do anything more for them than you have done for the cities under this report: but I do ask that in this one poor isolated case at least you give to the counties the same rights which you have accorded the cities. I ask that you make this one con- cession in favor of the counties in order that they may feel that in this one respect at least they have not been discriminated against. I ask this more particularly in behalf of the present laws, enacted for those counties which desire to continue to supplement the salaries of their judges and as they are now doing, than for any other reason; but I do ask it for another reason, that the same inducements may be offered hereafter by the separate counties for obtaining the services on the judiciary of high, able and effi- cient men — services which may not be obtained under the provisions of this report and by the Legislature as to the general salaries to be fixed by the State. I say we can trust the Legislature to act in this matter. We can trust the councils of the cities to act in this matter, as you have already provided in this report, in their case, and we can trust the boards of supervisors of the counties to perform similar duties. I feel assured that it must be admitted that the boards of supervisors are as competent, honest and efficient in the discharge of their official duties as the councils of the cities. I ask you, gentlemen, in all seriousness, not to interfere with the existing laws on this subject. I do not believe this report contemplated they should be interfered with, in the matter of supplementing the salaries of the circuit judges under the present system. I ask you in addition to that to place the counties upon the same footing with the cities, hy putting them in a position to secure the services of proper men and desirable men for the bench of their circuits. I submit the amendment for your action, and I can but hope it may be your pleasure to sustain the same. The President: The Question is on agreeing to the amendment offered by the gen- tleman from XoiTolk county Olr. Portlock). The amendment was rejected; there being, on a division, ayes, 5; noes, .56. The President: The question recurs on agreeing to Section 17, as read by the Secretary. Section 17 was adopted. ]\Ir. Hunton: Air. President, in justice to those gentlemen who think the figures fixed in Section 9, -50,000, are too high, and who desire to reduce it to 40,000, I move to reconsider the vote by which Section 9 was adopted. The motion to reconsider was agreed to. Air. R. Walton Moore: Mr. President. I move that the words ■'■forty thousand" be -inserted instead of "'■'fifty thousand."' 1740 DEBATES OE THE COXSTITUTIONAL CONVENTION" OF VIRGINIA. Mr. Dimaway: Mr. President, I move to amend the pending amendment by inserting "thirty-five" instead of "forty." I shall not detain the Convention by any argument. The motion of Mr. Moore was agreed to, while that of Mr. Dunaway was rejected. Mr. Turnbull: I offer the following amendment to Section 9. Amend Section 9 by adding after the word "Assembly" in line 14 the following: "After the expiration of four years from the adoption of this constitution." The section would then read. The General Assembly after the expiration of four years from the adoption of this constitution may from time to time as the public interests may require, etc. The President: The question is on the adoption of the amendment. The ayes and noes were ordered, and being taken, resulted — ayes, 44; noes, 38. The amendment was agreed to. On motion of Mr. Thorn the vote was reconsidered. The President: The question is on agreeing to the amendment offered by the gentleman from Brunswick (Mr. Turnbull.) The ayes and noes were taken and resulted — ayes, 41; noes, 41. The amendment was rejected. - Mr. James W. Gordon: I move to amend the section in the same language offered by the gentleman from Brunswick (Mr. Turnbull), only substituting "two years" for " four years." Add after the word "Assembly," in line 14, the foPlowing: "After the expiration of two yearsi from the adoption of this Constitution." The ayes and noes were taken and resulted — ayes, 49; noes, 33. The amendment was agreed to. The President: The question is on agreeing to the adoption of Section 9, as amended. Section 9 was adopted. Sections 18, 19, 20 ,21 and 22 were read and adopted. Mr. James W. Gordon: Mr. President, I now offer as Section 23 of the report we are now considering. Section 23 as originally prepared by the committee. Sec. 23. The number and jurisdiction of the justices of the peace for each city and county shall be prescribed by law. They shall be appointed by the judges of the circuit courts of the respective cities and counties of the Commonwealth, except in cities of less than ten thousand inhabitants which have a corporation or hustings court. In such cities they shall be appointed by the judges of said corporation or hustings court. In cities which are authorized by law to have a police court, the police justice shall be elected as may be prescribed by law. Justices of the peace may be removed in the manner prescribed by law. I desire to offer the following to come in later, at the end of that section. The Secretary read as follows: They shall receive a salary in lieu of all fees in criminal cases. Mr. President, when the Committee on the Judiciary brought in their report, I understand they attempted to bring in, and did bring in, a complete report of the judi- ciary department of government. In the whole history of the Commonwealth, as I understand it, justices of the peace have been considered a part of the judicial system of the State, and they are such. They are, under our present law, a very important part of the system, and it seems to me eminently fitting that justices of the peace should be treated in this article of the Constitution. When this section was reached in Committee of the Whole, the gentleman from Nelson (Mr. B. T. Gordon) moved to strike it- out. I understood that his principle objec- tion to the section, as reported by the committee, was the provision made for the choice of justices of the peace or their appointment by the circuit courts. I knew he was DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. 1741 very mucli in favor of their election by the people. Now, that question aside — because I do not think it has. anything to do with this important point — it seems to me that this is the proper place to treat the question of justices of the peace. We have provided in this article for all county courts, or courts for counties, and courts for cities. The report of the Committee on County Organization and Government did not undertake to establish circuit courts for the counties. The report of the Committee on Organization and Government of Cities and Towns will not undertake to report a system of courts for the Commonvrealth, and neither should they be called upon to report as to the justices of the peace, which are one of the courts in the system of judiciary of the State. A'Mien the amendment of the gentleman from Nelson to strike out this section was proposed the Committee on the Judiciary did not even call for a show of hands on the proposition. Now, whether the gentlemen of the Convention desire that these justices should be elected by the people or should be appointed by the proper authority, they can have that settled right here now by offering an amendment to this sction; but I do ask you to provide in this article on the judiciary department for justices of the peace, which are an essential part of our judicial system. I cannot see that there is any objec- tion to it at all. We have made no provision in the county organization for justices of the peace. That question was passed over there, with the understanding that it would be settled in the article on the judiciary department; and it seems to me that the gentle- men of the Judiciary Committee ought to be willing to make an effort to have their own report adopted here, or to let it go through with such amendments as may appear to the Convention to be proper. I should like to withdraw the last clause of that amendment which I offered. It seems to be distasteful to some of the members, and I do not wish the principle to suffer. Mr. Mcllwaine: I am going to offer an amendment which will strike that. I move to strike out all after "they shall be," in the fifth line, and add "elected by the qualified voters as prescribed by law." ^Alien this report was first presented to the Committee of the Whole, after examina- tion I stated that I believed it was the best report that had yet been offered to the Con- vention. I think so to-day. and I have voted for it continuously up to this point; but I do think it would be a radical error to make the office of justice of the peace an ap- pointive office. Justices of the peace ought to be elected by the people. If the people are not qualified to elect them from among their own number, what in the name of com- mon sense are they qualified to vote for? Are thej^ fit to vote for a President of the United States or for a Governor of the State of Virginia, if they are not fit to vote for their own magistrates? This is so obvious that it seems to me to need no argument. I therefore submit the question to you. Mr. Meredith: There is one thing I wish to say, Mr. President, speaking for the cities. I do not ask that this power of appointment be given to the judges of the circuits in the counties, because there seems to be a pretty widespread opinion that it ought not to be done, although there are some who favor it; but when you come to the cities, our views are expressed in this report, unless it be radically wrong. If it be simply a question of doubt, we ask you to waive it in our favor. I have conversed with the representatives from the cities, and they are all, so far as I am able to tell, in favor of the justices of the peace in cities being appointed by the judges. Now, what is the result of this? In every city in the Commonwealth you will find that when they come to their city elections they have a long list of names, beginning at the mayor and running through the several officers. In some instances there are ten or twelve officers to be elected. Down at the foot of the list there come the names of the justices of the peace to be elected. Time and time again in the precinct in which I live, which is a precinct in which there is as much wealth as there is anywhere in this city, and the men of which are as intelligent as any class of men in the city, they are ignorant as to who is the justice of the peace, and do not care who he is. They will simply vote for any person that anybody asks them to vote for without caring about it. They do not want to vote for justice of the peace. They have no need for him. They do not feel any pressure, and they do not feel any desire to vote for him. 1742 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. We simply ask that we be allowed in the cities of the Commonwealth to have them appointed by the judges of the court. In the counties, where they pay more attention to those things, I am perfectly willing, as far as 1 am concerned, to permit them to elect the justices of the peace; but we do ask that where we have such a vicious element as you always have in crowded cities — • Mr. Blair: Do you object to putting counties in there? Mr. Meredith: Personally I think they ought to be appointed in the counties, but as a large majority of the Convention, by the vote that was taken in the Committee of the Whole, an almost unanimous vote, indicated that they did not wish it, I do not propose to put upon them what they do not v/ant; but I am simply asking that we be allowed, as to the justices of the peace in the cities, to have them appointed by the judges of the court. They are elected in some sections of the city by a class of people who ought not to elect them, and in other sections of the city they are elected by people who do not care three straws about the matter, and do not know the names of the candi- dates, and who take the suggestion of anybody in w^hom they have any confidence who happens to be around the polling place. Under those circumstancesi, gentlemen, recognizing the difference in the class of people we have in the cities from those in the counties, we ask that you allow us to have these justices of the peace appointed by the judges so that we will get a better class of justices of the peace than we now get. Mr. Mcllwaine: Mr. President, the remarks of the gentleman bring up one of the vicious features of the legislation proposed in the Convention, and that is special legisla- tion. Many gentlemen do not seem tO' apprehend that we are making a Constitution for Virginia, and not for the cities or the counties. Now, sir, I appreciate the trouble of w^hich the gentleman speaks in Richmond, and I have a cure for that trouble. I hold that no Constitution will be prepared for the State which fails to go down to the bottom of that trouble. My cure is the elimination from the electorate of this vicious vote that you find in the cities. We will come to that pretty soon sir, in another article of the Constitution; but I dO' say that the people ought to have the right in the cities, as well as in the counties, to elect their m.agistrates. No people ought to be allowed to vote who are not fit to vote for a magistrate. Why, sir, the people will forever remain careless about the fundamental principles of government if they are not brought into contact v/ith such questions as these. That is the very prime reason why I think they ought to be entitled to vote for more of their ofiicers than some gentlemen seem inclined to give them. They need to be brought into sym- pathy, into contact and into educational relations with all of these conditions. I do hope that the Convention will pass a general law empowering the people in the cities, in the towns and in the counties to elect these officers. Mr. Green: Mr President, I wish to announce my adherence to the suggestion of the gentleman from Richmond in favor of the appointment of justices of the peace in the cities, at least, by the judges of the city courts. It is perhaps not known to the gentleman from the cloister (Mr. Mcllwaine) that the justices of the peace have, under the law, the duty imposed upon them of making regular reports to the judges of the corporation courts of their fines and their duties. That gives the judges a peculiar opportunity to knov/ both as to the ability and the proper performance of their duty of these officers. I do not think, either, that the gen- tleman realizes the fact that the justice of the peace is the man in whom the leaders of society, the men of wealth, never come in contact, and in whom they feel no interest. If he is anything in the world, he is the guardian of the interests of the poorer class of peo- ple. All of their small claims, and all the small claims against them, come before him. He eminently ought to be a man of the strictest sense ot justice, of intelligence and of the highest character. He ought not to be selected by any ignorant and stupid electorate. The gentleman may conceive that he has a plan by which he can cure and purify that electorate in Virginia, but it is a Utopian dream. It cannot be done in a day, nor a month, nor a year, nor a series of years. He may eliminate the stupid and DEBATES OF THE CONSTITUTIONAL CONVENTION OP YIEGINIA. 1743 ignorant white man, as he proposes to do, to a certain extent. He may eliminate the ignorant and stupid negro, but the virus is there that has been there for the last thirty years, and it is working to-day as it always has worked. The people in the cities, as the gentleman from Richmond (Mr. Meredith) has said, have ceased to take any interest in the election of the justices of the peace. The property holders in the city know he can never touch them, and that they can never touch him; and men of the most debased character, in many instances, are elected by going around to bar-rooms and other disreputable places and electioneering and carrying the votes at the election. The justices of the peace, of all men in the State, ought to be appointed instead of being elected. It is for the protection of the State; it is for the protection of the people, and above all it is for the protection of the common people, the poorer people, that I appeal here for the appointment of these justices, in the cities at least. If I had my way I would have them appointed in the counties by the circuit court judges. I have voted, and I would vote again, for the appointment of the justices of the peace by the courts, to which they are in the end responsible, and who will have a supervision over their action. I trust that whatever may have been the action of the Committee of the ^Hiole, the Convention will at least reverse that action to the extent of adopting the amendment offered by the gentlem-an from the city of Richmond. Mr. Meredith: Mr. President, I want to bring this to an issue, sir. I offer the following amendment, and I prefer to read it, if you will allow me. I ask attention to it to show that I draw a distinction between the counties and the cities, because I under- stand there is a desire that that should be done. I move the following as a substitute or amendment: The number and jurisdiction of justices of the peace for each city and county shall be prescribed by law. In the counties they shall be elected by the people as may be prescribed by law. In the cities they shall be appointed by the judges of the hustings or corporation courts of the respective cities of the Commonwealth. In cities which are authorized by law to have a police court, the police judge shall be elected as may be prescribed by law. Justices of the peace may be removed in the manner prescribed by law, Mr. James W. Gordon: Mr. President, before the vote is taken I have several, remarks I would like to make. There is no question that has come up before this Con- vention in which I feel a deeper interest than I do in this one, because I feel it is one of extreme iniportance. I have seen the abuses under which we have labored and suffered under the present system of election of justices of the peace. The gentleman from Prince Edw^ard (Mr. Mcllwaine) says if the people of the Com- monwealth are not qualified to elect their justices^ they are not qualified to exercise any function at all. He says they elect the President of the United States ahd the Governor of the State, and their other ofiicers. That is true, but he himself says that he is not in favor of submitting to the people the election of judges, those who are to decide their controversies for them, and he does not favor that because he knows it is a dangerous thing to make a man a candidate for ofl^ce before those whose difficulties and con- troversies he is to try. Now, if we had an ideal electorate, if we could purge the electorate from every vicious, every venal feature, and if we could have every man giving the attention which he should give, to his public duties as a citizen, I admit, we could safely afford to leave, not only the election of the justices of the peace, but of the judges and other officers, to the people; but we have not that ideal condition, and it will be many years, if ever, before we do have such a condition. Now, what is the result as to these justices of the peace? These are paid no salary and little or nothing in the way -of compensation. They do receive some fees. It is almost impossible to get any man of standing to run before the people and make a political contest for the office of justice of the peace, because the compensation is so 1744 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. small. As to the higher officers, there is competition for them. The emoluments and honors of the office attract a higher grade of intelligence; but it is not so in regard to the office of justice of the peace. The practical effect of this system is shown in the result, and we see it all through the counties. Now, I do not know how it is in many of the distant sections of the State, but I doi know that in the immediate vicinity of Richmond we have a class of justices of the peace who are a disgrace to any civilized community. Why, gentlemen, under the system which we have adopted and have in operation here, I have seen a whole crown of little boys bathing in a creek down here in Henrico county held up by these justices and constables and fined, in order to get the fees out of them. There is the constant tempta- tion held out to these people to do that very thing. We are doing an awful wrong to the poor people of the State, when we allow such men as that to have rule over them and to decide their controversies. Why, just contemplate for a minute the power we place in the hands of justices of the peace. They have the examination into a large part of the offenses that are alleged to be committed and unless you have men of high character who will consider the facts that are presented to them for the issuance of a warrant, unless you have men who are above the mere fifty cents they get for the warrant, or the dollar they get for signing the warrant, you will have a perversion of justice in our midst. If you have some ap- pointing power in regard to justices of the peace you will have a much higher character of men. There was a time when men like George Washington, Esquire, did not hesitate to become justices of the peace; but you do not find that character of men, now, I believe, very largely holding this office. Suppose these justices of the peace were appointed by the Governor and commissioned by him. Gentlemen of the highest standing all over the Commonwealth would be willing, as a public duty, to accept this office and discharge Its duties. There are some gentlemen who seem to think there isi some peculiar virtue in any office which is filled by election of the people. It seems to me that the criterion should be to- get the best men to fill the offices of government, the one that is going to operate best upon the rights and liberties of the people, and I do not hesitate to say, and I believe it can be demonstrated to any fair-minded man, that you can get a very much higher class of men under the system of appointment than you can get under the sys- tem of election by the people. I do trust, as has been urged by my colleague from Richmond (Mr. Meredith) and by the gentlemen from Danville (Mr. Green), that you will at least allow us in the cities to have the justices of the peace appointed; and I believe, gentlemen, that if you of the counties were just willing to try this thing you would never go back to a system of electing your justices by the people, as you have done for the last few years. Mr. Barbour: I desire to ask the gentleman from Richmond (Mr. Meredith) if he will permit his amendment to be so amended as to include the tovms? Mr. Meredith: I have no objection to including anybody who wants to come in. I have canvassed the gentlemen who represent the cities and they are in favor of it. Mr. Harrison: I have the honor, Mr. President, to represent a very small city here, but we prefer to elect the justices by the people as we always have done. Mr. B. T. Gordon: Mr. President, when this question was before the Committee of the Whole, I moved to strike out this section, because I believed I represented the sense of the people. I believe the people can be safely trusted, as they have been trusted for the past fifty years, with the selection of these officers. I do not believe in any system of the judiciary by which one kind of court can be appointed by a higher court. If you carry out this principle I see no reason why the Court of Appeals shall not appoint all of the circuit judges in the State of Virginia. Now, and I speak for the people of the country, it is immaterial to me what the gentlemen representing the city constituencies may elect to do with reference to their constituencies; but give to the people of the country a right which they have exercised. DEBATES OF THE CONSTITUTIONAL CONVEXTION OF VIRGINIA. 1745 I believe, in the main wisely and well, for fiftj^ years, the choice of thes,e officers. I know it is a habit to depreciate and run them down; but I do not believe that they are justly liable to the censure that has been heaped upon them. I believe the answer to all of this censure and abuse is to be found in the acts of its Legislature itself. I stated, sir, before the Committee of the Whole, and I repeat now, and I wish toi emphasize it, that years ago the jurisdiction of these officials was exceedingly limited. I believe they were limited in civil matters to- the sum of $20. Gradually that jurisdic- tion has been increased until to-day they are clothed with the trial of civil cases involving the sum of $100. Their criminal jurisdiction has been increased so that they have in many cases exclusive jurisdiction, and in most cases concurrent jurisdiction with the trial or county courts. Under the administration of the law by these men the criminal expenses have been vastly reduced in the State. That is an answer, sir, to all the charges as to their incompetency and their cor- ruption. Moreover, Mr. President, I think the time has come, and we might as well recognize it, when the great mass of the people in the country will not willingly allow their representatives here to deny to them the right which they enjoyed for the last fifty years. There is too much of a tendency sir, to curtail the rights, and to stifle and silence the voice of the people, in the privileges of their servants throughout the State. Any step in that "direction will be resented, and I believe bitterly resented, by the people of the country. They have in the main exercised this right wisely, judiciously and prudently for fifty years past, and I believe that any effort now made to take away from them a right which they have thus exercised will be resented by them, and that this whole scheme of constitutional reform will fall under their condemnation. I therefore hope, sir, speaking for my people, and I believe speaking for the country constituencies generally, that the Convention will allow the law to stand as it is. This matter does not, I believe, properly belong to the judiciary S3'stem of Lhe State. Under the Coiistitation of 1867, and I believe prior to That time, possibly, it was apportioned to the article on the organization of counties. I believe it belongs there. That com- mittee has unanimously reported, asi I am informed, in favor of the election of these officers as at present. I hope therefore it may be the pleasure of the Convention to reject the amendment offered by the gentleman from Richmond and allow the law to stand as it is to-day. The President: The question is on agreeing to the amendment of the gentleman from Prince Edward. The question was taken by ayes and noes, and the result was announced ayes., 51; noes, 28. The amendment was agreed to. Mr. James W. Gordon: Mr. President, I presume it is now in order to offer an amendment to the original section, as amended, in order that it may come in competi- tion with the substitute of my colleague from Richmond (Mr. Meredith), and I offer this: The number, jurisdiction and method of choice and removal of justices of the peace for each county and city shall be prescribed by law. Mr. Lindsay: We have just decided that the method of election shall be by the people, and it seems to me it would not be in order to introduce an amendment providing that the Legislature shall decide how the magistrates shall be elected. The President: The Chair thinks the point of order well taken. The question has already been decided. The amendment of the gentleman from Norfolk city (Mr. Thom) is an amendment to the section as already proposed. The question is on agreeing to that amendment, which the Secretary will read. Provided, that the justices of the peace for the cities of the first class may be elected or appointed, as may be prescribed by law. 1746 DEBATES OF THE C02s STITUTIOXAL CONVENTION OE VIRGINIA. Ttie amendment waa adopted. The President: The question recurs on the amendment in the nature of a substitute- offered by the gentleman from Richmond city (Mr. Meredith). The Secretary: The amendment to the report as submitted by the member from Richmond (Mr. Gordon) is as follows amended by several amendments offered: The number and jurisdiction of the justices of the peace for each city and county shall be prescribed by law. They shall be elected by qualified voters as prescribed by law, provided that justices of the peace for cities of the first class may be elected or appointed, as prescribed by law. The substitute proposed by the member from Richmond (Mr. Meredith is as follows: The number and jurisdiction of the justices of the peace for each city and county shall be prescribed by law. In the counties they shall be elected by the people, as may be prescribed by law. In the cities they shall be appointed by the judges of the hustings or corporation courts of the respective cities of the Commonwealth. In cities which are authorized by law to have a police court, the police judge shall be elected as may be prescribed by law. Justices of the peace may be removed in the manner prescribed by law. Mr. Braxton: Mr. President, if it is in order to do so, I move that there be inserted the woTds, "and cities of the second-class," after the word "counties," in the amend- ment as offered by the gentleman from Richmond (Mr. Meredith). I understand it provides for the election or appointment of judges in counties or cities of the first-class, but that there is no provision for cities of the second-class, and I would like to have cities of the second-class put on the same footing as the counties and have the justices elected by the people. Mr. Meredith: I accept that amendment. Mr. Barbour: I move to amend the substitute of the gentlemen from Richmond (Mr. Meredith) by inserting the words, "and towns," after the word "cities," so that it will read, "in cities and towns." The amendment was rejected. Tlie President: The Secretary will call the roll on the substitute proposed by the gentleman from Richmond (Mr. Meredith). The question having been taken by ayes and noes, the result was announced — ayes, 37; noes, 42. The substitute was rejected. Mr. Barbour: I offer the following, then, as a substitute: The General Assembly shall provide by law for the appointment or election of such justices of the peace as the public interests may require and shall prescribe their juris- diction. Mr. Quarles: On this question I am paired with the gentleman from Rappahan- nock (Mr. Yancey). If he were present he would vote nay and I should vote yea. The question having been taken by ayes and noes, the result was announced — ayes, 48; noes, 30 — as follows: Ayes — Messrs. Allen, George K. Anderson, W. A. Anderson, Ayers, Barbour, Barham, Thomas H. Barnes, Blair, Boaz, Braxton, Brooke, Brown, Cameron, Carter, Cobb, Crism.ond, Epes., Fairfax, Fletcher, Glass, James W. Gordon, R. L. Gordon, Green, Gregory, Gwyn, Hamilton, Hardy, Hatton, Hunton, G. W. Jones, Keezell, Lawson, Lincoln, Meredith, Miller, R. Walton Moore, Parks, Robertson, Stebbins, Tarry, Thom, Turnbull, Walker, Watson, Willis, Wise, Woodhouse, and the President — ^^48. Noes — Messers. M. H. Barnes, Bouldin, Bristow, P. W. Campbell, Dunaway, Earman, Gilmore, Gillespie, B. T. Gordon, Hancock, Harrison, Ingram, Claggett B. Jones, Kendall, Lindsay, Lovell, Marshall, Mcllwaine, Thomas L Moore, Mundy, Orr, Pedigo, Phillips, Quarles, Richmond, Rivers, Summers, Thornton, Waddill, and Wescott — 30. Mr. Barbour's substitute was adopted. I DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OP YIRGIXIA. 1U7 The President: The question recurs on the adoption of the original proposition as amended by the substitute of the gentleman from Culpeper. The amendment was agreed to. On motion of Mr. Marshall the Convention adjourned until to-morrow, Thursday, January 9, 1902, at 10 o clock A. M. THURSDAY, January 9, 1902. The Convention met at 10 o, clock A. M. Prayer by Rev. Richard Mcllwaine, D. D. The President: The unfinished business is the report of the Committee on the Judiciary. Mr. Hunton: The unfinished business, I believe, was the motion to reconsider Sec- tion 5. I withdraw my motion to lay on the table, and shall ask that the motion to reconsider be voted down. The ayes and noes were ordered, and having been taken, the result was announced — ayes, 39; noes, 41. The President: The question is on the motion to reconsider. The question having been taken by ayes and noes, the result was announced — ayes,^ 43; noes, 3S. The motion to reconsider was agreed to. The President: The question recurs on the motion of the gentleman from Augusta (Mr. Quarles) to, reconsider the vote which the amendment offered by the gentleman from Richmond (Mr. Gordon) was rejected. The question having been taken hj ayes and noes, the result was announced — ayes, 43; noes, 36. The motion to reconsider was agreed to. The President. The question recurs on the adoption to the amendment offered hy the gentleman from Richmond city (Mr. Gordon) providing that members of the Supreme Court of Appeals shall be elected by the Legislature on the nomination of the Governor. The question having been taken by ayes and noes, the result was announced — ayes^ 32; noes, 48. The amendment was rejected. Mr. Lindsay offered an amendment providing for the election of judges of the Supreme court of Appeals in a manner to be prescribed by law. Mr. Barbour proposed as a substitute that they be chosen by the General Assembly on the nomination of the Governor. Both amendment and stibstitute were rejected — -the latter by a vote of 40 to 43. Mr. Summers: I offer the following substitute for the section: After the word "the" in line three, insert the words "the Governor shall nominate eight lawyers of recognized standing, from which the General Assembly shall elect five judges." The amendment was rejected. The President: The question recurs on agreeing to the adoption of Section 5. Section 5 was adopted. Mr. Harrison: Mr. President, I desire to introduce an amendment to the report at the end of Section 23, making it Section 24. Sec. 24. The circuit judge of each circuit shall designate, by order of court or in vaca- tion, entered of record in each county of a circuit, one of the commissioners of chancery for the circuit court of said county as bail commissioner, whose duty it shall be, in the absence of the judge from said county or in his inability to act, to hear such matters of bail as may be prescribed by law. An appeal may lie from his judgment to the circuit court of said county or to the judge thereof in vacation. 1748 DEBATES OF THE COI^STITUTIONAL CONVENTION OE VIRGINIA. Mr. President, I have shown this amendment to several members of the Judiciary Committee, and they see no objection to it. The object of it is to remove one of the objections to the proposed system, and that is that there is no local judge in a county who could hear questions of bail. A man might be arrested, for instance, in a county far distant from the judge of a circuit, and he would have no means of applying for bail and would have to go to jail or be otherwise inconvenienced. This is simply to auth- orize the judge, who has the question of bail before him, anyhow, to designate one of his commissioners in each county, who can take those matters into consideration while the judge is absent, or when he cannot hear matters. I have proposed the commissioners in chancery because it is necessary to select some officer, as the pay attached to it would be insufficient to have an independent officer for that purpose only. Therefore I have selected, as the best substitute I know of the commissioners in chancery, to have that power. Mr. Hunton: Mr. President, I am thoroughly in sympathy with the object that is sought to be accomplished by the amendment. My friend will pardon me lor making a statement of my position. He has shown the proposition to me, but in the confusion and in the engrossment of other duties, I was unable tO' consider it carefully. I wish to ask the gentleman if this suggestion would not accomplish his object. Has not the Legislature full power to give to the justices of the peace, the parties who originally deal with crimes now, the power to grant bail in just such cases as he desires, to reach? Mr. Harrison: They have, but I do not think they ought to have the power. Justices of the peace ought not to be allowed to bail anybody who is charged with a ■serious criminal offense. If that should be the case, the justice of the peace might turn loose a man who ought not to be turned loose. A justice of the peace under the law now, cannot, in serious cases, grant bail except on a slight suspicion of guilt; and that is as far as they ought to be entrusted with the power of bail. The object of this amend- ment is to select a practicing lawyer, the commissioner of a court, charged with impor- tant duties in other matters, and give him the power to pass on bail when the judge is not within reach. Mr. Robertson: Mr. President, I must say that I am absolutely opposed to the pro- position of the gentleman from Frederick (Mr. Harrison). I do not agree with him that justices of the peace ought to be prohibited from granting bail in serious cases, and that commissioners in chancery are necessarily very good people to grant bail. It is a well- known fact that there are a large number of commisssioners in chancery who are not practicing lawyers, and who are men not at all versed in criminal matters. This is a dangerous power to put into the hands of any officer, to grant bail in serious cases Our law has always drawn the distinction that the gentleman from Frederick has pointed out. Justices are not allowed to grant bail in serious felony cases; but you have to apply to some judge of a court of record. I think this is a dangerous innovation to introduce into our law. I think the chair- man of the committee is right, that this matter ought to be left to the Legislature. In my opinion it is simply another argument to show that the system of judiciary which we have adopted here is an inefficent one, and they are attempting to buttress it up by all kinds of makeshifts, which are absolutely worthless, and worse than worthless, because I believe they will do harm to the Commonwealth. I am absolutely opposed to adopting an inefficient judiciary system and then attempting to buttress it up by .giving county clerks duties that they ought not to have, and commissioners in chancery, and other officers, duties they ought not to have, because these gentlemen cannot answer the argument that are made against the judiciary system' which they have adopted, Mr. Carter: Mr. President, at first blush I was inclined to think that the proposi- tion of the gentleman from Frederick (Mr. Harrison) was a proper one, and that it would tend to relieve somewhat the embarrassment and trouble resulting from not having a judge always convenient to grant bail, but on thinking it over and listening to the remarks that have been made by gentlemen on both sides it appears to me that the true answer to the proposition is that the whole matter is in the power of the Legis- DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OE VIRGIXIA. 1749 latiire. and it is not only the duty but the privilege of the Legislature to provide for all that kind of questions. If we undertake to do this kind of thing it will be usurping the province of the Legislature. AVe cannot go into all those details. ]\Ir. Harrison: Mr. President, I do not agi^ee with the gentleman, that it is in the power of the Legislature. When the criminal jurisdiction is conferred upon the courts and they are given the sole power of trial, and the courts are defined in the ordinance here that we are adopting, I do not believe it is in the power of the Legislature to create any other court than the courts we have designated in the ordinance. I believe this matter of bail is a judicial question and will haA'e to be passed upon by the court or the judge who is designated by the ordinance in this Convention. Mr. Carter: Will the gentleman point out some section here that would prohibit the Legislature from alloAving magistrates or commissioners in chancery or clerks or anybody else from taking bail? Mr. Harrison: It would not prevent them from allowing justices of the peace to do so, but I believe it would prevent them from allowing anybody btit a judicial officer tO' do it. Mr. Hancock: :\Ir. President, the proposition now before the Convention is one of great importance and one that involves the question of the separate and co-ordinate departments of the government. It allows the Legislature to take from the judge a portion of his judicial functions and devolve them upon another, or it allows a judge to delegate his authority to some one else. WTien a judge is elected it is his duty to pass upon judicial questions. He is the officer who has been selected by the sovereign power of the Commonwealth to do this Avork, and no one else should have authority to perform it except a judicial officer selected according to law for that ptirpose. A jtidge of one of these circuits consisting of four or five counties will have time to dis- pose of all of these questions of bail and to give ample justice to the Commonwealth and to the accused. The question whether bail shall be allowed to a prisoner or not is a question in which the Commonwealth is interested as well as the prisoner. It is a question jtidicial in its nature, and it should be passed upon by a judicial officer. When yoti allow the Legislature to authorize the judge to delegate his authority to some one else then you are allowing the Legislature to take away from the proper officer a part of the duty that is assigned to him. The theory of our government is that the judicial and the legislative departments^ shall be kept separate and distinct. There would not be so much objection if it was a jtidicial officer to whom this duty was to be assigned. If you should say that one of the justices of the peace of the county shall be designated for that pur- pose there might not be so much objection to it, because a justice of the peace is a judi- cial officer, and it is his business to pass upon questions of this kind. Y^lien you allow the Legislature to authorize a commissioner in chancery or any other independent person who is not a judicial officer to exercise judicial functions, then you are allowing the legislative department to invade the territory which belongs exclusively to the judiciary department. The point that I make is that the question of allowing or refusing bail is a judicial question, and that only judges can properly decide judicial questions, and that a judge should not be allowed to delegate his authority to any one else. The legisla- tive hand should not be placed upon the judiciary and take away any of the responsi- bilities or any of the duties that naturally belong to a judicial officer. If this amend- ment is adopted what will be the result? The judges will forthwith appoint a com- missioner in chancery in each one of the counties of the Commonwealth, and thtis relieve themselves of the duty and responsibility and inconvenience of bailing prisoners. Let the judge have this power and responsibility, and this duty resting upon him and upon him alone, and the judicial affairs of the Commonwealth will be better administered than to allow him to distribute his duties to five or six agents or deputies. Mr, R. Walton Moore: It seems that the only trouble about this matter arises from a doubt as to whether the report of the committee as presented here would allow the General Assembly to appoint any other than a judicial officer to entertain applica- 1750 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. tions for bail. I believe most of us wish to confer the power upon the General Assembly to deal with and to dispose of this bail question in such way as it may think best. I think that the gentleman from Frederick will agree tO' adopt the language that I now pro- pose as a substitute for the amendment which he offered a while ago. The substitute is as follows: "The General Assembly will have the right to provide by whom and in what manner applications for bail shall be heard and determined." I think that that will put the matter in better shape. Mr. Harrison: I accept that amendment. The amendment was adopted — ayes, 59; noes, 14. Mr. Harrison: Mr. President, I suppose the substitute I have offered for the whole report is in order? The Secretary: The substitute proposed by the member from Frederick (Mr. Har- rison) is,: "All of Article 6 of the present Constitution, except as modified as follows in Sections 9 and 10." Section 9 reads: The General Assembly, at its first session after the adoption of this Constitution, shall divide the State into not more than fourteen judicial circuits, equalizing as far as may be the work of the various circuits and providing uniform salaries for the judges. Section 10 reads: The General Assembly may rearrange said circuits, or any of them, and increase or diminish the number thereof when the l)ublic interests require it, at the end of periods of eight years. The member from Roanoke (Mr. Robertson) proposes the following amendments to the substitute: That Section 13 be amended by striking out the word beginning "provided" and end- ing with "county judges," substituting therefor: "Provided, that several adjoining coun- ties may, in the discretion of the Legislature, be united for the formation of district and county judges." Mr. Harrison: I will accept that. The President: The pending question is upon the adoption of the substitute for the article reported by the Committee on the Judiciary offered by the gentleman from Frederick. The ayes and noes were taken, and resulted — ayes, 27; noes, 50 — as follows: Ayes — Messrs. Bristow, Clarence J. Campbell, Chapman, Dunaway, Earman, Epes, Fletcher, Gillespie, Gregory, Hancock, Harrison, Hooker, Hubbard, Ingram, Claggett B. Jones, Keezell, Lincoln, Marshall, Moncure, Thomas L. Moore, Mundy, Pedigo, Phillips, Portlock, Quarles, Robertson and Thornton — 27. Noes — Messrs. Allen, W. A. Anderson, Ayers, Barbour, Barham, Thomas H. Barnes, Boaz, Bouldin, Braxton, Brooke, P. W. Campbell, Carter, Cobb, Crismond, Fairfax, Garnett, Gilmore, Glass, B. T. Gordon, James W. Gordon, R. L. Gordon, Green, Gwyn, Hamilton, Hardy, Hatton, Hunton, G. W. Jones, Lawson, Lindsay, Mcllwaine, Meredith, Miller, R. Walton Moore, O'FIaherty, Orr, Parks, Pollard, Richmond, Stuart, Summers, Tarry, Thorn, Turnbull, Waddill, Walker, Wescott, Willis, Wise and Woodhouse — 50. Mr. Harrison's substitute was rejected. Mr. Hunton: Mr. President, I move that the report as a whole be adopted. The report was adopted. Mr. Hunton: Mr. President, I move that the judiciary article of the new Constitu- tion be referred to the Committee on Final Revision. The motion was agreed to. (Applause.) On motion of Mr. Mcllwaine the Convention resolved itself into Committee of the Whole for the purpose of further considering the report of the Committee on Education and Public Instruction, Mr. Parks in the chair. DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGINIA. 1751 Mr. Mcllwaine: Mr. Cliairman, the matter under consideration when this report was last before the committee was the twelfth section. The Chairman: The Secretary will read the section . Sec. 12. The General Assembly shall make provision for the maintenance of the University of Virginia by an annual appropriation not less than now provided by law. The Chairman: The question is on the motion to strike out Section 12. The question having been taken by ayes and noes, the result was announced — ayesi, 32; noe? 44. The amendment was rejected. . Mr. Hamilton: Mr. Chairman, I offer the following amendment to Section 12. The General Assembly shall make provision for the maintenance of the University of Virginia and of the Virginia Military Institute by annual appropriations not less than now provided by law, Mr. Hamilton: Mr. Chairman, I want to say a few words as to that amendment. I have not troubled this body by taking much of its time, and I ask the attention of members. This is a matter in which I feel deep interest. Every cadet of the Virginia Military Institute in the State and thousands in other States will feel that a marked unnecessary and unjust discrimination is made against that institution If the University alone is singled out for this permanent appropriation in the Constitution. I did not believe on principles, sir, and I do not now so believe, that any permanent appropriation should be made by the Convention for any purpose except preserving the co-ordirate branches^ of the government independently of each other. For that reason I could not as a matter of principle vote for this originally, either for the Uni- versity or the Military Institute, although both are yery dear to my heart; but if this Convention thinks it is proper to make an appropriation for any institution of learning in the State I say tne Virginia Military Institute should not be left out of that list. It was founded in 1839. It has not alone in war added to the glories and lustre of Virginia, but it has equallly done so in peace. It absolutely belongs to the State of Virginia, every foot of its ground, every brick. It and the University are, strictly speaking, the colleges of the State. We believe it is right for it to be in this, appropriation permanently, if it is right for an\i:hing to go in it, and we urge the members of this Convention not to so discrimi- nate against it as to have people feeling that the Convention has intentionally cast a slur upon it, and therefore done something that would injure it in its usefulness in the future. Mr. O'Flaherty: Mr. Chairman, I move to amend the motion of the gentleman by inserting after the words. "Virginia Military Institute," the words "and the State Normal School." 1 wish to state in favor of that proposition that if we are going to make this appro- priation to the University of Virginia and to the Virginia Military Institute we ought to make it to the only institution in Virginia with which the people of Virginia are in direct contact. I make the assertion that the State Normal School, in my opinion, is the most important of the educational institutions of the State of Virginia I want it distinctly understood I have nothing against the Military Institute. I have nothing against the State University of Virginia; but I believe that we ought to train teachers to teach in the public free schools of Virginia and if we do not train teachers instead of soldiers we are making a retrograde movement. I repeat, I have nothing against the University of Virginia; but I do want to say that when I was a boy and wanted to get an education I found that, notwithstanding I might be able to get admission into that institution, the additional amount of money that it required of me, if I were a State student, was such that it was impossible for me to get inside of it; and I was driven to go outside of the State of Virginia to get the 1752 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIEGINIA. most of my education, because I could get it cheaper. And yet we are here to-day fastening upon the people of Virginia for generations to come an appropriation of at least $50,000 a year. Now, the public schools of Virginia need trained teachers. They demand to-day the very best talent; and I make the assertion that to-day the University of Virginia does not send out teachers to teach in -the public schools of Virginia, and we all know it. Why cut out the State Normal School that is educating poor boys and girls to become teachers, and I do not hesitate to say that the teachers of the United States are the very grand army of the republic — the school teachers of Virginia form a part of that magnificent army. You are voting money to the rich pian's sons to-day and taking it away from the public free schools of Virginia; and you are not willing to give to the training of the young men and women of Virginia that which is necessary to make them good teachers in the public schools. Is this Convention going to do that? I wish I had the time to read to you the letters and the newspaper clippings that I have received and seen condemning us for the action we are taking along this line. There is a great audience outside of this hall listening to what we say; and they are taking note of what we do^ and demanding that we do not throttle the public school system. You cannot do anything better, if you are going to put the University of Vir- ginia in, and put the Military Institute in, than to train the young men and women to teach the young "idea how to shoot" and not to train men to shoot their fellow beings. We have passed the stage of war and bloodshed and carnage. We are on a higher plane of intellectuality; and I raise my voice to-day in behalf of the school teachers of Virginia and the public schools, without consultation with any member of the board of that institution, without any connection with the State Normal School, but as a lover of public free schools, and believing that the schools of Virginia cannot make any higher progress, than the advance guard, who* are the teachers of Virginia. I ask that you put the State Normal School upon the same footing as theie other institutions. The State Normal School at Parmville is preparing teachers, and doing it well. Then there is William and Mary College, and Blacksburg, and yet we are discrimi- nating against all these institutions which belong to Virginia, except the great Uni- versity of Virginia, that does not need any help. Some one said upon this floor the other day that the University of Virginia had not grown because they had no private donations. I want to say there is no great university in this country that has ever grown by parental donations from the State. The Uni- versity at Ann Arbor, Michigan, is the only university in the United States that ever received anything like princely allowances from the State, and as I understand a great deal of that comes from the sale of the public lands, of that State. Now, I want you to point me to a single university that has: ever become great by State donations. One gentleman said here recently that we only have one university in this State. I deny it. Washington and Lee University to-day stands just as high with the other colleges of the United States as the University of Virginia, and yet it does not get a dollar. It has had donations of nearly a million dollars, and why has it gotten them? Because it has stood upon its own merits. I say again I have nothing against these other schools; but in justice to the poor people of Virginia, when you have taken the money out of the public coffers do not put it into the treasury of a great university, but rather let us invest it in training teachers. I did not expect to say anything on this subject, but I cannot remain quiet and feel that I have done the duty that I owe to the good people who have sent me here, unless I protest. Unless gentlemen can show that we ought to discriminate, let us give them all the same chance, equal opportunities, equal chances. Let all the young men and young women of this State who want to attend the various institutions of learning in the State be able to choose. Let them feel that the State has the same interest in the institution to which they go as in the others. I ask you, gentlemen to vote for the amendment that I offer, to put the State DEBATES OE THE CONSTITUTIONAL COXVEXTION OE YIEGINIA. 1753 Female Normal College on the same footing with those other institutions, for this school, I know, is doing a good work, and as great service to the State as is the University of Virginia. I thank you for your attention. I hope you will vote for this amendment, because I believe it is right, it is just, it is putting the money where it will do the most good; it is bread cast upon the waters which will return many days hence. Mr. Brown: I desire to say a very few words on this question of adding other institutions to the university in the Constitution for fixed appropriations. I have no desire whatever to oppose the Virginia Military Institute. I have the highest regard and affection for the Virginia Military Institute. I occupy, however a posi- tion in connection with one of the other State institutions of Virginia, the A^irginia Polytechic Institute, which makes my regard for that institution very warm. In the committee I made no request that the State should fix an appropria- tion for that institution. I opposed the proposition to fix an appropriation for evedy other institution except the University of Virginia. I agreed to vote for that proposition- that the appropriation to the University should be fixed — because I believe that the Universitj^ occupies a different position in this State from any other State institution. It occupies, or it should occupj'', a position as the head of the educational institutions of the State, especially of the free school system of the State. And then, again, it comes in direct contact with all the academic sectarian schools in the State. The representation made by the especial friends of the University of Virginia, members of its board, is that competition causes a friction between the University and these institutions, causes the board of the University to be placed in the position of doing away with the necessary entrance examinations, which results in there being at the University a number of immature, unprepared students who should be at the colleges, and places the University in the position, therefore, of doing not the proper work that it should be doing in the State, but attempting to occupy not only the university field, but the field of the colleges as well. Taking that view of the question, I was willing to vote for this appropriation to the University of Virginia, because I believed everything should be done to enable the board of the institution to make it a tmiversity in fact as well as in name. I know, as a matter of fact, that few, if any, of the boys from the institution with which I ha»ve the honor to be connected go to the University for post-graduate work. They leave the State and go after graduation to such institutes as the Boston School of Technology and the Stevens Institute. And why do they go? Because, as there are not in this State the proper facilities, they go out to these institutions. I want to do what I can to raise the University of Virginia to the level of those instittitions out of the State, not to make it more difficult for it to reach that goal. The friends of the University of Virginia feel that in coming to the Legislature every year they have a fight on their hands to retain this appropriation. It may be there is some truth in that. On the other hand, I do not think the Legislature of Vir- ginia will ever fail to make a suitable provision for the University of Virginia, but I do feel that there must be at that institution an unusual feeling if every year they have to come here and make the same fight. I want to remove the nncertainty upon that subject. I want to put the University in the position of giving the highest uni- versity work to the people of this state. I feel that the Virginia Polytechnic Institute and the Virginia State Female Normal School at Farmville are not in competition with the University of this State, because by doing special work for the State none of them are prejudiced by this resolution. I do hope that it will be the pleasure of this Conven- tion to vote down the proposition to add other institutions to the report of the com- mittee. Mr. William A. Anderson: Mr. Chairman, I yield to no man in my appreciation of the value of the University of Virginia to the Commonwealth. It is one of the institutions of the State which has returned, many fold, every dollar that has been con- tributed by the people for its support. It is an honor to the State of Virginia. It has 111— Const. Deb. 1754 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. doue, and is doing, a work that cannot be measured in dollars and cents. WSiile these are my views and these the sentiments which I cherish towards that institution of which I have the honor to be an alumnus, while I can never hope to repay the debt of gratitude which I owe to^ the faithful, capable and dutiful men who were the instructors during the days, of my youth when I was a student within its halls, I feel that this committee has made a mistake in undertaking to single it out as the only institution in Virginia which should be recognized in the Constitution in this manner. Though I am an alumnus, and a loyal alumnus, of the University of Virginia and have never had any connection except in a representative capacity with the Virginia Military Institute, I know enough of that institution, of the invaluable work which it has done, and is doing, for Virginia to be justified in the statement that its claims upon the Common- wealth, in proportion to the benefactions which it has received, are equal even to that of your great university; and I advocate the proposition submitted by the gentleman from Petersburg (Mr. Hamilton), because not to adopt it will be an injustice and an invidious discrimination against an institution of this State whose history is too well known to members, of the committee for me to undertake to show them that it is entitled to such recognition as he asks. It is not only upon the bloody field of war that the men whom that institution has turned out have reflected immortal renown upon the people of Virginia. It was not only during and before the war between the States that they went to the front in every department of industry and of intellectual achievement in the Commonwealth, through- out the land, wherever they have been found, since the war, tot-day everywhere in the Commonwealth, and particularly in the avenues of business, as well also as in the highest walks in any profession, you find the alumni of the Virginia Military Institute measuring up to the highest standard of educated civic virtue. If you looK through the streets of this city, or any other city of the Common- wealth; if you consider the conditions in any county of the Commonwealth, you will find that the graduates of the Virginia Military Institute are among the most useful and the most successful of all the citizens of the State in every department of industry or of labor to which they may have devoted their energies. Some gentlemen have s.uggested that the University of Virginia is the capstone of our public school system. It has done a great work for education in Virginia, but within its domain, and in proportion to the assistance which it has received from the Commonwealth, I do not hesitate to say that the Virginia Military Institute has done more for education in Virginia than the University of Virginia. Of the 135 men who last graduated at the Virginia Military Institute, 55 are now engaged actually in teaching in the State of Virginia. Fifty out of each corps at that institution, about one-fourth of each corps of the State appointees, are under obligation to teach for two years, at least, after they leave the institution. Mr. Keezell: I want to know whether or not, if this provision which perpetuates, an appropriation not less than is now provided by law, is engrafted in the Constitution, it would not be in the power of the board of visitors of that institution to devote all of the benefits now received by State s-tudents from that provision which requires that they shall teach in the public free schools, and whether they would not be independent of the Legislature? Mr. Hamilton: I will answer that they cannot do it. Mr. Ayers: They are appointed by the State. The State has absolute control of them. Mr. William A. Anderson: Mr. Chairman, it would be impossible for them to do any such thing unless they were required to do it by the law of the State. I suppose it is. not proposed by any man that the Constitution which we shall adopt shall operate to repeal all the statutes of the Commonwealth. On the contrary, following the example of every other Convention, you must, by your schedule, continue in operation and perpetuity all statutes of the State not by plain implication or by express terms repealed by the Constitution. DEBATES OF THE COXSTITUTIOXAE COX^^XTION OE YIRGIXIA. 1:55 I entirely endorse all ihat has been said by my patriotic young friend from Warren in reference to the Alrginia State Female Normal School, and the claims which it has upon the Commonwealth, and when the claims of that institute, in reference to which my friend has offered his amendment, come up upon their merits, as an independent proposition, I shall most heartily give it my support. It has been a reproach to Vir- ginia that she has done so little foT female education. The Farmville Female Normal School represents practically the only contribution which the manliood of Virginia has made to female education. It has been the greatest success that has ever been ac- complished by the people of Virginia in any educational enterprise, and it ought to be prospered. It deserves to be recognized, and it would be wrong for tis, by leaving it out of any such provision as this, to subject it to insidious discrimination. But upon the main question, tipon the qtiestion now before the committee, as to whether the Virginia Military Instittite shall be endorsed, I confidently appeal to the members of this committee not to permit an act of such injtistice. and I may say of such ingimitude, towards one of the most useful of all the institutions that Virginia has ever fotmded. Mr. Keezell: Mr. Chairman, when this question was tip some days ago I made some remarks with reference to striking out this appropriation for the University oi Virginia. I do not at this time wish to go over the same ground, except that we have possibly a good many more of our membership here than we had then. I stated then, and 1 think I can prove by the record, that the University of Virginia was not in danger of having its appropriation reduced, beca^use the history of the last twenty years has shown that at every session of the Legislature it was fully cared for. That this appropriation has been increased from §15,000 some years back until it is now 850,000 is proof that there has been no disposition on the part of the Legislature not to provide for this institution — all the State cO'Uld .afford to give it and all that was for its uses. I showed at that time that not only had its annual appropriation been increased, but that special appropriations had been made time and again for particular purposes. I called attention to two facts with reference to that. I remember o-nce, some years ago, when this institution came to the Legislature of Virginia asking that authority be given it to secure money for an increased water supply, the Legislature promptly voted every dollar hey asked for, in cash, necessary to secure this water supply . On another occasion it vras unforttmate and its btiildings burned down, and, although it was a question of doubtful co^nstitutional propriety, the Legislature, to all intents and purposes, gtiaranteed the bonds of that institution, authorizing them to mortgage their property and appropriating money for the payment O'f interest and sinking fund upon its bond issue of $200,000. I argued from that standpoint that I believed it was unnecessary in the interest of this great institution to ptit in the Con- stitution anything vrlth reference to guaranteeing its appropriations. I hold the same position to-day that I held then. I did not agree with the delegate from Lynchburg (Mr. Glass) and others, who thought that the competition of the other institutions in the State made it necessary to put the L'ni versify on a higher plane above and beyond all the other institutions of the State. I believe the only argument then which was made in favor of making an exception of this institution and putting it in the Co^nstitution was because of the fact that it too^k into its walls immature pupils who ought to be in the colleges, thus provoking a certain amount of antagonism from its sectarian institutions and colleges in the State which, it was stated, made it always have trouble to get its appropriation. That, if I understand correctly, was the argument made by its friends; and I do not wish to be classed in any other position than as one of its friends; but by its special advoc-ates, I will say, those who are in favor of putting this appropriation in the Co^nstitution. I say I think 1 have shovTi my friendship to the L'niversity by voting the money of the people of the State to the uses and needs of that Institution. Now, this committee having reversed its action of a few days ago and having voted to put this appropriation in the Constitution, what would most naturally have 1756 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. been expected has happened. Here come the special representatives of other institu- tions and ask that their institutions, too, be put in the Constitution, and a provision be engrafted on it that they shall receive no less appropriation than they now receive. Now, Mr. Chairman, I would like to vote for all of them if I thought it was right, but I believed it was wrong to vote for the University. I believe it is equally wrong to vote for these other institutions; and even though I shall be put in the attitude, possibly, of bringing about discrimination, I cannot bring myself tO' the point of voting to put into the Constitution provisions which I do not believe belong in the Constitution, but which ought to be left to the Legislature. I do not believe it is good policy to take out of the hands of the people, and out of the hands of the representatives of the people, control over the appropriations to these institutions, and thereby, to a very great extent, any control over these institutions, for when you take out of the hands of the Legisla- ture and out of the hands of the people the right to hold the purse strings you have made these institutions largely independent of the people. For that reason I am going to vote against the proposition to put a single solitary one of these institutions in the Constitution. Much as I am in favor of the Female Normal School at Farmville;. much as I realize and recognize the work of that insti- tution and the grand work it is doing; much as I recognize the needs and the worth of the Virginia Military Institute, I cannot bring myself to violate a principle of govern- ment which I think we ought to recognize, and ought not to violate by undertaking to tie the hands of all future Legislature, and of the people for generations to come, with reference to the control of their institutions and the expenditure of their hard earned taxes. Then, again, Mr, President, I think we are making an unfair discrimination here in favor of these institutions of higher education, I care not how worthy they are, and against the public free schools, in this State. We are saying in the Constitution that it matters not whether pestilence or famine or whatnot may befall the State; it matters not what may be the condition of the treasury, if it is necessary to do so, you will have to take away from other institutions or objects or you will have to impose a high rate of taxation in order to provide the funds to insure that these institutions shall never receive a dime less than they receive now, whether they need it or not. Yet as to the public free schools, you put them upon the basis of simply receiving whatever they receive according to whether the State is prosperous or whether it lacks in prosperity; and in that particular you make a discrimination against the public free schools of the State and in favor of these institutions of higher education, which I think is un- warranted and ought not to be done. I think they ought to take, if I may be allowed to use the expression, "pot-luck" along with all the other educational and other institu- tions of the Commonwealth. Now, Mr. Chairman, I know that these institutions do good work; but if we just stop a moment and look at what it costs the people of Virginia in order that this work may be done, we may realize something with reference to the proposition which we are going to vote upon now. The State of Virginia appropriates $25,000 annually to the Virginia Military Institute — Mr. Fairfax: I beg your pardon, I think it is only $20,000. Mr. Keezell: It is $25,000 to the Virginia Military Institute; and until within a few years it has been $30,000. Every few years it makes an additional appropriation for buildings or repairs, or something of that sort, of $5,000 or $10,000. What does the State get in return for the $25,000 which it appropriates each year to the Virginia Military Institute? It gets the free education of fifty State students. What does that amount to? It costs the State $500 for each one of the State students who goes to that institution, and unless that State student is able to pay from $165 tO' $200 in addition he cannot get into that insttution; and therefore for each boy educated there at State expense the State contributes $500 and the boy's guardian or his father has to contri- bute from $165 to $200 more, in order that he may receive that education. Yet I am told — and if I misrepresent I hope the members of the board of that institution who are DEBATES OE THE COXSTITUTIOXAL CO^"TXXTI0X OE YIEGIXIA. 175? members of the Conventioii will correct me, because I do not wisli to make a mis- statement — thai a boy ma.j come from outside the State and receive ax that institu- tion education which does not cost him in the aggregate more than $360 per session. If I am incorrect I want to be corrected right here and now. I say that S360 pays the entire cost of an outsider, whilst a Virginia boy has to pay 8655, in order that he may be educated in that institution either hy his guardian or by the State. Mr. Hamilton: The average cost of attending the Virginia Military Institute to a boy who goes there is but $365. The average cost of the State student is $165 a year. The State appointment is equal to $200 a year. Mr. Keezell: Then I have made an absolutely correct statement. :\Iy statement was that it cost the State student, either by his guardian or by the State, $665, and I have taken the minimum; and it costs an outsider, one who is not a State cadet, the gentleman says, $365. I said $260. Possibly I may have been in error in regard to the $5. Now. :\Ir. Chairman, this being the case, now when the Legislature has control of the appropriation, when they come to the Legislature of Virginia and ask an appropria- tion upon the basis of the benefits which they are conferring, what do you suppose will possibly be the result when you ptit into the Constitution a provision that it matters not what may happen, never shall they receive less than $25,000 for this institution? Mr. Chairman, I do not think it is good public policy to put in the Constitution any of these appropriations, and I think it is exceedingly- bad that we should now, because we have violated the principles in one instance, that there should be an effort to make a rush to become preferred creditors and to mortgage the revenues of the State for the benefit of certain institutions. I tell you, Mr. Chairman, the day of reckoning is going to come one of these days, and it is not going to be very far off. If the gentlemen want to load down this Con- stitution to such an extent that when jom submit it to the people for their ratification 3'ou will certainly -insure its defeat, just go along at the gait you are now going and I will guarantee yon will insure it beyond any question in the world. Mr. Hamilton: If the gentleman will permit me, I am told he says it costs the State student at the Virginia Military Institute $660 a year. Mr. Keezell: Xo, sir; I say ft costs the State student and the State $665. ]\Ir. Hamilton: VTiy do you not make those calculations as to the L'niversity of Virginia and other places? ;Mr. Keezell: I only made it in regard to this one because this is the only one we are considering at present. I stated explicitly that I was as much opposed to fixing in the Constitution an appropriation to the University of Virginia as to the Virginia Military Institute; but I supposed i wouiu be out of order if I discussed a proposition which had been already settled, and that I was in order when I was discussing one before this body. I used the figures that were applicable to tne case I was discussing before the Convention. Mr. Chairman, I do not vrish to weary the committee longer. I simply want to raise my protest against what is going on in tke committee: against this effort on the part of everybody to get special benefits and special favors for the special interests which they represent, to the detriment of the interests of the whole people of Virginia. I stated to the good people of Rockingham, when I was nominated for a seat upon the floor of the Convention, that if they expected me tO' come to this Convention and get special favors for them, to undertake to protect them against their share of the burdens of the government of the State, or to undertake to get for them special advantages or special favors. I wanted them to nominate somebody else, and I would not come to this Convention and ask for my people anything that I would not give to any other com- munity in Virginia, nor would I ask them to be exempted from any burdens that were to be borne by the balance of the people of Virginia. For that reason I do not intend to vote for any of these special appropriations to any of these special interests. ]\Ir, Hamilton: ^Nlr. Chairman. I would like to say a few words in reply to the 1758 DEBATES OF THE CONSTITUTIONyiL CONVENTION OF VIRGINIA. gentleman from Rockingham (Mr. Keezell). I think the members of the Convention understand my position thoroughly and fully. I have never been willing to raise my voice or my hand against the University of Virginia, even if I thought the matter was wrong on principle; and I have never done it. I have kept my mouth shut. I was compelled to vote against such an appropriation and that has been my position. If the appropriation has been brought in originally embracing the Virginia Military Institute I should, in the first place, have had to vote against it. But if the Convention thinks it is right tO' make such an appropriation permanently in the Constitution, if I must accept the idea that my views and my principle on that subject are wrong, then I say, do not do a great act oi injustice, which will carry bitterness and mortification to the heart of every old cadet who has ever been at the Virginia Military Institute. We do not come and ask special favors, which the gentleman from Rockingham speaks of. We do not ask for special favors. We are willing to stand up and take care of our- selves, provided other people are not given advantages rather which discriminate against us. But, Mr. Chairman, if the appropriation goes in here for the University of Vir^ginia, and the Virginia Military Institute is left out of it, you might as well write the death sentence of that magnificent school, for in the future people will say the Constitutional Convention of Virginia refused to recognize it, while it did recognize its other old complete State colleges and institution. it is not that we are asking favors. We are asking justice. We are asking even- handed treatment, and if you think it is right to make these permanent appropriations to such institutions, if that is your principle, then we merely ask that m doing so you will do no injustice and make no undue discrimination. That is all we ask. I feel, Mr. Chairman, that more than half of all I am, or all I have ever been, is due to my training at the Virginia Military Instftute, and what I learned there. I was not a beneficiary of the State's aid. I have never been the beneficiary of the aid of anybody except my father and mother; but I stand here to say that if you pass this appropriation for the Universitj^ and leave out the Virginia Military Institute, you had as well wipe it off of your statue books and make no appropriation, but let it wind up in the glories of the past. For one, sir, if that action is taken, I will never forgive it if I live a hundred years, Mr. Garnett: Mr. Chairman, as a members of the corps of cadets who received his diploma at the battle of Newmarket, in the shape of a Yankee bullet, I rise toi s.econd the efforts of my friend from Petersburg (Mr. Hamilton) in advocacy of the am.endment he has proposed before this body. In doing so I want to say that while I am an ardent advocate of this measure I was equally as ardent a friend of the Uni- versity of Virginia, and voted for that appropriation with great pleasure. In reply to my friend from Rockingham (Mr, Keezell), I wish to say that I think I can convince him that he will not be violating any duty confided to him by his people in voting for this appropriation or in advocating it; for, if I understand the gentleman correctly, he has said than in every Legislature of which he has been a member he has voted for an increased appropriation to the University of Virginia year by year, and for these other appropriations, and we all know the fact — the records of the State disclose the fact that the gentleman has been returned here by his constituencies time and time again, and honored with the position which he now holds in this body, and they have thereby endorsed his action in appropriating money to the University of Virginia and to the Virginia Military Institute, Mr. Keezell: I distinctly stated I had no possible objection to voting, and have time and again, voted liberal appropriations to both of these institutions. But I believe it is a legislative and not a constitutional function, and for that reason I was opposed to making a discrimination in reference to these institutions and against the public free schools, and not putting them on the same plane. Mr. Garnett: I understood the gentleman, and I do not agree with him. We have provided for the public free schools in the Constitution which we are now making. We DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 1759 have appropriated the interest on the literary fund, and in addition not less than ten cents on the hundred dollars, which, together with other sums gotten by the schools, will amount to nearly two million dollars, for the public schools of the Commonwealth of Virginia. Mr. Keezell: I am sure the gentleman does not wish to make a misisfatement. He says that that amount will be in the neighborhood of tw^o million dollars. If he will consider for one moment he will see that it will not make anything like one million dollars. :Mr. Garnett: I was considering the fines and other local sums that go to making it up. Mr. Keezell: Even with those it will not make one million dollars. Mr. Garnett: Mr. Chairman, I, for one, want to record myself as being an earnest advocate of the public free school system of the State; and gentlemen of the committee, I believe the time has come, or will soon come, wnen the people of the State of Virginia will demand of us a larger appropriation for the public schools. There is no tax that I have ever paid, small as it may have been, with more pleasure than that which goes to the benefit of public free schools; and I have been so situated as to derive very little personal benefit from that tax, in the education of my children. I wish to state to the committee that, coming from a section of the country remote from the University of A^irginia, and from among a people largely in such an impover- ished condition that they have not been able to take advantage of the benefits of that institution in the education of their sons, I have never heard from one man in that whole region any opposition to the appropriations that have been made here for the University of Virginia, year by year; and there has been no representative from that section of the State who has not voted to susitain these appropriations to the institutions of the State, and who has not been accorded by the people who sent him here perfect satisfaction with his course, and re-elected him time and again; but I want to say that I do not think we have anything to fear from the people in this matter. Year by year these appropriations have been made by the Legislature, and we are but endorsing their effort and sustaining their action in this matter. My friend from Rockingham (Mr. Keezell) endorses what has been done in that way; and yet, come what may come, the people of the State of Virginia intend to take care of the public educational insti tutions of the State. I believe the time will never come when the good people of the State of Virginia will forsake her public educational institutions. Whatever may be the condition of the State we cannot afford to lay down that burden. We must take it up and support these educational institutions. I hope, as has been so ably said by my friend from Petersburg (Mr. Hamilton), that there will be no invidious, distinctions made here, but that you will recognize the fact that that great school, which has done so much for the educational interests of the State of Virginia, and furnished to the Confederate Army some of the ablest and brightest ornaments that defended our homes, is a part and parcel of the State of Vir- ginia, as well as her other learned institutions, and that you will put in the Constitu- tion the provision offered by my friend. Mr. Green: Mr. Chairman, it seems to me it is unfortunate that this discussion of a question in which, in m^y opinion, the State is so seriously' interested should take any tinge of rivalry between institutions. I believe, sir, that no State can perform a higher duty, and no Legislature or constitutional body can bestow a greater boon upon the State than to take out from the midst of its people as many as it can and educate them in the higher order of intelligence. I am one of the men who believe that an A. M. who comes away from the University of Virginia, imbued with the learning it gives him, with the love of literature and the knowledge of history, with the high aspirations which all those things bring, is worth more to the State of Vir- ginia than 500 common school teachers who are teaching tricks of a, b, c upon black- boards. Those men all stand, sir, as the high water mark to which the State must look, and to v/hich all the citizensi of the State can turn for guidance, and with admiratioii 1760 DEBATES OE THE CONSTITUTIONAL CONVENTION OE VIRGINIA. and love. I voted, therefore, sir, with pleasure — eagerly did I vote — for the retention of the full amount that we could give to the University. I wish we could give her $100,000. Let me call the attention of the gentlemen to the fact that we people from down south of the Potomac have no millonaires to endow our schools. We have no men whose sons have gone, and who themselves have gone, to those institutions, and who have imbibed the love which I am gratified to see these gentlemen show for their insti- tutions, and are willing, therefore, when death lays hands upon them, and some of them even before, to turn over to the support of these institutions which have nur- tured them and made them what they are, a large portion of their fortune. If he State does not support its institutions they will never be supported. If the State does not build them and maintain them and aggrandize them as she can, and as wealth accumulates, they will necessarily go downward and lose influence prestige and cannot maintain themselves. I repeat sir, that I voted with pleasure ,and I am glad this Convention did it, to maintain the appropriation to the University. I will vote with equal pleasure to main- tain the appropriation to the Military Institute. Mr. President, I remember, when I was younger than I am now, I was called from civil life intO' the army. I did not know what "hep" meant. I was^ brought here and put as a private at the fair grounds, and my drill masters were the boys who came from the Virginia Military Institute. Those boys came down in a body, under their instructors, and took charge of the men who were to make Lee's army, and trained them and disciplined them until they had made them into^ soldiers. In the meantime, sir, when age had come to those boys, they went with those brave soldiers upon the battlefields of Virginia. I shall never forget that, and I shall never cease to believe that Virginia owes to that institution a debt of gratitude for that which she can never pay. I never see one of those boys in his small clothes that I do not feel like taking my hat off to the memory of the fellows who trained me into^ my soldier life. Who knows when Virginians may be called to the tented field again? This is an age of war. Talk about it being a commerical age! It isi a commercial age in which com- merce is to be gained by arms. At any time Virginia may be called upon to supply her quota of armed soldiers again. When she does, she has a ready made corps of instructors at the institute. Let us not only maintain it, but let us build it up to higher things. Let us give all that can possibly be given. Let us support it in every way possible. Let us remember, too, when we talk about it, that both of these institutions are a part of Virginia. Both of them constitute a part of her educational facilities. Let us by all means sustain them both. Let us give them what we can, and when the time comes let us increase, as far as we possibly can, the appropriation of both institutions. Mr. Fairfax: Mr. Chairman, I earnestly request members of the Convention to allow a separate vote on this question. They have voted separately for the appropria- tion for the University of Virginia. I voted against that appropriation for the simple reason that I did not think it proper to put it in the Constitution. I do not believe the friends of the Virginia Military Institute fear the Legislature of Virginia. I do not believe for one moment that they fear the Legislature will not make an appropriation. What would it be if it is cast aside by the State and not given State support? It has been built up since the War Between the States entirely without special appropriations by the State. It has been built up by the earnest and active work of the people who have that business in charge. They have not called upon the Legislature for anything when the Legislature has not come to their rescue and granted it; but they have made no great demands upon the Legislature at any time. The institution has worked its way up until it is a very important institution in the State; and as long as this committee has seen fit to put the University upon a plane higher than any of the rest of the institutions in the State, I beg the committee will give a vote upon the appropriation or non-appro- priation to the Virginia Military Institute, and not connect it with other institutions. DEBATES OF THE COXSTITUTIOXAL COXVEXTION OF VIRGINIA. 1761 Let them come along afterwards. I do not wish to detain the committee, but it will take but a few moments to hare these separate votes, and I trust they may be had. Mr. Glass: Mr. Chairman, on behalf of those members of the Committee on Public Education who concur in the report giving the University of Virginia recognition in the Consiitution, I most earnestly approve the suggestion made by the gentleman who has just taken his seat (Mr. Fairfax). I do not think the University of Virginia should have this recognition in the Constitution dependent upon the amendment proposed by the gentleman from Petersburg. I do not propose at this time to argue against a constitu- tional appropriation to the Virginia Military Institute; but, in view of the absence from the Convention of so many members when this matter came up for discussion on Sat- urday last, I ask the attention of members to a very brief statement of facts — a state- ment of facts which may be taken as a response to some of the statements made by gentlemen who have advocated the pending amendment. Your Committee on Public Education expressly denies that its report embodies any sort of discrimination against any institution in the State. I call attention to the signi- ficant fact that although on the Education Committee there is a member of the board of visitors of the Virginia Polytechnic Institute, a member of the board of visitors of William and Mary College, and gentlemen identified in interest and sentiment with the Farmville school, when the facts wei'e known and the reasons given, each one of them declined to embarrass the University of Virginia by putting forward a proposition on behalf of their respective institutions, such as the proposition presented by the gentle- man from Petersburg (Mr. Hamilton) in behalf of the Virginia Military Institute. Gentlemen identified with the Virginia Polytechnic Institute, one of the most useful public institutions in the State, having in its curriculum a system of manual training directly related to the public school system; gentlemen identified with the Normal School at Farmville, in intimate connection with the public school system, and gentlemen identified with and on the board of visitors of William and Mary College, all realized that putting the University of Virginia in your Constitution in this way was no sort of discrimination against any of those institutions, because not one of them occupies the same relation to this question that the University of Virginia occupies. I have nothing to say in disparagement of the fame or the efficiency of the Virginia Military Institute; but this question is not related to the glory of any institution in war or in peace. It is a plain, practical business question. The Virginia Military Institute is not in antagonism with the University of Virginia, nor the University of Virginia to it. If the contrary is true, then one or the other of these institutions should be dis- continued; for Virginia ought not to own two institutions of learning which are in antagonism to each other. Nor is the Virginia Military Institute in antagonism to a single sectarian institution in the State. On the contrary, there is not a single secta- rian institution in the State that is not in antagonism to the University of Virginia. I mean in just antagonism, not to the University as such; but to the policy which the University of Virginia is compelled to pursue. I use the word "antagonism" now in the sense that I used the word "hostility" the other day, each being, perhaps, a less polite term for "competition." The reason for putting the University of Virginia in the Constitution for a stated sum is to enable us to discard the policy which provokes the rightful antagonism of sectarian colleges. Now, note the difference. It is clear; it is wide. No sectarian college has any hostility to the Virginia Military Institute; hence there is no need to put it in the Constitution. They are all in competition with the University, owing to a policy which the University is compelled to pursue and which cannot be discontinued unless the annuity to it from the State is made secure by con- stitutional provision; hence the necessity for ptitting the University in the Constitution. The Convention has put the University in because it ought to go in; and it ought to go in because it occupies a peculiar and an entirely different relation to this question from any other instituti9n. While I am on my feet, Mr. Chairman. I want to indicate briefly to this Convention w^hat the University of Virginia has to contend against. I have already stated that it 1762 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. is antagonized (and justly so) by every sectarian institution of learning in the State, because its necessitated policy is not properly the policy of a University, and I have asserted, on the contrary, that the Virginia Military Institute is not antagonized by a single one of these sectarian institutions, because it does not compete with them. But in addition to this competition at home from institutions from which the University ought to get its material, it has the antagonism of the great universities of the North. I hold in my hand a statement of the endowment of these various universities. Harvard has $14,000,000 of endowment, with an annual income of $1,376,000; Yale has $5,000,000, with an annual income of $770,000; The University of Pennsylvania has an income of $520,000; The Leland-Stanford University has $30,000,000; Cornell has an annual income of $810,000; Columbia University has an annual income of $929,000; while the University of Virginia has an income of but $145,000, of which $50,000 comes form the State. Mr. O'Flaherty: Does the Constitution of any of those States in which those insti- tutions are situated make any provisions for those schools? Mr. Glass: They are rich enough to dispense with State aid; yet I am told that in three States they get it. I have a statement here, gotten from the ofSce of the Superin- tendent of Public Instruction of tnis State, to the effect that the State of Maryland has for a number of years guaranteed to Johns-Hopkins University an annual appropriation of $60,000, notwithstanding the fact that the State of Maryland does not own one dime of property interest in that institution. I submit that when my friend from Rockingham county (Mr. Keezell) tells us we are about to rob the State treasury for the benefit of the higher institutions, and in dire antagonism to the public school system of the State, and then admits that the appro- priation which we are seeking to put in here is not one dime in excess of the appropria- tion which he has voted to the University year after year as a member of the Legisla- ture, he is hair-splitting. It does not meet the argument we have presented here to show that the University of Virginia ought to be made secure in its annuity in order that it may be enabled to free itself from a certain sort of antagonism from forces and in- fluences that ought to be friendly to it, and ought to be helpful to it. I do hope that the suggestion offered by the gentleman from Loudoun will be acted upon, and that the friends of the Virginia Military Institute in the Convention will not take the position that, jUst because they cannot get constitutional recognition, they will therefore prevent the University of Virginia from getting such recognition. Mr. Mcllwaine: Mr. Chairman, I have not one word to say against the University of Virginia nor against the appropriation to the University, except on the ground upon which I put it the other day, and that was simply that I do not think the University or any of the State institutions ought to be taken from under the governmental power of the State. The Chairman: The question is on the amendment of the gentleman from Warren (Mr. O'Flaherty) to include the Female Normal School at Farmville. The amendment was rejected. The Chairman: The question recurs on the amendment of the gentleman from Petersburg (Mr. Hamilton) to include the Virginia Military Institute. The question having been taken by ayes and noes, the result was announced — ■ ayes, 38; noes, ou. Mr. Hamilton's amendment was agreed to. On motion of Mr. O'Flaherty the committee rose. The hour oi 2 o'clock having arrived, the Convention adjourned until to-morrow, Friday, December 10, 1902, at 10 o'clock A. M. FRIDAY, January 10, 1902. The Convention met at 10 o'clock A. M. Prayer by Rev. Richard Mcllwaine, D. D. DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE VIEGIXIA. ires On motion of :\Ir. IMcIlwaine, the Convention resolved itself into a Committee of tlie TMioIe for the further consideration of the report of the Committee on Education and Public Instruction. :\Ir, Parks in the chair. :\Ir. James W. Gordon: I move to strike from the committee's report the tvi-elfth section, amended by the insertion of the Virginia Military Institute. Mr. R. \\ alton 'Moove: Mr. Chairman, can that motion be divided? It seems that two institutions are now embraced in that section. The Chairman: The Chair rules that the motion cannot be divided. Mr. Barbour: Mr. Chairman, I raise the point of order that the motion is not in order at the present time. The first question arose on the question of reinserting the provision which had been stricken out in Committee of the Yrhole, on a reconsideration, and that, by order of the committee, was reinserted. Then, after being reinserted, the amendment was offered adding the Virginia Military Institute, and that, by a separate vote of the committee, was inserted. Both those actions having been taken. I think the only way in which this matter can be gotten at is by a motion to reconsider those sepa- rate votes. The Chairman: The Chair sustains the point of order of the gentleman from Culpeper — that it can only be gotten at on a motion to reconsider. Mr. James V. Gordon: 3Jr. Chairman, this matter in the end will have to be de- cided by the votes of the members of the Committee of the T^'hole, and although I dis- like to do so. I shall take an appeal from the decision of the Chair on that point and submit it to the decision of the committee. The chairman: The question before the committee is, shall the ruling of the Chair be sustained as the judgment of the committee? The ruling of the Chair was sustained; there being, on a division, ayes, 35; noes, 30. The Chairman: Are there any further amendments to Section 12? Mr. Mcllwaine: If there are none, sir, before making a motion in regard to the report, I wish to put myself entirely right with the Committee of the Whole on the subject of my relation to the University of Virginia. Nothing more would have been necessary had it not been for certain intimations in the speeches of two of the gentlemen on the floor, and in order that there may be no misunderstanding whatever, I want to read a resolution which I formulated during the last summer, and which was presented to the gentleman from Fairfax (Mr. Moore), a member of the board of visitors at the University of Virginia, and by him submitted to certain of the members of the faculty of the University of Virginia for their approval or disapproval. I was in hope, sir. that this resolution might be brought before the Convention by the committee of which I was chairman, but the committee, for reasons good in their sight, did not see fit to do so. The resolution reads as follows: The University of A'irginia shall constitute a public trust, and its organization and government shall be continued in the form and character prescribed by the organic act creating the same, passed January 25, 1819, and the several acts amendatory thereof, subject to such legislative control as may be necessary to insure compliance with the terms of its foundation and the proper investment and security of its funds. It shall be entirely independent of all political or sectarian influence and kept free therefrom in the appointment of its visitors and in the administration of its affairs. Down to thai point, sir, the language is largely taken from the Constitution of the State of California. I go on then: •Tt shall" And I wish the gentlemen would pay particular attention to this paragi'aph It shall be what, in its creation, it was designed to be, the head of the educational system of the Commonwealth, including its classical academies and chartered colleges, and to this end the General Assembly may. from time to time, pass such enactments and make such appropriations for its benefit as its full efficiency demands. 1764 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. That resolution, sir, was written with a warm heart and with an earnest desire to see the University of Virginia not only at the head of the common school system of the State of Virginia, but at the head of the educational system of Virginia. I should have been greatly gratified if such a provision as this could have been en- grafted into the Constitution. I am sure that it would have met with the approval of every friend of education in this State, and I merely read it now to the committee for the purpose of letting them see my personal attitude towards that great institution. Mr. Cameron: I also feel it incumbent on me, in a very few words, to make expla- nation of the reason, and of my regret that it existed, why I could not yesterday give my support to the proposition for this support to the University of Virginia. Individually i have for that institution the greatest love and veneration. I am not a graduate of it, because at the time when youth seeks such advantages as are to be offered by a university education another alma mater called for my services, and for four years of my life which should have been spent in preparation for the life to come were given to the military services of the State. Since then it has been my mission once and again to be placed where opportunity existed for service to the University. On one occasion its very existence was at stake, and it is known by its friends that I did not hesitate to spring into the breach and furnish the necessary authority and influence to save it unimpaired. But I was confronted yesterday with the alternative of withholding my vote from this appropriation or violating a constitutional conviction as deep as my nature. I do not believe that to any individual or any educational purpose a Constitu- tion should make any appropriation. I believe that the Legislature should be left in charge of the disposition of the current funds of the State as circumstances and ex- perience may dictate. I do not admit any inconsistency between this position and that which I hold in re- gard to fixing the salaries of the Governor and the judges, under the Constitution. The Governor is the head of one great equal co-ordinate department of the government and the Supreme Court of another; and that they should be protected from invasion by the third department and should be put beyond all possibility of starvation to the will of that department is a self-evident truth to any one brought up in the political school in which I was educated. Therefore I feel that there was no inconsistency, but, on the contrary, it seems to me to imply lack of the sense of proportion and of a proper sense of discrimination in those minds who could see no difference between providing for the perpetuation in freedom and independence of the other great departments of the govern- ment and the provision, without regard to such circumstances, as might arise in the future for an institution which, useful as it is, is after all but an institution of the State. Mr. Chairman and gentlemen, I am sorry to have detained you even for this long; but I thought this was due to myself. Mr. Dunaway moved that the committee now rise and that the chairman report to the Convention that the committee has finished the consideration of the report of the Committee on Education and Public Instruction. The motion was agreed to and the committee yose. The President having resumed the chair, Mr, Parks reported that the Committee of the Whole had had under consideration the report of the Committee on Education and Public Instruction and nad finished its consideration. Mr. Thomas H. Barnes: Mr. President, I move that the Convention take up and consider the report of the Committee on the Government and Organization of Counties, as amended by the Committee of the Whole. The motion was agreed to. ARTICLE VII. County Organization. Section 1. There shall be elected by the qualified voters of each county one sheriff, one attorney for the Commonwealth, one clerk of the court, one county treasurer, who t DEBATES OF THE COXSTITUTIOXAL CONVENTION OE VIRGINIA. 1765 shall not be elected nor serve for more than two consecutive terms, nor shall he act as deputy of his immediate successor; and there shall be appointed, in a manner to be pro- vided by law, commissioners of the revenue, the number of whom and whose duties and compensation shall be such as may be prescribed by law; one superintendent of the poor, and one county surveyor. The President: The question is on agreeing to the section as read by the Secretary. Mr. Quarles: I move to strike out, beginning in line 14 of Section 1, the following- words: "Who shall not be elected nor serve for more than two consecutive terms, nor shall he act as deputy of his immediate successor." Mr. Robertson: Mr. President, perhaps it is useless for any member of this Con- vention to say anything further with reference to this matter. The substance of the amendment of the gentleman from Augusta is to the effect that the provision of Section 1, whereby it is provided that a treasurer shall not ba re-eligible shall be stricken out. That is the sum and substance of the amendment of the gentleman from Augusta, as I understand it; and while I have craved the indul- gence of the Convention once before on this subject, I feel such a deep interest in it that 1 will presume to say a few words more in reference to it. I do feel that we ought not to irrevocably commit this Convention to the principle which is involved in the first section of the report of this committee. The gentlemen who were present Vv^hen this matter w^as up before are familiar with the arguments that were adduced at that time, but we have a very much larger attendance here now than we have had before, and that is my excuse for trespassing upon the time of this body again. I do want a reconsideration of that matter. Now, Mr. President, I respectfully submit that it is wrong in principle, however it may have been in practice, to put into our Constitution a proA'ision that any officer can- not be elected for a second term. An argument has been made here that we have a provision that our Governor cannot be elected to succeed himself. In my opinion that is wrong in principle. But because we have done one wrong, and because we have kept in the Constitution an old provision which has been there for a number of years with reference to the Governor, is no reason, in my humble judgment, why we should go further and carry that principle, which is certainly an exceptional principle, into the minor offices of this State. That provision in reference to the Governor, Mr. President, was put into our Con- stitution when our people were very much afraid of the power of the Governor. That fear was the outgrowth of their experience when this State was a colony; and the Governor represented the crown; and even when we became a separate State, we still had that fear of the chief executive officer of this Commonwealth, and wanted to hedge him around in every manner in order to protect the people against possible aggressions on his part. But I respectfully submit that the time for even that has gone by, and that that provision ought not to have been retained in our Constitution. But when we come to these minor officers, our county officers and city officers, I say it is depriving the peo- ple of Virginia of a right which they ought to have to re-elect men in whom they have confidence, whom they have learned by experience are competent to fill those offices, whom they see have filled them well, to say to them that they cannot re-elect those men simply because some gentlemen on this floor are able to point out that on account of the duties of these officers there is some tendency to evil and some tendency to electioneering for the purpose of being re-elected. Now, I submit it is wrong in principle to say that, because some of the officers of this Commonwealth in the discharge of their duties do wrong, we ought to put a con- stitutional provision here with reference to this office making the good men who are elected to those offices ineligible for a second term on account of bad men who are put into the offices. That is contrary to all the theories of popular government. I am not going to indulge here in any buncombe talk about the people, and about this, that and the other, but whatever we may S3.y about it, this is a democratic and popular form of government. We have decided here that the people shall elect these officers, the treas- 1766 DEBATES OF THE COjS^STITUTTOjSTAL CONVENTIOISr OF VIEGINIA. hirers of counties and cities, yet in the next breath we say that the people cannot elect Jiim, whether he be good or bad; that the people cannot reward a good officer by a re- election, but must turn him out because, forsooth, the nature of the office is such that men are prone to do evil in it. I say if that is the nature of the office we ought to re- form the nature of the office. Mr. Keezell: May I call the attention of the gentleman from Roanoke to the fact that this provision allows his re-election for one term, makes him eligible for two con- secutive terms? Mr. Robertson: I do not care about that, sir. The same principle is involved. I want it so that a man may be elected for twenty terms, if he lives that long and proves an efficient officer. I say you are practically saying to the people of Virginia that, however a man has discharged the duty of this office, he cannot be re-elected and rewarded for having dis- charged it aright. I think that kind of argument will not do. It is practically an argument that something is wrong about the nature of the office, that the duties of the office are not properly prescribed, that there is something in the nature of the office which keeps it from being the kind of office that we want. That is really the kind of argument that these gentlemen are making. Now, on a former occasion, I suggested to this body — and it was impressed on my mind, I must admit, by the remarks submitted by the gentleman from Petersburg (Mr. Hamilton) referring to the way in which they managed things in the city of Petersburg; I had had the same view, but it was brought home to me in a very strong way by the remarks he made — that the effect of this whole matter does not arise from the cause which these gentlemen think. It is not because our treasurers are re-elected for any number of terms. It is because the State of Virginia has not adopted a proper system of book-keeping and accounting, in order to see that these people do their duties properly. I respectfully submit that is the true business solution of this whole matter. Take a Lank or a railroad company, or any other business organization that employs men to handle and to collect its money. If a man were to make the proposition to the board of directors of such companies that they should be tied down so that they could not re-elect him, the thing would be treated with scorn and nobody would think of listening to him for a moment. The way they protect themselves is to see that these people make a frequent accounting. These companies that have men scattered about have what they call traveling agents or auditors. Those whose employes are not scat- tered about the country are in some local place, require them to make settlements at frequent intervals, and they have some one to audit the accounts of those employes who understand how to do it. I respectfully submit that, instead of accepting these conclusions on this proposition, we ought to wait until we can get the benefit of the advice of some other committee — I suppose the Committee on Finance would be the proper committee, or some other com- mittee of the body — ^as to the proper manner in which the county accounts can be properly kept. I do not want to detain the committee, but under the present system it is a well- known fact, taking our county levies, that the treasurers' accounts are settled before the boards of supervisors of the different counties. While I was on my feet here once before, a gentleman put me in the position of saying that I was trying to do away with the board of supervisors. I repeat what I then said, that I am not trying to do away with them; but I do say that, so far as my personal experience goes, those boards are inadequate to discharge the duties imposed upon them, and to that extent they are worthless, in my opinion, and not sufficient and adequate to audit the accounts of these public officers. We need an addition to those boards, some traveling auditor, some man who would go around and drop in on the treasurer when he is not expecting him., and require him at any moment to show the exact condition of his accounts. I cannot go into the details of that. I am not sufficiently familiar with book-keeping and accounting to do so, but I do believe that we ought not to deprive the people of the right to re-elect DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGINIA. 176? officers who have faithfully and properly discharged their duties simply because bad men have been allowed to commit defalcations on account of our not watching them and making them settle their accounts in the proper manner. I have nothing further to say on that matter, and I do not want to detain the committee longer, but it does seem to me that the committee will make a mistake in adopting any such proposition as this. Mr. Keezell: Mr. President, I am sorry that this matter has come up at this time, for the reason that during the discussion of the matter in Committee of the ^Miole I took some part in it. I had some data which I have not at my hand now, and it will be impossible for me to get it at this time, as I did not suppose this report would come up this morning. What I shall have to say upon it. therefore, will be at a very great disadvantage, owing to the fact that I have not the information in such shape as I feel this Convention is entitled to have it; but as the question is up, and I do not desire to be put in the attitude of delaying any of the proper work of this Convention, I will simply try to remind those members of the Convention who were absent during the time when the matter was discussed in Committee of the ^^Tiole that we had a very full and through discussion of this question of the eligibility or ineligibility for re- election of treasurers of the various counties of the Commonwealth; that it was dis- cussed at considerable length, and that, instead of its being an innovation, as would be inferred from the remarks of the gentleman from Roanoke (Mr. Robertson), if not from his exact lang-uage, I showed to the Committee of the Whole at that time that a large majority of the most important States of the Union had a similar provision with reference to the ineligibility of the sheriff or the treasurer, whichever was the col- lecting and disbursing officer of the taxes in those States. I have before me now the Constitutions of the various States, and could refer to them if I had the time to do so. The gentleman from Albermarle CMv. Boaz) has kindly handed me a list. I am probably unfamiliar with the list as he has prepared it, and I will be glad if the gentleman will later on present it himself: but I may state that the list which the gentleman has here will show that in a large number of the most important States of the Union it has been found necessary to limit the time when a man who has the collection of taxes from the people should be allowed to continue in offi_ce. There must have been some reason for this, or there would not have been so much unanimity in the important States in engrafting this provision into their Con- stitutions. What would be the effect if we were to go along now and affirm the action of the Committee of the AWnole? There is not a treasurer in Virginia now who, if the people wish to retain him. could not hold office for ten years longer. They would hold, under their present elections, as I understand the law. until the 1st of January, 1904. They would then be eligible to two terms of four years each from the 1st of January, 1904, so that they would hold ten years yet. So you see we are not undertaking to prevent the proper rewarding of an officer for the faithftil discharge of his duties, because we give him an opportunity for one endorsement at the polls by a re-election, and, if he has been faithful heretofore, a ten year lease of official life. I went into some detail at the time the Committee of the Wliole had this matter under consideration. Mr. Claggett B. Jones: Are you not mistaken about the terms of office expiring on the first day of January, 1904? Will they not expire on the first day of Juh^ 1903? Mr, Keezell: That would have been true had there not been a constitutionaJ amendment adopted at the November election; but the time of election having been changed from May until the succeeding fall, the understanding of the Legislature and my understanding of the proposition, is that there shall be six months added to the term of each one of these officers, which would niake their term expire on the first of Jan- uary, 1904, the spring elections having been abolished. Mr. President, I was going on to say that when this matter was up before the 1768 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Committee of the Whole I went into some detail. I do not care to go over all that again, but I state to you now, that under our present system of accounting — and if the gentleman from Roanoke (Mr. Robertson) will take the trouble to go and look at the acts of Assembly which have been passed here in the last fifteen years he will find — that you cannot put any more stringent provisions into the law requiring settle- ments and all that sort of thing than you have now; and that, notwithstanding, these requirements are absolutely ignored and to a very great extent rendered utterly worth- less. He will find it to be the fact that a county treasurer who desires to do it has the whole matter in his, own hands, in the question of settlement. Generally speaking, a treasurer will manage to keep himself somewhat straight with the Auditor of Public Accounts, but you will find, and it has been the history of very many counties of the Commonwealth, that he has kept himself straight with the Auditor at the expense of the county and district funds in the county where he is located. It is almost impossible to have such an accounting with the treasurer as is an ac- counting in fact. Take a count}' like the one I represent upon this floor, in which there are five magisterial districts, in which there are five school districts, in which there are five road districts. You will find that the treasurer fixes a different day — (and he must necesarily fix it if he wants to make a settlement)— for a settlement witn each one of these sub-divisions; and it is possible for him, if he wishes to do it, to make the same cash serve as balances for all of the various boards v/ith which h© settles; and he can take a few thous,and dollars and make an apparent balance tO' the extent of many thousands of dollars in the settlements with these boards. Mr. Chairman, it has been demonstrated time and time again, when treasurers have gone out of office whose accounts were supposed tO' be as straight as it was pos- sible for business men to keep accounts, that nothing was known about the true con- dition of their offices until they went out of them and made a' final settlement and turned it over to other people. I think it is desirable, not only for the sake of the people of the counties, but for the sake of the treasurer himself, that there should be some time limit to his office. If there is any official in Virginia who is imposed upon by impecunious tax-payers, it is the treasurer of a county. Take the treasurer of a county which is close politically, which condition has rendered it necessary for a man to be mending his fences, all the time with the idea of re-election; or take a county in which there is no such condition, but where there is an opportunity for what we call a free fight, you will find that the treasurer discovers that it will be necessary to be making favor with the tax-payers in order that he may be retained in office, and the result of that is that the tax-payers impose upon the treasurer and demand that he shall carry their taxes. It has been the history of a great many treasurers in Virginia that, although they are apparently getting a fair compensation for the duties which they perform, when they come to settle up they find their commissions in the shape of tax tickets they have paid for, and carried over for, the impecunious tax-payers. The history and the proof of that is that there has never been a session of the General Assembly of Virginia of which I have been a member — and the two weeks of the session which has already been held is but a further proof of it — that there have not been from a great many counties in the Commonwealth requests to extend the time when treasurers may go back and levy for taxes for which they have accounted to the Commonwealth and boards of supervisors. So, I say, it would be a protection not only to the counties but to the treasurers themselves if there was a fixed and determined time when their officers should expire, because they would then say to these tax-payers, "Sirs, you must come up and perform your duties as citizens. I cannot be put in the attitude of carrying your taxes and allowing the commissions to which I am entitled to be simply upon paper. Again he would say, "My term of office expires at a certain time, and I must make a final and full s,ettlement, I cannot get credit for overdue tax tickets in settlement. I am obliged to turn over cash." It would not only be a protection to the counties, but it would be a protection to the treasurers themselves if there was a fixed time when they must go out of office. DEBATES OP THE COXSTITUTIOXAL COXYEXTIOX OF YIEGIXIA. 1769 Now, Mr. Chairman, I want to call your attention to the fact thai if you go and tak© the records of the past you will find that a very large per centage of the treasurers who have defaulted in Virginia, either to the State or to the counties, have not been treasurers who have held but one or two terms of oiSce, btit they have been treasurers who year after year and term after term were re-elected by the people, and who from frequent re-election had begun to believe that they owned the office and that they were no longer amenable to the will of the people, but that they would be able to continue during life. It is. a very dangerous condition of mind for an oflicer to get in, when he believes he is so thoroughly intrenched in the confidence of the people as not to be amenable to them. I believe there has been nothing proposed in the Convention which will be as much protection to the tax-payers of the Commonwealth as putting a time limit upon the terms of the treasurers of the counties. Can any treasurer who now holds the ofBce object? Why should he object? As I stated in the outset of these remarks, if the people see fit to do so they can continue him in office for ten years from this time. Now, Mr. Chairman, if the people whom I represent on this floor had not gone through an experience with a defatilting treasurer, I possibly wotild not feel as strongly upon this stibject as I do. In the remarks that I made before the Committee of the Whole I called attention to the fact of what happened in the county of Rockingham, with reference to a defaulting treasurer. I do not wish now to undertake to go into* all that detail, because I know the people of Virginia are anxious that we should gO' along with our work. I do not wish to detain the Convention: but I will say to yoti now that in that county we had a defalcation which meastired up to seventy or eighty thous- and dollars, and yet that defalcation came as a clap of thunder from a clear sky. Every- body thought we had the best treasurer in Virginia. He had that reputation; and it could have been no greater surprise if the skies had fallen when action was taken against that man upon his official bond. Mr. Chairman, I hope that, though I know I have not been in a position to-day to discuss this matter in the detail and in the manner I would like to have heard it dis- cussed, this Convention will endorse what I believe was the mature deliberation and conclusion of the Committee of the Whole. Mr. Boaz: Mr. President, I have no desire to make any remarks. The ground has been so fully covered by the gentleman from Rockingham (Mr. Keezell) that it is unnecessary. I will simply refer to the provision of the Constitutions of some twenty- odd of the States in regard to this matter. In South Carolina the sheriff is disqualified for re-election if he is in default. In a great many of the States, where these officers are made ineligible for succeed- ing terms the sheriffs are the treasurers. The word "sheriff"' and the word "treasurer" are interchangeable terms. In South Dakota they have a two years term, and are not eligible for more than four years in succession. In Tennessee they may serve six years in eight. In West Virginia the sheriff is ineligible to a second consecutive term — that is sub- stantially the provision we have here — nor is he permitted to act as deputy of his suc- cessor, or within one year eligible to any other office whatever. In Delaware the sheriff is given a term of two years, and is ineligible to succeed himself. In Idaho the sheriff is ineligible to succeed himself. In Illinois there is a term of four years, and the officer is ineligible for re-election. In Missouri there is a term of two years, and the officer is eligible to serve four years out of six years. In Pennsylvania the officer is ineligible for the next succeeding term. I have here a statement of the provisions in the Constitutions of twenty-odd of these States, and as a rule, they have much shorter terms than ours. In most of them the terms are two years, and they limit the treasurer to two successive terms. They do 112 — Const. Deb. 1770 DEBATES OF THE COJssSTITUTIO^sTAL CONVEIstTION OE VIEGHs^IA. not give him more than four years as a general rule. Our provision allows a treasurer to hold office for eight years in succession, and I think it is a very reasonable require- ment. I do hope the Convention Vv^ll not recede from the conclusion reached by the Com- mittee of the Whole. The ayes and noes were ordered, and being taken, resulted — ayes, 41; noes, 43— as follows: Ayes — Messrs. Allen, W. A. Anderson, Manly H. Barnes, Bristovs^, Brooke, Brown, Clarence J. Campbell, P. W. Campbell, Carter, Chapm^an, Cobb, Crismond, Earman, Epes, Gillespie, R. L, Gordon, Green, Gregory, Hamilton, Hancock, Hooker, Hubard, Ingram, Claggett B. Jones, Kendall, Lincoln, R. Walton Moore, Mundy, Pedigo, Phillips, Portlock, Quarles, Rives, Robertson, S'ummers, Tarry, Thorn., Vincent, Willis, Wise and Withers. — 41. Noes — Messrs. George K. Anderson, Barbour, Thomas H. Barnes, Hlair, Boaz, Bouldin, Dunaway, Fairfax, Garnett, Gilmore, James W. Gordon, Gwyn, Harrison, Hatton, Hunton, G. W. Jones, Keezell, Lawson, Lovell, Marshall, McHv/aine, Meredith, Miller, Moncure, Thom.as L. Moore, O'Plaherty, Orr, Parks, Pollard, Richmond, Stebbins, Stuart, Thornton, Turnbull, Waddill, Walker, Walter Watson, Wescott, Woodhouse, Wysor, Yancey and the :President — 43. The amendm^ent Vv'as rejected. The President: The question recurs on the adoption of Section 1 as amended. Mr. O'Flaherty: I move to strike out the words beginning with semi-colon, in line 16, page 2, down to the word "lav/," in line 17. The effect of that amendment will simply be that the eommxissioners of the revenue shall be elected by the people. The clause begins, "There shall be appointed," and then follows the enumeration of seven officers. By striking out that language these offi^cers will be elected by the people. On that amendment I call for the ayes and noes. The ayes and noes v/ere ordered. Mr. Thomas H. Barnes: I desire to state that the original report of the com- i mittee contained that language, providing for the election of these commissioners by the people. The Committee of the Whole, after a very lengthy discussion, decided to provide that they shall be elected in some manner prescribed by the Legislature. They left to the Legislature the v/hole matter, and we are willing to abide by the decision of the Committee of the Yv^hole. ^ Mr. Withers: My. President, I would not take up the time of this Convention by any disicussion in regard to this amendment were it not for the fact that the question came up in Committee of the Whole on the Saturday after the election recess, when there was a bare quorum present. I dO', however, desire to- call the attention of the Convention to a few facts in connection with this question, which is brought up by the amendment proposed by the gentleman from Clarke and Warren (Mr. O'Flaherty). On that day I attempted to show why I, who am in favor of the election of officials by the people, did not believe that listers for taxes were officials, in the proper sense of the term. Whether I succeeded or not is a matter that is of no importance to the decision of this question. I attempted to show, and I believe I did show, at any rate it has stood unchallenged on the records of the Convention for exactly two months, to a day, that the cost of the elective system of Virginia was immensely greater than .the cost of the appointive system in other Statesi, and that the appointment, under a proper system, of commissioners for the taxation of property would result in the per- formance of the duties of that office in from sixty to ninety days, and the consequent retirement of the incumbent, after that period, until he is appointed for the next two years, whichever the Legislature may decide. I stated, as an illustration of the differences in the systems, matters which had been brought to my personal attention by the fact in a fiduciar^^ capacity I had been compelled to list taxes in other States; I cited my ov/n county of Pittsylvania and the county of Norfolk, and compared them respectively with the counties of Rockingham and Mecklenburg, in the adjoining State of North Carolina. I showed that the commission for county purposes that is paid out DEBATES OF THE COXSTITUTIOXAL COXTEXTIOX OE YIKGIXIA. 1771 of the county levy to the commissioiiers of the revenue for the county of Norfolk was nearly four times as great as the total commission paid to the commissioners of revenue of the county of Mecklenburg for performing similar work in that county; and there was an almost equal disproportion as betvveen the counties of Rockingham and Pittsyl- vania. I believe, Mr. President, if the Convention will consider these two facts, the eth- cienc}' of the official in listing property for taxation, and the economy when he is not influenced by any desire to keep himself in office or by any desire to please those v^^hose property he has to list, there will be no hesitation in adopting this provision, and re- moving this person, noYv improperly styled an official, from popular prejudice or favor. Each man wnom he approaches remembers whatever of imaginary wrong he thinks has been perpetrated against him by overcharging or improperly listing such property as he does not Vv^ant taxed. Thirdly, Mr. President, I sought to impress upon the Conventioii when sitting in Committee of the Whole, the fact that no man Vv'-ho listed our property for taxation ought to be dependent upon cur favor for his position and remuneration, because it is so essentially a personal and disagreeable duty that almost any man, with human re- strictions upon his sense of right and wrong, would resent the act of an official if that official, in differing with him, undertook to appraise his property at a higher rate than the citizen tj.ought it "ought to be appraised, or to list more property than the citizen thought ought 10 be listed; and v/ould seek to vent his displeasure upon the official by seeking to retire him from office at the next election, I have noticed that those gentlemen in the Convention who have criticised my position with regard to that particular matter have ever been ready and willing to submit to i^e people for election officers of comparative unimportance, where local pre- judices and local sores Yveve necessarily engendered, v\-hile "they were totally unwilling to give them control of the respective branches of their government, such as the judi- cial and the executive. For these three reasons it has been urged, and is respectfully urged again, that the commissioners of the revenue or the listers of property for taxation are not officials and offixcers in the proper sense of the term, and should not be continuous and per- manent. By making them independent of the citizens whose property they assess a more efficient, as well as a more economical, system will be insured. No lister of property for taxation ought to be dependent for his continuance in office or for his pay upon the citizens whose property he lists. These three reasons, I respectfully con- tend, ought to justify the Convention in sustaining the action of the Committee of the Whole and in voting dovrn the amendment of the gentleman from Clarke and W^arren (Mr. OTlaherty). Mr. O'Plaherty: Mr. President, the criticism of the gentleman, that those who are in favor of this amendment have not been in favor of voting for the other officials of this State, is not true of myself. I have voted for the election by the people of every official of the State. With reference to the three points made by the gentleman, the first, as to cost, should not, in my judgment, enter into this question, because the subject of cost is a matter which can be regulated by the amount of commission. If 3^ou reduce the com- mission you will reduce the cost. I am surprised that the gentleman should make an argument of that kind. It is, to my mind, absolutely worthless. If it costs too much, reduce his commission. The second point which he makes is as to the efficiency of the officials. I say that if you want to make an official efficient, say that he shall not be re-elected to the offic©, and then he will do his duty without regard to whether he is to be re-elected or not. The gentleman aoandoned his whole case when he abandoned that point in the Com- mittee of the whole. The third point is that no man shall be dependent for his position upon the favor of the people. I say that no man ever ought to hold an office who is not dependent 1773 DEBATES OF THE CONSTITUTIONAL CONVENTION" OF VIRGINIA. upon what he does in that office. I am dependent upon the favor of the people if I practice law, and I am dependent upon the favor of the people if I practice medicine. I am dependent upon their favor if I want to be in politics, and I am dependent on their favor if I want to be a commissioner of revenue, and I ought to be. I would never vote not tO' make a man responsible to' the people who put him in power. Mr. Keezell: Does that amendment make him ineligible to re-election? Mr. O'Flaherty: It does not; but I would add an amendment that he should not be eligible to re-election after his first term. A gentleman says that is nonsense. I say that is the only sensible way to dO' this thing. That is the only question that I discussed with my people when I made a canvass for the position which I hold; and the people of my district are almost, and I will say quite, unanimous in the belief that a commissioner of revenue should be elected by the people, and that he should not be eligible for re-election. The question of cost or of efficiency does not enter into this matter. I want to ask my distinguished friend to answer me what difference a few dollars makes in this matter, or a few thousand dollars, or a few tens of thousands of dollars, if those who escape taxation in the State of Virginia to-day are reached. My distinguished friend, from the beginning of this Convention, lias been talking about mere bubbles. He has been arguing for a reduction of ex- penses of five or ten thousand dollars, of a few cents here and there, when the whole question, in the State of Virginia, is to get the money that is due to the State, and not of reducing the expenses in the county, and in the judiciary, and in this, that and the other. That is where the gentleman made his initial mistake, and he will go down to his grave with it. I say that the gentleman has made his mistake by en- deavoring to save a dollar here and a dollar there, and he puts that dollar up so close to his eyes that it looks like it covered the wliole earth, when, as a matter of fact, we ought to be getting in, from the taxable values of the State of Virginia, hundreds of thousands of dollarsi that are escaping. Mr. O'Flaherty's amendment was rejected. Ayes, 29; noes, 48. Mr. Withers: Mr. President, I desire to offer the following amendment: "Amend Section 1 by striking out, in lines 2 and 3, the words 'one attorney for the Common- wealth.' " Mr. Withers: Mr. President, I dislike to take up the time of the Convention to again call its attention to what this amendment means. I will, however, explain it so that it can be thoroughly understood. It is to strike out, in lines 2 and 3, the words "one attorney for the Commonwealth," so that the Legislature, if it sees fit in its wisdom, may provide for what are known as district attoTneys — that isi, each judicial circuit of the State may have an attorney for that circuit, but there shall be no constitutional necessity that, in each county of the State, there shall be a Com- monwealth attorney. I will attempt to meet, in advance, the proposition that a Commonwealth attorney is essential for every county, as I Know such a proposition will be advanced and argued. That does not correspond with my observation. The Commonwealth attor- ney, in some few counties, may be very busy; but the Commonwealth attorneys, in very many other counties, may not be busy, as is evidenced by the fact that we find them in every Legislature, in the Constitutional Convention, and in other bodies of this State. They cannot be very busy all the time, because they can properly per- form the duties of their other offices. This isi not an attack upon Commonwealth attorneys. So far as my observation and information go, the duties of that office are most acceptably and properly per- formed; but it would promote harmony in the judicial system; it would raise, dignify and elevate the office itself, that there should be, throughout the State, to correspond with the circuit judges of the State, a prosecuting attorney to gO' around, from county to county, with the judge to see that criminals are properly prosecuted. The position would be next in importance to that of Congressman. It would insure to gentlemen who have political ambitions, by the proper performance of their duties, reputation DEBATES OE THE CONSTITUTIONAL CONVENTION OE VIRGINIA. and fame for their ability energy and mental capacity. It would, I believe, result in an efficient prosecution of criminals and it would harmonize our judicial system. It would, Mr. President, in addition, give us an official secondary in importance only to the judge in our judicial system, and an official, in a political sense, second only to the Congres.sman. It would be a sure step to reputation, fame and advance- ment, and it could in no wise lessen the efficiency of the prosecution of criminals, so far as I can see. I do not think it is the custom of Commonwealth attorneys to run all over their counties to attend magistrates' trials. It is not so in some sections and there is no officer required to do it by law. The only question is whether it is wiser to have such an officer for every county or whether it is better to have one of higher importance, covering a larger extent of territory, with more of emolument and more of honor attached, and thereby to render the judicial system more dignified, consistent and harmonious,. I shall not enter into any further discussion of this question, because I am sure that the mind of this Convention is in such mood that anything I might say, in the way of argument, will occur to it of itself. Mr. Keezell: V^%at would be the effect if we were to have district attorneys instead of Commonwealth attorneys, as to advising boards of supervisors, etc.? Mr. Withers: I think I can reply to that. Every time any county in the State has a case or litigation of importance, almost without exception I submit, it is the rule to have counsel other than the Commonwealth attorney. The Commonwealth attorney appears as adviser to the board when his presence is demanded by the board of supervisors. In what capacity are his services continually required? In what capacity can a Commonwealth attorney be, expected, as a prosecuting officer, to be, every day, at the command and behest of the board of supervisors in several cases? There is always other counsel employed, and the only thing that would be requisite, when the case demanded, would be the payment of a retainer to a legal firm for such advice. In case of emergency or necessity there would arise, of course, a necessity for the employ- ment of counsel just as there does now. Of course, the Commonwealth attorney in his home county could practically perform those duties as district a^ttorney. In others, especially in large counties, there might be a necessity for the retainer of a legal firm for consultation upon routine and ordinary business transacted by the board of super- visors. So with business transacted by the sheriff and by the treasurer. Those things are purely perfunctory, in the main, and the self-sufficient answer to it is that such a thing is not a matter of serious consideration in the greater part of the State of Vir- ginia, and in by far the larger number of counties in Virginia. It is seen in the fact that Commonwealth attorneys can be members of any Legislature or deliberative body in existence in Virginia, or other bodies — such as members of Congress, members of the General Assembly and members of the Constitutional Convention. It shows, Mr. President, not that they are not properly performing the duties, but their duties are such that their presence at home to prosecute criminals, and for routine, usual and ordinary advice in the administration of county affairs, is not of such a serious nature as to be pressing in its demands or to require their constant and ever-present attend- ance at their cotmty seats, or at their offices, or at the meetings of boards of super- visors, or with the sheriff or the treasurer. I respectfully submit if the other plan is adopted it will have the advantages of being an important position. However important the Commonwealth attorney may be in his own county, his fame, reputation, duties and privileges are bounded by the limits of his county. They will be enlarged, enhanced, increased and magnified; and we will have an harmonious judicial system, whereby the duties of the prosecuting atorney will be confined to the performance of one branch, and one branch only, of the adminis- tration of justice in our Commonwealth, and that is to see that criminals are properly prosecuted. 1774 DEBATES OF THE COXSTITUTIOXAL CO^vTYENTION OF VIEGIN-IA. Mr. Green: I feel constrained to support the motion of my colleagues in this matter, for what I believe" are most important public reasons. I wish to sa,y to my friends who happen to be CommonYvealth attorneys in this Convention that I mean no disrespect to them in what I have to say. I have been a Commonwealth attorney myself. I have never thought it was a disgrace to hold the ofRce; but I do say that by a system of cheese-paring, adopted in the Legislature of Virginia, Commonwealth attorneys re- ceive pay in accordance with the degradation of the service which he is required to perform. His character as a lawyer, his influence in the community, his influence in the State at large are utterly destroyed. I do not deny that there are many promising young men in the position of Commonwealth attorney in Virginia; a.nd I want to lift them up. I do not want to keep them in the terrible condition of servants to the county ring, which they now occupy. I want it understood that I do not mean any reflection. I repeat it, because I do not want to be understood as reflecting upon anybody; I do not reflect upon anybody, I say, sir, that these oflicials do not occupy the high plane of influence and character which a Commonv^ealth attorney of Virginia ought to occupy, and one reason for it is that not their will, but their poverty consents. If you establish a Commonwealth attorney for each district no man can deny that it elevates the oflice, gives him a greater influence, a higher character, position and reputation, and no one can deny that a better class of men will seek and obtain the portion from the people. You must necessarily pay them more, but 3''ou will get a cleaner and better administration of justice. I have never understood how it could be said — I deny it if it is said — that a Commonwealth attorney could not perform the duties of his oflice in a district. Two United States district attorneys serve the whole State ol Virginia. They are Commonwealth attorneys of the United States, and nothing else. They are paid well, and whenever it is necessary for a commissioner to have their presence he has only to inform them and they are there. Whenever it is necessary for tlie board of supervisors of the county of Pittsylvania or Henrj^ or Nottowaj^ or Amherst to have them present before them the Commionwealth attorney of the district will be there upon their request and demand, just as the district attorneys of the United States are now present upon request. It is a mistake for the gentleman who happen to be Commonwealth attorneys in any county to feel that they are going to be deprived of their oflice. If they are fit for it they will be retained by the people. The man who acts as Commonwealth attor- ney through five, six or seven counties of this State builds up a practice and reputa- tion as a lawyer which will doubly pay him for the expenses that he may incur in attending upon the calls and demands of supervisors at their respective meetings in the different counties. It brings him into communication with a large clientage and gives him an acquaintance, which, if he is worth anything, will enable him to make more money than v/as ever made out of the position of Commonwealth attorney anywhere under the sun. If he is not worth anything he ought to go down, and deserves to perish. The people will find it out, if he has the right kind of ability. He can impress it upon them himself. I believe it vv^ould be a great saving to the State even if they are employed at liberal salaries. I believe that this doling out of twO' hundred dollars to a poor creature here, and of $350 to another poor creature there, who calls himself a Commonwealth attorney, is an absolute degradation of legal services in the State of Virginia, and I feel called upon, therefore, out of common decency to protest against it. Mr. Meredith: Mr. President, while I am in favor of the idea of the gentleman from Danville, I would not like to support it in the language in which he has offered it. I think there would be danger in simply striking out the provision as to the Com- monwealth attorneys. We have undertaken in this Constitution to state the county officers, and I am doubtful, to say the least, whether, if we leave out of the Constitution entirely the provision in regard to these officers, the Legislature will have authority to create as important an office as that, unless there be some mention made of it in the DEBATES OE THE COXSTITUTIOXAL COXVEXIIOX OE VIKGIXIA. Constitution. I Therefore suggest to tlie gentleman from Danville (Mr. Witliers), if he is agreeable to it, to leave in the language, ''"'One attorney for the Commonwealth,'^ and add to it this, vrhich vrould be, to my mind, sufficientlj* elastic to have it tested, if desirable: '''Unless the Legislature shall prescribe that there shall be a district at- torney for one or more counties. I think, in that way, we will give the Legislature the opportunitj- of testing this matter without tying its hands by saying there shall be a district attorney for one or more counties. Let it continue as Commonwealth attorney for one county, with the power in the Legislature to test this change, if it shall see the wisdom of it. There is no doubt about the fact that several of the States have tested this matter and found it beneficial. If they have found it beneficial, I cannot see why we should not get the same benefit from it. We should dx least leave it to the Legislature to determine. "\\'e do not say it shall be more than one county. T^'e say ■'"for one or more counties.'" Let the Legislature prescribe as to how many officers of this character there shall be. I want to say one word more and then I shall have finished. I do not vrish, any more than does the gentleman from Pittsylvania (Mr. Green), to refiect in the slightest upon the Commonwealth attorneys of the State. I have seen in this body too many able men who have filled that office, and among them I recognize some of the ablest lawyers at the bar of the State; but it is equally true that there are frequently inefficient Com- monwealth attorneys, who occupy the office by reason of some popular move: active 3'oung men are able to obtain votes and are electea Commonwealth attorneys. Mr. Chairman, I think we ought to recognize the importance of the position of Commonwealth attorne:-', or rather the law officer of the sovereign, and recognize it as a higher duty than vre do. Do not let us make it so that he can be elected by local favoritism in a county. Let us turn now and see what is the difierence between this country and England. A criminal is brought to the bar in England and is prosecuted by Queen's counsel, a man s'elected from the bar for his ability. I say it is our duty, if possible, to rectify that evil, so that we shall have the sov- ereign, represented by men who are among the abler members of the bar. I know there are man}' able prosecuting attorneys; but we ought, if possible, to have them selected in some other way than bj' simply getting the votes of a small locality; so that in these great State trials, costing a great deal of money, where important ques- tions are raised, where life and death are at stake, we shall not have, as has happened in this State so often, "infamous criminals getting free because of the inabilit}- of the" Commonwealth attorney or by reason of the great ability and ingenuity of the lav;wers on the other side. We can secure that result if we have these Commonwealth at- torneys elected by such a large class of voters as to prevent mere local favoritism. I respectfully submit, sir, that the matter ought to be left to the Legislature, sa that they may test this matter as it has been tested, and favorably tested, in other States. Mr. Withers : Mr. President, I desire to withdraw my original amendment, and offer the substitute proposed by the gentleman from Richmond (Mr. Meredith). The President Pro Tempore: The Secretary will read the amendment offered by the delegate from Danville (Mr. Withers). Add after the words '•■attorney for the Commonwealth,'' the words •'•'who shall be elected by the qualified voters of the judicial circuit in which said county is situated, and shall perform the duty of the said office for all the counties composing said judicial circuit." Mr. Hancock: The importance of this subject is the only excuse I have to offer for submitting any remarks to this Convention. The office of Commonwealth attorney is one of the most important offices in our system of government. It is an offi.ce that is peculiarly local in its character, and its work and duties are peculiarly local in their nature. It is important that the officer who has to discharge a duty of this kind 1776 DEBATES OE THE CONSTITUTIONAL CONVENTION OF VIRGINIA. should be fully acquainted with the people and the locality in which he is to perform his duty. Now, Mr. President, take the Commonwealth attorney of a county, however small that county may be, yet it is a political organization of the State. Each county, however small in territory, has the same organization, the same officers and the same mission to perform that one of the larger counties has. The Commonwealth attorney is the officer who has to give legal advice to all officers connected with the county organization. He is a very im^portant factor in that county. Take, for instance, the board of supervisors of a county, and he is required to attend its meetings, to give advice to the board about all county matters, to examine and pass upon every claim that is presented against the county, and to determine whether it is proper and just and should be allowed. He is there to appeal in case the board of supervisors should allov/ claims which are improper against the county. Now, consider some of the other duties of the Commonwealth attorney which are local in their character. The Com- monwealth attorney knows the people of his county and when a crime has been commit- ted he knows the witnesses; he is acquainted with the people, and there can be no such thing as an improper prosecution or a persecution, because he understands fully the whole situation. I had the honor, in my early life, to occupy the position of Commonwealth attorney for the county of Chesterfield. On one occasion I was requested to come to the City of Richmond and prosecute a case for the Commonwealth attorney, who was unable to prosecute on account of siclmess or some other cause. When I appeared in the hustings court of this city I was confronted with this difficulty: Here were witnesses, a great number of them. I knew none of them — I did not even know well the officers of the court. There w^as a man who had been indicted by the grand jury. I knew nothmg whatever of the case, and I had to ask for a continuance until I could examine the witnesses and find out whether the case was a proper one to be prosecuted or not. I was helpless in the matter until I could have an opportunity to examine in to the case and to acquire information that was necessary to determine whether it was a proper or an improper prosecution. On the other hand, if I had been the Common- wealth attorney of that city I would have been fully informed as to all of these matters. If you have a district attorney, he goes from county to county, and has some five or six counties in his district. How will he know the people and the witnesses? How will he understand whether this is or is not a malicious prosecution — whether it is a pro- secution brought for the purpose of maligning and injuring a citizen or is an honest purpose to prosecute for the benefit of the Commonwealth? I think, Mr. President, that the Commonwealth attorney is the most important officer in tne county. He is, m fact, the legal adviser of all the officers of the county. A constable or a sheriff rarely arrests a person on a criminal charge without inquiring of the attorney of the Commonwealth what to do and how to act. If you have a district attorney how will the sheriff or the constable or any other officer know how to decide what to do, when there is no legal officer at hand to give the needed advice? The district attorney is, perhaps, fifty or seventy-five miles away. Here is a board of supervisors who have to determine an important question upon which they need legal advice. They cannot obtain the services of the district attorney who is fifty miles away, prosecuting a murder case in another county. The board of supervisors will, therefore, be compelled to employ some other attorney to advise them in the premises, and thus entail additional expense upon the county. Mr. President, the gentleman from Danville (Mr. Withers) has said that the full time of the Commonwealth attorney is not now employed. What difference doesi it make whether a man's time is employed or not if he efficiently performs the duties that are assigned to him? If those duties are such that he can perform them and at the same time do other work, why require him to work every moment of the day, from early morn until dewy eve, in and about the duties of an office? We want efficient men, men who will perform the duties assigned to them; and whether they work one hour a day or ten hours a day, if the work is faithfully and efficiently done, that is all that can be required. DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF TIRGIXIA. 1777 The other gentleman from Danville (Mr. Green) Intimated that Commonwealth attorneys in Virginia are very inefficient men. I want to call his attention to the fact that if he will look over this Convention he will find a dozen or more gentlemen who are now, or have been heretofore, attorneys for the Commonwealth. These men are certainly equal in character, in reputation and in ability to the other members of the Convention. They are men who, in their county, in their congi^essional district, and in the State at large, are worthy and proper representatives of the Commonwealth, men of whom the State may justly be proud. I say to you that if there were no other reason and no other argument in favor of the Committee's report, adduced on this floor, I might point to the gentlemen who are Commonwealth attorneys and also members of this Convention as living examples of what kind of men are elected to that office in Virginia. Mr. Harrison: Will the gentleman allow me to call his attention to the judges of the Court of Appeals who were elected when they were Commonwealth attorneys of their respective counties. Judge Riley and Judge Christian? Mr. Hancock: Yes, sir; and if it may also be allowed I can refer to a member of this Convention who was at one time one of the most distinguished members of Con- gress this Commonwealth has ever had and who faithfully represented this State in the Congress of the United States for fourteen years. He was also, when a young man, one of the most distinguished Commonwealth attorneys in the State of Virginia. I could point to others in this Convention equally as distinguished if it were proper to do so. The gentleman from Danville stated that the establishment of this office of dis- trict attorney v\-ould furnish an inspiration for ambitious young men to go forth with a great future before them and with the hope of making a great reputation in that posi- tion. I do not think offices are made for the purpose of furnishing inspiration for ambi- tious young men. I think that if a man has the proper kind of ambition the inspira- tion comes with the ambition and he generally succeeds in whatever he undertakes. The gentleman from Danville (Mr. Withers) says that the appointment of a district attorney will make our judicial system consistent and complete. Consistency is a jewel, but sometimes consistency, according to the views of the gentleman from Danville, are painful inconsistencies so far as other people are concerned. I think that one Com- monwealth attorney for each county of this State is better and more consistent with our judicial system, and will stibserve the interests of the people better, than a district attorney travelling around from county to county with the judge of the circuit court. Now, Mr. President, in regard to the proposition that there would be any money saved. We cannot say that there will be any money saved, because we do not know what is going to be paid these district attorneys. In conclusion I will say: Let us have a Commonwealth attorney for each county. It has been the custom in Virginia since 1850 and has been satisfactory to the people. The most distinguished men in this Commonwealth to-day are men who have occupied or who now occupj^ that position. There can be, therefore, no reason urged against it on the ground that inefficient men are elected. Gentlemen who are Commonwalth attorneys are not complaining that they are improperly paid, and there are plenty of good men who are willing to hold the office under the present system. We ought, there- fore, to be careful about getting rid of this officer and establishing one that is novel to us, and one that will likely create disorder and confusion in our judicial system. Mr. Withers' amendment was rejected. Ayes, 20; noes, 53. Mr. Meredith: I now again offer my amendment. Insert after the word '"Commonwealth." in line 3, the following: "Unless the Gen- eral Assembly shall prescribe that there shall be elected a district attorney for one or more counties." Mr. Pollard: On this question I am paired with the gentleman from Montgomery (Mr. Moore). If he were present he would vote "nay" and I should vote "yea." 1778 DEBATES OF THE COXSTITUTIOXAL CONVENTION OF VIRGINIA. The Question having been taken by the ayes and noes, the result was announced — ayes, 34; noes, 4o — as follows: Ayes — Messrs. Allen, Barbour, Manly H. Barnes, Blair, Boaz, Brown, P. W. Campbell,, Chapman, Fairfax, Gilmore, Glass, James W. Gordon, R. L. Gordon, Green, Gwyn, G. W. Jones, Keezell, Lindsay, Marshall, Meredith, Miller, Moncure, Parks, Richmond, Robert- son, Stebbins, Turnbull, Waddill, Watson, V/escott, Willis, Wise, Withers and the Presi- dent— 34. Noes — Messrs. George K. Anderson, W. A. Anderson, Thomas H. Barnes, Bouldin, Bristow, Brooke, Clarence J. Campbell, Carter, Cobb, Crismond, Dunaway, Earman, Bpes, Garnett, Gillespie, B. T. Gordon, Gregory, Hancock, Harrison, Hatton, Hooker, Hubard^ Hunton, Ingram, Kendall, Lav/son, Lovell, Mcllwaine, R. Walton Moore, Mundy, O'Flaherty, Orr, Pedigo, Phillips, Portlock, Quarles, Rives, Summers, Thornton, Vincent, Walker, Walter, Woodhouse, Wysor and Yancey — 45. Mr. Meredith's amendment was rejected. Mr. Withers: I desire to offer the following amendment: Amend Section 1 by inserting in line 2, after the word ''sheriff," the words "who shall, in addition to his duties as sheriff, perform the duties of treasurer, as are now or may hereafter be prescribed by law: Provided, that in counties of more than 30,000 in- habitants the office of treasurer may be created by law." Mr. President, this is the old fight as to the consolidation of the Oiiices of sheriff and treasurer. I shall not detain the Convention except to say that it involves four simple propositions: Whether the Convention desires to abolish a useless office; whether it desires to- give the sheriff something to do; whether it desires to break up the pernicious and demioralizing system of allowances, whereby an office that does not pay without an allov/ance may be kept in existence; whether it desires to have its taxes collected by saving those allowances and saving to the people of the counties of the State the sum of forty-odd thousand dollars a year. Those are the propositions embraced in it, and nothing more. I have entered so fully into this matter in Committee of the Whole that I shall not, in justice to the Con- vention, in justice to the people of Virginia, and in justice to myself, attempt to restate In detail the questions involved, which are the four I have just announced to the Con- vention. The President: The question is upon the adoption of the amendment offered by the gentleman from Danville (Mr. Wither s>). The question having been taken by ayes and noes, the result was announced — ayes, 31; noes 42. Mr. AVithers' amendment was rejected. At this point Mr. Vv'alker took the chair as presiding officer. Mr. Lindsay: Mr. President, I propose the same amendment as the one just re- jected reducing the number to 15,000. The Presiding Officer: The Secretary will read the proposed amendment. The Presiding Officer: The gentleman from Patrick (Mr. Hooker) moves to amend that amendment by striking out "fifteen thousand" and inserting "ten thousand." The Presiding Officer: The question is on the amendment of the gentleman from Patrick to the amendment offered by the gfentleman from Albemarle (Mr. Lindsay), by striking out "fifteen thousand" and inserting "ten thousand." The amendment was rejected. The Presiding Officer: The question recurs on the amendment of the gentleman from Albemarle (Mr. Lindsay). The question having been taken by ayes and noes, the result was announced — ayes, 30; noes, 46. Mr. Lindsay's amendment was rejected. Mr. Brown: Mr. President, I move that the vote by which the amendment of the gentleman from Warren (Mr. O'Flaherty), to strike out certain v/ords in line 16, was DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF YIKGIXIA. rejected, be reconsidered. I do so not for the purpose of asking that that amendment be itself voted upon again, but to put the question in a parhamentary status, so that it will be open for the amendment offered by the gentleman from Scott (Mr. Richmond), which was ruled out of order by the President because it was offered after a motion to strike out had been carried in the negative. The amendment of the gentleman from Warren was to strike out the latter part of this section, beginning in line 16, as I re- member it, so that the commissioners of the revenue would be elected by the people. It is not the purpose of my motion to. renew that fight, but to place it in a position to make way for the amendment of the gentleman from Scott, V\4iich was to insert the words "elected or appointed," so that the General Assembly may decide whether the commissioners of the revenue shall be elected or appointed. Mr. Thornton: Mr. President, I voted with the majority on the resolution offered by the gentleman from Danville (Mr. Withers), but I concur in all that my friend from Bedford (Mr. Browm) has stated. I think the Legislature ought to have the right either to elect or appoint, as it may deem desirable, from time to time. Mr. Boaz: In regard to the motion to reconsider, while it may not have been the purpose of the gentleman from Bedford (Mr. Brown) to reopen the whole subject, if it is carried in the affirmative it will reopen the whole subject, which has been settled. I hope the Convention will vote down the motion of the gentleman from Bedford. The Presiding Ofiicer: As the Chair understands the question no motion to re- consider is necessary. The gentleman from V\^arren (Mr. O'Flaherty) moved, as an amendment to Section 1, to strike out certain words. That amendment was rejected. The member from Scott (Mr. Richmond) moves, a,si the Chair understands it, to insert certain words in that same section, and the Chair rules that that motion is in order without any motion to reconsider. The Presiding Ofiicer: The Secretary will read the amendment proposed hy the gentleman from Scott (Mr. Richmond). Insert after the word "be," in line 17, the words "elected or." The section would then read: "And there shall be appointed or elected, in a manner to be provided by law, commissioners of the revenue," etc. The ayes and noes were ordered, and being taken, the result was announced — ayes, 41; noes, 87 — as follows: Ayes — Messrs. Allen, M. H. Barnes, Blair, Bristow, Brown, Clarence J. Campbell, P. W. Campbell, Chapman, Dunaway, Earman, Garnett, Gillespie, Gregory, Gv^TIl, Hamilton, Hancock, Harrison, Hatton, Ingram, Claggett, B. Jones, Lawson, Lovell, Marshall, Mon- cure, R. Walton Moore, Mundy, O'Flaherty, Orr, Pedigo, Phillips, Quarles, Richmond, Rives, Stuart, Summers, Tarry, Thom, Thornton, Vincent, Walter and the President — 41. Noes — Messrs. George K. Anderson, W. A. Anderson, Barbour, Thomas H. Barnes, Boaz, Bouldin, Carter, Cobb, Crismond, Epes, Fairfax, Gilmore, Glass, James W. Gordon, R. L. Gordon, Green, Hooker, Hunton, G. W. Jones, Keezell, Kendall, Lindsay, Mcllwaine, Meredith, Parks, Pollard, Robertson, Stebbins, Turnbull, Waddill. Y\^alker, Watson, Wes- cott, Wise, Withers, Woodhouse and Wysor — 37. Mr. Richmond's amendment was adopted. Mr. Brown: IMr. President, I offer the following amendment: In line 5, after the word "court," insert the following: "Except that the General Assembly may provide for the election, in counties of a population of 20,000 or more, of a clerk for the county, who shall be clerk of the board of supervisors, recorder of deeds for the county, and who shall have charge of the land books, and be charged with such other duties as may be prescribed by law." Mr. Harrison: I move to amend the amendment of the gentleman from Bedford (Mr. Brown) by striking out the limit of 20,000. The amendment would then read: "Except that the General Assembly may pro- 1780 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. vide for the election of a clerk for the county, who shall be clerk of the board of supervisors," etc. The amendment was rejected. The Presiding Officer: The question recurs on the amendment of the gentleman from Bedford (Mr. Brown). The question having been taken by ayes and noes, the result was announced — ayes, 8; nays, 71. The amendment was rejected. Mr. Keezell: I offer the following amendment: At the end of line 19 insert the words "but should commissioners of the revenue be chosen by election then they shall be ineligible for re-election for the next succeeding term,." Mr. President, it will be remembered that when the Committee on County Organiza- tion brought in its report it contained a provision that the commissioners of the reven© should be elected by the people, but their tenure of office should be limited to ond term. The Committee of the Whole took a different view, and amended their report so as to provide for the appointment of commissioners of revenue in a manner to be prescribed by law. This Convention, by a very narrow margin, has reversed the action of the Committee of the Whole, and has relegated to the General Assembly the duty of providing by law for the appointment or election of these officers. I have no objec- tion personally to that power going to the Legislature, provided we guard this point, that if they see fit to elect these officers, it matters not how long or how short their terms may be, they shall be ineligible for re-election to the same office at the end of their term. I think that ought to be provided, because it is an almost unanimously admitted fact on all sides, that the weakest point in our whole financial system is the commissioners of the revenue, and that the weakness of it is that it gives that officer an opportunity to electioneer from the time he is elected, in order to perpetuate him- self; doing this to the disadvantage of the honest tax-payers and to the advantage of the dishonest one, with whom he wants to curry favor. If this amendment is adopted, I think it will rectify that difficulty. Mr. Mcllwaine: Mr. President, it does not seem to me that is the way to rectify the evil. On the contrary, let us reconsider the motion and go back and strike out "elected." If there is any officer in the State of Virginia who ought to have experience in the matter of judging the value of property and how to get at it, it is the com*- missioner of the revenue. I do not reckon there is any gentleman on the floor whc will deny that; and for us to say that he can be elected by the people, and if elected by the people he is to serve but one term, is striking at the very root of the welfare of the State of Virginia in having such an office. On motion of Mr. Wise, the Convention adjourned until to-morrow, Saturday, January 11, 1902, at 10 o'clock A. M. SATURDAY, January 11, 1902. The Convention met at 10 o'clock A. M. Prayer by Rev. W. F. Dunaway, D. D. The President: The unfinished business is the consideration of the report of the Committee on Organization and Government of Counties, as amended by the Com- mittee of the Whole. At this point Mr. Walker took the Chair as presiding officer. Mr. Keezell: Mr. President, yesterday when the Convention adjourned I made the statement that when the Committee on the Organization and Government of Counties had DEBATES OF THE COXSTITUTIOXAL COXTEXTIOX OF YIRGIXIA. 1781 brought in their report they recommended the election of commissioners of the revenue by the people for one term, making them ineligible for re-election. The Committee of the Whole seemed to think this was not exactly a proper disposition of the matter, and that it was not even safe to elect the commissioners of the revenue for one term. They, therefore, reversed the action of the Committee on Organization of Counties and rele- gated the matter to the Legislature, authorizing the Legislature to provide, by law, for the appointment of these officers. The Convention on yesterday reversed the action of the Committee of the Whole on this question, delegating this matter to the Legislature and providing that these officers should be "elected or appointed," according to the provision of law. In order to carry out the views of the Committee on the Organization and Government of Counties I offered an amendment, which provides that if the office is to be an elective one, the officer elected shall not be eligible to re-election, but shall be confined to one term. If the Legislature decides that he shall be appointed, then he is eligible to reap- pointment, if it is so desired. The question having been taken by ayes and noes, the result was announced — ayes, 44: noes, 26. The amendment was agreed to. Mr. Barbour: I move to strike out line 20 of that section. Mr. Thornton: That provision appears in the present Constitution and I think it would be well to leave it. If we should strike out the office of superintendent of the poor our action might be misconstrued. The committee considered that matter fully and it was thought better to leave it in the Constitution. Mr. Barbour: Mr. President, one of the worst features of the present Constitution is that it includes a large number of petty officers of this land. There is no earthly use of having such officers specifically mentioned in the Constitution. The Legislature will have them if they are necessary, and will not have them if they are not necessary. I hope the provision will be stricken out. Mr. Harrison: I agree with the gentleman from Culpeper. It seems to me we are losing a very fine opportunity in this Convention to get rid of a lot of petty officers. These matters can be arranged by the boards of supervisors of the counties, in such a way as they think proper, which would be a great deal better arrangement than to have a lot of little county officers specifically mentioned in the Constitution. I hope the amendment of the gentleman will prevail. I have understood that one of the purposes for which this Convention was called was to free the State from a number of these insignificant little offices. The ayes and noes were ordered, and being taken resulted — ayes, 23; noes, 51. The amendment was rejected. Mr. Parks: :\Ir. President, I desire to offer an amendment to insert in line 20 the words ■•'and there shall be appointed hy the board of supervisors of each county one superintendent of the poor and one countj^ surveyor." Under the section as it now stands, without providing for the appointment by the board of supervisors of each county, those officers could be either elected or appointed as the Legislature may determine. Mr. President, the office of superintendent of the poor, as well as the office of county surveyor, is an important one. The office of superintendent of the poor is not such an office as is sought after by men who are competent to discharge the duties of it. In the coimties, we have poorhouse farms. We need men there who know something about the management of a farm — not merely men with kindness of heart and a proper disposition to look after the unfortunate inmates, but who are capable of looldng after the interests of the farm and seeing that it is managed properly. We have in the country plenty of men who, if you make it elec- tive by the people, will go around over the county and hobnob and electioneer and be elected, but who are totally unfit for the position. Mr. Keezell: May I call the gentleman's attention to the fact that it was the 1782 DEBATES OF THE COjStSTITUTIOXAL CO^TVENTION OE VIKGINIA. evident intention of the language in the report to provide that the county surveyor and the superintendent of the poor should be appointed? Mr. Parks: Yes, sir; I will call attention to that. Men who are really qualified are not anxious, to get the position, because it is not a very pleasant place. These other men will go around and electioneer for it, and the result will be that v/e will have men foisted upon the people by election whoi are totally unfit and incompetent to discharge the duties of the place in the interests of the people. Take the office of county surveyor. Why, sir, in my county we have no county surveyor at all. We have surveyors there, but no man who is a surveyor will accept the ofiice of county surveyor; one reason being that the law as it now stands requires a very large bond of the county surveyor, which, in my opinion, is very foolish, and they will not execute the bond. Wp have m^en there who pretend to be surveyors who Vv'Ould accept the position if they were appointed, but the court will not appoint them. If you make it an elective office, the men who now run a line with a grapevine, and knovv" just as much about the proper surveyor's instruments as a hog knows about a holiday, will run for the office and be elected. Mr. Summers: Mr. President, if it be in order, I desire to submit as an amend- ment to that amendment, the words "to be elected by the people." The amendment was rejected. Mr. Mcllwaine: Mr. President, I just want to say one word in regard to the failure to give the people the right to do what belongs to them. It seems to me that the right for the Convention to take is that v/hich is expressed by their vote, and not only to give to the people all the rights which belong to them, but in such a case as, this to save the people from the unnecessary burden of having imposed upon them the duty of selecting the men who can be generally selected by others. Now, sir, I am not a candidate for office; I am not an aspirant for anything in the future at all. I have lived among the people during my life, and I feel that one of the ways in which I wish to express my consideration for the people is to save them all unnecesisary trouble and burden; and the idea of imposing the election of every little county officer upon the people of our counties is, to my mind, an absurdity and an injustice. The Presiding Officer: The question is on agreeing to the amendment of the gen- tleman from Page (Mr. Parks). The amendment was adopted. Mr. Parks: Mr. President, I have another amendment which I desire to offer. It is as follows: After the word "law" in line 17, strike out all down to and including the v/ord "and," in line 18, and insert the following: "One commissioner of the revenue for each county: Provided that, in counties of 30,000 population or more, there may be two commissioners of the revenue of such county." Mr. President, my reason for offering that amendment is thisi: In some of the large counties of the State it has been provided by the Legislature that there shall be two commissioners of the revenue. In some of the counties there is a provision that there shall be a commissioner of the Revenue for each magisterial district in such county. That does not prevail in many of the counties, but it does prevail in a few of them. There are, in my judgment, two evil results flowing from that. One of them is the very same evil that results now in the various counties of the State — inequality of assessment. That is to say, the same class of property assessed at one figure in one district will be assessed at another figure in another district in the same county. Where the counties are large, where, as provided by the amendment, the population is 30,000 or more, it might be well to have as many as two commissioners of the revenue. There is another evil flowing from it. In each Legislature that assembles petitions come up from every one of my counties asking that a commissioner of the revenue DEBATES OE TEIE COXSTITUTIOXAL COXYEXTIOX OF YIRGIXIA. 1783 Tdg elected in each magisterial district, and efforts are made to that end in the Legisla- triie. These petitions are not confined to the large counties, sir, hut come from the small counties as well, and they practically say "Rockingham has more than one, Shenandoah has more than one, another county has more than one, and why should not Yve haYe a commissioner of the revenue in each magisterial district?" The result is, that after a while Y^e Y'ill get back to the same old system, which the people -repudiated, of having a commissioner of the revenue in each magisterial district, and the same inequality of assessment found noAv in portions of the State y411 be found for the very same reason to exist in various counties of the State. I hope, sir, that the Convention y^II adopt this amendment and protect the people from these evil results. Let one man in each county be responsible, personally, for the result of the assess- ment. Mr. Turnbull: In a large county containing, say, 18,000 inhabitants, is it an impos- sibility for one commissioner of the revenue to perform the duty, as provided by law? I Y^ant to get at my friend's idea of a remedy for the difficulty in counties of that sort. Mr. Parks: I Y^ant to remedy it as it vcas remedied before. Let there be one commissioner of the revenue, and let him appoint men as deputies in the different ■districts. Then you Yill have one man responsible — one man to go over the property ^nd see that the assessments are equalized in the various districts. Where you have different men in different districts, no one man is responsible. You have inequality' of assessment in the different districts of the same county, just as inequality of assess- ments now exist in one county. That is a matter that members of the Convention know ought to be corrected. It cries to Heaven for correction, in the name of justice and right and equality and honesty between the people, and yet the Legislature so far has been powerless to correct it. I want to prevent these counties from coming to the Legislature and having commissioners of the revenue appointed for little districts in all the counties of the State, which brings about this inequality of assessment. Mr. Turnbull: Would not the same thing apply to a large county as to a small one, if they have deputies? Mr. Parks: I admit that, sir; but in a county of 30,000 inhabitants or more, Yiiich is equal in many instances to two counties, and in some instances to three counties, the situation is different. As I say, these small counties are coming in and asking for commissioners of the revenue at the hands of the Legislature; and the gentleman from BrunsY^ick knoY^s very Y'ell that in the Legislature, Y^here a representative from a county says "My people want this," the members of the Legislature throY^ the responsibility upon that member, and vote for it because he wants it. It seems to me this matter ought to be corrected, and that we ought to put it in the Constitution so as to prohibit the Legislature from increasing this evil as the years go by, as it has been increasing in the past. Mr. Richmond: Mr. President, I hope the amendment of the gentleman from Page y411 not prevail. 'My county has tY'o commissioners of the revenue, one on the north side and one on the south side. It is a very difficult county to canvass. It is moun- tainous and broken. Many streams and rivulets floY' through it; and it is Y/ith great ■difficulty that the two commissioners can make a canvass of the county so as to get their reports in by the time fixed. I have been frequently consulted by the commis- sioners of the revenue in relation to the difficulties of completing their work in time. They v:ork hard. They make a house to house canvass, in order to secure a proper list of the taxation. No one man can do it, and it is with difficulty that tY'o men per- form the duties. I do not think the position which the gentleman from Page has taken is tenable at all. He Y-ants to have one man appointed who will have the right to appoint deputies, so that the commissioner can see that everything is done right and be re- sponsible for it. Would he not, of necessity, have to take the word and the action of his deputies? You ought to have enough men to accomplish the Y^ork. It is impossible for any one man in my county to do the work unless you extend the time. You might 1784 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. give him more time, and that would enable him to do it. In six months he could prohably do it, if he worked every day, and there were no hot days, or high water, or anything of that sort; but under existing law it is with difficulty that two- men can perform the duty. Why have one man and let that one man have deputies? What reason is there in that? There is no economy in it. It lessens the responsibility, be- cause the one commissioner would be bound to take the action of his deputies. He will be compelled to do so unless he goes back over the work done by his deputy, and he cannot do that. So I hope the amendment of the gentleman from iPage will not prevail. Mr. Earman: Mr. President, I rise to urge the Convention not to support the resolution offered by the gentleman from Page. I have had a great deal of practical experience as a commissioner of the revenue. I speak,sir, for my own county, in which I have been a commissioner of the revenue of one district for fourteen years, and to talk about one commissioner of the revenue being able to do all the work in a county like the county of Rockingham is an absurdity. Gentlemen who have had no- practical experience, gentlemen who know nothing about the practical work of a commissioner of the revenue, can hardly imagine the amount of work that is imposed upon him in the performance of his duties. In one of the five districts in the county of Rockingham it takes me from the month of February until some time in August to complete my work, and then we are delayed by the Legislature. Our interrogatories are withheld awaiting the action of the Legislature, and we, as commissioners of the revenue, are compelled to go to the county court and ask for a deputy, in order that we may get our work done in the time required. Yet, sir, the laws of the State, as they stand now, require the commissioner of the revenue to have his work completed by the fifteenth day of July. Now, as to this inequality of assessment. I have listened very attentively to the arguments adduced here relative to the work of the commissioner of the revenue, and it is true. I cannot concur with this Convention, and I am sorry to say that I cannot concur with my colleague from Rockingham county, as to the appointment of the Com- missioners of the revenue or as tO' allowing them toi serve only one term. As to the point now raised by the gentleman from Page (Mr. Parks), that one man shall do the work of the county, he would necessarily be compelled to have deputies appointed for the various districts, and he says by that system the principal commissioner of the revenue of the county would be responsible for the whole work. Inequality? How would you remedy the inequality of the assessment? I fear, sir, that all the combined wisdom of this Constitutional Convention can devise no means by which you can compel every man to put in a report of valuation equal to that of every other man. The commissioner of the revenue is required by the laws of the State to administer an oath to every man who makes a report of his property, but that is just as far as you can go. When you put a man on the witness stand in court, you have that man take an oath to speak the truth and nothing but the truth, but that is as far as the court can go. Mr. Waddill: The provision now in force is: "The commissioner or any one of his duly qualified deputies shall, upon his own view or upon such information as he may obtain or possess, assess, a fair cash valuation on all property which appears td be owned by the tax-payers from the answers to the interrogatories, as required by the two preceeding sections." Mr. Earman: That is right, sir; but I say you have to get the information of the kind and quality of the property under oath. How am I, as commissioner of the revenue, or how are you, sir, if you were com- missioner of the revenue, to know anything about the value of property unless it comes from the man who owns the property? Mr. Waddill: You must inspect the property and fix the valuation yourself. Mr. Earman: I say you are dealing with an impossibility. It is impossible to inspect the property. Are you going to go to a man's house and go from the cellar to DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OP VIRGINIA. 1T85 garret and look at everything in his house when you want to assess his household property? Mr. Willis: Suppose a man had a horse and put its value at $25, and you assessed it at $40. Suppose you knew that horse was worth $150 or $200. Do you mean to say that man's oath would be conclusive as to the value of the horse and you would not go behind it? Mr. Earman: Certainly not; but suppose I approach a man and interrogate him as to his property. I ask him how many horses he has. If he should say he was going to look after those horses, it would be an impossible matter for me to go all over his farm. Some of his horsies might be fifty or a hundred miles away, or his cattle might be a hundred miles away in the mountains. If he said he had five head of horses, and out of that five head there was one lame, one blind and another had reached his majority, and I Vv^ere required to put a value on them, and averaged the value of that stock, how am I going to put it? Can I say those five horses are worth $500? No, sir; there is a blind horse among them; there is. a lame horse among them; there is one twenty-one years of age among them; there is a colt, probably, among them. I would say to the man. "I want to put a fair tax valuation on your property;" and if he should say $40 is a fair cash value on an average for those horses, I would have to accept his state- ment. Should I say to him then, "I do not respect your oath?" When he put the valuation on his household property, am I going to tell him I do not respect his ca.'h'' Is that done in court? The only means you have, gentlemen, of ascertaining the value is the statement of the man under the oath that is prescribed on this blank. Then we come to that invisible property that is so much spoken of — his bonds, his money in bank, money in his pocket. How are you going to arrive at the value of that? Can you go on his premises and look through his bureau drawers and see how many bonds he has? You cannot do it. You have simply to take the man's oath. The commissioner who is appointed will find the same difficulty that is encountered by the man who is elected. He cannot find the property. There is no set of commis- sioners in any county or any State who can assess property equally on all men. No- matter Vihat judgment may be exercised or what care is taken, it cannot be done. Mr. Keezell: If, under the law as it now exists, the commissioner of the revenue goes to a farmer and the farmer reports he has ten head of cattle, and the commissioner of the revenue, from his own personal knowledge, knows that he has a hundred, I want to know whether or not the commissioner is bound to take that return. Mr. Earman: Certainly not. Mr. Keezell: And whether it is not his duty, if he believes that men of that sort have been shirking their responsibility, to report to the clerk of the court a list of the people whom he believes have shirked responsibility, together w^ith the names of the witnesses by whom he can prove that dereliction, to be presented to the grand jury; and I will ask him whether it has been the custom of the commissioners of revenue in the county of Rockingham to make such reports to the clerk as are required by law. Mr. Earman: Well, this is his duty. I admit that; but I do not know what has been the custom of all the commmissioners. Mr. Keezell: I will ask him whether he has ever done it in the fourteen years that he has been commissioner of the revenue. Mr. Earman: No, sir; I treat other men as I treat you, sir. I presume, when I ask you the question, you are temng me the truth, although I do not know from my own knowledge w^hether you have done it or not (laughter) ; and I have no right, sir, from your record, or from the record of those men whom I assess, to believe they are liable to falsehood. Mr. Carter: If that is the universal custom, if the presumption is they are all telling the truth, under all circumstances, why have any commissioners of the revenue? Why not allow them to make a return without the commissioners? Mr. Earman: I would-be glad, sir, if they could all make return; but that is im- practicable. You are obliged to have a commissioner of the revenue, or some person 113— Const. Deb. 1786 DEBATES OF THE CONSTITUTIONxVL CONYENTIOIST OF VIRGINIA. to look after the tax-payer, to keep the books and issue licenses, and all that sort of thing. That has tO' be done, gentlemen, and you know very well that you could not dispense with the officer of commissioner of the revenue. That is not the question, either. The question is as to the equality of taxation. I ask the question, and I pause for the answer, whether, with all your legal wisdom, any gentleman will get up here and devise any plan or recommend any means by which you can make all men tell the truth and make statements exactly alike as to the value of their respective properties? It is true, gentlemen, there are probably men in our county, and in all counties, who attempt to evade, and possibly do evade, paying a proper tax on their property; but the question is, how are we, as commissioners of the revenue, to overcome that great difficulty and trouble? As I said before, the only thing a commissioner of the revenue can resort to when he does not know the amount of property the tax-payer owns, when he does not know the amount of bonds he may have, when he does not know the number of cattle he may have scattered about over the hills, is to' have the tax-payers swear that he has so many cattle, so many horses, so many hogs, so many sheep, so much in bonds and so much money on deposit in the bank. That is the only and the best evidence, gentlemen, that you can possibly arrive at. The gentleman from Page, by his amendment, proposes to have one commissioner of the revenue in a county like Rockingham, where we have five commissioners now, who have to work like Trojans to get the work done in time. There is hardly one out of the five who gets his books in according to the prescribed limits of the law. Sup- pose Mr. A is commissioner of the county of Rockingham, and he employs Mr. B in one district, Mr. C in another district, and Mr. D in another district, separate and apart from his own work. The absurd proposition is made that he must know how much and what kind of property all these men may assess in the respective districts, without going himself to inspect them. It is a matter of impossibility; and I do hope the amendment of the gentleman from Page will not prevail. The Presiding Officer: The pending question is on the amendment of the gentle- man from Page (Mr. Parka). The amendment was rejected. Mr. Thomas H. Barnes: I move that Section 1 be adopted as a whole. Section 1 was adopted. The Presiding Officer: The Secretary will read Section 2. Sec. 2. The magisterial districts shall, until changed by law, remain as now con- stituted: Provided, that hereafter no additional districts shall be made containing less than thirty square miles. In each district there shall be elected one supervisor. The supervisors of the districts shall constitute the board of supervisors of the county, who shall meet at fixed periods and as often as may be necessary, fix the county and district levies, pass upon all claims against the county and perform such duties as may be required by law. Mr. Richmond: I desire to offer an amendment to Section 2, to come in line 16, after the word "county." I desire to insert the words "may, in their discretion, require all able-bodied male persons, between the ages of 16 and 50 years, to work on some public road in the vicinity v/here such persons reside, not less than three nor more than five days in one year, without compensation, under such regulations as may be provided by law: provided, such persons may furnish a sufficient substitute to work in his stead; and in addition thereto levy a tax of not exceeding 25 cents on the $100 in value." Mr. Richmond: Mr. President, it is well known to every man on this floor that for more than 200 years, beginning v/ith the earliest period of our colonial history, all the able persons — that is, all persons 16 years of age and above — were required to work on the streets and public roads of the common country. That continued to be the law until 1894, when a case came up from Louisa coimty, in which some person there refused to work upon the road. He was arrested and fined upon a capias pro fine and DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGTXIA. 1787 imprisoned. A writ of habeas corpus was sued out for the prisoner before the Supreme Court of the State, and that court held that the law was unconstitutional; that it was a poll tax. or a tax upon the head, and not a police regulation. The decision was made by a divided court — two of the judges, Lewis and Lacey, dissenting. Right then in our section of the country we ceased to have any roads, and have not had any from that time until now. The decision was not acquiesced in and considered to be the law by Judges Lewis and Lace^', but the people had to acquiese in that decision of the court, and it became the paramount law of the land, and there has been no opportunity to remedy it until now. Such a provision, in my humble judgment, is not one of equity and equality. We would get a contribution from certain individuals in this way and in no other way; and if gentlemen will only think for a moment and consider their own constituencies, they will remember that there is an element in their counties which contributes nothing to the support of government. This class of people, however, are protected in all of their rights, privileges and liberties. Property pays for a court-house in which they can assert their rights; property builds churches and pays preachers; property btiilds school-houses, pays the teachers and educates their children. Every man who is an able-bodied man should, in the language of the bill of rights, be so identified with the community in which he lives that he should contribute something to the support of the government and its institutions. The man withotit property has to have roads as well as the man with property; and whilst I would not reqtiire at his hands that which he cannot give, or the same con- tribution that I vrould require of the man who has property, every able-bodied man should be made to feel that he has an interest in the community in which he lives. He uses the public roads and the public streets; he goes to the places of public resort. He must go to the mills to get bread for his family. He cannot travel through the woods or through the fields, but he must go along the public roads. Is it asking too much to require that class of men — not for money, because they will say they have none — but simply for muscle to contribute this small part of their time to the public good? Gentlemen, in my section of the county we are without roads. Those of you who have Aisited that country — and to this my distinguished friend from the county of Norfolk (Mr. Portlock) is a witness: — know that we would rather build twenty-five miles of road in the cotmty of Norfolk or in any part of Eastern Virginia or the valley, than one mile in the counties of the Southwest, especially the extreme Southwest, where I live. In those little sharp mountains and little narrow valleys the road winds around and over the hills and back into the little valleys and up again, and it takes a great deal of work to keep them in order. The country is so situated that we cannot work to advantage, or keep the roads in the state of repair in which they are kept in level sections of the country. Our people — and when I speak of our people I mean the people of the counties of Lee, Scott, Wise, Dickenson. Washington. Carroll, Grayson, &c. — are unanimous on the subject. There is not a dissenting voice. I presented this matter before the people somewhat on the same line on which I have addressed this Convention, only more extensively. The result shows vrhether or not my position was approved by the people. There was not a dis- senting voice, and there were as many poor men present as there were men of property. When I say poor men, I mean men without property. Mr. Pedigo: Is not that proposition in violation of a provision of the Constitution of the United States, which provides that neither slavery nor involuntary servitude, except in punishment of crime, shall exist in the L'^nited States? Mr. Richmond: I will not undertake to discuss that with you now. If you will come up to my room I Avill discuss it with you later. (Laughter.) We have quite a ntimber of negi'oes in my cotmty, not so many, to be sure, as in others. We have a hundred or a hundred and fifty, and they contribute nothing tinder the sun to the sup- port of government, or at least very few of them. Yet they travel the roads and we educate their children. We want them, and I will say we v\'ant some poor white men, 1788 DEBATES OE THE CONSTITUTIONAL CONVENTION OF VIRGINIA. as well as the negroes, to contribute something to the institutions of the country and feel that they have an interest in the government and in the community in which they live. Mr. President, the amendment provides for labor, and it likewise provides that a tax of not to exceed twenty-five cents on a hundred dollars shall also be levied on real and personal property for certain road purposes. All men, whether they have property or not, are called upon to come out and v/ork not lessi than three nor more than five days in each year upon some public road without compensation, provided that any person who desires to do so may provide a sufiicient substitute. All who desire to work without furnishing the substitute may do so, and if they do not furnish the substitute they are required to work. Then, in addition to that, as I have stated, we propose to levy a tax of twenty-five cents on a hundred dollars of valuation for that purpose. I hope it will be the pleasure of the Convention to adopt the amendment. Mr. Keezell: Mr. President, I hope the Convention will not engraft in the Consti- tution the provisions embraced in the amendment of the gentleman from Scott. I do not think the Cpnvention ought to undertake to limit the amount of money that may be assessed in the county on real and personal property for road purposes, and I do not think we ought to undertake tO' leave a discretion with the board of super- visors as to compulsory labor on the public roads. I am opposed to this proposition for several reasons. In the first place, I am opposed to the whole theory of compulsory road service, because I believe it is inefficient and does not amount toi anything, and that under it we do not get good roads. In the second place, I am opposed to it as a matter of principle. I do- not believe we ought to undertake to put upon certain classes of our citizens a burden equal to this service of from three to" five days in a year upon the public roads. I believe it would be inequitable and unjust. In the next place, I am opposed to it because I do not desire to see this question made the football of politics and brought up every time we go to elect a board of super- visors in the county, and probably defeat for membership upon the board of supervisors men who are most valuable, because of the fear that they, by some means or other, may be induced to undertake to put this system into operation. I hope it will be the pleasure of the Convention to vote down the proposition of the gentleman from Scott. In my county we got rid of compulsory road service quite a number of years before the decision of the Supreme Court made it unconstitutional. We have found that our roads are much improved and that we pay very little more road tax now than we did then, and yet we have a system of roads so much better now than we had under the old compulsory system of service that there is no comparsion at all to be made. It is a practical demonstration of the fact that the service which we were forcing out of people involuntarily and against their will amounted to nothing, so far as the better- ment of the roads was concerned. I do not desire to have this matter brought up and made a bone of contention every time there is an election of a board of supervisors, creating a system of unrest among a certain class of our people. Mr. Turnbull: I desire to offer an amendment to the amendment. Strike ^'it of the amendment all after the word "compensation," and insert "under such regulations as may be provided by law." The amendment will then read as follows: May, in their discretion, require all able-bodied male persons between the ages of 16" and 50 years to work on some public road in the vicinity where such persons reside, not less than three nor more than five days in the year, without compensation, under such regulations as may be provided by law. Mr. Turnbull: That amendment simply provides for the proposition of the gentle- man from Scott (Mr. Richm.ond), except that it strikes out of the section everything DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. 1789 m reference to the amount of taxes that may be levied, and puts the question directly as to Ts-hether people shall be compelled to work on the roads. Mr. Richmond: If that is the effect of the amendment, I accept it. The Presiding Officer: The question is on agreeing to the amendment of the gen- tleman from Scott as amended by the gentleman from Brunswich. The ayes and noes were ordered, and being taken, resulted — ayes, 14; noes, 55. The amendment was rejected. Mr. O'Flaherty: I move to insert the words in brackets, beginning in lii.e 5 and ending in line 7. The effect of the amendment will be to make justices of the peace, constables and overseers of the poor constitutional officers, as they are now under the present Consti- tution, and will be in accordance witii the report of the Committee on the Organization of Counties. I take it, Mr. President, that if this report is adopted, with this amendment, the committee on Final Revision and Adjustment will correct it. I hope, if we have made a mistake in this matter that we vrill correct it now while we have the opportunity, for if we do not we will never have the opportunity. I do not want to lecture this Convention. I do not want to advise any member how to vote; but I do think that we ought to permit the people to have these officers. The answer of the gentleman is that they can have them through the Legislature; but when we strike this provision from the Constitution we say, indirectly, that we do not believe these officers are an absolute necessity. I, for myself, believe that justices of the peace ought to be a part of the coimty government, and I believe that they ought to be elected by the people. I am sorry 1 was not present a day or two ago when this question came up and the Convention reversed the action of the Committee of the AMiole, whereby it was left to the Legislature to say whether they should be, elected or appointed. I want to put myself on record, and to put myself straight with the people of Virginia, by saying that I am in favoi;^of the election of justices of the peace by the people. In all the history of government there is no older officer known, and there is none that comes nearer to the people. I venture the assertion that the two classes of officers who most closely effect the people of Virginia are the boards of supervisors and jutices of the peace. A great many people in the State of Virginia do not care who is Governor of the State; they do not even care who is sent to the Co - stitutional Convention, they do not care who occupies any position, so long as 3'ou will leave them their own local self government and give to them their boards of super- visors and justices of the peace. I apprehend that nothing I can say will change one vote, and, therefore, in order to avoid the unnecessary consumption of time, and out of respect to the opinions of the gentlemen who may differ from me, I shall not discuss this subject further. I want, however, to call your attention to the fact that you are out-Heroding Herod. You condemn the L'nderwood Constitution and yet you are going further than the Underwood Constitution went. In my opinion, you are striking out of the Underwood Constitution one of the few good features in it. I will not say that this may effect the question of the adoption of this Constitution, nor will I say or threaten that I will use what little influence I may have against its adoption, because if it comes anywhere near what I want I am going to do all I can to see that it is adopted, if sent back to the people. But I warn you, that if you strike these provisions out and submit the Con- stitution to the people, you will lose thousands and tens of thousands of votes. Evidently the gentlemen of this Convention do not intend to submit it to the people. It looks as if the die were cast, and the people of Virginia would have to look to some other source than to this Convention for a Constitution which will permit them to govern them- selves. I love the members of the Convention, individually and collectively, and I do not want to see them make a mistake. I do hope it will be the good judgment of the Convention that these words should be reinstated and to let the people know that, come what may. they will have justices of the peace, overseers of the poor and constables 1790 DEBATES OF THE COisTSTITLTTIOXAL CONVEXTIOX OF VIRGINIA. whom they, themselves, shall elect. I hope you will vote to insert the words the com- mittee reported to the Committee of the Whole, which words are in the Constitution as we now have it. The amendment was rejected — ayes, 28; noes, 38. Section 2 of the report was adopted. Sections 4, 5 and 6 were then read and adopted. Mr. Barnes: The Committee of tne Whole propose the following independent sec- tion: The General Assembly shall provide by law for the examination of the books, accounts and settlements of city and county officers who are charged with the collection and disbursement of public funds. I move the adoption of this section as proposed by the Committee of the Whole. The independent section, proposed by the Committee of the Whole, was adopted. Mr. Barnes: I move that the report as a whole be adopted and referred to the Committee on Final Revision and Adjustment. The Presiding Officer: The gentleman from Nansemond, chairman of the Com- mittee on Organization and Government of Counties (Mr. Barnes), moves that the report of the committee as a whole be adopted and referred to the Committee on Pinal Revision and Adjustment. The motion was agreed to. (Applause). On motion of Mr. Turnbull the Convention adjourned until Monday, January 13, 1902, at 12 M. . MONDAY, January 13, 1902. The Convention met at 12 o,clock M. Prayer by Rev. R. P. Kerr, D. D., of Richmond. On motion of Mr. Ayers the Convention resolved itself into Committee of the Whole for the further consideration of the report of the Committee on Public Institutions and Prisons, Mr. Barbour in the chair. Mr. Ayers: Mr. Chairman, I will state for the information of the Committee of the Whole that the report Vv'as practically concluded when it was last considered by the committee, but that at the instance of the committee the report was recommitted to the Committee on Public Institutions and Prisons, and they have now reported a substi- tute, which has been printed, together with the report as it stood in Committee of the Whole when the subject was last under consideration; so that members have upon their tables this morning both the original report of the committee, as it stood when it was last considered, and the substitute which is proposed by the Committee on Public Institutions and Prisons. To facilitate the further consideration of the matter I desire to say that the changes made in the report as it was amended by the Committee of the Whole are the following: In Section 5 there is added, in line 8, the words "for a term of four years," in order to make the term of the resident officers of the institutions conform to the term of the office of the superintendent of State hospitals, as the report was amended in Committee of the ^Vliole. Otherwise they would hold office for an indefinite term, and the superintendent for a term of only four years. Therefore the committee thought it proper to provide that the resident officer as well as the superintendent should be appointed for a term of four years. It will be found, by reference to the original report, that Section 3, as amended, in accordance with an amendment offered by the gentleman from Westmoreland, pro- vides as follows: DEBATES OF TEIE COXSTITUTIOXAL COXVEXTIOX OE VIRGINIA. IT 91 Sec. 3. The General Assembly shall appropriate at its first session after this Con- stitution shall be adopted, such sums of money as may be necessary to provide and main- tain buildings with a sufficient number of cells and sufficient air space as may be necessary for the proper care and safe keeping of the convicts incarcerated therein. This section was inserted in the original report in lieu of Section 3 and 4, which provided for the application of certain sums for building purposes, and were a mandate upon the General Assembly. The Committee on Public Institutions and Prisons, after fully considering this section, determined it was best to strike it out entirely and it is not included in their substitute, it being their opinion that the aniotmt necessary is a matter to be determined by the General Assembly, and that this provision has no place, in the pennanent form of government or in the organic law. Therefore, in the substitute they do not include Section 3. The only other amendment proposed by the substitute, I am glad to say for the information of the gentleman from Roanoke (Mr. Robertson), strikes out the State board of charities, the committee being of the opinion that in all probability, as amended, that had best go out. As finally revised by the Committee on Public Institutions and Prisons the report contains only six sections, which refer exclusively to the organization and government of the penitentiary, branch prisons and prison farms, and of the State hospitals for the insane, and with the change of the insertion -for a term of four years," in Section 5, and the striking out of Section 3, is indentical Avith the report as approved by the Com- mittee of the AMiole some time since. Sections 1, 2, 3, 4. 5 and 6 were read and adopted without amendment, after which the Committee rose and the President resumed the chair. On motion of Mr. Mcllwaine the Convention proceeded to the consideration of the report of the Committee on Education. Section 1 was read and adopted. Mr. Eggleston: Mr. President,! wish to offer an amendment to Section 2, to strike out all of the section after the words "four years," in line 5, to the end of the section, so that the section will then read: The general supervision of the public free school system of the State shall be vested in a State Board of Education, to be composed of the Governor, Attorney-General, Super- intendent of Public Instruction, and three experienced educators, to be elected by the Senate of Virginia once every four years. Now, Mr. Chairman, if it is a matter of importance, and I think it is, that this board should be composed of experienced educators, I see no reason why we should be limited in the choice of those men to- the faculties of these public institutions. In the first place, when you do that you have the assurance that you get no man who is actually engaged in the public free school work of the State — the common schools; you get no man who is in toticli with the common schools, no man who knows anything in the world about the practical working of them. If, as I have said, we are going to get practical edticators to compose this board, why limit ourselves to the faculties of these institutions? One of them is the School for the Deaf and Blind, at Staunton, which furnishes no teachers to the ptiblic school system and takes no pupils from the public schools. We want the best educators in the State. If it should happen that the best educators are employed in these institu- tions, we want to get those men; but if it happens that the best educators are not em- ployed in these institutions, there is no reason on top of this earth why we should be confined in our selection to the faculties of these six colleges. More than that, Mr. Chairman, it seems to be the idea to take the public school system out of politics. I assert that, in composing this board as you do, you not only keep the public school system in politics, but you inject these colleges along with them. You allow these public institutions to put an active, able, political agent in every county of the State. You may say no harm will come of that. I reply that it will give 1792 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. these institutions a tremendous lever in opening the treasury of the State; that if you give them 118 or 100 political agents, located one in every county in the State, you give them virtually the control of your public treasury. You may say that that cannot happen. Then, gentlemen of the Convention, I want to Know why it is, when a move- ment was made to exclude certain of these public institutions from this list, we saw the heads of those institutions, and members of their faculties, around here log-rolling and lobbying to see that their particular institutions were put into this list and allo^ved representation on this board. What do they want with that representation? They want it because they want the power it gives them, and I say it should not be done. If you want a board familiar with the public free school system, then you ought to have a board, some members of which, certainly, are in touch with the public free school system of the State. No one can give us a good reason why we should not have on that board the principal of one of our city high schools. They know the needs of that branch of the school system. Mr. Watson: Has not the gentleman discovered, by reading a little further down in the same article, that provision is made for two public school officials? Mr. Eggleston: Yes, sir; you put them in there, and they have no power after they are put in. Mr. Watson: I desire to suggest to the gentleman that the power of the State Board of Education consists, first, in making regulations for the government of the public schools, and second, in the selection of text books; two important functions, in my judgment, and the only power denied them is that they shall not participate in the selection of the school superintendents. Mr. Eggleston: Yes, sir. Now, Mr. Chairman, the most important province of this board is the selection of the school superintendents. I do not say that a county school superintendent should be permitted to select himself, but, if you have a professional educator, who is directly connected with your common school in the country, why say that he shall not have a position on this, board? You do say it, and you have confined the selection to the faculties of these institutions, none of whom have any connection whatever with the public free school system, and you must select three out of the six that they nominate. You are tied down to those six, and after you have elected them for four years all you can do in the next four years is to get the other three. Whether those men make a Siuccess or a failure of the public institutions you are obliged to take them; and we have known the time when they have made absolute failures of them. Mr. Watson: Would you not consider the Parmville Female Normal school a public institution connected with the public free school system of the State? Mr. Eggleston: No, sir. Mr. Watson: And would you not consider William and Mary College an institu- tion connected with the public free school system of the State? Mr. Eggleston: No, sir, W|llliam and Mary College is not even a State institu- tion. Mr. Watson: I desire to ask one other question, and I will not interrupt the gen- tleman again. If the amendment that he offers is adopted, what guarantee has he that the Senate of Virginia will ever elect a public free school man? Mr. Eggleston: I certainly am not willing to say to them that they shall not elect one. That is what the report of the committee does. I do not claim that they will not elect one, but I do not intend to say, with my vote, that they shall not do it. It is left to the Senate to make the selection from this list. Why not leave it to the Senate to make a selection from a list anywhere in the State, and not tie them down so that they will have to have failures, if failures there be? These institutions may be all properly conducted now, but we have no guarantee that in five years or ten years they will be properly conducted. It has not been ten years since some of them have been failures, and have had to be reorganized. Mr- Hancock: Would the gentleman object to changing his amendment so as to DEBATES OF THE COXSTITrTIO^TAL COXTEXTIOX OF VIEGIXIA. 1793 say "two educators," instead of ••three, so that a majority of the board shall consist of men elected by the people? You hare six under your amendment. Mr. Eggleston: Mr. President, if I had my choice abotit it I would have a board composed of the superintendent of ptiblic instruction and four educators. I am as anxious as other members of the Convention, and perhaps more so, to get the public free school system out of politics, so that these appointments cannot be used for political purposes. I would prefer a board composed of the superintendent of public instruction and four educators. They may be selected as you please, either by the Senate or by the appointment of the Governor, with the confirmation of the Senate; but I do not want to confine the election to these six institutions, because I do not think they embody all the wisdom and all the zeal in behalf of education which can be found in the State. I do not want to put a political agent for these institutions in every county in the State, because I believe when I do that I give them the absolute command of the public treasury. Mr. Brown: Mr. President and gentlemen of the Convention, personally I felt that it was an inopportune time to take up this report this morning, as many members of the Convention are absent, and had no idea it would be taken up for final consideration at this time. I do hope, however, the Convention will not, by amendment, reopen this particular question which was, of all others in the report, discussed most exhaus- tively and was most hard to decide finally in Committee of the ^^Tiole. It seems to me that the conclusion reached by the Committee of the ^\Tiole is an eminently fair and just one. It provides that the board of visitors of each of the State instittttions shall nominate to the Senate of Virginia a representative from that institution either the head of the institution or a member of its faculty. The idea of the Committee on Education in originally providing that the board should consist of the head of each of these several institutions was that the control of the board of education should rest in the hands of men whose work was entirely along educational lines, and to avoid, if possible, any danger of bringing the educational system of the State into politics. Recognizing that that was rather an inflexible board, and hoping to meet the objection of gentlemen who raised the question that it was an Inflexible board, the committee asked that that subject be recommitted to them for reconsideration. It was recommitted to them for further consideration, and after very careful examination the committee unanimously agreed upon this substitute. Thei matter was brought into Committee of the WTiole. and was again very carefully con- sidered. I hope it will be the act of the Convention to endorse the section as it now stands, without further amendment. Mr. Dunaway: Mr. President. I shall give my vote in favor of the amendment submitted by the gentleman from Charlotte for the reasons that have been stated by him, and for the additional reason that the machinery of the board, if I may so term it, is very complicated as it is now constituted. The people have elected three general officers of the State, and they are put upon the board, as they have been heretofore. Then here are six institutions, each one having its board of visitors or directors. Each one of these boards of visitors or directors mtist select one member from the official corps or faculty of its own institution. There will be elections by six boards of visitors. It will be a difficult task that these boards of visitors will have to perform, and a very delicate task. V^Tien they hold their meeting, they will look upon all the members of the faculty, and they must perform the disagreeable, unpleasant duty of making a discrimination, of showing partiality among the members of the faculty, and picking out one of them who shall be called an eligible. Then, when these six have been elected by so many boards of visitors, the General Assembly will meet and the Senate must select three from the list of six eligibles. Each one of the schools which has an eligible before the Senate of Virginia will have some ambition or desire that its own member shall be chosen; and the probability is that you will have six lobbies from these six institutions before the Senate of Virginia, each one endeavoring to have the member from his own faculty chosen upon the board. 1794 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. But whether that be so or not there will be the unpleasant and difficult task be- fore the Senate of Virginia to pick out three of these men out of the six that will have been presented to it. Nor will the difficulty stop then. After the election by the people, the elections by these six boards of visitors and the election by the Senate, the board thus constituted of six members must hold an additional election. It must go among the number of county superintendents and city superintendents throughout the State and pick out just two of these. There is a discrimination again that will create un- pleasant feeling among the superintendents who are left out. For these reasons, because it is very complicated machinery and there will be so many elections to get at a very simple matter, the proposition of the Committee of the Whole is very objectionable to my mind, and I do believe that if the Senate of Vir- ginia is to choose three men it ought to be left free to choose the three best men in the State, or, if you put it two or four men, that they shall look out over the whole Commonwealth and select three men of zeal, men acquainted with and interested in our public school work, men of administrative ability; and you may not find men with these qualifications upon the faculties of these various institutions. The Senate might get three better men than could be picked out of the six presented to them for selec- tion. Mr. Withers: Mr. President, I desire to offer this amendment, which I presume will have precedence over the motion of the gentleman from Charlotte: Strike out, in Section 2, after the first comma, in line 9, all the words beginning with "school," down to and including the parenthesis in line 11. Mr. Withers: The effect of that amendment, Mr. President, is to strike out from the list of eligibles any member of the faculty of the School for Deaf and Blind, at Staunton, and of William and Mary College. As regards the school for the Deaf and Blind, I do not desire to put that school upon the basis of a hospital, but I think it has no connection with the public school system of the State. As to William and Mary College, that is a private institution; and putting its president or any member of its faculty upon this board is, in my opinion, as indefensible as putting upon it any mem- ber of the faculty of Richmond College, or of Hampden-Sidney, or of Randolph-Macon. The State ought not to enter into a combination with private institutions. Furthermore than that, without touching upon the disagreeable controversy about which so much has appeared in the newspapers, and about which I have not read one line or word, if the Convention does put a representative of the faculty of William and Mary College on its board it will put itself in an indefensible position by reason, not of public intelligence possibly, but by reason of public prejudice and passion. Mr. rarks: Mr. President, I desire to offer tne following substitute for the entire section, but I suppose under parliamentary law the proposed amendment will first be disposed of. I ask, however, that my substitute be now read, so that the Convention may know what it embraces. The general supervision of the public free school system of the State shall be vested in a State Board of Education, to be composed of the Superintendent of Public Instruction and four experienced educators, to be elected by the General Assembly of Virginia once every four years, the four members thus elected to receive such per diem and mileage as shall be fixed by the General Assembly. The President: The question is on agreeing to the amendment offered by the" gentleman from Danville (Mr. Withers) to the amendment offered by the gentleman from Charlotte (Mr. Eggleston). The gentleman from Danville demands the ayes and noes. The vote will be fallen on the first branch of the amendment referring to the School for the Deaf and Blind. The question having been taken by ayes and noes, the result was announced — ayes, 37; noes, 32. DEBATES OF THE COXSTITUTIOXAL COXTEXTIOX OE VIRGIXIA. 1T95 The first branch of Mr. Withers' amendment was agreed to. The President: The question recurs on the second branch of the amendment, proposing to strike out William and Mary College. The question having been taken by ayes and noes, the result was announced — ayes, 28; noes, 41. The second branch of Mr. Withers" amendment was rejected. The President: The Convention is now proceeding to perfect the original section, and after being perfected it will come in competition with the substitute of the gentle- man from Page. Mr. Meredith: :\Ir. President, T simply desire to call the attention of the Con- vention to what is really the sum and stibstance of both the propositions, that either are or will be before the Convention, in regard to the change of this report. Both of them desire three or two experienced educators. They start out with that proposi- tion. Then they propose to have them elected by the Senate from anywhere in the State. On the other hand, the committee report suggests who are experienced educa- tors. You have a guarantee of what everybody desires. Gentlemen want to put in there three or two experienced educators, and leave out any suggestion as to where they shall come from. The committee suggests that these experienced educators shall , come from the colleges. Has any man a doubt that is a guarantee that there will be three experienced educators elected according to the wish of everybody? Aside from the committee report, nobody submits a proposition by which we will get any gtiarantee that there will be three experienced educators. When you tise the expression "three experienced educators, and leave it to the Senate or the General Assembly to establish who they shall be and how much experience they shall have, the door is wide open to everybody. So you propose to announce a principle and not take advantage of an opportunity to have that principle carried into effect. You pro- pose to announce that you want three experienced educators, and at the same time you lea-^'e it to the General assembly as to who they may select and how much experience they may have. I respectfully submit yoti are undertaking to destroy the very guarantee you have, that your desires, as well as those of the Committee on Education, will be carried out. I wish to call your attention to one other thing. "When you leave open this door for three experienced educators you are going to have what the gentleman from Dan- ville (Mr. Withers) said ought not to exist — a connection of the public schools with the private colleges of the State. They are coming in and making a contest for this posi- tion, just as much as the State institutions are, and you will have the liveliest lobbying you have ever had for positions on this board from private institutions. There is not one of us who doubts, and it is a matter of fact, that these private colleges would like to have the position, and they will come in and make just as earnest a contest for it as the State institutions will make. Mr. O'Flaherty: Do you not think it would be better for the Legislature to have the privilege of electing from all the people, and from all the educators of the State, than to confine them to a few? Mr. Meredith: If I did I would not have risen. I am contending that they ought not to do that, because I believe it is going to result in the election of people who are not experienced. How are you going to get the thing you desire? I submit the report of the com- mittee gives you an opportunity to get vrhat you desire: and if you undertake to open the door you will leave it to the Legislature to pass upon what experience is sufficient. You Imow from practical experience that that is not a guarantee. You know the danger of allowing a contest of that kind before the General Assembly. In addition to that, you will have all these private colleges making a contest for the position; and yet you want to have the State institutions connected with the public school system. It has been said there is a good deal of feeling between the colleges of higher education and the public schools. Here is an opportunity for you to make 1796 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. a link between the public school system of the State and the colleges of higher educa- tion; and if the men whom you know are experienced educators, the very men ycu say you want, do their duty properly, instead of there being a feeling of hostility between the colleges of higher education and the public school system, there will be a feeling of gratitude for giving them a system of education that has not existed in the Statei before. It has been said that these men are inexperienced in matters of public education. You talk as ii they are going to be teachers themselves. You know they are not going to assume that position. What are the duties they are expected to perform? Simply that they will meet and elect such superintendent as they think fit, without any special desire to benefit anybody; mey will determine upon the proper clasis of books, without any special partiality for any particular books; and they will map out a system of management for the school as is proper. Then, after that, the whole public school system is left to the public school teachers. Therefore, this idea that you have advanced here — that there is no experience as to the public schools in these men who teach in the higher colleges — is true; but it is not an argument to be used, because there is no necessity of any connection of that kind between them. It is not necessary that they should have had experience of that kind. The grea't question is the selection of good superintendents, free of all political entanglement, the people who will be the best teachers for the children in the public schools. I respectfully submit to you that by adopting the committee's report you have a sufficient elasticity or selection, because you have five colleges from which to select three men. The nominees, or eligibles, as you call them, are to be suggested by the facnltiesi of the different colleges, and undoubtedly the faculties will put forth their best men, because they will take a pride in it; and the Legislature has the right, when the matter comes before them, to select three out of the five. The board will thus be constituted of the Governor, tne Attorney General, three experienced educators from the higher colleges of the State, and, in addition to that, two men, one of whom shall be a city supermtendent and one a county superintendent. I desire to urge again that you have a system by which you can get a guarantee that every man on that board, unless, it be the Governor and the Attorney-General, shall be an experienced educator. You are offered here a system that connects you with the public schools by these twO' superintendents; that connects you with the people by the Attorney-General and the Governor, and that connects you with the col- leges of higher education by these eligibles being selected from them. I respectfully submit you have a chance to get a board of education that presents the finest principle that has been presented in the State since the adoption of the public school system. Mr. Walker: Mr. President, it seems to me there is great force in the objections which are suggested by the gentleman from Lancaster (Mr. Dunaway). Certainly I have not heard any satisfactory answer to those objections. They had occurred to me, and I was on the point of saying something of the sort when the gentleman from Lancaster arose. I rise now for the purpose of again calling attention to those objec- tions and emphasizing them, if I can. According to the provisions of this report the board of Visitors of each of the insti- tutions named in the report is limited in its choice of a candidate for a position on the list of eligibles to the faculty of its own institution. The result of that may possibly be, I do not say that it will be, but it may possibly be — to produce a rivalry for this place among the members of the faculty of the institution. It may be it will have the effect of throwing an apple of discord into the faculty of each of these institutions. That may, or may not, be so. However, one thing at least is, certain, that when from the six institutions, or the five institutions named in the report, as the matter stands now, a list of six names or five names is presented to the Senate, the members of the Senate will have to make a choice between those institutions. It will have to turn down three of the applicants and elect three of the others. It seems to me in that DEBATES OE THE COXSTITETIOXAL COXVEXTIOX OE VIRGIXIA. 179T case it will almost inevitably produce a rivalry among those institutions before the senate, and that in all probability the members of the boards of trustees, if not the members of the faculties themselves, viTl be oefore that body advocating the selection of the man from their own faculty. It would thus produce the very undesirable result of bringing- the institutions into rivalry for those positions before the Senate. The gentleman from Prince William (Mr. Thornton) suggested — and it is the only suggestion I have heard in reference to the objections made by the gentleman from Lancaster — that the boards of visitors of those institutions might agree among them- selves which three of the six applicants should be specially pressed for the positions. If that is so, and the boards of visitors should have the ability to settle the matter by their agreement, then there would be no necessity for confirmation by the Senate, because that power would be taken from them. I cannot think that would likely be the result produced. As long as the matter stands in that shape, and as long as those objections exist, as they seem to me to be objections, I shall vote against the provisions of the report and in support of the amendment of the gentleman from Charlotte. Mr. Keezell: If yoti strike out one of these institutions, leaving only five names to be presented, would it not always be possible for the friends of three of the institu- lions to combine and absolutely dictate in the Senate the election of the man whose name they should see. fit to present? Mr. Walker: That would seem to be the case, and that presents another serious objection. Mr. Keezell : It seems to me if we are going to adopt this amendment v\-e ought to make the number two. The President: The question recurs on agreeing to the amendment offered by the gentleman from Charlotte CMr. Eggleston). The Quesrions having been taken by ayes and noes, the result was announced — ayes, 41; noes, 27. :\Ir. Egglestons amendment was agreed to. Pending a motion by 'Mr. Withers to reconsider the vote, the Convention adjourned until to-morrow, Tuesday, January 14, 1902, at 10 o'clock A. M. TUESDAY. January 14. 1902. The Convention met at 10 o'clock A. Prayer By Rev. W. T. Devrieux. D. D. Pollard: I ask the consideration of the amendment offered by me to Rule S. The Secretary read as follows: Resolved. That Rule S be amended by the addition of the following after the word "payment," in line 16: ''Provided, That in certifying the amount due each member he shall deduct S4 for each day such member is absent without leave first obtained, unless such member be thereafter, for good cause, excused by the Convention." The resolution was rejected. The President: The unfinished business this morning is the motion made by the gentleman from Danville (Mr. Withers) to reconsider the vote by which the amend- ment offered by the gentleman from Charlotte fMr. Eggleston) striking out certain words in Section 2 was adopted. The Question having been taken by ayes and noes, the result was announced — ayes, 37: noes. 32. The motion to reconsider was agreed to. The President: The question recurs on agreeing to the amendment offered by the gentleman from Charlotte (Mr. Eggleston). Mr. Pollard: In the first place, the teachers, the members of the faculty of these 1798 DEBATES OF THE COXSTITUTIONAL COJs'YE^^TION' OF VIEGINIA. institutions of higher learning, draw their compensation from the State, and in the opinion of many of us on the committee the State, for that reason, had a right to command their services without any extra compensation. If other educators are elected, who are not in any way connected with the public institutions of the State, we would have no right to ask of them, without compensation, the great sacrifice of time which would be required in service upon this board. In the selection of text- books their time would perhaps be occupied for weeks and months. In the election of school superintendents much of their time would be occupied. Making the rules and regulations for the government of the public schools is no' small task. It was thought by our committee that the State had a right to command the time of those whom the State paid, while it would not have the right to command the time of others who did not receive compensation from the State; and therefore we thought it was unreasonable to ask any prominent educators not paid by the State to give the great amount of time which is necessary to the performance of duty on this board. In the second place, we thought that if the selection were limited to the faculties of the public institutions* of this State that we would be absolutely certain to have serving upon that board men of experience and capacity. And in the third place we knew that every public institution in this State was dependent for its prosperity on the public school system. The gentleman from Halifax, on yesterday, said that he felt that the people in his, section had a suspicion of those who were connected with the higher institutions of education, that they feared these gentlemen did not take an interest in the common schools. But, gentlemen, by virtue of their very positions they must, of necessity, take an interest in the public school system. How could the school at Farmville exist with- out the public school system? Does not its prosperity depend upon the prosperity of the public school system? And so it is with all our public institutions. All the men connected with those institutions know that the success of their institutions depends on the success of the public school system, and, therefore, they have the very strongest reasons for fostering and supporting the interest of the public school system. There- fore, even the sordid motives of self-interest would insure their interest in the common schools, from which most of the students in these institutions must be drawn. I would like to call attention to the fact that the Committee of the Whole on two different occasions have decided by an overwhelming vote that such a board as that recommended should be constituted. In the substitute offered by the gentleman from Charlotte there is no such guarantee that we will have men of capacity and men whose interests require them tO' foster the public school system, and I hope, therefore, that this Convention will stand by the report which is the result of so much labor and thought on the part of your committee. Mr. Watson: Mr. President, I dislike to occupy the time of the Convention when every disposition isi manifested to come to a vote on this subject, but I hope that the Convention, in its haste to get rid of this subject, is not going to make the mistake of losing sight of a very important principle. The main object the committee had in view in formulating this report was to allow the educational element in the State, as contrasted with the political element, to have at least a half, and perhaps the pre^ pohderating influence, upon the State Board of Education. If the resolution offered by the gentleman from Charlotte prevails, whatever else it means, it does mean that the State Board of Education will not only be put into politics, but that it will be controlled hy politics. I say so, sir, because the Governor, the Attorney-General and the Superin- tendent of Public Instruction are three officials directly responsible to the people and elected by political influences. I say that if the Senate of Virginia names three mem- bers of the Board of Education, no matter whether you call them distinguished educators or not, they are selected and constituted by the political power of the State, which is a part of the Legislature. The three educators you propose to^ elect, sir, under the resolution of the gentleman from Charlotte will be selected in senatorial caucus in the same manner that other State officers are selected before the legislative body, and will DEBATES OF THE COXSTITUTIOXAL COXVENTIOX OF VIRGIXIA. 1799 lie directly responsible to the political influences dominating the State at the particular time of their selection. I should like to inquire of the gentleman from Charlotte what possible precedent he has ever found for taking the House of Delegates out of participation in this impor- tant subject and devolving upon the Senate alone the appointment of these three mem- bers of the Board of Education? Mr. Eggleston: I refer him to the Committee on Education. They seem to have found a precedent for it, and found it was justifiable, because they brought in this report here under which the Senate of Virginia made these selections,, and not the General Assembly. Mr. AVatson: Mr. President, I consider it an ungracious task to inform the gentle- man that the education report simply gives the Senate the power of selection from a list already proposed to it, and in no sense the power of original choice, which are two things as far apart as the poles, in my humble judgment. The Senate of Virginia con- firms a great many appointments made by the Executive Department under all the Constitutions of this State; but I say there is not a single precedent for devolving upon the Senate an appointive and elective power that is denied to the House of Delegates, as it is under the resolution of the gentleman from Richmond, if he wants to be logical about the matter, and if this thing ought to be dumped upon the Legislature, I insist there is no precedent and no principle in withholding from the House of Dele- gates the power which he undertakes to devolve exclusively upon the Senate. Now, Mr. President, the Committee on Education has undertaken to divide the political element, composed of the Governor, the Attorney-General and the Superin- tendent of Public Instruction, and the educational element, composed of the three members of these faculties of public institutions, half in two, so as to make one-half of that board directly responsible to public sentiment in the State and to political influences and me other half directly independent of it. Now, to connect this State board with the public educational system in the State (a thing which my friend from Charlotte has not attempted to do, because he has cut off the county and city superin- tendents who are associated with the board by the committee's report), the committee has seen fit to call in, in an advisory capacity, one county and one city superintendent from different parts of the State, so as to make a direct connection with the public school system. The committee did not confer upon the county and the city superin- tendent power to act in case of appointments, for the simple reason that they would have had to act upon their own appointments or upon the appointments of their associates throughout the State. I submit that the criticism of the gentleman from Winchester (Mr. Harrison), that no provision is made here against these people coming to a tie at some time or other, is not entitled to any serious practical consideration, for the reason that it seldom hap- pens that a tie would occur on a board of this sort; and the sense of public responsi- bility, should a tie occur, would, in nearly every instance, result in breaking the tie. I submit further, Mr. President, that if a tie should occur on these questions of appoint- ment, where six men control the appointments, there is good reason for supposing that that thing ought not to be done which six men cannot, agree should be done. But I do not believe that this side of the millennium, or this side of the time when the gentleman from Frederick will become an old man, which will be a long number of years, such a thing will ever arise in practice; and I am satisfied that suggested contingency is one that need not be provided against in this constitutional article. To be perfectly frank with the Convention and with myself, if the State Board of Education is to be appointed by political influences, and if it is to be a part of the political system of the State, I should be very glad to see the Legislature make the appointments. If it be a good thing, I have no objection to the Legislature undertaking to do the T^ork. I would not, with my friend from Charlotte (Mr. Eggleston), cut off from any participation in this thing the House of Delegates, the members of which are the people's direct representatives, but I would devolve it upon the whole Legislature 1800 DEBATES OE THE CONSTITUTIONAL CONVENTION OE VIRGINIA. and let them make the selection. I repeat, if it is to be a political appointment and if political influences are to dominate the State Board of Education I should be most happy to see it done by the Legislature undertaking to* exercise that power; but if we are to remove it from politics, if we are not to call upon these great book concerns, which have canvassed so many of the Commonwealths to the south of us, and which only wait to enter the field of politics in old Virginia, if we are toi repress those people and keep them beyond our northern border, I submit the educational element on the State Board ought to be in control of it and that it should not be dragged through the mire by political influences and political conditions. Mr. Thom: Mr. President, I wish to detain the Convention but a moment, and I would not rise at all were it not for the consideration that it seems to me the Conven- tion is about, if its votes yesterday is an indicatfon, to- lose sight of an essential principle in its treatment of this matter. To me an overwhelming consideration in addition to the considerations that have been mentioned by the gentleman who has just taken his seat (Mr. Watson), in favor of the general policy of this report is that it takes the common school education of the State with the university education of the State. I cannot believe that it will be to the disadvantage of the poorer children of the State to have imbued into their mental training the scientific methods of higher education. I cannot believe that there is any justification for suggestions which I hear upon this floor that there must be a line of demarcation between the rich man and the poor man in Virginia, and that one of these classes, must be considered out of sympathy with the other in the matter of the educa- tion of our youth. I can find no sympathy with this talk about the universities and the colleges and the higher institutions of the State being schools for the rich man's sons. I can find no syjnpathy for the thought suggested here that the common schools of the State are the schools for the poor man's sons. It seems to me we are attempting or should attempt, to establish here one harmonious system of education in which worth, whether rich or poor, aspiration, no matter from whence it springs, shall be able to enter the common school system of our State and pass up from the lowest to the highest place in our educational system and be fitted for the higher walks of life in connection there- with. Now, Mr. President, if we will put representatives of the university thought of this State upon that board of common school education, we will thereby infuse into the management of the public schools of the State the higher educational thought of the country. Is it right or is it wrong to give the poorer children of the State this opportu- nity for a touch at something higher than the ordinary conception of primary education? This consideration overweighs all others in my mind. While I agree that it isi desirable to keep the school board out of politics, while I agree that it is desirable to keep the hands of the book companies off of the politics of Virginia, feel more intensely that it is our duty here toi give to the poorer children of our State some touch of the scientific educational thought of the day, and to me this suggestion from the Committee on Education has been fraught with more hope and more suggestion of the elevation of the sentiment of our people than anything else that has occurred in the Convention. As I read the sentiment of the people of Virginia, as I read their conception of life and of duty and of purpose, I think they have been in touch with a problem for the last thirty years that has lowered their standard, and I desire in this to find, in some measure, an antidote for the poison which has infused itself into the body politic. I believe this will be done, to a certain extent, by giving toi the children of the State a broader field of education, and putting them in touch with the higher and more liberal fields of thought, and letting our poor children have the same elevating influences that every man within the sound of my voice who has entered a university or an educa- tional institution of the higher grade has felt the moment he began to come in contact with the real educational system of the State. I do trust, therefore, that we will not divorce the common school education from DEBATES OF THE CONSTITUTIONAL COXYEXTIOX OF VIRGINIA. 1801. the university thought of the State of Virginia, and that the gentlemen of the Conven- tion will reconsider what they did yesterday and will enable uS: to fceep the higher grades of education in touch with and influencing the common grade schools of the State. Mr. Bouldin: Mr. President, I do not understand that the amendment of the gen- tleman from Charlotte contemplates any divorcement of the higher grades of educa- tion from the common school system. On the contrary, it seems to me, sir, that it simply provides for the mode of selecting the board charged w^ith the direction of the matter of education, differing somewhat from that sugested by the committee, but having for its object the same purposes. The political element is retained by the amendment proposed by the gentleman from Charlotte, and in addition thereto three educators chosen from the State at large are provided for to manage the common school system. There is no question, sir, of the fact that the friends of the common schools throughout the State desire to enlarge and perfect that system in every possible way, and I understand that this amendment contemplates only adding to the political ele- ment, of the board of three educators to be selected by the Senate of Vir- ginia from the State at large, instead of from the faculties of the higher institutions of learning, who shall be charged with the special duty of attending to the interest of the common schools of the State. The point we make, sir, Is that the eligibles proposed by the report of the commit- tee — the members of the faculties of the higher institutions of learning — nominated by the boards of visitors and trustees of these institutions are not the persons to whose hands we should be compelled to submit the care of the common school system. We desire that the non-political element of the State Board of Education should be selected, whether it be taken from the State institutions, institutions not owned by the State, or from private stations of life, from the men of education in the State at large that this element of the State Board of Education should be selected from men whose time is not wholly occupied with the duties of their own institutions, and who thus may be able to devote greater time, labor and energy to the promotion of the eflaciency of the common schools system. We do not propose to raise any antagonism between the children of the rich man and the poor man. I take it, sir, that that question is not at all involved in the m^atter of the adoption of this amendment. The friends of the amendment desire to advance the cause of the common schools in every possible way, and have no desire to restrict its eflB.ciency in any manner. They wish to make it the doorway to the higher institutions of learning, but they believe that the best mode of doing so is to have the State Board of Education selected from educators of the highest ability, proficiency and culture, and that the v,^hole range of the State be open to the Senate for selection, instead of limiting that body to nominations made hy the boards of visitors and trustees of these higher institutions of learning from their own faculties. We desire that the board shall be composed of the best men attainable by the Senate from the State at large, and not from any limited class. As to the expense of it, sir, if it is necessary these men ought to be paid — and 1 take it that unless the Constitution, in providing for this board, should go further and provide that they shall not be paid — the Legislature will make such sufficient compen- sation for their labor as it may deem the public interest requires. If you add the labor of the proposed board to the present duties of the professors of the university and col- leges mthout additional compensation, what guarantee have you that you will secure the necessar>^ efficiency of the system? These professors have enough to do with their own particular duties at this time. The board of visitors and the professors of the University have all that they can do to maintain that institution and to advance it; and so with the other institutions. They will have neither the time nor the opportunity to devote the necessary care and affection to the management of the public school system. If the board is constituted as contemplated by the amendment of the gentle- man from Charlotte, how can it be said that this will militate against bringing the common schools in touch with the colleges and higher institutions of learning? The 114 — Const. Deb. 1802 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. board is to be selected from the educated men of the entire State, without restriction, and it will be required to devote its time exclusively to the common school system. I can see no sufficient reason why it cannot elevate that system and improve it and bring it in touch with the branches of education that are taught in the higher grades as fully as the board constituted in the manner proposea by the committee. Now, sir, as to the political matters and the school books. Gentlemen of the Con- vention, there must be some appointing power for these boards, and in my judgment that power can be no better placed than in the General Assembly of the State; and I hope my friend from Charlotte, if his amendment shall prevail, will accept an amend- ment putting the General Assembly in the place of the Senate for the purpose of electing the board. But even if that power is confined to the Senate, what higher and better board for the purpose of nomination and election could you have than that body of men? Are the professors of our university and colleges, whose lives are devoted exclusively to building up the higher institutions, who are without experience with the common schools, between whom and the common school system there has been more or less of antagonism, better qualified to secure the welfare of the common school sys- tem than the General Assembly or the Senate? Is not the Senate better informed and equally qualified to nominate this board? Do these boards of visitors and trustees possess any special advantages over the Senate of Virginia? I think not. The General Assembly is deemed qualified to elect the judges of our highest courts, and can it be doubted that that body or the Senate of the State is fully competent to elect the board of education. In my judgment the cause of the common schools is perfectly safe when in the hands of the General Assembly or the Senate. As to the politics involved in the plan proposed by the amendment, I w^ould say we have politics in all the plans, and that it is utterly impossible to remove the schools entirely from the field of politics. The plan of the committee is not free from the change. The visitors of the various institutions are appointed by our governors, and we all know that as a general rule they are selected from the political friends and sup- porters of the governors in recognition of political service. As to resisting the book agents' importunities, I believe that any board chosen, either in the manner proposed by the committee or the amendment of the gentleman from Charlotte, would be amply able to resist these importunities, I can see no force in this objection. Believing, gentlemen of the Convention, that the common school system ought to be directed by a board separated from the board which governs the other institutions, and selected from the ablest educators of the State at large, I trust that it may be the pleasure of this body to adhere to its action of yesterday and stand by the amendment of the gentleman from Charlotte. Mr. Hamilton: Mr. President, I feel it is not improper to say a word on this sui»- ^ect. I thought when this matter was considered and finally acted upon in the Com- mittee of the Whole, the result of the action was practically satisfactory to all gentle- men in tnis body. The question is certainly not whether this action would help any college in the State. The question is, what is best for the public school system, as distinguished from th^t education which takes place in colleges? Upon that, and that alone, the decision should rest. I do not believe it will be any advantage to any of the State colleges mentioned to have representatives from their faculties on this board. I think it is more probable that if there is the possibility of any politics or dissatisfaction growing out of the action of the board, those colleges may become involved and therefore have trouble on ac- count of it. But that is not the question either. The supervisors, the people connected with the faculties of these higher institutions of learning are officers and servants practically of the State of Virginia, elected indirectly, but elected by boards appointed wholly by the State and governed by the State. Certain it is, Mr. President, whether there is truth or not in the statement, there have been allegations that the State Board of Education has been to some extent used for political purposes. I know nothing about it, but that board should be so consti- DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF TIRGIMA. 1803 tuted as practically to forbid that suggestion. Tlie board should be above reproach in that matter. Uov,- can you have a more disinterested, impartial board than the board as con- stituted in the report which we have before us, as altered and amended by the Com- mittee? You haA-e three people on it elected by the people, as I understand, the Gov- enor, the Attorney-General and the Superintendent of Public Education. You- have three people elected by the Senate of Virginia, or the General Assembly, I do not care which, from the list of eligibles, and that list of eligibles, would embrace six people each time three had to be elected; so that when a man with improper char- acteristics is presented, he can be readily rejected. You are not forced to take any particular man from any particular institution merely because his name is sent up by the board of visitors, or trustees of that instittition. You may reject him. That is a board really appointed by the State, because the three men on the board are appointed by the board of trustees or visitors of State colleges, and they are ap^ pointed by the Governor of Virginia and their nomination is confirmed by the Senate. It is almost impossible that any improper influence could go through that ramification of appointments in this way. Xow with respect to those jnen and as to their pay. I do not think, Mr. President, that any man called an- experienced educator should be put on this board and paid any salary whatever. Their actual expenses should be paid, and no more, just as is the case in the appointment of trustees or visitors to the State colleges and institutions. The man who goes upon one of those boards with the idea of making any money out of it is unfit to go upon it and unnt to serve upon it, and whenever it is apparent he has any selfish purpose on one of those boards, or anything to make out of it, I think nothing can be clearer than that he should be displaced as quickly as the law will permit. The best service gotten from people of that kind in Virginia on such boards is the seiwice that comes from men who voluntarily and gladly give their best attention to such matters from a high sense of duty and from that alone. So it ought to be that these men from the colleges placed upon the State board should not be permitted to have one dime beyond their actual expenses. As to the time it wotild take for them to discharge their duties, I do not believe it would taKe a bit more time tnan is given in the honest and faithful discharge of the duties of a member of the trustees or board of visitors of the UniA^ersity of Virginia or the Poh^technic School or the Farmville School or the Military Institute. Any man who serves upon any one of tnose boards, and is fit to serve upon it, gives to the ser- vice of the State a considerable time during the year, but it is a needful service, and there is no reason why these men should not give such reasonable time as is neces- sary in attending upon meetings. They can examine text-books at their homes. They do not need to attend a board meeting to do that. I doubt extremely whether it would be necessary for the members of the board to meet any oftener than or perhaps as often as the board of visitors of the University of Virginia or the State Female X'ormal School. Therefore the pay of the gentlemen need not be taken into consideration, I take it. I would be in favor of putting in here a provision that they should have no pay, but that ony their actual necessary expenses should be paid. I cannot see that the method proposed by the gentleman from Charlotte (Mr. Eggleston) is not far superior to many other methods. I think it is a great deal better to have the method proposed by him than to have existing the present board of educa- tion, which is certainly in danger of being tainted by political considerations: but I think the board which the geniieman from Charlotte proposes has not the advantages of the other boards. It is true it opens the appointments for this board to all the people, as you may say, of the State. I cannot see, Mr. Chairman, that that is entirely desirable. With an idea that it may help some college from which a professor comes and is put upon that board, there may be friends to influence the Legislature, which the gentleman from PLichmond (Mr. Meredith) spoke of as the lobbying influence. I cannot think that would be. or could be, the case with these State institutions, them- 1804 DEBATES or THE CONSTITUTIONAL CONVENTION OF VIEGINIA. selves part and parcel of the State government and State system of education. It seems to me that the conclusion of the Committee of the Whole on this subject is the best and happiest one we can have, and in my judgment the best one we can get. I hope the action of the Committee of the Whole will be approved by the Convention. Mr. Harrison: Mr. President, if I understand the proposition, it is not so much the professors of these various institutions who are to be put on this board, but those professors who are selected by the boards of the institution. Now I cannot understand why the General Assembly or the Senate should be limited to the men who are selected by the boards of the institution. If we are to have professors as members of this board, to which I do not see any great objection, why not let the General Assembly select from the whole corps of the faculty, instead of being restricted to those who are selected by the boards of the institufion. The boards of the institution are not responsible in any shape or form to the people or to the representatives of the people. They are appointed at different periods of time, and are appointed by different execu- tives. Mr. Watson: I rise to inquire if he is speaking in advocacy of the Eggleston amendment? Mr. Harrison: Yes, sir. Mr. Watson: I desire to inform the gentleman that the Eggleston amendment does not provide that the General Assembly shall select anybody. It provides that the Senate of Virginia shall do it. Mr. Harrison: Well, that matter can be guarded when the question comes up, after the adoption of the resolution. That may be done by simply striking out certain words here; but the General Assembly, or the Senate, if that is more satisfactory to the gentleman from Nottoway (Mr. Watson) will be limited by the selection of the pro- fessors by the boards of those institutions which are utterly irresponsible to any in- fluence which the people can throw around them. If it is a good thing for these professors to be upon this board, why not give the freest opportunity to the General Assembly to select from the faculties of the various institutions those professors which the General Assembly thinks would best subserve the interests of the public schools? Why limit the General Assembly to the names of five men selected by five dif- ferent boards from five different institutions, when the whole faculties of the five institutions are left open for the selection and the choice of the General Assembly of the State? Mr. Glass: You have been, I believe, a member of the State Senate? Mr. Harrison: Yes, sir. Mr. Glass: Was there any time during your service in the State Senate when, if called upon, you could tell what v/as the particular qualification of any particular member of any faculty of any of these institutions? Mr. Harrison: Mr. Chairman, in reference to that m^atter, I believe the Senate and General Assembly will generally be guided by the advice of the several boards or the faculties of the institutions; but at the same time I do not think it wise that the General Assembly or the Senate should be concluded by these boards. Let them liave the advice of the board and then permit them a free selection from the faculties of those institutions. In saying this, Mr. President, I have no hostility to any of these Institutions. I am proud of the fact that I am an alumnus of the University of Vir- ginia, and there is noi member of the Convention who has a warmer affection for that Institution than I have; but the selection by these various boards is what I object to; and the fact that these boards, who are no part of the institution or the alumni of the institution, should dictate to the General Assembly of the State which one of the mem- "bers of a faculty shall be the m.ember to go upon the board and have the control of the public schools of the State. I would suggest the provision that the General Assembly shall be guided by the advice of those boards, and listen with respect to their suggestions as to who should go upon the board, but at the same time leave their hands untied to select whom they shall see fit in case they do not consider the recommendation to the board as proper. DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. 1805 AVe all know these boards are made up more or less of politicians. Tliey are selected from the friends of the Governor, who possibly have been most active in^ securing his nomination and election. Why, then, take a body of politicians, many of them able, intelligent and honest men, but still politicians, who are not responsible to the people? Mr. Hamilton: Are you not mistaken in saying that these boards are appointed by the Governor usually from his personal friends? I admit they are to some extent, but you must recollect these boards are appointed for one, two and three years, and no Governor has an opportunity to appoint more than two-thirds of any board during his four years' term. Mr. Harrison: I will ask the gentleman from Petersburg if it is not tnie that generally the members of these boards have been active politicians, who have at one time or another been active in aiding one Governor or another to secure his office? I will make an exception of the gentleman from Petersburg. Mr. Hamilton: I do not ask to be excepted in anything or about anj'thing. I will answer the gentleman's question. According to my observation, as a rule, the men so appointed are people Oj. some personal force and status and usefulness in their communities. I do not doubt that their being personally agreeable to the appoint- ing power has something to do vritli their appointments ordinarily, but I know there are exceptions to that as a reason for appointment. Mr. Harrison: I believe there are exceptions to every rule, Mr. President. I knew the members of the board are generally members of high character and in- fluence; I believe a politician is generally that kind of man, and I believe in politi- cians; but I say that is more or less a political board; that they act in secret; that their proceedings are not public or open; that they are an irresponsible board to the public; that the General Assembly of the State are to have the final say as to which members of a faculty should be placed upon the board, and that the action of these various boards of five different institutions ought not to be conclusive upon the repre- sentatives of the people. If, out of five men, three have to be selected, I cannot see what range of selection is given. Only two men can be rejected. A\Tiy, then, go through the idle formula of having the selection made by the General Assembly, when they cannot do anything more than reject two out of five of the men who are suggested to them? It would seem that the nomination is in effect left to these various institutions, who, as I say, cannot be held in any way responsible for what they do, and whose action may not be known until they lay it before the Senate. Therefore, I think the amendment of the gentleman from Charlotte should be agreed to. Mr. Meredith: Mr. President, I desire to call attention to the fact that the object of allowing the boards of visitors or trustees to elect these officers, instead of the faculty, is to prevent what has been suggested here v>'ould happen — the bitterness of feeling of disappointment that would occur. If you allow these eligibles to be sug- gested by the faculty there will be some trouble. There will be some feeling occa- sioned among them; but if you allow them to be selected by the boards of visitors or trustees that is removed, and there will be none of it, because they are not voting for each other, but are dependent entirely upon the vote of the board of trustees or visitors. I simply say that in reply to the remarks of the gentleman from Frederick (Mr. Harrison). I want to call attention to one evil, though, that seems to exist under the pro- posed amendment. The idea is to strike out all of Section 2 from the word ''from," in line 5, and that leaves the language, "that there shall be elected every four years three experienced educators." I stated on yesterday the uselessness of putting in that language. It does not bind anybody, and is not going to affect the Legislature; but I will call your attention to the fact that every four years you will have before the Legislature of Virginia one-half of the school board of the State to be elected. 1806 DEBATES OF THE COXSTITUTIO^TAL CONVENTION OF VIRGINIA. You are simply opening the doors for another fight among the school book agents « of the country, and they will make a desperate effort every four years to control at least one-half of the school board of the State. Every four years one-half of the State Board of Education of this State, that is to decide upon the class of books to be used, is to be elected by the Senate of Virginia. You are offering a bid to those people to come in and contest for and buy, as far as they can, one-half of the State Board of Education. I do not mean to say you cannot get as good men, and as honest men, and men as free from anything of that kind outside of the faculties of these different institutions, but I do mean to say that the effort that will be made every four years by the people who have books to sell will be to find somebody whom they can buy. Is not that natural? Instead of having men who will be free of all that; men whose situation in life would not suggest anything of that kind; men whose situation in life would remove them from any temptation of that kind, you propose to put here an opportunity for one-half of the State Board of Education every four years to be fought for, or to be bought, as far as that can be done. I earnestly urge that before any gentleman casts his vote he will consider the danger he is putting in the path of the State of Virginia as to the public education of the State, and that you will allow the State Board of Education to be selected from those men who are experienced educators and v/hose lines of life are such that they would not be subjected to the temptations to which some men would be subjected who run for this office, if they simply want to get in there for what they can get out of it. I earnestly urge that the report of the committee be sustained. Mr. Eggleston: Mr. President, when I offered this amendment to the report of the committee I had no idea that such an action on my part could be by anybody construed as an attack upon the higher institutions of learning in the State. No man in the General Assembly of Virginia has been a more urgent friend and supporter of each one of those institutions than myself. In offering this amendment, Mr. President, I did so because I felt the deepest interest in the common schools of the State, and because I did not think a board of education, constituted as it is proposed to consti- tute this board, would serve the best interest of Ihose schools. Now, let us see what is this amendment. It is charged that I have undertaken to inject politics intO' the composition of this board, while the committee has undertaken to include politics from it. I wish the Convention to understand that every political ele- ment and every political influence v/hich will go into the constitution of the Board of Education under my proposed amendment was put there by the committee itself, and not by the effect of my amendment. In moving to strike out the latter part of this clause, sir, I undertook to make a wider field for the selection of these educators who are to compose the board. Who can find any fault with that? If it is proper that we should have educators on this board, is it not proper that we should search the whole State from one end to the other and secure the services on the board of the most suc- cessful, the most practical educators to be found within the limits of the State? "V^Hiat right have we to say that all of the wisdom, all of the executive ability, all of the practical common sense and all of the knowledge incident to the management of the school system is embodied in the faculties of the five public institutions of the State? That is the position of the committee, and they would have you believe that when you go beyond the faculties of these institutions you are not going to get practical men, or that you are not going to get men who have an interest in the public school system. Wlhy, Mr. Chairman, I doubt very much whether any member of the faculty of the University of Virginia ever saw the inside of a public school, and if left to his own will whether he ever will see the inside of one of them. We want men on this board who have a direct interest in the public school system. What interest have these gentlemen? Were any of them ever educated in it? I doubt it. We have been told it is absurd to leave the selection of these tree educators to the Senate of Virginia. The gentleman who raises the objection knows that when this amendment is passed on he can offer an amendment to change the method of selecting DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE VIRGIXIA. 1807 these educators. I do not care vrliere you select tliem. If I liad my choice ahoui it I should not select them by the Senate of T.rginia. I think I could find a better way of selecting them; but no matter how :^ ou undertake to select tliem, you cannot get rid of political izfiuence. How are they to be selected under the provisions of this section? They are to be nominated by the boards of visitors of these various insti- tutions. Who compose those boards? It has' been shown by the gentleman from Win- chester {Ylv. Harrison) that nine men out of ten who compose those boards are put there because of political influence, because of their political friendship with and political advocacy of the cause of some Governor of the State. They are politicians; not less worthy because they are politicians, but nine times out of ten they owe their appointment to the fact that they are politicians, and if they were not politicians they never would have gotten them. Are you removing the public school SA'stem from politics when you give the first selection of this eligible list to boards of visitors who are composed of politicians, and give the confirmation of them to a Senate composed of politicians? If there is any political element in the amenrment offered by me it is only such as has been injected into it by the Committee on Education. 3.1r. President, it is said in advocacy of this proposition: Give the children of the State, rich and poor, an opportunity for a touch of high educational influences." I vvould like to know what touch of high educational influence they get from a board selected in this way. If they get a touch of the influence that is all they can get under the report of the committee. T\liy? Becatise this committee has absolutely forbidden the State to contribute one dollar to any educational cause except in the grammar grade of schools. That being the case, the State does not give fotir-fifths of the children of the State any opportunity whatever to get in touch with these high institutions of learning. They have cut those children off absolutely from them, as far as the report of the committee could do so, and as far as the Constitution to be adpted by the Con- vention can do it. The State cannot contribtite a dollar to anything but these grammar schools. Then how are these children going to get otit of the grammar schools into the University of Virginia? Then. :\Ir. President, the only touch they can get of higher education is the touch the people will get through the treasury of the State, and I say the composition of this board will give these institutions absolute control of your treas- ury. It is said it can be no possible advantage to any of these high institutions to have a membership on this board. Then. Mr. President. I want to ask again, as I asked yesterday, why do we find the faculties and heads of certain institutions here lobbying and log-rolling to get back on this board, vrhen it was intimated they were going to be taken off? VCliy were they here? Mr. Hamilton: This m the second time I have heard a statement somewhat to that effect made here. It was made once before by some gentleman. I saw the head of one school here, and he was here because I telegraphed him and asked him to come. He had personally expressed the wish not to be on such a board, but there had been an unintentional misstatement made as to his position with refer- ence to that school and I asked him to come here to correct it. because I thought if any of the State colleges were put on. all should be. That was the reason he was here, sir. he does not desire to be on the board. And as far as the Virginia Military Institute is concerned. I do not hesitate to say that if you do not put all the State colleges on I do not care at all whether it goes on or not. Mr. Eggleston: Now. ]\rr. President. T do not think the gentleman quotes me just exactly right. I said the men:bers of the faculties and heads of some institutions had been here trying to get back on this board when it was intimated they were going to be cut off. I said the friends of all these institutions— men who are known to be friends of all these institutiot^s — are advocating the formation of this board in the manner presented by the committee. By the report of the committee you cut off four-fifths of the children from any 1808 DEBATES OF THE COXSTITUTIOXAL CONVENTION OF VIRGINIA. opportunity whatever, as far as the State is concerned, of ever getting any advantages from these public institutions. Not satisfied with that, in the constitution of the board, which will be the very life and existence of the public school system of the State, jon tie down the constitution of that board to the faculties of these public institutions, and j^ou virtually say to the people of the State that if these public institutions go down they will have the power to drag down with them your public schools and to involve them in the ruin which they may bring down on their own institutions. Mr. President, is it fair to the patrons of the public school to place their existence in the clutch of the public institutions, and if those public institutions go down to drag down the whole pubic school system of the State v/ith them? Is it wise? Is it sensible to do such a thing as that? And for what good? Because, forsooth, it is claimed that the several boards of visitors of these institutions, appointed on account of political services rendered, are better capable of selecting men who should be on this board of education than are the representatives of the people sent to the capitol for the purpose of representing them. More than that, Mr. President, I warn you gentlemen that when you so constitute this board, in the first place, you are putting in the constitution that which will pile up against its adoption thionsands and thousands of votes all over the State. I doubt whether a Constitution with such a provision as that in it, in my own county, would get fifty votes, if they understand what they are doing. You are doing wrong. You are raising up in the State of Virginia, a direct antagonism to the public institutions of the State which will result perhaps in their temporary benefit, but in their ultimate destruction. That is what you are doing; and why do it? Now, as to the manner in which these educators are selected I do not care how they are selected. If you wish the Governor to nominate them and the Senate to con- firm them, I am perfectly willing for that. If you wish the General Assembly to elect them, I am perfectly willing for that; but it was the proper parliamentary method to amend this section — first, to cut out this clause, and then, if you see fit, to amend and change the manner in which these educators are to be selected. No one knows that better than the gentleman from Nottoway (Mr. Watson), who has made that the subject of criticism. After you have cut out the clause which confines the selection to the heads of these institutions, then you can amend the section further by providing the manner in which the educators are to be selected, if you are not satisfied with the method reported by the committee. Mr. President, you have been told that this is the only method in which you can con- trol this matter and keep the selection of your Board of Education out of the hands of book companies. Since I have been on this floor, Mr. President, I have heard a great many things about the people of Virginia; I have heard a great many hara things said about the officers of the State of Vhginia; but I have never yet heard the people of the State so severely arraigned and so severely condemned as in the remark that they cannot send their representatives here to do their bidding, because, forsooth, they will be bought by the book companies. Mr. Pi'esident, if the book companies can buy the Senate of Virginia they can buy the board of visitors of any public institution in the State of Virginia. If they undertake to buy the Senate of Virginia, taking it on a com- merical basis, they have got to buy twenty-one men. It will be just as easy to buy a majority of the members of the boards of four institutions' — twenty men — dollar for dollar. How much more does the gentleman from Richmond think it would take to buy twenty members of the boards of visitors of public institutions than it would to buy twentj^-one members of the Senate of Virginia? In the formation of the fundamental law of the State we are asked to consider the fact that we cannot trust the Senate of this old Commonwealth, and that in forming this clause we must take into consideration the fact that the book companies may buy the Senate of Virginia. If the book companies are going to buy the Senate they can buy the board of visitors of the University of Virginia; and if we have got to provide DEBATES OF THE COXSTITCTIOXAL COXVEXTIOX OF VIRGINIA. 1S09 for appointments beyond the reach of any influence wliatever we must get them dropped down from above. As I said yesterday, and I want to repeat it, I shall never vote for a provision which will give boards of visitors, composed of boards of politicians, a political agent in eveiT city and county in the State of Virginia to do their bidding. We were told yesterday, "If you allow the General Assembly to elect the members of this board, the various members will want to trade their votes for members of the Board of Appointments of certain school superintendents." I tell you there is jtist as much danger that those same appomtments will be traded in the General Assembly for votes for appropriations as they will be traded in the selection of these educators who compose this board. I will say again that if the gentleman from Xoftovs-ay does not approve of the selec- tion of these three educators by the Senate, let him propose that they shall be elected by the General Assembly and I will vote for it. Let him take the Governor off this board, and let him propose that the Governor shall appoint them, and the Senate con- firm them, and I will vote for it. Let him provide any other method for the selection of these educators by persons who are directly responsible to the people and I will vote for it; but I will never be willing to leaA'e the fortunes of the common schools of the Commonwealth to the success of its public institutions and to give to those insti- tutions the control of the public schools, whether they make their own institutions suc- cessful or not. The Presiding Officer: The pending question is on the amendment of the gentle- man from Charlotte. The qtiestion having been taken, the result was announced — ayes, 29; noes, 39. The amendment was rejected. :\Ir. Wescott: Mr. President, I move to reconsider the vote Avhereby the School for the Deaf and Blind, at Staunton, upon the motion of the gentleman from Danville (Mr. Withers), was stricken out of the list of State institutions authorized under the report of the Committee of the Vliole to select this list of eligibles. I shall detain the committee only for a moment to suggest, as briefly as possible, the reasons which actuate me in making the motion. The gentleman from Danville coupled William and Mary College and the School for Deaf and Blind, at Staunton, in his motion to strike out. That motion was separated, and as the result of two separate votes William and Mary College was retained in the list of institutions authorized to select a list of six eligibles and the School for Deaf and Blind, at Staunton, was left out of that list. My reason for this motion, mainly, :Mr. President and gentlemen, is that the ex- clusion of this, the only State educational institution, is an invidious, discrimination for which there can be no excuse, as I can see the situation, in the conduct of this body. Especially is that true when the action of the Convention leaves in the list of educational institutions an institution of learning, against which I have nothing to say further than to call the attention of the Convention to the fact that it is not an institution owned by the State of Virginia, but an institution of learning with which the State has a merely contractual relation. One word further and I shall conclude. Let me call your attention, gentlemen, to the fact that no possible harm can ensue to the public school interests of the State of Virginia in the addition of this institution to the list, because its effect will simply be to enlarge the number of eligibles from which the General Assembly shall select the educators upon this board. At the very time when this matter is under consideration, permit me to call your attention to the fact that the superintendent of this institution. :\Ir. William A. Bowles, is one of the most conspicuous educators of the State, in so far as he has demonstrated his superiority, coming up as he has from a teacher in the common schools of the State to his present position. I dare hazard the assertion that, as present constituted, the recommendation of these various institutions of learning to the general Assembly will 1810 DEBATES or THE COITSTITUTIOXAL CONVENTION OF VIRGINIA. contain no man upon its list of eligibles more essentially eligible to this position, more pre-eminent as an educator — entitled to the consideration of the General Assembly by reason of his past record as an efficient teacher and manager of the public school inter- ests of the State — than the present superintendent of the institution to which my motion refers. For years he was a teacher in the public schools of the State. He then became the principal of the high school of the city of Staunton. He then succeeded to the position, which he held for years, of superintendent of public instruction of the city of Staunton. Thereafter, before he was promoted to his present position as superintendent of this institution for the deaf and blind, he held for years the high position of principle of the high schools of the city of Richmond. In the name of reason, gentlemen, I ask you not to make any such invidious dis- crimination against an institution designed for the betterment of the educational in- terests of a class of men by nature sensitive, especially when that action will result in excluding from this list of eligibles a gentleman who sitands pre-eminent among the educators of the State, in so far as his direct and immediate connection with the public school interests is concerned, which would be his chiefest recommendation upon this board. I ask you gentlemen to take into consideration the fact that since the action of this body hasi been reconsidered, and since the recommendation of the Committee of the Whole has again been readopted ^vith this single exception, you leave this provision in its symmetry according to the recommendation of the Committee of the Whole, and in consonance, as I understand it, with the wishes of the Educational Committee; that you restore this institution, and to that end that you reconsider your vote whereby this single educational institution of the State was discriminated against by being stricken out from the list of institutions authorized under this enactment to furnish the list of eligibles for the board. The motion was agreed to. The Presiding Officer : The question recurs on that part of the motion of the gentleman from Danville (Mr. Withers) in regard to striking out that portion of the words relating to the School for the Deaf and Blind. The amendment was rejected. Mr. Parks: Mr. President, T desire to offer the following substitute for the sect- tion : The general supervision of the public free school system, of the State shall be vested in p, State Board of Education, to be composed cf the Governor, Attorney-General, Superin- tendent of Public Instruction and four experienced educators, to be elected by the joint vote of the two houses of the General Assembly of Virginia, once every four years, and who, at the time of their election, shall be engaged in education in some institution of learning within the State, and the payment of whose expenses while serving on the board shall be provided for by the General Assembly. The question having been taken, the result was announced — ayes, 30; noes, 37. The substitute was rejected. Mr. Barbour: I offer the following amendment to Section 2: Strike out the v/ords "one city and one county school superintendent," in lines 14 and 15, ard substitute the words "two division superintendents of public s'^hools. one of whom shall be from one of tne cities and one from one of the counties of the State. Mr. Barbour: Mr. President, T will simply state to the Convention that the effect of that amendment is not to change the meaning of the clause at all, but merely to conform its phraseology to the phraseology adopted by the committee. Before offering the amendment, I submitted it to the chairman of the committee, and it meets with his approval. The Presiding Officer: The question is on agreeing to the amendment of the gen- tleman from Culpeper (Mr. Barbour). DEBATES OF THE COXSTITUTIOXAL COXVEXTICX OF VIRGIXIA. ISll The amendmeni TS'as agreed to. .Mr. Thorn: :\Ir. Chairman, I merely wish lo call the aTieniion, specially of the chairman of this committee, to the fact that the phraseology as now contained in this section might produce a result which is not desired. It seems to me that as at present written the language is susceptible of the interpretation that the list of eligibles is to be voted for by the combined boards of these various institutions. As I understand it, each one of these boards is intended to furnish one eligible, and not only to furnish that eligible from the board itself, but to elect such eligible without the intervention of any other board in making the selection. I, therefore, suggest that that trouble is not cured by the provision that the said list of eligibles shall be made up of "one name from the ofScial corps or faculty of each of the institutions indicated." That is merely as to how the list of eligibles is to be made up. not as to who shall choose them, and it is to cure that that I suggest in line 6, after the word '•'eligible. the words "one each"' be inserted, and after the word '■furnish.'" in the same line, the word "respectively"" be inserted, so that it will read: "From a list of eligibles. one each shall be furnished by the boards,'"' etc. Z\Ir. Mciiwaine: I accept tne amendment. The Presiding Officer: The question is on agreeing to the amendment of the gen- tleman from Xorfolk (5Ir.- Thoml. The amendment was agreed to. I\Ir. Brown: I move the adoption of the section as amended. The motion was agi^eed to. :\Ir. Walker: I desire to offer the following amendment to Section 3: Insert after the word "instrtiction."" in line 5. the following: ''TSTlo shall be an ex- perienced educator." That part of the section will then read: The Stiperintendent of Public Instruction, who shall be an experienced educator, shall be elected by a vote cf the aualined voters of the State. Mr. President, it would seem to be tmnecessary to offer an argument in support of the proposed amendment If it is thought desirable and necessary that the members of that board shall be experienced educators, then it seems to me it is all the more desirable that the Superin- tendent of Public Instruction should himself have some experience in educational mat- ters and be at least equally as well qualified to serve as other members of the board, as he is the head of it. 3.1r. r\IcHwaine: Mr. President, I rise to second the amendment vTiich has been offered by the gentleman from Northumberland (Mr. Walker), and to say that in my honest judgment no action of the Convention will give so much pleastire and so much of hope to the friends of education in the State of Virginia as the adoption of this amendment. I suppose, sir, every single educator with whom I have come in contact this summer and fall and winter who is interested in the subject of the public schools of Virginia, has urged this point upon me. I do believe that the insertion of these words will very greatly strengthen the report, and I hope it will be done. Mr. Lincoln: ^Mr. President. I desire to ask the gentlemen who have advocated this proposition this question: Suppose the people of the State of Virginia elect as Superintendent of Public Instruction a man who is to decide the question as to whether he is an experienced educator or not; who is to decide the constitutional question, after the people have elected him as Superintendent of Public Instruction? Mr. :McIlwaine: That question occurred to me before I rose to my feet, but wishing to hurry through it. it escaped my observation at the time. It will be an indication to those who have the nominating power of what they are expected to do. Fortunately. 1812 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. sir, for us in Virginia, there are two parties, and if one party puts up an incompetent man for this position and the other party puts up a man of education and of fitness,. iL will almost insure the election of the man who is fit for the position. At this, point the President resumed the chair. The President: The question is on the amendment offered by the gentleman from Northumberland (Mr. Wallier). The amendment was agreed to. Mr. Meredith: I now offer my amendment — to strike out all from the word "the," in line 5, page 3, down to line 8, and insert in lieu of the words stricken out the fol- lowing: "The State Board of Education; and shall hold office for a term of four years." I do not propose to discuss the matter at any length. I simply wish to say that the vote which wasi taken, by which it was required that the superintendent should be elected by the people, was based upon the theory that the board as constituted had very little touch with the people. That has certainly been remedied tO' a very great extent. There are to be on the board men selected by the Legislature out of a class of experienced educators, a city and a county superintendent, the Grovernor and the Attorney-General; and I submit that the reasons that were given heretofore for the change do not now exist to the extent it was imagined they did exist at that time. Mr. Withersi: Mr. President, I beg leave to call the attention of the ConventiQn to what the proposed amendment of the gentleman from Richmond means. It may be tiresome to do so, but I want the Convention to consider for one moment that the amendment means that the Convention is afraid to^ let the people of Virginia say who shall be at the head of the educational system. It means that the members of the Convention, sent here by the grace and power of the people of Virginia, are afraid of the people and do not dare trust them, and it puts the stigma of opprobrium and odium and condemnation upon them whenever it seeS' fit to so do. I want to respectfully protest against any such thing as this. I do not believe it is creditable to the Convention tO' assume that position. We have now constituted a board that is practically within the appointing power of the Governor of Virginia. Of that I have no criticism to make, as it has been settled. But now the proposition is. made that the head of the entire educational system of Virginia shall be independent of the will of the people, and created by somebody else than that will, and I think we ought to pause and consider, and remember that these gentlemen, who are ever afraid of the people, have the bit in their teeth and are about to carry us to the precipice of popular distrust. I hope my earnestness may not be considered discourtesy, or undue zeal, but I do respectfully protest, and most earnestly protest, against this ever-present manifestation of condemnation and distrust in the intelligence, the sound sense and honesty of the sovereign people of this State. Mr. Claggett B. Jones: Mr. President, I desire to say to the gentleman from Danville that there are two views in which you may look at this question. It may be that some gentlemen are afraid to vote according to their honest judgment, because they are afraid of the people, and afraid to vote that the people should not be allowed to elect every officer to be constituted by the Convention. There are two' ways of looking at the question. The gentleman knows the sentiment of the people he repre- sents, but he is not supposed to know the sentiment of the people of every section of the State. He comes from Danville. Other gentlemen come from the Southwest sec- tion of the State, others from Tide-water and South Side; and it seems to me the gen- tleman goes too far when he undertakes to speak for the whole State asi to what the wishes of the people may be generally. Therefore, I respectfully submit that the gentleman, in my humble judgment, goes entirely too far when he undertakes to criticise the Convention for not doing all his judgment may dictate should be done, or what the people of his section think should DEBATES OE THE COX STITUTIOXAL COXVEXTIOX OE VIEGIXIA. 1S13 be done. Gemlemen upon this floor are supposed to represent their respective cou- stituencies and to know what those constituencies wish, but it seems to me the gentle- man's criticism is unfounded and unjust when he says every gentleman upon this floor who does not vote that the peopie may elect: every officer to be constituted by the Con- vention is afraid of the people. As I said in the beginning, sir, it may be that gentle- men are afraid of the people in two senses of the word. Therefore, Mr. President, it does seem to me the gentlemen of this Convention should be allowed to exercise their honest juagment in deciding these questions, with cut being constantly taunted with being afraid of the people and not trusting the people. Mr, Mcllwaine: Mr. President, if I understand our position it is that we are here in order to get for the people the very Best Constitution it is in our power to give them. If, in our honest judgment, we think it is best for the people to have the election of any particular officer or officers we ought by all means to giA'e it to them. If, on the other hand, it is our honest judgment that a mode better than that can be devised, by which the people can be saved trouble, it is our positive duty to devise that method. A few moments ago, when I made some very brief remarks, I said that in my honest judgment no action could be taken by the Convention which would not only do more good to the public schools of the State, but would give more pleasure to their friends than the insertion of the amendment of the gentleman from Westmoreland (Mr. Walker) . I now say, sir, that, in my honest judgment, the amendment of the gentle- man from Richmond is almost equivalent to that of the gentleman from Westmoreland, and that the friends of education in Virginia and the intelligent people of Virginia will be equally gratified with the insertion of the amendment of the gentleman from Richmond. Mr. President, why upon the face of the earth should we be eternally twitted with the accusation that we are taking away from the people their rights? It is one of the inalienable rights this very day of the people of Virginia to expect you and me to think for them here and to devise the best plan we can to carry out their wishes. It is the unanimous verdict of the educators in the State that the best way of choosing the State Superintendent of Public Instruction is by the State Board of Education. There- fore, sir, I do hope the amendment of the gentleman from Richmond will prevail. I honor the people. I am one of the people. I have lived among them and labored for them all my life. Mr. Keezell: 'Mv. President, when this matter was before the Committee of the Whole it was discussed at considerable length, and, by a very decisive vote, the Com- mittee of the VTiole decided that the Superintendent of Public Instruction should be elected by the people. As T understand it. the composition of the Board of Education as now constituted by the Convention, and as reported from the Committee of Educa- tion and the Committee of the Whole, has been controlled by the idea that upon that hoard there would be three persons who would be elected by the people — three who would represent the educational interests of the State — being connected with the State Institutions of higher education, as proposed by the committee, or, as proposed by the gentleman from Page (Mr. Parks), by educators in any institution, and that there should be a balance kept between the particular representatives of the higher institutions of learning and the representatives of the board elected by the people. What would be the effect of the amendment of the gentleman from Richmond f^Ir. Meredith) ? It would be to put the composition of the Board of Education and the con- trol of its affairs absolutely and entirely in the control of the State institutions. Those institutions would have three representatives upon the board. The people would elect two. if his proposition were to go into effect; and then a board consisting of five mem- bers, two elected by the people and three chosen by the State institution, would elect the Stiperintendent of Public Instruction: then you would have a board made up of two representatives amenable to the people and four amenable to the higher institu- tions of the State; and you might just as well publish to the world that you had turned over the public free school system of Virginia, bound hand and foot, to the higher 1814 DEBATES OF THE CONSTII UTIONAL CONVEXTION OF VIRGINIA. institutions of the State and that the people would haA^e no control whatever over it. I do hope this Convention will let this matter rest, since it has adopted the first or second clause of the report, whichever it may be, and reconsidered it, so that there is now no possibility of a change in the composition of the board. I was not one of those who believed that the present constitution of the board was the best that could be proposed. It is very different, I think, from what was originally proposed, and a great improvement, and for that reason I contented myself simply with voting for a change, which I thought v/ould further improve it, and did not raise my voice in opposition; but now it seems to me we have come to the point when, if we adopt the amendment of the gentleman from Richmond, we will confirm the charge that the whole school system has been delivered over to these institutions, horse, foot and dragoons, and that the people of Virginia will have lost control over their public free schools. Mr. Brown: Mr. President, I hope it will be the pleasure of the Convention to adopt the amendment offered by the gentleman from Richmond (Mr. Meredith). If the members of the Convention recall the occurrences in Committee of the Whole, they will remember that that was the original report of the Committee, and through a mis- understanding, the day the vote v'as being taken, it was stated on the floor that the majority of the members of the committee had agreed to the election of the Superin- tendent of Public Instruction by the people. Within a few minutes, however, it was ascertained that was a mistake and correction was m^ade on the floor of the Convention. As a matter of fact, this matter was not exhaustively discussed in the committee, but was acted upon rather hurriedly and in the confusion that exists with that state of affairs. It was the view of the committee, in providing that the Superintendent of Public Instruction should be appointed by the board, to remove that officer, as far as possible, from the baneful influences of politics, to put his appointment in the hands of a board composed of educators, whose sole idea would be to select a man whoso views on education would be broad — a capable man, whO' would use his large influence to raise the public s,chool system so that it would be an efficient system. It was the sole idea of the committee, in dealing with these matters, to remove the school system, as far as possible, from the baneful effects of political influence and to put its head and its machinery in such a position that educational ideas would prevail. Every one knows that when you put an officer up to be nominated at a political con- vention, whatever restrictions as to his qualification as an experienced educator may be put in the Constitution, we are entrusting his selection to- a body already occupied with other and important matters, such as nominating a Governor, an Attorney- General, a Lieutenant-Governor and other officers of the State, and we will find that the fitness of the Superintendent of Public Instruction, if not his selection, will in all probability be the last matter considered. Experience with political conventions of that character proves that the geographical considerations weigh very heavily. I hope, therefore, it will be the sense of the Convention to restore the original idea of the committee and to support the views of the gentleman from Richmond in the mat- ter. Mr. O'Flaherty: Mr. President, I do not want to m.ake a speech. I simply wish to say that I endorse every word the gentleman from Danville (Mr. Withers) has said, and I desire to enter my protest against the appointment of this officer in the manner pro- posed. Wte have gone s.o far in the direction of turning school matters over to the public institutions of Virginia that I had hoped this career of political madness^ would end. With all deference to gentlemen, it is a career of political madness in that direction. I do hope we will stop it, and that we will not take from the people the only school officer they have the right to elect. As the representative of the sovereign people of Virginia, I protest against any such enactment, and I again warn you not to do it. I know I can say nothing that will change the vote. I have seen how futile my efforts have been upon this floor, but in the interest of the people of Virginia, and in the interest of the good old Democratic party, I urge you not to do it. That is all I have to say. DEBATES OF THE COXSTITCTIOXAL COXVEXTIOX OF VIKGIXIA. 1815 Mr. Wysor: Mr. President, I simply desire to say that I concur in what the gen- tleman from Prince Edward (Mr. Mclhyaine) faid on this subject I hope this office may be made elective by the Board of Education. I will vote for the amendment offered by the gentleman from Richmond CMr. :\Ieredithj Avith great pleasure, and will think I am doing the people of the Commonwealth a service by so A'oting. The president: The question is on agreeing to the amendment of the gentleman rrom Richmond city CMr. jleredith^ to strike out the words '"qualified electors of the State; and after his first term, which shall be fixed by law he shall be elected at the same time as the Governor," and insert the words, "State Board of Education; and after his first term," etc. Mr. Waddill: On this question I am paired with the gentleman from the city of Richmond (Mr. Pollard). If he were present he v.-ould vote yea and I should vote nay. Mr. Moncure: I am paired with the gentleman from the city of Richmond CMr. Gordon). If he were present he would vote yea and I should vote nay. The vote having been taken, the result was announced — ayes, 19; noes, 49 — as follows: Ayes — Messrs. Allen, Ayers, Brown, Carter, Epes, Glass, Hamilton, Hatton, Hunton, Ingram, Clagget B. Jones, Lincoln, Mcllwaine, Meredith, Portlock, Robertson, Watson, AVise and Wysor — 19. Noes — IMessrs. Barbour, Barham, Thomas H. Barnes, Blair, Boaz. Bouldin. P. W. Campbell, Crismond, Davis, Dunaway, Earnian, Eggleston, Fairfax, Fletcher, Gilmore, Gillespie, B. T. Gordon, Gwyn, Hancock. Hardy. Harrison, Hooker, G. W. Jones, Keezell, i^awson. Lindsay. Loveil, ^Marshall. Miller. R. Walton IMoore. ^Mundy. O'Flaherty, Orr, Parks, Pedigo, Phillips, Quarles, Richmond. Rives, Stuart, Summers, Turnbull, Wal- ker, Walter, Wescott, Withers, Yancey and the President — 49. Mr. Pollard was paired with 2dv. Waddill and Mr. James W. Gordon with Mr. Mon- cure. The first named would have voted in the affirmative. Mr. IMeredith's amendment was rejected. :Mr. :McIlwaine: I move that the Convention adopt Section 3 of the report as amended. Section 3 was adopted Mr. Mcllwaine: I move that in the consideration of Section 4 it be taken up para- graph by paragraph. The President: That will be taken as the sense of the Convention unless objection be made. Sec. 4. The duties and powers of the State Board of Education shall be as follows: First. It may. in its discretion, divide the State into appropriate school divisions and, subject to the confirmation of the Senate, appoint all superintendents of schools for such divisions, and prescribe their duties, and may remove such superintendents for cause and upon notice to the incumbent: Provided, no such division shall comprise less than one county or city, nor shall any county or city be divided in the formation of any such division. Mr. Richmond: I move to amend the first paragraph of Section 4 by inserting after the v-ord "divisions." in line 14. the words, "who shall not be active political partisans while holding such office." Mr. President, I shall not detain the committee with any elaborate statement, but it is very desirable, as has been expressed on this floor on many occasions, to avoid, as far as possible, politics in the school system. This amendment, in my opinion, is appropriate and does not deprive any citizen of any political right, however active he may desire to be. either before his election to such office or after his term expires; but if we do not want the school system fettered and clogged with active political partisan superintendents, it seems to m,e it would be wise and appropriate to inhibit such active participation in political matters during his incumbency. I think it would be a wise provision. It cer- 1816 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. tainly would keep the schools and the school managenient out of politics in a very great measure; and, I think, in order to the attainment of good schools and proper regard for the education of the children of the country, school officers should for the time being be non-political actors, or not active in politics. It does not deprive the officer of the right to vote, but it does, deprive him of the right to hold position or place in a political party, such as being a committeeman or of being active in that way. 1 hope it will be the pleasure of the Convention, in the interest of the schools, to adopt this amendment. The amendment was rejected. Mr. Blair: I move to strike out, beginning in line 12, after the word "divisions," the words down to and including the word "incumbent," in line 15. Mr. President, I do not propose to make a speech on this, but I will state the reasons, for my belief that the people of the counties affected by this provision are the ones who select their county school superintendents. I will never vote in the Conven- tion for a board of education or for the Legislature to saddle on the people of these counties as their school superintendents men who are objectionable politically and otherwise. I think the people can be trusted to elect their county school superin- tendents. I submit the amendment with that object. The vote being taken, resulted — ayes, 21; noes 49. The amendment was rejected. Mr. Harrison: Mr. President, I desire to offer an amendment by striking out the words "it may in its discretion divide the State into proper school divisions, and." I do not think the State Board ought to have the power of dividing the State up into districts and taking away from the counties the various school superintendents, as they are appointed now by law for each county. I think that matter ought to be left to the General Assembly, if anybody does it. I do not think a board composed as this is should have that power. As the law now is each county has a superintendent of its own for its own schools. If any body makes that change, it ought to be done by the General Assembly of the State. It ought not to be in power of the board. Mr. Mcllwaine: Mr. President, the committee discussed this matter at some length, and it was very largely discussed in Committee of the Whole. You will notice that this is not exactly as it was reported by the committee originally, but it is as it was adopted in Committee of the Whole. If I recollect aright, the idea was that there were some small counties in the State which might desire to come together, in order to get a superintendent to whom they could pay a salary sufficient to enable him to give his time to them, and thus get a more efficient officer. I recollect the point was made at the time, and some gentlemen of the committee will perhaps recall it, that the Board of Education would never undertake, under any circumstances, to force two counties to- gether, but that the counties themselves might desire to come together to form a separate school division, and that they ought to have authority to do it. It seems to me it would cure the difficulty that is in the gentleman's mind if he would make this amendment: "It may in the discretion, subject to the action of the General Assembly." Mr. Harrison: I am perfectly willing to accept that, sir. Mr. Parks: I offer the following as an amendment to the amendment offered by the gentleman from Prince Edward: "The General Assembly shall divide the State into school divisions, to be composed of one or more counties, and the State Board of Education shall, subject to the confirmation of the Senate." Mr. Barbour: Mr. President, I hope the Convention will permit the section to re- main in the shape in which it is reported. It leaves this matter in the hands of the State Board of Education, with whom we charge the responsibility of conducting the entire educational system of the State. It seems to me it is where it properly belongs, and that the section should be permitted to stand where it is. DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. I8i: The President: The question is on agreeing to the amendment proposed by the gentleman from Page (Mr. Parks) to the amendment of the gentleman from Frederick. The amendment was rejected. The President: The question recurs on the adoption of the amendment proposed by the gentleman from Frederick (Mr. Harrison), as accepted by the chairman of the committee. Mr. Hatton: I offer the following amendment to the amendment: That the words '■'in its discretion" be stricken out. If those words are alloAved to remain there with that amendment it creates a contradiction of terins, because if they may appoint, in their discretion, subject to the approval of the General Assembly, they have no discretion. It is the discretion of the General Assembly, really. The amendment was rejected. The President: The ayes and noes having been ordered on the amendment of the gentleman from Frederick, the result was announced — ayes, 26; noes, 42. The amendment was repected. The President: The gentleman from Craig (Mr. Marshall) gave notice of an amendment in the nature of a substitute. A superintendent of schools for each county, who shall be elected by the qualified electors of tne county, and who shall hold their office for a term of four years. The ayes and noes being taken, the results was announced — ayes, 16; noes, 47. Mr. Marshall's amendment was rejected. Mr. Ayers: I move to insert "shall" before "subject," in line 12, so that it will read: "Shall, subject to the confirmation of the Senate, appoint all superintendents." The amendment was agreed to. Mr. Parks: Mr. President, I move to amend by inserting the following language after the word "divisions," in line 14: "Who shall hold their office for four years." The amendment was agreed to. Mr. Glass: Mr. President, after conference with the gentleman who proposed this section, he agrees v^ith me it would be better to amend by striking out the word "all" and inserting the word "one," in line 13, and after the word "for," in line 14, inserting the words "each of," so as to make the section read: Shall appoint one superintendent of public schools for each of said divisions. As the section stands the board might appoint one or more superintendents for eacn of these divisions, and that was not in contemplation. I therefore move that amend- ment to tne report. The amendment was agreed to. Mr. Dunaway: I offer the following as a substitute for the whole section: It shall appoint and have power to remove for cause upon notice to the incumbent, subject to confirmation by the Senate, a superintendent of ptiblic free schools for each county and city of the State. The question having been taken, the result was announced — ayes, 10; noes, 58. Mr. Dunaway's amendment was rejected. The President: The Secretary will read the second paragraph of the section. Second. It shall have, regulated by law, the management and investment of the school fund. Mr. Eggleston: I move to strike it otit, with a view of inserting an independent section elsewhere, providing that the superintendent of schools shall be elected in some other manner. The motion was rejected. The first sub-section was adopted. The President: The Secretary will read the third sub-section of Section 4. 115 — Const. Deb. 1818 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. Third. It shall have authority to make all needful rules and regulations for the management and conduct of the public free schools, which rules and regulations, when published and distributed, shall have the force and effect of law, but all rules and regula- tions of said board may be amended or repealed by the General Assembly, and when so amended or repealed shall not be re-enacted by said board. Sub-section 3 was adopted. The President: The Secretary will read sub-section 4 of Section 4. Fourth. It shall select text-books and educational appliances for use in the public Ivee schools of the State: Provided, that the school boards of cities of a population of 5,000 or more shall choose the booKs and appliances for their schools, subject to such rules and regulations as the State Board of Education shall prescribe. Mr. Portlock: Mr. President, I move to amend by adding, in line 34 of sub-section 4, of the report under consideration, the word "counties" after the word "cities," so that it will read: "Provided, that the school boards of cities and counties of a popula- tion of 5,000 or more shall choose the books and appliances for their schools, subject to such rules and regulations as the State E'oard of Education shall prescribe." I do not propose to make any speech upon this question at this time. I spoke at some length before the Committee of the AVhole, advocating the right and propriety of giving to the counties the same privilege of selecting their text-books as you have con- ferred upon the cities. The only object of the amendment is that counties of at least 5,000 inhabitants or more may be put upon the same plane in the selection of their text-books, through their local school authorities, as cities of 5,000. If any gentleman of the Convention can demonstrate to me any reason Avhy cities of 5,000 population may, through their local authorities, select their own text-books and counties of 50,000 in- habitants may not, through their local authorities, be ,given the same rights I am sure I shall be prepared to vote for the report as it now stands with all the discrimination therein made in favor of the cities and against the counties. If any gentleman can show me why it can be claimed, on behalf of the cities, that their local authorities are more capable, have more intelligence, have more ability to do this service than the local school authorities of counties I shall be prepared to vote for the report as it came from the standing committee; but so long as I am under the impression that the local school authorities of the counties are just as intelligent, honest and capable as similar officers in the cities I must conclude that the counties should have the same rights and authority in this respect. I shall vote for the amendment I have offered, and I hope the Con- vention will do the same. Certainly I do not understand how the delegates in this Con- vention, representing the counties upon the floor of this body, can consistently decline to support the amendment I have submitted in the interest of the counties. Mr. Mcllwaine: Mr. President, this is one of the most important features of the whole report, and whether or not the Convention agrees with the report of the Com- mittee of the Whole it certainly ought to consider it before such a motion is taken up. There were two reasons which prevailed upon the Committee of the Whole, as well as upon the Commiftee on Education, to present this fourth sub-section as it is. The first is, that in the counties it is far more difficult to get educated talent than it is in the cities. This is a lamentable fact, but throughout the most of our counties it is a fact. When I was a boy, Mr. President, the great part of the intelligence and of the worth of Virginia dwelt in the country. Now, sir, it is not the case. There is a great deal of worth there, but there is not a great deal of intelligence in our country sections. (Laughter.) I mean sir, educated intelligence. The people have sense, but they are not generally educated. I see some of the gentlemen from the eastern part of the State laughing. I wonder if it is different in their counties from what it is in the central portions of the State. Another reason, sir, which prevailed was that the people in the counties were both- ered to death by the visits and the appeals of book agents. It was to protect tiie people of the counties against these agents that this action was taken. DEBATES OF THE CONSTITUTIONAL CONVEXTION OF VIRGIXIA. 1819 Now, sir, I have but little personal knowledge about this matter myself, and no personal interest in it. I only w^ant to do what is for the good of the counties, and if this Convention intelligently, with its eyes open, chooses to change that provision,, why of course I have not a word to say. Mr. Lindsay: Mr. President, I desire to offer as an amendment to the substitute — to strike out, in line 30, from the word "State" all that follows, so that the section will read: It shall select text-books and educational appliances for use in the public free schools of the State. I contend that the cities do not desire the right there conferrc. and thai the oppor- tunity for corruption is just as great in the cities as in the counties, or even greater. My amendment makes it uniform, and the same right ought to be extended in regard to cities as in regard to counties. The President: Before the motion can be put, the motion of the gentleman from Norfolk county (Mr. Portlock) is first in order, the section must be perfected before motions to strike out can be entertained. The amendment was rejected. Mr. Portlock: I offer the following amendment: After the words "cities of a population of 5,000 or more," in line 32, insert the words "counties of a population of 40,000 or more." I ask that privilege for Norfolk county. The ayes and nays being taken, the result was announced — ayes, 17; noes, 47. The amendment was rejected. The hour of 2 o'clock having arrived, the Convention adjourned until to-morrow,, Wednesday, January 15, 1902, at 10 o'clock A. M. WEDNESDAY, January 15, 1902. The Convention met at 10 o'clock A. M. Prayer by Rev. W. R. L. Smith, D. D., of Richmond. The President: The unfinished business is the report of the Committee on Educa- tion and Public Instruction. When the Convention adjourned on yesterday the amend- ment offered by the gentleman from Albemarle (Mr. Lindsay) was pending. The Secre- tary will read the amendment. Strike out after the word " State," in line 30 of Section 4, the rest of the sub-section. The words stricken out are: "Provided that the school boards of cuies of a population of 5,000 or m.ore shall choose the booKs and appliances for their schools, subject to such rules and regulations as the State Board of Education shall prescribe." Mr. Pollard: Mr. President, I desire to call the attention of the Convention to the reason why discrimination is made between the selection of text-books in the counties and the selection cf text-books in the cities. So far as I am able to learn it was not the intention of the committee to make any discrimination, had it not been for the fact that the representatives of the counties declared they did not wish the local school board to select the books, while the representatives from the cities, for the most part, did de- sire that authority be vested in the local board. The representatives from the cities have stated, as a reason why the text-books should be selected by the local boards, that in the cities, of the funds contributed to the public school system about four-fifths come from the treasuries of the cities; that by reason of the fact that so much more is raised for public school purposes in the cities than in the counties, they are enabled to employ and to pay educators of the first-class, and, therefore, they believe they can bring to the important task of the selection of text-books in the cities more expert knowledge than could be brought to the task in the counties, because the counties, as a rule, have not 1820 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA, enough money to employ the educators who would be helpful in this important work. It was not the desire of the committee to discriminate or make any invidious dis- tinction between the counties and the cities, but, as I understood, it was the request of the counties that this matter be left, so far as they were concerned, with the State Board, while it was the desire of the cities, having different books from the counties, to select their own text-books. I simply want to make that explanation of the reason for the distinction. Mr. Lindsay: Mr. President, I shall not detain the Convention w^ith any extended remarks on the subject. I simply desire to call attention to the evident discrimination provided in sub-section 4. The representatives of two cities, certainly, came here and asked that they be included in the provision as applied to the counties. On yesterday there was on the floor of the Convention the superintendent of schools from the city I have the honor, in part, to represent. He has served twelve years as school trustee, and he said that, in his judgment, this would be an unwise provision to have inserted in the Constitution; that the school trustees of cities were liable to the same opportunities to make mistakes; they were subject-to the importunities of book agents and dealers in educational appliances, and that they desired to be relieved of them. As I take it, the selection of text-books and appliances was left to the State Board because, in tne judgment of the committee, the State Board is the most competent body to select the books. It was not because one county, or half a dozen counties, wanted the privilege of selectiuig their text-books, and one or two cities did not want the privi- lege of selecting their text-books. I take it that the committee acted, in its judgment, for the best interests of the schools of the State. Now, Mr. President, if it is a good thing for the counties it ought to be equally good for the cities, and vice versa, if it is improper to leave the selection of the text-books to the cities it should not properly be left to the counties. The sense of the Convention was taken on yesterday. It was de- cided that the counties should not have the right, and I ask that some uniformity be maintained in the matter, and that we give to the board the right to select for both cities and counties. It has been ascertained that the school board was the proper authority in this matter. If that is the proper authority give it the right to exercise it in both cases. Mr. Mcllwaine: Mr. President, on the very day that my appointment as chairman of the committee was announced I met in the lobby two school officials, who impressed it upon me as one of the most important things to be brought before the Convention that the authorities in the cities should be given the right to select their own text-books. Mr. Meredith: May I ask the gentleman whether they were city trustees or teachers? Mr. Mcllwaine: One of them w^as a superintendent of school and the other was a teacher. Mr. Meredith: In the cities? Mr. Mcllwaine: Yes, sir; in the cities. After that time the committee had information from other cities that the thing was very much desired, and the ground on which it was put was that in the county schools the school terms did not last more than five months, and were generally of the primary grade; whereas in the cities the school terms lasted nine months, and a large portion of them consisted of high schools. It was found that the books selected for the State generally were oftentimes not suitable to many of the city schools, and this was im- pressed upon us over and over again, and it was, I think, on this account chiefly that the sub-section now under discussion was brought in in the shape in which it is a present. Mr. Hancock: Mr. President, I have had some experience in this matter, having held the office of city superintendent of schools, as well as the office of county superin- tendent of schools, for a number of years. To allow the local boards of counties or cities to select their school books will destroy uniformity in the text-books used in the public schools of the Commonwealth. It will subject these local boards to the annoy- ance, the continual worry and the persistent and persuasive influences of book agents and DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 1821 publishers of books. I hope, therefore, that the motion to strike out will prevail and that the State Board of Education shall have the exclusive right to select text-books for all the cities and counties in the State. Why should the city of Bristol, or the city of Norfolk, or the city of Richmond, or any other city in this Commonwealth have any more right to select its own school books than the county of Chesterfield, the county of Pov/hatan, the county of Greenesville or the county of Brunswick. Is there any more intelligence in any one of these cities than there is in the counties which I have named? I deny that proposition, and I call for proof. Call for it and I defy the gentleman from Prince Edward (Mr. Mclhvaine) to produce the proof that the people of the coun- ties are not as intelligent as the people of the cities. Will he deny that? I do not think he will. Laughter). I think the proposition, that it is unwise for the counties to have the selection ot their school books, because these book agents, with their artful designs and methods, will im^pKoperly influence the local county boards, applies with equal force to the city boards. The cities are no better than the counties, and where did the idea come from that the cities ought to have any greater advantages than the countiesi. I represent a city and two counties, and I think one of them is as good as the other and entitled to the same rights in this Convention. Mr. Cameron: May I ask the gentleman what city he thinks he represents in the line he is now pursuing? Mr. Hancock: I represent the city of Manchester, sir. And if the gentleman from Petersburg thinks he represents the sentiment of the people of Petersburg, when he advocates the selection of the school books by the local boards, I think he is as much mistaken about his city as he thinks I am about my city. I happen to know something about these people in Petersburg as well as he does. They are an independent people, and they are in favor of right and justice and equality, and are not claiming any special privileges. But, leaving aside this interruption, I come to this proposition: The people of the State of Virginia, whether they live in cities or live in counties, are the same people, and are subject to the same influences and to the same impulses and to the same temptations, and I protest here against allowing cities to have the right to select their school books. Why have the Board of Education, composed of men specially qualified for this technical work, and then take it away from them and put it into the hands of men in no w^ay fitted for it? Let the State Board of Education, which is a board of suflicient political power and influence and of sufficient technical knowledge and educa- tional qualifications to do the work well, select these text-books for the public schools, and let their selections apply to all the cities and counties of the Commonwealth. Mr. Mcllwaine: Before the question is put I would like to say that the repre- sentative of the public schools in Manchester appeared before the committee and strongly urged the clause that the committee adopted. I suppose that gentleman understands the public sentiment in Manchester. Mr. Meredith: I would ask the gentleman from Albemarle, who I understand made the motion, to accept this, amendment: Add after the word "State" the words "exercising such discretion as it may see fit in the selection of books suitable for the schools in the cities and counties, respectively." Mr. Lindsay: I accept that amendment. Mr. Meredith: My suggestion is to amend the sub-s^ction so that it will read, as amended and accepted by the gentleman from Albemarle, as follows: "It shall select text-books and educational appliances for use in the public schools of the State, exercising such discrimination as it may see fit in the selection of books suitable for the schools in the cities and counties, respectively." Mr. Chairman, the only reason that has been given for the insertion of this pro- viso, allowing these local boards in the cities to have this power, is the need of having different classes of books in the cities from those they have in the counties. That is 1822 DEBATES OF THE CONSTITUTIONAL CONVENTION OF ynHGlNIA. desirable, but are you getting at it in the right way? If you can get at it and put the same power in the State Board of Education as to cities that they have as to counties., I respectfully submit that will meet the end desired and at the same time give the cities the protection they need. I repeat it — the protection they need. We need protection just as much as the counties, if not more so. But I earnestly urge that the amendment of the gentleman from Albemarle be accepted. There can be no need of putting upon us the danger of having our little local boards overrun by these book agents, and I respectfully submit that if the State Board of Education, selected, as we believe, wisely, is able to pass upon this question honestly and intelligently, for the benefit of the coun- ties of this State, it can also pass- upon the question for the cities, provided it has sufficient elasticity to provide different classes of books for the cities and those used in the counties, on account of the difference in the length of the term and of their respec- tive needs. No man can say that a city board can be trusted any more than a county board. 33very man will admit that no local board ought to be trusted about a matter of this kind any more than is necessary. If we are able to remove the necessity for this thing, by simply adopting language to remove any doubt as to whether they have this dis- cretion or not and stating in specific terms they may have the discretion, I respectfully submit we meet the only argument that has been made for putting this in here and meeting the danger; and I repeat it, there is very great danger of having our boards overrun and being made more or less purchasable by the book agents. I am a great believer in the doctrine, "Lead us not into temptation." I believe officials ought not to be tempted any more than is necessary. We are here under- taking to make the law of the land, and we ought to recognize the fact that we have no Tight to put our public officers in any greater danger from temptation than we can avoid. Wlien you undertake to leave discretion with these city boards, with the large amount of books they purchase, you are subjecting them to temptation. The larger the purchase the greater the temptation of the book agents to attempt to buy the local boards. If a few books are to be bought they do not bother themselves about it, as it is not worth the money they spend, but if a large quantity of books are to be bought the greater will be the inducement. I want to say one other word and then I shall be through. W^hile the committee lias seen fit to get the best information they can in regard to the wishes of the cities in matters of this kind, it seems to me they have not gone to the real source of informa- tion. I think the representatives upon this floor should have been consulted about a matter of this kind, and not the school teachers and the school boards. A man will naturally ask for power. Those gentlemen are the very men who are knocking here and asking that they have this power. I do not mean to intimate that they are asking it for an improper purpose, but it can be used for an improper purpose. Any man will desire to have power as far as he can. It is very natural that they should ask for It. If there is no necessity for the fear that these gentlemen have, that the school boards will not have sufficient discrimination in selecting a different class of books for the cities from those they will select for the counties, we get rid of that. There can be no need of uselessly subjecting the local school boards to this danger, and it will be useless. I respectfully urge the addition of the words I have indicated, making it clear and manifest and explicit that in regard to the Sielection of book for cities and providing that it may exercise a discretion as it may see fit in regard to the schools in the coun- ties. Does any man doubt the ability of the State board to select books for the cities? Is there any man who will get up on this floor and say that these gentlemen are not fit to select books for the cities? If they are fit, and we give a power sufficiently broad to exercise that discrimination, I respectfully submit that we have done all that is necessary and we ought not to subject these local boards to a useless danger. I earn- estly urge that that part of the section be stricken out. Mr. Glass: Mr. President, when this matter was up in Committee of the Whole DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OE VIKGIXIA. 1823 I supposed the objection urged by the gentleman from Richmond was fully met when a proposition was pending to strike out of Section 4 these words, "subject to such rules and regulations as the State Board of Education shall prescribe." The matter is left entirely to the discretion of the State Board of Education. The State Board of Educa- tion under this section may require that the school board of the cities shall report to the central board its, selection of school books, and if the selection is not agreeable to the State board, if the manner of the selection, the method or any act connected with the selection, is not agreeable to the State board, the State board lias veto power. Mr. Meredith: That is a very serious question to me, as to whether the rules and regulations prescribe the same thing as being subject to approval. That is a matter of doubt with me. Mr. Glass: If the State board makes, a rule or regulation that these books shall be selected by the cities, subject to their approval, it is certainly given the authority here to make such rules and regulations as it considers necessary for the management of the public schools, and such rules and regulations when made shall have the force and effect of law. Mr. Meredith: Then I respectfully submit there is no use for it. If these local boards are to be subject to the approval of the State Board of Education, that gives ample power. Mr. Glass: I thougkt it was the contention of the gentleman from Richmond that if we left these words in there, when it was proposed to strike them out, the section would be satisfactory to him, and as he represented a city, I agreed to and voted for leaving tnem in there, thinking it met his approval. Mr. Meredith: I have always been opposed to any power being given to the local board. ]\Ir. Glass: I did not Ivnow that. I desired to call the gentleman's attention to that fact. And while I am on my feet, Mr. Chairman, I just want to say that the broad statement that the cities do not desire this, is incorrect so far as the city of Lynchburg is concerned. I want to say further, in justification of the committee, that the com- mittee has embodied in the Constitution in a modified form the present statute of Vir- ginia. In other words., your statute law now provides that the selection shall be made by all cities, because experience shows that it is best that it should be done, and there is not one word of qualification in the statute about it; but as the section stands there is a very radical qualification, because by it the whole matter is put within the discretion of the State board. Mr. Hamilton: Mr. Chairman and gentlemen of the Convention, I hope the motion to strike out will not prevail. I do not know about any other communties except my own. I know the right of the city s.chool board to select text-books for the high schools and the higher grades is Yevj essential for their prosperity and welfare. My observa- tion, extending through twenty-five years, is that there has never been any solicitation with respect to school books or school apparatus in my city. I am aware of what was said by the gentleman from Richmond (Mr. Meredith), who recently spoke when this matter was up in Committee of the ^\^ole, namely, that it was not desirable to leave this power in the hands of the local authorities in Richmond. That is not my observa- tion or experience at my own home, and I do not believe it is true of any other city in the Commonwealth. As far as the right of the local boards in the county to select such apparatus and books is, concerned, I have no opinion except that I am guided by the expressions of the gentlemen from the counties, as I understand them. So far as I have been able to get their views, and it has been somewhat general, they do not wish that power left in the local boards. The cities., so far as I know, with the exception of that of my friend from Richmond, who sits before me (Mr. Meredith), do want that power left in the local board, certainly for the higher grades of schools, and if you change that you may seriously cripple the schools. Mr. Robertson: As I understand, the law at present allows that to be done. Mr. Hamilton: The law has always permitted the school boards in cities to select 182-i DEBATES OF THE COXSTITUTIOl^AL COJ^'YENTION OF VIRGINIA. all of thesp .hings, and without any limitation or discrimination. In the Committee of the Whole I objected to these words "subject to such rules and regulations as the State board shall prescribe." I thought that was too much of a restriction, but the committee adopted it after proper consideration, I thought, and I had nothing more to say. I hoped that the State board would not make such regulations and restrictions as would absolutely nullify the power of the local city boards. I do not see that we have heard anything different now from what we heard when we were discussing this matter in Committee of the Whole as to the kind of State Board of Education we have. We had then exactly the same kind of State board' we have now. I do not doubt those people are capable of selecting text-books; but there are different text-books used in the various cities of the Commonwealth. In the higher grades in the city of Lynchburg different text-books are used from those used in the city of Richmond or the city of Petersburg; but the heads of these high schools (and they have very successful and efficient schools over there^ — as good as any in the State, to the extent they go) know by experience what books to use. They have used them to advantage, and it would not be best, in my judgment, to make all of these really efR- Dient high schools use exactly the same books, when their experience teaches them to [he contrary. Mr. Lindsay: I do not understand that it is contemplated that the State boards i\"ill not allow the exercise of that right. There is nothing in this provision to indicate that there shall be uniformity in that respect in the cities of the State. It means simply that the State board shall select them, rather than the local board. Mr. Hamilton: I hope the gentlemen of the Convention will not interfere with the substantial and practical right, I do not care in what form it is, of city school boards to select text-books for the higher schools. If the gentlemen from the counties will simply tell us what they v/isli in that respect I am sure there is not a representative of the cities here, with possibly one or two exceptions, who will not be happy to vote for whatever they wish in that direction. Mr. President, the gentleman from Richmond has asked me if I thought the matter of public education was a mere matter of local legislation and government. I think the chief objections, if objections there are — and we know there are some faultsi in every sj^stem — to the public school education of Virginia and of every other State, are that it is made to run too much and absolutely in a rut, and that every child is made to con- form to a given size. I believe in some variation, according to- the different conditions in different places. I do not mean to say that the State Board of Public Education would grant this. I do not know whether they would or not. I believe they would, and I hope they would — that is, such a list as would afford a proper limit of discretion to these boards in the different places; but I do not think we should put it in such a shape that we cannot have the right to make our schools most etRcient. Mr. Pollard: Mr. President, before the gentleman takes his seat I would like to correct a misapprehension which he seems to entertain. He stated the city of Rich- mond seems to desire that the selection of these text-books be placed with the State board. I want to say, as a member of the Committee on Education, that I have made it my duty to find out what the educators of Richmond desire in the matter, and, so far as I am able to learn, they are unanimously of the opinion that the local board ought to have the right to select the books. Mr. Ingram: Mr. President, as representing, in part, on this floor the city of Man- chester, I desire to state that, so far as I have heard the wishes of that constituency or community expressed, and I have only heard from the superintendent of schools in that city, the provision embodied in the report of the Educational Committee is entirely satisfactory to them, and I shall give it my support. I think it is sufficiently safe- guarded by giving the general board the right to prescribe the rules and regulations under which the board shall select the books for the cities. Mr. Thorn: Mr. President, I trust it will be the pleasure of the Convention to retain the provision as it stands now in this fourth section. No one who has observed DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIEGIXIA. 1S25 the educational system of the State can fail to have been struck with the special in- terest taken in public education by the cities, and the very large appropriation they are now making and intelligently expending in the matter of educating the school children of their respective localities. A great majority of the members of this Con- vention are from the country. They should determine, and they have determined, what shall be done in reference to the countrj' districts. Is it asking too much that the representatives of the cities should be consulted as to the wishes of their con- stituents in reference to this matter? I understand from the chairman of the Committee on Education that they have investigated the sentiment of the cities on the subject and they have heard a universal request coming from that source that the cities be allowed to control their schools by local agencies. I understand from the gentleman from the city of Richmond (^Ir. Pollard), who has just taken his seat, that the educational authorities of the city of Richmond are in accord w^ith the educational authorities of the other cities in this regard, and it does not seem to me too much to ask that the cities, considering their large appropriation for this subject, considering the great interest they are taking in public education, and considering the intelligent management they are giving to the subject, should be allowed the privilege, which their educational people all desire, of being allowed to select the text-books which are to be taught to tlieir own children. I earnestly hope the amendment will not prevail. Mr. Parks: Mr. President, coming from the country, I can state positively what the people desire in reference to this matter and what the school authorities wish. Further than that, having been associated Avitli the school system in the country-, and by virtue of the position I have held for years, being made familiar with the pro- ceedings of the school boards in the county and the caliber of the men vrho consti- tute the school boards in the country in the main, I approve of the first clause of this section, which provides that the State board shall select school books and appliances for the country. I protest against subjecting the school boards in the country to as- saAilts from book agents. I suppose every man on this floor is acquainted with the persuasive eloquence and the persistent conduct of book agents. It has been said, sir, that the test was made upon one occasion, and there was only one human being in the world who can outstrip a book agent, and that is an insurance agent. It is said that, in order to test the matter, a book agent and an insurance agent were locked up in a room, each to ply the other. The parties returned after some time and found the book agent on the floor in extremis and the insurance agent whispering in his ear, calling his attention to what he had lost by not yielding to his persuasive eloquence and still insisting that he should listen to him, assuring him that he was not only supplied with life insurance, but that he was armed with policies of fire insur- ance, and, as the book agent was likely to go to a country where that would be needed, msisted on his taking out a policy in a fire insurance company. (Laughter.) Mr. President, so far as the coimty boards are concerned, these book agents come to a county and go around and see the superintendent and members of the board. If they find tliey are invulnerable they go and employ the best lawyer in the town to go before the school board and represent the school books for which the agent is canvassing. As these trustees receive no compensation it is difficult to get the best men alwaj's to take the places, and, as they are in a hurry to get the work off their hands, they are not in a position to meet these school book agents. Then. Mr. President, there is another thing to which I wish to call attention. It is known to members on this floor, and it is known to every man, that, whether right or wrong, whether jtistly or unjustly, there is a feeling of jealousy in the country people to a greater or less extent toward the cities. Xow, why make a distinction between the counties and the cities in the fundamental law of the land, unless there be an absolute necessity for it? This goes out, and people say, "Here, they will not let us select our text-books, and yet they give cities the right to select their text-books." They consider it a discrimination that ought not to be made. If there is an absolute 1826 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. necesisity for making this discrimination, for the protection of the rights and interests of the people living in the cities and the people living in the counties, I would vote for it heartily; but when there is no necessity for it, and when the amendment of the gentleman from Richmiond places the cities and the counties upon the same footing and yet leaves this matter in the hands of the board which this Convention has consti- tuted, let me ask you, are you willing to trust this board which you have selected, which you consider the very best that could be selected, composed of men of learning and of comprehensive intelligence, to select the books for both the cities and the counties under the amendment offered by the gentleman from Richmond, that this board should have an eye to the interests of the schools in the country and in the city? Certainly that is all that is necessary, and will not that discrimination be invoked, and will it not be exercised wisely and discreetly? If the board sees that it is best to leave this matter to the city boards to select their books they will do it. They can do it under this regulation, and at the same time there will be nothing that will squint at any discrimination or any distinction between the country and the cities. It seems to me that is a very desirable end. I, therefore, hope the members of the Convention will support cordially the amendment offered by the gentleman from Richmond. The President: The question is on agreeing to the amendment proposed by the gentleman from Albemarle (Mr. Lindsay) as modified by the gentleman from Richmond (Mr. Meredith). The question having been taken, the result was announced — ayes, 4G; noes, 37. The amendment was agreed to. Mr. James W. Gordon: I offer the following substitute for sub-section 4: It shall provide for the method of selecting text-books and educational appliances for use in the public free schools of the State. Mr. President, I have just a word to say in regard to that. It has been provided in the second section of this article that the supervision of the free school system shall be vested in the State Board of Education which is therein constituted. It seems to me that the selection of text-bcoks is a matter of administration, and we should leave tc- the officers in whom we have vested the public free school system the management of it. It may very well happen, Mr. President, that in some counties and cities of the State it would be wise to leave the selection of these books and appliances to local boa,rds. In other cases it might be proper that the Board of Education itself should exercise that power. This is not a subject, it seems to me, that should be made inflexible by constitutional provisions. It is one of those administrative functions about which there should be some elasticity. After the most extended debate here we have constituted this Board of Education and have provided for what we believe to be an impartial, high-minded and educated set of gentlemen to perform the important duty of managing the public free school system of the State. Now, if we cannot trust those gentlemen to perform the function of legislating as to how text-books and appliances shall be chosen, it seems to me it was absolute folly for us to constitute that board at all. There is just one other point, Mr. President, upon which I desire to touch. Refer- ence has been made to the importunity with which these local boards are besieged by the book agents. Mr. Meredith: Do I understand the object of your resolution is to allow the State Board to select the text-books, or, if it shall see fit, to allow the county school boards to select tnem? Mr. James W. Gordon: I wa^~^ -^t whole matter of legislation left in the hands of the State Board of Education. I think it is an administrative question that ought to be left in their hands. I was about to say that if it should turn out in practice that the selection of the books by the State Board of Education is not a wise thing, then the board will have DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. 18-27 it in its power to change that method, if they find that ihe needs of Augusta county. Rockingham county or Accomac county require that the boards of education in those counties should select the books, then tney would have the right to give that power. If they found it was necessary for the best interests of the public free schools of Richmond that the Richmond board should have that power they could give it to the Richmond board, or they could change the method from time to time as the exigencies of the case or the importunities of the book agents might dictate. It seems to me we ought to leave in the hands of the board the power to legislate upon this question, and not attempt to settle it in the Constittition so that it cannot be altered. Mr. Wescott. Mr. President, and gentlemen of the Convention, I shall intrude my- self upon your attention for the briefest possible space. I rise to protest against the adoption of the substitute offered by the gentlman from Richmond (Mr. Gordon), and will only occupy your time in so far as necessary to point out that which I hope is obvious to every member of this body. If there has been any one thing determined as the undenied sentiment of this body, gentlemen, by the extensive discussion and frequent votes upon this question, it is the proposition that the consensus of opinion of a large majority of the members of this body is that this power of local selection of school books and appliances in the counties should not be left to the local boards; and it has been recently determined to be the sence of this body that in the cities it should be left to the selection of local boards of the cities. AATiat is the effect of the adoption of the substitute offered by the gentleman from Richmond if it is not to empower this State board to establish as one of its regulations the provision that the selection shall be relegated to the county local boards — the very proposition that has been repeatedly repudiated by this body? The President: The question is on agreeing to the amendment in the nature of a substitute offered by the gentleman from Richmond city (Mr. Gordon). Therefore, without detaining yoti longer, gentleman, I do most earnestly hope that no favorable action will be taken upon the substitute of the gentleman from Richmond. The amendment was rejected. The President: The question recurs on the adoption of the fourth sub-section of Section 4. Sub-section 4 was adopted. The President: The Secretary will read the fifth sub-section. Fifth It shall appoint a board of directors consisting of five members, who shall serve without compensation, in which shall be vested the management of the State library, and the appointment of a librarian and other employees therefor, stibject to such rules and regulations as the General Assembly shall prescribe. Mr. Watson: Mr. President, the report of the committee does not provide for the control of the law library, which is a part of the State library, but which has here tofore been under the control of the Court of Appeals. I think it was an oversight of the committee to have included that T\''ithin the management of the other books of the library: and, assuming that to be so, I desire to offer the following resolution. In line 40. after the word "prescribed." insert the following: "The Law Library shall bo under the control of the Court of Appeals." The amendment was agreed to. The fifth sub-section was adopted. The President: The question is on agreeing to the adoption of Section 4 of the report of the committee, as amended. Section 4 was adopted. The President: The Secretary will read Section 5. 1828 DEBATES OF THE CON"STITUTIO]SrAL CONVENTION" OF VIRGINIA. Sec. 5. Each magisterial district shall constitute a separate school district, unless otherwise provided by law. In each school district there shall be elected by the people three school trustees, whose term of office shall be four years: Provided, that in cities and towns constituting separate school districts school trustees shall be elected or appointed, as may be provided by law. Mr. Mcliwaine: I desire to call the special attention of the members of the Con- vention to this section. Perhaps, sir, in the committee I showed more interest in this section than in any other one. There are two great evils connected with the public school system in the counties. The first is the existence in a large number of the coun- ties of what may be called nepotism, growing out of the method of appointing the school trustees. When they are appointed they are generally continued in their posi- tions, and in a large number of the counties they have used their power of the appoint- ment of teachers, so as. in many cases to put incompetent teachers in the schools — their children, their nieces and nephews — and at times their more remote relations. This evil must be cured if the public school system is to be efficient. Another great trouble with the public school system in the counties is the multipli- cation of school-houses . This, I understand, holds not only in Eastern Virginia, but to a considerable extent in the Valley, and perhaps in some of the mountain counties, but I know of cases where school-houses for white children are put within a mile or a mile and a half of each .other. The effect of that ia to multiply the number of teachers, and to diminish the salary that is paid tO' them, and consequently their efficiency. I know one place in my own county where there are two schools one mile apart, and another school a mile and a half from the first. In the olden time our boys used to walk from three to five miles to school. I have known young men whO' have walked to our college from three and a half to four and a half miles every day, and have been as regular and as good students as any connected with the institution, and four of them I have in my mind now who have graduated and are filling places of extensive usefulness. I believe one of the vices of the common school system is through the trustees placing schoolsi in order tO' suit themselves, their relatives or their friends, irrespective of the interests of the people at large. Wliat has the appointment of trustees to do with it? It has been noticed by the gentlemen of the Convention that I have never talked much about the people. I believe myself to stand on this floor asi the representative of the people, to do what, in my best judgment, is for their welfare; and having done this, I think I have served the people well; but, sir, there are some things that the people can control far better than any other agency, and I think this is one of the cases, and that the only solution of the question is to make the s,chool tmstees elective by the people, so that if the trustees do not discharge their duties faithfully, if they abuse that tnist which is committed to them, they can be turned out of office and efficient and useful men put in their stead. I have explained to you the ground on which I desire to see this section passed and I will not detain you with one word more. Mr. Hooker: I move to amend Section 5 by striking out, in line 3, the words, "elected by the people," and Siubstituting the words, "selected in a manner provided by law," and in line 5 of that section, beginning with the word "provided," strike out all the remainder of the section. The section would then read: Each magisterial district shall constitute a separate school district unless otherwise provided by law. In each school district there shall be selected in a manner provided by law three school trustees, whose term of office shall be four years. Mr. Thornton: I wish to state that, being a member of the Committee on Educa- tion, I voted in that committee to elect the school tmstees, but I did so with the under- standing at the time that the matter would not be passed upon in Convention until the question of franchise had been settled and disposed of. I wish to state that, in the- condition of affairs now existing, I shall vote against the report made by the committee DEBATES OF THE COXSTITUTIOXAL COXVENTIOX OF TIRGIXIA. 1829 lor this reason. I am informed by gentlemen on the floor that in the present condi- tion of affairs, although it is claimed that the white people control absolutely their local affairs throughout the State, it is a mistake, and that if this report is adopted, as presented here, there are a number of counties in the State in which Vv^e will have negro trustees. That is a condition of affairs that is abhorrent, and for that reason I believe it would be wiser and better to adopt the amendment of the gentleman from Patrick so as to adjust the matter to suit the different conditions that exist throughout the State. For that reason I shall vote against the report of the committee. I endeavored to ^et the matter passed by, I voted that it might be passed by, but the Convention saw- proper to refuse to pass by, and in the present condition of affairs, I believe we would be doing an injustice to the white people of the State to undertake to place the elect- tion of trustees in the hands of the people. Mr. Keezell: Mr. President, I hope it will be the pleasure of the Convention to adopt the amendment of the gentleman from Patrick. It seems to me we ought to do this, especially in view of the conditions with wSich we are faced in reference to what the electorate may be. If we were to adopt either method here now, and say trustees should be elected for four years hy the people, or provide that they should be appointed in a certain way, we would be tied fast to it for all time, whether the method adopted worked well or not. It seems to me it would be wist to have a certain amount of elasticity by leaving this matter in the hands of the General Assembly, so that it may adopt, with all the lights before it and w^hich we cannot have now, a provision that will be for the best interests of the public free schools of the State. The position I occupy in reference to the matter is, that if we could have an election in the counties for school trustees divorced from all other elections, in which simply the fitness of the school trustees came up, then I would be in favor of having an election, but if we have an election in which the school trustees are btit a mere fag-end of the general election for State, county and district officers, and all that sort of thing, and the fitness of the school trustees is lost sight of to a very great extent, then I would not be in favor of electing them. If we put in the Constitution a provision that they are bound to elect in the counties, the natural sequence of it will be that they will be elected at the time of the four-year elections, when we are electing all other State and county ofRcers. I think that would be unwise. It seems to me it would be the part of wisdom to leave this matter to the Legislature, so that it may provide for the election in such way as it thinks proper; or, if it wants to have them appointed, for good and sufficient reasons, it can provide a proper method for their appointment, Mr. Eggleston: Mr. President, I endorse everything that has been said by the gentleman from Rockingham on this subject, and will add that, as the matter now stands, we would not only be liable, but likely, to have negro school trustees in a good many districts in the State, if the trustees are to be elected by the people. I think we certainly ought not to vote to elect them in that manner until the franchise matter is disposed of. It seems to me that what the gentleman says in regard to mixing up these elections of school trustees with the other elections is a very satisfactory argument why it should not be done. I also desire to suggest that the term of office ought to be left with the Legislature. As it is, under the law now, each of the three trustees is appointed for three years. Under that arrangement one new trustee goes in every year, leaving the majority of the board always of experienced men. It seems to me that is a wise provision; and if the gentleman would allow an amendment to fix the time of office, I would suggest the words "to be prescribed by law." Mr. Hooker: I accept that amendment. Mr. Mcllwaine: Mr. President, I have no personal objection to that. I am one of the members who have great confidence in the Legislature of Virginia as representing 1830 DEBATES OE THE COXSTITUTIOIvrAL CONVEITTION OF VlRGIJiTIA. the people of Virginia. I believe if the people v/ant this method, after the new Con- stitution is adopted, the Legislature will give them what they want. Mr. Summers: Mr. President, I am opposed to the amendment. If there is, or ever will be, in Virginia a deliberative body that should be respected, it is this body. I address this Convention as the most sensible, deliberative body that will ever be held in Virginia. I wish to say further that I am no dodger. If the fact is to be known that the people are to have no rights in the State of Virginia, I want to know it. I have been in war and I have been in peace. I am always ready to state my views and vote in accordance with them. Gentlemen, we have whipped the white people over the heads of the negroes in Virginia until we leave the Constitutional Convention with an oligarchy. We have up to this point declined to elect anybody, and now we come down to a little town- ship office. Is there a man going to get up in the Convention to stop it? You cannot satisfy the people of Virginia by taking from yourself a disagreeable burden and throv/ing it upon an unknown future, and it is not manhood so to act. That is my view, and that is the voice of the white people of Virginia. We have debarred them of every right in Virginia by whipping them over the heads of the negro; and every man in this Convention knows that there is no negro in Virginia who has an office, or if he wants it, could get it. We see here represented from the darkest portion of Virginia the strongest Democrats — no: not Democrats, because that is an abuse of the term; men who are in favor of robbing the white men of Virginia of every privilege that is known to them. You cannot fool the people. You have granted them no privilege, and now, on the question of a little township officer, come out like men and show a'Ou are in favor of disfranchising them. What does your suffrage mean? We do not need any suffrage here, because there is nobody to vote for. What interest have we in the suffrage of Virginia, if you even take the election of trustees from the people? I do not care any- thing about it, because there is nobody to elect. Now, gentlemen, come forv\^ard like men and vote your sentiments and say that the poor white man and the negro shall have no rights in Virginia, so that they may emigrate to a richer and more fertile and liberty-loving soil. The President: The question is on the amendment offered by the gentleman from Patrick (Mr. Hooker). The ayes and noes were ordered, and being taken, resulted — ayes, 58; noes, 25 — as follows : Ayes — Messrs. Allen, W. A. Anderson, Ayers, Barham, Bouldin, Brooke, Brown, Cameron, P. W. Campbell, Carter, Cobb, Crismond, Dunaway, Eggleston, Epes, Fairfax, Fletcher, Garnett, Gilmore, Glass, James W. Gordon, Gregory, Hamilton. Hancock, Hardy, Hatton, Hooker, Hunton, Ingram, Claggett B. Jones, G. W. Jones, Keezell. Kendall, Lawson, Mcllwaine, Meredith, Miller, Moncure, R. Walton Moore, Orr, Parks, Pollard, Portlock, Rives, Robertson, Tarry, Thom, Thornton, Turnbull. Waddill, Walker, Watson, Wescott, Wise, AVithers, Wysor, Yancey and the President — 58. Noes — Messrs. Barbour, Thomas H. Barnes, Boaz, Bristow, Clarence J. Campbell, Chapman, Davis, Earman, Flood, Gillespie, B. T. Gordon, R. L. Gordon, Lincoln, Lindsay, Lovell, Marshall, Mundy, O'Flaherty, Pedigo, Phillips, Quaries, Richmond, Stuart, Sum- mers and Walter — 25. The amendment was agreed to. Mr. Mcllwaine: I move that Section 5 of the report be adopted. Section 5 v/as adopted. Mr. Meredith: I offer the following: The General Assembly shall have the power at any time after the expiration of the first term of the Superintendent of Public Instruction under this Constitution to require, by a vote of two-thirds of the members elected to each house that such officer shall be elected by the State Board of Education. JEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. 1831 Mr. President, I have no apologA^ to make for my persistency in this matter. I believe the importance of the subject is a sufficient justification; but I am aware that this matter has been very thoroughly discussed, and I shall not detain the Convention in discussing the matter except to call attention to the difference between the proposi- tion as now made and that which has been made. If we refuse to pass this the hands of the General Assembly are tied absolutely as to the manner of the selection of a Superintendent of Public Instruction. Y\e cannot get away from it except by a constitutional amendment. It is a new matter with us. It may be a very dangerous and injurious matter with us. We simply propose by this amendment that it may be put in the hands of the Legislature to make a change if it shall see fit. and we require a two-thirds vote upon that proposition. If you have confidence in the Legislature as the representatives of the people, it does seem to me you can at least put that pov\-er in it to allow it to establish, by a two-thirds vote, as to whether this thing is an evil or not. That is the whole proposition. I adopt the language of the gentleman from Rockingham (Mr. Keezeil) when he was discussing just now the election of school trustees. I do not doubt you feel guilty. That is evidenced by your rising so promply. (Laughter.) I say I Avill adopt the language of the gentleman from Rockingham, in discussing the question of the election of trustees, that it is a very dangerous thing to put in the Constitution specifically how they shall be elected, but that there ought to be left to the Legislature some power to change the method of election if it shall see fit. :\Ir. Keezeil: I simply wish to ask the gentleman whether or not he v^ould be willing to allow the Legislature to revise and remodel the whole board if it should prove unsatisfactory? Mr. Meredith: I unhesitatingly say I would not. There is no inconsistency in saying that under the Constitution the superintendent shall be elected by the people, with the proviso that if, after the expfration of the first term of office of superintendent, the General Assembly, by a two-thirds vo"e, shall say that is unwise and shall remedy it by requiring him to be elected by the board. I wish to ask the gentlemen whether they are prepared to say they are perfectly certain that the selection of Superintendent of Public Instruction by the people is a wise measure, or whether it is not a test matter — whether we are not simply trj'ing to see whether it is wise. If they are at all doubtful on a matter of that kind — and it does seem to me a man must have some doubt about it — they must leave some loophole by which to escape, and at the same time throw around it such safeguards as will prevent the overturning of this provision, imless there is some expression of the people that would seem decisive on it. That safeguard is given by requiring that there shall be a two-thirds vote of the General Assembly. Mr. Keezeil: Mr. President, I desire to knov/ why it is the gentleman insists that he shall apply his remedy only to the Superintendent of Public Instruction, who is to be elected by the people, and is not willing to let his amendment apply to the representatives of these higher institutions, who are elected in a way not subject to the revision of the people at all. Mr. Meredith: I am influenced by exactly the reason that induced the gentleman from Rockingham to vote for the amendment offered by the gentleman from Patrick (Mr. Hooker) as to the selection of school trustees. It is a political election of which I am afraid. Th^t is what moves 3^011 and that is what moves me. I fear this thing may get into the hands of some man who wants it for the office and the salary attached to it; and the same thing that moves you to vote that the school trustees should not be elected by the people, who know personally every one of ^Ir.em. nromnts me to say that the people of the State of Virginia ought not to be required to select a Superin- tendent of Public Instruction — a man of whom they perhaps never heard in their lives The danger is greater in regard to the Superintendent of Public Instruction than it is in regard to school trustees. I ask that you give to the people of Virginia an oppor- 1832 DEBATES OF THE CON'STITUTIOXAL COis'YEXTION OF VIRGINIA. tunity to escape from this evil, if it be an evil, and that that provision shall be ex- pressed in Siiich a way that you may feel certain as to the evil of it by requiring a two-thirds vote of the Legislature to correct it. Mr. Flood: Does the gentleman think that would be a good provision in reference to the county courts, if after four years the court system was not satisfactory, the Legislature by a two-thirds majority could re-establish it? I mean the court system established by the Constitution. If it is not satisfactory, do you think the Legislature should have the authority, by a two-thirds vote, to re-establish the county court system? Mr. Meredith: I have a very high regard for the intelligence of the gentleman from Appomattox. It seems to me if he heard my reply to the gentleman from Rock- ingham (Mr. Keezell) he would not have asked the question. One is as to the forma- tion of a judicial system. The other is a question of a political election. Mr. Flood: I did not know the question had been asked before. Mr. Meredith: Yes, sir; that question was asked me, not as to that, but as to the constitution of the board. What I am afraid of is the same thing that moved these gentlemen just a few moments ago to accept the amendment of the gentleman from Patrick — a very wise suggestion — to put in there some protection if this thing should prove to be evil. Yoii are stronger in regard to the Superintendent of Public Instruc- tion than you are as to school trustees. You start out v/ith the principle that he shall "be elected by the people. That is determined. All I ask is that you will have some loophole of escape if you find it is an evil, if it becomes simply a political football; and I ask all the gentlemen not to be influenced by this thing as to the constitution of that iDoard. That board has been constituted by the Convention, and it is so constituted that, I respectfully submit, the danger of which gentlemen have spoken, of it being independent of the people, does not exist with one county and one city superintendent with the Governor and Attorney-General on that board, and then three men to be selected from the suggestions made by the board of visitors or boards of trustees of the different educational institutions. I simply urge that we have an opportunity to get rid of this thing if it shall be required. I ask, gentlemen, if I have not, in this amendment, given the amplest pro tection by requiring that that thing shall not be done except by a two-thirds vote of the members elected to each house? It seems to me we have all the safeguards and at the same time an opportunity of escape from what may be an evil. The President: The question is on the amendment offered by the gentleman from Richmond city (Mr. Meredith). Mr. R. Walton Moore: On this question I am paired with the gentleman from IS^ottoway (Mr. Watson). If he were present he would vote yea and I should vote nay. The question having been taken the result was^ announced, ayes, 40; noes, 43, a« follows: Ayes — Messrs. Allen, W. A. Anderson, Ayers, Barbour, Thomas H. Barnes, Brooke, Cameron, Carter, Chapman, Cobb, Crismond, Epes, Fairfax, Gilmore, Glass, James W. Gordon, Hamilton, Hardy, Hatton, Hunton, Ingram, Claggett B. Jones, Kendall, Lawson, Lincoln. Mcllwaine, Meredith, Orr, Pollard, Portlock, Rives, Robertson, Thom, Thornton, Turnbull, Walker, Wescott, Wise, Wysor and the President — 40. Noes — Messrs. Barham, Manly H. B'arnes, Blair, Boaz, Bouldin, Bristow, Brown, Clarence J. Campbell, P. W. Campbell, Davis, Dunaway, Earman, Eggleston, Fletcher, Flood, Garnett, Gillespie, B. T. Gordon, R. L. Gordon, Gregory, Hancock, Hooker, G. W. Jones, Keezeil, Lindsay, Lovell, Marshall, Miller, Moncure, Mundy, O^Flaherty, Parks. Pedigo, Phillips, Quarles, Richmond, Stuart, Summers, Tarry, Waddill, Walter, Withers and Yancey — 43. The amendment was rejected. Section 6 was then read: Sec. 6. Tne General Assembly shall set apart, as a permanent and perpetual literary fund, the present literary funds of the Stace; the proceeds of all public lands donated by DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OE VIEGIXIA. 1S33 Congress for public free school purposes; of all escheated property; of all waste and un- appropriated lands; of all property accruing to tne State by forfeiture, and all fines col- lected for offenses committed against the State, and such other sums as the General Assembly may appropriate. Mr. Turnbull: I move to strike out of that section, in lines 6 and 7, the words "and all fines for offences committed against the State."' Mr. President, I wish to say that my reason for offering that amendment is this: One of the great expenses of the State is that required in prosecuting criminals, in order to preserve the integrity of the State as well as to protect the homes of the citizens. The position I take in reference to the matter is that the fines collected from that source, which are the result of these prosecutions, should go to reimburse the State for the amount paid out in the shape of costs in these prosecutions, and that that fund, coming in the shape of fines, should not be diverted in this way and applied and invested permanently as a school fund, the interest upon which only is applied to the support of the public schools. In other words, in a nutshell we have this kind of business pro'position : Twenty-five thousand dollars, which is the amount of fines collected generally in each year, shall not be applied to the support of the public schools, but shall be invested at a rate of interest of three per cent., and the interest only applied to the support of the public schools. If that kind of business proposition were submitted to any sort of business man wotild he accept it for a minute? He would not. There is no question about the fact that the State of Virginia has made up its mind, properly, to support the public schools. Then, I ask what reason is there that a part of the funds which should go to reimburse the State for criminal expenses should be invested at three per cent? In other words, why should S2.5.000 a year of my money be invested at three per cent? The proposition that is put to the people of the State is that S2.5,000 of their money shall be taken out of their pockets each year, by way of taxation, and invested at three per cent., and the three per cent, applied to the support of the public schools. I say that is wrong. I hope the members of the Convention will think about that as a btisiness proposi- tion. Ask yourselves the question, gentlemen, how many of your constituents want ■S25.000 of their money invested every year, and the interest at three per cent, to go to the support of the public free schools, when they have made up their minds to be taxed sufficiently to support the public free schools without having this fund applied in that way? I do hope the Convention will adopt the amendment proposed by me, for the reason that it is not going to injure the public schools. I am as much in faA'or of the public schools as any man in Virginia: but when you raise a fund for the public school system I want it to be a fimd not diverted from some other proper source, but a fund that is put down for that purpose. To take this money that comes in the shape of fines and apply the interest on it at three per cent, to the public schools is wrong, because that amount ought to be reimbursed to the State for the criminal expenses incurred in prosecuting criminals. The President: The question is on the amendment proposed by the gentleman from Brtmswick Olv. Turnbull). The result was announced — ayes. :34: noes 40. The amendment was rejected. The President: The question is on agreeing to the adoption of Section 6 of the report. Section G was adopted. The President: The Secretary will read Section 7. Sec. 7. The General Assembly shall apply the annual interest on the literary fund; that portion of the capitation tax provided for in the Constitution to be paid into the State treasury, and an annual tax on property of not less than one nor more than five mills on the dollar to the public free schools of the primary and grammar grades, for the equal 116— Const. Deb. 1834 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA.. benefit of all of the people of the State, to be apportioned on a oasis of school population; the number of children between the ages of seven and twenty years in each school district being the basis of such apportionment. Provision shall be made to supply children at- tending the public free schools with necessary text-books in cases where the parent or guardian is unable by reason of poverty, to furnish them. Mr. Keezell: I offer the following amendment to that section: Add after the word "apportionment," in line 10, the following: "Provided, that incase the subjects of State taxation shall be made separate from the subjects of city and county taxation, the General Assembly may otherwise provide for a fixed appropriation of State revenue to the support of the public schools not less than that provided in this section." Mr. President, this amendment is offered not in any way to effect the amount of money that is now set apart by the Constitution for the public free schools, but the Committee on Taxation and Finance has investigated and discussed during the six or seven months we have been in session the feasibility of separating the subjects of taxation on which the State shall receive revenue from those subjects on which the cities and counties shall derive their revenue. I, perhaps, will betray no secret if I say that the Committee on Taxation and Finance will very likely not report in favor of a proposition of this sort; not that they do not thoroughly indorse the idea — at least, that is my understanding — but because at the present time it is not regarded as possible to do so in fairness to all sections and possible to separate the sources of revenue for the State from the sources of revenue for cities and counties. At some future day, and I hope in the very far distant future, it. may be provided for cities and counties in such a way that real estate and personal property may be relieved from State taxation, and let the revenue necessary for the State government be derived from other sources which dO' not depend upon the unequal assessment to which real estate and personal property are subject. We all recognize that, if we were able to do this now, we w^ould settle this vexed question about the inequality of assessment of real estate and personal property in the various sections of the Commonwealth, and do away with any necessity that may be suggested by anybody for a board of equalization, or anything of that kind. My amendment simply provides that if at some future day it shall be deemed feasible by the General Assembly to divide the subjects of taxation, then we will not be prevented from doing it by the fact that the Constitution provides that we shall set aside not less than one nor more than five mills of the tax upon real estate and personal property to the public free school of the State, but that an amount equal to this sum may be provided from some other source for them. Gentlemen will have noticed within the alst few days, certainly within the last week, that the incoming Governor of Ohio, Governor Nash, has recommended to the Ohio Legislature the doing of the very thing which the Finance Committee has had in contemplation— the separation of the sources of State and city and county taxation, and the relieving of real estate and personal property from any State tax. My amend- ment simply meets that contingency, if it should ever arise, without the necessity of having to have a constitutional amendment. (At this point Mr. Ajers took the chair as Presiding officer.) The Presiding Officer: The question is on agreeing to the amendment offered by the gentleman from Rockingham (Mr. Keezell). The amendment was agreed to. Mr. O'Flaherty: I move to amend, in line 9, by inserting "one" after the word **twenty," so as to read: The number of children between the ages of seven and twenty-one years in each school district being the basis of such apportionment. Mr. President, I understand that has been the rule heretofore. The present pro- DEBATES OF THE COXSTITUTIOXAL COXVENTIOX OF VIRGINIA. 1835 vision cuts down the apportionment in a way that affects some of the rural districts. Oftentimes I find that young men desire to get started in the public schools late in life and they ought to be permitted to attend school. Those last years, are the most im- portant to them. No good reason has been given me why the age was cut down. If there is any reason why it snould be cut down I have no objection; but it does seem to me that the law should remain as it is now and that the apportionment should be fixed on that basis. Mr. Mcllwaine: Mr. President, there was what appeared to the committee to be a good reason for that provision. There are very few persons of twentj'-one years of age who attend the primary and grammar schools, and those who do are generally more of an incubus on the school than a benefit to themselves. Again, it makes it appear that there are a great many more of a school age than there really are, those of twenty-one years of age being numbered in the school population. I do not think it works any hardship anywhere, and I hope it will be left to stand as it it. Mr. O'Flaherty: I desire to ask the gentleman what difference it makes if it does appear in the waj' he suggests. The money goes to the people anyhow. Mr. Mcllwaine: The difiiculty is in having an immense number of persons of school age absent from the school house and so few in course of education. The amendment was rejected. Mr. Mcllwaine: I move the adoption of Section 7. Section 7 was adopted. Section 8 was read and adopted. The Presiding Oflicer: The Secretary will read Section 9 of the report. Sec. 9. The General Assembly may provide for the compulsory education of children between the ages of eight and thirteen years, except such as are weak in body and mind, or can read and write, or are attending private schools, or that are excused for cause by the district school trustees. INIr. Garnett: I move to strike the section out. Mr. Mcllwaine: ^Mr. President, I hope the Convention will not strike out the section. A provision like this is embraced in every Constitution, so far as. I know, in the United States. Thirty-two of the States in the Union, and every European state, so far as I am informed, have adopted in their Constitution compulsory education. The only Southern States that have adopted compulsory education are Kentucky and West Virginia, but all the Northern States have adopted it. This section does not adopt it, but simply puts it into the hands of the General Assembly to provide compulsory education if it sees fit to do so. I wish to state, ]\Ir. President, that I have had a considerable number of letters on this subject from gentlemen who are very much interested in it. I made a little speech on the subject when the matter was before the Convention before, and I dislike very much to repeat myself or to take up one moment of the time of the Convention, but I am sure it will be a mistake not to leave this power in the hands of the General Assembly. Mr. O'Flahertv: AVould not the effect of this be to compel us to open schools in districts where we would not have to open them were it not for this provision of com- pulsory education, in districts where there are none but negroes, and compel them to be educated at the expense of the white man? IMr. Mcllwaine: That is a question for the General Assembly to decide. Mr. Bouldin: Mr. President, I hope it will be the pleasure of this body to strike out this section. I think, sir, the word "may" must be construed here as in public statues as meaning "shall" and that there will be no discretion left in the Legislature, but it will be compelled to provide for compulsory education. Mr. Glass: I should like to call my friend's attention to the fact that in the present Constitution we have this requirement: "The General Assembly may enact 1836 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. laws to prevent parents and guardians from allowing their children and wards to grow up in ignorance," and that has never been construed as mandatory upon the General Assembly. Mr. Bouldin: Very fortunately it has never been acted on at all, and, therefore, never construed, so far ts I know. Mr. Barbour: Suppose the General Assembly would not act on it? How can you compel them to do so? Mr. Bouldin: I suppose that if they should refuse to act we could not compel them. I do not think, however, we should load the Constitution with bad provisions, the only security from the operation of which is the fact that the Legislature cannot be compelled to adopt them, if it refuses so to do. I understand it to be a recognized rule of construction that the word "may" used in public provisions like this means "shall," and if the General Assembly complies with the mandate of the Constilution, which I believe it always, will do, there will be no means by which that body can escape providing for compulsory education if this section is adopted. The people of the State do not want interference with their domestic matters; they do not wish the education of their children to be controlled and directed by the officers of the government. There is too much paternalism in the proposed system; it may suit the autocratic governments of Europe, but is wholly inconsistent with the spirit of the people of Virginia. We can safely leave to the parents the control and direction of the education of their children. I trust, Mr. President, that the provision will be stricken out. Mr. Thorn: Is there anything in this article of the Constitution, as proposed, to prevent the General Assembly from exercising that power if it should see fit, with- out such a constitutional provision? Mr. Bouldin: I think not, sir, but I do not think we ought to invite them to do it by putting it in the Constitution or making it mandatory upon them so to do. Mr. Thornton: I agree with the gentleman, but I wish to ask him whether, if the latter part of the language in reference to a pending private school were not in the Constitution, the Legislature might even require children attending private schools to attend the public schools? I am with you. I am opposed to putting in any of it except the fact that it restricts the Legislature, which, without restriction, might do what I have suggested. I am asking for information. I agree with you generally, but I believe that restriction will have a tendency to prevent the Legislature from requiring all children to attend these schools which otherwise they might do. Mr. Bouldin: I think, sir, the only redeeming feature in the section is that it is limited to a comparatively small class of children; but I want to take the hands of the government off those children and leave entirely to their parents the matter of looking after their education. I think that dut3^ can be safely entrusted to them, and that our people have not descended to that depth that they cannot be trusted with the direction of the education of their children. It seems to me, Mr. President, it is best for this body to leave these matters to the parents themselves and not engraft upon the constitution a measure that will authorize or suggest to the Legislature to provide for compulsory education. The people of the State are averse to compulsory education. They do not like the idea of having their family affairs controlled in this way; and I believe there are a few, if any, provisions of the proposed Constitution that will meet with less favor at the hands of the people than this one, providing for compulsory education. Mr. Parks: Mr. President, I rise to a parliamentary inquiry. The amendment as I understand it, is to strike out that section. As I understood the ruling of the Chair heretofore, where a motion to strike out is made and carried there can be no amendment offered to the section after that. That being the ruling, I would ask if it is in order now to offer an amendment which would perhaps obviate the dliRculty? I am frank to say I am in favor of striking it out entirely, but if no amendment is offered DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. 1837 now, and the motion is lost, then there can be no amendment, and I desire to offer an amendment now, if it is in order. The Presiding Officer: The question is on the amendment offered by the gentle- man from Page (Mr. Parks), which the Secretary will read. Insert after the word "may," in line 4, the words, "in its discretion," so it will read: "The General Assembly may in its discretion provide for compulsory education," etc. Mr. Dunaway: Mr. President, I shall vote against the amendment of the gentleman from Page, while I favor the sentiments that it is intended to convey. The word "may" does have a different meaning from the word "shall." We have used the word "may" in the construction of the article upon the Legislative Department — "the General As- sembly may" — and in various parts of the new Constitution. If this idea is to prevail we shall have to rescind the words "in its discretion," wherever we have the word "may" in the Constitution. I do not believe the contention which has been made by the gentleman to my left (Mr. Bouldin) is a just one, that the word "may" in the Constitution ever can be construed into a mandatory provision. I see no use for it. It is mere surplusage. It is adding useless words to what is going to be a very long Constitution anyhow, and I believe the word "may" means "maj- in its discretion." I shall, therefore, vote against the insertion of these unnecessary words. The amendment was agreed to. Mr. O'Flaherty: Mr. President, I now move to strike out "thirteen," in line 5, and insert "twelve" in lieu thereof. I wish to state very frankly that I shall vote for the motion to strike out of the gentleman from Mathews (Mr. Garnett) however this amendment of mine may go, but I want to get the age as. low as I can. I hope my amendment will be agreed to, and we can then vote on the motion to strike out. Mr. Mcllwaine: Mr. President, I hope the amendment will prevail. I think it is just and right, and I believe the ages between eight and twelve are those found in most of the school laws that have been adopted in regard to compulsory education. Mr. Mcllwaine: Mr. President, I just want to say a word before the vote is taken on striking out the section. It seems to me it would put the State of Virginia in a very bad attitude for this, Convention to refuse to have anything in the Constitution with a view in the future to bringing to accede to it those parents who are utterly indifferent to the education of their children. Mr. President, have gentlemen considered what it is for a parent to lay his hand upon his child and to deprive him of the poor privilege of learning to read and write? I do not want to detain the Convention, but it does seem to me that we are in danger of making a misstep. I do not believe the State of Virginia is at present in a condition where this Convention could properly pass such a law, but it may within a few years be in a condition that would make such a provision very necessary to the welfare of the people of the State. The gentleman from Halifax (Mr. Bouldin) has said that surely no parents can be so lost to the sense of the welfare of their children as to fail to do what they can for their education. Why, sir, if that gentleman knows what is going on within a few miles of his home, he must know that there are many parents who, this very day, are bringing up their children in absolute ignorance. I stated on this floor, I think, when the question was up before, and I will state it again, that one thing which has called my attention to this matter more strongly than ever before was an article in the Richmond Dispatch, taken from a Danville letter, in which it was stated there were scores and hundred of parents who had moved to the city of Danville in order to put their children into the cotton factory, and that those little things, from eight years of age upward, were day in and day out having their nervous and intellectual systems strained to the utmost tension, and being dwarfed in body and in mind in order that their parents might live in idleness while their children grow up ignoramuses and dangerous to society. 1838 DEBATES OE THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Mr. Booildin: Did I understand you correctly to say that the condition of the State of Virginia to-day is not such as would require a resort to; compulsory education? Mr. Mcllwaine: I said so. Mr. Bouldin: I agree with you about that. If, then, the conditions hereafter should require it could you not safely trus-t the Legislature tO' provide it? Mr. Mcllwaine: But in the meantime you cut out what has been in the Consti- tution for thirty years, and thus apparently give them your approval to their doing nothing. Now, sir, this condition acknowledgedly exists in Danville, and doubtless exists at other manufacturing centers in the State. Our State is rapidly becoming a manufac- turing State. The industries are increasing very much, and it does seem to me that so far from this Convention doing anything to put its disapproval upon it it ought at least to add the weight of its influence in bringing about a better state of things among this class of our population. Mr. Meredith: It seems to me there has been difficulty raised by a question asked by a gentleman from Norfolk (Mr. Thom). The question asked by him would intimate, and I rather think the gentleman from Halifax (Mr. Bouldin) agreed with him, that the Legislature would have this power without a constitutional provision. I am not prepared to say myself as to whether it would or not, but I very seriously doubt whether it would. Certainly it is that other States have found it necessary to put it in their consti- tutions, and there is very serious doubt whether you can have any power in the Legis- lature to interfere with personal liberty unless it is provided for by the Constitution. I am rather inclined to take that view of it. Therefore, think the intimation of the gentleman from Norfolk, that the Legislature would have this power without some constitutional provision, ought not to pass unchallenged. If there is a doubt as tdi that would it not be wiser on our part to simply give the Legislature the authority to do what it shall see fit. Personally I am in favor of the Legislature having that pov/er. children at early ages and putting them to work, which I think is a great crime against civilization. I can see the danger that is coming up among our manufacturing cities of taking of tlie gentleman from Fairfax I confess I thought at least there was some doubt on the question. He seems to have none, however; but I can but feel that, along with the rest of mankind, he sometimes is mistaken. In this regard I think we had better "bear the ills we have than fly to others we know not of." Therefore, I am in favor of the retention of the provision, and I submit we ought not to strike it out when we are in doubt as to whether the effect of it would not be to tie the hands of the Legislature, even if the necessity should hereafter occur. Mr. Bouldin: Do you consider yourself that, if stricken out, there would be any doubt about the power of the Legislature? Mr. Meredith: Personally I have very grave doubt. Upon the ground that I doubt if the Legislature has any right to interfere in matters of personal liberty, unless there may be something in the nature of police power for the suppression of crime. The Presiding Officer: The question is on agreeing to the motion of the gentle- man from Mathews (Mr. Garnett) to strike out Section 9. The vote being taken, resulted — ayes, 35; noes, 43. Mr. Garnett's motion was rejected. Mr. Mcllwaine: I move the adoption of Section 9. Section 9 was adopted. Section 10 was read and adopted. Section 11 was read and its consideration temporarily passed by. The Presiding Officer: The Secretary will read Section 12. Sec. 12. The General Assembly shall make provision for the maintenance of the DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 1839 University of Virginia, and of the Virginia Military Institute, by an annual appropriation not less than now provided by law. Mr. James W. Gordon: I move to strike out that section. Mr. O'Flaherty: Before that vote is put I want to offer the following amendment. Provided, however, that the appropriation to the University of Virginia shall never exceed one-tenth of the amount raised by the annual tax on property for public school purposes, nor shall the appropriation to the Virginia Military Institute exceed one-thir- tieth of said fund. Mr. President, I wish to say just one word in explanation of the amendment, and that is about the amount that is now received by both of those institutions. From conversations with some friends of the University I believe I am prepared to state they left me under the impression that they would be satisfied with this provision. It is a certain percentage of the amount raised by the annual property tax, and as the amount of taxes increase it would give them a greater amount of appropriation. It does not tie them to any special amount. There <,ught not to be any fixed amount appropriated for those institutions, and I think this provision ought to be acceptable to their friends.. I will say, very frankly, that I do not think any of them ought to go into the Con- stitution, but as the Committee of the Whole has voted that there shall be a fixed ap- propriation, and as the friends of the University are willing to accept this, I hope it will be accepted by those who take the same view. The Presiding Officer: The question is upon agreeing to the amendment offered by the gentleman from Warren (Mr. O'Flaherty). The amendment was rejected. The Presiding Officer: The question recurs upon the motion of the gentleman from the city of Richmond (Mr. Gordon), to strike out the section. The question having been taken, the result was announced — ayes, 44; noes, 34. Mr. Gordon's motion was agreed to. Mr. R. Walton Moore: Mr. President, I wish to propose an independent section: The Secretary read as follows: The General Assembly shall make provision for the maintenance of the University of Virginia by an annual appropriation not less than now provided by law. Mr. R. Walton Moore: Mr. President, it seems to me there is no change in the situation since we then voted that ought to induce a change in the attitude of the Con- vention towards the chief of the educational institutions of the State. The argument is unchanged, and since we voted the State press, to large extent, doubtless voicing public opinion, has signified its wann and enthusiastic approval of our action. There has been little expreSiSion of dissent. I voted a moment agO' with the friends of the Virginia Military Institute to retain the provision embracing both of these institutions. But that provision is defeated, and now I respectfully and earnestly beg the friends of the institute not to oppose the pending proposition, but to assist in placing the University in the Constitution and relieving it of the dangers to which it is now subjected and which have been so strongly and vividly set forth by my friend from Lynchburg (Mr. Glass). One word further. Permanency was a vital feature of the act which was passed in the winter of 1818, creating the University. The act provided that there should be so much annually paid out of the treasury for the permanent support of the new institu- tion. It provided a continuing appropriation. I appeal to the Convention to return td and emphasize the policy which was then declared, and make the appropriation perma- nent in the best possible way by writing it in the Constitution. Mr. Hamilton: I move as a substitute for the amendment of the gentleman from Fairfax the following: 1840 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. The General Assembly shall make provision for the maintenance of the Virginia Military Institute by an annual appropriation not less than now provided by law. The Presiding Officer: The question is upon the substitute offered by the gentle- man from Petersburg (Mr, Hamilton) to the amendment offered by the gentleman from Fairfax (Mr, Moore). The question having been taken, the result was announced — ayes, 11; noes, 62. Mr. James W. Gordon: Mr. President, I offer the following amendment to the section. The Secretary read as follows: Amend by inserting the words, "Virginia Military Institute and State Female Normal School," after the words, "University of Virginia." The Presiding Officer: The Chair thinks the proposed amendment is germane. The question is upon agreeing to the amendment offered by the gentleman from the city of Richmond (Mr. Gordon). Mr, Thorn: Rule 139 of Reed's Parliamentary Rules is as follows: If the amendment to strike out be decided in the affirmative, then the words stricken out definitely cease to be a part of the main question and cannot be reinstated in whole or in part; but the same words with others, or a part of the same words with others, may be inserted, provided they constitute substantially a new proposition. It seems to me, Mr. President, in view of the facts, this is conclusive authority that the motion to reconsider should prevail. Mr. Wysor: Mr. President, I think the ruling of the Chair is self-evidently right and proper. The propositions were put to the body conjunctively and it had no oppor- tunity at all to vote on them separately. I do not think the authority which has been quoted sustains the position of the gentleman, and I hope it may be the pleasure of the Chair to sustain his own ruling. The Presiding Officer: The Chair adheres to his ruling. The proposition as voted on included the two institutions together. It was the judgment of the Convention that the proposition providing for appropriations to both of these institutions should be rejected. Then the proposition was to separate them, which had not been demanded before. Mr. Thorn: I appeal from the decision of the Chair. The Presiding Officer: The gentleman from Norfolk (Mr. Thom) appeals from the decision of the Chair. The question is, shall the decision of the Chair stand as the judgment of the house? Mr. Thorn: Mr. President, it is with extreme reluctance that I make this appeal from the ruling of the Chair. But it seems to me this is a matter of the utmost import- ance, and that it ought to be decided upon the merits of the question, and not with reference to any views that gentleman may have on the pending proposition. If the rules which I hold in my hand be authority, and I suppose they are universally recog- nized as such, then they are definitely to the point that when an "amendment to strike out be decided in the affirmative, then the words stricken out definitely cease to be a part of the main question and cannot be reinstated in whole or in part " The hour of 2 o'clock having arrived, the Convention adjourned until to-morrow, Thursday, January 16, 1902, at 10 o'clock A. M. THURSDAY, January 16, 1902. The Convention met at 10 o'clock A. M. Prayer by Rev. George Cooper, D. D., of Richmond, DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. 1841 The President: The unfinished business is the appeal taken on yesterday from the ruling of the temporary occupant of the chair, and the gentleman from Norfolk city (Mr. Thorn) is entitled to the floor. The question having teen taken, the result was announced — ayes, 30; noes, 4G. The decision of the Chair was reversed. Mr. Boaz: Mr. President, I beg leave to offer the following as an independent section. The General Assembly shall provide of the support of the University of Virginia by an appropriation for each year out of the general revenues of the State of a sum of money amounting to not less than one-ninth of the sum arising from the tax on property appli- cable to public free schools for each year. Mr. President, I simply wish to explain what is the effect of that amendment. It provides for a minimum appropriation to the University of Virginia, being a sum not less than one-ninth of the amount derived from the taxes on property applicable to public school purposes for each year. Taking the year 1900, for example, the amount derived from the tax on property applicable to public school purposes for that year was $877,000. That includ-ed $377,000 of poll tax, which being deducted, leaves, $500,000, ninety per cent, of which" is applicable to public free school purposes, making $450,000. One-ninth of that is $50,000, exactly what the University is now receiving. If the revenues increase, the appropriation to the University may increase. It will not necessarily increase. This amendment fixes a minimum — not less than one-ninth. If the revenues decrease the appropriation of the University will decrease. I hope this will meet the views of some of the gentlemen who are averse to havinsr a fixed appropriation. This is a fluctuating, a floating appropriation. Mr. Eggleston: I do not think the gentleman from Albemarle (Mr. Boaz) is cor- rect when he says this amount cannot be raised. It fixes permanently that, no matter how much the revenue may increase which is appropriated to public free schools, the Universitj" shall get not less than one-ninth of it. If it runs up to a million dollars, the University under this amendment will be entitled to not less than one-ninth. You can- not cut it down less than one-ninth. While you can raise it as much as you please you cannot cut it down. Mr. Glass: I offer as an amendment to the proposition presented by the gentleman from Albemarle these words: Provided, That in no year shall the appropriation exceed the sum of $49,000. Mr. O'Flaherty: Mr. President, I wish to call attention to the fact that that is just exactly the reverse of the proposition which was offered and voted down yesterday, except that it was $50,000 and one-ninth. If, as has been stated, the amount shall be paid by the tax-payers of Virginia should be double what it is now the University of Virginia would get $100,000 the very next year, and you can never reduce it. I offered to provide a minimum, but the gentleman would not accept it. I offered to provide that the University should receive as a minimum one-ninth and as a maximum that it should never receive more than $50,000. They reverse the proposition now and I hope it will be voted down. The President: The Chair understands that the gentleman from Lynchburg (Mr. Glass) has withdrawn his amendment. The question recurs on the amendment offered by the gentleman from Albemarle (Mr. Boaz). Mr. James W. Gordon: I offer as an amendment to that section that there shall be a like appropriation made to the Virginia Military Institute of an amount not exceeding one-twentieth of such taxes. 1842 DEBATES OE THE CONSTITUTIONAL CONVENTION OE VIRGINIA. The President: The question is on the amendment offered by the gentleman from Richmond (Mr. Gordon). Mr. Keezell: Mr. President, it seems to me there is one objection to the form of this amendment. You will remember when we were discussing the question whether or not an additional alppropriation might be made to the public free schools in that clause of the Constitution, which provides for a tax of not less than one mill nor more than five mills on personal property and real estate, the gentleman from Richmond (Mr. Pollard) offered as an amendment to insert the words, "or such other sums as the General Assembly may appropriate," which was stricken out. The General Assembly has been appropriating each year $200,000 in addition to the tax of one mill on personal property and real estate. The effect of the refusal of the Convention to adopt the amendment of the gentleman from Richmond is that if we propose to give to the public free schools the same amount of money they now receive out of the public treasury it will be necessary to have not one mill but a mill and a half, possibly. In other words, we would have to increase the rate to 15 cents on the hundred dollars for free school purposes instead of 10 cents on the hundred dollars, which we are now pay- ing, and to reduce the rate for general State purposes from 30 cents to 25 cents. If we were to adopt the amendment of the gentleman from Albemarle, we would at once allow the University of Virginia and the Virginia Military Institute to participate in this $200,000, in addition to the one-ninth, which is based upon the idea of what is done now as an appropriation for the tax on personal property and real estate. It would in effect increase the appropriation one-third, making it $75,000 instead of $50,000. The amendment was rejected. The President: The question recurs on the amendment of the gentleman from Albemarle. Mr. Glass: I offer the following amendment. The Secretary read as follows: Add at the end of the proposed section the following: "Provided that the General Assembly may in any year limit the amount to be appropriated to the sum of $50,000." Mr. Boaz: Mr. President, I will accept that amendment. The question having been taken, the result was announced — Ayes, 39; noes, 39 — as follows : Ayes — Messrs. Allen, Ayres, Barbour, Thomas H. Barnes, Blair, -Boaz, Bouldin, Bris- tow, Brooke, Brown, P. W. Campbell, Carter, Cobb, Epes, Glass, Gregory, Hatton, Hunton, Ingram, Claggett B. Jones, Kendall, Lawson, Lindsay, Meredith, R. W^alton Moore, Pollard, Portlock, Quarles Rives, Roberston, Stuart, Thornton, Turnbull, Walker, Watson, Wescott, Willis, Wise and Wysor— 39. Noes — W. A. Anderson, Barham, Manly H. Barnes, Clarence J. Campbell, Crismond, Davis, Dunaway, Earman, Eggleston, Fairfax, Fletcher, Gilmore, Gillespie, R. L. Gordon, Gwyn, Hamilton, Hancock, Hardy, Hooker, G. W. Jones, Keezell, Lincoln, Marshall, Mcllwaine, Miller, Moncure, Mundy, O'Flaherty, Orr, Pedigo, Phillips, Richmond, Sum- mers, Tarry, Thom, Waddill, Walter, Withers and the President — 39. A motion to reconsider the vote was rejected — ayes, 41; noes, 41. The President: The Secretary will read Section 13. Sec. 13. Members of the boards of visitors or trustess of educational institutions, required by law to be appointed by the Genearl Assembly or the Governor, shall hold their position for the term of four years. Mr. Brown: I offer the following amendment to Section 13. In line 5, after the word "shall," strike out the rest of the section, and insert at the end the following: "Be appointed for term.s of four years; provided, that one-half of the first boards appointed under this Constitution shall be for two years." The object of the amendment is simply to strike out the words "hold that position DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF VIRGIXIA. for a term of four years," which might be construed to mean there shall be no reappoint- ments to these boards, and also to restore the present plan of appointing half the mem- bers of these boards for a term of tvro years and half of them for four years^, so that there shall always be in charge of these institutions hold-over men who are experienced in their management. It seems to me to be a proposition to which there should be no dissent. The members of the committee are unanimously in faA'or of the proposition. The amendment was agreed to. On motion of Mr. Brown the vote by which the amendment offered by him was adopted was received. The President: The Secretary will read the amendment as now offered. Strike out the words "hold their positions for the term of four years" and insert the w^ords "be appointed for terms of four years: Provided, that tne General Assembly may provide for different terms for the first boards appointed under this Constitution, so that there shall be hold-over members." The amendment was rejected. Mr. Mcllwaine: I move that Section 13 be adopted. Section 13 was adopted. Mr. William A. Anderson: Mr. President, I feel some diffidence in offering the amendment which I now propose to this article; but the matter is one of such import- tance, and the vote of the Convention upon yesterday was so close, that I think the proposition should be submitted for the judgment of members in the shape in which I have ventured to formulate it. I will read the amendment which I desire to submit to come in as an independent section: The General Assembly shall have the power at any time after the expiration of the first term of the Superintendent of Public Instruction under this Constitution to pro- vide, by a vote of two-thirds of the members elected to each house, that the Superin- tendent of Public Instruction shall be thereafter elected in such manner as the General Assembly may prescribe. If this amendment is adopted the General Assembly may provide that the General Assembly itself will thereafter select the Superintendent of Public Instruction: It may provide that the Governor may appoint, with the concurrence of the General Assembly the Superintendent of Public Instruction, or it may delegate to the Board of Public Instruction the power to select a Superintendent of Public Instruction. Mr. President, the far-reaching importance of the question involved in this pro- position is my apology- to the members of the Convention for presenting it to them for their consideration. Mr. President, if there is any office to be provided for by the new Constitution which should not be filled by a politician, in the Selection of the incumbent of which considerations of narrow partisan politics should not control the appointing power, in which the only consideration in the selection of the incumbent of the office should be fitness and possession of the high and rare qualifications necessary for the efficient discharge of its duties, it is the office of Superintendent of Public Instruction. It may be that political conventions or the people voting in primaries may not be influenced by considerations such as have been mentioned; but. Mr. President, the danger is that they will be. Another danger is that they will be controlled by geographical con- siderations. I venture to say that there are, perhaps, fifty men in the Commonwealth competent to discharge the duties of Governor of the Commonwealth to one who possesses the rare qualifications which the Superintendent of Public Instruction should possess. It is an office of importance equal to any in the gift of the people of the government of Virginia, and one which it is much more diffir^ult to fill than any other. If the right man to fill this most important position lives in the same county, in the same tov^m,. ISU DEBATES OF THE COXSTITUTIOXAL COXYEXTION" OF VIRGINIA. in the same house with the Governor, that man ought to be selected; but when you have political parties making their nominations, the supreme interest is in the selection of the head of the ticket, the nominee for Governor; and in primaries or in political Conventions, where results are often determined by political combinations, you will never find people selecting a nominee for Superintendent of Public Instruction from the same city, the same county, or the same tov\^n from which they select the nominee for Governor. Again, sir, the man ^ho can efficiently discharge the duties of a position like this must be a great educator, a great administrator, a man competent to deal with men of affairs. He must have executive ability. He mmst have qualities that are very rarely found. Any Commonwealth is fortunate which can produce a half dozen men com- petent, efficiently, to administer this great public institution with all of its ramifications and all of the vast powers that must be reposed in the head of this institution. Now, there is a great peril in this article as it stands which cannot be corrected unless some such provision as this is adopted. If it shall be found that the plan in the article as adopted does not work well, then the power should be vested somewhere to give a remedy; and we cannot put it in any safer hands than in the hands of the representatives of the people in the General Assembly. Mr. Keezell: Would he object to embodying in his proposition that if the other members of the board, the persons who represent the institutions, should not prove satisfactory they might be remodeled by the General Assembly? Mr. William A. Anderson: Mr. President, I was opposed to narrowing the selec- tion, to be made by the General Assembly, to the members of the faculties of the different institutions of the State; but that is a proposition that ought to stand on its own merits. It relates to another section of this article. I am perfectly willing to vest the whole control of that subject in the General Assembly, and I so voted. I think we ought to confer upon the General Assembly the right and the power to correct the evil that some of the wisest men in the Convention have pointed out as an immi- nent peril, if we adopt the Constitution in the shape in which this article now stands. Mr. Withers: Mr. President, I respectfully submit to the gentleman that the most complete answer to all his arguments is the gentleman himself. He has just been inducted into office hy virtue of the people of whom he now seems so much afraid. (Laughter.) , Mr. William A. Anderson: Mr. President, I am very much obliged to the gentle- man for his flattering allusion to myself, but I will say there are 100, perhaps 500, men in the State competent to be Attorney-General. I do not know five who are com- petent, efficiently, to discharge the duties of Superintendent of Public Instruction. The amendment proposed by Mr. Anderson was laid on the table — ayes., 43; noes. 30. The President: According to the understanding of the Chair that completes this report, except as to two matters — section 5, in which there is a motion pending to reconsider, and Section 11, which was passed by. The President: The special order is the report of the Committee on the Legisr lative Department. The Secretary v>ill read the first section. ARTICLE V. Section 1. Tne Legislative power of this State shall be vested in a General Assem- bly, which shall consist of a Senate and House of Delegates. Section 1 was adopted. The President: The Secretary will read Section 2. Sec. 2. The House of Delegates shall be elected quadrennially by the voters of the DEBATES OP THE COXSTITUTIOXAL COXVEXTIOX OE VIRGIXIA. 18-15 several cities and counties on the Tuesday succeeding the first Monday in November, cind shall consist of not more than 100 and not less than 90 members. Mr. Flood: I offer the following amendment to that section: The House of Delegates shall be elected biennially by the voters of the several cities and counties on the Tuesday succeeding the first IMonday in November, and shall consist of not more than 100 nor less than 90 members. The question having been taken, the result was annunced — ayes, 34; noes, o9 — as follows: Ayes — Messrs. Ayers, Boaz, Bouldin, Bristow, Brooke, Brown, Cameron, Clarence 3, Campbell, Bunaway, Earman, Eggleston, Epes, Fletcher, Flod, Garnett. Gillespie, Glass, Hamilton, Hancock, Hatton, Ingram, Keezell, Kendall, :Mundy. O'Flaherty, Pedigo, Rives, Summers, Thom, Waller, Watson, Wise, Wysor and the President — 34. Noes — Messrs. W. a. Anderson, Barbour, Barham, Manly H. Barnes, Thomas H. Barnes, Carter, Cobb, Crismond, Davis, Fairfax, B. T. Gordon, James W. Gordon, Gregory, Gwyn, Hooker, Hunton, Claggett B. Jones, Lawson, Lincoln, Lovell, Marshall, McIUaine, Meredith, Miller, Moncure, R. Walton Moore, Orr, Parks, Phillips, Robertson, Stuart, Tarry, Thornton, Turnbull, Waddill. Wescott, Willis. Withers and Yancey — 39. The following pairs were annotmced: Mr. Walker with Mr. Braxton; Mr. Allen with Mr. G. K. Anderson: :\Ir. Smith with Mr. Hardy; :\Ir. Harrison with :\Ir. Quarles; Mr. Pettit with :\Ir. Gilmore; Mr. Daniel with :\Ir. Lindsay; Mr. Hubbard with :\Ir. Pollard; Mv. Chapman with Mr. Richmond. The first named would have voted in the affirmative. The amendment was rejected. The President: The Secretary will read Section 3. Sec. 3. The Senate shall consist or not more than forty and not less than thirty- three members. They shall be elected for the term of four years in their respective districts. Each county, city and town of the respective districts shall, at the time of its first election of its delegate or delegates tinder this Constitution, vote for one or more Senators. Section 3 was adopted. Sections 5 and G were read and adopted. Mr. Barbour: I move to amend Section 5 by inserting the words "'and his quali- fications thereto" after the words "General Assembly,"' in line 17. That amendment was adopted in Committee of the Whole, but seems to have been overlooked. The amendment was agreed to. Mr. Flood offered the following amendment: In Section 7, line 3. at the end of the line, insert "two"' in place of "four."' In Sec- tion 7, in line 7, substitute "sixty" for "ninety."' In line 12 substitute "sixty"' for "ninety." Mr. Ingram: Mr. President and gentlemen of the Convention, in the "declaration against the company, to be entered as the twenty-first act"" of the Grand Assembly of Virginia, 1642, we read: "The present happiness is exemplified to us by the freedom of yearly assemblies warranted unto us by his Majestie's gracious instructions, and the legal trial per juries in all criminal and civil causes where it shall be demanded." And every student familiar with the political history of our Commonwealth knows that these yearly assemblies were continued after the foundation of the Republic until some few years ago, when, on account of our State debt and the impoverished condition of our treasury, biennial sessions of the Legislature were made necessary. And now, Mr. President, in the judgment of the Legislative Committee it is thought wise to provide for quadrennial sessions of the Legislature as being most conductive to the general welfare. This startling proposition is championed with great ability by mem- 1846 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. bers of this body on two grounds, as I recall their speeches — first, on the ground that too frequent legislation is dangerous, and, second, on the score of economy. The gen- tleman from Roanoke, who is ever frank and fair, in a very attractive speech gave his support to the proposition on the first ground, and instanced some examples of vicious legislation by our "General Assembly" in recent years. This argument, I most res.pect- fully submit, carried to its legitimate conclusion, would make it obligatory on us to abolish the Legislature altogether. This, of course, he did not mean, nor does he so intend. Per contra, much of the legislation has been wise and necessary, but to sustain the necessity of retaining the Legislative Department of a free government, precedents need not be cited or named. When Grenville, in 177G, cited the authority of divers cases to show that America might be taxed without representation, Pitt answered: "I come not here armed at all points with the statute books double-downed in dogs' ears: to defend the cause of liberty. I can acknowledge no veneration for any procedure, law or ordinance that is repugnant to reason or the first principles of our Constitution." Where burns among our sister States the lamp of experience to guide us in this most important matter? What haS) been their action in this regard? The chairman of the committee, the ac- complished gentlem.an from Fairfax, who represents on this floor the county of George Mason, and that, too, with conspicuous ability and never-falling courtsey, points us to the action of Alabama, and possibly, I do not now recollect, to one or two other States; but the great, I may say the unanimous action of all the States has been against the proposiiuon. Massachusetts, with its splendid record of safe, conservative and bene- ficial legislation, has annual sessions of ita legislature. This is the rule in the progres- sive States of the Union. Quadrennial, and even biennial, session are the exception. By following the experimental example of Alabama, I am reminded of the discourse of the great Fuller as to how far examples are to be followed. He mentions the abuse of them by those who, though they have room enough besides, yet delight to walk on a narrow bank near the sea, and have an itch to imitate these doubtful examples, wherein there is great danger of miscarrying. The argument I submit is not so much that the State would suffer from the lack of new laws that new conditions would demand, which would often occur, but rather, if the Legislature should enact unwise laws, the remedy would be in abeyance for four years. The answer to this, however, by the committee is that there would be extra sessions of the Legislature. This, in some instances, would be so; in many others it would not be SO'. Whenever political mistakes were made, and there was a great outcry on the part of the people, I concede that oftentimes this would be the result. But, Mr. Presi- dent, interests of a business and commercial character, wherein the element of politics did not enter, would drag and suffer, in mv .iudgment, to an incalculable extent. Edmond Burke, in his great speech "On Conciliation with America," says there are "none of us who would not risk his life rather than fall under a government purely arbitrary. But, although there are some among us who think our Constitution wants many improvements to make a complete system of liberty, perhaps none who are of that opinion would think it right to aim at such improvement by disturbing his country and risking everything that is dear to him. In every arduous enterprise we consider what we are to lose as well as what we are to gain; and the more and better stake of liberty every people possess, the less they will hazard in a vain attempt to make it more. These are the cords of man." And yet, Mr. President, the action of this committee will sever or seriously injure one of the most vital cords in the autonomy of oiir State. Again, Mr. President, can it be wise and judicious for our appropriation bills to be made for as long a time as four years? Would there not be great danger to the Com- monwealth in so doing? Can it be satisfactorily done? In the Convention of 1829-30 Judge John Scott, a jurist and patriot of great ability, said that "the guarantee of interest constitutes the chief difference between republican DEBATES or THE COXSTITUTIOXAL COXVEXTIOX OE TIRGIXIA. and aristocratic or monarchical governments. The responsibility of public agents resolves itself into this principle. By causing the law-maker to mingle with the people, and be subjected to the laws which he has enacted, you make it to his interest to enact just laws. By subjecting him to re-election at short intervals you make it his interest to consult the welfare of his constituents in order that he may be re-elected. The annals of mankind occasionally set before us examples of self-sacrifice on the altars of patriotism and virtue, but they are few v^^hen compared with the sacrifices of patriotism and virtue on the altars of ambition and avarice, and serve by their splendor to render more visible the dark shades of human character.'" This is as true now as when uttered by Judge Scott. I have an idea, Mr. Presi- dent, that the gentlemen who advocate this new thing under the sun in this Com- monwealth will find themselves politically, at least, at no distant day in the position of Orgeterix. He, if you recall, was desirous of new things, and after his capture was thrown into prison, and Caesar tells us that on the next morning after his imprisonment, when his cell was opened, he was found to be dead, and, Caesar adds '■that suspicion was not wanting but that Orgeterix came to his death by his own hand." Or, perhaps, their fate will be like that of Memnon, "who went to the Trojan war in beautiful armor and flushed with popular praises where, thirsting after further glory, and rashly hurrying on to the greatest enterprises, he engages the bravest wan-ior of all the Greeks, Achilles, and falls by his hand in single combat. Jupiter, in commisera- tion of his death, sent birds to grace his funeral, that perpetually chanted certain mournful and bewailing dirges. It is also reported that the rays of the rising stm, striking his statue, used to give a lamenting sound." \\liy, Mr. President, the very suggestion of such political obsequies for our friends makes us shudder and grow sick at heart. For myself, unless forced to do so, I shall not partake of such funeral baked meats. There is another, to my mind, very cogent reason why quadrennial sessions of the Legislature should be avoided; and that is, that at stated and recurring periods both of our United States Senators will be elected at the same time. The figures I have not at hand, but the gentleman from Portsmouth, who is very able and accurate has made the calculation, and will doubtless furnish them, if you care to see them. Is this desirable? Is this desired? The second ground urged for quadrennial sessions is that it would result in economy. Economy, Mr. President and gentlemen of the Convention, in the administration of the government, is proper and right, but there is such a thing as "a saving to the hundred and a loss to the shire;'' and the people will be slow to understand an economy that seeks to seriously impair the efficiencj^ of that branch of the government in which they are most interested — the law-making department. This meeting together at not infrequent periods of their representatives to curb and put down tyranny and oppression, if necessary, and to perpetuate for them free institutions, means a great deal to them. And they did not intend that, either directly or indirectly, we should take it away from them. I cannot bring my mind to the conclusion that this fatal step will be taken. It has been tmly said '"'that the legislative function is by far the most important one in any free government. It is the supreme power of the State. All others are insignificant in comparison to it, inasmuch as all the others are bound to obey its will. The Executive is absolutely controlled by it in all the details of his administration. It marks out the path in which he shall walk. The Legislature can appoint the judges; it can do more, it can command within, of course, constitutional limits, what they shall do after they are appointed. All the legal justice we get is manufactured at the seat of legislation and sent down in bulk to the courts, where it is distributed among the people according to the wants and merits of each individual. The Legislature regulates the practice of the courts, makes and unmakes the rules of evidence and furnishes the standard of decision for every cause. It defines all public 18^8 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. offenses and supplies the remedy for every private wrong. The taxing power enables them to descend as deep as they please into the pockets of the people of every class, and it has absolute control and appropriates all the revenue after it is collected. What is a still higher consideration, they are the guardians of public morality. It depends upon them whether virtue shall be promoted or vice or crime be encouraged." And yet, Mr. President, this body by our decree is to be told that it must not meet except under certain contingencies save at intervals of four years. In conclusion, Mr. President, I would say that never before have I regretted more than I do on this occasion my lack of power as a speaker, for I should like to present this question to you as it appears to me. It is fraught with great danger to the Com- monwealth and upon its proper determination depends, in a large degree, the peace,, the prosperity and the advancement of our dear old State. Bear in mind, gentlemen of the Convention, "it is good, also, not to try experiments in Statesi, except the neces- sity be urgent or the utility evident; and well to beware that it be the reformation that draweth on the change, and not the desire of change that pretendeth the reformation; and lastly, that the novelty, though it be not rejected, yet be held for a suspect; and, as the Scripture saith, 'that we make a stand upon the ancient way, and then look about us and discover what is the straight and right way, and so to walk in it.' " (Applause). The question having been taken, the result was announced — ayes, 38; noes, 37 — as follows: Ayes — Messrs. Allen, W. A. Anderson, Boaz, Bouldin, Bristow, Brooke, Brown, Cameron, P. W. Campbell, Davis, Dunaway, Earman, Eggleston, Epes, Fletcher, Flood, Garnett, Glass, B. T. Gordon, Hamilton, Hancock, Hatton, Ingram, Claggett B. Jones, Keezel, Kendall, Lincoln, Mundy, O'Flaherty, Pedigo, Portlock, Rives, Thorn, Waddill, Watson, Wise, Wysor and the President — 38. Noes — Messrs. Ayers, Barbour, Barham, Manly H. Barnes, Thomas H. Barnes, Clar- ence J. Campbell, Carter, Cobb, Crismond, Fairfax, Gillespie, James W. Gordon, Gregory, Gwyn, Hooker, Hunton, Lawson, Lovell, Marshall, Mcllwaine, Meredith, Miller, Moncure, R. Walton Moore, Orr, Parks, Phillips, Robertson, Stuart, Summers, Tarry, Thornton, Turnbull, Walter, Wescott, Willis and Withers— 37. The same pairs as upon the last vote were announced, except that the first named voted in the negative. The amendment was agreed to. Mr. O'Flaherty: I move to reconsider the vote by which the amendment of the gentleman from Appomattox was adopted. Mr. Parks: Mr. President, I hope the motion to reconsider will not be voted down, but that it will prevail, and that we may consider this matter. It is a most important question. I never raise my voice if there is a decided majority against me, but here an important question has been decided by only one vote, a vote of 38 to 37, the ques- tion being whether the Legislature shall meet once every two years or once every four years. Mr. President, in my section of the State one argument made before the people in behalf of the assembling of a Constitutional Convention was that the affairs of the State were being administered at toO' great an expense, and that the Constitution could be so changed as to save the people's taxes. It has been said in advocacy of biennial sessions that at one time we had annual sessions, and they were changed to biennial sessions on account of the impoverished condition of the treasury. Whether there were other reasons for changing it or not does not matter; but, accepting as true the state- ment that the change was made because of the impoverished condition of the treasury, I ask if any harm has resulted to the Commonwealth of Virginia by that change, and by the failure of the Legislature to meet every year. The Legislature has assembled every two years. The wants and wishes of the people have been met and consum- mated. There has been a sufficiency of laws enacted. The rights of the people have DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. 1849 been protected and subserved. Now, then, when we want to change to four years, the very same argument is made that was used against the change to two years, and yet by the change to four years we could save the people a large amount of money. What the people want — Mr. Flood: How much money will you save? Mr. Parks : We will save certainly the amount of money that is expended by the Legislature in one session, if it meets every four years. ■What the people demand is a reduction of taxation and a lessening of their bur- dens. If we can lop off even $30,000 here, and $10,000 there, we accomplish the desired result and relieve the people of taxation. If biennial sessions be sufficient, if the interests of the people are attended to properly by biennial sessions, we can go far in the march of progress and answer the demands of the press and of the people which have come up from all over the State. Even since I have taken any interest in politics I have seen in the press of the State, through its editorials, and through communica- tions from correspondents, the statement that the best thing the Legislature can do is to adjourn and go home. We have too much legislation. A law is proposed, and before it can be tried, before you can see whether it is wise and politic, another Legis- lature assembles and goes to work to amend that law and goes to tinkering with the Code until a Philadelphia lawyer does not know what the law is. Then, again, while the proposition is to reduce the session to sixty days, there is coupled with it the right and power of the Legislature to extend the session for twenty days. What is that for? Mr. Flood: The same power is given in the report of the committee. Mr. Parks: Yes., sir; that is what I say. I say it is given in the committee report, and having only sixty-day sessions, in nine cases out of ten it will be extended to ninety- day sessions because sixty days are not sufficient for the Legislature to digest the work and enact proper, sensible laws. Mr. O'Flaherty: If a pension law should be fixed upon the State of Virginia to appropriate $300,000 to the list, as it seems to be now in the State, and which it is generally conceded is not a correct list, would you be willing that the treasury should be so depleted for four years? Mr. Parks: No, sir; I would instruct the delegate from my county to join with others and call a special session of the Legislature. Mr. O'Flaherty: Then you would have a special session. Mr. Parks: Yes; I would. There might be pension laws and other laws passed and no necessity for an extra session ; but when an extra session should be necessary, I would call it, even for thirty days, to do whatever extra work might be necessary. Mr, President, I do hope the Convention will vote to reconsider it and that we may have this vote over again. I do sincerely trust the Convention will not forego the opportunity of relieving the people of some of the burdens of taxation they are bearing. Mr. Glass: Mr. President, I would not have a word to say upon this proposition, except that I do believe from the bottom of my heart that if you reconsider this vote and decide to have quadrennial sessions of your General Assembly you have sealed the doom of your Constitution, because I believe you have denied to the people of the Com- monwealth the right of representative government. The gentleman from Warren (Mr. O'Flaherty) asked the member from Page (Mr. Parks) a very pertinent question. Suppose we were operating under this system now. There has been introduced in the General Assembly a bill appropriating $300,000 for pensions under a law which its author admits is utterly defective and utterly dis- appointing in its results; a law which it has been shown has put deserters and bummers and undeserving people on cur pension roll; a law which, much to the astonishment 117 — Const. Deb. 1850 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. of the brave old soldier who drafted it, has increased our pension roll from 2,000 to 10,000 in fifteen months. I cite this as an instance. Suppose the appropriation of $300,000 were to a less worthy object, and the argument would be the same. Now, suppose that proposition is enacted into a law, as seems very likely, and is approved by the Governor. Are we to be told that $1,200,000 of the people's money shall be taken from the treasury before we are given an opportunity to stop that waste and pillage? Mr, R. Walton Moore: Has the gentleman ever heard, in the history of govern- ment, that any backward step has been taken in the matter of appropriating money for pension purposes; and does he think that more frequent sessions of the Legislature would bring about the undoing of the evil that has been done? Mr. Glass.: Yes, sir; I believe when the Confederate soldiers of Virginia put money into the treasury rather than take it out; I believe when the tax-payers of the Com- monwealth realize that the soldier who drew that bill concedes its inefficiency; I believe when the facts are put before them they will visit stern indignation upon the people who make this assault upon their public treasury; and yet, in order to save the paltry sum of $7,000 a year, we must have our treasury raided of $1,200,000 in a period of four years. Mr. Robertson: They would pass some other bad law to take the place of the* one they repealed. Mr. Glass: If they pass another bad law let the people visit their indignation upon them for that and send somebody there who will repeal the bad law. Mr. President, I will not take any more time of the Convention. I just cannot discuss it deliberately and calmly, as the subject merits discussion. It is absolutely so abhorrent to my notion of the right and proper thing that I cannot discuss it in the right spirit and in temperate language. I believe it just means the doom of this Consti- tution to put that provision in there, to lock the doors of this capitol in the face of the people and let them come in once in four years to say what bad legislation shall be repealed and what good legislation shall be enacted, and all to save the pitiful sum of $7,000 a year. Mr. President, I do sincerely hope that the Convention will decline to pass by, will decline to consider, and let us settle this question once for all. If the Constitution is to be beaten let us beat it here and now. Mr. Carter: Mr. President, it seems to me that there is in some quarters a mis- apprehension as to the question at issue between the different parties who have divided on this floor on the question now before us. It is argued by persons who are proposing what we call quadrennial sessions that if the report of the committee is adopted, to use the emphatic language of the gentleman from Lynchburg (Mr. Glass), the doors of the capitol will be locked in the faces of the people for four long years, and what- ever need there may be for legislation they will be Without redress and without remedy. I say, Mr. President, that that, to my mind, is an entire misconception of the situation here. You will see by an examination of the report that by a majority of the Legislature, a majority of one of the Legislature, can assemble themselves together, even if the Governor does not call them, whenever they deem proper. In addition to that, the Governor has the power to call them. So that, it seems to me, the fair way to put this question is this: Shall there necessarily and arbitrarily be a session of the Legis- lature every two years, whether there be any need for it or not, or shall there be a session once in four years, anyway, and oftener if the Legislature, the people's representatives, deem it proper to have it? Is there any inhibition against biennial sessions? No, sir. It is simply a provision that if the Legislature themiselves do not see fit to come they need not be forced to do it. That is all. So far from the gentleman's illustration demonstrating the evils of the plan pre- DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE VIRGIXIA. 1851 sented by the committee, I think it is a striking example of the value of the plan now in force. Our Governor called the attention of the Legislature which met here just before Christmas to the fact that there was a surplus in the treasury. The Legislature had nothing, or next to nothing, to do, owing to the fact that this body was in session, with its labors undetermined. They were confronted here with this state of affairs: A Legislature in session and nothing to do, or next to nothing to do, and they did what they will always do when that is the case — they put their hands into the treasury and scattered the surplus to the four winds of heaven. Mr. Flood: I would like to ask the gentleman whether there was any bill passed appropriating any money. Mr. Carter: I went farther than I intended. They started to do it, and it went through the Senate, but it has not, thank God, gone through the House, and I hope it never will. Mr. Flood: I think the gentleman is mistaken. It has not gone through either body. Mr. Carter: Perhaps I am mistaken altogether. But it started, and it looked as if it would go through. Mr. Glass: I wish to say that he is right in what he said. It did pass the Senate. Mr. Flood: If the gentleman will permit me, I insist that I am right. No appro- piation bill ever passed the Senate. Mr. Carter: I do not care whether you gentlemen are right or wrong in relation to that. You are both wrong on this proposition, and that is the proposition before the Convention. (Applause.) Mr. President, I had almost finished. I say if the re- port of the committee is adopted on other points, which I suppose it will be, besides this one which is now in dispute, there will be little or nothing for the Legislature to do compared with what they now have before them, and if you require them to come here once in two years they will be confronted with the situation that confronted the Legislature just before Christmas. They will be here with nothing to do except to get into mischief. (Laughter.) There is a couplet, with which all of us are familiar, that could be applied to the Legislature as well as to other people. "The devil finds some mischief still For idle hands to do." (Laughter.) i\Ir. Flood: I want to call the gentleman's attention to the fact that his associate from Page (Mr. Parks) was arguing against this proposition on the ground that the Legislature would not have time to do what was before them in sixty days. Mr. Carter: I doubt not there are more reasons for the position I take than the one I give, that the proposition here is to force the Legislature into session every two years whether there is anything for them to do or not, and whether they think there is anything for them to do or not. "WTiat more liberal provision can you have than now exists — that if the Legislature thinks it proper to come they can come. It is left to them. "You may come every two years; you must come every four years." The proposition is they must come every two years whether any necessity exists or not. Those are the two views of the proposition before you on which you must decide. "You may come whenever you chose to come, whenever the public interests, in your opinion, made it proper for you to come, or whenever the Governor says that you shall come," but do not make them come every two years, when there is nothing for them to do and when they do not want to come. Mr. Eggleston: ^^en the Legislature meets here in quadrennial session would they not be obliged to pass the appropriation bills for four years? Mr. Carter: I suppose so. Mr. Eggleston: If they met here in quadrennial session would not they have to elect all the United States Senators whose terms would expire before the beginning of the next quadrennial session? 1852 DEBATES OE THE CONSTITUTIONAL CONVENTION OE VIRGINIA. Mr. Carter: I suppose so, and I will say, Mr. President, that I have not given much consideration to the point of where, when or who shall be elected United States Senator. That matter ought not to have anything to do with this question, and, so far as I am concerned, it has nothing to do with it. Mr. Kendall: Mr. President, it seems to me that undoubtedly the logic of the position is that biennial sessions should carry biennial elections. I listened with hearty accord to what was said by the gentleman from Lynchburg (Mr. Glass), but it seemed the real inwardness of that argument v/as that a Legislature should be allowed to^ come back once in two years, in order that- it might mend its mistakes. That does not seem to me to go to the whole difficulty, nor does it leave with the proper tribunal the mending of the mistakes. A Legislature may make mistakes by accident, because they have not duly and properly considered the subject before them, or they may make rhistakesi because they are elected in such a manner as that their will is not the will of the people. It should be left with the people to correct the mistakes which the Legislature makes on occasions of that kind. It is true a Legislature may come here and pass some such legislation as has been referred to by gentlemen as having been attempted in this last session. It is also true that a Legislature may be brought here in some political revulsion and may then commit mistakes, which nobody but the people can correct, because if brought back a second time they would but re-assert the mistake which they had first made. That brings us back to the fact that there is nothing but an appeal to the people for the correction of mistakes which Legislatures make. It brings usi back to the first great principle of republican government, that it is for the people to correct their mis- takes, and not for their agents, who have proved false and fatal in the mistakes they have made. It is a curious ^proposition to me that we should elect a Legislature, or give them a second session, in order that they may correct the mistakes which they make. It seems to me you are relieving them from responsibility to the people, which is of the very essence of a republican government. It seems to me you are denying the right of the people of passing upon that very great question of republican government, the control of their representatives and the election of new members in the place of those who have been recreant to the trust committed to them. Gentlemen will preceive that by biennial sessions and quadrennial elections not one cent will be saved. We all know we are compelled to have biennial sessions for the election of members of the House of Representatives, and there is no reason why any man who is to be elected to the Legislature cannot be elected at the time of the congressional election. So that not one cent is to be saved, and yet the people are to be denied the right of passing upon the faithfulness or unfaithfulness of their servants. I say the logic of the position is undoubtedly, and beyond question, that biennial ses- sions should carry biennial elections. I cannot appreciate the position of the gentleman from Hanover (Mr. Carter). He complains that members, by being sent here to biennial sessionsi, are given nothing to* do, and therefore must of necessity perpetrate mistakes and outrageous legislation, and yet when they have made these mistakes he thinks they should not be given an oppor- tunity to correct them. It seems to me they will have about as much as tliey can do correcting their mistakes. His idea seems to be that a Legislature is given to nothing but making mistakes, whereas, if he is correct, they will have their hands full in cor- recting the mistakes they make. Mr. President, I think it is a question of so much importance that I agree with the gentleman from Lynchburg, when he says that more than probably the fate of your Constitution hangs upon the settlement of this question. I trust we will not make the mistake of going either to quadrennial sessions or quadrennial elections. Mr. Brown: Mr. President, I will delay the Convention only a very few moments. DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE VIRGINIA. 1853 but 1 want to call attention particularh- to the matter of elections suggested by the question of the gentleman from Charlotte (^Ir. Eggleston). Most important elections will necessarily occupy a great part of the time of a Legislature elected quadrennially, and in addition there will be the very important matter of making appropriations for four years. I want to call the attention of this body to the fact that under the quad- rennial system of sessions tliere will never be a Legislature that will meet without being compelled to elect one United States Senator, or two United States Senators, or one United States Senator and a full circuit court, or one United States Senator and a full Supreme Court, or two United States Senators and a full circuit court, or two United States Senators and a full Supreme Court and a ftill circuit court. I ask, gentlemen, to recall how much time has been consumed by Legislatures in the past with the election of even one judge of the Supreme Court, and what can we expect a Legislature to accomplish by meeting once in four years, when every session there would be one L'nited States Senator to elect, every alternate session two United States Senators to elect, eveiw alternate session all the circuit court judges, and every third session all the judges of the Supreme Court, and in addition all the basement officers to be elected at each session. In addition there would be appropriations to be made each session amounting to sixteen million dollars, covering the stated expenses of the four years to follow, and also allowance would have to be made for increased needs of State institutions arising during so long a time. This would invite extravagant estimates and cause great waste, or really deserving cause might suffer. I ask, gentlemen, to consider these vital features before they vote against biennial sessions. Mr. Thom: Mr. President. I cannot but consider the proposition submitted by the committee as a direct blow at representative government. As I understand the framework of the Government of the American Commonwealth, it is that the powers of the people are divided between three great departments — the executive, the judicial and the legislative. I have heard a gi^eat deal said upon this floor in favor of the power of the people. I have never been willing to concede. Mr. President, that there was any gentleman here more desirous of ser^'ing the interests of the people than myself, and yet I have not been able at all times to believe that it was to the best interests of the people to elect all their officers. But there is one department of the government that ought to spring directly from the people and be absolutely responsive to their wishes. That is the Legislative Department. If the people cannot be heard through their Legislative Department, let me ask, gentlemen, to consider through what department they can be heard. If you are to deprive them of their right to be heard in this way what does it mean? It means the destruction of government by the people. Are gentlemen ready to take that position? Are they willing to say this Conven- tion distrusts representative government, and is distrustful of the people? I could never be able to obtain the consent of my own judgment to the proposition so often advanced here that this Convention is representative of the people in any greater sense than the Legislature of the State. ^Tiile we are commissioned by the people to do certain things, and have greater povrers conferred upon us. it is not true that in the jurisdiction which is given us we are any more representative of the people than the Legislature in the jurisdiction conferred upon them: and when gentlemen argue here and vote here in favor of distrust oi the Legislature they are arguing and voting against the very essence of poptilar government. To adopt this proposition would be simply to vote against the voice of the people being heard in their own government, and as much as I am in favor of stability in legis- lation, as much as I believe the business interests of the State should be let alone, I can never give my adherence to the proposition that the people should be debarred from sending their representatives into this hall at least once every two years. 1854 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. I desire, gentlemen, to pause and think what the proposition of quadrennial ses- sions means. It means the incarnation of a sentiment which has found too much expression on this floor, criticism and distrust of the Legislature. I am unwilling that tne Convention should throw down that gauntlet to the people of the State. I believe, with the gentleman from Lynchburg (Mr. Glass), it will be destructive of the work we are attempting to- do, that nO' matter whatever reform we make, whatever benefits we confer in other directions, that one thing will be the seal of the fate of the instrument we may adopt, and I am not prepared to say but what that would be a righteous judgment, because it would be an act of absolute arrogance on the part of the Convention. It would be an expression of absolute distrust of popular government , and would array us in no uncertain way against the people of Virginia. I ask, gentlemen, to pause and think before they are ready to take any such step. The position taken by my friend from Hanover (Mr. Carter) is no answer to this pro^ position. This report puts any session of the Legislature oftener than once in four years in two situations, either in the hands of the Governor, who is one man, or in the hands of the Legislature, acting as disjointed units, without opportunity to come to the seat of government and learn the condition of affairs, without being able to confer with each other intelligently and act for the best interests of the people. Can representative government proceed, gentlemen, where the people can never be heard in their government, except once in four years? Can members of the Conven- tion sustain themselves before the great arbitrament of the people when they go before them and say, "we distrusted your Legislature; we distrusted your power to elect good men; we wanted to disbar you from your capitol and to prevent you from making such laws as you saw best; you could not be trusted even in the Legislative Department of the government." Gentlemen, that is what a vote in favor of this proposition will mean. It will mean a gaunlet to the people, it will meaji a defiance of their rights, it will mean a blow at representative government. Mr. R. Walton Moore: Mr, President, the gentleman has charged we are exhibit- ing great distrust of the people; that at least we are trying unduly to remove the legis- lative body away from the people. He seems, to desire it should be otherwise. Our impression is that the present plan is very far from being a biennial plan, because the Senate has to be elected in two groups, and you cannot reconstitute the Legislature in less than four years, and you have to do it in the most inconvenient and embarrass- ing way, so far as, the people are concerned, because you only elect twenty Senators at the same time. The question is this; is the gentleman so willing to put the Legisla- ture in the absolute control of the people that he will support the proposition of the gentleman from Danville (Mr. Withers) to elect the entire Legislature, the House of Delegates and the Senate biennially? Mr. Thom: Mr. President, sooner than support the proposition of the committee I would support that proposition; but it is a well known principle, familiar to us all, and imbedded in the deepest and most fundamental reason, that there should be a certain degree of stability in government. The American Commonwealth and the Con- stitution of the United States have both founded themselves upon the position that the Senate is elected in a different way, with longer terms, for the purpose of being an element in the stability of the government; and, while I believe in biennial sessions and biennial elections of the popular branch of the Legislature, my belief is that the best results, the most stable government, the best interests of the people, will all be advanced by having one branch of the Legislature more stable than the other. If the opportunity is given to me I shall vote to retain the present system, because I believe that to be to the best interest of all the people, and when you have biennial elections and biennial sessions you have a Legislature sufficiently responsive to the voice of the people. Mr. Robertson: Mr. President, I would not say another word on this subject if it DEBATES OF THE COi^STITUTIONAL CONVENTION OF VIRGINIA. 1855 were not for a statement that was made by my friend from Manchester (Mr. Ingram), in his very able and attractive speech, with reference to an argument that I had the honor to make on this subject when thi& matter was up in Committee of the Whole. I respectfully submit Mr. President, that my position with reference to this subject has been totally misunderstood by my friends upon this floor. As for my ever attacking the Legislature of Virginia, no thought was ever farther from my mind. I submit that some gentlemen here, whose argument consists in saying we must have frequent Legislatures in order to correct the mistakes of Legislatures, have less confi- dence in the Legislature than I have, who am willing to wait four years before we change the legislation they adopt. The whole argument of these gentlemen who say we must have biennial sessions is that the Legislature cannot be trusted, and therefore we must call them here to correct their mistakes. Now, with reference to my attitude about this matter. The gentlemen here took the view that I was criticising the Legislature simply because I replied to some of the arguments made upon this floor. Gentlemen on the other side were arguing that we must have frequent Legislatures, because the Legislature passed such good laws that we could not wait for them, that we must have them as soon as we could get them; and I undertook to show the instances of the good laws they cited were very far from being good, and others were perfectly useless. One of them, I believe, we waited for about a thousand years. Now, sir, my attitude about this matter is simply this — Mr. Flood: Does not the gentleman think this Convention has passed some ordinances that are not wise? Mr. Robertson: Yes, sir, I have just as much confidence in the Legislature as I have in this body. (Laughter.) I believe I have more confidence in the Legislature than any of you gentlemen who have been in it. My whole argument, Mr. President — and I want to reiterate it in order to put myself right, and not because I think I can change a single vote in this body — is that the whole thing is a question of procedure. It is not depriving the people of any power they have. It is simply a question of the time when their General Assembly shall meet. The argument of the gentleman from Norfolk (Mr. Thom), and other men who take the view th^t we are depriving the people of any power, is, in my humble judgment, fallacious. The same argument could be made and reduced to an absurdity, that we ought not to deprive them of meeting here of tener than once in two years ; that we ought to go back and allow them to meet every month, as a city council does. I respectfully submit the other counter-question they ask here so often is not a proper question, and does not cut any figure in this matter. Mr. Flood: I was going to ask whether, at any time the people have had an oppor- tunity to pass upon this subject, they have fixed sessions less frequently than twa years? Mr. Robertson: I do not know anything about that, but my humble judgment is that the people do not take any interest in this matter, and that if you did not have a Legislature for ten years they would not know anything about it, nor care anything about it. It is only when the candidates run around worrying the people and begging them to vote for them that they ever think about the Legislature. (Laughter and applause.) The hour of 2 o'clock having arrived, the Convention adjourned until to-morrow, Friday, January 17, 1902, at 10 o'clock A. M. FRIDAY, January 17, 1902. The Convention met at 10 o'clock A. M. Prayer by Rev. G. Otis Mead, D. D., of Richmond. 1856 DEBATES OF THE CONSTITUTIONAL CONVENTIOX OF VIRGINIA. LEGISLATIVE DEPARTMENT. The President: The unfinished business this morning is the report of the Com- mittee on the Legislative Department, and the pending question is, on the motion of the gentleman from Fairfax (Mr. Moore) to pass by the motion of the gentleman from Warren (Mr. O'Flaherty) to reconsider the vote by v^hich the amendment of the gentle- man from Appomattox (Mr. Flood) to Section 7 was adopted. The question having been taken, the result was announced — ayes, 30; noes, 42. The motion to pass by was rejected. The President: The question is on the motion of the gentleman from Warren (Mr. O'Flaherty) to reconsider the vote by which the amendment of the gentleman from A-ppomattox was adopted. The question having been taken, the result was announced — ayes, 27; noes 43. The motion to reconsider was rejected. On motion of Mr. Withers the vote by which Section 3 was adopted was recon- sidered. The President: The question recurs on the adoption of Section 3. Mr. Withers: Mr. President, I desire to offer an amendment to strike out, in line 3, the word "four," and insert in lieu thereof the word "two." I believe I can explain in two minutes why I offer that amendment. As is known to gentlemen of the Con- vention I voted for quadrennial sessions. Had that proposition been maintained I should have voted for quadrennial elections,, but as we have decided on biennial ses- sions, and as I believe that popular government and the rights of the people in getting into their capitol are maintained not by frequent sessions of the General Assembly, but by a frequent return of the members of the General Assembly for approval or dis- approval, for election or rejection, I believe the election should correspond with the sesision; and I offer this amendment in order that what I believe to be the misfortune of our Legislature, to-wit, hold-over Senators or electing Senators in groups, may be done away with, so that the entire Senate may be elected with the entire House every session, and that there may come, fresh from the people, in order that representative government may be . retained unimpaired, forty new Senators as well as one hundred new members of the House of Delegates. As I stated before, I believe that representa- tive government, if it is maintained at all by frequency of session, is maintained at all by frequency of election of the members of the two houses composing the General Assembly, rather than by the frequency of sessions held under those elections. I hope I make myself plain on that. The sole purpose for which I offer this amendment iS) that the members of the Senate may all be elected at the same time that members of the House are elected, and that the sessions, having been made biennial, we shall have a full and entirely new General Assembly at each session thereof, and not groups of Senators selected every four years. Mr. Ayersi: Mr. President, I move to amend the amendment of the gentleman by striking out all of Section 3 after the word "members" — that is, after the first sentence — and inserting "they shall be elected for the term of four years." Mr. Flood: Mr. President, as I understand the proposition of the delegate from Wise (Mr. Ayers) it is identically the same as the present Constitution, that the Senate is to be elected every four years, but in two different groups, half of them every two years, exactly as it is now. The proposition of the delegate from Danville (Mr. Withers) is to elect the forty Senators every two years, so that when the Legislature is elected all the one hundred and forty members of the Legislature will have been elected at the same time. There will be no hold-over Senators. Mr. President, I think that to adopt the amendment of the delegate from Danville would be a dangerous experiment. I do not understand why gentlemen should come here and desire to put into the Constitution provisions that have never been demanded DEBATES OF THE COXSTITUTIOXAL COXVEXTION OF VIRGIXIA. 1857 by any portion of the people of the Commonwealth. I do not suppose that proposition has been discussed by a hundred men in the State of Virginia. It has never before been mentioned here. Ever since the foundation of the State there has been a Senate composed of members elected at two different periods, so that half of the Senators came in at one time and a half of them at another time. There have been times, Mr. President, when that provision in the Constitution of Virginia has saved the Common- wealth from untold evils., saved it from a domination that it would have taken years to throw off. I allude to the session of 1881-1882, when, but for the stand made by three - hold-over Senators and one new Senator, all the measures advocated by General Mahone's caucus would have become the law of the Commonwealth, and gentlemen who are familiar with that period of our history know that if that had been the case the people of Virginia would have been prostrate upon their backs under the domination and control of Mahone for years to come, or possibly until they resorted to revolution. Now, sir, what good can come from this, innovation? ^Miere has there been any demand for it? Vliy should we encumber our Constitution with provisions that may make it unpopular, that may array the conservative element of the Commonwealth against it and force them to go to the polls and vote down the Constitution when it is submitted to the people, -or if it is not submitted to them, may induce them to force their Legislature to bring about a repeal of various provisions? Mr. President, I have been an earnes-t advocate of a Constitutional Convention for the past six or seven years. I have never advocated the assembling of a Convention on the grounds upon which the gentleman from Danville advocated it, because I have never believed that the governmental affairs of Virginia were administered in an ex- traordinarily extravagant way. I have never believed that this Convention could reduce the State expenses very materially, but I have been in favor of a Constitutional Convention for the purpose of relieving the people of the Commonwealth of the burden, the incubus and curse of an unlimited negro suffrage. I propose to support the Con- stitution if it contains an ethcient suffrage plan, whatever else it has in it. There are many things that have already been incorporated in the Constitution of which I do not approve, many things against which I would have liked to raise my voice, but I did not care to do anything that might tend to help defeat the Constitution, because I hoped, and I still hope, the patriotism and the wisdom of this body can give the people of the State an efficient suffrage provision. I think, sir, this proposition would array a con- siderable element of the people of Virginia against our Constitution. It is stated in one of the morning papers that the real issue in the contest against quadrennial sessions was to retain in the Constitution this provision for hold-over Senators, and the basis of the writer's opinion upon that question was some remarks that I made here yesterday. I want to say, Mr. President, that I never thought of this proposition. It never occurred to me that with biennial sessions and biennial elections the members of this Convention would vote down the hold-over Senators or that such a proposition would be seriously contended for. I do not regard this as anything like as important a matter as the question of bien- nial sessions or the question of biennial elections, but I do regard it as a matter of im- portance: and I say, why make this change? "V^Hiat is there in the past history of the Virginia Legislature to justify the Convention in changing its Constitution at this time? T\Tiat would be the sense in having a Senate, if it is elected for two years only, if it is elected at the same time that the House of Delegates is elected? '^Tiy not give all the legislative power to one single body of one hundred men and save that much to the tax-payers of Virginia? There can be no reason, no logic in it. A division of the sena- tors into two groups makes a conservative element in our Legislature, and I have pointed out a time in the history of our State when this conservatism served the people of Virginia well. I say, sir, there has never been in the history of the Legislature of Virginia any- 1858 DEBATES OF THE CONSTITUTIONAL CONVENTION OP VIRGINIA. thing to justify the Convention in undertaking to change its Constitution. It has an honorable history. They are the representatives of the people, and for the past ten or fifteen years they have represented the very will of the people in both of these bodies, except, possibly, upon one or two questions. When the Democratic party, the true representatives of the people of Virginia, came into power in these halls, we found an unsettled debt, a state of chaos, almost, in the Commonwealth. In the period of fifteen years ensuing all that has been reversed. Your debt is settled. Prosperity is traveling at a fast gait in the whole Commonwealth. Within the period mentioned, leaving out the increase of revenue from real and personal estate, which cannot properly be ac- credited to the Legislature, leaving out the increase of revenue from the poll-tax, the revenues in the Commonwealth have increased $374,000 per year. The Legislature of Virginia is entitled to the credit of bringing into the treasury of the Commonwealth $374,000 a year this year that did not come into its treasury fifteen years ago. They have done that, sir, upon the basis of a reduction of taxation, for as the Democratic party came into power the rate of taxation in Virginia was decreased from fifty cents to^ forty cents on the one hundred dollars' worth of property. They have increased your revenue $374,000, and they have done it, Mr. President, as I have said, on a basis of decreased taxation. They have done it by wise legislation, by bringing under the tax-gatherer's supervision subjects of taxation which were escaping their just and honest burden of government, by imposing taxes upon railroads that had theretofore escaped taxation, upon telegraph companies, upon express companies, upon banks^ upon charters, upon various subjects that up to the time were escaping their just and equitable taxation. Who can complain of the Legislature for doing that? I remember that some time ago the gentleman from Brunswick said his people did not want a Legislature that brought in new subjects of taxation. I venture to say that if the gentleman will consult his people he will find they would not disapprove of the taxing of a single subject on which the Virginia Legislature has imposed taxation during the past fifteen years. Mr. President, that has been done under the present system. Why change it? What argument has been used here in favor of a change? What good can be accom- plished by changing the constitution of any part of the Legislature of Virginia? It has been attempted to put the Legislature upon trial here. If the Legislature has done its full duty, if, as it is constituted at present, it has measured up to the expectations of the people of the Commonwealth, what justification is there for a change? Why, gentlemen tell me the Legislature makes extravagant appropriations. It is true, Mr. President, it does make more extravagant appropriations now than it did fifteen years ago, but it makes those appropriations because the money is in the treasury to appropriate. I would like to ask, gentlemen, who gets the benefit of these appropria- tions? The insane of the Commonwealth. Would any gentleman recommend the cut- ting down of the increased appropriations to the unfortunate insane of Virginia? The children who attend the public free schools get the benefit. During the period to which I have alluded the appropriations to the public free schools have been increased from $600,000 to $1,000,000 a year, an increase of $400,000. The gentleman from Hanover (Mr. Carter) says the Legislature comes here to meet and puts its hand in the treasury of the Commonwealth. Does he object to its doing so for the benefit of educating the children in the free schools of the State? The institutions of higher education get the benefit of it. And, last, but not least, that old hero in gray, with heart of gold, God bless him, has gotten the benefit of some of it; and I want to say right here, Mr. Presi- dent, I am one of those who approve of the action of the Virginia Legislature, or the Senate, whichever it was, in passing a joint resolution committing that body to appro- priate $300,000 for the benefit of the old soldiers. We held out to the old soldier a promise two years ago that we would give it fo him, but we found there were more of DEBATES OF THE COXSTITITIOXAL COXVEXTIOX OE VIEGIXIA. 1S59- them who need assistance than we had expected, and the money did not go around, or at least but m niggardly sums, and almost every Democratic stumper, from the Dem- ocratic canaidate tor Governor down, who went upon the stump last fail and appealed to the people of Virginia to support the Democratic ticket, pledged the people, if they returned a Democratic Legislature here, and there was sufficient money in the treasury, thai tliat deficit should be made up to the old soldier, and I am one of those who do not believe m making pledges to the people to get their votes, and after we have gotten, their votes refusing to keep those pledges. Virginia is to-day appropriating |135jj00 to the old Confederate soldiers, $100,000 of which goes to him in his home, $35,000 being appropriated for the purpose of keeping up a home in the outskirts of this city, where decrepit and poverty-stricken old. soldiers can go, that he may not have to beg on the curbstone as blind Bartimeus did, but that he may have a home supported by his mother, Virginia, until he is called hence to home not made with his hands, eternal in the heavens. Mr. Keezell: If the gentleman will allow me to interrupt him, I wish to say I think the aggregate amount appropriated is $170,000 — $35,000 to the Soldiers' Home and $135, OuO to be distributed. Mr. Flood: Yes; I believe that is it; $135,000 to be distributed to them and $35,- 000 to maintain the home. My argument, Mr. President, is that there should be no change in the fundamental lav%- of the Commonwealth, no change in the constitution of a representative body of the people unless there is some demand for it, unless there is some reason given for it. Gentlemen have argued against the General Assembly of Virginia. They have put the General Assembly upon trial here, and brought charge after charge against them for extravagant appropriations, and I am showing where these appropriations have gone. 1 desire to have the gentleman from Warren state whether he disapproves of any of these appropriations? Mr. u Flaherty: On the contrary. I have always stood up for the General As- sembly: but I want you to show us why you could not continue to do this good thing if you elect them for two years? In other words, do you think that a man who comes, direct from the people would not be as responsive to the people as if he is in the Senate for three years? Mr. Flood: I will not repeat my argument, because I believe most of the gentle- men here understand the point I am making. I say that unless some reason is shown here against this radical change, this change that has never been discussed before the Virginia people, this change that was never heard of until yesterday, I venture to say, by one hundred men in the Commonwealth, unless some strong and powerful argument is made here, we should not make this change. It is a safe thing to stand by the old landmarks, unless some reason can be' given to the contrary. Like the gentleman from Roanoke (Mr. Robertson], I believe because a thing is old, that does not make it good; that some change is progress, but all change is not progress; and unless some reason can be given why this change should be made there is no justification on the part of the Convention in making it. ^Ir. President, the history of Virginia shows that the people of the Commonwealth have approved the present constitution of the Legislature. Every time the people have passed upon this question they have fixed two branches of the Legislature, and the upper branch, the Senate, has been divided into two groups, elected at different times. In 1S50, when the Constitution was submitted to the people and ratified by them; they made no change whatever in the Constitution or in the time of elections of the body. They went from annual sessions to biennial sessions. That seemed to be the cumula- tive wisdom of the people of Virginia. Their Convention adopted that plan and sub- mitted it to the people, and it was. ratified by them. So it continued down to the dark days of reconstruction, when the scallawag and the carpetbagger got control of the 18(30 DEBATES OF THE CONSTITUTIOXAL COXVEXTIOX OF A^-IRGIXIA. State. They went back then to annual sessions. When the real people of Virginia again gained control of the State they submitted an amendment to the people for bien- nial sessions, but there was no suggestion of a change in the constitution of the Legis- lature. I will say to the gentleman from Warren (Mr. O'Flaherty) that when a con- Sititutional provision has been ratified and passed upon by the people as frequently as that has, unless there is some powerful reason we had better stand by that provision as it is. We should frame a Constitution, sir, with reference to the characteristics, the temper and the tastes of our people. There are many things we have already put in the Constitution of which they will not approve. In the future let us consult the genius, the temperament and the characteristics of our people, and let us mirror in our organic law their political and social preference and predelictions. Do this, and give them a good suffrage law, and I believe the Constitutibn will meet with the approval of the people of Virginia and will last the old State for many years to come. Mr. Meredith: Mr. President, I offer the following substitute for the amendment of the gentleman from Danville (Mr. Withers) and I ask his attention as to whether it meets with his approbation and acceptance. The Senators shall be elected at the same time the members of the House of Dele- gates are elected, and their terms of ofRce shall be the same as those of the members of the House. Mr. Withers: Mr. President, if the gentleman offered that as an amendment to my amendment I am, perfectly willing to accept it, my object being to get rid of hold- over Senators. Mr. Meredith: I will read it. I wish to invite the attention of the Con'/ention to what is the purport of the amendment. The proposed amendment, as suggested by me and accepted by the gentleman from Danville, is: The Senators shall be elected at the same time that the members of the House of Delegates are elected, and their terms of office shall be the same as those of the members of the House. On the other hand if we should adopt the amendment offered by the gentleman from Danville, requiring that the terms of the Senators shall be two years, we would necessarily have to make the terms of members of the House two years. There are two questions to be decided by you. One is as to whether we shall have quadrennial elections. The second is as to whether we shall have the House and the Senate elected at the same time. It may be seen from the discussion which has taken place that those are the two questions before the Convention. I respectfully submit they ought not to be embodied in an amendment which would confound the two together and prevent you from voting on them separately. By this resolution you have an opportunity to vote on each one of those questions singly. This presents the single issue, as to whether the members of the House and the members of the Senate shall be elected at the same time and for the same term, without bringing in the question of the length of the term. It simply provides that the members of the House and the members of th© Senate shall be elected at the same time. That has been accepted by the member from Danville (Mr. Withers). L there- fore, say we shall have an opportunity, if we vote down the substitute of the gentleman from Wise (Mr. Ayers), to meet that issue distinctly and squarely, as to whether they shall be elected at the same time. Then we can return to Section 2 and decide whether the terms of the members of the House and of the Senate shall be for two or four years. We do not confound the two questions. We do not tie ourselves up with any question as to the length of the term. We simply declare by this resolution that the terms shall be the same. DEBATES OF THE COXSTITXTIOXAL COXVEXTIOX OE VIRGIXIA. 1S61 I respectfully submit we ought to separate those questions and vote upon them. I do not propose, Mr. President, to go into any lengthy discussion of the matter, because it has been threshed over so often. In Committee of the AMiole it was proposed to make the terms of the Senators and of the members of the House of Delegates the same, by making each four years. This will make the terms of both of them the same, and we can afterwards decide whether they shall be two years or four years. I do not see, Mr. President, coming' upon us the great evil which the gentleman from Appomattox sees. I cannot see how we are going into any great danger by saying the people, who- have the right to elect the larger branch, the more popular branch, of the General Assembly, shall have the opportunity at the same time to express their will in regard to the Senators. It has been said you will sometimes have a question that may be dangerous, although of a popular nature, and that the Senate w-ill be a check upon the House. Mr. Presidenf, we cannot undertake to form our organic law for the purpose of meeting exceptions. The wisdom of making a law consists in so framing it as that you will get the best general average of benefit. It is a fact that the Senate can act as a check. But it can also prevent not only what the people wish, btit what they have a riglit to demand. We are continually having held up to us the great protection that was given to us during the Mahone Legislature. I submit that if we undertake to make the calculation we may find that off-set by the defeat of many measures, or at least by unjust delay by the Senate. None of these things are unmixed evils; but we ought to ascertain, as far as we can. in what way we can get the benefits in the long run. I respectfully submit if you elect Legislators at the same time, and the people understand that they comprise the members of upper as well as of the lower House, you will have more attention given to elections of such men. The more important the election the more attention will be given to it by the people. You will find they will select the Senators with just as much care at the time they elect the members of the House as they now show in elect- ing Senators. Is it to be presumed they show any more care in the election of Senators because they are separated into two terms, as it were Mr. Glass: Is it not a fact that in the States of Ohio, Michigan, Georgia and other great and progressive States of the Union they are elected at the same time without any detriment to the ptiblic service? 3.1r. P.. Walton Moore: In reply to the question of the gentleman from Lynchburg (Mr. Glass) I will say he is entirely correct in his stirmise, I have made some examina- tion and I find that several of the leading States have adopted the provision which is being suggested by the gentleman from Richmond (Mr. Meredith), among them the State of Georgia. The State of Alabama, the other day, adopted a similar provision, the people of that State accepting a Constitution w^hich made the change that is pro- posed here now. Mr. Meredith: Thus. :\Ir. President, we have precedents where similar proA'isions have been tried and found acceptable, which have been so acceptable in some States that others have adopted them. Pray tell me why we should not adopt something of that kind, unless w-e are afraid of that single bug-bear that is held up to-day — that sometimes an unwise measure may be passed, some rare instance may occur. I repeat we must not legislate to meet rare instances, but to obtain the best general average of benefit. This State has been progressive upon this point. You will find it has been progres- sive upon the question of sessions of the Legislature, changing from single sessions to biennial sessions. Thus we had biennial sessions up to the time of the adoption of the present Constitution. In addition to that, the State has been progressive along the line of having the Senators elected at the same time with the members of the House. Originally only one-fourth of the members of the Senate were elected at the same time with the members of the House. 1862 DEBATES OF THE COXSTITUTIOI^AL COOSrVEIsTTION OF VIRGINIA. Afterwards, under the Constitution of 1851, one-half of them were required to be ■so elected. Did any great evil come from that? Do you not suppose the same argu- ment was used then that is used here, of the great danger of allowing the members of both Houses to be elected at the same time, or so large a proportion of the Senate, that it would lose its power of being a check on the General Assembly. I submit, Mr. President, when we take into consideration that many of the members of the Senate of Virginia are elected from different districts from the members of the House, it is evident that you will get an expression of opinion from a different class of voters. You will have a right tb expect, and you will get, an expression of opinion in which you can have just as much confidence had those members been elected under the present requirement, that they should go out at different periods. The only argument, which T can understand, that can be reasonably offered against this proposition is the fact of always having some of the members in the Senate who have had experience in that body and who may be a benefit in assisting and guiding those who are new. Is that, however, in practice and in reality a true argument? Do we not know that, whether they go out of otRce at different periods or not, there are always in each branch of the General Assembly of Virginia a sufficient number of 'Older members to guide and assist the body in its deliberations and in its progress. Mr. Flood: I desire to call his attention to the fact that when the Senate of 1899- 1900 convened there were in it only three old members. I mean there were only three of the newly-elected members who had been members of the Senate before. Mr. Meredith: You mean there were only three out of the twenty that were ■elected? Mr. Flood: Yes. Mr. Meredith: But suppose 3'ou had been able to elect forty. Mr. Flood: Then there would have been six. Mr. Meredith: You cannot state it as a fact. It is simply a possibility. You would liave had sufficient to derive the advantage you are presumed to receive by letting them go out at different times. That is to say, you would have had a sufficient number of the older members there, experienced members, to assist in the deliberations of that body. I do not believe we have ever built up four Constitutions upon the idea that you must check the people. I do not believe it has always been the idea of the Constitu- tion-makers of the State that it is necessary to look forward to the fact that the people must be restrained, and that you must have some check upon them in the deliberations of their legislative body; but it is based upon the idea that you must have there some men of experience, some men who, by having been there before, are able to assist them in their progTess and deliberations. But I say we know that necessity does not really exist, because we always elect some of the older members, and they are there to give such assistance as may be needed. In conclusion, I simply want to call the attention of the Convention again to these two propositions. Let us vote on them and meet them squarely, and let the people see how we stand on them. The first is whether the members of the Senate and the members of the House shall be elected at the same time. Mr. Carter: Mr. President, if it be in order, and I suppose it is, I move to pass by both the pending matters, the amendment of the gentleman from Danville (Mr. Withers) and the amendment of the gentleman from Wise (Mr. Ayers), until we finally dispose of Section 2. I do not think we ought to vote now as to whether or not we will elect Senators at the same time we elect members of the House, and elect all the Senators for the same term, until we find out whether we are to have quadrennial or biennial elections. I confess my vote will be determined largely by the final disposi- tion of Section 2. I believe there is a motion now to reconsider Section 2. Mr. Flood: Mr. President, I only want to say, in reply to the las^ remark of the gentleman from Richmond (Mr. Meredith), that I am one of those who took an interest DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE VIRGIXLl. 1863 in biennial sessions and biennial elections. I did it because I believed in biennial elections and biennial sessions. I did it vrithout any reference to this proposition. I regard this as a separate and distinct proposition. I regard the proposition he had submitted as vicious, as a proposition that will be detrimental to the Constitution, but I regard it as of inferior importance to biennial elections and to biennial sessions, and so far as I am concerned, and so far as I know the motives of those who have acted with me in fighting for biennial sessions, they have regarded biennial sessions and bien- nial elections as of a great deal more importance than the proposition now being con- sidered. Mr. Hunton: Mr. President, I desire to say one word with reference to the motion of my friend from Hanover (Mr. Carter). I occupy identically the same position that he does. In other words, if there are to be quadrennial elections I favor the proposi- tion of the gentleman from Dan^-ille, advocated by the gentleman from Richmond. If there are to be biennial elections I am opposed to that plan. I do not know how to vote intelligently, occupying that position, unless the motion of my friend from Hanover should prevail. Mr. Keezell: 'Mr. President, I occupy this kind of position upon this question. I believe, whether we elect every two years or every four years, the members of the Senate and the members of the House ought to have the same terms. Possibly I am in a position to speak with some knowledge in reference to this mat- ter. In my judgment, if there is anything which prevents the Legislature of Virginia being responsive to the wishes of the people it is the hold-over members of the Senate. I have been a hold-over member three or four times. I believe if you want to get the members of the Legislature close to the people they should be elected every two' years. I am absolutely and utterly opposed to the hold-over principles in the Senate. I think it has been detrimental to such legislation as the people have a right to ask for and expect at the hands of their representatives. Xo matter what the proposition is I hope we will do away with the hold-over part of the Senate. Mr. R. V,'alton Moore: 3Ir. President, speaking for myself and some other mem- bers of the Committee on the Legislative Department who thoroughly approve the principle embodied in the amendment offered by the gentleman from Richmond (Mr. Meredith), I wish to say that I will support that amendment. It seems to me it con- tains a vital principle, so far as the Legislative Department is concerned, that r, at a small cost, a good deal of work that the city would have to establish its own independent institutions to do unless this were permitted. The Committee of the Whole inserted this provision on that argument. I will not continue my remiarks, but will merely say I hope that idea will not be forgotten. The amendment was rejected. The President: The question recurs on agreeing to the adoption of the first inde- pendent section proposed by the Conmmittee of the Whole. The section was adopted- The President: The Secretary will read the second independent section proposed by the Committee of the Whole. Sec. — . The General Assembly shall, at each regular session thereof, appoint a standing committee consisting of two members of the Senate and three members of the House of Delegates, which said committee shall be known as the Auditing Committee, and which shall annually, or oftener, in their discretion, examine the books and accounts of the First and Second Auditor, the State Treasurer and the Secretary of the Com- monwealth, and report the result of these investigations to the Governor, and annually publish the same in two newspapers of general circulation in the State. The reports DEBATES OF THE COISrSTITnTIONAL CONVEXTION OF VIRGINIA. 1871 received by the Governor shall, at the beginning of each session, be submitted by him to the General Assembly for scrutiny and appropriate action. The said committee may employ one or more expert accountants to assist in said examinations. The section was adopted. Mr. R. Walton Moore: Mr. President, I move the adoption of the report of the Committee on the Legislative Department, as amended. The President: The question is on agreeing to the adoption of the report of the Committee of the Legislative Department, as amended. The report of the committee was adopted. Mr. R. Walton Moore: I move that the report of the committee be printed and referred to the Committee on Final Revision. The President: That will be taken as the sense of the House unless there is objec- tion. The Chair hears none. (Applause.) The consideration of the report of the Committee on the Legislative Department having been concluded, the Convention adjourned until to-morrow, Saturday, January IS, 1902, at 10 o'clock A. M. SATURDAY, January 18, 1902. The Convention met at 10 o'clock A. M. Prayer by Rev. W. F. Dunaway, D. D. Mr. Flood: Mr. President, I desire to introduce the following resolutions: Resolved, That Section 3, Article 6, of the pending Constitution, as contained in the report of the Committee on the Legislative Department, adopted on the 7th day of January, 1902, be, and the same is hereby, rescinded. The Secretarj^ read as follows: Resolved, That the Senate shall consist of not less than thirty-three nor more than forty members. They shall be elected for a term of four years; for the election of whom the counties, cities and towns shall be divided into districts. The Senators to be elected from districts bearing even numbers shall be elected in the year 1903, and every four years thereafter, and those bearing odd numbers shall be elected in the year 1905 and every four years thereafter. The President: The resolutions will be referred to the Committee on the Legisla- tive Department. Mr. Turnbull: Mr. President, I desire to offer an amendment in the nature of a substitute for sixty-five lines of Section 1 of the majority report of the Committee on Elective Franchise, and ask that it lie on the table and be printed. The President: That will be the sense of the Convention, without objection. Mr. Ayers: Mr. President, I move that the Convention take up for consideration the report of the Committee on Public Institutions and Prisons, as reported from the Committee of the Whole. The motion was agreed to. The report was read section by section and adopted with slight amendments. Mr. James W. Gordon: 1 offer the following resolution, and ask that it lie on the table and be printed. Resolved, That Sections 2 and 7 of the report of the Committee on the Legislative Department, as adopted by the Convention on January 17, 1902, be, and the same are hereby, rescinded; and that Sections 2 and 7 of said report, as they came from the Committee of the Whole, be substituted tnerefor. The President: The resolution will be referred to the Committee on the Legisla- tive Department. 1872 DEBATES OF THE CONSTITUTIOIS^AL CONVENTIOIir OF VIEGINIA. THE EXECUTIVE DEPARTMENT. Mr. Cameron: Mr, President, I move that the report of the Committee on the Executive Department, so far as it is completed, be taken up for consideration by the Convention. The motion was agreed to. Section 1 was read and adopted. The President: The Secretary will read Section 2. Sec. 2. The Governor shall be elected by the voters at the times and places of choosing members of the General Assembly. Returns of election shall be transmitted, under seal, by the proper officers, to the Secretary of the Commonwealth, who shall deliver them to the Speaker of the House of Delegates on the first day of the next session of the General Assembly. The Speaker of the House of Delegates shall, within one week thereafter, in the presence of a majority of the Senate and House of Delegates,open the said returns, and the votes shall then be counted. The person having the highest number of votes shall be declared elected; but if two or more shall have the highest and an equal number of votes, one of them shall be declared elected; but if two or more shall have the highest and an equal number of votes, one of them shall be chosen Governor by joint vote of the two houses of the General Assembly. Contested elections for Governor shall be decided by a like vote, and the mode of proceeding in such cases shall De pre- scribed by law. Mr. William A. Anderson: Mr. President, I beg leave to submit the following amendment, to come in after the word "counted" in line 10: "In such manner as may be prescribed by the General Assembly then in joint session." The sentence will then read if the amendment is adopted, as follows: The Speaker of the House of Delegates shall, within one week thereafter, open the returns, and the votes shall be counted in such manner as may be prescribed by the General Assembly then in joint session. The gentleman from Petersburg (Mr. Cameron) will remember that a very grave question has arisen in the construction of a paragraph of the Constitution of the United States substantially identical with this, and one which at one time threatened this country perhaps with a bloody catastrophe. It was claimed at that time that under similiar language the President of the Senate of the United States had the right to count the votes. The Constitution of the United States failed to prescribe precisely how and by whom the votes should be counted. It can do no harm to prevent any such question ever arising, if there should be a contest in regard to the election of a Governor. Mr. Cameron: If the gentleman will excuse me, this does distinctly provide who shall count the votes — the Speaker of the House. Mr. William A. Anderson: If it does, that officer ought not to do it. It vests too- great a power in the Speaker of the House. If he does it at all, he ought to do it simply as the agent of the General Assembly, the representatives of icie people. Mr. Cameron: I ask the gentleman to consider, what seems to be a salient and unmistakable fact, that the joint assembly of the two houses will be in the entire charge of the whole matter in any case, and that the votes could not be counted by the joint assembly of the two houses, except in such manner as they might determine, unless we put something here to the contrary. Mr. William A. Anderson: Mr. President, that was the contention of many of the ablest jurists of this country at the time the question arose as to whether Mr. Tilden or Mr. Hayes had been elected President of the United States. If the construction which the gentleman from Petersburg (Mr. Cameron) places upon similar language in the Constitution of the United States is the correct construction, as I believe it to be, and if it had been accepted by Congress, Mr. Tilden would have been seated as Presi- dent of the United States, because the Dem^ocrats. had a majority in the joint session of the two houses of Congress; but that proposition was denied, and the then President DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. 18T3 of the Senate, Mr. Farry, upon the advice of able counsel claimed he had the right to count the votes and determine which return was a valid return; and it was to avoid the collision which would probably have been brought about if such powers had been attempted to be exercised by the President of the Senate that the Electoral Commission was agreed upon. The contest in which the country would otherwise have been involved was thereby averted, and the man uho was defeated was declared to be the President of the United States. Mr. Cameron: I have no doubt, Mr. President, that under the stress of an irrespon- sible political tension such forced construction might be placed upon this language. Therefore, I repeat that, while I consider no other legitimate construction is possible, I have no objection whatever to the insertion of the language proposed by the gentle- mi an. The question having been taken by ayes and noes, the result was announced — ayes, 20; noes. 45. Section 2 was then adopted. Sections 3 and 4 were read and adopted. Section 5, relating to the duties of the Governor, was then read. Mr. Barbour: I offer the following as an amendment to Section 5, to be added at the end: He shall have, subject to the provisions of this section, and under such regulations as m&y be prescribed by law, the power to suspend, for a period not exceeding thirty days at any one time, and to an extent that may be limited by law, any sheriff or ser- geant or other executive officer of any county, citj^ or town charged by law w^ith the preservation of the public peace or order, or the execution of the public laws, whenever it becomes necessary for the preservation of the public peace or order or the prompt enforcement of the public laws, and he shall also have power to appoint a temporary superior to any such officer so suspended, with such powers and dtities as may be pre- scribed by law. :\Ir. President, I wish briefly to call the attention of the Convention to the meaning and effect of that provision. Its purpose is to give the executive the power to perform the duty that this Constitution imposes upon him, the duty to see that the laws are enforced. It gives him the power to act promptly when the necessity occurs for it, and merely in those cases where it is necessary for the prompt enforcement of the laws and the preservation of the peace of the Commonwealth. At the same tim.e any abuse of that power is fully and strictly guarded against by making the whole thing subject to regulations and rules to be prescribed by the General Assembly. It is an important power, one that is almost essential in cases of mobs or insurrections of a similar char- acter. It is one which every executive charged with the duty of preserving the peace and order of the Commonwealth should have, and I sincerely hope the amendment will be adopted by the Convention. :\Ir. Cameron: :\Ir. President, I have simply to say that in the opinion of the committee, it was held to be wiser to leave to the Legislature the determination of how these officers should be suspended and removed. It seemed to them very questionable whether a Governor at Richmond could be sufficiently informed as to matters in the one hundred counties of the State and as to particular cases arising in them, to determine on the spur of the moment in any judicial or judicious way upon the question of how an officer was performing his duty, or whether he should be suspended from office or not. It also occurs to me that while we have guarded the Governor's power of suspen- sion of State officers and given officers so dealt with a chance fc^r hearing before the General Assembly, and for vindication and reinstatement in case injustice has been done them, here you would commission the Governor with power on the exparte statement of individuals in any county of the State prejudiced, perhaps, inimical to the office- holders, perhaps, to place a slur upon the official and personal character of the officer, to suspend him from offxce for thirty days, and at the end of that time restore him to 1874 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. office, with no possible redress as to his character or as to the injury which had been done him. Mr. Barbour: I suggest to the gentleman that the whole thing is subject to regula- tions to be prescribed by law. Mr. Cameron: Therefore, the committee thinks it is better to leave the whole thing to be regulated by law. We think it would be infinitely safer and infinitely better, and that all proper provisions can and will be made by the General Assembly. Mr. Flood: Mr. President, I think the proposition proposed by the gentleman from Culpeper would be a dangerous provision. If there is any malfeasance or misfeasance on the part of an officer the laws are ample now to have him removed by the court. I suppose this is aimed to cover cases where there is neglect oi duty, a lynching, for instance; but it is too late to prevent the lynching then, and the officer has been guilty of malfeasance. The courts can turn him out. Sections 5, 6 and 7 were read and adopted. The President: The Secretary will read Section 8. Sec. 8. Every bill which shall have passed the Senate and House of Delegates, and every resolution requiring the assent of both branches of the General Assembly, shall, before it becomes a law, be presented to the Governor. If he approve, he shall sign it; but if not, he shall return it, with his objections, to the house in which it shall have originated, which shall enter the objections at large on its journal and proceed to re- consider the same. If, after such consideration, two-thirds of the members present, which two-thirds shall include a majority of the members elected to that house, shall agree to pass the bill or joint resolution, it shall be sent, together with the objections, to the other house, by which it shall likevvase be reconsidered, and if approved by two- thirds of all the members present, which two-thirds shall include a majority of the mem- bers elected to that house, it shall become a law, notwithstanding the objections of the Governor. If he approve the general purpose of any bill or joint resolution, but dis- approve any part or parts thereof, he may return it, with recommendations for its amendment, to the house in which it originated; whereupon the same proceedings shall be had in both houses upon the said bill or joint resolution, and his said recom- mendations in relation to its amendment, as is above provided, in relation to a bill or joint resolution, which he shall have returned without his approval, and his objections thereto: Provided, that, if after such reconsideration, both houses, by a vote of a majority of the mem-bers present in each, shall agree to amend the said bill or joint resolution, in accordance with his recommendations in relation thereto, or either house by such vote shall fail or refuse to so amend it, then, and in either case, the said bill or joint resolu- tion shall be again sent to him, and he may act upon it as if it were then before him for the first time. The Governor shall have the right to veto any item or items in an appropriation bill and approve the others. But in all the cases above set forth the votes of both houses shall be determined by ayes and noes, and the names of the members voting for and against the bill or joint resolution shall be entered on the journal of each house, respectively. If any bill or resolution shall not be returned by the Governor within five days (Sundays excepted) after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the General Assembly shall, by their adjournment, prevent such return, in which case it shall be a law if signed by the Governor within ten days after such final adjournment, but not otherwise. Mr. Walker: I offer the following amendment to Section 8: ♦ Strike out the words beginning with the word "Governor," in line 33, down to and including the word "others," in line 35. Mr. President, I will simply state that that language was not a part of the written report of the Committee on the Executive Department. It was inserted by an amend- ment adopted by the^Committee of the Whole, and it seems to me unwise. The report makes a provision, which never existed before, for bringing the Governor and the General Assembly in closer relations, and allows the Governor, in case he approves the purpose of any general measure, but disapproves of any special item in it, to return that measure to the General Assembly, calling their attention to the special matter that he thinks unwise. It gives them an opportunity to reconsider, if they are. disposed DEBATES OP THE COXSTITUTIOXAL COXY:l,., f lOX OF VIRGINIA. 1875 to do so, and make the change. If they are not disposed to make it they can send it back to the Governor, and then it comes before him as it would have orginally come before him. It seems to me that is quite as far as the Constitution ought to go, and that it would be sufficient to cover the case of an item in an appropriation bill which the Governor might think would be an unwise and improper item; and after he has called the atten- tion of the members of the General Assembly to that matter and given them an oppor- tunity to reconsider it, I think that is as far as the Governor should go in a matter of legislation. I hope the amendment will be adopted and the words stricken out. Mr. Meredith: Mr. President, the language referred to by the gentleman from Northumberland (Mr. Walker) was inserted after consideration in Committee of the Whole upon amendments offered by myself. I earnestly hope the language will be left in the bill as reported from the Committee of the Whole. I think we recognize the fact that an effort has been made in the report of the Committee on the Legislative Department to protect, as far as possible, the finances of the State in regard to bills, and the manner in which they shall be passed, affecting the finances of the State. But now it is proposed to put it in the power of the Legisla- ture to tie the hands of the Governor in regard to any separate item in an appropria- tion bill. In other words, under th( proposed amendment here, or the proposed report,, you will have a Governor's hands Lied as to the separate items of an appropriation bill, unless he shall veto the whole bill, except that he can return it to the House and suggest that he thinks there ought to be some amendments made. Then what? If they refuse to make those amendments, what is the vote by which the financesi of the State are to be effected? A majority vote. Mr. Cameron: The gentleman will remember that when the Governor is thrown back upon his veto power he has the same right then as he has about any other bilL Mr. Meredith: Not as to a single item of a bill. Mr. Cameron: No. Mr. Meredith: But you propose to say to the Governor, "You shall veto an entire appropriation bill or none of it." That is the proposition that is made by the chairman of the committee, and would be the effect if the amendment offered by the gentleman from Northumberland (Mr. Walker) is carried. You are going to say to the Governor, "^Vhatever there may be in the appropria- tion bill, although it may affect the administration of the State, you shall veto the whole of it or none of it; but we will allow you to return it to us with recommenda- tions of what you think is proper, and then by a majority vote we will overcome it." In other words, as to everj^ otner veto except the veto of an item in an appropriation bill, if this report is adopted, the Governor will be protected by a two-thirds vote; but now you propose that he either shall vote an appropriation bill in whole or he shall follow exactly the same course as to the finances that he would as to some general provision of law, whether it be a question of evidence, a question of court procedure, or any small matter of that kind. You propose that the finances of the State shall be put upon the same footing as any statute of a general nature. I insist that as to the finances of the State there ought to be a distinction, and we ought to require a two-thirds vote. You require it as to the whole bill. Why not require it as to any item in the bill? Mr. Barbour: I wish to call the gentleman's attention to the fact that this really does not make any distinction between the finance bills and the others, because the Constitution prohibits any bill from covering more than one subject, except appropria- tion bills, which cover the whole range of expenses of the State. Mr. Meredith: That is what I say. An appropriation bill is sometimes composed of twenty absolutely different subjects, just as distinct as they could be if they were in separate bills; and yet, by the method of passing these bills, they are lumped together, and upon the Governor is put the responsibility of vetoing all or none. Is not that tying the hands of the Governor as to the veto power? I wish some 1876 DEBATES OF THE COXSTITUTIONAL COXVENTIOX OF VIRGINIA. gentleman to tell me the harm that can be done by allowing the Governor to say as to this item or that item, "I veto it, and 1 put the responsibility upon you." You have shifted the responsibility to the Governor. You say to the Governor, "We put the re- sponsibility upon you, and you shall veto the whole bill or you shall not veto any part of it." I respectfully submit that instead of the amendment giving us protection, we will be injured by it in allowing a recommendation as to an item in an appropriation bill to be overcome by a majority vote. Mr. Flood: It takes a majority of all elected. Mr. Meredith: We should require a two-thirds vote. It does not make any differ- ence whether it is a majority of all elected or of all present. I wish to ask what harm can be done by allowing the Governor to veto a single item in a bill. Mr. Flood: I will tell the gentleman the harm. It gives the Governor, as to that special item, the power of sixteen members of the Legislature, which he has never heretofore had. Mr. Meredith: Then the same harm exists as to a veto of the whole bill, does it not? I am asking for the extra harm. I say you are uprooting the veto power which is given the Governor for the pro- tection of the people. As to what measures are you uprooting it? As to the finances of the State. A general appropriation bill contains sometimes twenty different sub- jects), just as distinct as if they were questions of law procedure in court, questions of evidence, questions of summoning witnesses, questions as tO' the manner in which you shall serve notice upon a corporation. Those are all distinct things, put in distinct bills, and the Governor can approve one or veto another; but when you come to the appropriation bill you say to him, "You shall not touch one of these separate and distinct subjects unless you touch all." Mr. Dunaway: Mr. President, I suppose it is understood, of course, that that veto will take the same course as vetoes of other measures. Mr. Meredith: Undoubtedly so. The General Assembly ought to have the power to overrule the veto by a two-thirds vote. It has been intimated on the floor of this body, and elsewhere, that it gives the Governor the opportunity to play to the galleries, as it were. I do not believe the Governor is going to play to the galleries in matters of that kind. If he does we had better protect ourselves,, and let him play to the galleries and put the responsibility upon the Legislature. If it is a mere play to the galleries a two-thirds vote will over- ride it. We can protect ourselves from the play to the galleries, but how can we pro- tect ourselves when in a general appropriation bill, upon which the entire expense of the State and all its departments depends, there is an item of another nature for $2,000 or $5,000, and we compel the Governor to veto the entire appropriation bill in order to veto that one objectionable item? Mr. Walker: The last part of Section 8 provided that "if any bill or resolution shall not be returned by the Governor within five days (Sundays excepted) after it shall have been presented to him the same shall be a law in like manner as if he had signed it, unless the General Assembly shall, by their adjournment, prevent such re- turn; in which case it shall be a law if signed by the Governor within ten days after such final adjournment, but not otherwise." Now Siuppose an appropriation bill is passed during the last stages of the session and the General Assembly adjourns. If the Governor chooses to sign it it is all right within ten days after the adjournment. "^k^Tiat effect would this provision you have here, as to allowing him to veto any special item in the bill, have on that? Would it not make some doubt about the construction of this constitutional provision in respect to a case of that sort? Would it not put it on a different footing from any other bills which might be held over by the Governor until after the adjournment of the General Assembly? Mr. Meredith: It distinctly provides that he may approve the others. It provides that he may veto any item in the bill and approve the others. DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE TIRGIXIA. 1877 I submit to the Conyentioii that the Governor should have the power to pass his judgment upon each single specific item of an appropriation bill containing twenty or more different subjects. :\Ir. Cameron: :\Ir. President, the gentleman from Richmond places this matter in an entirely wrong light before the Convention when he treats it as an innovation. He says '""We have confined the Governor to so and so. You take from the Governor so and so."" Is it not a fact that up to 1850 the Governor had no veto power in Virginia? Is it not a fact that since then he has had nothing but the absolute alternative of veto or approval on all bills, and the whole of all bills presented to him? Is it not a fact that this committee, so far from binding the hands — Mr. Meredith: My statement that, "Yoti are taking away power from the Gov- ernor." means that you are providing by the proposed amendment that he shall not have it. I never said he did have it. but I say that this will be the future Constitution, and by it you are taking away the power the Governor ought to have. Mr. Cameron: The power of the Governor has been broadened here heretofore, and I was beginning to say the Governor of the Commonwealth had no recourse, where a bill or a joint resolution did not meet the approval of his judgment, but to veto the whole and to destroy that act of legislation, unless supported by a two-thirds vote in each house of the General Assembly, or to approve a bill which contained matter that did not meet his approval. Xow. :\Ir. President, seeing the difficulty in that direction and not being opposed to progress, this committee unanimously suggested, and was forttmate enough to receive the support of the Committee of the "\ATiole on that subject, that on every bill or joint resolution passed by the General Assembly, if the Governor, after examination, should find that certain portions of it were objectionable, while the general purpose of the bill met his approval, he could, withotit coming to a direct confiict with the legis- lative branch of the government, return that bill, stating wherein he thought it capable of improvement and respectfully asking the General Assembly, which with himself, constitutes the law-making power, to consider if. in their mature wisdom, they could not meet his A'iews. We were careful there not to put the General Assembly upon a two-thirds A"ote. We were trying to establish better relations between the Executive and the General Assembly. So we provided for giving the Governor an entirely new power, which he never has had since the establishment of government in Virginia. Mr. Meredith: Is it not perfectly fair and perfectly proper that the Governor should have the power, when one bill is confined to one subject, and when one bill contains twenty different subjects, why should he be required to veto twenty different subjects rather than vetoing one? Mr. Cameron: I will come to that if the gentleman will allow me to proceed by regular stages, and it will not be very long before I reach that point of the discus.sion. Vlien you come to consider financial matters there is no truth more broadly laid down in the system tmder which we live, or more tmiversally accepted, than that the Legislature is the voice of the people as to the appropriation of money. Mr. Meredith: :\Iay I interrupt you once more? Will you tell me what would be the general purpose of an appropriation bill with twenty different items in it? Mr. Cameron: A general appropriation bill is to provide funds for the maintenance of the government. Now I will try and answer some of the gentleman's questions. The House of Delegates ■ and the Senate constitute the governors of the money of the people, the Executive having never been so considered in any government that partakes of repre- sentative features. Parliament pushing its claim, in England, to absolute control until the executive is silent in that regard. Mr. Meredith: If the gentleman's historical allusions are correct why is it that you destroy the power of the people by allowing the Governor to veto an entire appro- priation bill and will not allow him to veto one little item? 1878 DEBATES OE THE CONSTITUTIOjSTAL CONVENTION OE VIRGINIA. Mr. Cameron: Because it goes then to the Legislature and it stands as their judg- ment, if, after mature deliberation, a majority fixed, by the Constitution declare that it shall stand. I was going to say, Mr. President and gentlemen, that an appropriation bill is not an accidental hotch-potch of items. It is prepared, one in reference to another. It stands as a whole, if it is properly prepared. It is made with a reference to the object sought, with a reference to the means in hand, and is made by the legislators, who are responsible tO' the body of the people for their money and its use, and yet the proposi- tion is that you will allow an individual head of the executive department, no matter how exalted in character, no matter how great in wisdom and business capacity, to step in and, with a stroke of his pen, by cutting off this item here and that item there, to mutilate the complete and coherent work of the representatives of the people. I think that is one valid argument against the gentleman's provision. Another argument which is valid is that an astute man could use that pow^er to political advantage; and I do not think that objection can be whistled down the wind. In every appropriation bill the necessities of government call upon the independ- ence of legislators to do things that would not meet the breeze of popular approval; and time and again it would be in the powder of the Executive to give the seal of his approval to the ].opular cnlch-penny features of a bill and to veto those, no matter how beneficient or wise they might bo in their permanent effect, as to which he knew there was popular oppos'.tion. I believe this is an innovation. Instead of our having put any clamp upon the power of the Governor we have already extended his discretion. I believe that this to-day would be an innovation in the wrong direction, that we would be giving the Executive too much power, and tine opportunity to do mischief. Under this report, as we originally submitted it, and with the adoption of the amendment proposed by my colleague on the committee (Mr. Walker), the Governor, if an appropriation bill doesi not meet his approval in its entirety, can do what he never yet has been able to do since this government was founded — he can address a note to the General Assembly, or to the house which originated the appropriation bill, and say, "I find some items here which do not seem wise or just. I ask, without questioning your wisdom or your honesty of purpose, that you will take this matter under consideration and give it more mature thought. These are what I object to. The rest of the bill, I say, ia right." The General Assembly then takes up that matter, and by a mere majority vote can accede to that request of the Executive and remodel the bill; but if, after mature thought and reconsideration, they still hold to their first opinion, then the result is, as it ought tO' be, that the will of the representatives of the people obtains unless the Governor interposes his veto, and then that obtains unless two-thirds of the members of both houses agree to over-ride him. I cannot conceive any more equitable arrangement than this. We have extended the power of the Governor. I believe we have given him all the power he ought to have, and I believe that to give him any more would be plunging upon the sea of experiment and invading the territory of danger. I hope the amendment will prevail. Mr. Hancock: Mr. President, the object and purpose of allow^ing the Governor to veto a bill is to prevent hasty and improper legislation. It is to prevent measures being adopted that would be injurious to the Commonwealth. When the Legislature passes a measure and reports it to the Governor he should take it as a complete measure; he should examine it to see whether it is a proper measure and whether he should approve it or veto it. If it is an improper measure he vetoes it and it goes back, and the General Assembly, in order to have it become a law must pass it over his veto by a two-thirds vote. Now, take an appropriation bill. The appropriation bill is composed, perhaps, of one hundred or more items. Many of these items may have been passed by the General Assembly by a majority of only two or three votes. DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE VIEGIXLl. isr9 If The Governor has the right to take any one of these items out that he thinks proper, if he should be of the opposing party, and has enough members in the Legislature of his party to stand by him, he might be able to strike out those measures which are obnoxious to him and which were passed by a very small vote of the General Assembly, and be able, by that means, to destroy an appropriation bill in its integrity and carry out the purpose which he and his party may have had in view at the time. It seems to me, Mr. President, that to allow the Governor to veto any single item, or several items, in an appropriation bill, and not to require him to veto the whole bill, is an invasion of the legislative department . Legislation is nothing in the world but compromise after all. There are one hundred men in the House of Delegates and forty in the Senate, and after long and laborious efforts for days, and sometimes weeks, they succeed in passing an appropriation bill. Some items in the bill have been passed by a bare majority, but when the vrhole bill comes up upon its passage it may be carried by a large majority. Then it is sent to the Governor for his approval. If the Governor should be of the opposing party he has only to look at the jotirnals of the House and Senate and see how the vote stands upon the separate and independent items, and he may strike out those which he thinks the Legislature will not be able to carry through OA-er his veto and allow the others to remain. There v^ould be a dissected appropriation bill that'v.'ould not be acceptable to the majority and would be very objectionable to the people at large. He ought to veto the whole measure or not be allowed to touch it. It is a piece of completed legislation, and he ought not be allowed to destroy it by taking the execu- tive Ivnife and cutting off such portions of it as he may think to be unpopular and thus destroy an appropriation bill passed by the General Assembly. I hope, therefore, that the Convention will not allow this to be done. This matter was carefully considered in the committee, and the members of the committee came to the unanimous conclusion that all that the Governor should be allowed to do with a bill was either to approve it, veto it or to send it back to the General Assembly and point out the objectionable items which the Governor thinks should be stricken out. If the General Assembly corrects it. as he recommends, then it will be approved by him when the bill is returned. If the General Assembly refuses to reconsider and make the changes suggested then the Governor is allowed to veto the bill when it is returned, but not to veto a part of it. Who will say that any such power as this shotild be given to- the Governor, to dissect and change and modify legislation that has been enacted by the wisdom and hard labor of the General Assembly? Let the Governor say: ''This piece of legislation is improper and should not be the law of this Commonwealth and I place my veto upon it." but do not. I pray you. allow him to veto such portion of the appropriation bill as may suit his pleasure and then send it back in its mutilated form to be passed upon by the General Assembly. Let the General Assembly be held resposible for the passage of the bill and the Governor responsible for his veto of the bill, but do not permit any divided responsibility. I hope that the amendment will be adopted. The president: The question is on the amendment offered by the gentleman from Northumberland (Mr. WalkerL The question was ordered, and being taken, resulted — ayes, 20 : noes. 50. The amendment was rejected. The President: The question recurs on the adoption of Section S. Section 8 was adopted. The President: The Secretary will read Section 9. Sec. 9. A Lieutenant-Governor shall be elected at the same time and for the same term as the Governor, and his qualifications and the manner of his election, in all respects, shall be the same. Mr. Summers: I move that Section 9 be stricken out. T^Tiile I am on the floor 1880 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. 1 will say I propose to substitute the office of President of the Senate for that of Lieutenant-Governor, and I call upon all reformers and retrenchers to support my views. The amendment was rejected. Section 9 was adopted. Section 10 was read and adopted without amendment. The President: The Secretary will read section 11. ' Sec. 11. The Lieutenant-Governor shall be president of the Senate, but shall have no vote except in case of an equal division; and while acting as such shall receive a compensation equal to that allowed to the Speaker of the House of Delegates. For his services as a member of the Board of Public Works, while actually employed as such, he shall receive a per diem to be fixed by law. Mr. Withers: Mr. President, I move to strike out, beginning with the word "for," down to the end of the section. I do not believe both the Lieutenant-Governor and the Governor ought to be members of a Board of Public Works, even if we have such, a Board of Public Works constituted in the way indicated here. Mr. Dunaway: Mr. President, I wish to call attention to the fact that if the amend- ment should prevail it would not accomplish the object intended by the gentleman who offered it. The Lieutenant-Governor may still be upon the Board of Public Works, and the only effect of it would be to take away his per diem while actually serving as a member of the board. The amendment does not propose that he shall not be a member. It might be proposed in some other part of the Constitution that he should or should not be a member. The only effect of the amendment would be to deprive the Lieutenant-Governor of his per diem while he is actually discharging his duties. Mr. Withers: Mr. President, the very object for which I offered this amendment is to call the attention of the Convention to two or three facts in connection with the proposed Board of Public Works,, as brought in by the committee in Section 18 at the bottom of page 9. In the first place, as the board is now constituted, and as I understand it, the Treasurer, the Governor and his First Auditor, or the Auditor of Public Accounts, get nothing except their traveling expenses. Those gentlemen admit they have no time to make proper assessments of the corporate properties in Virginia. The putting upon the board of two additional members of the executive branch of the government — the Attorney-General and the Lieutenant-Governor — will not enable it to properly assess the corporate properties of Virginia; and the allowance to the Lieutenant-Governor of a per diem for the time he is actually engaged in those duties will be either an injustice to the other members of the board or will necessitate the allowance to them of a per diem. Mr. Fairfax: Are not all the officers who are on the board getting an annual salary from the State? Mr. Withers: Yes, sir; I understand that thoroughly. The reason the Lieutenant- Governor does not get an annual salary is because he has no annual duty to perform, but for the time he performs the duty he is paid the sum of $8 per day. Now, Mr. President, I do not see how it is possible, directly or indirectly, for this Convention to give its sanction to the formation of a board for the assessment of / corporate properties when that board, as now constituted, admits it has not the time to do the work. I believe, therefore, before committing ourselves to this policy, the pro- vision should be stricken out until the action of the Convention as to the composition of the board is determined, and then, if it adheres to this plan, the provision could be inserted by the Committee on Final Revision and adjustment. The ayes and noes being taken, the result was announced — ayes, 32; noes, 87. The amendment was rejected. Mr. Walker: Mr. President, it seems to me it would be better not to finally adopt Section 11 or Section 18, as both those sections have reference to a board of Public DEBATES OF THE COXSTITUTIOXAL CONVENTION OE VIRGINIA. 1881 Works, and as the Convention, as I understand it, will have to decide sometime in the future whether it will or will not establish a Corporation Commission. If that com- mission should be established the duties which are now performed by the Board of Public Works would be assigned to the commission and the Board of Public Works abolished. Therefore, I think it would be unwise to attempt to fix irrevocably now any provision in regard to a Board of Public Works, as that matter ought to be first decided on, and that it would be best to pass by Sections 11 and 18, those being the only sections in the report having reference to the Board of Public Works. It seems to me that would be especially desirable in view of the fact that there are in the report other sections still blank which would have reference to that matter, because they relate to providing for the manner of election of certain officers who would be members of that board. Mr. Cameron: Mr. President, in view of all the circumstances, in view of the fact that we have several other sections delayed on the same account, I think nothing would be lost by passing by the consideration of Section 11 and 18 until the matter shall be further determined. I, therefore, make that motion. The President: The question is on the motion of the gentleman from Petersburg (Mr. Cameron), chairman of the committee, to pass by Sections 11 and 18. The motion was agreed to. Section 12 relating to the office of Secretary of the commonwealth, was then read. Mr. Portlock: I offer the followiug amendment to that section: Resolved, That Section 12 of the report of the Committee on the Executive Depart- ment be recommitted to that committee. f Mr. President, I simply have a word to say in this connection. I presume there will be no objection on the part of the chairman of the committee to treating this section as he agreed Section 11 should be treated, and referring it back to the committee. I took the position before the Committee of the Whole, when this matter came up, that this section, referring to the Secretary of the Commonwealth, especially as to the provision therein made for his election to office, as also the combining of his office with that of the Register of the Land Office, was injudicious and againt-'t the best interests of the State, when we come to consider the importance of that office, the small salary involved and the fact that Ave must offer some inducements beyond those offered in this section as to his selection, in order to obtain the service of an efficient officer in that position. Now, Mr. President, without enlarging upon the matter at this time, I simply want to call the attention of the Convention to the fact that the committee has not onlj- passed by Section 11 and recommitted it, but that there are several other matters yet to be considered by the committee, as shown by the report. You will find, on page 9, that there are various matters to be acted on, the first being tliat of the office of Treasurer, which has been wholly passed by up to this time; that the office of Auditor of Public Accounts has not been considered, or certainly has not been acted upon by the committee; that nothing has been reported in conection with the office of Second Auditor, and the same is true with reference to the official bonds of officers handling finances of the State. The committee have also passed by a section here relating to a Bureau of Argiculture and a Board of Public Works. Inasmuch as the committee have all these matters to act upon hereafter, not having acted upon them or reported upon them, and are to consider them in committee as a standing committee, I hope the committee will agree to recommit Section 12, along with all these other sections in view of the fact, as I consider it, that a grave mistake has been made, and I am satisfied it is one which even members of the committee, certainly som^e of them, will agree to correct. Mr. Cameron: Mr. President, I will say for the information of the gentleman from 119 — Const. Deb. 1882 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Norfolk county (Mr. Portlock) that the Committee on the Executive Department has acted on each one of these current subjects, but, subsequent to arriving at a decision and after the report was made to the Committee of the Whole, the fact developed that these various matters which have been passed by heretofore were in the hands of other committees of this body, and in such a state of progress as enabled us to siee the strong probability, if not the certainty, that our action would have to be modified in regard hereto by the action taken by our committee. I should have no objection to passing by this section if the same reason, or others as good, could be shown for so doing; but I do not see, I must confess, why this body is not as able now to determine the ques- tions raised by the gentleman, and as to the wisdom or unwisdom of the election of the Secretary of the Commonwealth by the people, and the wisdom or unwisdom of merging the office of Register of the Land Office into that office as at any other time. Certainly the committee gave both those questions patient investigation and rendered its unani- mous opinion thereon. The President: The question is on the motion to recommit, made by the gentle- man from Norfolk county (Mr. Portlock). The motion was rejected. Mr. Ayers: I desire to offer the following substitute for Section 12: A Secretary of the Commonwealth shall be elected by the joint vote of the two houses of the General Assembly, and continue in office for the term of four years unless sooner relieved. He shall keep a record of the official acts of the Governor, which shall be signed by the Governor and attested by the secretary, and when required he shall lay the same, and any papers, minutes or vouchers pertaining to his office, before either house of the General Assembly, and shall perform such other duties and shall receive such salary as may be prescribed by law. All fees received by the secretary shall be paid into the treasury. Mr. Fairfax: I offer as a substitute for the amendment, to strike out all after the manner of his election. The amendment of the gentleman from Wise (Mr. Ayers) is simply the wording of the old Constitution. Section 12 attempts to define many duties, and so on, that have been in controversy here in the past and have not been understood properly. I think the subjects ought to be separated. Mr. Withers: I desire to offer the following amendment: In line 12, after the last comma, add the words, "and to the office of Superintendent of Public Printing." That part of the section would then read: "He shall discharge all the duties heretofore attaching to the office of Register of the Land Office, and to the office of Superintendent of Public Printing, and such other duties as may be prescribed by law." Mr. Withers: Mr. President, I offer this amendment because under a general in- corporation law, it is to be presumed, and it will very probably be the case, that the office of Secretary of the Commonwealth will become the most important executive office, with the exception of the office of Governor and the Auditor of Public Accounts. I believe it is conceded by everybody who has made an investigation of that offi.ce that the duties of Secretary of the Commonwealth, since this Convention has seen fit to put the control of the Library in the hands of a commission or board, which pro- vision has been adopted both in Committee of the Whole and in Convention, are prac- tically confined to two things, keeping the minute books of the official executive re- cords and the copying and issuing of charters. Of course, the Secretary of the Com- monwealth has some other duties to perform. We understand that he signs notaries' commissions and various other commissions, that he certifies certain things under the great seal of the State; but I believe the office of Secretary of the Commonwealth should be made one of importance and magnitude, the duties of which would be such as to engage the time and attention of those officials who are called upon to fill it, DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGINIA. 1883 and in addition to that to justify the payment of a proper and efficient salary to the official whom the people shall select for that office. I believe, Mr. President, that since our action of yesterday, by which the clerk of the House of Delegates is made the keeper of the rolls of Virginia, and that duty which was originally proposed to be put upon the Secretary of the Commonwealth has been taken from him, that officer cannot only acceptably perform such duties as are pre- scribed by law for that office, but in addition to that can and ought to perform the duties of Register of the Land Office and Superintendent of Public Printing. I respectfully submit that the office of Superintendent of Public Printing prac- tically amounts to nothing as it is now constituted and as the law provides for it. The Superintendent of Public Printing does not even have to, nor does he, read the proof-sheets. He simply makes contracts, lets out bids, has advertisements printed and posted, and returns the volumes as printed and bound to the proper departments or to the General Assembly. He has practically nothing to engage his time. The business of superintending the public printing of the State would be under the control and direction of the Secretary of the Commonwealth, the officer who has under his con- trol the records of the State, who keeps the official acts of the Executive, whO' knows everji^hing the Legislature does, and has in his office a record of practically all of its acts. It may be said an expert public printer is needed. He is no more needed than an expert public architect is needed; and even if he is needed, the way to meet that difficulty would be to enable the Secretary of the Commonwealth to make a contract and submit it to an expert printer and see whether the printer taking the contract has properly performed his duties. It would be a matter of a few minutes, a few hours, or, at most, a few days. As it is now constituted, the office of public printer is no protection to the State of Virginia. On the contrary, it seems to be the reverse of a protection to the State. In the hands of the Secretary of the Commonwealth, an official whose importance will be second only to that of the Governor, and possibly the Auditor of Public Accounts, these matters can be ever looked into, ever supervised and controlled with intelli- gence, authority and discretion. We will recall that during the original discussion of quadrennial sessions in this body last September, when sitting in Committee of the Whole, the question of the cost of printing the acts of the General Assembly, and the bills, resolutions, etc., introduced there, as compared with the years when there was no General Assembly, came into controversy and was settled by a reference to the books or reports of the Auditor, and by a letter from the public printer. According to tliat letter, which I hold here, it seems that when the General Assembly is in session and the people of the State have the greatest amount of public printing to be done, by a combination of printers in the city of Richmond the State is mulcted in far more charges for a greater amount of printing than in the years when there is comparatively little printing to do. That letter is dated September 24, 1901, and is addressed to the gentleman from Brunswick (Mr. Turnbull). It contains an explanation of the large cost of printing for the year 1900, which embraces a great part of the printing of the acts of the General Assembly of 1S99-1900. The letter reads: In reply to your favor of the 24th instant, I beg leave to say that the cost of printing and binding the annual reports was not included in the statement furnished Mr. Boaz. During the fiscal year ending September 30, 1899 Wtien the General Assembly was not in session, which is my own addition — There was no session of the General Assembly, and owing to great competition for the public work between the printers and binders, the prices bid were lower than during any year since the war. 1884 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. So that the public printer seems not to have the power and autliority to prevent a combination among the printers of the city of Richmond, during the year when the den' and for public documents is enormously increased, whereby the prices of printing greatly increased and enhanced, and thereby the State is practically mulcted by reason or the incj-eased charges and cost of printing. So, Mr. President, I believe we should vest the duties of public printer, such as are now or may be hereafter constituted by law, in the office of the Secretary of the Commonwealth, whose salary and duties and responsibilities will be such as to enable him tO' be ever present in the City of Richmond, and, with full charges and supervision and control over the public printing, to prevent any combination whereby the State's cost and expenses for having its public documents printed may be greatly and unjustly enhanced. In addition to that, the Secretary of the Commonwealtb, with the proper control and supervision over the public printing of the State, may let out contracts in other cities of the State than the city of Richmond. Ttie Convention, in printing the memo- rial in honor of the deceased President, William McKinley, has had a striking illustra- tion of the advantage of putting in competition with the printers of Richmond the printers of another city, to^wit, Lynchburg, and the saving that was incurred thereby. Mr. Meredith: How would you have the journal and things of that kind printed? For that kind of work you are necessarily thrown upon the printers of the city of Rich- mond, and they could take advantage of it, but I do not see how the Secretary of the Commonwealth could prevent that any more than the public printer could. Mr. "Withers: He could not, except and only by reason of the fact that he could let that printing to nearby cities, such as the cities of Petersburg, Fredericksburg, Ashland, or places of that kind, to meet that particular emergency; but in getting out the annual reports of the various officers and bureaus of the government he would have a free hand to meet any such possibility of combination. An expert printer is not required in the office of public printer. There is no need for him. There is not even the necessity of reading the proof-sheets. Expert printers cannot be gotten without high compensation, and the office of public printer is deemed so unimportant and so little that the compensation attached thereto' is necessarily small; but if we submit it to the supervision of the Secretary of the Commonwealth, where it properly belongs he can let the contract and have the widest possible control and supervision. Whenever it is necessary he can submit to a trained, expert and dis- interested printer a contract made for printing, and then say whether or not it comes up to the specification and the bids. I submit we do well, without considering in this or any other instance the ques- tion of economy, when we do away with any office that has so little duties to perform that, except during the sessions of the Legislature or a deliberative body like this, there is practically nothing to do except to print mere repetitions of the reports from year to year, and that the Secretary of the Commonwealth ought to be endowed with all duties that pertain to the control of the State records and the printing thereof, and be allowed the fullest margin, as doubtless the Legislature in its wisdom will see fit to provide, to meet any possibility of a combination whereby, when the greatest amount of printing is to^ be done, the highest prices, are asked. Mr. Fairfax: Mr. President, I wish to withdraw the substitute I offered for the amendment of the gentleman from Wise (Mr. Ayers). Mr. Watson: I have but little information on this subject. I can see that the proposition of the gentleman may result in financial economy. If that be true, I should like to have from the gentleman, who seems to have investigated this matter, a state- ment of what economy there is in the change he suggests. Mr. Withers: The gentleman can take the reports of the public printer and the letter of the public printer, which are my sole sources of information, and compare the prices of printing the same things the year the Legislature was in session and the year it DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIEGIXIA. 1885 was not in session, and see that the increased competition of the year 1899, when there was no session of the General Assembly, decreased enormously ihe price of printing over that of the year 1900. That is a mere matter of information from the report and from this letter. I wish to have it understood that I do not attack the public printer. I simply state the facts as furnished by him and let the Convention pass upon whether the law is a w^ise one or whether it is wisely administered. Mr. Meredith: Mr. President, I do not know whether the gentleman proposed to characterize it as an attack, but surely the deductions to be drawn from the remarks that have been made by him, and the alleged facts he has cited, would be a very severe indictment against anybody who purported to be honest. Mr. Withers: I do not know whether it is the fault of the public printer or the fault of the law, but there is some fault, if the gentleman will permit me, when the cost of printing during the legislative year are enormously greater than during the year when the Legislature does not meet, for the same kind of work. Mr. Meredith: Here is the statute in regard to the public printer: '"He shall let out to the lowest responsible bidder, experience and facilities possessed at' the time being considered" — necessarily so in printing — "a bid which shall be determined, in case of an appeal during the sessions of the General Assembly, by the Committee on Public Printing, and during vacation by the Governor and Secretary of the Common- wealth." There is an opportunity to bid. There is an opportunity to take an appeal. It does seem to me there is no fault in the law, and there must be a fault in some Individual. It may very well happen that during the years when the Legislature is not in session there may be this bidding and competition from other cities, because from the nature of books which you can take plenty of time to print you can very well have competition from other cities; but when you have a matter that is to be put upon your desk the next morning, matter required in a day or two. hurried printing of that kind, it does look to me as if it is immaterial whether you put it into the hands of the Secretary of the Commonwealth or in the hands of the Governor or public printer, you are not going to have that competition of v,'hich the gentleman from Danville would like to have Danville have the benefit. It is just impossible to get it, because you can- not furnish the printing with the speed necessary to accommodate the members of the two branches of the General Assembly. Mr. Green: If the Secretary of the Commonwealth can perform these duties, and as to that I am not ready to express an opinion, would not that save the cost of the public printer by putting the work upon the Secretary of the Commonwealth? Mr. Meredith: I will come to that in a moment. If there was ever a pro]X)secl political junk-shop, I submit this section, as proposed by the gentleman from Danville (Mr. Withers), will make one of the office of Secretary of the Commonwealth. The Secretary of the Commonwealth is to watch the police on the square. He is to see that the dogs do not kill the squirrels. Those are to be some of his duties. He is to see that the buildings are properly taken care of; and if the roofs leak he is to see that they are mended. He is to see that the coal supply is all right. These duties are to be performed by a high and distinguished dignitary, as described by the gentleman from Danville. In addition to that he is to be the ptiblic printer. A man cannot fill this office, by law, unless he is a practical printer. How can he read proof; how can he measure proof; how can he tell one class of type from another, unless he is a practical printer? How coula draw proper contracts? Our public printer was called down to North Carolina within the last few months to testify in regard to a large claim against the State of North Carolina because they did not have a public printer in North Carolina to superintend work of that kind. I do not care anything about the office of public printer. It is immaterial to me whether tne officer comes from the city of Richmond or elsewhere; but the gentleman talks about the Secretary of the Commonwealth being a high dignitarj^ and yet, at the same time, you put upon him a character of work that is far from being exalted. It 1886 DEBATES OE THE CONSTITUTIONAL CONVENTION OE VIRGINIA. requires simply expert experiences in matters of labor. It seems to m© a contradiction of terms, and I respectfully submit to you if you undertake to take this work out of the hands of a practical printer, you will probably lose more than you will gain by it. I respectfully submit you will not save anything by the proposed arrangement. It is necessary to have somebody to perform that duty and to see that proper work is done, and correctly paid for. You are transferring various duties to the Secretary of the Commonwealth, and making a kind of hotch-potch of the office. I had an idea that if there was any office that ought to be abolished, it was that of the Secretary of the Commonwealth, from the description given of its duties by the gentleman from Dan- ville. He sai-d the Secretary of the Commonwealth had nothing tO' dO' except keep some books and preserve some records; but instead of abolishing the office of Secretary of the Commonwealth and turning the custody of these records over to, say, the Second Auditor, and allowing these other officers to perform the duties that require experience and expert knowledge, it is proposed to take from them these duties which they can properly perform and put them in the hands of an officer who does not know anything about them. I respectfully submit that neither the duties of the Register of the Land Office nor of the public printer ought to be put in the hands of the Secretary of the Common- wealth, because their duties do not apply to his office at all. They have no relation to each other, or to the duties of the Secretary of the Commonwealth. Mr. Turnbull: Mr. President, I desire tO' make a statement in reference to this matter, but I want it understood that I know the public printer very slightly. I have seen him, I think, but once, when I went down there to investigate the cost of printing for the General Assembly. When I stated in Committee of the Whole that the cost of public printing for the General Assembly, and the printing incident to it, was $24,000 and some dollars, the gentleman from Albemarle rose in his seat and said he had a letter from the Superintendent of Public Printing saying it was only $16,000, showing a discrepancy of $8,000. I was reading from a report of the public printer and he was reading from a letter which he had received from the public printer on the same sub- ject. I tried my best to reconcile this discrepancy, and so did the gentleman from Albemarle (Mr. Boaz), but we could not do it. So we called on the public printer,, and if the gentleman from Albemarle was able to understand hisi reconciliation of it,. I could not. When I wrote to him to explain how this discrepancy occurred, and why the cost one year was one amount and another year another amount, he wrote me a letter and said it was because of competition. When we went down there to! talk about it he said the cost of the pu^-iic printing during the year when it was $37,000 was exactly double as much as it was during the year before, on account of competition. Then the thing that occurred to- my mind w^as this: Of what account to the State of Virginia is a public printer, in determining whether work is properly done and whether a proper amount is done or not, if he is going to allow the printing to be double as much at one time as it is at another time, without reporting the fact to the General Assembly or the proper authorities, to enable them to take some action in regard tO' the matter. ' That is all I have tO' say on the subject. I simply wanted to state what I know about it and how I came to investigate the matter. As I understood, a skilled man is required to attend to the work. If he exercises his skill in such a way as to have the public printing cost double as much at one time as it does at another I think we had better get a man who does not know anything about it at all. Mr. Ayers: Mr. President, I call the gentleman's attention to the fact that the public printer had no^ discretion. He simply lets the public printing to the lowest responsible bidder, and when the lowest responsible bidder is a man who can do the work and give bond he is compelled to accept that bid. He cannot prevent a combina- tion of printers. If there is a fault, it is the fault of the law. Mr. Turnbull: I will ask the gentleman from Wise, further, if he were Super- intendent of Public Printing, and a skilled printer, and knew that the printers, by a DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OE VIRGINIA. 1887 combination, were charging double as much as they ought to charge, he would not report the fact to somebody? Mr. Ayers: I certainly would call it to the attention of somebody; and the public printer did call it to their attention when his next report came in, showing the increased expense. Mr. Turnbull: Here is his report and there is nothing of that sort in it Mr. Cameron: Mr. President, the committee found some difficulty in dealing with this and kindred subjects. The public printer is not a constitutional officer. The abolition by a constitutional term of an office that is not a constitutional office does not accomplish the object desired. The only mode of procedure in such a case would be to assign the duties to some other officer. We thought it incumbent upon us, on account of some resolutions this body had referred to us, to inquire somewhat into the question of public printing. We did not feel called on to express an opinion as to the merits, ability or honesty of the incumbent. We did not believe, and we do not believe, it is constitutional work to tr^^ and rectify the incompetency of a public officer, if there be incompetency. We think it is shooting a gun entirely too large at game entirely too small. The opinion of the committee was that perhaps, under the present arrangement, the interests of the State were not properh^ protected. Certainly that was my own individual conclusion; but when we began to seek a remedy, as I said, the only prac- tical wsLY was the assignment of those duties somewhere else, and we could not find any public official in the city of Richmond to whom we believed those duties could be properly and wisely assigned. The committee did not believe the Secretary of the Commonwealth could discharge these duties either with any economy or with any increased efficiency. We believe the duties of the office of Secretary of the Common- wealth, as it is to be constituted under this new instrument, will be as much as he can attend to, together with the duties of the Register of the Land Office. As to that, I shall say nothing more than I said before the Committee of the Whole. We are content to have the judgment of the Convention on the arguments that have been made; but as. to the matter of the public printer I believe it should be left to legis- lative correction. I do not believe the Constitution should take any cognizance what- ever of the matter, and I hope the amendment to that effect will be voted down. Mr. Withers: Mr. President, I wish to apologize to the chairman of the committee for speaking further at this time. I did not desire to wait until he had spoken, but I ^-Ish the gentleman from Richmoud (Mr. Mereaith) to know that I do not desire to be put in the position of personal antagonism to the Public printer. I do not know that I ever saw him but twice in my life. I have no criticism to make of him. I only attempted to state the facts in my possession. I will ask the gentleman from Rich- mond whether, as a matter of fact, the case he refers to, in which the public printer was called to Raleigh, was not brought by the printers against the State of North Carolina and lost, and whether the public printer was not for the suer and not for the sued. Mr. Meredith: I do not know enough about it to answer. The President: The question is on the amendment of the gentleman from Dan- ville (Mr. Withers). The ayes, and noes were ordered, and being taken, resulted— ayes, 35; noes 30. The amendment was agreed to. On motion of Mr. Turnbull the Convention adjourned until Monday, Januarj^ 20, 1902, at 12 o'clock M. 1888 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. MONDAY, January 20, 1902. The Convention met a,t 12 o'clock M. Prayer by Rev. George Cooper, D. D., of Richmond. Mr. Earman: Mr. President, I offer the following resolution, which I ask be read and lie on the table: Resolved, That the General Assembly shall make no appropriation for teaching theology, law, medicine, dentistry or pharmacy. THE JUDICIARY DEPARTMENT. Mr. Withers: I offer the following resolutions: Resolved, That Section 5, Article 6, of the Constitution, as contained in the report of the Committee on the Judiciary Department, adopted on the 8th day of January, 1902, be, and the same is hereby, rescinded. Resolved, That the judges of the Supreme Court of Appeals shall be chosen by the qualified voters of the State, and shall, after the first election hereunder, hold their office for a term of twelve years, unless sooner removed in the manner prescribed by this Constitution. They shall, when chosen, have held a judicial station in the United States, or shall have practiced law in this or some other State, for five years. At the first election of said judges under this Constitution one of said judges shall be elected for a term of four years, two for a term of eight years, and two for a term of twelve years. Mr. Hamilton: Mr. President, in the absence of my colleague (Mr. Cameron), the chairman of the Committee on the Executive Department, I move that the con- sideration of the report of that committee be passed by. I think he understood that would be done. He is absent to-day addressing a Confederate camp and did not think the report would be taken up again this morning. The motion was agreed to. On motion of Mr. Brooke the Convention resolved itself into Committee of the Whole for the consideration of the report of the Committee on the Organization and Government of Cities and towns, Mr. Withers in the chair. Mr. Brooke: Mr. Chairman, I shall detain the Committee of the Whole, I hope, but a short time in presenting the report of the committee. I confess, Mr. Chairman, for the committee, and for myself as chairman of the committee, we feel such an interest in this report, and such a strong hope that its provisions will address themselves to the sound judgment of the Convention, that at the committee's request I shall crave the indulgence of the Committee of the Whole, while I as briefly as possible give some at least, of the considerations which have led us tO' the conclusion at which we have arrived, and some specific explanation of the provisions of the report. The problems of municipal government are neither new nor few, nor of easy solu- tion, and it is not even the hope of the committee that all the difficulties inherent in the •subject can be successfully met and solved by constitutional enactment. In this, as in all forms of popular government, so much depends upon the condition of public senti- ment itself, upon the strength of the intention of the people of a community to have an honest government economically administered, upon the personnel of the different departments of a city government, that in considering the question v/e are almost led to agree that — For forms of government let fools contest; What'er is best administer'd is best, and to feel that the best that we can do is to place in the hands of the people them- selves the instrumentalities by which they may work out for themselves a good govern- ment, if they are sufficiently moral and public-spirited to desire it. DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. 1889 T^he problems of municipal government have recei-^ ed of late years the considera- tion of political scientists of great experience and ability, seeking to find, if they could, just ^here the difficulty lay in the acknowledged fact that municipial government in the United States, as at present organized is admittedly a failure in comparison with the governments of the cities of Europe, and possibly other countries. We have had, as a committee, the benefit of a good deal of literature on the subject. YVe have had also the benefit of personal interviews and conferences with some of the representatives of those bodies that have given this subject great consideration. They have sought to find, if they could, some false priciple imbedded in the framework of municipal govern- ment, the removal of which would remove all the difficulties which inhere in the subject, and enable all cities, at all times, to have a perfect government. We have not been misled into believing that is possible. We believe that in some cities there will sometimes be good government and sometimes bad government. In other cities the same condition of affairs will exist. In accordance with the state of public sentiment. The gentlemen who have studied this subject have found, or claim to have found, the difficulty in the fact that in constituting city governments the bodies instituting them have not recognized sufficiently the dual character of the city govern- ment, being on the one hand the mere administrative agency of the State for carrying out within the territorial limits of the city the general policies of the State, and being, on the other hand, a local government, clothed with the power of home rule, and with the power of administering government for their own inhabitants where they are dis- tinctively interested, and the questions are not related to the welfare of the State at large. Others have held that the great difficulty rests in the failure of the bodies organiz- ing city governments to bestow upon them with uniformity sufficiently large grants of the powers of local self-government. One writer, I recall, points this difference by saying that the city of New York, for instance, is ruled by the Legislature and the city of Glasgow is ruled by the people of Glasgow. I think I may say for the committee, Mr. Chairman, that while we have given those theories our consideration we have not been led into much theoretical dealing with the question, and we have come to a conclusion, largely basing our action upon this idea: That much, at least, if not the greater part, of the inefficiency of city govern- ments in the United States is due to the fact, in part, that as generally organized there is no responsible official head of city government, having such powers as would justify the people to hold him to a direct responsibility for the matter in which the govern- ment is Administered, and that the legislative department of the city governments generally so constituted as that there is no just and proper limitation upon their recklessness, or upon the ill-considered character of their legislation. We have felt, therefore, that if we could draft an article which would increase the power and the direct responsibility to the people of the community of the executive head of the city government; if we could throw around the constitution of the legislative department of the city government such guards and safeguards as might result, and probably would result, in the selection of a m^ore con- servative element to constitute that body; and if we could, in addition to that, secure the grant by uniform laws to all cities alike of the largest powers of self-government which are consistent with the safety of the State, we would, if not have over-come all of the difficulties, at least have paved the way for the people in these incorporated communities to work out for themselves a safe, satisfactory and conservative city government. I think, Mr. Chairman, a consideration of the different provisions of this article will develop the fact that all the provisions of it are related more or less directly to these lines of general thought. With that general presentation of the general considerations which have controlled us, with the consent of the committee I will take up and briefly explain the different provisions of the article itself. The first section, gentlemen, consists of a definition: 1S90 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. All incorporated communities, having within defined boundaries a population of five thousand or more, shall be known as cities; and all incorporated communities, having within defined boundaries a population of less than five thousand, shall be known as towns. Then the determination as to the population is to be according to the last preceding Federal census, or such other enumeration as may be made by the authority of the General Assembly. This definition is practically the same as that found in our general laws in the Code of Virginia. The Constitution under which we live, in the article relating to the government of cities and towns, simply provides that all cities having five thousand inhabitants shall have a certain government. The Legislature which met very shortly after the adoption of that Constitution defined cities as incorporated communities having five thousand inhabitants and having a hustings court. I shall not waste any time in undertaking to justify the advisability in dealing with a subject of this sort, if for mere convenience, if for no other purpose, we have a definition almost a matter of nomenclature. A difficulty did arise, however, in the drafting of this provision, in connection with the judiciary report. As was developed in the discussion of - the judiciary report, there are a number of cities incorporated in the State of Virginia having less than five thousand inhabitants, which have city govern- ments and corporation and hustings courts. How they got them under the Constitution which was then in force I do not know. It was the policy of the Judiciary Comtiiittee, which has been approved by the Convention both in Committee of the Whole and in Convention itself, to allow all such communities, having less than ten thousand popula- tion and having these courts, to retain them upon certain conditions. That result, however, in the article which has been accepted by the Convention coming through the Judiciary Committee, is brought about by a provision for the abolition of these courts by communities of this. size. The provision; stating from memory, is that cities of under ten thousand inhabi- tants — cities of the second class — may, by a process of election, abolish their hustings or their corporation courtsi. Now, it occurred to us at once that if we gave a definition of "cities" which should embrace only incorporated communities having more than five thousand inhabitants, if we read the judiciary report or the report in connection with the general definition, the judiciary article saying simply "cities of under ten thousand inhabitants," and our definition being that nothing was a city that had under five thousand inhabitants, the word "city," as used in the judiciary report, would refer only to those incorporated communities which had between five thousand and ten thousand inhabitants, and these incorporated communities having under five thousand inhabi- tants wou^.. not, under the judiciary report, have the right to retain their hustings courts even under the conditions accepted by the Convention. We, therefore, added to our definition the proviso "that nothing contained in this section shall be held to repeal the charters of any incorporated community of less that five thousand inhabitants having a city charter at the time of the adoption of this Constitution." We thougnc then we had met the difficulty, but the peculiar form — it is satisfactory, I do not mean to criticise — ^in which the thirteenth article of the report of the Judiciary Committee is drawn, left us face to face with another difiiculty. We desired in our report to bear out the intention of the Convention in its adoption of the thirteenth section of the judiciary report. That article, as I have said, was drawn in such a form as provided for the abolition of these courts, and not for their continuance. If we simply stated in our proviso that nothing in our definition should be held to repeal their charters, that would secure to them the continuance of their hustings court, but there would be an omission of any provision by which, if the time ever came when they desired to get rid of them they could get rid of them, because the right to abolish the hustings courts of these small communities was provided in the judiciary report in language which said that all cities of less than ten thousand inhabitants should have that right. If our definition prevailed there are no cities of less than five thousand population, and, therefore, the incorporated communities of DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGINIA. 1891 less than five thousand inhabitants would not have the right to abolish these courts if they desired to do so, in accordance with the provision of the judiciary report. Therefore, when v/e come to take up this provision for passage I think I am justified in saying the committee will accept or will make an amendment, adding these words to the thirteenth line: "Nor to prevent the abolition by such incorporated com- munities of the corporation or hustings courts provided in the manner prescribed in Article VI of the Constitution." I am sorry to have taken so long to explain that one particular clause, but it was a little bit involved in the way in which it presented itself. I think it is now clear that the definition adopted by us does not affect the continuance, in communities hav- ing less than five thousand people, of their hustings courts, if they want them, nor prevent their abolishing them if they choose to do so. The second section, gentlemen, provides for uniform lav/s for the organization and government of cities and towns: General laws for the organization and government of cities and towns shall be passed by the General Assembly in the manner prescribed by this Constitution, and no special act shall be passed in relation thereto, except in cases where, in the judgment of the General Assembly, the object of the act cannot be attained by general laws. That language, down to that point, I think, is identical with the language found in the present Constitution. The committee, in considering this question, found that the constitutional provision which I have just read, and which has been a part of the organic law of the State since that Constitution went into effect in 1871, had not pre- vented at all the passage by the Legislature of special acts relating to the government and organization of cities and towns. Presumably they were all passed under the general theory that the object of the act could not be obtained by general law. We felt we could probably guard that, believing that unifomity in the grant of municipal powers was a desirable thing, not only in relation to the character of city govern- ments themselves, but in order to relieve the Legislature from the burden of this great mass of special legislation. Finding that this provision had existed for forty years without preventing the difficulty, we undertook to guard it by adding this lan- guage: "And then only by a recorded vote of two-thirds of the members elected to each house of the General Assembly." That clause is new. The view of the committee was that if the language down to that point had been ineffective as contained in the present Constitution, it might possibly be ineffective in this Constitution if adopted as it stood and without addition, but we thought if we provided that no special act with regard to the organization and governments of cities and towns could be passed without a recorded vote of two-thirds of all the members of the Legislature, and if we took that provision in connection with the provision of the legislative report, which has been adopted, raising a standing committee who should always examine these acts and report whether they are local or can be attained by general laws or not, we would have put a sufficient guard against the multiplication of special acts relating to the government of cities and towns, and yet we would not have absolutely shut off the Legislature from passing such an act when it was clearly to tne benefit of the city which applied for it, and not impingeing upon the general welfare. We have believed, Mr. Chairman, that the framework of city government should be placed in the Constitution in the simplest and most essential forms. We, therefore, have felt that it was necessan- to provide the framework for a judiciary department, for a legislative department and for an executive department. The judiciary system applicable to cities, and towns had already been reported by the Judiciarj' Committee, and has been adopted. We, therefore, make no recommendation at all in regard to that, simply stating as our third section that the judiciary system for cities has been reported by the Committee on the Judiciary. Mr. Meredith: In regard to the second clause I should like to ask v/hether you 1892 DEBATES OF THE COi^STITUTIO^^AL CONVENTION OF VIRGINIA. regard that language as sufficiently broad to allow the Legislature to classify the Cities? Of course, it would not do to have general laws for cities of five thousand people apply to cities of eighty thousand. The expenses of government would be so great that they could not bear them. I simply desire to call your attention to that, and ask whether you regard the language as sufficiently elastic to allow the Legislature to provide, under general laws, for classification of cities, so that they could have municipal forms of government suitable to their government? Mr. Brooke: If the gentleman from Richmond (Mr. Meredith) will permit me I will answer that question, not categorically at first, and then give an answer categori- cally. To deal frankly with the gentleman and with the committee I wish to say that the Committee on the Organization and Government of Cities, and Towns took up, with great care, the question of the division of cities into different classes according to population. The original draft of this section, as submitted to the committee, had in it the language "uniform as to the class to which they relate." The question was con- sidered maturely, and the committee was advised in regard to it by the representatives of the National Municipal League, which, I will state to the committee, is an organiza- tion started about six years ago for the purpose, if possible, of taking up this question of municipal government and formulating some general principles which would give us a Utopian government hereafter. The president of that body is James, C. Carter, the distinguished lawyer of New York. At their request we gave a hearing to their representative. We took up with him the question of classification of cities. His statement was — and we have it in his publications — that as far as. it had been tried it had resulted certainly not so well as had been expected, but practically in a failure. One of the difficulties toi which he called attention was that the Legislature might so classify cities as to embrace in each classi only one city, and in doing so thus absolutely destroy the fundamental doctrine of uniformity of laws for the organization and govern- ment of cities; and as a matter of fact, in Ohio, and I think in Kentucky, the Legislature coming on, after such a provision as this in the Constitution, has simply said that the city of so and so shall be regarded as a city of the first-class, the city of so and so be regarded of the second-class, and so on; so that when they came to pass, in the lan- guage of the Constitution, uniform laws as to the cities to which they relate they were absolutely free-handed to pass all sorts of special laws relating only to the individual cities as they came up. My own personal invesiigations enrried me a little bit further. It so happened that at that time it was necessary for me to go to- Scranton, Pa., upon a matter of business. While there I wa'fe brought into contact with a good many lawyers and some judges — whether they were lawyers or not is another question — and I recollected that in Pennsylvania this doctrine of the classification of cities had been accepted in its convention, and the classification had been made by the Legislature. The cities of Scranton, Alleghany and Pittsburg constitute the second or third-class. I have forgotten which, but they are in one class. I asked those gentlemen there how it operated. They told me in general terms that it was a failure, that so far as Scranton was concerned, at least, Scranton was the smallest city of the three, and that it could practically not only not get any legislation which it wanted, but that it could not prevent being made applicable to it legislation which was desired by the larger cities of Pittsburg and Alleghany. Now, answering the question of the gentleman from Richmond (Mr. Meredith) categorically, I think the history of this article would justify me saying that I do not consider it broad enough to cover classification. It was originally drawn with the language in it, "uniform as to the class to which they relate," because in the opinion of the committee at that time it was not sufficiently broad to cover a classification of cities, if it was made. That language was stricken out because we did not intend to classify, or we did not think it would be wise to classify, cities; and as the language DEBATES OE THE C0X5TITUTI0XAL COXVEXTIOX OE TIEGIMA. 1S98 now stands., wiih the history of the adoption of this article by the committee, I would say it is not broad enough to cover the power of the Legislature to classifj' cities. Mr. ^leredith: Is it contemplated that there will be a general law forming the chaiter foT cities O'f all sizes? ;\Ir. Brooke: Yes, sir. ]\Ir. ]\Ieredith; I think the charter for a city of five thousand inhabitants would be too small for the city of Richmond. Mr. Brooke: That is a question that has also been considered to some extent by the committee. The idea was that the Legislature, in passing unifoiTQ laws for the government of cities, being incorporated communities of more than five thousand inhabitants, would grant to them all alike all of the pov.-ers granted to any, leaving it in the discretion of the cities, as their necessities might require, to make use of those laws or not. If a city of ten thousand inhabitants, having its charter as a mere grant to be used by its people in their discretion, should undertake to encumber itself with such a government as the city of Richmond or the City of Norfolk has, of course it would operate harshly, but the idea was that it ought to be a matter of State policy as to how much of the powers of local self-government should be given to these State agencies of local governments, and leave it to the local necessities of the people to be determined by them as to how much of it should be used by them, thus taking away the necessity for the individual localities, from time to time, as their necessities should develop, to apph.- to the Legislature for special laws, and taking away from the Legislature the temptation to interfere by passing laws with regard to the govern- ment of these towns. Before leaving that otiestion I wish to- say, in passing, that in this State, and in most of the Southern States, we have never felt, to the full degree, the misfortune of having the Legislature ex mero rnotu to undertake to interfere in the government of the cities, but in the States of the North, where there has been a difference in the political party which has power in the State from the political party which had power in the cities, that danger has been -esperienced. and has been felt to be exceedingly onerous upon the cities,, such as the State of New York, being Republican as to its State Govern- ment, undenaking to govern from the city of Albany the city of NeAv York, which is Democratic in its local politics. So in Philadelphia and other cities. The thirteenth section of the judiciary report, providing for a judiciary system makes no provision whatever for the court officers who should be provided for in the cities. It. therefore, became the duty of the Committee to provide for those officers. Section 4 of the report provides: In each city which has a court in whose office deeds are admitted to record, there shall be elected by the qualified electors of such city a clerk of said court, who shall hold his office for a term of eight years, and perform sucn other duties as mav be required by law. There shall be elected in a like manner and for a like term all such additional clerks of courts for cities as the General Assembly may prescribe. That provision was adopted to conform to the judiciary report in its thirteenth section. The fifth section of the report is: In every city which shall have under the provision of this Constitution a corpora- tion or hustings court, or a separate circuit court, there shall be elected by the qualified electors of such city one Commonwealth's attorney, who shall also, in those cities having a separate circuit court, be the Commonwealth's attorney for such circuit court, and who shall hold his office for a term of four years. That was adopted also to conform to the judiciary system which nad been reported by the .Judiciary Committee. Section .5 proceeds: In every city there shall be appointed in a manner to be prescribed by law one 1894 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. commissioner of the revenue, whose duties and compensation shall be such as may be prescribed by law, and who shall hold his ofRce for a term of four years. It is giving out none of the secrets of the committee to say that we had quite a contention in the committee over that provision. It was finally adopted by a majority of the committee, I think, largely, because it put that office in the cities upon the secure footing upon which the same office in the counties was put by the action of the Com- mittee of the Whole upon the report of the Committee on the Organization and Govern- ment of Counties. That is equally true of the sixth section, which provides for the city treasurer and the city sergeant, and is as follows: In every city there shall be elected by the qualified electors thereof one city treasurer, who shall serve for a term of four years, but who shall not be elected nor serve for more than two consecutive terms, nor act as deputy for his immediate successor. One city sergeant, who shall hold his office for a term of four years, and whose duties shall be as prescribed by law. Those officers are the same that now exist under constitutional provision in all of the cities. The changes are only in relation to the terms of office and the manner of their selection. In this section we also provide that in all cities there shall be a mayor, who shall hold his office for a term of four years, who shall be the chief executive officer of such city, and who shall see that the duties of the various police and city officers, whether elected or appointed, in and for such city in pursuance of this Constitution or the general laws, are faithfully performed. I will say, after reading that far, that down to the seventeenth line that is the section as it now exists in the present Constitution. There are some changes after the seventeenth line, and I will go on and read them: He shall also have power to suspend or remove such officers for misconduct in office or neglect of duty, to be specified in the order of suspension or removal; but no such removal shall be made without reasonable notice to the officer complained of, and an opportunity afforded him to be heard in person, or by counsel, and to present testi- mony in his defense. I wish to call attention to the fact that no removal shall be made without reasonable notice, but there isi no provision that no suspension shall be made without reasonable notice, because suspension may become instantly necessary, and a removal can be pro- vided for by a suspension pro tempore, until the removal takes place. We thought it was desirable not to leave this power in the mayor as arbitrary as it had heretofore existed in him, for two reasons. The first was that there was a danger of his going to the extreme of acting with absolute arbitrariness, and the other was we recognized that the officer to be suspended or removed had no redress in acting at all. So .^at we have provided that: From such order of suspension or removal, the officer so suspended or removed shall have an appeal of right to the corporation or hustings court, or to the circuit court of such city, in which court the case shall be heard de novo by the judge thereof, whose decision shall be final. He shall have all other powers and duties which may be conferred and imposed upon him by the general laws. Now, gentlemen, I said in the beginning that our attention was largely directed to the securing of better city governments, by enlarging the powers of the mayor and Iiolding him to a greater responsibility, and by guarding, if possible, the constitutent elements of the city's Legislature. I will not take the time of the committee by reading these long provisions exactly, and I desire to consider them together in what I have to :say. DEBATES OE THE COJ^STITUTIOXAL CONVENTION OE VIRGINIA. 1895 The eighth section gives the mayor a veto power, but it is guarded, as is usual in such cas.es, by authorizing the coui:cil, by a two- thirds recorded vote of each branch, to overrule his veto. It also gives the power to the mayor to veto a single item of an appropriation bill. I understand you gentlemen had quite a discussion on that point the other day in connection with the governor. Now, giving the mayor the power of the removal of these officers, and giving him the power to veto a bill and to make his veto prevalent unless it is overruled by a two^thirds recorded vote of both housesi, seems to us to bring about the result that the mayor of a city can never hereafter, as he has been constantly able to do in the past, excuse himself from responsibility for mal- administration of the executive department, on the one hand, because of hisi power of removal and suspension (and giving him the power carries with it the responsibility), nor to excuse himself for reckless or ill-considered legislation on the part of the city council, because he has the power to put his veto upon it, and if he doesi not do that, and it is undesirable legislation, he is responsible to the people of the city, and will feel that responsibility and exercise his power whenever it seems to him to be neces- sary. Heretofore, in my own observation, when the attention of the mayor of a city has been called tO' the fact that vicious legislation was before the council and apt to be passed, and he was besought to use all the influence he had in order to check it, his answer has invariably and truthfully been, "I have no more power in connection with this matter than you gentlemen who are protesting. All I can do is to go upon the floor of the council and help you to lobby against it. I have no power and no responsibility with regard to it." There are some cities in Virginia where the veto power does exist. I am told it exists in the city of Richmond ; but curiously enough, it may be overridden by a majority vote of uiose who are elected to the different branches of the council. It may have the effect, though I doubt whether it has, of giving publicity to tnreatened, undesirable legislation, and making the people aware of what is going on; but it gives no power practically to the mayor and justly does not hold him up to any responsibility. Mr. Thornton: This veto power to which you refer, I presume, refers to cities only. There is no provision as to counties or towns. Mr. Brooke: It refers to cities only. The second section of this article provides in general terms for the passage by the Legislature of general laws for the organiza- tion and government of cities and towns. It has been the policy of the committee, except in very few instances, not to deal with the question of the organization and government of counties, leaving that wholly to the Legislature as it now is left to the Legislature under our law. There are some few cases in which we do deal with it. For instance, we do not allow a town to create too much debt. Now, having tried to clothe the mayor with the necessary power to justify holding him to a strict responsibility to the people of the community, the committee came to the second branch of this question, to be considered just as an added provision, to secure the same end. That was in regard to the constitution of the councils. The present Constitution of the States makes no provision for city councils at all. The result is that the provision with regard to councils, their constitution, their organiza- tion, their powers, are just as variant as the city charters are numerous, and we have been faced all the while with the practical difficulty that whenever we undertook to consider any question with regard to the organization or power of the council of a city, from first one city and then another would come to us the statement that that would bring about a change in their organization or a change in their power. If we had sought or attempted to please all we would not have been able to get any article in at all; so we held to our original idea, to bring about a better condition of affairs, if we could, by increasing the responsibility and the power of the mayor on the one hand, and, in addition to that, throwing around the constitution of the councils of the cities such safe-guards as we thought would tend to bring about a more conservative member- ship. In order to do that we have provided that in all cities there shall be a city council, 1896 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. and it shall consist of two branches. Permit me to pause here just a, moment to say, in connection with tnis, that we have had from different cities in the State some inquiry as to this matter. Some of the cities of the State do not have the two branches now. while some have. The matter we were trying to accomplish, to which the division of the council into two^ branches was subsidiary, was to secure a due weight in the coun- cils of the city of the conservative element that might be elected to it. You have one city council, we will say, of thirty members, in one branch. Ten or twelve of them might be the most conservative men who could be selected by the people of the com- munity, and eighteen or twenty of them might be men ordinarily good, but men of no experience, of not much interest in the community, of no legislative knowledge, and no grasp of the situation which would come upon them in dealing with the legislative matters of the city. If you have one branch you may have a large lump of leaven in the branch, but it will not leaven the whole. These ten or twelve conservative men are always in the power, if not always overpowered, by the larger number of men less conservative and less qualified to deal with these questions. i'hen, how were we to deal with this question? It was not possible nor proper for us to say that peopde who had no property or who had no fixed interest, by the ownership of property, in a community could have no membership in the council. It would not have been right in the beginning. It would not have been right to say to men whose interests are involved in the prosperity of the city, but whO' have no interests growing out of the ownership of property in the city, that they should have nothing to do with the legislative department of the city. That being true, the only way we could bring about what we were seeking was to call for a division of the council into two branches, one of a smaller number of members than the other, and make the larger branch what might be called the popular branch, to which everybody who had a right to vote could be elected, and then to concentrate in the smaller branch the conserva- tive element by fixing a property qualification, very low, but a property qualification to the membership in the lesser branch, and thus erect a system of checks and balance which seems to be one of the underlying principles of our legislative government, whether applied to national. State or city government, and making the conservative element of the one branch have power enough to really check improper, hasty legisla- tion on the part of the other branch. We have felt that by giving the mayor the veto power, and giving him greater power over the officers, the people of the city could hold him to a direct responsibility for maladministration in the executive department, or reckless legislation in the legislative department; that we could hold the mayor responsible to them, and we could hold up his hands by constituting a conservative branch of the city councils, which would be a check upon ill-considered and reckless legislation; and we have felt, and we submit it to the gentlemen of this committee, that that result, if it shall be acquired, will far more than outweigh any little incon- venience which may result from a reorganization of the councils in those cities where the councils now consist of only a single branch. We hope the Legislature will find it in accordance with their authority to give a large degree of the power of local self-government, but there are some powers we feel ought to be withheld from the people of a city, beyond the power of the Legislature to grant, and there are some which we think ought to be bestowed beyond the power of the Legislature to withhold. In the first-class of those powers which should be restricted by the Constitution so that the Legislature may not grant them, the most important, probably, is that which is provided for in Section 11, as follows: The rights of every city or town in and to its water front, wharf property, public landing, wharves, docks, streets, avenues, parks, bridges, and all other public places, are hereby declared inalienable except by an ordinance or joint resolution, and it shall re- quire a recorded vote of three-fourths of all the members elected to such branch of the council of said cities, and in case of the veto by the mayor of such an ordinance or joint resolution it shall require a recorded vote of three-fourths of all the members elected to such branch of the council to pass the same over the veto. DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 1897 That is somewhat of an exception to the general rule of veto which we have estab- lished. These properties of the city cannot be aliened by the city except by a three- fourths vote of all the members. The mayor has still the right to veto that, but whereas his ordinary veto can be overcome by a two-thirds vote, this veto must 'be overcome by a three-fourths vote. I simply call atttention to that in passing. Then, in the same section, we have prohibited the cities from granting any fran- chise for the use of its streets, etc., for a longer term than thirty years. We have also provided in that section, Mr. Chairman, that when a franchise is granted by the city council it shall not be within, the power of the council and the grantee of the fran- chise to make an agreement as to what is to be done with the franchise at the expira- tion of the thirty years. Of course, a new grant upon different terms might be made to the same people, but if it ever happened that that was not desirable, then what vrauld become of it? And it is provided here that they make a provision in the beginning that the city shall take the franchise over, either upon a valuation, or without a valua- tion; but here is the most important part of that clause: The city might become possessed of a plant which it had no power to use. Its ownership would be destruc- tion of the plant so far as the legislative grantees of the franchise were concerned, but it would be of no use to the city. So that this section provides, without at all countenancing as a general idea that cities ought to have the right to operate properties of public utility, such as street cars, etc., it goes on to provide, however, that if the city does, become possessed of such a franchise by virtue of forfeiture, or by virtue of some arrangement of this sort, it may have the right to operate it for the purpose of giving it a value to some fi^^'-.re purchaser. Now, gentlemen, I am very nearly through with what I have to say. I am afraid 1 have taken more time than I desired to take, but I did want this report, and the reasons which guided us in its adoption, to^ be presented to the committee so that we might avoid any unnecessary debate, about it. Of course, I do not expect to avoid debate, and I do not object to debate. I simply wish to call attention briefly to two or three other clauses. The twelfth section provides for the passage by the General Assembly of some uniform laws looking to the extension and contraction from time to time, as occasion may require, of the corporate boundaries of cities. The only other clause of any importance is the thirteenth. That provides a limit upon the bonded indebtedness. That is one of the respects in which we thought the Convention ought to tie the hands of the Legislature in their grant of power to the cities. I am not going into the details of that until the question comes up, except to^ say that, of course, a practical question would always arise as to what was to be counted in estim-ating the bonded indebtedness of a city. All of us who have lived in cities, and have some slight knoAvledge of the manner in which their government is run, know that times do come v/hen the cities are bound to borrow money, in anticpa- tion of their current revenues, to meet their current expenses. It has been done in my city very frequently by a simple note, discounted by the banks. It may be done by a revenue bond. It may be done in a great many ways. The question was whether it was fair to consider that in estimating the amount of the bonded indebtedness of a city. We have provided that in doing so there shall not be taken into consideration : Certificates of indebtedness, revenue bonds or other obligations issued in anticipa- tion of the collection of the revenue of such city or town for the then current year- Provided, such certificates, revenue bonds or other obligations mature within one year from the date of their issue, and be not past due, and do not exceed the revenue for such year. If they are past due they ought to become a part of the great mass of the city's, i!idebtedness, because the fact of their past maturity, to some extent, emphasizes the inability of the city to meet its obligations, and it is nothing more than fair that a halt should be called right there. 120 — Const. Deb. 1898 DEBATES OF THE CONSTITUTION'AL CONVENTION OF VIRGINIA. There are some cities that operate water works; others that operate gas works. I suppose nobody would undertake to say at this time just how far, in the passage of time, the doctrine will become more and more popular that cities may have the right to operate these public utilities. I am told that in some of the European cities they do own their street cars, and do own almost all of those public utilities; but, so far as this country is concerned, so far as our population is concerned, certainly so far as the State of Virginia is concerned, this doctrine has extended as yet only to the owner- ship and operation of water works, gas light companies, and some such kindred com- panies. It is not fair in estimating the bonded indebtedness of a city, and whether it has arrived at the permitted percentage or not, to include the bonds which have been issued for the erection of these plants, and for the operation of them, from which the city expects to get a revenue, and does get a revenue, sufficient to pay the interest and in time to pay the bonds, because it does not add to the obligations of a city. So that the second exception includes these bonds which are issued for the acquisition of such public utilities as I have mentioned. So long as these public utilities raise revenue to pay the interest on them, and to provide a sinking fund from year to year sufficient, at the expira- tion of the issue of the bonds, to take them up, there is no reason for including those bonds in the estimate of the indebtedness^ of the city, in the effort to arrive at the question whether the limit has been reached; but with those bonds, as with others, it may turn out that the enterprise is a failure. It may turn out they do not pay the interest on the bonds. It may turn out they do not pay enough revenue to' provide a sinking fund to take the bonds up. If that ever gets to be the case, except as due to a temporary condition, it is ixv^>:!:.lr'ill be to assign to the justices located in those magisterial districts, whether residing inside or outside of the town, jurisdiction in civil cases within the tO^^VTL. Mr. Turnbull: I think not, because under your city charter — xvlr. William A. Anderson: My question does not relate to the statutory cities, but to toT\Tis, like that in which the gentleman resides, of twelve hundred inhabitants, and the one in which I reside, the town of Lexington, having between three thousand and four thousand inhabitants, that are parts of the magisterial district in which they are situated, and vote for the election of jtistices of the peace. I want to know whether lie proposes to deny to justices of the peace the jtirisdiction in civil cases in qtiestions arising before them within the limits of those towns. Mr. Turnbull: That is exactly the object of my amendment, Mr. Chairman, to confine justices of the peace to the jurisdiction in their districts outside the corporate limits of these towns and give the mayors of the towns and the officers I have named the jurisdiction inside. They are the ones who attend to all business, and the amend- ment is for the purpose of allowing the mayor of the towns to try all these little cases, and to keep justices of the peace outside the limits of the town from having jurisdic- tion inside at all. Mr. Ayers: Mr. Chairman, I fully concur in what the gentleman from Bruns^^ck (Mr. Turnbull) has said. We have had a similar experience in the town in which I reside. The justices of the peace outside the corporate limits come in and make a business of stirring up litigation, getting cases brought before them, and we have had great trouble over it. Certainly no harm can come from making this jurisdiction exclu- sive, because you have ordinarily in town five or six or seven councilmen and a mayor, and you have an ample number to discharge the duties of the office of justice, both in criminal and civil cases. It is well known that now they have jurisdiction as justices of the peace of all towns, and the criminal jurisdiction extends for one mile beyond. The gentleman, I think, has verv- wisely left that for legislation, and only announced the principle that the jurisdiction of justices within the limits of the town should be execlusive. I hope the committee ^all agree to the amendment. Mr. William A. Anderson: Mr. Chairman, I simply -udsh to make a suggestion to the gentleman from Brunswick, 0,lv. Turnbull). I think perhaps there is great merit in his proposition, though I do not know that the evil he complains of exists in the town in which I live. I have no objection to his amendment, but it seems to me it ought to go further and provide that the citizens of these towns shall not vote in the election of justices of the peace for the magisterial district in which they live. Mr. Turnbull: IMr. Chairman, that can be provided for by the Legislature, because if the justices have no jurisdiction inside the corporate limits they ought not to vote. That can be provided for by statute. 1906 DEBATES OE THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Mr. Walker: Mr. Chairman, I dislike very much to oppose any proposition advocated by my friend and desk-mate, the gentleman from Brunswick (Mr. Turnbull), but I think the amendment which is proposed by him is an unwise one. I think, first, this whole matter, as to the limits of the jurisdiction of justices, ought to be left to the Legislature. I do not think the Constitution is a proper place for it. If it were a question proper for us to discuss here, it is at least an open question as to whether this would be a wise provisional statute. In support of that assertion I call the attention of the committee to the fact that what the gentleman from Brunswick proposes in his amendment was the law in this State, that it was found to work unsatisfactorily, and that it has been changed by statute. Now we are proposing to' fix in the Constitution, as a matter of law which can not be changed, a provision which has been tried in the State and which it has been found by the Legislature necessary to alter. The gentleman from Brunswick states as his reason for offering the amendment that it is intended to meet a local condition which exists in his community. I take it there are other communities in which the local conditions would justify a precisely opposite law, and I know that is true with regard to at least one town which is in my own district. There are many cases in which it is almost impossible to get the mayor and coun- cilmen of the town to properly hear and decide criminal cases which come up, and in order that that may be done it is neces.sary that the justices in the district who, as the gentleman from Rockbridge (Mr. Anderson) properly says, are voted for by the very people who live in that town, shall have jurisdiction for the trial of those offenses. I am very much disposed to think, Mr. Chairman, as I have said before, that it is a very unwise proposition; that it would be unwise as a matter of statute, and certainly that the limit of jurisdiction of officers ought to be left to the Legislature and not fixed in the Constitution. In addition to that, as the gentleman from Winchester (Mr. Harrison) has sug- gested to the gentleman from Brunswick the law now provides that the criminal juris- diction of the mayor and councilmen and police justices of the town shall extend for a mile outside and around the corporate limits of the town. That provision, it seems to me, might be confusing and would be difficult to reconcile with the provision which is sought to be incorporated in the Constitution. You provide here that the mayor and councilmen and police justices shall have exclusive jurisdiction within the town, Now, it isi proposed that they shall have exclusive civil and criminal jurisdiction within one mile beyond the town, so that the justices of the peace who live in the very district in which the town is situated shall not have authority to try any criminal cases within one mile of the town limit. Mr. Barbour: I suggest to my friend that a great many of these justices live in the towns themselves. Mr. Walker: Yesi; a good many of the justices live right in the very town. On the whole, Mr. Chairman, I think it would be unwise even as a matter of statute, and it had better be left to the Legislature, if it shall be necessary for them to do so, to adjust the law tO' meet local conditions, and not to fix firmly and irrevocably in the Constitution a provision which would, perhaps, be unwise as a matter of general statute. Mr. R. Walton Moore: I know of at least one town, a small town in the State, where the people forgot and neglected for several years to elect a mayor and coun- cilmen, and it would have been impossible to call upon any officer to try small cases there if such an amendment as is now proposed had been at that time a provision in the Constitution. Mr. Parks: Mr. Chairman, I agree with the gentleman from Northumberland (Mr. Walker) that this matter ought not to go in the Constitution at all, but should be left entirely to the Legislature; but I hope the Committee of the Whole will sustain the amendment I now offer, for that ought to be done, even if the amendment of the gentleman from Brunswick is then adopted, but I hope that will be voted down. His DEBATES OE THE COXSTITUTION'AL COXVEXTIOX OE VIRGINIA. 1907 amendment reads: "The mayor, police justices and councilmen of towns shall have like jurisdiction in civil and criminal cases." I move to amend by striking out "civil and," so that it shall read. "Shall have jurisdiction in criminal cases, as shall be prescribed by the General Assembly for justices of the peace." If this amendment is to prevail at all, then we have a political sub-division of a county known as a magisterial district and when you elect a magistrate the people within the corporate limits of the town vote for the magistrate, and he is without any jurisdiction whatever in the town. Suppose, as is. suggested by the gentle- man from Brunswick (Mr. Turnbull) the inhabitants of the city or town shall not vote. Then you have citizens of a magisterial district not voting for the district officer, which is an anomaly. In my magistrial district the best magistrate we have in the county lives in the town. Under that amendment he would have no jurisdiction in his toviTi of which he is a resident. In addition to that, in the small towns it is frequently very difficult to get any man to accept the office of mayor at all, and if you say that he shall be bothered with all the little civil cases that come up you will scarcely be able to get a man to take the office at smy time. Certainly, if this amendment is adopted at all, I do hope the committee "will first perfect it by adopting my amendment striking out the words "civil and" and leaving the jurisdiction in criminal cases alone. Mr. Brooke: Mr. Chairman, I dislike to interpose objection to any provision oifered by gentlemen coming from communities which are especially interested in its passage, and upon the merits of this amendment offered by the gentleman from Brunswick I am inclined to agree with him; but it was the policy of the committee, which I represent, to leave to the Legislature the passage of general laws which shall control the organiza- tion and government of towns of less than five thousand inhabitants. It does seem to me that if we undertake to violate that principle in one case we shall open the door to violation of it in other cases, I think if there is any virtue at all in a uniform system of general laws to govern the organization and government of to-vvTLs, that benefit will all be lost by the constant intrduction of exceptions to the general rule. For that reason I am opposed to to the amendment. Mr. Turnbull: Mr. Chairman, I wish to call the attention of the committee to this matter, because I think it is of the utmost importance to towns in this State that they should be able to control their own self-government. Why does a town make applica- tion for a charter? Why do they want to have themselves incorporated? It is in order that they may have better police protection, that they may have somebody inside the town who can preserve order and have control of the affairs inside the" corporate limits of the town. That is the object for which they are incorporated, and unless, they are going to have that benefit they had better not have any charters at all. The only object of this; amendment, and the only reason I offer it, is simply to allow these towns, that have been incorporated for the purposes of having self-protection, where they have to go to the expense of having a- mayor and town organization, to be able to perfect that town organization in order that they may have the benefit of the charter which they have applied for. No harm can result from the matter at all. Be- cause the gentleman from Northumberland (Mr. Walker) has a little town in his dis- trict the pople of which have a mayor and a council in whom they have no confidence is no reason why others should not have protection. If they are not satisfied with their mayor and council let them have new ones, or let the Legislature repeal the charter. That is the position presented to this committee, and I do think these chartered towns, if they have no mayor or nobody to attend to the duties of the offices of the town, ought to be abolished and the charters repealed. But I do insist that the towns springing up in different sections of the State, and some of them are equally as important, probably, as are some of those that are incorporated, should have the protection this provision would give them. 1908 DEBATES OE THE CON"STITUTION"AL CONVENTION OE VIRGINIA. In my town we have large interests, because it is a railroad point. We have shops employing a hundred or more operatives, and it is of the utmost importance that the oflQcers of the town should have control of the criminal as well as of civil business within the corporate limits of the town, for the reason I mention. Where offenses are committed upon the streets of a tow^n, and it is done every day, the offenders, for the very purpose of avoiding the jurisdiction of the mayor, gO' and surrender themselves to justices of the peace outside of the corporate limits of the town, and he fines them $2.50, the smallest limit, every time. The effect of it is that the mayor and those who are trying to preserve order really have no opportunity at all to do so. It does seem to me this proposition is a reasonable one, and that it is just and right in the premises, and I hope the pleasure of the Convention will be to adopt it. Mr. George K. Anderson: The counties are interested in this matter, and I hope I may have the attention of the gentlemen of the committee in what I shall have tO' say, because it has a direct bearing upon the question, I hope the committee will not adopt the amendment either as perfected by the gentleman from Page (Mr. Parks) or as originally offered. Mr. Chairman, there are some towns in Virginia I know of that have had no elec- tion for mayor for ten years, and the man who was mayor then, though, as a matter of law, he still remains mayor, absolutely refuses to exercise his office as mayor, and nobody knows actually who are the members of the council in that town. I shall not call its name, sir, because it has a representative upon this floor. If the amendment of the gentleman from Brunswick should become a part of the funda- mental law of this State a man could go inside of that town and be absolutely immune, and violate the law as much as he pleased, and there would be absolutely nobody to try him. But, Mr. Chairman, there is another town in the State which has this identical provision in its charter, and I want to tell the gentlemen of this committee what the situation is in that town. It has a list of ordinances as long as the moral law. It has every offense known to the law, known to the State law, defined and made an offense against the State law or town law. When complaint is made to the mayor, and he is the only man who has the power to issue a warrant or to try a case, that an offense has been committed, he issues a warrant for a violation of the town law, provided he thinks the prisoner or the party to be arrested is able to^ pay the fine. If he is able toi pay the fine, the town gets the fine. If the defendant is not able to pay the fine the mayor sends him, not to the town jail for thirty days'^ but miakes the offense against the State law and sends him to the county jail, and makes the State pay the expense. There are in that town two good magistrates, elected by the people of the county, with their hands tied absolutely. They cannot issue a warrant when people come toi them. The mayor is czar. He issues a warrant if he wants to, and if he does not want to he does not do it. When he does issue it he puts the fine, if there is one, into the town treasury. Otherwise he sends the prisoner tO' the county jail. The conditions in that city, Mr. Chairman, are entirely too divergent. Let the Legislature attend to this matter, giving to justices the jurisdiction it sees fit to give, and do not let us attempt here to confer jurisdiction upon justices of the peace and define the limits thereof. It is unwise. Mr. Eggleston: Mr. Chairman, it seems to me the view taken of this question by the gentlemen who oppose this amendment is the correct one, that where it is of such doubtful expedience to establish such a law, as this amnedment proposes, it is unwise and unsafe to put it into the Constitution and beyond the right of the people to repeal it. It is a fact, as stated by the gentleman from Wesmoreland (Mr. Walker), that four years ago the Legislature passed an act with a provision of this kind and in two years it was necessary to repeal it, because of the great complaint all over the State. It would present an anomaly, too., Mr. Chairman, if you provide that a justice from a district shall have no jurisdiction over any criminal or civil cases inside of a corpora- DEBATES OE THE CONSTITUTIOiTAL CONVENTION OF VIRGINIA. 1909 tion. Here is a civil case with two defendants, one of whom lives in the corporation and one outside of the corporation. With such a constitutional provision as this how is the justice outside the corporation going to try that case? He cannot try a case where even one of the defendants lives inside of the corporation, because you say that he shall have no jurisdiction inside of the corporation. On the contrary, the Legis- lature could provide that the mayor of that city should have jurisdiction in just such a case, and there the justice, who is elected and voted for partly by the voters of the town, would have no jurisdiction in the town and could not possibly try the case, even if one of the defendants lived in the town. On the other hand, the mayor of the town, who is not elected by the voters of the magisterial district, could have no jurisdiction to try cases and take jurisdiction of parties living outside of the corporation. That is in regard to the civil cases. Now, Mr. Chairman, the towns can be managed in another way in regard to criminal jurisdiction. If they will enact ordinances, making these petty offences alluded to offences against the ordinances, then the mayor can have jurisdiction of these offences and no harmi will be done; but it seems to me it will be dangerous to put into this Constitu- tion a provision which has been enacted in the law within the last four years and which has had to be repealed. The Chairman: The question is on the amendment of the gentleman from Page (Mr. Parks) to the amendment of the gentleman from Brunswick (Mr. Turnbull), offered as an independent section. The amendment was rejected; there being, on a division, ayes, 15; noes, 42. Section 4 wasi then read as follows: Sec. 4. In each city which has a court in whose office deeds are admitted to record there shall be elected by the qualified electors of such city a clerk of said court, who shall hold his office for a term of eight years and perform such other duties as may be required by law. There shall be elected in a like manner and for a like term all such additional clerks of courts for cities as the General Assembly may prescribe. Mr. Hatton: I offer the following amendment Add at the end of line 8, of Section 4, the following: But in no city of less than 30,000 inhabitants shall there be more than one clerk of the court, who shall be clerk of all the courts of record in such city. Mr. Chairman, my object in offering that amendment is simply to prevent the separating of the officers of clerk of the corporation court and clerk of the circuit court in cities of less than 30,000 inhabitants. I do not desire to make any extended remarks upon the subject of the amendment, but I think while we are dealing with that part of the report relating to the subject of clerks of the courts, we should prevent the Legis- lature from creating two' offices where one would be sufficient, I believe that in most cities of the Commonwealth of less than 30,000 inhabitants those offices are now filled by one man. They are not separated, and that, in my judgment, is as it should be. It has been said that the man who makes two blades of grass grow where but one grew before is a benefactor, but I do not think that any Legislature which makes two officers grow where but one grew before is a benefactor, and I offer that amendment so as to prevent the multiplication of offices unnecessarily. I hope it may be the pleasure of the committee to support it. Mr. Hamilton: Mr. President, I heartily concur in the suggestion of the gentle- man from Portsmouth (Mr. Hatton), that it is a great deal better to have one efficient clerk than to have two inferior clerks. My observation is that cities having under 30,000 inhabitants do not need two clerks — that one clerk is sufficient. I hope that the committee will, therefore, adopt that amendment. 1910 DEBATES OF THE CON"STITUTION"AL CONVENTIOlNr OF VIRGINIA. Mr. Brooke: Mr. Chairman, I simply want to state to the committee the theory under which this clause was adopted. The judiciary report provided for a judiciary system for the cities. It was changeable in its form, or liable to change in its form, according to the growth of the city, and also in respect to cities having a population of less than 5,000 inhabitants. It made no provision whatever for the clerks of the court of the system which was presented. The Committee on the Organization and Government of Cities and Towns has simply attempted to pass a section here which will provide for such clerks as shall become necessary for the courts that might be established under the judiciary system, without undertaking to- put any limitation at all upon the Legislature as to^ those clerks, presuming that the Legislature would elect clerks only where necessary for the courts which had been provided for under the judiciary report. It was in that view prepared in this section: In each city which has a court in whose office deeds are admitted to record It would cover the smaller cities and towns as well as the larger ones — There shall be elected by the qualified voters of such city a clerk of said court, who shall hold his office for a term of eight years and perform such other duties as may be required by law. There shall be elected in a like manner and for a like term all such additional clerks of courts for cities as the General Assembly may prescribe. It seemed to us that the only safe thing to do in the not exactly uncertain form, but the form in which the report of the Judiciary Committee has provided judiciary systems for the cities, in order to provide officers for these courts, was to require the Legislature to elect such additional clerks as from time to time should become neces- sary to carry out the system of the Judiciary Committee. Mr. Meredith: I desire toi ask the gentleman from Portsmouth (Mr. Hatton) if he would object to amending his amendment by leaving out the latter part of it. He would accomplish the object he seeks if it should be read: "But in no city of less than 30,000 inhabitants shall there be more than one clerk of the court, who- shall be clerk of all the courts of record in such city." The language below that seems to interfere with the present arrangement, and as if we had to rearrange all of our system here. If you leave it asi I suggest it gets exactly what you want. Mr. Hatton: That would accomplish my object so far as it would apply to cities of less than 30,000 inhabitants. It would certainly do that, and I perfer toi have the amendment in that shape to' not having it at all, but it does leave the Legislature free, in cases of cities of over 30,000 inhabitants, to provide separate clerks to those two instances cited, and also an additional clerk for that additional court which the Judi- ciary Committee has allowed the General Assembly to establish in cities of 30,000 or more inhabitants. If the gentleman from Richmond thinks the latter part of that amendment as to 30,000 inhabitants would injuriously affect the' city of Richmond I would have no objection to striking it out. I accept the gentleman's amendment. The Chairman: The question is on agreeing to the amendment of the gentleman from Portsmouth as amended by the gentleman from Richmond. The amendment was agreed to. Mr. Allen: I offer the following amendment. Insert in line 8, after the word "be," the words "elected or," so that it will read: In every city there shall be elected or appointed, in a manner to be prescribed by law, one commissioner of the revenue, etc. Mr. Meredith: Instead of reading "in every city there shall be appointed or elected" I desire it to rea.d as follows: DEBATES or THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 1911 In every city there shall be appointed, in a manner to be prescribed by law, either by the Mayor of the city or by one of the city judges of said city ,as may be deter- mined by law, a commissioner of the revenue. In other words, the object of the amendment I olfer is that the commissioner of the revenue shall be appointed. I think it is extremely desirable he should be appointed in the city, but I do not think the appointment ought to be left so broad, because if it is he may be appointed by the Governor or some distint oflBLcial. I think the local government ought to be recognized. Therefore, I ask that the appointment be made by some of the local oflacials, so that we may have local officials, so that we may have local self-government. I do not provide that the mayor shall make the appointment, for it might turn out that the Legislature would require the judges to make the ap- pointment; so I leave it open to the Legislature to decide whether they shall be ap- pointed by the mayor or by the city judges. My own idea is that they should be appointed by the mayor, but at the same time I do not know that we can ask that, because the Legislature might see fit tO' require the commissioners of the revenue in the counties to be appointed by the judges. If that happens they would require the commissioners of the revenue in the cities to be appointed in the same way. I ask that the amendment be read, and, if it meets with the approval, that it be adopted. The secretary read as lollows: In every city there shall be appointed, in a manner to be prescribed by law, either by the mayor of the city or by one of the city judges of said city, as may be deter- mined by law, one commissioner of the revenue, whose duties, etc. Mr. Eggleston: I give notice, then, that if the amendment of the gentleman from Richmond (Mr. Meredith) is not adopted I shall offer an amendment to the amendment of the gentleman from Richmond (Mr. Allen) to the effect that if these commissioners are elected they shall be ineligible to succeed themselves. Mr. Parks: I suggest to the gentleman from Charlotte (Mr. Eggleston) that the vote will first be taken upon the amendment of the gentleman from Richmond (Mr. Meredith), and that his amendment is now in order, there only being one amendment pending to the substance of the proposition. Mr. Summers: My amendment is that the commissioners shall be elected by the people. I desire to offer that as a substitute for all the others. Mr. Barbour: I offer, as an amendment to the amendment offered by the gentle- man from Richmond city (Mr. Allen), these words, to be added at the end of the section: "But should such commissioner of the revenue be chosen by election of the people , then he shall be ineligible for re-election to the office for the next ensuing term." Is that amendment in order, Mr. Chairman? The Chairman: The Chair thinks the substitute of the gentleman from Richmond (Mr. Meredith) for the amendment of the gentleman from Richmond (Mr. Allen) is first in order. Mr. Barbour: Is it not necessary for the amendment to be perfected before it can come in conflict with the substitute? The chairman: The amendment of the gentleman from Richmond (Mr. Meredith) is not an amendment to the whole section. It is merely a substitute for the proposed amendment of the gentleman from Richmond (Mr. Allen) to the section as reported by the committee. Mr. Glass: I move to amend by making the section read: "In every city there shall be appointed by the juage of the corporation or hustings court one commissioner of the revenue," etc. Mr. Meredith: Mr. Chairman, gentlemen representing city constituencies ought to see what lies before them. A provision has been adopted here that the commissioners of the revenue in the counties may be appointed, and if elected they shall not be elected for more than one term. 1912 DEBATES OF TPIE CONSTITUTIONAL CONVENTION OF VIRGINIA. We ought to recognize the fact that that provision will be to our detriment unless we can have our commissioners appointed. You are more apt to get a good man by appointment, and you should have the privilege of retaining that man in office for more than one term. Whatever may be our personal perference as to election or appoint- ment we had better take appointment and have the privilege of retaining these men in office, having the guarantee that they vv^ill do their duty because they are subject to removal by a high official, like me judge or mayor. One word in regard to the amendment offered by the gentleman from Lynchburg (Mr. Glass). I think it is desirable that there should be some elasticity as to the manner in which they shall be appointed. I do not think it is desirable to tie the hands of the Legislature specifically to the appointment by the judges. We all know that in city government now the object is to have some head at whom you make your entire fight in a political contest. The idea is to let the mayor have the appointing power and make him the object of the contest in all political fights. It seems to me that one of the difficulties of the present methods of governing the cities of the State is that the mayor has no power in many cities. In most of them, if not in all of them, he is a mere figure-head, and nobody cares who is elected or v/ho holds the office. If we can put such power in the hands of the mayor as to induce us to make an earnest fight to have a capable man elected, who will have some responsibilities and some powers that may be injurious to us, we will get a bette it' system of municipal government in the State. I, therefore, ask that the amendment offered by the gentleman from Lynchburg (Mr. Glass) be not adopted, but that it be left to the Legislature to decide whether the appointment shall be maue by the mayor of the city or by one of the city judges. Mr. Gillespie: Mr. Chairman and gentlemen of the committee, I do- not think this amendment ought to be adopted as suggested. At least, I do not think it would be fair dealing with the counties to adopt the amendment proposed by the gentleman from the city of Richmond (Mr. Meredith). In the report of the Committee on County Organization it is provided that the commissioners of the revenue shall be appointed in a manner to be prescribed by law, not limiting that appointment to any local power within the county. I think that limita- tion should have been made in the report on county organization, but it was not done. The power wasi left to the Legislature, unlimited, that the commissioners of the revenue may be appointed in any m,anner prescribed by law. They may be appointed by a com- mittee from the central power here in Richmond. The gentleman representing the cities desire to be relieved from the general super- vision which was to apply to counties and to have it provided that the commissioners of the revenue shall be appointed by some local power. It has been complained that there has been favoritism toward the cities, and thisi looks to me more like it than anything which has yet been suggested. I do not think the amendment should be adopted. Mr. Meredith: Mr. Chairman, I have not desired to ask for any favoritism. If my attention had been called to the fact that it v/as desired that the county officers should be elected or appointed by some local authority, I should not have hestitated to vote for it. I think it was not understood, when the provision was passed, that it was desired by the counties. If any return is made to that provision I shall vote to recognize local government in the counties just as well as in the cities. Mr. Glass: Mr. Chairman, it occurs to me that the point made by the delegate from Tazewell (Mr. Gillespie) is not exactly fair to the cities. I voted to appoint or elect the commissioners of the revenue of the various counties of the Commonwealth because the representatives here of the counties asked to have it done. As I understood the matter they preferred that arrangement. Now, as to the cities, the delegate from Richmond (Mr. Meredith) and I are after the same object; but, I respectfully submit, my amendment will more certainly attain that object than the amendment proposed by him. There is very little difference between electing the commissioner of the revenue by direct vote of the people and having him appointed by another city officer who is elected by direct vote of the people. DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 1913 If you make the office of the commissioner of the revenue appointive by the mayor of the town, in every municipal election we would have the issue as to whom the various candidates for mayor will favor for commissioner of the revenue, and you will find that influential politicians who are candidates for the office of commissioner of the revenue will line up for this candidate or that for mayor, selecting the one, of course, who would most likely appoint him to the position of commissioner of the revenue. I hold if there is an officer in the Commonwealth who ought not to be elected, but ought to be appointed, it is the commissioner of the revenue, whether in the counties or in the cities. To better illustrate the importance of this office, and the necessity of having a competent and fearless man toi discharge its duties, I will state some significant facts, for the authenticity of which I refer gentlemen to the report of the State Auditor. The city of Norfolk and the city of Roanoke combined claim; to have, if the census does not give them, 76,000 population, and yet — now mark you — the city of Lynchburg with, 20,000 inhabitants, returns more personal effects for taxation than the cities of Norfolk and Roanoke combined. The city of Lynchburg, with 20,000 population, returns $68,000 more of money in banks on certificates of deposit for taxation than the cities of Roanoke, Norfolk, Ports- mouth, Petersburg and Newport News combined. The city of Lynchburg returns for taxation in money invested in corporate business enterprises more than, those five cities just named combined. Mr. Robertson: Is it not a fact that Lynchburg is said to be the richest place in the United States for the population it has? Mr. Glass: I suppose it isi said so for the reason that Lynchburg returns so much more wealth for taxation than other cities of like size. (Laughter.) Mr. Robertson: Is it not a fact, though? Mr. Glass: I will answer my friend in a perfectly frank way. I think, perhaps, Lynchburg, per capita, is the wealthiest city in the South; but I do not believe the 20,000 people in Lynchburg are wealthier than the 76,000 people in Norfolk and Roanoke com- bined. What I am trying to accomplish is that we may at least retain our good officer in Lynchburg, and that you may not adopt a system here of election by the people in the cities and then say the man who was fearlessly and efficiently done his duty shall be ineligible to reelection. I think if all the commissioners of the revenue in these other cities mentioned were appointed perhaps they would be better officers than they are now. What I mean is this: They would have less temptation to temporize with people who) show a disposition to evade taxation. Mr. Meredith: I desire to say to the gentleman from Lynchburg (Mr. Glass), before he takes his seat, that I regard the appointment of the commissioner of the revenue as so important that, rather than let it fall by reason of any theoretical idea I have of appointment by the mayor, I will gladly accept the suggestion of the gentle- man from Lynchburg that the commissioner of the revenue shall be appointed by the court, so as to make him a State officer. Mr. Barbour: Mr. President, I hope none of the pending amendments may prevail. It was the effort of the Committee on the Organization and Government of Cities and Towns to make this provision coincide with the provision adopted by the Convention in the report of the Committee on County Organization. The commissioner of the revenue is essentially a State officer, and carries out the policy of the State in reference to taxation. When this article was drawn the report of the Committee on Counties provided for the appointment of these commissioners of the revenue in a manner to be provided by law. Afterwards the report came up in the Convention and the language was so changed as to provide for their election or their appointment, with the provision that should they be elected they should not be eligible for re-election to the same office. It seems to me the amendment offered by the gentleman from Richmond (Mr. Meredith) deprives the system of a proper elasticity. It only provides for two modes 121— Const. Deb. 1914 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. of appointment, either by the mayor or by the judges of one of the courts. Certainly I do not think the appointment of these officers by the judge of a court is a wise pro- vision. I think, if there is any one thing that is responsible for the downfall of the county court system, it is the putting of political patronage into the hands of the county court judges. Under our new system I want tO' see our judges absolutely divorced from all control of political patronage. I do not think it would always be wise to put the appointment of this officer in the hands of the mayor of a city, elected by the voters of the city, for the very reasons stated by the gentleman from Lynchburg (Mr. Glass.) Mr. Meredith: The gentleman understands I have accepted the amendment of the gentleman from Lynchburg to leave out the appointment by the mayor. Mr. Barbour: I did not know the gnetleman had accepted that amendment. That, then, leaves the appointment of these officers in the hands of the judges of the courts. I do not think we ought to mix up the judiciary of the State with the control of political patronage. I will not restate to the committee the reasons I have just asisigned for that. I think throughout the State there should be a uniform system of appointment of these officers, who have to assess property throughout the State, leaving it in the power of the Legislature to provide for their appointment in a uniform manner, and not, if the sys- tem of appointment by judges in cities works, badly, to have commissioners of the revenue appointed by the judges able tO' snap their fingers in our faces and tell us they are protected by constitutional amendment from removal or change in the manner of appointment, whereas the mode of appointment in the counties could be changed. I hope that these amendments will be voted down, and the article made to conform in exact terms to the language now contained in the article for the government of counties. The Chairman: The amendment of the gentleman from Lynchburg (Mr. Glass) has been accepted by the gentleman from Richmond (Mr. Meredith). The question is on the proposed substitute of the gentleman from Richmond (Mr. Meredith), as modified by that amendment, to the amendment of the gentleman from Richmond (Mr. Allen). The amendment was rejected. The Chairman: The question recurs on the amendment proposed by the gentle- man from Richmond (Mr. Allen.) Mr. Barbour: Mr. Chairman, ± offer now, as a substitute for the amendment offered by the gentleman from Richmond (Mr. Allen), the following amendment: After the word "be, ' in line 8, insert "elected or," and at the end of line 12 insert the following language: "But should such commissioner of the revenue be chosen by election by the people, then he shall be ineligible for re-election to the office for the next ensuing term." I wish to state to the Convention that if that substitute is adopted the provision for the cities will be in the exact language which is now provided for the counties, and it has been the effort of the Committee on the Organization and Government of Cities and Towns from the beginning to make the two provisions conform throughout. The amendment was rejected; there being, on a division, ayes, 33; noes, 24. Mr. Davis offered the following substitute: In every city there shall be elected one commissioner of the revenue, whose duties and compensation shall be such as may be prescribed by law, and who shall hold his office for a term of four years. Mr. Davis: Mr. Chairman, when the question of the election or appointment of commissioners of the revfenue came up I was not here. I was sick and in bed. I desire very much that commissioners of the revenue shall be elected by the people all over the State, in the cities as well as, in the counties, and especially in the counties. I desire, if it can be done at some future time, to bring this matter before the Convention again, DEBATES OF THE CO^s^STITUTIOITAL COXYEXTIOX OF YIEGmiA. 1915 so that this important matter may be settled and settled right, and that the people in the counties, as well as in the cities, may elect commissioners of the reyenue. Mr. Harrison: I wish to amend by adding, after the word "elected," the ^yords "by the qualified voters of said city." ]Mr. Davis: I accept that. Mr. Harrison: Mr. Chairman, it does seem to me that in cities, especially, these officers ought to be elected by the people. It is in the cities where there is the greatest complaint about the tax dodgers. It is. in the cities where this invisible property is located far in excess of the amount in the counties. A few people own a great deal of the wealth of the cities, and they are the people who generally seek to dodge the payment of the taxes on that species of property which the commissioner of the revenue cannot find. It would be very easy for the people of great wealth to influence a com- missioner of the revenue, if they were alone to be dealt with, and it does seem to me that the people of the cities should have the power — Mr. Barbour: The gentleman has just said that in the cities there was more com- plaint about tax dodging. Mr. Harrison: I say that is where the great complaint is about it. Commissioners of the revenue cannot get at that species of property; but I do not believe we are going to improve the matter by making them appointive by any one agency, because the great wealth that has accumulated in the cities can influence the appointing power far more easily than it could influence the people who have the power of electing these officers. If it becomes injurious to the people of a city, and men of wealth are permitted to dodge their just responsibilities to the State, then I believe it would be within the' power of the people of that city to turn a faithless commissioner of the revenue out of office, and I think that officer certainly should be elected by the people, in order to control just such a condition of affairs. Mr. Thom: Mr. Chairman, I do not rise to discuss this question, but I feel that the inferences that were drawn by my friend from Lj-nchburg (Mr. Glass), as to the respec- tive assessments of personal property, should not go without a word of explanation from me, so far as the city of Norfolk is concerned. The table from which he read shows that the total value of assessments in Lynch- burg of personal property were, in round numbers $4,077,000, and in the city of Norfolk $3,546,000. In the matter of the assessment of bonds in Lynchburg there were $917,000, and in the city of Norfolk $958,000 in the matter of moneys under the control of courts in Lynchburg, $743,000, and in Norfolk $1,139,000. The principal difference between the two was in the value of capital invested in joint stock companies, not otherwise taxed, of which Lynchburg had S 558,000 and Norfolk $17,320 Of course, I am not aware, on this short notice what exceptional conditions may exist in Lynchburg in reference to these stock companies. I know the fact, however, tha+ the personal property in the city of Norfolk does not compare with its real estate. Lynch- burg real estate is only $7,000,000. The amount invested in Norfolk city real estate is over $21,000,000. The assessments there of real estate are immense. I know it is an exceedingly popular method of investment. I have never heard any complaints of the commissioner of the revenue in the city of Norfolk, and I believe him to be a faithful and efficient officer. Mr. Braxton: Mr. Chairman, In this connection I desire to say, on behalf of the city of Staunton, which I have the honor to represent in part, that there is no occasion for criticism on the efficiency of the work of the commissioner of the revenue there. Staunton is reported to have a population of about 7,300. Roanoke, for instance, is reported to have a population of. I think, in the neighborhood of 25,000. For the year 1901 the personal assessment of Staunton was $938,000, as against $948,000 in Roanoke, with more than three times the population of Staunton. For the year 1900 the personal assessment of Staunton was some $50,000 more than Roanoke. The city of Newport News, I believe, is reported as having some 23,000 population, and yet her total assessment is $435,000, as against $922,000 for Staunton, with less 1916 DEBATES OF THE COJsTSTITUTIONAL CONVENTION OE VIRGINIA. than one-third the population of Newport News. Without going further intO' detail, I will say that the auditor's report for Ibxjx shows that the cities of Bristol, Buena Vista, Charlottesville, Fredericksburg, Manchester, Newport News, Portsmouth, Radford, Wil- liamsburg and Winchester have all very much smaller assessments than Staunton — not only smaller in the aggregate, but vastly lower per capita, and that only Richmond, Petersburg, Norfolk, Lynchburg and Danville have, to any appreciable extent, a larger personal assessment than Staunton. The only two other cities who exceed Staunton at all in her personal assessment are Alexandria, which returns $993,000 as against Staun- ton's $938,000, and Roanoke, which returns $948,000 against Staunton's $938,000. I do not say this in criticism of those cities which report a less taxation than Staunton, but merely to show that the criticism which some of the gentlemen pass upon the efficiency of the performance of their duties by the commissioners of the revenue in various cities of tne ^^Site is not without exception; and whatever may be the justice of the criticism of these officers elsewhere, I think it but fair and proper that I should call the attention of the committee to these figures to show that in Staun- ton, at least, the commissioner of the revenue, who has been eiected by the people, has perfoTmed the duties of his. office in an efficient and satisfactory manner as well to the State as to the city. Mr. Robertson: Mr. Chairman, I had not intended to say a word about this matter, because it does seem to me this question ought to be settled entirely apart from any rivalry between the cities of the commonwealth. The idea of talking about whether we have a good commissioner of the revenue in one city and a bad one in another, strikes me as one of the most childest performances I ever heard of (Laughter), for the simple reason that in the next election the whole matter may be changed around and the city that has a good commissioner of the revenue now may have a bad one and vice versa. The only reason I have risen to my feet at all is that several gentlemen on the . floor seem to think it is necessary to drag in the city that I, in part, represent as a sort of general example of corruption and of bad administration. I respectfully submit to the Convention that the gentleman who talk so glibly about my city do not know anything about it. (Laughter.) The city of Roanoke has grown to its present propor- tions largely by the industry and the hard work of the laboring men of that city. We have no large accumlated wealth in our city, no large incomes, but it is made up of laboring men — men who are making things that are useful for the rest of the people in the Commonwealth. It is as much as most of them can do- to- live upon the small incomes they make. Any criticism, which is made upon that city, which twenty years ago did not exist at all, in comparison with the citj^ of Lynchburg, for instance, or the city of Staunton, is totally unjust. Those are old communities, where men are sitting back making money and getting large incomes; by lending money at usurious interest to other people. (Laughter.) The people of our city are doing work, and honest work, and earning their living by the sweat of their brow, and I protest against its being criticised here or compared or contrasted with any city in the Commonwealth. (Applause.) Mr. Glass : Mr. Chairman, I would not rise again except that I noted the enthusiasm of my friend from Norfolk (Mr. Thorn) over the remarks made by the delegate from Roanoke. (Laughter.) The delegate from Norfolk said a while ago the main difference between his city's returns and mine was in one item of $558,000 in the value of capital invested in incorporated companies. I desire to call attention to the fact that in the item of the value of all capital invested in business not otherwise taxed, the city of Lynchburg, with 20,000 people, returns $473,000 and the city of Norfolk only $225,000. In the matter of money on deposit with bani^s, returned for taxation, Lynchburg returns $674,000, with only 20,000 population, and Norfolk $43,000, with about 50,000 population; and it is that way all through the list. Of course, when it comes to the matter of real estate you cannot hide that. There is bound to be an approximately correct valuation given. (Laughter.) Mr. Tbom: Mr. Chairman, the difference in Ihe assessment in Lynchburg and DEBATES OE THE COXSTITUTIOXAL COXVEXTION OF VIRGIXIA. 1917 in Norfolk is about $500,000. That is more than niade up in the one item of taxes on incorporated companies. I am told, and my friend from Lynchburg can correct me if it is not true, that there was an effort on the part of Lynchburg to exempt from taxation moneys invested in incorporated joint stock companies carrying on manufacturing business. If that is so, and I am told it is so, although this effort has failed in the courts, the stocks of those incorporated companies would become taxable by individuals, and would be returnable, whereas if the company itself had not been exempt from taxation they would not have been returnable in that way. Mr. George K. Anderson: Mr. Chairman, just one minute before putting the quesr tion. I am not from a city, sir. Therefore, I am not very much interested in what these gentlemen claim for their respective cities; but I want to call the attention of the committee to the fact that if the amendment of my friend from Franklin (Mr. Davis) is adopted commissioners of the revenue in the cities of the Commonwealth will be elected by the people, and in the counties of the Commonwealth they may be appointed by the boards of supervisors), or they may be elected by the people, and if they are elected by the people they cannot serve more than one term. My friend from Winchester (Mr. Harrison) used an argument which, to my mind, is an argument against his 'position. He says the commissioners of the revenue ought to be elected in the cities so that large returns may be made by men whO' have money hidden away, and he expects that a com^missioner of the revenue who reaches down and pulls a fellow out of the hole with his money-bags will be supported by that same man the next year. AATiile in the country we say if the commissioner of the revenue is to be elected by the people he must be ineligible, because if he assesses some fellow's ninety- cent pig at a dollar and a quarter he will never get that man's vote again. In the city, according to my friend from w^inchester, if he hunts up the hidden wealth, and brings that to the surface, he will be voted lor by this man whom he has exposed. The Chairman: The question is on the amendment of the gentleman from Franklin (Mr, Davis). In every city there shall be elected by the qualified voters of said city one com- missioner of the revenue, whose duties and compensation shall be such as may be prescribed by law, and who shall hold office for a term of four years. The amendment was rejected; there ueing, on a division, ayes, 2^; noes, 43. The Chairman: The acceptance by the chairman of the committee of the amend- ment offered by the gentleman from Culpeper (Mr. Barbour) removes the neccessity of putting the question to the Committee of the Whole. Section 6, relating to municipal officers, was then read. Mr, Wise: Mr, Chairman, I move to strike out, after the word "years," in line 3, down to the end of that clause, so that it shall read: "In every city there shall be elected by the qualified voters thereof one city treasurer, who shall serve for a term of four years." During the consideration of the report on the Organization and Government of Counties thl^ question was fully discussed, and I do not propose to detain the com- mittee a moment in repeating the argument then advanced on the one side or the other. I simply wish to say that when the question was being considered as to the counties I voted as the representatives of the counties desired for their counties., I believe the representatives of the cities, certainly of the large cities, are all opposed to the provision that treasurers shall not be re-elected after having served two terms; and it does seem to me a bad proposition, to put into the Constitution that the people of a city shall not be permitted to re-elect an officer who has proven himself both faithful and efficient. Mr. Allen: Mr. Chairman, I hope the amendment of my colleague (Mr. Wise) will prevail. Like him, on all questions that have come up here w^here the county interests were concerned, I have always endeavored to find out from the countn^ members what 1918 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. was best for the interests of their sections, and I think the record will show that I have always voted as desired by them on all questions concerning their local affairs. Mr. Chairman, this provision in a city like Richmond can do no good, but will result in great harm. You could not get a man who ought to hold the office of treasurer in the city of Richmond to run for the office if he thought he would be turned out at the end of one term. Furthermore, we have in the city of Richmond a different mode of settlement from that which they have in the counties. Our settlements are made daily. We also have a system which has been adopted practically throughout the State. We have a special accountant who is required to make reports to the Committee on Finance of the condition of all the officers of the city government. A provision has been adopted in the Constitution appointing traveling commissioners, with the power to employ expert accountants to examine the books of the various officers of the State. If that is done as often as it should be you will find that it is not necessary for your treasurers to be turned out at the end of every four years, in order to get a proper settlement. Mr. Chairman, I appeal to the members from the rural districts to let this pro- vision, as proposed by my colleague, be adopted. Mr. Hamilton: Mr. Chairman, when thlsi matter came up, with respect to the elec- tion of treasurers in the counties, I opposed the ineligibility feature. I did not think it was right or proper. I do not think it is right or proper with respect to the cities. I gave my reasons then, and I will venture to give them again. There is no trouble about making a treasurer do his duty or account for public moneys if you take proper steps to make him keep his accountsi straight. There will be no trouble if you have an accountant, as provided by the Convention, examine those ac- counts. Ill addition to that, in the cities, certainly in my own city, under special statute, you require the city treasurer to pay the city funds over once a week to the treasurer of the State or the first auditor, and the city funds are desposited every day in the city depository, a bank designated by the common council. When you get a really first-rate officer it is rather a serious matter to say he shall serve but a limited time. I hope, very much, gentlemen will not insist on the ineligibility feature as to treasurers applying in the cities. I regret it has been passed to apply to the counties. I know of certainly two county treasurers in my section of the State who are wonderfully faithful and efficient, and I do not believe the people of those counties will be able to replace them if a provision is adopted making them ineligible for a second term. Mr. Ingram: Mr. Chairman, my position is exactly similar to that of the gentle- man from Petersburg (Mr. Hamilton). I did not take any stock in the doctrine of Ineligibility of officials who have performed faithfully the duties of their respective officers. When the matter was up, as to county treasurers, I voted against the ineligi- bility feature, and I hope the qualified voters of the citiesi will be allowed, if they have an efficient officer who discharges faithfully the duties of his office, to re-elect him for more than two years, and for as many terms as they may see fit. The whole principle, in my judgment, is unsound. I believe in rotation in public office, but I think the rotation should come at the instance the people and not by virtue of any hard and fast rule put in the organic law. The books of the city treasurers are examined by experta at stated intervals, and in addition to that we have provided, in the article on county governments, that the State shall employ certain accountants to overlook the books and records of all State, county and city officers. I do hope the amendment of the gentleman from Richmond (Mr. Wise) will prevail. Mr. Meredith: Mr. Chairman, in regard to this provision, «s to city treasurers, I feel the embarrassment that the rest of the representatives of cities feel, that we have to overcome what is true, as a general proposition, that what is good for the county is good for the city. I know what lies across our path. I recognize it as a general principle, but if we can show you exceptional circumstances that will not DEBATES OE THE COXSTITUTIO^'AL COXVEXTIOX OE VIEGIXIA. 1919 Justify the application of a general principle, I simply ask you not to be bound by a principle, because it is a general principle, and require that it snail be applied erroneously. I repeat, I recognize tlie general principle, but I simply ask you to look one moment at TTlietlier tbe application of the general principle vrill nut be injurious instead of beneficial. I think ever one of us will acknowledge that, unless there is some great good reason for it, the principle of ineligibility of re-election to office is a wrong one, and it is only because of the necessity that exists that we have provided it shall apply. Mr. Lindsay: Is not the principle recognized in every State Constitution as to sheriffs? ]\Iy investigation of the subject has led me to the conclusion that the States of the Union, with very few exceptions, reco:gnize it as a principle and a precedent that those who collect taxes or handle moneys shall be ineligible to* re-election, many of them after the first term, and very many after the second term. I think it has been recognized as a principle, and the burden of proof is upon the other side to show when it is wisest not to apply the principle. Mr. Braxton: I ask for infonnation. In those States which observe the principle you have just stated, do you recall whether the officers are elected or appointed? Mr. i^indsay: They are elected by the people. Mr. Braxton: And they become ineligible for re-election after the first term? Mr. Lindsay: Yes; many of them. Mr. Meredith: Mr. Chairman, I am not denjung the general principle is recognized in the Constitutions of the States. I am simply asking you, if I can show you that' no good can come from the application of the principle, not to apply it. You certainly will not apply it if harm can come from its application. If I can show you that the circumstances are such that it will not be beneficial to the cities, but can hurt them, there can be no reason why it should be applied to us. It has been stated on this floor that the reason the counties insist on the proAusion is that they cannot get proper settlements from the treasurers: that the treasurers can so use their bank accounts, shifting balances from one account to another, that they can deceive boards of supervisors in any settlements they may make, and that the only remedy is to require that they shall go out of office at a certain time. I appeal to gentlemen on this floor if that has not been the basis of all the claim of necessity for ineligibility to re-election. It has not been upon the ground that the provision is contained in other Constitu- tions, but upon the ground that a proper settlement cannot be obtained from the treas- urers because of the manner in which they can manipulate the different funds they have, the county funds, the school district funds and the State funds; that they can change their balances in bank from one fund to another so as to deceive the board of super- visors, and that a proper settlement cannot be obtained. That is the whole argument that has been adduced here on the question of ineligi- bility for re-election. Now, gentlemen, if that reason for the adoption of this provision as to county treasurers does not exist in the cities, why should you put upon us a requirement which will be injurious to us? If any gentleman can offer any reason that has been stated on this floor, except the one I have referred to, that their power of manipulation of the funds in their possession is so great that they can deceive the board of super-^isors, and, therefore, can carry on a defalcation for 3-ears, I should like to hear it. Mr. Summers: The people in my county do not agree with you. :\Ir. ]\Ieredith: I am not speaking of your county. I am attempting to show the difference between my county and yours, I recognize the danger of continued service in 3"our country; but ii the reason you offer does not exist with us, gentlemen, I ask you again, why should you put upon us tlie inconvenience and burden of having these treasurers turned out when it is injurious to us, when we have recognized in the city of Richmond the desirability of re-electing these officers to such an extent that we have only elected three since 1S70. 1920 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA, The treasurer of the city of Richmond, gentlemen, does not collect our taxes. They are collected by our city collector. He is more a fiscal agent and more a check upon the auditor than anything else. We require that the auditor's draft upon the city treas- urer shall go into the treasurer's ofiice, and that the treasurer shall say upon which bank it shall be drawn. Mr. George K. Anderson: Who collects the poll-taxes for the State in the city? Mr. Meredith: I am coming to that. I shall not avoid anything of that kind. I recognize the fact that poll-taxes have not been collected as they should have been, but the proposed change is not going to result in improving that condition of affairs. I am calling attention to the fact that the treasurer of the city of Richmond does not collect our city taxes. He collects the State taxes; and we do not have in the city of Richmond and in other cities the same system of settlement that you have in the counties, and that is the reason for the difference. There has been no defalcation, no shifting of accounts in banks., no manipulation of the funds, and it is simply be- cause the system of settlement is not the same in the cities as in the counties, where the boards of supervisors decide what tax bills shall be regarded as delinquent and what shall not. The whole evil of the system in the counties has been that you have not by law required an accounting of the collection of moneys and as to delinquent tax bills. If you make that requirement you will get a better return as to poll-taxes and other taxes. Mr. Eggleston: Has it been any trouble in the city of Richmond to get the capita- tion taxes collected? Mr. Meredith: The gentleman from Alleghany (Mr. Anderson) asked me that. I say there has been that evil, and I recognize it. We have not collected the capita- tion taxes, but it has not been because we allowed the treasurer to remain in ofRce; it has not been bcause of defalcation. The city treasurer is not required to show that this man is delinquent and that he has not collected that tax bill, as is required of treasurers in the counties. The reason there has been no defalcation on the part of the city treasurer is because he makes his returns oftener, and the funds cannot be manipulated as they are said to be manipulated in the counties. Mr. Lindsay: Do you not believe that if the term of office were one year instead of two years, and the officers were made ineligible for re-election, there would be more capitation taxes collected? Mr. Meredith: No; and I think I can show you why not. The city treasurers collect large sums of money and collect them very rapidly. There are large tax bills in their hands. The sources of revenue under their control produce large tax bills, and, together with the amount they get from their duties as city treasures, they receive an income which relieves them of necessity of pushing the small tax bills. It is not the matter of remaining in office which effects the question. It is the system of causing them to make proper settlement. Suppose you make the treasurer ineligible for re-election. We have recognized in the city of Richmond the ability and honesty of these treasurers, and we have only elected three since the war. You pro- pose that we shall not re-elect these men. What is going to be the evil? We are going to get a class of men who may, perhaps, not be as honest as those we have had hereto- fore, men who have discharged their duty and given satisfaction to the city. You pro- pose to say to these men, without any necessity for it, without any benefit to be derived from it, that they shall not be eligible for re-election. If you can show me any benefit, I am willing to yield. We have no right to ask that you shall give us anything in the cities which you do not get in the counties; but I am showing you that the same things which induced you to adopt this principle as to the counties do not exist in the cities. For these reasons I ask that the principle of enligibility of re-election be not applied to the cities, where the necessity for its application does not exist. Mr. R. Walton Moore: Mr. Chairman,! do not think there ought to be any distinc- tion between the cities and the counties respecting this matter, but I intend to support the amendment offered by the gentleman from Richmond (Mr. Meredith), and to support DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE VIRGIXIA. 1921 it .with the notice that an effort will be made by some of the county members here to strike out the ineligibility feature as to the counties, heretofore adopted. Mr. Claggett B. Jones: Suppose you let it all come up at the same time. If you get this matter settled upon cities there is no telling where we will land in the counties. I do not want to interrupt the gentleman further than to say this: The gentleman from Richmond (Air. ]^Ieredith) speaks of the treasures of the cities. We have had but one treasurer in the county which I have the honor to represent since the office was created. In Richmond they have had three. We have never had but the one, and we have never had the slightest trouble with the finances of our county. I will be very glad, indeed, to vote for the cities, provided you will let that matter stand in abeyance until the question is reconsidered as to the cotmties. Mr. R. Walton Moore: I cannot control the methods of procedure, but I do not intend to try to inflict an injurj^ upon the cities by opposing the amendment offered by the gentleman from Richmond. It was unjust, in my opinion, to apply the principle to the counties, and I will not vote to extend it to the cities. I have listened with attention to what the gentleman from King and Queen (3Ir. Jones) has said, and in Lhe same line I might refer to my own county. In that county there is no great eagerness to hold the office of treasurer. It is not such a very desirable office. It is not an office with a heavy salary. We now have an admirable treasurer, and while he, as I am informed, is not particularly anxious to retain the office, I will object to any action that would prevent the people from continuing him in service. For the present I will vote for the amendment of the gentleman from Richmond, with the hope and expectation that when a motion to rescind is made here the county mem- bers who are against this principle will have the stipport of the members from the cities. Mr. Mclhvaine: Mr. Chairman, it seems to me self-evidently true that this amend- ment ought to be carried, and that the provision ought to be made for the cities which they universally desire. I represent one of the counties, and I will stand with the gentleman from Fairfax OlT. :Moore) in an effort to try and get the action of the Convention in regard to the county treasurer brought up again; but it seems to me that matter ought not to have any bearing whatever with us on the question that is before the committee now. It seems self-evidently true that what the cities want in this respect they ought to have. The experience of all of us is along this line, and we ought not to hinder them in what is manifestly for their welfare. Mr. Braxton: jvir. Chairman, I have the honor to represent in part, not only one of the sturdiest and most prosperous little cities in the Commonwealth, but also prob- ably the biggest county in the State in population and in taxable values; but I feel that in these matters I have no prejudice either for or against the county or the city. When this matter came up before, as to the counties, I voted against it and I spoke against it. It seems to me that it is wrong in principle. It seems to me that it Is the crudest attempt to correct an evil that I have ever known, with all due respect to the gentlemen who differ with me on the subject. The proposition is to make these treasurers account properly and perform their duties properly, and the remedy proposed is to deprive them of all incentive they can possibly have to be good officers by saymg to them: T^Tiether you are good or whether you are bad you shall inevitably be turned out of office. It seems to me that is a mistake. In my humble opinion it is a mistake for coun- ties as well as a mistake for cities. If the matter comes up again, and I have another opportunity to vote on it, I shall certainly vote to change that as to the counties, as I did before; but even if that does not occur, and it should be the opinion of a majority of the committee that the rule of ineligibility should remain applicable to the counties, I shall insist it is a mistake to say that because, and simply because, it is applied to the counties it ought to be applied to the cities. If it is true that it should be applied to the cities that does not depend upon the fact that it is applied to the counties. If it is 1922 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIEGINIA. proper to have it in the cities, I say have it there, but do not have it in the counties; and if it is not proper to apply it to the cities, I say do not apply it to them although you do apply it to the counties. The conditions of rural and urban life are essentially different. Why is it we have a different government in every respect in cities from what we have in counties? Why do you not transfer your city government to the counties or your county government to the cities? For the simple reason that the conditions are different. You have different troubles, different propositions to deal with. Different condi- tions confront you. I submit, sir, in addition to any reason that may be urged for this thing in the county, in the cities we have these reasons against it. In small counties the duties of the treasurer are not so great but that he can perform other duties along with it, and so you do not have so much difficulty in getting men to run for an office which, when they get it, will not compel them to lay aside and give up all other busi- ness they may have. They may carry on their farm, for instance. But when you come to the treasurer of a city, the duties of whose office are absolutely engrossing, when he goes into that office he must give up all other businessi, because he does not have time for anything else. I submit to you, gentlemen, not that men cannot be gotten, because you can always find somebody who is willing to accept a position, if only for a night's lodging; but you cannot get competent, faithful, efficient men; not men who want the position, but men whom the people want for the position, to go out of business, if they have any business, and give up everything in order to take an office for one or two terms, which they would have to lose inevitably whether they performed their duties faithfully and efficiently or not. I think, gentlemen, it is clearly true you would be compelled to have inefficient and incompetent men to fill offices on any such terms. What is the proposition? It is that if a man be a merchant, or a banker, or what- ever his business may be, he must go out of that business entirely, abandon it, close it up, in order to take an office which will continue but for a few years, and then give up that office and start life over again. In my own city, and as far as I am aware, in all the cities, we have officers, of tried integrity, experience and efficiency. It has been said here that the power of selecting their own officers should not be taken from the people, and yet it is proposed here toi say to the people, "Although you have an officer who is possibly the only man in your community suited for the position, one whom you unanimously, without the exception of a single solitary voice, want to have this office, you shall not have the right to elect him?" I say that is restriction upon the right of the people to elect men to fill their offices that goes further than anything ever yet proposed. I understand, in many cases, there have been defaulting treasurersi in the counties, but, if my information is correct, there has been but one instance, as I am informed by the auditor, in 1884, when the State has ever lost a cent by the defalcation of a city treasurer. Gentlemen, I hope I will not be misunderstood in this. I do not mean to say that the city treasurers or the men in the cities are any better or of any higher order of integrity than the men in the counties. But what I did say is that the system of ac- counting which is required of the treasurers in the cities is more efficient than it is in the counties, and there is the whole question. It is a question of how you shall make the officers settle their accounts. If you have a competent system you will not need the clause you complain of. If you do not have a competent system you will be left with the same troubles if you turn them out of office at the end of every week. Now, Mr. Chairman and gentlemen of the committee, the complaint, as far as I have heard, is that the poll-tax is not collected in the cities as it is in the counties. That is a notorious fact, a deplorable fact, a fact which ought not to exist, and one for which we should have some remedy. But sometimes, Mr. Chairman, the proposed remedy is not a remedy in fact at all. How will it remedy that to say the man shall go out of office? Why is it he does not collect these poll-taxes? It is principally because it does not pay him to do it. The poll-tax is one dollar, and his commission on it, I believe, is two and a half cents, or maybe less than that. It would not pay him the DEBATES OF THE COXSTTTUTIOXAL COXVEXTIOX OE TIEGIXIA. 1923 carfare that would be necessary for him to ride out and collect the money, even if the man would give it to him. It is a part of his business, the execution of which does not pay him, and therefore when it is left to him to perform it, he does not execute it. I say the law ought to require him to execute it. The law ought to say to him in every case of failure to collect the poll-tax from a delinquent, -You must show that the man has not the money in order to make it out of him, that you have applied to him, or that he is not a resident of the town." If you turn him out at the end of a year, or of four years, he will not put himself to the trouble of collecting the poll-tax any more than he does now, because it would not pay him to collect it any more than it does now. The very reasons which exist to-day for his going through a year without collecting the poll-tax will continue to exist, it matters not when you turn him out of office. I heartily join with these gentlemen in saying that is an evil that should he corrected, but I differ from them in thinking that the proposed amendment would afford any remedy for it whatsoever. YiT. George K. Anderson: Does it cost any less to collect the dollar in Richmond than to collect it in the country? Mi\ Braxton: Doubtless it does not, and I hope the gentleman will understand that I am not palliating this situation of affairs on the part of the city treasurers. I admit it is a deplorable fact which ought to be remedied. If you can suggest any remedy which seems to me to be directed to the cure of the evil, I will join with you in sectiring it. I understand you have a system in the country by which you require treasurers to either collect the poll-tax or show why they do not do it. That rule ought to be applied in the cities. The point I make, and I hope gentlemen will not misunderstand me, is that the pro- posed remedy will not help the evil, but the evil you complain of will remain just as gTeat if you turn the treasurer out of office as if you did not turn him out. I suggest to you, gentlemen, that the delinquent list of the city of Richmond has to be passed upon just the same as the delinquent list in the counties by one of the courts here in the city — I think the hustings court; but I grant you it is a purely perfunctory matter. Mr. Meredith: I desire to call attention to the fact of the absolute impossibility of remedying the difficulty in the way proposed. In the counties, when the treasurer comes before the board of supervisors, he knows the supervisors in one district and the super- visor in another district. In the city we do not know the men who live in the square above or in the square below. That is my case, and I am pretty well known in the city of Richmond, myself. The same principle cannot be applied. Some other means must be devised for curing the difficulty. Mr. Braxton; Mr. Chairman, it is well known in the various schemes proposed for the amendment of the suffrage law, I think without a single exception, the prepayment of the poll-tax has been made one of the provisions in all of them; and I submit that when that is done the difficulty that exists in many cases to-day will not exist. Furthermore, it is suggested in many of them, as a part of the scheme of suffrage, that the payment of the poll-tax be not made compulsory; and if that be true, then you will not have occasion for this; but I will say once more that I do not intend to palliate in any way the failure of city treasurers to collect the poll-tax. I simply say I do not believe turning them out of office will have any tendency whatsoever to correct that evil. It is a thing which can be corrected, and ought to be corrected, but it cannot be corrected in that way. I trust that when the experience of all the representatives of the city, as far as I know, concur in deploring this suggested movement as one which their experience shows is not desirable, when I state that if you gentlemen will think over it you will see it will not accomplish what you want, it will be the pleasure of the committee to vote down the proposition and leave the people of the cities free to elect whom they choose to this office, and. when a man has faithfully performed the duties, they may be permitted to say to him. ''Well done, thou good and faithful servant; we will retain you there; we will show you still have our confidence, and we will hold out some reward as an inducement for faithful and efficient service." 1924 DEBATES OF THE CONSTITUTIOIs^AL CONVEN'TION' OF VIRGINIA. Mr. Wescott: Mr. Chairman, if I had any dooibt whatsoever of the fact that this body has already listened to the discussion of this question fully as long as it is disposed to listen, the inattention that has been given during the period which has been consumed by his rediscussion of it would attest the truth of that fact. Mr. Chairman and gentlemen of the committee, I shall occupy your time, as usual, but a very few moments, with a view to enforcing the suggestion made by the dis- tinguished gentleman from King and Queen (Mr. Jones). We have heard the arguments pro and con which have been urged heretofore, both in committee of the ^Hiole and in Convention, as to the wisdom or unwisdom of the pursuit of this policy, when the recom- mendation of the Committee on the Organization and Government of Counties was under consideration. We have heard them without stint or limit in Committee of the ^Vhole; we have considered and reconsidered and heard and reheard them in Convention; and I submit, Mr. Chairman and gentlemen, that the consensus of opinion of this body has taken form in the report which has been adopted. Now, sirs, I desire to address myself to this consideration only: If, in the view of all the gentlemen from the cities and the contingent from the counties, the course which we have adopted is unwise, if it is proposed, Mr. Chairman and gentlemen, that by reason of the unwisdom of the course to which we have committed ourselvea we should recede from that position, I insist that is no reason why we should at this stage leave the result of the action of this body, by our votes here, undistributed upon this question, and establish a diametrically opposite rule with reference to cities to the one we have adopted as to the counties is inherently and intrinsically wrong, as contended for by these gentlemen, then let us put the cities in the same wrong position. I do not concede that proposition; for then I submit there would be a stronger pressure and a stronger incentive for the combined exertions and influence of the members from both counties and cities to undo that wrong. ' I am discuSiSing this question now upon the assumption that that policy to which, in our previous proceedings, we have committed this body is unwise, and that we ought to retrace our steps. I submit, gentlemen, in view of that aspect of the question alone we are more apt to retrace our steps, we are more apt to give force in our votes to the expression of that view, when the cities and the counties both are interested in the motion to rescind, designed to correct this unwisdom to which it is said by some we have committed ourselves. A few more words, gentlemen, and I shall conclude. 1 realize the distinction made in many regards between the city and the county governments. I realize the risks that underlie the distinction as to the difference that must of necessity prevail in many respects in the cities and in the counties, but I challenge the gentleman who advocates that proposition as a reason why we should put the counties in this matter in one posi- tion, and the cities in another, to point out to me one single inherent difference between the officers of the respective cities and counties of the Commonwealth in this matter, in so far as the name and the character of the duties required to be performed are con- cerned. Wherein lies that difference? It does not exist. Their duties are identical. If this policy is wise with reference to the counties of the State, then every consideration that forces upon us the belief that it is wise to adopt it with reference to the counties, is equally, I submit, applicable, and should equally influence our conduct in making that policy and that principle applicable alike to the citiesi. Then, on the other hand, if the gentlemen who have fought and contended and contested in every stage of this pro- ceeding, and who have been successively voted, wish still to contend that that course is unwise, that it will result in injurious consequences, then I submit that this body, when it addresses itself to the question of the unwisdom of that course, should take into consideration alike its unwisdom as applied to counties, and as applied to the cities, be- cause there is no difference between the characters of the two municipal corporations to which it is applicable. DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF YIEGIXIA. 1925 I therefore, Mr. ChairixLan and gentlemen of the committee, without undertaking to meet these gentlemen in discussing the wisdom or the unwisdom of that policy, but meet- ing them upon their own ground, say to them that if that to which we have committed ourselves in the report that has been successively adopted by the Committee of the T^Tiole and the Convention is unwise, let us consider its unwisdom as affecting both the cities and the counties alike; let us not run the risk, under any circumstances, of having in our Constitution this crazy-quilt patchwork of legislation of a different character when applied to cities from that which is applied to counties, when there is no intrinsic difference in the character and nature of the duties of the ofiicers to which that differ- ence applies, which underlies and supports that discrimination. I hope, Mr. Chairman and gentlemen, that the amendment of the gentleman from the city of Richmond will be defeated. On motion of Mr. Lindsay the committee rose and the President resumed the chair. Mr. Stebbins : I desire to offer the following resolution, and ask that it be referred to the Committee on the Organization and Government of Counties: Resolved, That the action of the Convention, in inserting the following words, to wit: '"Who shall not be elected nor serve for more than two consecutive terms, nor shall he act as the deputy of his immediate successor," in the first section of the report of the Committee on the Organization and Government of Counties, be and the same is hereby rescinded. Mr. William A. Anderson: I offer the following resolution and ask that it be referred to the Committee on the Judiciary: Resolved. That the following section or provision to like effect be embodied in the Constitution: Section — . The judge of the corporation court of an incorporated community having a city charter under existing laws, but having less than five thousand inhabi- tants, may reside outside the corporate limits thereof; and the same person may be judge of the corporation court, and judge of the corporation court of some other city of less than ten thousand inhabitants. The hour of 2 o'clock having arrived the Convention adjourned until tomorrow, Y^'ednesday, January 22, 1902. at 10 o'clock A. M. WEDNESDAY, January 22, 1902. The Convention met at 10 o'clock A. :m. Prayer by Rev. Richard Mcllvvaine, D. D. ]\rr. Green: I move that the report of the Committee on the Preamble and Bill of Rights be referred to the Committee on Final Revision, and that it be printed for the use of members. The motion was agreed to. On motion of Mr. Brooke the Convention resolved itself into Committee of the mole for the further consideration of the report of the Committee on the Organization and Government of cities and towns, :Mr. T^lthers in the chair. The Chairman: The question is on the amendment offered by the gentleman from Richmond (Mr. Wise) to the first clause of Section 6. :\Ir. Wysor: Mr. Chairman, I crave the indulgence of the committee while I discuss^ for a few moments, the pending question. I would not trespass at all upon the patience of the committee if I had not promised the gentleman from Accomac (Mr. Wescott) that if he would make a speech upon the subject I would follow him with a few remarks. I was very much impressed with the speech of the gentleman from Accomac. It 1926 DEBATES OP THE CONSTITUTIONAL CONVENTION OF VIEGINIA. was argumentative, forceful, intelligent. The proposition before the committee is to make city treasurers ineligible for more than two consecutive terms of office. That same provision has been already adopted as to county treasurers. The committee re- ported in favor of such a provision in reference to county treasurers; it was argued thoroughly in Committee of the Whole, and they decided in favor of the provision. It was afterwards submitted to the Convention, which finally adopted the provision; but in the face of these facts the gentleman from Halifax (Mr. Stebbins) comes here and offers a resolution to rescind the action of the Convention in regard to the eligibility of county treasurers. It seems that he wants to destroy the steadfastness of purpose of the Convention. Why, he wants to make a supple-jack out of the Convention so that it may turn somer- saults for the delectation of the public. (Laughter.) He wants to make a shuttlecock out of the Convention, and to run it backwards and forwards like the shuttlecock in a loom. I suggest to the gentleman from Fairfax we cannot make a Constitution like an old woman weaves a piece of jeans. (Laughter.) I submit we ought to adhere to what we have already done upon thisi subjeect. I was surprised at the gentleman from Prince Edward (Mr. McIlv/aiuQ) when he endorsed the position of the gentleman from Halifax. The gentleman from Prince Edward is one of the most learned, one of the most useful, one of the most distinguished members of this body. I just read his life in the Virginia Constitution Directory of 1901. see what follows his name A. D., A. M., D. D., LL. D. (Laughter,) Why, these degrees, following his name, make it look like a kite, with a magnificent streamer stretched out behind it. (Laughter.) And yet he is here supporting this propsition of the gentleman from Halifax to undo what we have adopted in so many instances. Mr. Mcllwaine: Will the gentleman permit me to interrupt him? Mr. Wysor: No, sir. I am not used to being played with at home, and I will not be played with here. (Laughter.) I do not believe in these interruptions. They serve no useful purpose. (Laughter.) Mr. Mcllwaine: If the gentleman will permit me, I will say that he is mistaken in saying that I endorsed the proposition of the gentleman from Halifax. Mr. Wysor: I understood you to say you endorsed it. Mr. Mcllwaine: No, sir. Mr. Wysor: Then, sir, I extend to you my apology. I understood you to say yes- terday that you endorsed the position of the gentleman from Halifax, and I was surprised that you did so. I am glad to find you do not. I tried to get the gentlem.an from Prince Edward on the occasion to vote for the reconsideration of a measure in favor of which he had voted, but which had been lost; but he said he would not do it; that he was not in favor of dilatory tactics — and hence my surprise at what I conceived to be his posi- tion in supporting the position of the gentleman from Halifax. Now, the gentleman from Richmond (Mr. Meredith) — there are so many gentlemen from Richmond that we have to violate the rules and call them by name, so that it may be known which gentleman we mean — and the gentleman from Manchester (Mr. Ingram) take the position that the provision is against principle. Against what principle? What principle is involved in the question? It is a mere question of public policy. We have a right to put it in the Constitution. It has been put in the Constitutions of other States. Our bill of rights provides that officers shall frequently be returned to private station, and says in so many words that they may be made ineligible for succeeding terms of office as the law may direct. And yet we come here and are told that it is against some principle to put it In the Constitution. The gentleman from Manchester says he believes in this kind of rotation of office, but he wants the people to rotate. How are the people going to rotate an oflicer where he has got them by the goozle? (Laughter.) They may rotate him in, but they cannot rotate him out. I lay this down as a principle which is incontrovertible — that a government is more interested in the prompt payment of its revenues into the public treasury, and the proper disbursement thereof, than it is in' anything else. If you cut off the government revenues you destroy the government. It DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF VIRGINIA. 1927 is like cutting off the train of a great army when it has no food and no ammunition. So, when you impair the revenues of a government in any way, you impair the government itself. It is a question of policy. It is a question of efficiency. The question is — will making treasurers ineligible after two consecutive terms of office cause them to be better officers, make more prompt collections of the revenues, and pay them into the public treasury more promptly than under the present laws? Why, the present laws are ample, they are sufficient, so far as the form and text of the laws are concerned, but the treasurers do not abide by them. You cannot make them abide by them; but this simple provision will secure what you desire. No man can deny that it will be efficient, I prefer that a treasurer be elected for six years and for only one term. If I cannot get that I want the provision which we have. When you make him ineligible, he knows he must settle; he knows there is a day of settlement coming, and coming soon, and that he must get ready to settle with somebody else who will take the office. Therefore, he will undertake to collect all the revenues belonging to the government and have them on hand. That is self-evident. That is plain. Why do you put such a provision as that in the Constitution? What better provision could you put into the Constitution than pro- vision like that, which violates no principle, and which conserves the public interest in every way? Gentlemen who deny that proposition, who prefer the present cumber-some machinery of the law to make treasurers settle, would prefer an ox-cart to an automobile; they would prefer a torchlight to a lamp; they would prefer a lamp to an electric light, and if you once, by any means, got them to take up an electric light, they would, without doubt, prefer it even to the resplendent glories of the new Jerusalem. (Laughter.) This thing is automatic. It is a useful provision in the Constitution. Here comes the gentleman from Stauton (Mr. Braxton). What objection has he to it? I admire the gentleman from Staunton. I admire his charming eloquence, his ready flow of language, his periods; but he must pardon me for saying that his speech on yesterday upon the pending subject reminded me of the hand-writing of a blue-bottle fly in summer-time. It was all periods. (Laughter.) He comes here to tell us about what they have got in Staunton — about the good treasurer they have in Staunton. He has been in Staunton so long that he thinks Staunton is hub of the universe because it has a lunatice asylum. (Laughter.) There are other places than Staunton. I wish I could take him up to Pulaski and let him see the gem city of the mountains, and let him breathe the fresh ozone coming down from the mountain tops, each fresh breath from Heaven bearing the order of the cedar and pine. Now, gentlemen, I insist that because he has a good treasurer in Staunton is no reason why we should violate the general principle. Wiiat does the gentleman from Staunton want? He wants to keep his man in office. I asked the gentleman from Staunton awhile ago what his treasurer's name was. He says his name is Izona Hoge. I said. How long has Izona Hoge been in office?" He said, "Why, Izona Hoge has been in office for fifteen years." What kind of a position is he advocating here, that retains a man in office until every tooth in his head has become impaired beyond redemption, until he becomes "sans eyes, sans teeth, sans everything." What kind of inducement is he holding out to his children in Staunton? (Laughter.) Suppose one of his blue- eyed boys should come up to him and say, "Papa, I want to be elected treasurer some of these days." He v/ould say, "Well you can be when Izona Hoge dies." (Laughter.) That is his idea now of keeping a man in office. I want men to get out of office occasion- ally — I do not care how well they fill the office — and let somebody else try. The gentleman from Fairfax (Mr. Moore), whose charming eloquence so often entertains us, and who evidently, like Demosthenes of old, has walked along beside the sea and spoken to its waves with his pebbles in his mouth (laughter), comes forward and makes a startling proposition. He says if the gentlemen from the counties would support this proposition, why, peradventure they would turn around and rescind the 1928 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. provision making treasurers ineligible in counties. He thinks you green, apparently. He sees flies and specks on you, to make such a proposition as that to you. Why, he wants to take you a-hunting and divide the game among his friends and give you the cahoot. (Laughter.) He thinks you are babes, and he wants to lull you by singing in melliflous voice that old nursery song — "Bye Baby Bunting, Papa's gone a hunting To get a little rabbit skin To wrap Baby Bunting in. Do you intend to be led astray by such music as that? (Laughter.) It might cause stones and trees to follow the musician, but I hope this independent Convention will never be misled by it. If you gentlemen want to accomplish anything you go just the reverse of what the gentleman from Fairfax advises you. (Laughter.) If you do not act as he advises you put him and his friends in the same kind of a hole that he says you are in, and if they say to you we will get you out of the hole if you will then lift us out of the hole, all right, but do not keep them out of the hole, because you have no certainty that they will lift you out of the hole. The thing first to do is to put them all in the same kind of a hole that you are in. (Laughter.) The new member from Richmond (Mr. Allen) comes foward and tells the gentle- man from the counties how much he has been doing for them and wants them to assist the cities. But he has not been here long enough to do very much for them; and now he says he always wants to know what you want, and he will vote for it. When h© came here I moved to make him take the oath of office, and I am sorry I did not succeed, because he has a kind of loose way of voting. (Laughter.) He only ought not to vote for a thing just because you want it. I say to him you want an ineligibility clause, but I am not going to vote for that. I am not going to give you what you want, but what you need. If you ask for bread I am not going to give you a stone. I am going to give you what you need. I do not believe the gentleman really wants what his constituency wants. I be- lieve if we leave it to the citizens of Richmond to-day (I mean the white citizens) they would give on overwhelming majority in favor of making the treasury ineligible for more than two consecutive terms. He is representing a few people and not all the people, not the great mass of the people. Your people here are in your shipyards, in your factories, in your enterprises. They are composed largely of every-day laborers. These people constitute the great bulk and mass of your people, and they believe in rotation in office. They do not believe in a man holding office interminably. Look at the evil it produces. Why, he has the saddle-bags to perpetuate himself; he will join in with some other oflScer and they will all get together and make a combination, and it is almost impossible to beat them. The masses of the citizens of the Common- wealth prefer a leader, bearing a banner upon which is inscribed; "Ring out the old, ring in the new." If I thought the people of the city of Richmond really wanted their treasurer eligible continually, I would hate to vote against the proposition. I love the charming capital city of the Old Dominion, so beautifully located on the water of the historic James. I love her people. Their patriotism has been tried in the fiery crucible of the .greatest internecine war the earth has ever seen, and has come out like gold, purified in a furnace. She suffered defeat in war, she now enjoys the victory of peace. Her waste- places have been restored. Trees and flowers cover the places of desolation made by fire and sword. She now holds out her hands of prosperity to all the country round about. A surpassingly beautiful cemetery attests undying devotion to those who died in a common strife. It is the common verdict that a pleasanter place than Richmond can scarcely be found on the habitable globe. And now it truly may be said, in her case, that defeat, desolation, sorow and death are swallowed up in victory! I thank the Convention for its attention. (Applause.) DEBATES OF THE COXSTITUTIOXAL COXTEXTIOX OF VIRGIXIA. 1929 Mr. Barbour: Mr. President, before the vote is taken on this proposition I desire to call the attention of the committee to some figures which I have compiled, which, to my mind, demonstrate the fact that the deficiency, or rather the inefficiency, of the present system of collecting the city revenue is much more difficult in the cities than in the counties. Before discussing that branch of the proposition I Ts-ill, however, call the attention of the committee to the fact that this office is essentially a State office, and not one in which the locality is soleh" interested. If it were one in which the locality were solely interested I would say let the people of the cities have exactly the form of government that they want; but this proposition is one in which the people of the State at large are interested, because this is an officer who collects the State revenues, and we people of the counties, as well as the people of the cities, are interested in seeing that we have an efficient system for the collection of these revenues. I would call attention of the committee to this fact, and it is a remarkable fact, that notwith- standing that the representatives from cities here are attempting to perpetuate this system of collecting of State revenues in the cities, they have themselves, and for the collection of their own revenues, utterly abandoned it. Mr. Meredith: So far from asliing that you shall continue the present system of collection, I distinctly stated on the floor yesterday that the evil here is in the system,, and not in the officer who does the collecting. I should like very much to see some remedy by which the State revenues can be collected, but I do not think the remedy lies along the lines you suggest. Mr. Barbour: If this does not remedy it, and if the evil exists, you point out the remedy; you give us someming better, and then — Mr. Meredith: You would not expect me to point out a thing which lies purely in the power of the Legislature, as a mere matter of the collection of revenue. Mr. Braxton: Did I understand the gentleman to say that the cities desire to continue, for the collection of their own revenues, the sj-stem proposed for the collection of the State revenues? Mr. Barbour: Xo, sir. I said they had abandoned the system of having the revenues collected by an elective officer at all. Mr. Braxton: But you do not provide that officer shall be ineligible. Mr. Barbour: Yes, sir: and if you are willing to have your treasurer appointed I am willing to apply that system to the entire State. But gentlemen come here and tell us that for your local revenues you will have an appointive officer to collect them, and when it comes to the revenues we are interested in you want them collected by an elective officer forever eligible to re-election. Mr. Braxton: I said nothing about electing or appointing. The question which we addressed ourselves to yesterday was whether they should be ineligible after two terms even regardless of how he was elected. Mr. Barbour: I understand what the gentleman said yesterdav, and I am calling the attention of the committee to the fact that, so far as your local revenues are con- cerned you are unwilling to take the system which you want us. of the counties to follow when we collect our revenues. It is true that in the counties I think we have a better system of passing upon the delinquent list, as to whether or not they shall be allowed, than you have in the cities, but that grows out of the very nature of the case In large communities you cannot get men who are acquainted with the affairs of all of their fellow-citizens. You cannot reach it in that way, where the cities are con- cerned. The only way you can reach it is to make it to the interest of the officer, as far as possible, that he shall execute his duty, because no one man can be acquainted with the financial condition of all the people in the city of Richmond, and their ability to pay, and the ability of the officer to make them pay their tax bills, as is the case in the counties, where the boards of supervisors pass upon the tax bills. Mr. Allen: Did I understand the gentleman to say that the city collectors are appointive officers? Mr. Barbour: Yes, sir; I understand so. 122— Const. Deb. 1930 DEBATES OF THE CON'STITUTIONAL CONVENTIOIT OF VIRGINIA. Mr. Allen: The gentleman is mistaken. In Richmond he is elected. Mr. Barbour: I am glad the gentleman corrected me. I do not wish to mislead the committees. Now, the attention of the committee has already been called to the marked dif- ference in the cities and in the counties to the proportion of the capitation taxes which are paid. I want to call the attention of this committee to the fact that in a large number of the cities of the Commonwealth almost as great a disproportion exists when it comes to collecting the other taxes. Mr. Braxton: I think I am correct in saying that the city has no authority over the treasurer, so far as the collection of the State revenue is concerned. That is a matter controlled entirely by the Legislature. The settlement is made with auditors; and if the city which controls its own revenues, which are collected separately from the other, has devised a means of settlement which has been more efficient, why should they be to blame that the Legislature, which alone controls the collection of the State revenue in the city, has not adopted a similar method of settlement to enforce its col- lection. The point I wish to call to your attention is that in the counties the State revenues and the county revenues are collected at the same time, and the settlements there made, by virtue of the statue in such case, is more for the collection of the State revenue than for the county revenue. In cities it is different. The city tax is made out on a separate tax ticket, and the city authorities have been given no authority of law to supervise the collection of the State revenue. If that system has been inefficient, I think the blame should rest upon the Legislature and not upon the city authorities, which have no authority to look into the matter. Mr. Barbour: If my friend will pardon me, the cities, on the other hand, need put none of their revenues in the hands of the State treasurer. That we have provided for. We are providing for a system of collection of State revenues in the cities. You gentlemen in the cities can give the officer duties in connection with the collection of your local revenues or not, as you choose, so that it does not necessarily interfere with your locai matters. In this section we are providing for the collection of State revenues, and all of us are interested in the efficiency of that system. Mr. Braxton: I wish to call the gentleman's attention to the fact that we are making no opposition to any method of settlement you may suggest, or to anything that will require him to account for the taxes which come into his hands or make him col- lect the tickets. The only point we make is, that by turning him out of office you will not effect the purpose you desire. Mr. Barbour: We have heard that suggestion all along. It has been debated on the floor of the Convention, and time after time the Convention has determined that it will accomplish that purpose if that system is adopted. 'V^Tien the gentleman interrupted me I was just about to call the attention of the Committee to the disparity between the delinquent list in the cities under this system and in the counties, showing that the present systemlmay be more inefficient in the cities than in the counties. For the personal property lists for the year 1S99 the average of delinquencies in the counties is 4.9 per cent. Of every $100 of taxation, in the counties,on an average of $4.90 of it is returned delinquent, whilst the average for the cities is $8.30. "^A^en we come down to the individual cities, we find that in the cities of Alexandria, of every $100 of personal tax assessed $22.80 of it is returned delinquent. Is that an efficient system? In the city of Bristol, which is a small city, of every $100 assessed $27.30 is returned delinquent — more than a fourth of it. In the city of Manchester, of every $100 of personal property assessed $17 of it is returned delinquent. Mr. Meredith: la he not prepared to submit that the failure to collect does not come from the officer being a defaulting officer, which is alleged in the counties, but from the system of settlement that the State has required. Mr. Barbour: I will answer my friend in this way: It comes from the same evil DEBATES OF THE C0NSTITUTI02s^AL CONVENTION OF VIRGINIA. 1931 in both cases, and not on account of the dishonesty of the officer, either. He does not collects the taxes in the counties, and he does not collect them in the cities; but he uses the office for electionering purposes. He will not press the men who have votes, with the result that in the counties the county officers will not permit him to return the taxes delinquent, and in that way he falls short of the collections of his revenue, and the counties lose it on account of the system of settlement. In the cities he is permitted to return that same tax delinquent, and the State loses it. The evil grows out of the same thing in both cases. It simply develops in a little different shape, owing to the different system of settlement. The gentleman from Lynchburg (Mr. Glass) yesterday called attention to the great disparity of personal and real estate taxes in the city of Norfolk, the inference being that Norfolk is not assessed with as much personal property as it should be assessed, notwithstanding the fact that in the city of Norfolk 20 per cent, of its taxes on personal property is returned delinquent. In the city of Portsmouth 23 per cent, of it is. re- turned- delinquent. And still the representatives from the cities tell us that this is an inefficient system of collecting taxes. It is not, and cannot be; and this is one step in the direction of reforming it. There is no reason why the system adopted in the counties should not apply to the cities. It is a matter of State policy. The people of the entire State are interested in having the taxes from the whole State properly collected. This in one step in that direction, and I earnestly hope the Committee of the \Vhole will uphold the action of the Committee on Cities and Towns in reporting this provision in conformity with the action heretofore taken by the Convention in reference to the counties. Mr. Lindsay: Mr. Chairman, I made a hurried examination this morning of a few of the State Constitutions, and in reply to the argument of the gentleman from Richmond (Mr. Meredith), that this provision is in the nature of an innovation and rather against precedent, I took the trouble to note the provision in several of the different Consti- tutions. In Delaware the treasurers are ineligible for more than one term in six years. They hold for four years, and are ineligible for the next succeeding term. In Idaho they are ineligible after four years. In Illinois there is the same provision. In Indiana they are ineligible after four years for the next succeeding term. They are eligible for four years in six. In Kentucky they are ineligible in two years after their first term. In Maryland they may hold office for two years. In Mississippi for four years. In Missouri they may hold office for two years, and are ineligible after the second term. The same is true in Montana. In North Dakota they are ineligible after four years. The same is true in Ohio and in Pennsylvania. Tennessee gives them a term of six years. I have omitted South Dakota and one or two Western States. The Constitution of Virginia of 1851 provided that sheriffs, who at that time collected the taxes, were ineligible for more than four years in any six, and were ineligible during their term and for one year afterwards for any political office. Mr. James W. Gordon: Mr. Chairman, when this question was up for discussion in Committee of the Whole, on the report of the Committee on County Organization, I foresaw just the discussion we are now having in regard to the cities. I asked myself the question whether I would be willing to vote to make these treasurers ineligible after the second term in the cities. After thinking over that question carefully I came to the conclusion that the interests of the people of the State of Virginia, as a whole, demanded that provision. Those gentlemen who represent counties in this body are not here to make a Constitution for the counties of Virginia. Nor are we who represent cities here to make a Constitution for the cities of Virginia. We are all here to make a Constitution for the entire State. It seemed to me that this was one of those questions which should be settled along broad lines applicable to all parts of the Com- monwealth. I wish to call the attention of the committee to the fact that the nature and 1932 DEBATES OF THE CONSTITUTIO]>TAL CONVENTION OE VIRGINIA. functions of the office of the treasurer are exactly the same in the cities as in the counties, and, as has just been pointed out to you by the gentleman from Culpeper (Mr. Barbour), the fundamental reasons for making him eligible was the same to both localities. The gentleman from Richmond (Mr. Meredith) yesterday said that the reason of the failure on the part of the city treasurers to collect the personal property taxes was due to the fact that the compensation which he derived from the collection of the larger bills made it unnecessary for him to expend the time labor required to collect the smaller bills. Mr. Chairman, I believe if you will limit the term of office of these treasurers they will realize when they go into the office that, in order to make it a paying thing for them, they will have to get out of it all they can during the eight years, and that they will be forced to the collection not only of the larger bills but of all the bills, in order to increase the aggregate of their compensation for the two terms. I think that is an answer to the objection made by my colleague from Richmond. I believe, just as the gentleman from Culpeper has intimated, that one of the reasons — perhaps the chief reason — for this great delinquency in the collection of taxes in the cities which he has pointed out is due to the fact that the rigid enforcement of the laws which are now on the statue book, and which are perfectly adequate for the purpose, would result in the antagonism by the treasurer of such a large number of voters that he is unwilling to place himself at that disadvantage. To illustrate. Just take this question of the poll-tax. Suppose the treasurer of the city of Richmond were to go into the Trigg shipyards, the Richmond Locomotive Works, the Tredegar Company's Works, and the Old Dominion Iron and Nail works, or any of these large shops here, and attempt by a process of garnishment, or otherwise, to enforce the collection of all the small bills for personal property tax and the poll-tax, I believe it would have a very serious effect upon his re-election. We want, gentlemen, to place this officer in an independent position from the nature of the office itself, because there is nothing about which men are so sensitive as about their money, and about those who attempt to get their money from them. If we will limit the terms of office of the treasurers in the cities I believe it will result in a greatly increased revenue and a much more efficient collection of the taxes. I was very much in favor of the proposition offered by the gentleman from Nottoway (Mr. Watson), that we have only one term — a longer term, perhaps, than is provided here — and make the treasurer ineligible after the one term; but that was voted down. There is another argument by the gentleman from Staunton (Mr. Braxton) against this provision as reported by the committee. He says, "We do not know where we could find another man to do this work in the city of Staunton." I have always heard, Mr. Chairman, and I know it to be a fact, that the population of that city and of the county in which it is located is largely made up of the descendants of Scotchmen and Scotch-Irishmen, and I have never heard that that race of people were at all chary about accepting anything that was coming to them. I have never heard that there is such a dearth of men of business and of patriotism in the city of Staunton, and I know there is not such a dearth in the city of Richmond that we cannot find plenty of people, and honest men, to accept such an office as this for eight years. But see in what a position you have placed the small counties of the State. I be- lieve the carrying of this proposition in regard to the counties is largely due tO' the votes of the city member supon the floor of this commmittee. We say a little county with four thousand inhabitants, engaged in agricultural pursuits, can pick up a com- petent treasurer at any time for eight years to step into the office of his predecessor, and yet that a city, a commercial community, with five thousand people and upwards, cannot do the same thing; I do not see how you can reconcile those two attitudes. Why, gentlemen, there are always plenty of men in every community who are willing to accept such an office as this, and who are thoroughly efficient and honest in the dis- charge of any duties which may be imposed upon them in that respect. DEBATES OF THE COXSTITUTIOXAL CONYEXTIOIT OF VIRGINIA. 1933 It does seem to me this T^hole argument goes to the question of broad public policy, and that it should -be settled along those lines, and not settled out of consideration to any locality, either counties or cities. Mr. Keezell: Mr. Chairman, I hope it will not be the pleasure of this committee to adopt the amendment of the gentleman from Richmond (Mr. Wise). As suggested by the gentleman from 'Richmond (Mr. Gordon), I think we ought to legislate along broad lines in this Constitution. The question of whether or not a particular friend of ours happens to hold any office in a county or in a city should not affect the question of policy, whether it is a good or a bad thing to prohibit a man from being elected beyond a certain number of times to an office. If we believe the duties of the office would be better discharged for the whole people by limiting his term we ought to limit it, irrespective of our friends or those who hold the position. If w^e do not believe so then we ought not in the Committee of the Whole and in the Convention to have adopted this provision in reference to the counties. There certainly is no difference so far as the city treasurers and county treasurers are concerned, and if there is one thing w^hich to my mind has created more criticism in Virginia than anything else, that has been done by the Convention, it is the discrimina- tion which the people of Virginia believe has been made between the counties and the cities in one of the articles already adopted by the Convention. I do not think we can afford to put ourselves in the position of treating the counties in one way and the cities in another way. We ought to make a rule, and if it is a good one apply it to them all. I think there is no question that if the discussion had in Com- mittee of the Whole and in the Convention, and the vote of the Convention upon the question, can be relied upon at all, the Convention is of the opinion that it was a good thing, so far as the counties of the Commonwealth are concerned. If that be true wo ought to adopt the rule a.nd apply it in the cities as well as in the counties. The gentleman from Culpeper (Mr.. Barbour), I think, has clearly demonstrated that the very troubles we are confronted with in the counties are accentuated in the cities, and if we ever expect to see the State revenues collected, the capitation tax and the revenue from the smaller tax-payers, we must have it done by an official who is not dependent for his tenure of office entirely upon the whim of the voters in whose interest, or rather in his own interest, the interest of the State is frequently lost sight of. I hope it will be the pleasure of the committee to vote against the amendment of the gentleman from Richmond. Mr. Claggett B. Jones: Mr. Chairman, I confess I cannot see the force of the posi- tion taken by the gentleman from Richmonc' (Mr. Meredith) in asking that a distinction should be made between the treasurers for the counties and the treasurers for the cities. I can well see if the State treasurer collected the revenue for the municipal govern- ment, where there might be some distinction, and where possibly the cities might be affected by limiting the term of office to two successive terms; but, as stated upon the floor on yesterday by the gentleman from Richmond (Mr. Meredith), a large proportion of the taxes is collected by the city treasurers. I know of my personal know- ledge that three-fourths, or certainly two-thirds, and I think three-fourths of the taxes paid in the city of Richmond, are paid to the city collector and not to the State treasurer. How can it be, Mr. Chairman and gentlemen of the Convention, that if the municipal taxes of the cities are paid to a city collector that a term of office limited to two succes- sive terms for the cities can work a hardship of disadvanage to the cities if it does not work a disadvantage or hardship to the counties? I cannot see for the life of me why the cities, simply because they are municipalities and have a much larger taxation to' pay than the counties, can be affected, when they have their own peculiar municipal officer to collect, control and disburse the taxes which are collected for municipal pur- poses. Therefore, it does seem to me, Mr. Chairman and gentlemen of the committee, there Is no reason why a distinction should be made between the counties and the cities in 1934 DEBATES OF THE CONSTITUTION'AL CONVENTION" OF VIEGINIA. regard to the matter of the treasurer. I hope the Committee of the Whole will see proper to put them all upon the same footing. The Chairman: The question is on the amendment of the gentleman from the city of Richmond (Mr. Wlise), eliminating the clause providing for the eligibility of treasurers. The motion was rejected. Section 7, relating to city councils, was then read and amended slightly on motion of Mr. Brooke. Mr. Harrison: I desire to add, at the end of line 23, these words: "But nothing herein shall interfere with the present charters of the cities." My object in that, Mr. Chairman, is to retain to the various cities their present method of selecting the councils of the cities. In the city I have the honor to represent here the method has always been to have twelve councilmen, of whom three are selected each year, so that the council retains a large element of conservative citizens who are familiar with the business interests of the town. There is no qualification as to real estate or any other property qualification. It has worked satisfactorily to the people of that city for one hundred and twenty-five yeara. The people have gotten familiar with it. They are used to that method of electing their own council. They do not want two bodies. They do not understand the system of having two bodies, and they do( not desire it. They do not want any property qualifications on any member of the council. The largest tax-payers in the city of Winchester to-day would be disqualified from sitting in the town council if it were required that he should be a freeholder and possess real estate in the city of Winchester. I protest against this attempt to change what has been the established order of things. It excites antagonisms to the Constitution which are wholly unnecessary. I think it ought to be left to the localities to determine what changes they desire in their own municipal affairs. Why should there be put upon the smaller cities of the State a system of government they do not want; which will not work satisfactorily to them. We have in the town council of the city of Winchester as conservative a set of men as can be selected in that town, and the qualification that is attempted to be put upon their council now would turn out at least three-fourths of them and disqualify them from sitting in the council. Not only that, but it would qualify and render it almost necessary to elect men whom the people do not want elected and do not desire to have representing them in the council. I think we ought to leave old things alone, unless there is something essential ta be gained by it; that we ought to leave to the people those things they are used to and familiar with. If I understand anything about the object of having municipal government. It is ta give a community the right to govern itself in the way in which it desires to be governed. It is^ purely and almost entirely a fiscal arrangement, in order that they may control their fiscal affairs to suit the people of the locality. I think the tax-payers of those local communities ought to be heard here against theories of government which have not been put in practical effect, so far as they are concerned. I have a telegram here from the city council of the city of Winchester, informing me they had a meeting last night of the city council and have forwarded here their protest against the proposed changes as suggested by this report. That protest has not yet reached me, and I am unable to lay it before the committee; but I desire to do so when it shall reach me. The meeting was only held last night, and of course it has not had time to arrive; but I am informed that they object to this method of electing their town council; they object to the change that is suggested in the way they have elected their town council from the time almost that they have been organized intO' a city, and I think their wishes should govern the committee in this matter. Mr. Robertson: Mr. Chairman, I do not desire to say very much in regard to this matter, but as a part of my constituency consists of one of the smaller cities in the Commonwealth I think it is due to my constituents that I should say something on the subject. DZ^ATZS OF THE COXSTITTTIOXAL COXTE^~TIO^" OF TIEGI^'IA. 1935 I heartily concur in my friend from Winchester (Mr. Harrison) has said about this matter. T\"lLile I have been in favor, in almost every particular, of depriving the Legislature of the power to pass special laws for special parts of the State, for special purposes or for individuals, my opinion is that there is one exception to that rule, if not more than one, and that exception is the question we have now under consideration. I believe our city governments ought to be largely what the people of those cities desire them to be. I do not believe we should, in this Constitution, undertake to form the framework of city governments and force it on all of the communities of the State, when it is a well-known fact that the conditions in every municipal gO'vernmeni in the State differ widely. VvTiat might suit the city of Richmond and the city of Norfolk would not suit smaller cities in the lirst place, but when you come down to cities of the same class, a charter which would suit the citizens of the city of L::^'nchburg, for instance, or the citizens of the city of Petersburg, might be totally unfit for the government of the city that I represent in part, because the character of the population, the character of the work done there in the way of city improvements are totally different. Roanoke is a new city. All kinds of questions come up there that the older cities have probably settled years ago, and the kind of government they need might not be at all suitable for us. We have undertaken- there — and it has been a work to which the best citizens of the town have certainly given a great deal of thought and attention — to get a charter perfected which would suit the needs of our people. The charter we have at present does suit the people. There is no complaint of it, though it is a city of 23,S00 people, by the last census, and we claim, of course, to have a great many more than that. I think we have considerably more. Although it is a city of that size we have only one chamber in the council. We have a common co^uncil and nothing else. Our people have never indicated the slightest dissatisfaction with that system. On the contrary, everv- change that has been made in the charter — and I believe some changes have been made at nearly every session of the Legislature — that feature of the matter has been retained. I believe it would create dissatisfaction among our people to make this change. They cannot see any good in it. The system they have suits them, and because gentlemen think a board of aldermen, along with the common council, will produce a conservative body, as a matter of theory", is no reason why they should impose that system on a local community when they :find that the other suits them and has never done any harm. But that feature of the matter I do not object to so much. It is the other feature about which I wish to speak. I am utterly opposed to this freehold qualification. If we do have a second chamber, it does seem to me that that theory of producing con- servatism in a legislative body is one that might have been a very good one in the past, in the old days when nearly everybody of any importance owned a freehold, and when it was considered an honor for a man to be a freeholder, when the freehold qualification was established as a right of sufi'rage. It was probably a good thing then to make a freehold qualification for holding office, becuse it embraced the class of people which the law considered were worthy not only of holding office, but of voting. But that old idea of the holding of land being something that made a man more conservative and a better citizen has, in modern times, been absolutely done away with. This is a com mercial age, and that old feudal idea about land has been exploded. In the Commonwealth of Virginia, I am glad to say, we are rapidly getting out o those old prejudices and ideas, that simply because a man owns land he is better and more conservative than a man who owns other kinds of property. I venture to say in every city of the Commonwealth some of our best citizens prefer not to invest their money in land. Our best merchants do not own the stores in which they do business, do not ov,-n the residences in which their families live. They prefer to pay rent to other people who make a business of building houses in the cities and ov^ming land. A large part of our population in eyery city of the Commonwealth — and I think it is peculiarly true in my own city, where the very best people do not own one lick of land — would be 1936 DEBATES OF THE CONSTITUTIONAL CONVENTIOIn OE VIRGINIA. excluded from sitting in this higher chamber, where we are supposed to have the con- servative element of our city council. I believe that idea is a false one. I do not believe it will bring about the results that are anticipated for it. My experience is that people who own real estate are na more conservative than those who own bonds and things of that kind. A good many people go into the real estate business and build a great lot of houses in the cities, who are speculators, who live at a distance and do not care anything about the welfare of the city, and that the people who are renting those houses, and are engaged in the legit- imate business of the city, are largely interested in its welfare and are more conserva- tive than the people who own the property. You cannot guage a man's conservatism by the property he owns at the present day. I do not think a property qualification ought to be brought back here into our Constitution when our fathers got rid of it absolutely and entirely away back in 1851. I do not see why we should introduce it here into our city governments when we allow the State Senate of Virginia to be filled with men whether they own any property at all or not. Why should we have the distinction made between the board of aldermen of the city and the State Senate, which passes on the grave affairs of the whole Com- monwealth? I cannot, for my life, see why that should be. I respectfully submit that that feature of the report certainly ought to be stricken out. Asi to the other I am heartily in accord with what my friend from Frederick has said. I give notice now that after these amendments are passed on I shall offer a sub- stitute providing that this whole section be stricken out. I do not believe that the Con- stitution should go into the details of what we shall have in the way of city government. It is a matter that ought to be left to the Legis-lature ; and I think we ought to permit the cities to retain the charters they have at present, and let the Legislature, if it sees fit, change them from time to time. Mr. Ayers: I desire to raise a point of order on the amendment offered by the gentleman from Frederick (Mr. Harrison). Mr. Harrison: I will withdraw it and put it in different shape, if the gentleman will permit me. As I offered it before, "nothing herein shall interfere with the present charters of the cities," it looks as if we were doing something and undoing it at the same time; so I wish to change it in this way: Strike out all the words beginning with the words "composed of two branches" down to the sentence in line 13, beginning "No member," and insert these words: "There shall be in every city a council to be com- posed as may be prescribed by law." Then, after that, continue the sentence: "No' member of such council shall be eligible during the term of his office as said member, or for one year thereafter, to any office to be filled by such council, by election or appointment." I think that is a good provision. Then strike out the rest of the sentence, which has already been done, virtually, by the chairman of the committee. Mr. Summers: Mr. Chairman, being a member of this committee, I propose toi show my consistency. I read from the report of the committee: "We reserve the right to object to the freehold qualification of members of the lesser branch of the city councils, as provided in Section 7." That is signed by Timothy Rivers, D. C. O'Flaherty, John C. Summers, J. W. Marshall and Otway S. Allen, We do not object to the section except in this particular, and I wish to offer the following amendment; Strike out the words beginning with "the less," in line 9, down to "dollars," in line 13. Those are the lines that we, the objectors on the committee, reserved the right to object to, I ask that the committee will sustain our objection by striking out those lines. The chairman: The question is on the amendment of the gentleman from Win- chester (Mr. Harrison) to strike out certain words and insert certain words in Section 7. Mr. Harrison: I withdraw the motion to strike out the words beginning in line 16 to the end of the section, leaving the motion to strike out beginning with the word "composed" down to the word "dollars," in line 13, and insert the words "to^ be com- posed as may be prescribed by l^w." DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF YIEGIXIA. 1937 The Chairman: The Secretary will read the proposed amendment. Mr. James W. Gordon: The gentleman from Roanoke (Mr. Robertson) saj^s that he Is in favor of striking out this entire section, and gives as a reason for it that there seems to have been an effort on the part of this committee to unduly tie the hands of these cities of the Commonwealth and to subject them to hard and fast rules. I think I speak for each member of that committee when I say that they not only had no intention of doing any such thing, but that I can prove from that report that they did not do it. Mr. Robertson: If the gentleman will permit me I wish to say that I did not intend by any words I uttered to cast any reflection upon the members of that committee. I was simply arguing what I thought would be the result if the amendment was adopted. Mr. James W. Gordon: I understood what the gentleman meant — that he thought the effect of this provision, as reported by the committee, would be to create too much rigidness about the government of the cities of the Commonwealth. It was the object of the committee, Mr. Chainnan, to present to the Convention a framework of government, applicable to all cities in those particulars which were of fundamental importance, and then to leave these local communities the largest degree of self-government under those general provisions. It was recognized, and I believe will be recognized, by the Committee of the Whole to be an essential thing that there should be in each city a chief executive with certain fundamental powers and duties necessary and sufficient to perform the functions tha.t would naturally attach to the office. Therefore, this committee provided for a mayor, with a veto power and a power of suspension and removal. It was recognized that it was essential in each one of these communities that there should be a legislative branch of the government. And they have attempted in this section to provide such a branch of government as they believe will best carry out the purpose of that department. Under the present municipal charters, as they exist in the different cities of the Commonwealth, some of them have a council composed of one body only. Others have a council composed of two bodies. :\Ir. Dunaway: How many cities of the Commonwealth have two branches in their council? Mr. James W. Gordon: I think there are three or four, if I am not mistaken. It appeared to the committee, Mr. Chairman, that when any community reached the population of 5,000 there would then begin to come bofre its council for considera- tion and decision questions which demanded the most careful thought and the most deliberate and conservative action. We have fixed the population of cities at 5.000 and more, and this system which we propose applies everywhere to those communities. "^Tien a city reaches that population there are constant applications made to its coun- cil for franchises, for the use of its streets and for the use of public places; franchises in the nature of street railways, of waterworks, electric light and power works, gas works and various other public utilities. It appeared to us that under those conditions it was necessary, for the proper safe-guarding of the interests of all the community, that these franchises should not be rushed through a cotmcil of one body only, but that the consideration of those impor- tant questions should be subjected to the deliberation of two bodies, so that the interests of the community might be properly protected. And I believe that if you will consider the abuses which have existed in the past, and which may occur in the future under applications for city franchises, you will recognize the necessity of this bicameral sys- tem. I think, Mr. Chairman, that it is recognized, as was stated by the chairman of the Committee on City Organization on this report, that the municipal problem is a very trying one; is perhaps the most complicated one in our system of government, and the great effort and aim of all municipal reformers is to secure greater conservatism in the management of city affairs. We have belived that that conservatism would be greatly enhanced by not only having these two branches of the council, but by making 1938 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. only free-holders eligible to the smaller branch. There are many ways in which the financial interests of these communities come up before these city councils for determi- nation, not only in the matter of granting franchises, but in the matter of street improvements, which is a very important matter. Now, when the council attempts to lay a tax upon the property of its citizens for street improvements in the arbitrary way it is done, it is an extremely essential thing for the protection of the people of those cities that there should be in at least one branch of the council men who feel a personal interest in that matter, so that the interests of the citizens may not be frittered away unduly, and that result can only be secured by having in one branch of the council men who have real estate which would be affected by these improvements. A man that has stocks and bonds would care nothing about it. A man who owns other classes of personal property would care nothing about it. But the man who has felt the shoe pinch himself does realize it, and he feels that when he votes to lay street assessments upon the property of his neighbor it is a matter in which he is vitally interested, because it may effect himself. Mr. Chairman, I know perfectly well that neither' the acquisition nor the possession of wealth makes men virtuous. I know that some of the greatest rascals are men of the largest wealth, and some of the most patriotic and virtuous and high-minded men are those who have been subjected to misfortune and who have never been able to acquire anything, or have lost what they have acquired. But yet we recognize as a principle that nothing in the world is so conservative as money, and that nothing soi tends to make a man conservative as the possession of property. It was for these reasons that the committee felt that it was justified, not only in presenting this plan, but in urging it upon the attention of this committee. The gentleman from Roanoke (Mr. Robertson) say he wants this section stricken out. It seems to me that this provision is of such manifest propriety and importance that his motion will receive no favorable consideration in this committee. Just one word more. In the consideration of this whole question, gentlemen, I would have you remember that a city is something greater than a mere arm of the government. It is a public corporation with governmental duties, but it is also a quasi- private corporation in certain of its duties and functions. This distinction is very clearly drawn in the eminent work of Judge Dillon on Municipal Corporations and it is borne out by the decisions of the courts. There are peculiar duties and obligations and functions resting upon these municipal governments growing out of their close community of interests. As you know, the city is charged with the maintenance of its streets, and so rigidly is it charged with the maintenance of the condition of its streets that it can be held accountable for damages to those injured by defects in them. So it seems to me that, in considering this question, we ought to proceed along broad lines and try to lay down principles applicable to the whole State and what will best conserve the interests of all these communities. Mr. Dunaway: Mr. Chairman, I shall support the amendment that has been offered by the gentleman from Winchester (Mr. Harrison). So far the addresses have been made by gentlemen representing cities. As I do not represent a city I desire to state how at least one member from the country regards this question. So far as I am concerned I desire that the citizens of our cities shall be pleased with the Constitution that we shall make in respect to their organization and govern- ment. Now, sir, if the amendment prevails no harm can be done, no injury to any city in the Commonwealth. If the amendment prevails those cities — ^some three or four in the State — that have now two branches in their council may continue to have those two branches, but if we adopt the section as it comes from the committee we shall force upon all the cities of the Commonwealth two branches in their city councils. We know, because we have it stated upon the floor, that at least two of these cities are opposed to having it forced upon them and I will not give my vote for forcing upon the city of Winchester or the city of Roanoke a provision in their city charters that their people do not want. DEBATES OF THE COXSTTTUTIOXAL COXVEXTIOX OF VIEGIXIA. 1939 Mr. Carter: Mr. Cliairman, I desire to inquire whether the following amend- ment would not be satisfactory^ to the gentleman from Winchester: In line 2, after the words "composed of," insert the words "of one or two branches, as may be pre- scribed by law," so as to leave that question to the Legislature. The section would then read: "There shall be in every city a city council, composed of one or two branches, as may be prescribed by law," and then continue down to the ninth line, and commence there before the word "the." Would that be satisfactory? Mr. Harrison: That would be satisfactory to me, except that I want to reach the point made by the gentleman from Richmond (Mr. Meredith), that a vote shall be taken on the two propositions separately. I accept the amendment down to the first division and leave the other amendment to come up as an independent amendment after we have voted on this. Insert after the word "of" the words "one or" and after the word "members," in line 3, insert the words, "as may be prescribed by law." The section would then read: "There shall be in every city a city council, composed of one or two branches having a different number of members, as may be prescribed by law, whose powers and terms of office shall be prescribed by law." Mr. Meredith: Mr. Chairman, I desire to call the attention of the body to the danger into which we are putting these minor cities. I think it must be a matter of very grave doubt with any man familiar at all with municipal affairs as to whether any community of people as small in number as 5,000 ought to have a city government. I think those who are familiar with it will feel rather that they ought not to have it. That it is intrusting to them a power that they ought not to exercise and for which they have no necessity. If you look over the cities of the Commonwealth you will find that, with some rare exceptions, most of them have been on the eve of bankruptcy several times by reason of the fact that the expenses attendant upon the administration of a city government are so large that the small population of 5,000 frequently cannot bear the burden. Mr. Harrison: Mr. President, that does not apply to Winchester in any sense. It never has applied to that city. We have the lowest tax rate of any community, large or small, in the State of Virginia. Mr. Meredith: I did not say it applies to any particular municipality, but .1 do respectful!}^ submit that when we are drawing a Constitution for the working of the Commonwealth through its municipalities, which are simply hand-maids of the general government, we ought to have a general principle and not be guided by any particular locality, however successful it may have been. Winchester may have been able to avoid the difficulties that other municipalities of the same size have been troubled with, but that iS: no reason, I respectfully submit, why we should legislate with a view of the success of any particular town, instead of along the lines of some general principle. Mr. Robertson: Suppose that general principle may be injurious at some particular time. Do you insist on putting it in because it is a good thing for other cities? Mr. Meredith: I undoubtedly say that, as to the constituent elements of a munici- pality, there ought to be general lines of government. I wish to call attention to this: These are not private corporations, but corpo- rations which are presumed to live as long as the State lasts, and that we ought to so legislate for them in their infancy that they cannot so hamper and ruin and destroy themselves, that they may be injured for long periods of time. We ought to require that the government of a small municipality shall be so constituted that it will have the best protection, just as the larger cities will, in order that it may not get into difficulties which it may never overcome, or only after long years of struggle. I think that it is a fair proposition that we should recognize that they are not private corporations, but assistants and ancillaries to the State government. We should adopt such a system for these cities that they cannot be injured by indiscretions and by not seeing fully the dangers in which they are put. Now, Mr. Chairman, there can be no reason why any city, any body of people large 1940 DEBATES OF THE CONSTITUTIO^tal CONVENTION" OF VIRGINIA. enough to have a city government, cannot have people enough to have two branches of the council. If they have population enough for a city there can be no reason why they cannot have two branches of government. The only question is, whether two branches are a better protection to municipalities than one branch. We recognize it in our State government. We recognize the necessity of such check in the formation of the Legislature. I submit that the dangers in municipalities are just as great, if not greater. Certainly there is more hasty legislation, because these local legislative as- semblies meet every month, and frequently oftener, and legislation is hastily and with- out due consideration passed through them. Therefore, I say that if there is any leg- islative body which should have a check upon it it is the mmunicipal legislative body, and I do not see how a check can be had without having two branches in their city governments. Now, what objection has been offered to this system of government, except the statement that the city of Winchester has been accustomed to one branch? Now, ought we not to require that any number of people that we regard large enough to have a city form of government should conform to the best form of city government. If it is not the best form let us strike it out altogether. It ought not to be forced upon any city unless it is a proper principle of govern- ment; and. likewise, simply because the cities msiy have been able to avoid some of the dangers they should not be left with only one branch for the future if it is not a proper principle. Mr. James W. Gordon: I wish you would call attention to the fact that we are not legislating for these cities as they are at present ,but we are anticipating for their growth. Mr. Meredith: I say that we are legislating for the future as to all municipalities, because they are presumed to grow and to last, and to continue for a long time, and for us to frame here a system by which a municipal government may start wrong I respect- fully submit would be unwise. Mr. Glass: Is it a fair assumption that the municipal government of all the cities in Virginia, except the city of Richmond and the city of Norfolk, have started wrong, when we have experienced no trouble whatever, while, from the Gentleman's own admission, you have had a great deal of trouble. I think the presumption is wrong if you are going against what is recognized as a principle of government. The question is, is it a wise provision? I do not mean to say that you have not avoided the difficulties and dangers that lay across your path. Mr. Meredith: The question is simply whether we shall lay down in this Consti- tution a recognized principle of government as to municipalities that claim to have a population sufficient to have a city government. It may be a great evil in allowing 5,000 people to have a city government, but if we do we ought to lay it down that it shall be under governmental principles that are recognized as correct. Mr. George K. Anderson: Mr. Chairman, I wish to say, as a member of this com- mittee, that when this question came up in the committee I felt very much as my friend from Lancaster (Mr. Dunaway) feels now. I felt that if the city of Winchester wanted five councilmen, and wanted to elect them from the citj'- at large, it ought to be allowed to do so; that if' the. city of Lynchburg wanted a single chamber, and wanted to elect them by wards, it ought to be allowed to do so. But, after carefully considering the arguments that were advanced by other members of the committee and by members of the Municipal League of the United States who apeared before us, I changed my views with reference to that matter, and I want, as briefly as I may, to give some of the reasons which induced me to that change. I asked myself this question: What necessity is there for having but one system? I could not answer it. Certainly a system that is suited for making the laws of the city of Richmond ought to be suited for the same purpose so far as the city of Lynch- burg is concerned. One of the main objects of this body is to relieve the Legislature of work. If the DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 1941 amendment of my friend from Winchester shall prevail it will be essentially necessary that every city in the Commonwealth shall get from the Legislature of Virginia special power to have a particular kind of a council. Now, what is the council for? Under the system we have devised in this report the council is the legislative branch of the city. That is all. It makes the laws for the city. Can there be urged any objection to having a bi-cameral system, one a check upon the other. Will it not be admitted by every gentleman upon this floor that the Legislature of Virginia makes better laws because it has a Senate and a House? Will it not be admitted that even in the city of Winchester, model as it is, they are likely to have better laws if the city has two branches of its council? Mr. Harrison: I would say no. Mr. George K. Anderson: Then your people are an exception to this rule. They have combined in a very great amount of wisdom. I have always, heard that "in a multitude of council there is wisdom." The committee thought to have a bi-cameral system would be a check in the matter of legislation. It would give the people in the city time to consider it after it is proposed in the lower branch of the council or vice versa. 1 cannot agree with my friend from Lancaster in the sentiment of giving the cities what they want regardless of what we think is best for the whole State. My friend from Richmond has suggested that the cities are the mere hand-maidens of the State. The State has rights as such. The State is interested in the health of the whole State and in what laws are made in the cities regarding the sanitary conditions. The State is interested in the school question and in the laws that are made governing the schools in the cities. The State is interested in the financial policy of the cities, and is, there- fore, interested in having a proper and uniform law-making body in every city, because the State will then be assured that whatever laws are made in a city with reference to health, with reference to education, with reference to finances, will be carefully considered and adjusted, and that no harm will come from hasty and ill-considered legislation by a single council composed in Winchester of — how many? Mr. Harrison: Twelve — three elected every year. Mr. George K. Anderson: Now, let us say that the city of Winchester, with twelve councilnien, makes laws which put people in jail; imposes fines upon them; determines the financial policy of the city, in which the whole Commonwealth is interested; deter- mines the school policy of the city, in which the whole Commonwealth is interested; determines the health policy of the city, in which the whole Commonwealth is interested. I say those twelve men in Winchester have no business to be intrusted with the making of such laws, with no check upon them, and no veto power in their mayor. Mr. Robertson: I would like to know how it can possibly affect the county of Alleghany and those other counties you gentlemen live in as to what sort of city council they have in Lynchburg? Mr. George K. Anderson: I can answer my friend. I think if a city council in L3^nchburg, composed of a single body, enacts lax health laws, you can send direct from the city of Lynchburg, right into my county and town, as has been done — I do not say from the city of Lynchuburg — a contagious disease. The whole prosperity of the State depends upon the legislation in these cities. Mr. Chairman, these considerations induced me to believe that it would be exceed- ingly wise to require every city in the Commonwealth to conform to a common standard wherever the State is interested. Now, Mr. Chairman and gentlemen we do not interfere with local affairs of the city. You can have any kind of an arrangement you want to put out a fire. You can furnish your city with water in any way you please; you can take it from the James river or bring it from the mountains by a pipe. You can have a police board if you want it. You can have any sort of arrangement to clean and pave your streets. But we say where the State of Virginia is interested there should be a uniform system of making laws to which every man who comes to that city, whether he lives in it or not. 1942 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. is amenable, and that it is the part of wisdom to have these laws uniform. If the city of Richmond has a bi-cameral system the city of Winchester ought to have a bi-cameral system also. I think, Mr. Chairman, the question of the qualification of councilmen is left out of the consideration of this question. I have not been able to present, with the force which I would like, the reasons which have impelled me to give my consent to the report in this particular, but I hope the report will commend itself to you and that you will vote to sustain the committee in this respect. Mr. Manly H. Barnes: Mr. Chairman, I simply rise to enter my protest against the wording of this report and to sanction, as far as I can, the amendment which is offered by the gentleman from Winchester. I have the privilege of representing two cities, both of which have city councils with only one branch. I, therefore, personally feel an interest in the matter. I do not think that any reason which has been assigned by the gentlemen who have represented the other side of the question is sufficient to cause the Convention to break down the policy which has prevailed in the State heretofore. I do not believe, Mr. Chairman, that if you will compare the cities of the Common- wealth which have heretofore had but one branch of the city council with those cities which have two branches of the city council, that you will find that the cities with only one branch have had their municipal affairs managed any worse than the cities with two branches, and I do not believe that those cities which have only one branch are any nearer to-day to a state of banruptcy than those cities which have two branches. The gentleman from Alleghany says he does not propose to interfere, so far as the question of water supply, etc., is concerned. I think if we had a little interference on that part possibly it might aid some of these cities that have two branches of the city council, for certainly one of the cities of the Commonwealth which has two branches of its city council has had about as bad a record on fires as is possible, and, therefore, needs some prodding of its city council far more than the cities which have only one branch. Mr. Brooke: The gentleman represents, I think, the city of Newport News. Would he care to give the Convention the history of the water supply of Newport News about a couple of years ago? Mr. Manly H. Barnes: I will say to the gentleman that Newport News is a city about six years of age, and that, considering the great age of the city of Norfolk, its prosperity, its advancement, its increase in material resourcesi, its water supply, its every feature that commends itself to the civilized world and to the people of Virginia, compares more than favorably with the city of Norfolk. You cannot expect such a young city as that to have had a sufficient supply of water two years ago, when it was only four years old. But its water supply is being improved and benefited every day of the year; and it does seem to me that I have heard some little complaint of the water supply of the city across the bay from Newport News, and that the gentleman, instead of asking me that question, would be doing a better thing for his own people if he had given that time to the consideration of the question of the water supply of the city of Norfolk. Mr. Chairman, this question as to the management of municipal affairs, so far as the two systems are concerned, I think is certainly in favor of the system which has only one branch of the city council. If we consider the future by the past, and in making up our minds upon this matter it seems to me we should take into consideration the past, if we are going to adopt only the one or the other view of this case, we ought to confine ourselves to the single system; and why? Because the great majority of the cities of the Commonwealth in the past have had the city council with only one branch. They say they have worked well. They say they have performed their duties in ac- cordance with the wishes of the people and the best interests of the cities they represent. Then, why should we turn them down; why should we place upon them a system which they say is unsuited to them; a system which they say will not work well with them, DEBATES OF THE COXSTITUTIOXAL CONYEXTIOX OF YIRGIXIA. 1943 and turn do'^\Ti a system that has worked in the most satisfactory manner? I cannot see any reason for changing at all, but if we do change it should be to the sysiem that has only a single branch of the city council. Mr. Hatton: Mr. Chairman, I ask the indulgence of the committee just a few moments, in order that I may say a word upon this subject. I have the honor to represent upon this floor a city of the Commonwealth which has always had a single chamber in its legislative department, but it will be my pleasure to support the report of the Committee on the Organization and Government of Cities and the changes which that report would make in the legislative system in my own city. It has been said, and wisely said, that the evil which men do lives after them, and I believe that this law applies with greater force to the members of city councils than to any other class of legislators that operate in such circumscribed limits. Wrhen we consider, Mr. Chairman, that members of the council in cities have sole control of their bond issues; that they issue bonds which are payable by generations to come; that they impose burdens upon these cities which will be felt for years and years in the future; when we consider that in laying out streets and in providing improvements of that character; that the damage which they do cannot be corrected for generations, I say that I will welcome any constitutional provision which will add something of conservatism to those bodies. As we now have them, a man can come into a town, ov^ming only the clothes upon his back; he gets elected to the city council; he and his kind can, and frequently do, impose burdens upon that community from which it cannot recover for many years. When that burden becomes so heavily that the people are well nigh in despair, and when the burden has made taxation so heavy that business of every kind has become depressed and almost destroyed, he can shake the dust of that town from his feet and leave those burdens to be borne by the real estate owners who have been without the means of self defense. I am in favor of anything that will render that possibility less proximate, will make it as remote as possible. Now, Mr. Chairman, it may be interesting to this body to see what proportion the taxation on personal property bears to the taxation on real property, and I will assert, without fear of contradiction, that two-thirds of the acts of the city councils affect real estate, or effect people in their relations to real estate. In the city I represent, the taxes from personal property are only 15 per cent, of the taxes derived from real property. In the city of Roanoke the taxes derived from personal property are only 19 per cent, of the taxes derived from real property. In the city of Winchester the taxes on personal property are 42 per cent, of the taxes on real property, and in the city of Richmond the taxes on personal property are 40 and a fraction per cent, of the taxes on real estate. So, I say, when mistakes are made by your city council, that those mistakes, in their very nature, are more applicable and more disastrous to the real estate than to any other class of property; and, therefore, I say, is it unfair, is it unreasonable, to give to the owners of that real estate a distinct representation on your council? I think not. We would not, and it is not proposed in this report to give to the owners of real estate any exclusive representation so as to give that representation the control of the city. We only recognize those owners as representing an integral part of the city government, and claim that it is nothing more than that to which they are entitled. The legislation which affects persons is usually originated and passed by the State Leg- islature. But it is the city council which deals with property more especially, and the State taxes are insignificant in comparison with city taxes, and I think it is not un- reasonable to recognize that property which bears 85 per cent, of the burdens of that taxation. The owners of that property are the ones who contribute the money that is spent by the council, and those who contribute the money should have the right to* distinct representation in the tribunal to spend that money. I do not claim that a man who owns real estate is any better than the man who does not. Such a claim to my mind would be absurd. But I do claim that the ownership of real property by the man who spends the money that is more largely contributed by that property awakens 1944 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. him to a proper sense of the responsibility in that expenditure and makes him hesitate before he throws that money away, and causes him to think twice before he is willing to pay $2 for something that is only worth $1. I say that it is a false principle of government which allows one set of men to expend the money which is contributed almost entirely by another set of m.en. Now, Mr. Chairman, if there are other cities within the Commonwealth which, have the single system in their legislative department, and they find that system so perfect that they do not desire to be rid of it. I can only felicitate them upon such a condition of things in their midst, but I cannot agree to the proposition that, as a system of city government, the single system, which gives no distinct recognition ta that class of tax-payers which pays the largest amount of revenue to support the city^ is a good one. I ask this Committee of the Whole to deliberate seriously upon this proposition. I ask them to give us a leavening principle in our municipal affairs. I appeal to the members from the country to come to the rescue of the cities of this Commonwealth, because it is from the cities that the State gets at least two-thirds of its revenue, and I hope it may be the pleasure of this Committee of the Whole to support this provision in the report of the Committee on City Organization. Mr. Harrison: I accepted the amendment suggested by the gentleman from Han- over (Mr. Carter), and I know he proposed it with view, that it would leave discretionary with each special city to have its own charter. I think every community ought to be allowed to have ita own laws. That is what I am contending for; but I cannot see why this amendment of the gentleman from Hanover is not broad enough and wide enough to permit any special legislation But what does it say? "There shall be in every city a council, to be composed of one or two branches, as may be prescribed by law." That takes it out of the exception in Section 2, but leaves it to the General Assembly to say that in each city, or in every city, or in any city, there may be one or two branches, as may be prescribed by law. Mr. President, I do not desire to say anything more on this subject. The gentle- man from Richmond (Mr. Meredith) goes upon the theory that he would force this upon the people of the city of Winchester even if it takesi away the charter rights of thei people of that city. I think that is a matter of enough importance to be considered by itself — whether the city of Winchester should be stripped of its charter rights; but they propose to give to the city of Winchester its charter rights and then impose upon it a government that cannot be made suitable to the government of the town. The rights of the Commonwealth, so far as the legislation of these towns is concerned, is exceedingly limited. Mr. Dunaway: It seems to me the arguments that have been presented here all rest upon a false basis for the requirement of our small municipalities to have two bodies in their legislative assembly. Every argument has its major premise. It may not be stated in words, but if gentlemen pay attention to the argument they can always tell what that mayor premise is. In the present case it is that a system of government that is suited to a large population contains in it such a good vital principle that it is applicable, and ought to be applicable, also ot small communities. Now, these gentlemen are after a principle. They are after uniformity, and would make us believe that a system of government that is suitable for the city of Richmond is suitable for a small town of the Commonwealth that has a population of only 5,000. I have read an ancient story about a man by the name of Procrasteus who was very fond of carrying out his principles. He had a bed, and if a man was too short, he would stretch him out upon the bed until he was long enough for it. It seems to me there is a Procrastean principle here that gentlemen are clamoring for and if these smaller cities are not suited for that principle, they will stretch them out against their will and make them lie upon that bed also. There are a good many towns in the Commonwealth not having a population of 5,000 which also have their council. I remember to have lived for a number of years in DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 1945 a little town of the State that had a population of only 400, but it had its mayor and its town council under the laws of the State. Now, if the principle for which gentleman are contending is true, it ought to be applied to your little towns of 400 or 500. It is a principle of government that ought not to be violated even in regard to the smaller towns of the Commonwealth. But they say "that is ridiculous; we would not apply it to one of our little towns of 400 or 500;" and so they draw the arbitrary line — and I submit it is an arbitrary line, purely so — at the number of 5,000. Suppose we snould enact this provision in our Constitution, what should we se© in the State? We should see one of these smaller towns with its two chambers, of aldermen and of councilmen. In some of the towns they have a council, as has just been stated here by the gentleman from Winchester (Mr. Harrison) of only twelve. That is the lower house. You want to constitute an upper house. I will say for the city of Winchester, because that has been mentioned here by way of illustration, how many will you put in there? There are only four wards in the town. Will you have four in the upper chamber, or does that look ridiculously small for a legislative branch? Do you say that you will put eight in it and twelve in the other? Why, the body of eight seems to me to be ridiculously small, too. In the large cities of the Common- wealth it seems to me very proper to have the lower house of 100 and an upper house forty, because they represent so many people; but when you reduce it down to t^^e small number of 5,000, the practical difficulty arises of having a legislative assembly for that small body, and you will certainly have a very small chamber. Another thing: That small chamber consisting of four or six or eight members is made up exclusively of free-holders. That is what you would haye in every town of the Commonwealth — a little body of men, four, six, eight, or some such small number of freeholders, a thing that has never existed in the Commonwealth of Virginia and the like of which has not existed in any Commonwealth of the United States or in any city; and it would not be long before the people of these little towns and of some larger ones also, such as Roanoke and Newport News, would rise in open rebellion, and it would make our Constitution very obnoxious to those cities I have already named. For these reasons, and in deference to the wishes of the gentlemen here represent- ing the cities, without voicing the wishes of gentlemen of large cities, I hope the amend- ment may prevail. There will be no difficulty in getting two chambers for those cities in the Commonwealth that desire them. Mr. Brooke: Mr. Chairman, I shall endeavor to be brief in presenting the views I entertain on this subject. The matter has been so thoroughly discussed on either side by the gentlemen who have preceded me that I should not have felt inclined to rise at all, save for the fact that there might have been an inference drawn from my silence, being the chairman of the committee v/hich has presented this report, that I was at all affected by the arguments which have been introduced by the gentlemen who are opposing the report and who are sustaining the amendment. Now gentlemen it seems to me that the very first proposition we have to meet in regard to this question, judging from the opposition which has been raised to it, is are there any difficulties in the way of municipal government? Has any been developed in the State of Virginia? Because we find here that the gentleman from Roanoke (Mr. Robertson) says he wants these cities in the State of Virginia to continue under their present charters. He wants nothing to be done in relation to city governments so far as affects the constitution of the city government. Mr. Robertson: I meant that so far as the framing of this Constitution is con- cerned, there may be changes that I do not care to have in our charter. I do not think this body is the proper body to frame the charter for my city, when it knows nothing about local conditions, and when I state what the local conditions are they say it has no effect on them at all. Mr. Brooke: That then brings us to the question as to whether in this provision the Committee is going too far in the line of the Legislature, or whether it is properly confining itself to the mere framework of city government. It is the view of the 123— Const. Deb. 1946 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA.' Committee that if you undertake at all in the Constitution to provide for the organiza- tion and constitution of city governments, we must of necessity at least give an outline or a framework of those governments. Nobody can object, and nobody has objected to our saying that there should be in all city governments a mayor or an executive depart- ment. Nobody has said and nobody, I think, will say that it is not proper in providing for the executive department to lay down certain lines within which the power of that department may be exercised for the good government of the people. Nobody has said, and nobody, I think, will say that we ought not to provide in the Constitution for a judicial department of the municipal government. Nobody has said, and I believe no one will say, that in providing the judicial department for a city government, the Con- Sititution should not go on and lay down certain lines of jurisdiction and certain lines of operation of that department of the government within the municipal territory which shall be fixed by the Constitution itself. When we come to the other branch, the legislative branch of the city government is there any reason why we should not provide for cities some form of a legislative department of the city government? Is there any reason why we should not say that the legislative power of the people residing within that municipality shall be concen- trated in some department of the city government? Mr. Harrison: Has any constitution in the State ever provided for two branches of a city council? Mr. Brooke: I think not. And L will go even further in the line on which my friend seems to desire me to go, and say that the present Constitution, curiously enough, has not even provided for a legislative department of city government. Mr. Robertson: And we do not want one provided. Mr. Brooke: I understand the position of these gentlemen, and I am meeting the argument if I can. The gentleman from Roanoke (Mr. Robertson) says we should not provide in the Constitution for a legislative department of the city government. If we do undertake to establish a legislative department of the city government, we ought to make a framework for the government along the lines which are recognized as dividing the government into three co-ordinate branches. We provide for the executive department. We provide for the judiciary department, and we undertake to provide for the legislative department. If it is right that we should provide the framework of these departments, if it is right that we should say there shall be a city council, with legisla- tive power, then the question works down to whether we shall say anything about the constituent elements of that body. Constitutions always do that. We say in this pro- vision that there shall be a city council. There are certain powers which ought to be- long to a city council beyond the power of the Legislature of the State to take away, and certain powers that ought to be given which it ought to be beyond the power of the Legislature to grant. If we find any such on either side, and if there are any such, we should secure to the city government the one and we should secure from the city government the other. Then we come to take up the form of this legislative department of the city govern- ment. It has occured to the members of the committee that it ought to be bi-cameral, that there ought to be two branches of the city council. There may be room for a difference of opinion on that subject; there may be room for a difference of opinion upon the subject as to whether the city council should be composed of two branches or of one branch; but I submit it is not fair argument for gentlemen on the other side to undertake to make the argument that simply because in all of the cities of the State the bi-cameral system does not exist, that those who are in favor of a bi-cameral system are theorists, and merely theorists. Our fathers in the Federal Constitution, and in the Constitution of the State governments, were theorists under the same definition. It seems to me, gentlemen, if any principle of government has ever been thoroughly imbedded in the hearts of the people of this country, it is the fact that the legislative department shall be divided into two branches. Now why? I could not, if I would, DEBATES OF THE COXSTITUTIOXAL COX^'E^'TIO^' OF YIEGIXIA. 1947 undertake to go through all the arguments which brought about the establishment of that principle as a fundamental principle of the legislative department of the goverment. If you are going to create a municipal government, are you going to make a hybrid of it; are you not going to constitute it upon the well-recognized lines along which govern- ments ought to be constituted? If the State is going to surrender to a certain extent the right to govern the people of a particular community, and place it in the hands of a local government, is it not good sense, good policy and good philosophy to build that government upon the well-recognized lines of government, as they have been established, and have become dear to the hearts of the people of this country ever since it has been a country? I think nobody denies that the application of the double-branch of the legislative department is good. Only recently have I ever heard anybody deny that it was ab- solutely essential to the fair administration of the legislative department of the govern- ment. If it is good for the State government, we come to the question whether it ought to be good, or will be good, for city governments, and I lay down this proposition, which I believe to be a fact — and I think it will be borne out by the opinion of ever^' gentle- man, if he will stop to reflect, who has had any experience in the matter of municipal government — that the rapidity and consequent secrecy, not intentional, probably: I do not mean to say that, but the rapidity and consequent secrecj' — with which the legisla- tion can be passed through a municipal council, composed of but one body, and which does its work in one night, cannot fail to put the cities in greater need of some check upon the action of these councils composed in this way than a State would need upon the action of its Legislature. Mr. Robertson: Is there not just as much e\il in our State affairs as in our muni- cipal affairs, from good m.easures being obstructed and prevented from being passed, as there is from improper measurers going through? Is it not a fact that a great many of the laws that the people of Virginia have desired in the State at large have been prevented from being passed by the State Senate, that in the House of Delegates,, which represents the people more directly, those laws have been passed and have been obstructed in the Senate from time to time? Is not that an evil that has to be con- sidered in this matter just as much as the other evil? Mr. Brooke: I have heard that is so, and I have heard people say that the matters which failed to pass the Senate and had passed the House, which the gentleman from Roanoke and other people would consider good legislation, the passage of which has been prevented by the Senate, was bad legislation. Between those two opinions I am not willing to take m^' stand. Mr. Robertson: Is it not easier for outside influences to control a small body of men than to control a large body, for instance, parties come there wanting to get a franchise that will be in competition with a franchise already established. Is it not easier for the franchise that is there, against the interests of the people, to keep the other franchise out when you have the second chamber than when you do not have it? The}" can control that other chamber easier than can the lower one, can they not? Mr. Brooke: My own experience and obser^'ation is that that is not true. I re- member — although I do not care to be led off into personal experiences in individual cases — Shaving been engaged in trj-ing to prevent the entering into the city of Norfolk of a company seeking a franchise, when I could have won if there had been but a single council, and I was defeated because there was a second branch. I do not mean to say that one swallow makes a spring or that one incident establishes a principle; and that is just what seems, to me to be the fault with the gentlemen on the other side. The gentleman from Winchester (Mr. Harrison) says "our city's government is all it ought to be,'' and he presents here in solemn form a resolution from the council of the city of Winchester which, while not in this language, is substantially this: "We, the coun- cil of the city of Winchester, do solemnly resolve that we ought not be turned out of office." DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Mr. Harrison: We do not pay them anything. It is. a great burden on them. Mr. Brooke: But I am being diverted from the line of my thought. My proposition is that, if this principle of the dual branches of the legislative department is good for States, presumably it is good for cities, and an addition to the presumption, I offer this reason: Legislation comes up before a city council composed of one body, the sessions of which are generally held at night. The legislation is passed before midnight and is law before morning. Mr. Glass: How does it become law before morning, when you expressly provide the mayor shall have the right of veto? Mr. Brooke: I am talking about not what will be the condition of those cities under the additional safeguards we have put around them, but their condition hereto- fore, according to the gentleman from Winchester. Mr. Harrison: Mr. Chairman, I wish to call the attention of the gentleman to the fact that cannot be true. A measure has to pass there at two meetings of the coun- cil. They cannot pass an act until it has been approved at two meetings. Mr. Brooke: The gentleman from Lancaster (Mr. Dunaway), in his first speech, said that if this amendment goes into effect, no harm, no hurt, will be done. Gentle- men, that brings us back to the first proposition: Are you satisfied to leave the cities of the State of Virginia in the present condition of their city charters and their city government? Are you willing to say the experiment of municipal government in the State of Virginia has worked out so well that you are not willing to change it, that you see no changes that can be made or that ought to be made in an organic form of law? If you are willing to say that, if the members of the committee are willing to say that, there is an end of argument on our side of the case. I do not believe they will say that. Gentlemen who have served on the committee of which I happen to be the chair- man will know that, according to the representation of people from the different cities of the State, the operations of the city councils have not been satisfactory, that the operations of city government have not been satisfactory. They seem to have been satisfactory to the gentlem^an from New Kent (Mr. Barnes), who lives, I believe, about four counties from Newport News, though he represents that city in the Conven- tion, and who, probably, if he will excuse me for saying so kindly, knows as little about Newport News as I do. As a matter of fact, if he is expressing only his own opinion as to what the people of Newport News desire in this respect, I wish to say upon this floor that well-known citizens of the city of Newport News, where I am' somewhat well known myself, have said to me they not only approved this change, but that they hope, or wish, rather, for they did not dare to hope, that some restriction might be put upon the electors who should elect members to the council of Newport News. Now, the gentleman from Lancaster says there is an arbitrary line drawn between cities and towns, and he gives a very vivid picture of how hard it would be upon these communities, some of which are as small as 400 inhabitants, to have this cumbrous machinery of a double-chamber council. The answer to all that is that we are not asking it for the towns. We are not asking to put this on places of less than five thousand inhabitants. His argument is that if we desire to do it with regard to cities we ought to desire to do it with regard to towns. My answer to that is very much like the sentiment of the gentleman from Richmond (Mr. Meredith), that, in my humble judgment, it is exceedingly doubtful whether incorporated communities of only five thousand inhabitants have a right to be called cities at all. But if they will thrust themselves into the sisterhood of cities, let them understand that the Con- stitutional Convention makes no difference between them and the larger cities in providing, according to the best of its judgment, a suitable framework of municipal government. All of these practical difficulties about getting enough councilmen to serve so as to make up a double-chamber council are as thin as the mists of the air. The trouble is not to get people to go to the councils, but to keep people from going to DEBATES OF THE COXSTITUTIOXAL COXTEXTIOX OE YIRGIXIA. 1949 the councils. I am told that so satisfactory is the business of the councilmen in fiome cities that men after being elected to councils which pay no salary abandon the daily labor in which they were engaged before they came into the council. I do not know how they do it, and I do not even know that it is true. I have been told so. It does seem to me^ gentlemen, that is no answer to this proposition which we make to the committee for a double-chamber council. It is no answer to say that a single-chamber council in this place, that place or another place, has heretofore operated satisfactorily. They are lucky if they have. But can there be any doubt of the principle that a thing which has to be scrutinized by two distinct bodies, meeting at different times, is going to disclose its defects, errors, and corruption to the second investigation more readily than it would to the first, and hasty one which is given, where there is only a single chamber of the council? I do hope, gentlemen of the committee, you will adopt the report of the commit- tee on this subject. I am not usually interested so deeply in work to which I have myself contributed as to be unable to see the arguments which may be adduced against its perfections and its good qualities, but I want to say frankly to this com- mittee that I do feel this is but one element in the system which the committee has tried to draw up, which will bring about a greater ^conservatism and a more efficient management of city governments than those which now exist. It is, along with the veto power of the mayor and some other few provisions, simply one of a system of checks and balances which we have attempted to fix upon municipal government. Personally I shall feel that the work of the Committee on the Organization and Gov- ernment of Cities and Towns has been largely of no avail if this provision of its work is voted down by the Convention. The Chairman: The question is on the amendment of the gentleman from Han- over (Mr. Carter), adopted by the gentleman from Winchester (Mr. Harrison) as his own, which will be read by the Secretary. Insert after the word "of," in line 2, the words "one or"; insert after "branches," in the same line, the words "as may be prescribed by law"; insert after the word "members," in lines 2 and 3, the words "in each branch, if there be two." The section would then read: There shall be In every city a city council composed of one or two branches, as may be prescribed by law, having a different number of members in each branch if there be two, whose powers and terms of office will be prescribed by law, etc. The amendment was rejected, there being, on a division, ayes. 23; noes, 36. The Chairman: The Secretary will read the amendment offered by the gentleman from Washington. Strike out the words "the less numerous branch of the city council shall be com- posed of freeholders, who shall own a freehold estate, in real estate, situated in said city, of an assessed value of at least one thousand dollars." The amendment was agreed to, there being, on a division, ayes. 34; noes, 29.. The Chairman: Are there any further amendments to Section 7? Mr. Thom: I move to strike out all of the section after the word '''city," in line 16, and insert the following words: "May, in a manner to be prescribed by law, in- crease or diminish the number and change the boundaries of wards or similar sub- divisions thereof," so that the provision will read: The council of every city may, in a manner to be prescribed by law, increase or diminish the number, and change the boundaries of wards or similar sub-divisions thereof. 1950 DEBATES OF THE CONSTITUTIONAL CONVENTION" OE VIRGINIA. Mr. Chairman, the present provision requires the reapportionment every ten years, and requires that that reapportionment shall proceed upon the population in each ward. There is a serious difficulty that will arise if that provision is adopted as it now stands in the article. In almost every city in the Commonwealth there are a very large number of negroes who congregate in one special section of the city. If a suffrage plan is adopted which will disfranchise these negroes, there will still be under the article, as suggested by the committee, a requirement that the representation in the council shall be based upon the whole population in that ward, and will give to the white people in one ward from five to ten times the influence in the city council that the white men in another portion of the city will have. To obviate that, and to make an elastic system, I ask that the Committee of the Whole will provide that this reapportionment may be made in a manner to be prescribed by law, so that it may restrict and obviate some of the difficulties to which I have alluded. Mr. Pollard: Mr. Chairman, I hope it will be the pleasure of this committee to sustain the report of the Committee on Cities and Towns. The gentleman from Norfolk is mistaken in supposing that any such danger as he has suggested is immi- nent. I would like to call the attention of the members of this committee to a con- dition of affairs which exists in the city of Richmond. Our condition but illustrates the importance of having such a rule as is laid down in the report of the committee. We have in this city six wards with population distributed very unequally among them. We have one ward that is nearly three times as large in population as any other ward, and yet this large ward, with immense property values, paying to the city treasury and to the State treasury often three, four or five times as much in personal taxes of this city and State, has only the same representation as is given to a ward having about one-third the population. The re- sult has been that citizens living in certain parts of the city have three times the voice in the management of the city affairs as those in other portions of the city; and the further result has been that through the representation in the city council the minority of the people of the city of Richmond now rule the city, and that is one reason, gentlemen of the committee, that there has been so much complaint against our city government. It is because the lower portions of this city, having a small population, have the same representation in the council, and hold the better element of this city by the throats, and will not let them do what is best for the interests of this city. Take the outlying Clay ward which has been the ward in which there has been most growth. It has nearly three times tbe population of Jefferson ward, the ward just below us. Jefferson ward is a finished ward. Nearly all the streets in that ward are paved, nearly all the houses in that ward are supplied with gas and water connection, while out in Clay ward, with an area very much larger, they have refused to put in those conveniences, although Clay ward pays about three or four times as much taxes. What has been the result? The people desiring to build new houses, instead of building in the growing wards, where they would naturally have built if they could have gotten gas, water and culvert connec- tions, have erected their homes on the suburbs, vhere they would not have to pay city taxes, which they would have been willing to pay if they could have gotten city conveniences. They have gone out and built little towns all around Richmond, and our city, instead of showing a growth of 25 per cent., as it has in almost every decade in its history, in the last ten years only increased about 3 per cent. The small wards, having control of the council, often succeed in having the money for improvements apportioned among the wards, irrespective of the size, the condition, and the needs of the wards. They pull up and put down new pavements, here in the center of the city, where wo do not need them, and neglect portions of the city which are destitute of all city conveniences. I call your attention to our condition, not because I want you to put this clause into the Constitution just for the benefit of our city, but be- DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF VIRGIXIA. 1951 cause it shows what injustice may be done under the present state of the law. What has happened in Richmond is likely to happen anywhere. This is no new principle we are seeking to imbed in the law. Representation in the House of Delegates and in the Senate is of proportion according to population, and based on the census of the United States. We recognized the same principle when we reapportioned the repre- sentation in Congress according to population. It is a fundamental principle that should be embodied in the organic law — a guarantee lo the citizens of the cities equal voice in the management of municipal affairs. We have applied to the Common Coun- cil for relief from this iniquitous condition, and they laugh in our faces, just because the representatives of the smaller w^ards are not willing to give up the unfair ad- vantage which the condition gives them. They offer the flimsy excuse that if they give us representation according to our population, they would have to give larger representation to Jackson ward, the negro ward of the city. Why, there has not been a negro for years in the Common Council. The Democrats are elected by a large majority in Jackson ward to-day. We have Democrats representing the negroes in the council. It is a great injustice to leave it as it is, and I hope the committee will stand by the unanimous report of the Committee on Cities and Towns. Mr. Robertson: Mr. ■ Chairman, I simply rise to say that there exist in my city very similar conditions to those stated by the gentleman from Norfolk (Mr. Thorn) to exist in his city. I hope very much the committee will vote for this amendment. I do not care to go into any argument about it, but it seems to me the wishes of the members who represent cities on this floor are not very much regarded, and I do not know that any argument will help us. There seems to be a general idea here amongst the country members that they must do something to put the cities on exactly the same footing as the counties. They go on the principle that as they have been hit on the neck by something, they want to hit us back. I deprecate any feeling of that kind. I represent two counties and one city. I have no such feeling myself, and I deprecate the manifestation of it here. It does seem to me that if gentlemen representing important cities get up here and make statements about the condition of their cities, weight ought to be given to the requests they make. Mr. Meredith: Mr. Chairman, I just want to add my statement to that of the gentleman from Roanoke (Mr. Robertson), so far as concerns agreeing with the motion made by the gentleman from Norfolk (Mr. Thom). It does seem to me a matter of this kind ought to be left to the city council, which is controlled by the General Assem- bly. There is no necessity of our adopting a constitutional requirement, our cities being of such a shifting nature as they are at present, as to how they shall be sub- divided. It is a matter that the General Assembly and the city councils can take care of. Mr. Pollard: Mr. Chairman, in answer to what my colleague from Richmond (Mr. Meredith) has said, it is a well-known fact that the citizens of Richmond who have been done this great injustice have been trying to get it corrected for many, many years, and have failed. What chance would we stand before the Legislature of Virginia with a committee from the Common Council opposing what we ask for? The smaller wards of this city have control of the Common Council, and any change in this matter would be opposed by a committee from the Common Council, because they want to retain this unjust and undemocratic control of the affairs of the city. We can get no relief, either from the council or from the General Assembly. Mr. Meredith: Mr. Chairman, if I thought there was any such great injustice being perpetrated in the city of Richmond as is stated by my friend, I should be ppr- fectly willing to assist in remedying it, but I think it is somewhat magnified. I do not believe the better wards of the city persist in any such injustice. Mr. James W. Gordon: Mr. Chairman, I trust the Committee of the Whole will not be frightened by this bugaboo of one negro ward in two or three cities of the 1952 DEBATES OP THE CONSTITUTIONAL CONVENTION OE VIRGINIA. Commonwealth. The conditions that have been pointed out by my colleague (Mr. Pollard) I know exist in the city of Richmond, and they are apt to exist in any of the cities of the Comonwealth. It does not seem to me that the Convention ought to refuse to enunciate and give effect to a great principle of government merely because in two or three cities of the Commonwealth there happen to be local conditions which might cause a larger representation in the local council. The gentleman from Nor- folk (Mr. Brooks), the chairman of the committee, has absolutely put at rest any such danger by the amendment he offered to the report this morning, which allows these wards to be gerrymandered, in order to obviate that difficulty. Mr. Thom: I wish to ask how any possible gerrymandering can remove a diffi- culty when the difficulty is produced by the fact that the reapportionment must be in proportion of population? It simply throws them in a different ward without chang- ing the basis of representation. Mr. James W. Gordon: It can be done by so changing the ward lines as to throw part of them in the black wards and part in the white wards. That has been done in other cities; but whether it could be done or not, it seems to me we should not deny to these suffering white citizens of Richmond and other cities the relief to which they are entitled merely because in several communities of the Commonwealth there exists this large negro population in one of the wards. Why, my friend (Mr. Pollard) might have told you that Clay Ward has, I suppose, three or four times the area of Madison ward or Jefferson ward, and about three times the population of either of them, and yet its five members in the council have abso- lutely no more voting strength than the members from these completed wards in the center of the city. I think this is a simple matter of justice, and that this committee should recognize it and vote to sustain the .report. The Chairman: The question is on the amendment of the gentleman from Nor- folk (Mr. Thom), which the Secretary will read. The amendment was rejected. Mr. Robertson: I now offer my amendment to strike out the entire section. The motion was rejected. The Chairman: The Secretary will read Section 8. Section 8 was read and adopted. Section 9 was then read, as follows: - , Sec. 9. Every joint resolution or ordinance which shall have passed both branches of the city council, shall, before it becomes operative, be presented to the mayor of said city. If he approve he shall sign it, but if not he shall return it with his objections in writing to the clerk, or other recording officer, of that branch of the council in which It shall have originated, which branch of said council shall enter his objections at length on its journal and proceed to reconsider it. If, after such reconsideration, two-thirds of all the members elected thereto shall agree lo pass the resolution or ordinance it shall be sent, together with the objections, to the other branch of said council, by which it shall likewise be considered, and if approved by two-thirds of all the members elected thereto it shall become operative, notwithstanding the objections of the mayor. But In all such cases the votes of both oranches of the city council shall be determined by ayes and noes, and the names of the members voting for and against the said resolution or ordinance shall be entered on the journal of each branch respectively. If any resolution or ordinance shall not be returned by the mayor within five days (Sunday excepted) after it shall have been presented to him the same shall become operative in like manner as if he had signed it, unless his term of office, or that of the city council, or both, shall expire within said five days. The mayor shall have the power to veto any particular item or items of an appro- priation ordinance or resolution, but said veto shall not affect any item or items to which he does not object. The item or items objected to shall not take effect except in the manner provided in this section as to joint resolutions or ordinances not approved by the mayor. Meredith: Mr. Chairman, I desire to offer an amendment to Section 9, al- DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF TIRGIXIA. 1953 though I do not know whether it will be regarded by the chairman that this is the proper place for it, and he may object to it on its merits. It is an amendment in re- gard to the passage of ordinances, and is as follows: No ordinance or joint resolution appropriating money exceeding the sum of $100, imposing taxes or authorizing the borrowing of money, shall be passed except by a recorded vote of two-thirds of all the members elected to each branch of the council of said cities; and in case of veto by the mayor of said ordinance or joint resolution, it shall require a recorded vote of three-fourths of all the members elected to each branch of the council to pass the same over such veto, in the manner prescribed in Section 9. I simply desire to put the ordinances in regard to the finances of the city upon a •different basis from ordinances for ordinary purposes and require that no ordinance appropriating money exceeding $100, or imposing taxes or authorizing the borrowing of money, shall be passed except by a two-thirds recorded vote of the members elected to each branch. If it requires a two-thirds vote to be passed by the tv'o branches, then in order to pass such an ordinance over the mayor's veto it ought to require a larger Tote than it required to originally pass it. It will not do for us to think for one moment that a measure cannot be gotten ordinance is passed, except in one particular instance, it is to be by a majority vote. When it is passed by a majority vote, and vetoed, you then require that that veto ■shall be overriden by a two-thirds vote. Recognizing that the mayor ought to have strong reasons for his veto, it requires a larger vote to override his veto than to pass the ordinance. I respectfully submit to your consideration whether, as to the finances of a city, a larger vote ought not to be required than is required in order to pass an ordinary privilege to a man to swing a gate out upon the sidewalk instead of into his yard or to hang a sign, or matters of general legislation. When you come to the ques- tion of the finances of a city, I submit you ought to require som.e protection to be given to the city, as you require some protection to be given to the State. This has been a feature of the charter of the city of Richmond, and has been a great benefit to US; and I think all the cities of the Commonwealth ought to be put upon the basis of having some protection to their finances. It will not do for us to think for one moment that a measure cannot be gotten through the city council far more easily and quickly than through the General Assem- bly. We must recognize the fact that these councils frequently meet only for an hour or two at a time. The members are men of business who are anxious to get away. They meet at night, and frequently desire to leave as soon as possible. They pass these resolutions with great speed. And ver^^ often with great injury to citizens of the Commonwealth. My amendment simply proposes to impose the restriction that the finances of a city shall not be spent without a vote of two-thirds of the city council. If a measure of that kind passes, it goes to the mayor, and it is not probable, except in improper cases, that the mayor will undertake to exercise his veto power; but if, having had a two-thirds vote on the measure, the mayor shall then see the necessity of vetoing it, I respectfully submit it shall call for more protection, by requiring a larger vote to over- ride the veto. It is wise to put here for the benefit of all the cities any reasonable safeguard we can throw around them. The proposition is not to pass any general legislation for the purpose of showing us how things shall be done. It is simply a limitation as to the manner in which the money of the cities shall be disposed of. I can see no objection to it. unless there is some objection on the ground +hat we are filling our Constitution with too many provisions. I cannot see how any one can obiect to re- quiring a larger vote to pass a measure involving $10,000 worth or a million dollars' worth of the bonds of the city over the mayor's veto, recognizing the sneedv and hasty manner in which this kind of legislation is often passed, than is required to pass a measure giving authority to a man in reference to where he can swing his sign or his 1954 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. gate. Unless some provision of this kind is adopted, no larger vote is required as to the important matter of the finances of a city than is required in regard to the small matters I have mentioned. The committee has gone in this direction to some extent, and I am following that line. If I may anticipate what is in the report of the committee, you will find when you come to Section 11, in regard to selling the property of the city, such as the docks and water front and streets and parks, there is a provision requiring a recorded vote of three-fourths. That is a recognition on the part of the committee that the actual tangible property of the city, the real estate, shall be protected by a three-fourths vote. Far more harm is done by the expenditure of money, and it is far easier to get an appropriation through than the undertaking to sell any of the property of the city. It is a great deal easier to get an appropriation of $1,000 or $2,000, or perhaps $10,000, through the city council than it is to get through a resolution authorizing the sale of the property of the city. That is a thing from which most of the members shrink far more than from a mere appropriation; and yet, as to this property, the report requires a three-fourths vote, while, as to the finances, it only requires a majority vote. That is not prudent. I simply ask that as to the finances of the city a two-thirds vote may be required to give us the same protection that is given as to visible property, because the danger in regard to the finances is as great as, and perhaps greater, than in regard to the real estate or tangible personal property. It is along the line of the committee's report, but it simply undertakes to ask for some broadening of it to protect the money of the city as well as its actual prop- erty. On motion of Mr. Carter, the committee rose and the President resumed the chair. The hour of 2 o'clock having arrived, the Convention adjourned until Thursday, January 23, 1902, at 10 o'clock A. M. THURSDAY, January 23, 1902. The Convention met at 10 o'clock A. M. Prayer by Rev. W. B. Beauchamp. Mr. Mcllwaine: Mr. President, I rise to a question of personal privilege. On yesterday, when the gentleman from Pulaski (Mr. Wysor) was speaking, I rose and stated I was sure the gentleman did not intend to misrepresent me, but that he was doing so. I find, on looking over the stenographic report of the remarks I made day before yesterday. I was mistaken. I used this language: "I represent one of the counties, and I will stand with the gentleman from Fairfax (Mr. Moore) in an effort to try and get the action of the Convention in regard to the county treasurer brought up again." That language, of course, did not embrace anything about the proposition of the gentleman from Fairfax (Mr. Moore). The gentleman had represented me as standing by Mr. Stebbins, and it did not occur to me at all at the time that the proposition of the gentleman from Halifax (Mr. Stebbins) and the proposition of the gentleman from Fairfax CMr. Moore) were substantially the same. Of course, I make the amends to the gentleman from Pulaski. On motion of Mr. Brooke, the Convention resolved itself into Committee of the "Whole for the further consideration of the report of the Committee on the Organiza- tion and Government of Cities and Towns, Mr. Withers in the chair. The Chairman: The pending question is on agreeing to the amendment offered by the gentleman from the city of Richmond (Mr. Meredith) to Section 9. DEBATES OF THE COXSTITUTIONAL COXYEXTIOX OF VIRGINIA. 1955 Mr. Barbour: Mr. Chairman, before the vote is taken I wish to call the atten- tion of the committee to the fact that the adoption of this amendment will be sub- versive of all the principles of government upon which our government is founded. That is the rule of the majority. It seems to me it would be essentially vicious in its result. It absolutely puts the finances of every city at the mercy of a combination made by a minority of the council. It would absolutely enable a minority of the council to hold up every appropriation bill in the city council. It seems to me that if we assume a majority of its inhabitants is capable of gov- erning a city, then we must also concede that a majority of the council, their repre- sentatives, are capable of governing it. If, however, we assume that a minority is always right and a majority is always wrong, then this amendment should be put in. A minority may sometimes be right, but it is not usually so, and for that purpose, for the purpose of checking hasty legislation, the veto power is given to the mayor. But a proposition to absolutely put it into the power of a minority of a city council to hold up every appropriation bill, or any appropriation bill, it seems to me, is essen- tially vicious in its result, and must be so. I sincerely hope that this amendment of the gentleman from Richmond will not be adopted. We have thrown around this matter every safeguard that can be thrown around it properly, if the people of the cities of our Commonwealth are capable of self-government, and we are proceeding upon that theory. Mr. Meredith: Mr. Chairman, I should not detain the committee a second time with this matter except that I think it is of great importance. My friend who has just taken his seat (Mr. Barbour) has given an illustration of the principle he lays down that it would be very dangerous to require a two-thirds vote of the Common Council to make an appropriation of the city finances. In contradistinction to that and in opposition to it, and to show that the evil the gentleman recites is purely an imaginary one, I simply wish to call attention to the charter of the city of Richmond — and I get very much of the language of my amendment from that charter — which provides that "for all ordinances or resolutions appropriating money exceeding the sum of one hundred dollars, imposing taxes, or authorizing the borrowing of money, a vote of two-thirds of all the members elected to each branch shall be necessary, and the yeas and nays shall be entered on the journal of each branch respectively." That has been the law of this city for thirty years, and not one single instance of evil has ever come from it. On the other hand, there are gentlemen on this floor who have taken part in our city government who can prove that it has been an im- mense safeguard to us. So, in contradistinction to the imaginary evil which the gentleman thinks will flow from this language, I cite a charter that has been in existence for thirty j^ears, and the practical working of which has been beneficial. Now, gentlemen, do not let us indulge in imaginary fears. Do not let us be led off from what we can see is reasonable and proper simply by the ide?. that something may happen that will tend to hurt us; and I think you will see that it is reasonable and proper if I can show you it has been in practical operation for thirty years in the largest city of the Commonwealth, and has been a great benefit to us. What I have said is in answer to the evil the gentleman imagines will occur. Mr. Chairman, I hate to repeat what I have said before, but I have been so associated with municipal governments for a number of years that I feel I can speak with some knowledge on the subject. I claim there is no evil now existing in municipalities greater than these two: The question of the disposition and use of the finances, and the selling or giving away of the franchises of a municipal corporation. If you can throw around the municipal government protection in those two instances, I respect- fully submit you will need no protection as to the qualifications of the members of your Common Council or the qualifications of the electors to the legislative branch of city government. 1956 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Has any gentleman within a year had his attention called or directed more to any subject than to the corruption of municipal government? It is idle for gentlemen to stand on this floor and say they have lived free of that. There is no use of gentlemen boasting that their city governments have escaped this evil, because if others have suffered from the ordinary evil consequences of municipal government, they are not likely to be free from them. Is it not wise that you should look at the experience of others in the past, no matter whether it be the experience of a man or of a municipal government? Is it not wise that we should see what has been done and suffered in the past by others, and that we should avoid those dangers and evils? Mr. Barbour: What is the veto power in the mayor of the city of Richmond at present? Mr. Meredith: I have called your attention to the fact, and I feel very glad of the fact that you have put in here a provision requiring that the veto of the mayor shall only be overcome by a two-thirds vote. It is a wise provision; but that is not the question now. You have stated here that you fear, if a two-thirds vote is required to appropriate city money, it will result in the city government being tied up. I am showing you are in error as to that. I admit you put another safeguard around it, but that is not all we want. We want the fullest protection as to what we believe to be the greatest evil in municipal government. Mr. Barbour: If the gentleman will permit me, I said, or I intended to say, they could tie it up or they could get their vicious measures through; and I believe this very feature in the charter of the city of Richmond is responsible for the vicious legisla- tion. Mr. Meredith: I would advise the gentleman not to speak too boldly and con- fidently upon a matter about which I presume he is somewhat ignorant, because I do not believe he is familiar with what has been done in our city government to an extent which will justify him in making such a broad statement. Mr. Barbour: I have heard the gentleman from Richmond himself say they have made vicious appropriations. I take his word for it. Mr. Meredith: Yes, sir; but you never heard me ascribe it to the cause to which you ascribe it. Mr. Barbour: I am permitted to draw my own conclusions. When I find you have a wrong principle embodied in your charter, I have a right to conclude the vicious results flow from it. Mr. Meredith: No, sir; you have a right to conclude that vicious results come from all human institutions, that there is not a human institution which can be de- vised that has not evil in it, and evil coming from it; but is that any reason why we should not put safeguards around it, and minimize the evil as much as possible? That is what I am pleading for on this floor. Mr. Chairman, I wish to call your attention to the fact that the growth of munici- pal government and of municipal law has virtually taken place in the last fifty years. I do not mean to say there have not been some large cities in the past, but we know that the largest city in the world, London, had no municipal government extending over its limits until lately. In the last few years it has had municipal government. You know of the evils in the cities of Baltimore, New York, Philadelphia, and possibly to some extent in Boston, and certainly in Chicago. You know the evils that have existed in municipal governments far exceed the evil and corruption that exists in State governments. No man can challenge that statement. Now, if you see greater dangers existing as to municipalities than exist as to State governments, I earnestly urge that you will take such a course of action as will prevent, as far as possible, the extension of those evils. Mr. Chairman, I said on yesterday that you must recognize the difference between the character of the legislative body of a municipality and that of a State government. DEBATES OE THE CONSTITUTIONAL CONVENTION OE VIRGINIA. 1957 A tivate Legislature meets here once every year, or once in two years. It sits here for ninety days, and it sits in the day time. It is carried on by men who are devoting their entire time to it. It has its committees that pass on these matters. Now take the Legislature of a municipal government. It meets at 7 o'clock in the evening and tries its best to get through and adjourn by 11 o'clock. Legislation involving thousands if not tens of thousands and hundreds of thousands of dollars is passed after a few hours' consideration. If you can see the evil that will come from such a course of action, if you can see that this speedy legislation is necessarily, whether corrupt or not, obliged to be injurious because a man has not been able to give it the necessary attention, I say you ought to put around it such safeguards as are possible. I repeat, if you will give protection to the city governments against themselves, you will do nothing more than encourage the prosperity of the State. I know, Mr. Chairman, it has not been put iu the Constitutions of the past, but that is no reason why we should not put it in this Constitution if it is wise to do so, so that the cities of the Commonwealth shall not stand, as other cities have stood, a scorn and a byword for corruption through all the world. Now, I wish to call your attention once more to the fact that I am not asking anything inconsistent with the report of the committee. If you will turn to Section 11 of the report, you will see it has provided that none of the property of the cities shall be sold except by a three-quarters' vote, and that if a bill of that kind is passed and vetoed, it shall be passed over the mayor's veto by a three-quarters' vote. It can- not possibly be that men who are familiar with municipal affairs do not know that it is far more difficult to sell a piece of land belonging to a city than it is to hurry through an appropriation of money that happens to be in the treasury. The one is easy and the other is difficult; and yet around the one that is difficult you throw a high safeguard by requiring a three-quarters' vote. I believe in putting in this Constitution limitations upon municipal power. I be- lieve it is best for the municipalities; but I believe if we start to do it, we ought to go to the extent necessary to give them protection, and not pick out these things as to which the dangers are very small, but select those things as to which the danger is greatest and which occur in regard to the misappropriation of the people's money. All I ask is that you require that every appropriation of the .moneys of the cities, or every ordinance or joint resolution imposing taxes and authorizing the borrowing of money, shall be passed by a two-thirds vote; that you will put in your Constitution something that will tie the hands of the officers of the city government and prevent them from wasting the people's money. You know that if there is a needed appro- priation, it is more than probable, almost certain, that it will go through. You know that if it is passed and it goes to the mayor, the mayor will not veto it, unless there is some crying evil about it, after it has been passed by a two-thirds vote. We only ask that if the evil is so glaring and so vicious, that he will put his disapproval on it, it shall require a three-fourths' vote to pass it over his veto. I ask for the finances of the cities the same protection which the committee has given to the sale of a little piece of land of the cities. Mr. Hatton: I offer this amendment, that the words "two-thirds" be stricken out, and the words "a majority" be substituted, and all the amendment after the word "cities" be stricken out, so that the amendment will read as follows: No ordinance or joint resolution apprropriating money exceeding the sura of $100, Imposing taxes or authorizing the borrowing of money, shall be passed except by a recorded vote of a majority of all the members elected to each branch of the council of said city. Mr. Meredith: I would say to the gentleman that unless he desires to have a vote- 1958 DEBATES OE THE COOSrSTITUTIONAL COOsTVENTION OE VIRGINIA. on that question first, I can see no necessity for it, because if my resolution is voted down and we go back to the provision contained in the committee's report, it does not require anything to enable the council to spend a million dollars of the people's money if they wish to. Mr. Hatton: The gentleman from Richmond evidently does not see the force of my amendment. His amendment requires the vote of two-thirds of the members elected. Under the committee's report it can be done by a majority of a quorum. I take the middle ground, and require it to be done by a majority of all the members elected. Now, Mr. Chairman, I yield to no man, and net even to the gentleman from Rich- mond, in my earnest desire to see the financial condition of the cities in this Com- monwealth amply safeguarded and protected, but at the same time I do not desire to see the councils, or other legislative bodies of these cities, unduly restricted, and I believe that the amendment of the gentleman from Richmond in requiring a two-thirds vote of all the members elected to a city council is an undue restriction. I believe it is proper and wise to restrict the councils, in the appropriation of money and the impos- ing of taxes and the borrowing of money, to a vote of a majority of all the members elected rather than to a majority of a bare quorum, and there is a considerable differ- ence between those two requirements. My amendment also strikes out of the amendment offered by the gentleman from Richmond that part which requires that in order to pass one of these measures over the veto of the mayor there shall be a recorded vote of three-fourths of all the members elected. I think the report of the committee with reference to the veto and the passing of measures over the veto should be left as it is, namely, that a measure can be passed over the veto of the mayor by a two-thirds vote. I hope, Mr. Chairman, that this amendment may be adopted, or at least that the amendment of the gentleman from Richmond may not be adopted in its present form. Mr. Meredith: Mr. Chairman, I call the gentleman's attention to Section 11. When it comes to the sale of a little piece of property in the city, it requires that it shall not be sold except by a recorded vote of three-fourths of all the members elected. Mr. Hatton: But that is another section and another story. We are not on that story now. Mr. Meredith: I call your attention to the fact that it is on the same line of story. Finances and property are the same thing. Mr. Hatton: When we get to that bridge we will cross it. We cannot cross it until we get to it. I hope it may be the pleasure of the Committee of the Whole to adopt the amendment which I have offered to the amendment of the gentleman of Richmond (Mr. Meredith). I think that is a proper restriction. Mr. Meredith: Before the gentleman from Norfolk (Mr. Brooke) begins his closing in support of the report I wish to say, as has been suggested to me by my associate (Mr. Gordon), that if the proposition of the gentleman from Portsmouth (Mr. Hatton) is adopted the city of Richmond will be put in a worse condition than that in which she is now. We require by our charter a two-thirds vote before one hundred dollars is appropriated. If the gentleman's amendment is adopted as pro- posed by him, all that would be required is a majority vote of the members elected to both branches of the city council; so you will deprive us of a protection we have had for thirty years, the benefit of which we feel. Mr. George K. Anderson: I desire to ask whether you think it is necessary to put this provision in the Constitution. You say you have had it from the Legislature for thirty odd years. Do you not think you would be safe in leaving that matter where the committee has left it? Mr. Meredith: I do not know whether a city might not get it from the Legisla- ture, but I can suggest this to you. If we undertake to amend our charter as some of DEBATES OF THE COXSTITL'TIOXAL COXVEXTIOX OF VIEGIXIA. 1959 the business men of the city of Richmond think best, and the Common Council does not approve of it, we have a fight immediately made against it; and there are so many more of them, and they have such political influences that they have frequently in- fluenced the members of the Legislature against proposed judicious legislation. I can cite one instance where we attempted to amend the charter of the city of Richmond as to the Fire Department. I was then city attorney, and I was unable to get more than one member out of five to stand by it. You will recall the fact that these are to be general laws. Some of the cities who know its value want this provision in here. Suppose a majority of the cities do not want it; how are we going to have an exception made in our favor; requiring a two- thirds vote as to our finances, when the majority of the cities do not want it. The evil will be that we will lose the benefit of what we now have in our charter. Mr. George K. Anderson: Mr. Chairman, the committee had this matter under consideration^ and very many other matters of the same sort; and for the very reason suggested by my friend from Richmond (Mr. Meredith) the committee left out these matters of administrative policy as far as it was possible to do so. Mr. Chairman, before the chairman of the committee closes the debate I wish to say a few words. The gentleman from Richmond (Mr. Meredith) asks for some logical argument why a provision of this sort should not be put into the Constitution. I will say to my friend that the Legislature of Virginia, which makes appropriation annually of a large sum of money, only requires, in order to pass a measure, a majority vote of that body; that the Congress of the United States, which makes an appropriation of nearly a bil- lion of dollars annually, only requires, in order to pass a measure, a majority vote of the members of that body. Now, Mr. Chairman and gentlemen, this comniittee has endeavored to furnish to the Convention a plan embracing an executive department for the city, a judiciary department for the city and a legislative department for the city. Mr. Meredith: Does not the gentleman himself recognize the difference between a municipal council and the character of the men and the method in which legislation is carried through there, and the Congress of the United States and the State Legis- lature? Mr. George K. Anderson: Certainly I recognize the fact that there is some difference between them, but I say if either body is more conservative than the other body, if either is more careful in the expenditure of its moneys than the other body, it would be the smaller body, the one that is nearest to the money. Now, my friend suggests another idea, that this committee has said to the Con- vention that in order to sell a little piece of city property a three-fourths vote of the council is required. I call my friend's attention to the fact that that provision has reference to the actual sale of a street in the city. It has reference to the sale of a park that has been dedicated to the public. It has reference to that class of prop- erty — not a little piece of property bought for a city hall and not found useful for that purpose. It does not refer to that class of property at all. Mr. Meredith: If you walk up Broad street here in Richmond you will find at Brook avenue a little triangular park, which is said to have cost a great deal of money. It is a small piece of land: I suppose half an acre in extent. You require a three-fourths vote to dispose of that land, and yet you only require a two-thirds vote for an appro- priation of a million dollars. Mr. George K. Anderson: The difference is this: The people of Richmond have set aside that little triangle at Brook avenue and Adams street as a park. They do not want houses there. It would not only mar the beauty of the city, but it would be a disadvantage and an obstruction to have them there, and I say a three-fourths vote ought to be required to sell that little piece of ground. The revenue of a city is levied to be spent. What are your taxes raised for but to be spent on the streets of the city? Your parks are not laid out and beautified only to be sold, and therefore 1960 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. the committee said that in order to sell one it should require a three-fourths vote of the council, but in order to make an appropriation of money the committee said nothing, because the committee felt, as I have said, that that was a matter of admin- istrative policy that ought not to be incorporated in the Constitution, and that there is no reason at all for it. Mr. Brooke: Mr. Chairman, I wish to say only a few words in reference to this matter. My objection to the amendment arises largely from the fact that it takes us into a field of legislation which I think ought to be avoided in constitutional enact- ments. The committee felt that they had guarded these questions as well as it was possible to be done, or certainly as well as it was reasonable to be done, and we did not feel that we ought to go further into that field of legislation and say how the councils should legislate on particular subjects of legislation. Now, if the principle of the gentleman's amendment is correct, it Is a matter which can be dealt with by the Legislature in his own city charter; it has been dealt with by the Legislature in the city charter for the city of Norfolk. How any one can suppose that the Legislature, after having again and again made such provision as that in their legislative charters, would refuse to make it hereafter I cannot understand. Now, we have guarded the misappropriation, or the careless appropriation, or the corrupt appropriation, of money by providing that these ordinances shall all be submitted to the mayor, and that he shall have the right to veto them, and that they shall not be passed over his veto except by a two-thirds vote. That brings us down to this proposition: The gentleman is contending for a two- thirds vote for an original appropriation, and in order to get that we have to face another evil of legislation, and put a legislative enactment in our constitutional pro- vision. That veto power bestowed upon the mayor by this artictle provides in the final analysis for a two-thirds vote on these very questions. The Chairman: The question is on the amendment offered by the gentleman from^ Portsmouth to the amendment offered by the gentleman from Richmond. The amendment was rejected, there being, oh a division, ayes, 11; noes, 41. The Chairman: The question now recurs on agreeing to the amendment offered by the gentleman from Richmond (Mr. Meredith), which the Secretary will again read. The amendment was rejected, there being, on a division, ayes, 30; noes, 30. Mr. R. L. Gordon: I move to reconsider the vote by which the amendment of the gentleman from Norfolk (Mr. Thom) to section 7 was rejected. As the gentleman from Richmond (Mr. Pollard) is absent, I move to pass the motion by. The motion to pass by was agreed to. The Chairman: The Secretary will read Section 10. Sec. 10. No street railway, gas, water, steam, or electric heating, electric light or power, cold storage, compressed air, viaduct, conduit, telephone or bridge company, nor any corporation, association, person or partnership, engaged in these or like enter- prises, shall be permitted to use the streets, alleys or public grounds of a city or town without the previous consent of the corporate authorities of such city or town. The Chairman: Are there any amendments to be offered to Section 10? Mr. Summers: I offer the following amendment, to come in at the end of the section : Add at the end of section 10 the following: "Unless by proper condemnation pro- ceedings to be provided for by law. ' Mr. Chairman and gentlemen of the committee, my reason for offering that amendment is this: You will notice that if this section is adopted, there are numerous instances, and particularly in my country, where it gives the first occupiers of the city or town a monopoly forever. There are one city and twoi towns in my section. If DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIPtGIXIA. 19(51 tnis section prevails, they can stop all future telephone companies, telegraph com- panies, railroad companies, and all other associations from coming into those places unless they tunnel through a mountain, which would cost millions of dollars. I think the committee should give this matter serious consideration. I am dovrn on monopo- lies and corporations, as we all are; but this would be establishing a monopoly that time can never alter. In the coming city of Damascus, in my county, there is a telephone company, a telegraph company, and a railroad company, and if this provision prevails, none of the corporations that own those franchises can be driven away. They own the town and will own the city. Now, will some wise man from the East or from the West explain how we can prevent a money-making monopoly that will exist forever? This is some- thing, gentlemen, which I think needs your serious consideration, but you can do v/ith It whatever you please. Mr. Brooke: Mr. Chairman, I simply want to say that this is a proposition which It occurred to the committee would hardly meet with any opposition. It is so entirely along the lines of home rule in matters which are purely local that we felt v^'e were at least safe, even before a body of this sort, in making this provision. Mr. Carter: It seems to me there is one point which may occasion some criticism. You are dealing only with matters that are local to the cities, as I understand You sa3^, '"'Xo street railway, gas, water, steam or electric heating, electric light or power, cold storage, compressed air, viaduct, conduit, telephone or bridge company." How about a long distance telephone company? Mr. Brooke: I think this will appl^' to it. The long distance tel'^phone companies generally make their connections between the cities by connection with the local ex- changes. Mr. Carter: But if your long distance telephone company wanted to go into a little village like the village of Ashland, and the people of Ashland objected, that would block the whole scheme. Would you have any objection to striking out the word "telephone"? The others are purely local. Mr. Brooke: I would have a decided objection to striking out the telephone com- panies just in that language, but I might not have any objection to amending that by saying "local telephone.'" Mr. Carter: That would be satisfactory to me. Mr. Meredith: There is nothing which is more trouble to us than the poles and wires of telephone companies. They are the most dangerous things we have in the cities in regard to fires, and unless we have them in the control of local authorities it is absolutely impossible for us to protect ourselves from that danger. We ought to have the authority to compel them to put their wires in conduits as soon as possible, and all that power ought to be* left in the municipal authorities. As to the danger my friend suggests of Ashland stopping the long distance telephone, it would not require more than half a mile circuit to pass around the town. Mr. Carter: I do not desire to say much about it. I want to vote for the section, and if it confines itself, as is evidently the intention of the committee it shall do. simply to local matters, I will heartily support it; but when you put in the words "telephone companies." you interfere with what is not local. The long distance tele- phone is exactly the same as the telegraph. You have not included in this provision telegraph companies, and you have left them out for the express reason that you did not want to interfere with the power of the State over anything but local enterprises. Mr. Meredith: I suggest to the gentleman from Hanover that the reason the word "telegraph" is left out is that telegraph companies operate under a law of Congress that allows them to go anywhere along a post road, and the gentlem.an from Hanover is familiar with the line of authorities which hold that the highways of a city are regarded as post roads. 124 — Const. Deb. DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Mr. Braxton: Would there be any difficulty in a telephone company making a sufficient deflection to go around a village. I can well understand the difficulty of a railroad going around, because it would be affected by the contour of the ground; but no such difficulty would exist in the case of a long distance telephone company. If you will permit me to make the suggestion, I would take it that unless the telephone company wanted to do as they frequently do, to defy the municipal authorities and do something unreasonable, there would be no objection to their coming in, and if they could not agree, it would be no hardship on them to go around, as it would involve simply the building of, say, half a mile more of wire line, which would not be ex- pensive as would the deflection on a railroad. Mr. Carter: The difficulty would not be insuperable, nor would it be as serious a difficultty as the deflection of a railroad; but the purpose of the committee here was apparently to deal simply with purely local matters, and in that I think they are right, and I would like to support them; but this would be taking from the Legisla- ture the power which heretofore it has always had over the streets of the city and giving it to the city councils. They are taking from the State its right of eminent domain and vesting it in the little villages and cities. I am perfectly willing to go with them to that extent, if they confine it to local matters only; but when they come to interfere with matters in which the State is interested, I am opposed to the change. I think the State of Virginia and the Legislature ought to retain now what they have , always had, their control over the streets of the city except as to purely local matters. Mr. Braxton: How would you define a long distance telephone company? Would you call a telephone company that extended its lines from within a town to some point out in the country a long distance telephone? If not, how would you distinguish between a long distance telephone and a local telephone? Mr. Carter: Wherever more than one community in the State is interested in an industry, it is not a loQal industry. The Chairman: The question is on the amendment of the gentleman from Wash- ington (Mr. Summers), which the Secretary will read: At the end of Section 10 add the following: ^'Unless the proper condemnation proceedings, to be provided for by law." Mr. Carter: Mr. Chairman, my motion is to insert before the word "telephone," fn line 3, the word "local," so as to make this section apply only to telephones that are confined to the town, village or city whose streets are proposed to be occupied. This makes the section correspond with itself and congruous. If you do not do that, you have a provision here which takes from the Legislature of Virginia the power that it now has over the streets of the city with reference to all local matters and with reference to one matter alone which may not be local. It makes it incongruous and contradictory. There is no more reason for singling out the telephone, which is one of the companies that is not local, than there would be for singling out a telegraph company in villages where the streets are not used for distributing the mail, and it seems to me that, as we are changing, anyway, the present condition of affairs in Virginia which has stood ever since it was a State, and limiting the powers of the State and the Legislature over the streets of the cities, we ought not to go further than to limit it except so far as it applies to purely local matters. I do not say to the Legislature, ''You must allow these companies to come through here without the consent of the city," but I leave it where it now is, in the discretion of the Legisla- ture. They have never abused that discretion in the past, and there is no reason to suppose they will abuse it in the future. Mr. Thornton: Under your amendment, then, the Legislature could permit the telephone companies to pass through the town without the consent of the town? DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF VIRGIXIA. 1963 Mr. Barbour: I would like to ask you if a bill on this subject was not gotten through the General Assembly at its last session, and whether a protest did not come up from every city and town of this State, so that the Legislature repealed the bill so quickly it would take your breath away? Mr. Carter: That may be, but it never was gotten through. I would say further, that the Legislature has, in proper cases^ the power to take from little cities and villages their veto power and keep them from exercising it unreasonably, as sometimes they might do. I sa3^, Mr. Chairman, we are changing here an important principle in our State, one that has prevailed ever since Virginia has been a State, and we are taking from the Commonwealth of Virginia and from its Legislature the power it has always exer- cised, and are giving it to some little village, which may not have two hundred in- habitants in it, which might block a great enterprise in which the whole State was interested. All I say to you is this: Let things stand as they are with referouce to this matter, and leave it to the Legislature to decide in what cases it is proper and when it is not proper to leave that veto power in these different little villages throughout the State. Mr. Glass: I think that the proposition offered by my friend from Hanover is, as has been said, a revival of the fight we had before the General Assembly two years ago in which a bill passed the State Senate incorporating a telephone company with a capital of five millions of dollars, with but few members of that body knowing any- thing about it. There were but one or two members, as I recall it now, of the com- mittee which reported the bill who were willing to say they remembered having voted to report it, and there were few members, as I rcall it, of the same body who were willing to say they remembered it having passed the body, and yet it had passed in the way prescribed by law. My friend from Hanover says here is no difference between a telephone company in a town and a telegraph company, and that, since railroads are given right of en- trance to cities and towns without local assent, so should telephone companies. There is a vast difference between a telephone company in a town and a telegraph company. A telegraph company in a town has but a single destination, and that is its own office. It reaches that office usually hy rear streets or alleys — highways or byways that are not given over to traffic and upon which there are a few residences. A telegraph company could have no desire to disfigure a town, and there is no reason why it should disfigure the principal streets. On the contrary, a telephone company in a town uses every thoroughfare in that town and has lines running to almost every residence in the town. It is necessarily obliged to disfigure and obstruct the streets, unless it has a subway system. My friend has also said that we are proposing to take away from the General Assembly a power that it has always had. I turn to the Code of 1887, Section 1287, and see that the General Assembly has exercised that power precisely as the commit- tee proposes to embody it here. The statute reads: Every telegraph and every telephone company incorporated by this or any other State, or by the United States, may construct, maintain and operate its line along any of the State or county roads or works and over the waters of the State, and along and parallel to any of the railroads of the State: Provided, tne ordinary use of such roads, works, railroads and waters be not thereby obstructed; and along or over the streets of acy city or town, with the consent of the council thereof. We are merely making permanent here a statute of the State which experience has taught the General Assembly is a wholesome provision; that is all. It is very well to say that the General Assembly may not exercise this power differently; but, then, again, it may exercise it differently, and it came very near doing it two years ago. I have never, in all my observation or experience, witnessed such a scene as 1964 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA, we had here in the General Assembly two years ago over tnis very proposition. Some of us wtie nearly pui inio our graves resisting the measuie. 1 do not thinK that it is any exiraorainary departure tor this Convention to put into the Constitution what the General Assembly has made statute law for over twenty years, and which ought never to De changed. I do sincerely hope that the proposition offered by my friend from Hanover will not prevail. Mr. Tnom: Mr. Chairman, I think the question presented by the gentleman from. Hanover (.Mr. Carter) is a very much broader and larger question than is generally realized. The accepted law of this State is that the Commonwealth of Virginia owns, the stieets of the cities in the same way that it owns the highways of the country. It does not own them in the sense of doing inconsequential things in reference to them, but it owns them for the purpose of requiring them to be utilized for the benefit of the whole public of the State; and every citizen of the State, under the law as it now stands, has the right to use the highways through the counties, the public roads of the counties and the streets of the cities for purposes of travel and all other legitimate public purposes. Public uses in reference to highways are being developed as the instrumentalities of commerce are changed and themselves develop. As a citizen of the State of Virginia living, say, in the county of Nansemond, I would have the right, legitimately, to travel over all the roads of the Commonwealth and all the streets of the cities for every legitimate purpose, and not only that, but I would have the moral right, which ought to be protected and defended by my State,, to use those public highways for every purpose of communication. Now, what is the proposition? The proposition of the bill, as it now stands, is that every country road of this State shall be kept under State control and open to the use of the citizens of the State for all purposes; but that as to the streets of the cities, they shall be taken away from the State and shall be confided to the cities, not only for local, but for general State purposes. Mr. Brooke: Might I ask, does not the gentlemen recognize that there is a differ- ence between the two cases in the multitude of companies that might desire to use the same streets in the city as against very few and occasional companies that desire to use the roads of the counties? Mr. Thom: I do not recognize any difference in principle. And I wish to elabo- rate this idea "and to invite the very earnest attention of the committee to it, be- cause I think it is fundamental. Now, I say that living away from the Capital of my State, I have a right to travel on all its highways, whether they be through the country or through the cities, tO' reach the Governor of the State, to reach the government of the State and to transact my business with the representatives of the State. Not only have I a right to come in person, but I have a right to come by way of telegraph or telephone, and do the same- thing. Every citizen of the State living in the country has the proper right, due to- his citizenship, of being able to come to the capital city of his State, either in person or by telegraph or by telephone, to transact his business, and the right should not be taken from the State to regulate that method of passage, and put in the hands of any locality. Suppose, for example, the long distance telephones wore to come into universal use in the State of Virginia, and my friend there from Pulaski wanted to talk to the Governor of his State, why should the city of Richmond, as to State high- ways in the city of Richmond, have the right to say: "You may talk to the city limits, but you shall not talk to the Capital of the State?" Why is it right to give to the city of Richmond the power of prohibition against all the population of the State to use any of the instrumentalities of commerce over its streets? I take the city of Richmond as an example. The city of Norfolk would be another example. Why should not a merchant living in some of the Southside counties in Virginia be able to talk to his correspondent in Norfolk over the State's highways as DEBATES OE THE COXSTITUTIOXAL COXYEXTIOX OE YIRGIXIA. 1965 Vt?ii as travel over the State's highways? Would this Convention for one moment entertain the proposition that the right of the people of the State to travel over the streets of the city snould be within the city's control? And yet this proposidon is to say that the right to use the streets of he city in commercial ways snail not be in the oontrol of the State, but shall be in the control of the city. Is that a sound principle? Mr. Gregory: I would liiie to ask the gentleman if he says that the right to travel over the streets of cities and over the highways of the country stand upon the same footing? Mr. Thorn: Yes^ I think so. Mr. Gregory: Then, I ask him this: Is there not a difference between the lia- t)ility of the cities for damages sustained on the streets and the liability of counties for e them from the State and give them to the localities and cities. The question is whether you will leave the right to prescribe how far the people of this State may use their own highways to the Legislature of the State or to the councils of the cities. Now. thPt is the pronosition. Who should control the highwnvc; of t>^A State, the councils of the cities or the Legislature of the State? Why is it tha^ you leave to your 1968 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Legislature the right to control the county roads and do not give it to your boards of supervisors. Why is it that you will not permit local authorities to prevent great public works? It is a common principle that a State must determine State ques- tions; and now the suggestion is to take from the State the right to determine this great State question which affects me in the city of Norfolk, you gentlemen in the city of Richmond, you gentlemen in the county of Lancaster, and all the people of the State, and to say that the city council of the city of Richmond and the city council of the city of Norfolk shall determine not how you shall use the streets, but whether you shall use them at all. Are you going to commit yourself to that propo- sition? There is no suggestion that the method of use shall be taken from the city. The question is whether you are going to give the cities this right of prohibition of use. I ask you, gentlemen, to consider it upon broad principles, consider what you are asked to do, and before you take away from your State the right to use and con- trol its highways everywhere, pause and think. Mr. Meredith: Mr. Chairman, I desire to call attention to the fact that it seems to me the possible evil has been very greatly magnified. Wherein is it contemplated that the Legislature shall surrender its power over the streets, so far as power is necessary to be retained? From the argument made by the gentleman from Norfolk (Mr. Thom) one would imagine that the power was given to the city to say that the gentleman from Nansemond, or the gentleman from Pulaski, should not walk the streets of the city of Richmond. As if there were some power to be given into the hands of the municipality to enable it to prevent these gentlemen who live elsewhere from coming and using the streets of the city of Richmond. Is that true? Is not the true issue as to whether the municipalities are to have the control of their streets, or whether these corporations shall be able to get through, by hurried legislation, au- thority to use the streets of the cities and the towns of the Commonwealth to their detriment? It is not a fight between the people of the country and the people of the cities, as the gentleman from Norfolk (Mr. Thom) undertakes to make it, but simply a question as to whether the people of the city or the corporations, which desire to occupy the streets, shall control them. That is the fight; and let us recognize it, no matter how ingenious may be the argument made by the gentleman from Norfolk. It is not the cry of the people against the cities, but it is the fight as to whether these corporations that the gentleman is advocating shall have the right to go to the Legislature and ask for a. charter to go into the city of Lynchburg or the city of Bristol or the city of Roanoke, or a city at some distant point, and before the people of Roanoke or Bristol or Lynchburg ever hear of it the burden is put upon them. That is the proposition you must meet, and not the proposition to refuse to allow a citizen to use the streets. It is a fight as to whether these corporations shall be permitted to go before the Legislature and get the right to use the streets, and not a fight as to the rights of the people. Let us recognize the fight at once as what it is. Mr. Chairman, the city of Richmond has no special interest in this matter. This is the capital, and here all this legislation takes place. Our local officers watch bills of this character that are introduced, and time and time again they liave gone before the Legislature and defeated bills which would have affected every city in the Com- monwealth for the running of electric railw^ays. electric plants, etc. Suppose a bill is introduced to create a corporation with power to build a street railroad and operate an electric plant in the town of Smith or any other city in the Commonwealth. Where is the protection to our cities? Such bills have been stopped on the eve of their passage by the law officers of the city of Richmond simply because they hapnened to be here. But T\^hat protection have you gentlemen who do not live here? What pro- teetlori have you for the little towns or cities in your counties, unleps you make pro- vision in this section that we shall have some authority in regard to it'' DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OF VIRGINIA. 1969 What is the evil? The evil is that they say these municipal corporations will block commerce. Upon what do such corporations live, if not upon commerce? They say these men, whose life blood is commerce, will destroy the very thing upon which they live. You know" that is not reasonable to expect; but you have the right to expect that these men, who know the dangers in regard to the corporations, will put such reasonable restrictions upon them, that they may be properly managed. That is all a municipality ever undertakes to do. You know it is not probable that a municipality is going to be obstinate, and simply say they shall not come in. It w^ill propose to reasonable restrictions upon them as are probable and possible and proper. Mr. OTlaherty: I wish to say I signed the report of the committee, but this part of it. I am perfectly willing to say, has given me a great deal of difficulty from the very beginning, as to whether or not this prohibition should be permitted. I should like to ask the gentleman if he is willing to leave the language as it is, and put some provision in here to show that this shall go just as far as the police power is concerned? Mr. Meredith: No, sir. Mr. O'Flaherty: As a member of the committee, I want to get at the correct idea, and whether by permitting a city to prevent some company from coming into the city we have transferred the right of eminent domain from the State to the city or town. Mr. Meredith: You have not surrendered any powder over your streets, except to say that certain corporations shall not come upon them without the consent of the cities. You have the same power you ever had over the charter and as to the abol- ishing of highways. They all belong to the State, and you have just as much right over them, except to say that these corporations shall not come there and occupy them, when the people of the municipality are at the expense of maintaining them, without some reasonable restrictions. Mr. O'Flaherty: I do not object to the power of the Legislature over that. We all agree about that. The question is whether we ought to give to the municipality the absolute power to prevent a corporation, a telephone corporation or a corporation of some other character, to come into the city. The municipality might raise them without rhyme or reason. Mr. Meredith: That is possible. That bugbear has been held up here to us several times, but is it as probable that a municipal community will block commerce as' it is that a corporation will go to the I^egislature and try to get a charter that wall be injurious to that municipal community? That is the issue. Is it as probable that a city which lives upon commerce will block commerce, as it is that a money- making corporation will try to get the very best terms from the Legislature, w^hen the municipality has nothing to say about it. Let us decide which is the more reasonable to expect. I respectfully submit that, recognizing the intelligence of these munici- palities, we ought to expect that they will act with some degree of intelligence and business discretion. The simple question, then, is as to whether we can exnect that these people, who are simply desirous of making money — I am not censuring them for it. but their whole object in life is to make money — will hesitate to get the very best terms they can from the Legislature, regardless of the interests of the cities and tovvns. If that is the state of facts, I submit that, while there may be some dnno:er upon both si'^es, yet the danger on the side of the cities and towns acting imi:)roperly is so much less than that of a private corporation acting unwisely and unjustly, and some- times tvrnnpically. tliat we ought to make provision to protect this power. Mr. Avers: Mr. Chairman. I fnllv concur in the amendment offered to f^is section. I believe vo o\fv should have the ah^jolnte ri2:ht to sav that a telephone coTur>Fmv or a tele.a:ranh company, if you put it that way. shall have the power of ab-^olute pro- hibition as to entry into that city. DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. About two years ago we had a fight in this city for the long distance telephone company. To get into Virginia it was necessary that it should get into the capital city of Richmond and other cities of the State. It was met at the threshold of its entry into this city by an absolute refusal of the council. It is true a branch of that company was in litigation and contention with the city, and that entered more or less into the fight; but we all know that the long distance telephone company made the proposition to deposit $100,000 of Virginia bonds in the city treasury as a guarantee that it should within three years have long distance connection with every magis- terial district in every county in the State. It could not do that unless it could get into these cities with its connections upon some reasonable terms. As the section stands any city may absolutely prohibit upon any terms the entry of one of these long distance telephone companies into the city. There have been sufficient safeguards thrown around it by provisions which have been incorporated in the Constitution already, which give the parties whose properties are affected by it compensation for damages, and also for damages that result, although no property is taken. The city is safe in the hands of the General Assembly, which will, if the matter is called to its attention, put such safeguards around the entry of any of these companies into the city as will protect their municipal interests. There is too much paternalism, too much of protecting the cities against them- selves, in this provision. The General Assembly is certainly wise enough to throw around the entry of any of these companies into the cities special safeguards which, taken in connection with their police powers, will enable the State and the munici- pality to prevent unjust exercise of corporate power. I do hope the amendment will be adopted, and that if another such proposition is made it will be accepted by the General Assembly, and will not be defeated. It was defeated indirectly, but nevertheless as affectually defeated as if the General Assem- bly had refused to permit this company to enter the cities. They permitted the com- panies to enter the cities after a very stiff fight under certain rules and regulations which certainly protected the cities; but the fight was renewed indirectly, and a maxi- mum tariff of thirty-five dollars per telephone was imposed, for which no company could maintain and give a successful service in a city, as is shown by the fact that since that time this very city has permitted a branch of that same company to con- tinue to occupy its streets, and is to-day engaged in putting its lines in subways, with the right to charge more than the maximum fixed by the General Assembly. I think in the interest of all the people of the State this amendn ent ought to be adopted, and the discretion ought to be left where it properly belongs, with the Gen- eral Assembly. Mr. Glass: Do you not know it to be a fact that the company refused to agi-^e for the General Assembly to name a maximum rate, and that the maximum rate named by the General Assembly was the highest rate charged by the company in any city, town or county in the State? Mr. Ayers: I cannot answer as to its being the highest rate charged by the com- pany in any city, town or county in the State. I know the matter was very fully dis- cussed by the president of the company, who showed that it would be impossible in a city the size of Richmond for the company to give its full service for $35 a year, and he went on to say they could give a classified service, with not a full connection, but it was impossible to give the full service. I think the gentleman is correct, that the company refused to be limited in the matter of its charges. Mr. Glass: In other words, the company did net want any limitations put upon it as to its entrance in the cities, and did not want any limitations put upon its right to charge whatever it pleased in the cities. Mr Ayres: On the contrary, there was a very servere limitation proposed DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OE YIRGIXIA. 19 Tl as to its entrance in tlie cities^ -^-hicli was considered onerous, but tliat would have been borne, and tbe company would have come in, but for the limitation as to tariff. Mr. Hunion: Mr. Chairman, I desire to say, in reply to a statement of my friend from Lynchburg (Mr. Glass), that I think he is in error as to one statement he made. My recollection of that bill was that it provided that the company should enter no city of the Commonwealth without the terms being agreed upon between the com- pany and the city, and in the failure of the company and the city to agree, the court of the corporation had the power and the right to fix the terms, and that provision was accepted by the company. Unless my memory greatly fails me, I am sure those are the facts. Mr. Glass: My recollection is that the bill as it originally passed the Senate con- tained no effective restrictions upon the company. J want to say just here, before it escapes me, as explanatory of the brief remarks I first made upon this question, that • I did not mean to imply that the telephone charter of two years ago had passed the Senate in an irregular or improper way. What I purposed to indicate by the state- ment that few members knew the scope of the bill w^as the fact that it is easy to get a matter, even of that magnitude, through the General Assembly without notice to the parties chiefly affected and without the members themselves knowing what they are voting for. The bill passed through without full knowledge of the members of the Senate as to its provisions, just as I have stated, but in no improper way. Now as to the facts: The bill, as originally passed, had none of the safeguards that were subsequently inserted. It was only after the purposes of the bill had been discovered and the magnitude of the whole thing exploited that those of us who were opposed to the bill had inserted these exactions and restrictions. It is true the com- pany came forward and accepted them; but as the bill originally passed it embodied no efficient restrictions. Mr. Chairman, I would have it distinctly understood that I am in no sense or degree inimical to any telephone company. We have two in Lynchbui^, and I would do nothing to retard, but everything that I reasonably may to help them. I think it would be exceedingly unfortunate, indeed a grievous blunder, for the authorities of any municipality to make hard or unfair exactions in dealing with telephone or other commercial enterprises. Cities would better concede much than deprive them- selves of the advantages supplied by such companies. At the same time I cannot bring myself to believe that cities ought to be denied the right to arrange the terms upon which such corporations shall enter their precincts, occupy their public streets and transact business with their citizens. Mr. Thorn: Mr. Chairman, I will offer this further amendment and ask the gen- tleman from Hanover (Mr, Carter) to accept it. It is to go at the end of the para- graph: Nothing contained in this article shall be construed to deprive the cities or to^^Tis of the power of reasonable regulation and control of the manner of use of the streets and highways in the same. Mr. Barbour: Mr. Chairman, I hope these amendments will be voted down. The amendment offered by the gentleman from Norfolk (Mr. Thorn) amounts to absolutely nothing. We are undertaking to grant certain rights to the cities in this provision, and he adds onto it a proviso that nothing herein contained shall be construed as de- priving cities of certain rights which they have not. Mr. Thorn: I quite agi'ee wit the gentleman's proposition that the amendment I have asked to be added adds nothing in law to the effect of the clause as previously drawn, but there exists in the minds of some gentlemen, in the Convention, an idea that such a safeguard as that is necessary, and in order to make it entirely clear I have suggested that amendment The Committee on Revision, when they come to IJEBATES or THE CONSTITUTIONAL CONVENTION OE VIRGINIA. consider the matter, can consider whether that language is necessary. I agree with the gentleman that it is not necessary; that it is involved in it already. Mr. Barbour: Mr. Chairman, I hope the members of the committee will not be misled by the very ingenious arguments made here in support of this amendment. The provision reported by the committee is nothing more than what is right and just to the cities, and to the towns of the State as well as the cities. There is no injustice in it attempted to be inflicted upon the counties as such. This right of the cities to control these public utilities is a very important right to the cities, and one which should be maintained to them. Now, what will be the effect of this proposition if you add the word "local" before "telephone"? You might as well strike out the word "telephone" then. All that a telephone company would have to do to get around the construction as put upon it by the gentleman from Hanover would be for them to run their line out a half mile into the county of Henrico, and then this provision would absolutely amount to nothing. He says this should only apply to telephone lines running entirely within the limits of the city. I say it is right and just and proper, in order that the city may maintain its own dignity, and may have the liberty and the right of contract, that they should have the right to say to these telephone companies, "You shall not come in here unless you come in on my terms." There is absolutely no danger of any city in the Commonwealth attempting arbitrarily to cut itself off from communication with the balance of the Commonwealth. You may rely upon it that whenever a city does prohibit any of these companies from coming into it, it has a good reason for it, because they will not deprive themselves of a great benefit of this kind unless there is sound reason at the back of it. It is a matter that properly belongs to each locality itself. Mr. R. Walton Moore: You are a member of the committee. May I ask why the committee limited the provision, so far as the railway companies are concerned, to street railways, and did not extend it to other railroad companies? Mr. Barbour: Because we did not want to deprive the State of its right to run a railroad from one point in the State to another. Mr. R. Walton Moore: I will ask my friend if that is not a recognition of the principle for which the gentleman from Hanover (Mr. Carter) is contending? Mr. Barbour: No, sir. It is for the reason v/hich has been brought out by the gentleman from Augusta (Mr. Braxton), and for the additional reason which was brought out by the gentleman from Lynchburg (Mr. Glass), that to make a railroad company go around an entire city would work a great hardship on it. That was the reason assigned by the gentleman from Augusta. The reason assign'^d by the gentle- man from Lynchburg was that a telephone company uses every street and alley in a city to render service, whereas a railroad company only has one route through a city. Mr. R. V/alton Moore: I submit to my friend that cities have been very much more injured by the use of the streets by steam railroad companies than by telephone companies. Mr. Barbour: Yes, sir. Mr. R. Walton Moore: And the committee seems to have taken this as a funda- mental distinction, that it will tie the hands of the Legislature so far as merely local improvements are concerned. It reserves to the Legislature its power so far as State improvements are concerned. A long distance telephone company, or a general telephone company, involves the State development, and involves a provision of State facilities. Is not" the contention of the gentleman from Hanover well founded that you should limit this section by making it apply to local telephone 'Companies? Mr. Barham: I think not, sir. The street railways is not confined to operating strictly within the limits of the city. It may run its lines out into the country beyond the city limits, but still if it is in ts nature a street railway, a strictly local concern, then it comes within the limitation here. Now, I will be glad to have the gentleman propose his next question. DEBATES OE THE COXSTITUTIOXAL COXTEXTIOX OE VIEGIXIA. 1973 Mr. R. Walton Moore: I was about to ask my friend from Ciilpeper if lie does not think this would be a fair disposition of the matter — and I wish to say to him that I have no interest in the world in it except to fairly dispose of the service vi^ithout working any injustice in any respect. Would not the matter be better disposed of by adopting the amendment of the gentleman from Hanover^ and then adding this at the end of the section: "And as to a telephone company, not local, the corporate au- thorities shall not be deprived of the power to control and regulate the use of streets of the corporation by such company or of the power to fix a minimum rate for the use thereof." I understand that meets with the approval of my friend from Lynch- burg (Mr. Glass). Mr. Meredith: I would suggest that it should be such language as to prevent the long distance telephone companies from being included in local service. They do not confine themselves, like a telegraph company, to coming into a city, but when they get there they spread their nets all over it, just like a local telephone company. Mr. Ingram: Mr. Chairman, I desire to state to the committee, with permission of the gentleman from Culpeper (Mr. Barbour), I hope this committee will adhere to the provisions of its report, as reported unanimously by the Committee on Cities and Towns. I take emphatic issue with the gentleman from Norfolk, with the profoundest respect for his legal ability and his acumen of thought and mind, when he attempts to state to this honorable body that there is no difference in principle between the rights of a municipal corporation or a town over its streets, and the rights of a county gov- ernment over the county roads. As a matter of fact, the roads are open to the public to walk over -and drive over, and they may go from county to county. That is also true of a city, so far as the streets are concerned. To that extent the gentleman from Norfolk is correct, but to that extent only. As was very pertinently asked the gen- tleman by the distinguished representative from King William (Mr. Gregory), he knows, and you know, that the liability is upon these municipalities for the condition of their streets to have their treasuries mulcted by suits for damages because their streets are taken up in such a way as to endanger the life of the traveling public, the liability that they shall keep those streets in good repair. This burden, which they have accepted as a part or a subordinate branch of the government of the State, does not rest upon the counties of the Commonwealth. The cities of the Commonwealth, for all time, have been held to exercise the right of control over their streets and allej^s. This is a very important, right to the cities of the Commonwealth, and it is one that the cities will exercise, not onh^ for their own benefit, and for the benefit of the citizens wl^o live therein, but they can be safely counted upon to exercise it for the benefit of all the people of the Commonwealth, and there is no danger that by leaving this local self-government in the cities that the rights of the public will be in the slightest degree affected. I had the pleasure of hearing this argument, which took place before a commit- tee of the Legislature, and the cities of the Commonwealth came here and saw that a bill was not enacted which would have taken av/ay from the cities of the Common- wealth this control that they had had over their streets, ceded to them by the Legis- lature for a period of over twenty years. Mr. Wysor: I did not understand the gentlema^n to mean that it would take away the police power of the cities over their streets, but it means to prevent the cities taking away the power of eminent domain on the part of the State. Mr. Ingram: Yes; but I say, w^ith the greatest respect to the gentleman from Pulaski, that the right ought to be left to the cities of saying what telephone corpo- rations should come into their midst, and upon what terms, and you are perfectly safe in leaving that power in the hands of the local corporate town or city authority, where it justly and properly belongs. I hope this committee will sustain the report of the committee and vote down all these amendments. I fear the result of the passage of any of them. 1974 DEBATES OE THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Mr. Braxton: Mr. Chairman, I had not intended to say anything on this sub- ject, but it seems to me it is one of such importance that I ought to submit to the consideration of the committee some arguments which have occurred to me and which I have not yet heard advanced. It seems to me, Mr. Chairman and gentlemen of the committee, it is a funda- mental principle that ought to be observed that the right of municipalities to dispose of their municipal franchises should not be taken away from them. Gentlemen have talked about this depriving the State of the right of eminent domain. I beg to call the attention of the committee to the fact that the right of eminent domain is practi- cally not involved in this question. Under the right of eminent domain property is taken for public use and compensation is paid for it. Under the authority which, by the proposed amendments, would be conferred upon the Legislature, the right to take municipal franchises could be conferred upon these companies without their paying a cent for it, and they could be permitted to pervade every street and alley of every city and town in the Commonwealth, and appropriate to themselves franchises possibly worth hundreds of thousands of dollars. Would they do this under the right of eminent domain? Not at all. They would do it under a free and absolute gift to them of what belongs to the public without their paying one cent of compensation for it. Do these companies condemn the streets? Do they pay the local abutting land owners anything for the additional servitude, as they have to do when they go along the county roads, or settle with them? Do they pay the city or the town anything for the franchises they take? Not a single solitary cent. If this amendment means anything, it means the Legislature should be authorized to permit them without say- ing, "By your leave," to any one, to go there and take these valuable franchises, impose this additional servitude upon the public highway, and pay not a cent of com- pensation to individuals or to the public therefor. I take it, sir, it is a proposition that cannot be refuted that when a telephone company undertakes to erect its poles upon the public highways in the counties they must either pay or satisfy the abutting land owners for the additional servitude they place upon it; but no such thing is done in the cities or towns. Mr. Thorn: Does not the gentleman know that it has been decided in the Court of Appeals of Virginia that the putting up of a pole in the street is additional servi- tude, and an adjoining property owner has a right to demand payment for it? Mr. Meredith: Has it not been held that the erection of poles and the running of electric cars is not a burden on them? Mr. Thom: That was decided in a case in which I was engaged at the last term of the Court of Appeals. Mr. Braxton: The gentleman seems to be certain of his position, but I think he is mistaken. I think no such right exists in the cities, and I do not know of any case where abutting property holders have ever gotten any compensation for it. I call the attention of the committee to the fact that this does not interfere in any way with the free and uncontrolled right of every citizen of the Commonwealth to pass over every street and alley of any city in its midst. It is not intended to restrict that right, so far as the Legislature controls it. But, gentlemen of the committee, what is proposed here is not that these cor- porations should have the same right that individuals and the general public have in the highways, but to bestow upon them a right which in its nature is conclusive and monopolistic, allowing them to do in the streets what no man other than them- selves is permitted to do, allowing them to dig up the streets and lay their sub- ways, or fill the streets with a forest of poles more or less dangerous to the commu- nity. That is the thing which is granted to them. Mr. Thom: Do I understand the gentleman to mean by his argument that the DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGINIA. 1975 suggestion is to give the power to the companies to fill the streets with a forest of poles, when the articles, as suggested, absolutely puts that within the control of the cities? Does he not understand that? Mr. Braxton: I understand that, and I think the gentleman did not catch my remark. What I said was directed to the argument which I undestood the gentle- man to advance, that the State and every citizen of the State had rights in the public highways, which rights the effect of this proposition was to infringe upon and re- strict; and I wish to call attention to the fact that the report of this committee, as it now stands, does not infringe upon any such rights, but undertakes to restrict the right of the Legislature to grant to a corporation, other rights in addition to those that an individual citizen has, those rights which involve valuable franchises of the city, Yvhich ought to be paid for, and which, under this amendment, you would take from the cities the right to charge for, things worth hundreds and hundreds of thousands of dollars. If you say merely that the right of police control shall be retained to the cities, you take from them absolutely the right to charge rental for the use of their streets, the right to charge anything whatsoever for the franchise, for which possibly they could get hundreds of thousands of dollars. You take from them the right to fix maximum rates to protect their citizens against undue and unreasonable encroach- ments by these telephone companies. I call attention to the fact that the right to use the public, highways as the ordi- nary citizen uses it is not conclusive. Practically an indefinite number of people can use it; but to use it as the telephone company uses it is to that extent exclusive and monopolistic. There are only a certain number of companies which can use the streets in that way. Practically indefinite millions of people can walk and drive along the streets. So just to the extent to which you grant these franchises for the use of the streets to one company, you are taking it away from others; and if by chance they should do as they inevitably do, fall into the hands of one company or under one control, that community is held by the throat by a company which has taken up all the available franchises of your streets, thereby excluding the possi- bility of competition, exercising what is in its nature an unavoidable monopoly, and doing as the Bell Telephone Company has ever done, flouting all authority and defy- ing all public opinion. I say, gentlemen of the committee, we would be committing the greatest mistake if we take from the cities the right to control these things, the right to sell their own franchises, or make the best terms for them, the right to say who shall use these exclusive rights of their streets, which are limited in number, and under what cir- cumstances and conditions, and what they shall pay for them, and what sort of service they shall render to the citizens in return. The sole exception that I know to the general rule that the cities and towns should have control of these matters, not of the use by citizens of the streets to pass along, but of the peculiar use that the general public does not have, is in the case of steam railroads running through a city. Mr. Wysor: Suppose there is a long distance line running into the city of Staun- ton, and another long distance line wants to parallel it, what is to hinder the city of Staunton from making a combination with the line that is already in there, and prevent the other line from entering? Mr. Braxton: Nothing in the world, except that the city of Staunton is sup- posed to represent the interests of the citizens of Staunton, and the telephone com- pany represents its own personal interests. If there is to be any monopoly of those streets, I think it should be in the city of Staunton, and not in the long distance telephone company. So far as a public railroad is concerned. I think the conditions are different. In 1976 DEBATES OP THE CONSTITUTIONAL CONVENTION OF VIRGINIA. the first place, as pointed out by the distinguished gentleman from Lynchburg (Mr. Glass), a railroad passing through a town has one single line, that does not start out and interlace every street and alley. It goes through a city by one line. It is not exclusive and monopolistic in its character. In addition to that, if a railroad is not allowed to pass through the city, frequently the contour of the country is such that it would practically stop the railroad, and it could not get by. But you gentlemen must know that the expense and the difficulty of establishing a telephone line is not to be compared with the expense and difficulty of laying a railroad track. You can run a telephone line over hills and down valleys. You can climb mountains and go anywhere that the foot of man can carry you. There is absolutely no reason why a telephone company, with an expense that you could hardly calculate, should not go around a town as well as through it. With a railroad it is different. Sometimes the route through the town is the only available route for the road. That is never true of a telephone company. As to the difficulties that my friend from Norfolk (Mr. Thom) has su^ested, I submit they are purely imaginary and fantastic. They are based upon the idea that the various communities, actuated by motives which made the man cut oft his nose to spite his face, would build a Chinese wall around themselves and voluntarily cut themselves off from communication with the outside world, in order to spite some telephone company. Such a thing, I think, is absolutely inconceivable. I say if it did exist, the remedy is simply for the telephone company to deflect its line and go around the town. No such thing would ever be done, unless the telephone company was so unreasonable in its demands that the city would be justified in compelling it to do so. If the telephone comes within any ordinary reason, it is to the interest of the tov/n to let the telephone company come in; but whenever you say to the tele- phone company, "We will arm you with privileges" which the Bell Telephone Com- pany recently thought it had under an act of Congress to go where it chose and when it chose, and say to the authorities, "Whether I go on the right side of the street or the left side of the street, I will drive out other companies. I v/ill use your street exclusively, and I will not pay you a cent for the privilege." Whenever you give them that power, you have put into their hands a monopoly the like of which does not exist in this country; and I trust it may be the pleasure of the committee, by adopting this provision as reported, not to make any new departure, but, as pointed out by the distinguished gentleman from Lynchburg, sim-ply to adhere to what has been the statute lav/ of this State for twenty or thirty years, that the Legislature shall grant to no telephone company the right to go through any town and use its streets and alleys without the consent of the local authorities of the town. I think you will find that same principle is em- bodied in almost every Constitution in the United States that has been adopted in the last twenty or twenty-five years. Mr. O'Flaherty: Would you be in favor of any of the cities of the Common- wealth operating a telephone monopoly? Mr. Braxton: If there is to be a telephone monopoly, I would rather for it to be operated by the State in the interest of the general public than operated by a close corporation in its own interest. Mr. O'Flaherty: On the other hand, do you want the city to have the exclusive right to control telephones? Would you be willing for that? Mr. Braxton: I would be willing for the city to have, and I think the cities ought to have, the exclusive control over its monopoly franchise, and if you do not give t>^em that exclusive control, I say you have done them and the general public a very great injury. Those things are of great value, and if you take from them the power to grant them or sell them, you are simply giving to private corporations public facilities for nothing, and making them a present, as it were, of that much of the public interest. DEilATES OF THE COJS' bi'ITUTIONAL COXVEXTION OF VIRGINIA. 1977 Mr. O'Flaherty: I wish to call the attention of the gentleman to the fact that in the next section^ which is a kindred section, it is provided that all franchises may belong to the city at the end of the franchises, and all the ijroperty that be- longs to the city may be taken at a valuation to be fixed, by a method provided for, so that a telephone companj^ with all of its properties, might be taken over by the city, and the city then might not give its consent to other telephone companies com- ing in there. In that way they would have a monopoly, and could fix the rates for other portions of the State. Do you think that ought to be permitted? Mr. Braxton: As I said before, I do not favor monopolies, but if a monopoly is inevitable, it should be ov;ned and controlled by the public, and not by private individuals. I will say to the gentleman that even if what he suggests should be- come true, that city could not in any w^ay monopolize anything except the telephone facilities of that particular city. All that would have to be done by any other tele- phone company would be simply to deflect its route and go around the city, which it could do in the case of even a big city like Richmond for $250 or $500. But if the gentleman v/ill allow me, the suggestion he makes is purely chimerical. It would never occur. Mr. O'Flaherty: The gentleman is taking an alternative that cannot occrto*. He says that if there should be a monopoly as between individuals and the city, he would prefer the city. I agree with him on that proposition, but I do not see how a monopoly could ever occur where the consent is to be left to the Legislature. Mr. Braxton: Suppose the Legislature should enact a law, as I understand it came very near doing a year or two ago, saying that all long distance telephone companies should have the right to enter upon and use any of the streets and alleys of any incorporated town of the State, subject only to the police regulations of that town. Then they could go there, if Lhey chose, and, in defiance of the city au- thorities, exclude and break down a company which is giving the city satisfactory service, and then raise their rates three or four times on the people, as they have frequently done. I think the committee should recognize the point made by the gentleman from Culpeper (Mr. Barbour) that the only difference between the long distance company and a strictly local company, so far as I have heard it defined here, is that the local company could be limited entirely to a city, and if it ran a mile out in the county it would become a long distance company and could snap Its fingers in the face of the municipality. Mr. Hunton: Mr. Chairman, I desire briefly to express my views upon the pending amendment, and without reference to the language of the amendment I shall state them briefly. My view is that the cities and towns of the Commonvrealth of . Virginia should have full and absolute power to control and regulate the me^nner in which these companies should enter the towns and occupy their streets, but that they should not have the power to prohibit an enterprise of that sort from entering their town upon reasonable terms and regulations. The State of Virginia and its citizens at large are interested in this matter. We know that the State to-day taxes telephone companies $1.50 a telephone, and that it is one of the subjects of large revenue to the State. We know that telephones are also the subject of taxation by the munici- palities. We know they are a means of communication which bring distant parts of the State together, and put the parts of the State in communication with the out- side world. It does not seem to me it is right to take from the Legislature of Virginia the power to name the term^s upon which these now essentials of the civilization of this century should occupy the territory of the State. I want to see the right of every city absolutel3^ recognized to control the manner and the method of their occupa- tion, and not. as my friend from Staunton (Mr. Braxton) suggests, that they may 125 — Cpnst. Deb. 1978 DEBATES OE THE CONSTITUTIONAL CONVENTION OE VIRGINIA. have as many telephones as they choose on as many streets of any city as they may desire. Such is far from my desire in supporting the amendment that has been offered. I want to leave to every city the right to compel these companies to put their wires under ground. I want to leave to every city of tbe Commonwealth the right to compel them to use such streets as they may indicate. I want to leave to the communities of the State absolute control in the method of their entry, but I do wish to ask the Legislature to give to these essentials of progress of this day and generation the right under certain conditions to enter a town even against the will of that town. I will suppose a case, and it is not a violent one, with such a benefit to the people of the Commonwealth. I will take my own village as an illustration, remote as it is from the Capital of Virginia, further from it in point of time and con- venience than the city of New York. Give to it the benefit of long-distance com- munication with all the people of the city of Richmond, and it would be to that town a boon the value of which cannot be appreciated until it has been had and lost. I say it is an infinite benefit to the citizens of the State, and to the towns and cities of the State, not only in the greater advantage of communication, but in tax pro- ducing revenues,; and I would take from the city the power to prohibit the entry of these corporations into their midst, but would give them the fullest power of regu- lation and control as to the method in which they should enter. Mr. Meredith: Is there any amendment pending of that nature? Mr. Hunton: I think so. I think the amendment which gives to the cities control, confines this measure to local telephone companies, but retains to them the absolute power to control their streets, because when you take it up and limit it to local companies that right of power remains in the Legislature of the State. That is the reason it amounts to nothing, because it is the law without its having been put there. But, in order to make it perfectly clear, definite and certain that that power of control is retained to the cities, it is put in express words in the terms of the amendment proposed. I do not object to its being given specifically in this article, but I believe the Legislature is a sufRcient guarantee of its control. Friends have suggested that a bill of this sort might go through the Legislature without notice to the cities interested. Why, the same would be true of a steam railway, which is specially exempt, and which is much more injurious to a city than is a telephone company. Suppose, gentlemen of the committee, there was a city which chose of its own volition to hold up this great improvement, this great development, and to say in an obstinate, stubborn way it would not permit the telephone line to enter. The Legislature ought to have the power to say that community shall per- mit the company to enter upon reasonable and proper terms and regulations, such as may be prescribed by law. I do not agree at all with the statement of the law as laid down by my friend from Augusta (Mr. Braxton) that there is no additional compensation paid for these matters. The Court of Appeals has decided that tele- graph poles are an additional burden, and that the owners are entitled to compen- sation therefor. I see no reason, and I believe there is none, why the same law would not apply to telephone poles in the streets of the cities as well as to tele- graph poles in the roads of the country. I believe that is the law. Nor can I agree with the gentleman from Culpeper (Mr. Barbour), or the gentleman from Augusta, that there is anything that can differentiate these matters from steam railways. The identical principle that leads them to exempt steam railways, which are muchi more injurious to the communities, much more inconvenient and much more dan- gerous, would apply to the telephone or the telegraph company entering the city with the same or greater force than to the steam railway company. Mr. Barbour: A trolley line, for instance, has to pay additional damages for using a public highway, does it not? DEBATES or THE COXSTITUTIOXAL COXYEXTIOX OF YIRGIXIA. 19?9 Ivlr. Hunton: Yes, sir. Mr. Barbour: Does not the same distinction apply to telephones? Mr. Hunton: It does not, in my judgment, and I will tell you why. The streets are condemned for the purpose of travel, and anything that is in that line is in subservience to that general purpose for which they were condemned. A telephone company is not a method of travel, but is a new service, and there is the same dis- tinction in the city between the telephones and the railway that there is in the country between the travelers over the road and the telephone poles that stand thereon. Mr. Barbour: Are not roads also condemned for travel? Mr. Hunton: Unquestionably they are. Mr. Barbour: What is the distinction between the road and the street? Mr. HuJLton: Not a bit. I am trying to show they are identically one and the same, and that, while the road is condemned for travel, the telegraph pole is an additional servitude upon it. The streets are condemned for travel, and while the street railroad is not an additional servitude, a telephone would be, because it is not for the purpose of travel. Mr. Barbour: If you condemn a road outside of a city for tramway purposes, you have to pay additional damages because it is an additional ser^'itude, whereas if you cross the city line and come into the city and condemn the streets, you do not. Mr. Hunton: That has nothing to do with whether a telephone pole is an addi- tional servitude or not. and that is the point I am discussing. Mr. Summers: I should like to ask the gentleman if there have not been two decisions in Virginia on the (luestion as to whether the telegraph pole is an addi- tional servitude. Mr. Hunton: The two last have held it as an additional servitude. Until a new court comes it is as stable and as well fixed as any principle in law is fixed by judicial decision. My friend from Staunton (Mr. Braxton) undertakes to say that jou have no right to charge. That, I think, is an unfair criticism of this proposition. The State of Virginia to-day, as I have stated, taxes telephone companies $1.50 for every tele- phone. The cities have the same right that belongs to the State to tax telephones, and every city uncontrolled by this article has the right to tax each and every tele- phone put in by a company for the purpose of transmitting messages by telephone. Nor is there anything in this article that would prevent a city offering to let these lines come upon the terms of competition; but I do not think it is right to the interests of the State and of the Commonwealth. We can suppose a case where there is a city the entry into which is asked in order to establish such a system, and that there is a local company. That company may be strong enough to control the city and its council and to stand like a stone wall and say, "The State shall not liave this improvement because of the local interests of that company." I do not believe that is right. I believe the interests of the whole State should prevail, and that the protection of that community should be delegated to Its representatives in the Legislature who voice their sentiments, and If it is a right and proper ob- jection, that objection will be hearkened to and represented in the act that is passed, rather than let it stand as a stone wall to prevent benefits to the people of the residue of the State. In conclusion, this matter is of importance to the State not only for the pur- poses of progress and development, but because of the capital Invested and the taxes it yields not only to the State of Virginia, but to every municipality in which it is located. You have protected everj' community of the State when you give to every city 1980 DElBATES of the constitutional convention OE VIRGINIA. and town the right to regulate and control the method of entry, but it would be unjust, improper and unfair to permit any city to say that because of its local desires or wishes, whether righi or wrong, it will prevent such an improvement to the people if the whole Commonwealth, who are entitled to the benefits of a system such as this. I trust it w411 be the pleasure of the committee to support the amendment that has been offered. Mr. Braxton: I understood the gentleman to say in his closing remarks that the provision as it is now offered by the committee might prevent subjects of taxa- tion being established for the cities as well as the counties. I should like to ask if, under the proposed authority, that would be given by the amendment offered by the gentleman from Norfolk (Mr. Thom) the Legislature would permif these telephone companies to go into a city without any city franchise, what would there be for the city to tax. If there were no franchises to tax^ what would there be as a. subject of city taxation except the naked poles and wires strung on them? Mr. Hunton: And that would be the thing we would have there to tax. Just as the State imposes a tax of $1.50 a telephone, the city or town could impose a similar tax, without any limitation as to the amount in the Constitution. Mr. Braxton: If there is no franchise to tax, the only thing they could tax would be the value of the property on an acZ valorem valuation of the wood in the pole or the iron and copper in the wire; so that the franchise might be worth hun- dreds of thousands of dollars to the telephone company, and the city could not levy a tax of a cent on it because it was allowed to come there without any franchise. Mr. Hunton: Does my friend mean to state to this body, as a lawyer, that if a telephone company were permitted to enter the city of Staunton, with absolute silence upoD the subject of taxation, the city of Staunton could not impose, as the SLal^ does to-day^ a tax of $1.50 a telephone upon that company? Mr. Braxton: I will state to the gentleman, then, that in my opinion as a lawyer it tne teiephone company were permitted to enter the town and do business without any municipal franchise, the city without special legislative authority would have no light to charge them anything in the world except an ad valorem tax on the value of iheir Ime and their poles, as so much property, and not any franchise tax. That is my judgment, sir. I may be wrong. I state it subject to correction. But you asked for my opinion. Mr. Wysor: Why could not the city tax their business? Mr. Braxton: "I say they have no right to tax their business without special legislative authority; but if they had no franchise there to tax, there w^ould be nothing there to base it upon. While I am on my feet I wish to say one w^ord more, as I am very much im- pressed with the importance of this matter. The law as stated by the report of the- committee has practically been the law that has been kept upon, and been upon, our statute books for years. As far as I know, there has never been but one attempt to do the thing which the amendment of the gentleman from Norfolk, if adopted, would make it possible to do, and when that attempt was made two years ago the State got up in arms against it. The State was on fire from one end to the other with protests against the exercise by the Legislature of any such authority as is thought to be given to the Legislature by this amendment. What we want dow is simply to say: "You shall not do the thing which you tried to do once, and which met with such a unanimous protest from the people from one end of the State to the others but you must continue to adhere to a policy which you yourselves have laid down in your statute, and which has been the law for twenty or thirty years, with which the people of this Commonwealth are satisfied, and do not want changed." Mr. Hunton: I wish to say to the gentleman from Staunton that I am informed DEBATES OP THE COXSTITUTIOXAL CONVEXTIOX OF YIKGIXIA. 1981 the city of Richmond to-day levies a license tax upon tiie telephones operating in the city by virtue of the general provisions in its cnarter, which authorizes it to levy a license tax upon the various occupations, whicn provision is in tne charter of almost every city, I presume, of the Commonwealth of Virginia. Meredith: I did not intend to mislead the gentleman into saying we ■charge a license in that way, as we do not. We have a franchise, granting them the right to come in under our charter, and we charge them so much per mile oi wire. Mr. Thorn: I shall not detain the committee long, but I desire to present a few facts in opposition to some that have been placed before it. The suggesdon has been made that what is attempted here has been the law of this State for twenty years. I deny that -proposition. What is attempted here is to take from the Legis- lature the power of permitting such a company as we are now discussing from entering the streets of the cities of the State. That has not been the law for twenty j^ears, and it has never been the law; but the purpose here is to make a change in the law, and to prevent the Legislature from doing what it now has a right to do. I ask this committee not to lose sight of the controversy before it. The controversy before it is not as between the telephone companies on the one side and the cities on the other, but the controversy before it is as to whether or not the State shall still continue to exercise these powers in behalf of its own citizens, or shall sur- render those powers to some other municipalities of the State. That controversy is emphasized by an answer made by the gentleman from Staunton, that the city of Staunton represented the interests of its citizens. Are the interests of the city of Staunton the only interests involved there? Have not the citizens of every other part of this State an interest in this question as well as the citizens of the cities? Have not the citizens of the country districts the same rights involved here as those of the cities? Are not the interests of one city involved in the legislation of another city, and ought those interests not confined to the citizens of the city to be handed over to the common councils of the cities, or should they be in the keeping and within the protection of the Legislature of the State? Now, that is the controversy. The controversy on one side is to take my rights and 3'our rights as citizens of Virginia, and have them decided by the Common Council of the city of Staunton instead of by the Legislature of our State. It is to take your rights and have them decided by the city of Norfolk instead of by the Legislature of your State. If the cities are the guardians of the rights of their own citizens, then likewise the State is the guardian of the interests of its citizens. There is no right, and no justice, in putting my rights as an inhabitant of the city of Staunton or of the city of Richmond into the common councils of those cities. I should have the right to go to the Legislature of my State. The proposi- tion is to take from the cities the right to require pay for the use of the streets. That matter is likewise in the discretion of the Legislature. In the grant by the legislature of the right to a long distance telephone company to enter a cit5" it could, if it thought proper, impose the condition that that right should be paid for to the city, and if it is withheld — and we know from the course of legislation it T^•ill be withheld for some overwhelming reason — there is no danger to the locality. The only thing is to prevent a change in the law, and to take from the Legislature the right to determine questions in which eyevy citizen of the State is interested, and to transfer that power to the common councils of cities. Mr. Brooke: Mr. Chairman, I propose to say just a very few words on this sub- ject, more by way of letting the Committee of the Whole know what is the situation after all this argument of the committee that has returned this report, of which 1 happen to be chairman. I may say. sir, that nothing that has occurred has changed the views of the Committee on the Organization and Government of Cities and Towna upon this subject. 1982 DEBATES OF THE CONSTITUTIOHAL CONVENTION OE VIRGINIA. In the beginning, when the amendment of the gentleman from Hanover (Mr. Carter) was suggested upon the spur of the moment I said that p'^rsonally I would be willing to accept it, I would not be willing to accept it now, and there are just one or two things I wish to say before closing this debate. It does seem to me that in this argument the gentlemen on the other side have- drifted av/ay from their moorings. It does seem to me that in this argument a great deal has been injected that really throws no light upon the subject. The gentleman from Norfolk (Mr. Thorn) seems to feel that he has settled the Question when he calls attention to the fact that the citizens of other parts of the State have an interest in this question. Does he know of any question which is sub- mitted in the charters to the control of cities, in which, more or less, the citizens of other parts of the State do not have an interest? Does he not recognize the fact that it is one of the peculiarities of the existence of cities that they have a dual character- istic, that in one sense they are the agencies for carrying out the policies of the State, and while in another sense they are spoken of as being local governments, yet even in. that sense, though to a less degree, they are the agencies of the State itself. Now, where is the line drawn in questions of this sort, when we come to deter- mine the question as to how far the State at large shall commit to the city govern- ment the administration of certain of the rights or certain of the functions of gov- ernment in the proper administration of which every citizen of the State is inter- ested? When you come to consider that question, upon what lines is the demarca- tion made? Why, largely upon these lines. As to those matters in which the people of the locality are infinitely more largely interested than the people of the State at large, it has been the policy to commit them to the management of the local govern- ment, without at all denying that even in those the citizens of other portions of the State have an interest in their proper management. As to those other functions of government in which there is no large difference in the degree of interest felt in them by the people of the locality and by the people of the State at large, where the interest is general, which cannot be said to be in any sense local, then it is that the policy has been to withhold from the municipal govern- ment the absolute control of those matters. Now, the gentleman from Norfolk seems to think that the difference between this question of long distance telephones and the other public utilities, the use by which of the streets is to be absolutely controlled by the council, is that the one is local and the other is not local. He says that, as a citizen of the State of Virginia, he has a right to the streets of the city of Norfolk. I say that there is no difference between that principle and this; that as a citizen of the State of Virginia I have a right to come to the Legislature and ask it to incorporate a local telephone company or a cold storage company, to occupy the streets of Norfolk, in order that I may invest my money in it. I have just as much right as a citizen of Virginia to invest my money in utility companies operating in the streets of Norfolk as I have as a citizen to walk the streets of Norfolk. There is no distinction, in fact, between the two classes of cases. Now, then, to come back to the line of demarcation, I suggested in the beginning in this question of long distance or local telephones, it makes no difference how stands the question of interest between the locality and the people at large. Where is the greatest interest? Is it local, among the people of the locality, or is it equally among the people of the State at large? Why, the very question answers itself. It is the burden of the telephone system of poles and wires in the streets of a city that makes the interest of the locality so much greater than the interest of the people at large that it becomes one of those functions of government that ought to be left entirely to the control of the locality, just the same as leaving to the control of the locality, through the councils, the question of the health of a State. Everybody in the State is interested in the good health of every community in the State, but it is so much DEBATES OF THE COXSTITUTIOXAl. COXYEXTIOX OF YIEGIXIA. 1983 more in the interest of the people of the particular locality that it has become a set- tled doctrine that to municipal governments is given the povrer to deal locally vvith the question of local health. 2vlr. Carter: Does the Constitution propose to give to the cities, in regulating the health of the cities^ the power to pass quarantine laws, and take from the Legislature that power? Mr, Brooke: The Constitution does not propose anything about that, as far as I know. I have made no such proposition. I should leave that to the Legislature. Mr. Carter: And why not leave this to the Legislature? Mr. Brooke: It seems to me that this one is a much more fundamental question than that. Here we are coming to the question as to whether people of the State at large, who never put their foot in the city of Norfolk or in the city of Richmond, have a right, because of their right to use these commercial agencies, to say the streets of those cities shall be used, or rather, to say that the councils of those cities shall not determine the question whether the streets of those cities shall be used, in such a way as to impose an immense burden upon the people of the locality, in order to save the casual right that the man in other parts of the State has. I leave the question, with you. Mr. Flood: The proposition here is not to take from the cities the right to regu- late the use of their streets, but to take from the cities the right to deny to the com- pany the right to come in at all. Mr. Brooke: Yes, sir; the gentleman is right. The strongest argument in favor of the position taken by the committee on that subject is that only by giving this absolute right to the councils can you properly regulate these companies. Put them on terms whether they shall come in or not, and then you can regulate them. Let them come in, and you will be left only to put reasonable terms on them, and they do what they choose, and the people of the community are left to their rights. Mr. Hunton: Mr. Chairman, as to the power of the city to tax, which was ques- tioned by my friend from Augusta (Mr. Braxton), I desire to read part of Section 1042 and Section 1043 of the Code: Sec. 1042. In addition to the State tax on any license, the council of a city or town may, when anything for which a license is so required is to be done within the city or town, impose a tax for the privilege of doing the same and require a license to be obtained therefor. Sec. 1043 — City and Town Levies. They shall annually cause to be made up and entered on their journal an account of all sums lawfully chargeable on the city or town which ought to be paid within one year, and order a city or town levy of so much, as in their opinion is necessary, to be raised in that way, in addition to what m.ay be received for licenses and from other sources. The levy so ordered may be upon the male persons in the said city or town above the age of sixteen years, and upon any property therein, and on such other subjects as may at the time be assessed with Stat© taxes against per- sons residing therein. It seems to me that under both of those sections the cities and towns of the State would have the right to tax these companies. Mr. Flood: Mr. Chairman, I agree with the gentleman from Norfolk (Mr. Thorn) that this is taking away from the Legislature powers that the Legislature has had for twenty-five years, ought to have, ajid which it has never abttsed. It is simply another one of the provisions of the Constitution we are framing which takes from the Legis- lature power which it has always heretofore exercised, and exercised in the interest of the Commonwealth. As the gentleman from Norfolk says, this is not a provision which has ever before been in the Constitution of Virginia,. It has heretofore been in the statute law. Now it goes from there to the Constitution, and if it goes in the Constitution, it will put the entire State, so far as the development of its long distance telephone sj'stem is con- 1984 DEBATES OF THE CONSTITUTIOi^AL CONVENTION OE VIRGINIA. eerned, in the power of any one or two or three little towns or cities in the Com- monwealth. Mr. Green: Will the gentleman permit me to ask him on which side he was ranged in the late Richmond fight? Mr. Flood: Yes, sir. I supported the bill chartering the Virginia Telephone and Telegraph Company, as it passed the Senate, with the single exception of the pro- vision prescribing a rate beyond which the company could not charge; in other words, a maximum rate clause. I acted as I did because I believed my course would redound to the best interest of Virginia. That it would give us a large increase of taxable values— estimated at that time at $5,000,000; that it would give employment to a considerable number of our laborers and young men; that it would make an increase demand for telephone poles, and, above all, that it would bring the benefits and comforts of a comprehensive telephone service to the people of Virginia, and especially to the country districts. It was the only telephone company that had a line in my county. I knew its value and wanted to give other counties the benefits my people were enjoying and at the same time extend the benefits those people were then receiving. That bill proposed to ex- tend a telephone service to every magisterial district of this State within the period of two years from its passage. The bill asked for but one single power that every other bill incorporating tele- phone companies did not ask for, and that was the right to appeal from the city and town councils to the corporation or county judge having jurisdiction, if the regula- ^Vn imposed by the councils were unreasonable, or such as to prohibit the company from entering the city or town. This was the point upon which the charter was at- tacked, and the Senate decided to confer this power. I supported the bill alluded to by the gentleman from Danville because I believed It wise to do so, for the reasons I have given. I am satisfied with the course I then followed. The right was then asked by a private interest, though the granting of it would liave benefited the public. Now no private interest is involved, but the rights of the public of the great mass of the people who live in country districts is involved, and I feel it my duty to speak and vote in their interest. This is not the fight of any special telephone company; it is not the fight of two years ago. It is a provision that applies not to existing telephone companies, but to those which will ask for privileges in the future. It is a provision involving a general principle, which, if placed in the Constitution, might cause trouble to city, town and county; a principle which can be used to the detriment of the weak as well as the strong companies; a principle which can be applied to the disadvantage of the owners ©f 'phones in mutual companies, much easier than to the hurt of large corporations. I would not vote for any proposition that would take from the towns and cities of this State any of their rights. I do not believe this amendment will have any such effect. I know it would not. Their rights of this character have always been vested in the General Assembly; they have always been protected. If I did not think the General Assembly would protect "our cities and towns, I would vote for any provision for their protection; but I know there is no such danger. I have been absent from the hall during most of the discussion on this amendment. I have only heard the last two speeches. I do not know, therefore, what range the discussion has taken, but from the length of time I am informed has been consumed I suppose the merits have been fully, discussed and I will not go further into them. I only wish to make clear my reason for supporting the amendment. It does not take from the cities and towns any rights they now have; it leaves the matter where it mow is, and has been for years. I do not believe it is wise to take this safeguard from the statute law and put it in the Constitution. I believe the Legislature should have DEBATES or THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA, 1985 the power to interpose, if ii deems it wise to do so, and prevent a disagreemenL be- tween a city and a State enterprise from depriving the counties and the rest of the cities from the benefit of that enterprise. The Chairman: The question is on the amendment of the gentleman from Han- over (Mr. Carter) as modified by the accepted amendment of the gentleman from Nor- folk (Mr. Thorn) ^ w^hich the Secretary will read. Ihe Secretary then read: Insert after the word "''conduif' the word "local." Insert at the end of the section the following: "Nothing in this article shall be construed to deprive the cities and towns of the power of reasonable regulation and control of the manner of use of the streets and highways in the same.'' The amendment was rejected, there being, on a division, ayes, 26; noes, 45. On motion of Mr. Thom, the committee rose and the President resumed the chair. On motion of Mr. P. Y\'. Campbell, the Convention adjourned until Friday, Janu- ary 24, 1902, at 10 o'clock A. M. FRIDAY, January 24, 1S02. The Convention met at 10 o'clock A. M. Prayer by Rev. W. Asbury Christian. Mr. Barham: Mr. President, when the legislative report VN'as under consideration in the Committee of the Whole I offered an amendment to a section of the Legislative Committee's report to be inserted as an independent section. It was agreed to in Com- mittee of the Y/hole, but was inadvertently left out when we voted on the question in Convention. I hold in my hand a copy of the original amendment, which was amended. This is the amendment as first offered: "That after the adoption of the Constitution no new office shall be created or established by the General Assembly, r^xcept by a vote of not less than two-thirds of the members elected to each house, and it shall be by a re- corded vote in each House." There w^as a substitute offered for that amendment, to this effect: "But no new office shall be created or established by the G-eneral Assembly except by a recorded vote in each House of a majority of the members elected to said House." The Committee of the Whole acted upon that substitute, -^nd it was adopted as an independent section, but it does not appear in the report. I simply wish to call attention to the matter and to have it acted upon. The President: The Chair understands the omission was due to inadvertence on the part of the Committee of the Whole in making their report. The question is on agreeing to the adoption of the amendment. The amendment was agreed to. Mr. Braxton: Mr. President, by instruction of the Committee on Corporations, I beg to present its report and ask that it may lie on the table and be printed. I desire to suggest, in this connection, that an extra number of copies be ordered. I make the suggestion because there are a large number of gentlemen interested in this matter. I think it would be well to have 500 extra copies, and I therefore move that that number of extra copies be printed. The President: The report of the Committee on Corporations will lie on the table and be printed under the rules. The gentleman from Augusta (Mr. Braxton) moves that 500 pxtra copies of the report be printed for the use of the Convention. The motion was agreed to. Mr. Smith: Mr. President, it may not be in order at this time, but I desire to 1986 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. raise a question of personal privilege. It was my intention, Mr. President, at the time that a measure was pending beiore this Convention looking to a permanent appro- priation or provision for the Virginia Military Institute, to have submitted certain reasons which, in my judgment, would have supported that position. Owing to con- ditions which I was unable to control^ it was impossible for me to be present and par- ticipate in that debate. I have reduced my reasons to writing, Mr. President and gentlemen of the Convention^ and the question of privilege which I wish to submit to you this morning is that by your kind indulgence these reasons may be incorporated in the proceedings of this day as those which I would have given at the time the debate was in progress had I been present. The President: If there be no objection, it will be so ordered. The chair hears none. The views of Mr. Smith, as reduced to writing, v^ere as foiiows: VIEGINIA MILITARY INSTITUTE. Mr. Smith: Mr. President, before the vote is taken upon the question of making provision in this new Constitution for a permanent appropriation to the Virginia Mili- tary Institute I rise to speak a few words in behalf of the measure and to show to this Convention some of its claims upon the State of Virginia. Sir, what is it that forms the bulwark of a people's liberties but its soldiery? What strengthens a country's place in the eyes of the world but its ability to protect its citizens at home and abroad, to resist invasion and "to hold its own" by sea and by land? It is its warlike prowess, its children of "the tented field," its "sailor boys," which give name and fame to any land. And now, to bring the matter home, what has made America "the land of the free'^ but that it has ever been "the home of the brave!" As pioneers in the new world, contending with the grim obstacles of unexplored nature and the wilder savages who inhabited these coasts, our forefathers won their way by their invincible warrior spirit; later they achieved their separate independence by the triumphs of the sword, and now, in our own day, a matchless victory has been ours. That small band of Englishmen who landed at Jamestown in 1607 — grown to be many millions — has leaped like Minerva from the brain of Jove with a mighty war- shout and in complete armor, and has become one of the great powers of the world. The United States in the Spanish-American war by its victories told, and its possi- bilities untold, has taken her stand far above and beyond nations which are centuries older and hoary in the struggle for international supremacy. Sir, it is not the poets, the philosophers, the statesmen, the orators or those justly celebrated in the arts and sciences who form a country's highest pride, or who give that country its weight in the family of nations. Sir, it is the army and the nayy of any country which make the ground-work of its greatness. And now, in contemplating the amazing progress of our land, this giant-child of the twentieth century, we must realize that its martial spirit, its soldiery abilities, have made us what we are. And so, at this moment it is well for us to dwell upon these facts and to let them have deep influence upon our vote to-day. The Virginia Military Institute is the ■ecole politechnique of the South, and what that great nursery of soldiers has done for France has this military school done for the State and for the South. This institution was founded in the year 1839 at Lexington, Va. From this date to 1864 there were 577 graduates, and out of this number there were 474 who took an active part in the late War between the States. Of these there were 21 generals, 67 colonels, 58 lieutenant-colonels, 41 majors, 125 captains, 90 lieutenants, and 72 other officers. The Virginia Military Institute was established under an Act of the General As- DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE YIRGIXIA. i9sr sembly of Virginia, passed in March, 1S39; and the first corps of cadeis \vere mustered into the service of the State on the 11th da.y of Xovemberj 1839. Up to that time a company of soldiers had been maintained by the State, at an annual charge of $6,000, to garrison the "V^'estern Arsenal at Lexington, in vrhich were stored 30,000 muskets and a large quantity of military material. In 1S36 J. T. L. Preston, Esq., a citizen of Lexington, for thirty-seven years an honored professor upon the active list, and after- wards emeritus professor in the Institute, conceived the idea of substituting- for the company of soldiers who guarded the arsenal a company of cadets, who, in addition to the duties of an armed guard, should pursue a course of scientific and military studies. This happy conception was consummated by the Act of March, 1839. In May, 1839, the first Board of Visitors met in Lexington. Of this board Colonel Claude Crozet, a graduate of the Polytechnic School of France, a soldier under Xapoleon in the Russian campaign of 1812, and subsequently a professor in the United States Mili- tary Academy at West Point, and at the time a citizen of Virginia, was President. The first act of the new board was to recognize the eminent fitness of General Francis H. Smith, a distinguished graduate of West Point, and at that time professor of mathematics in Hampden-Sidney College, for the position of superintendent. Under wise guidance, in the prosecution of its special ends, the school grew rapidly in popular favor. The Legislature increased the annuity from time to time, and appropriated large amounts to provide new barracks and to equip the institution. In 1861 the school was full to its capacity. An extension of the barracks vras in process of construction to meet the demands of those seeking admission, the privileges of the school having been extended to citizens of other States. In April, 1861, at the call of the State, the Corps of Cadets, under the command of Major — afterwards Lieutenant-General — Jack- son, marched for Richmond. These cadets were employed in instructing and drilling the large number of volunteers assembled for organization and instruction in Camp Lee, near Richmond, but were soon disorganized and scattered by the advancement of cadets to military rank in the different grades of service. In 1862, upon the demand of the military authorities of the Confederate States for the reorganization of the Insti- tute as a training school to supply skilled and educated officers for the armies, the Institute was reopened. During the war cadets were repeatedly called into active ser- vice in the Vallej^ of Virginia and on the lines around Richmond. On the loth of May,, 1864, at New Market, the Corps of Cadets, organized as a battalion of infantry of four companies, and as a platoon of artillery, serving two three-inch rifle guns, lost over fifty killed and wounded cut of an aggregate of two hundred and fifty. On the 11th of June, 1864, the barracks, mess-hall, officers' quarters, the library containing about 10,000 volumes, and all the apparatus and instruments of the various departments of the school, were burned, by order of General David Hunter, commanding the United States army at that time operating in the Valley of Virginia. From providential causes, the quarters of the superintendent escaped destruction, and was the only build- ing left standing upon the grounds. In October, 1865, after the close of the war, the Institute was reopened. The buildings and equipments of the school were rapidly re- stored, and the Institute entered upon an era of unprecedented prosperity. In the organization of this military Institute, one cadet from each senatorial dis- trict in Virginia (numbering thirty-nine) is educated at the expense of the State= Upon matriculating each State cadet pledges himself after graduation to become a teacher in some school in the State, and to continue his duties of instruction for two years. Thus it will be seen that every year a number of competent teachers are turned out by the institute to extend the benefits of their training and knowledge and to form as it were an ''endless chain" of native-born, efficient, military instructors. In addition to all of these advantages, many of the graduates of this institution are commissioned as officers in the regular army of the United States, increasing the representation and influence of the State of Virginia in one of the most important governmental agencies. l\)bS DE.BATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. Perhaps at this point I may be pardoned for a personal reminiscence of the Vir- ginia Military Institute. It Tvas in the spring of 18b4 when the red war cloud waj» sweeping over our devoted land. Being sorely pressed by tne enemy. General Breck- enridge lelt obliged to call out the battalion of cadets to his assistance in the Valley of Virginia, and that company of patriot lads eagerly responded to [he summons. Some little time since by the courtesy of a friend I saw the pl?v,y of Cyrano de Bergerac. Intently follow^ing the thread of the story it reached the point where at the disastrous siege of Arras, a company of Gascon cadets, to whom had been assigned the place of honor and post of danger, had fallen under the attack of their adversaries, save their commander, who, himself desperately wounded, with banner in one hand and sword in the other, just before he fell, pointed to his dead and dying comrades, exclaiming with pride and emotion, "These, these are the cadets of Gascoigne." The words touched a hidden chord and awoke it into life. The brilliant scene faded from my view, and oblivious to surroundings the enchantress Memory transported me to May 14, 1864, to a stone or brick church in the Valley of Virginia, between Harrison- burg and New Market, where, as a member of Company A of the Battalion of Cadets from the Virginia Military Institute at Lexington, I had gone to sleep. The rattle of accountrements and moving feet awakened me, to find the battalion in progress of formation outside of the church. The hour was midnight. There was iron discipline in that command. The line being formed and the bat- talion brought to a "parade rest," it looked like a solid body instead of so many inde- pendent units. A veil of clouds was drawn across the arch of heaven, while the leaping flames of the camp fires cast fantastic shadows which chased each other into the gloam beyond; the moaning of the winds, the sobbing logs upon the fires and the falling rain were the only heralds of the drama which w^as to be enacted so soon upon the theatre of war. Capt. Frank Preston, professor, commanding B Company, was under these conditions invited to invoke the Divine Blessing upon the organization. There were some there destined to die before the morrow^'s sun should run its course, but they knew it not, nor did others. There were others there to languish upon beds of suffering and pain, from wounds to be received before the twilight came, but they knew it not, nor did others. But ail were ready to die a soldier's death and to fill a patriot's grave. As the w^ords of prayer fell from the soldier-christian lips and ascended to heaven, thoughts of home and loved ones came thronging upon the youths. Faces of play- mate brother and gentle sister, of the dignified father v/hose great concern was the happiness and welfare of his offspring, of the devoted mother, upon whose bosom his head had been cradled in infancy, and at whose knee he had first lisped the Lord's prayer, came trooping before him one after the other. But the mother's face lingered longest and last. Ah, these mothers. Then saints upon earth, most of them now saints in heaven. Hark! I seem to hear their voices chanting in the Angelic Choir. It was a scene to which no human pen could do justice. The scene changes and with light, swinging step the corps advances to meet the enemy. In the distance can be seen a semicircle of campfires, and the first thought is, that the adventure is to be a night attack, but marching on, marching ever from mid- night to dawn, those brightly burning fires seem always to recede. As day breaks the whole army can be seen stretched along the Valley turnpike; the sound of horses' feet can be heard approaching from the rear, a moment more, and a brilliant cavalcade is abreast the column; it takes no second glance to fall upon the chief, tall, striking in appearance and with all of the grace, fire and beauty of the Southern, General John C. Breckenridge, commanding the little army is beside the cadets. They salute him with a rousing cheer — upholding his gloved hand, he said: "Young gentlemen, I am glad to see you in such fine spirits this morning, but as we are near the enemy, I think it would be best to preserve silence." The lines of battle are formed. In a depression DEBATES OF THE COXSTITUTIOiS AL COXYEXTIOX OF YIRGIXIA. 1989 between two ranges of hills, near New ^^larket, in Shenandoah county, the cadet bat- talion is halted, to strip for the fight. Haversacks and blankets are removed and placed in piles, and the young athlete stands forth for a trial of strength with mature manhood. It is true that the Federal army numbered about 10,000 men, while with the Con- federate colors there marched only about 3,000, but what booted the disparity in forces! the smaller army was composed in the main of Virginians, who stood upon their native soil, with their loved ones and the traditions of the Commonwealth behind and their foes before them. In "place rest" the battalion remained and saw the first line of battle ascend the slope and engage the enemy. The battle is joined and the "Young Guard" wonder when their time will come. The sound of .a horse's hoof rapidly beat- ing the ground smites the ear. The very speed at which the rider approaches conveys the tenor of his message in advance. Belts are drawn tighter, muscles harden and jaws set fast. "Colonel Shipp, General Echols says advance youv battalion," is v/hat he said before he reached the side of the commandant of cadets. The little speech made by Colonel Shipp is graven upon my memory — "Hush talking like a lot of mag-pies, listen to your officers and obey their orders." The battalion is brought to attention and the march to victory and to death is begun. Up the same slope over which the first line of battle had preceded them, they stream and at its crest met the storm of battle. Ever forv/ard and onward they press, meeting soldiers, some of whom pass around the flanks of the cadet battalion, others lie down, for them to pass over them, others still are dead, dying and wounded — still the cadet battalion passes on. A gap in the first line is reached, it is passed and still; the battalion moves on. That was Virginia day. The battalion of cadets, in advance of the rest of the army, in parade formation, with colors, general guides and officers to- the front, marching with empty guns in face of concentrated musketry and artillery fire. When within a short distance of the enemy, Cary Weston, of Norfolk, Adjutant of the battalion, saluted Colonel Shipp with his sword, saying: "Colonel, we are in advance of the whole line," and then, above the roar of infantry fi^-e and scream of shot and shell, rose the clarion voice of Colonel Shipp commanding, "Mark time, march." In the Valley of Death, in parade formation they executed the command, each young foot marking time to the boom of hostile gun; the flag of the Common- wealth proudly floating in the breeze before their e^' es : they were maintaining the honor, the traditions, the pride of Virginia. The hurtling missiles of war were killing and wounding their comrades, but preserving their line, the survivors ever dressing to the centre, stepping over the dead and wounded, alw^ays presented a solid and compact front to the foe. Then it was that the youthful band experienced the keen delight of him who wrote — There is something of pride in the perilous hour, What'er be the shape in which death may lower, For Fame is there to tell who bleeds, And Honor's eye on daring deeds. The fire is withering. The command, "Halt, lie down." is given and obeyed. The rest of the army reaches the line occupied by the Cadet Battalion, and the young lion is loosed, the battery whose grape and canister had wrought such destruction and havoc in the ranks of the cadets is captured; and with thrust of bayonet and butt of musket they avenee the death of those who had fallen under its murderous and destructive missiles. In quick succession the battalion engages two reeiments of infaritry. each comprising a force much greater than its own. and defeats them in detail. The victory is won, the enemy routed, and the Cadet Battalion had written a new page in the lustrous history of the Commonwealth. That night a comforting dispatch went down the Valley to the great commander of the army of Northern 1990 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. Virginia, who in Spotsylvania lay with his army locked in deadly struggle with the Army of the Potomac. His base of supplies was for the time safe. Let us listen for one moment to a Federal officer who himself took part in the battle of New Market, and hear what he thinks of the Virginia Military Institute cadets upon that bloody day. A few days since the News published an article, taken from the Richmond Times, "Why, I went to the V. M. I./' which was a statement of a young cadet who was in Richmond with the corps of cadets at the recent unveiling of the Confederate Soldiers' Monument, on May 30th. The young cadet referred to is a son of a gallant Federal soldier who served in a Pennsylvania regiment, and, fronting the "Cadet Battalion" in the battle of New Market, witnessed their charge, which resulted in the capture of a Federal battery and made the corps of cadets and the V. M. I. famous in the events of the recent war between the States. General Lincoln was made prisoner in that fight, and taken to Harrisonburg, and while there, a prisoner, had conversation with Major Johnson, post quarter- master; Colonel Smith, of the Sixty-second Virginia Regiment; Col. A. S. Gray, Dr. G. K. Gilmer and others. The following is an extract of a letter written by General Lincoln, dated Wor- cester, Mass., March 10, 1888, to the late Rev. James H. Smith, son of the lamented Gen. Francis H. Smith, for half a century superintendent of the Virginia Military Institute. General Lincoln's letter corroborates the statement of the Federal soldier who was under his command, and who said, after witnessing that gallant charge, that if ever he had a son, he would educate him at the Virginia Military Institute. He has now two sons in the V. M. I. I * $ « « 0 Naturally enough, incidents of the battle, the conduct of troops, and to some, though less extent, that of some of the officers on each side, were spoken of. I well recollect, even now, our own position, the field of battle and the appearance of each army. We were upon the right of the infantry line; to our right, upon ground slightly elevated, a six gnn battery. The Sixty-second Virginia, which formed the extreme left of the attacking force, advanced directly against us. To the right of the Sixty-second were the cadets. The line of advance was a little diagonal to that of our formation, and as it was continued the Sixty-second passed beyond and the cadets came directly to our front. Our fire, both that of artillery and infantry, was rapid and continuous, and when the battery opened with canister, was destructive. As the advance was continued, it was apparent that the cadets were in advance of the general line of the attacking force. Here their forward movement ceased, and for a moment it seemed as if their advance was checked. But what seemed a check was in reality a halt, during which time "those boys" marked time, dressed their rauKs, and when again aligned on the left, came forward in most admirable form. The whole thing was done with as much pre- cision and steadiness as if on parade, and this while all the time subjected to a destruc- tive fire. No one wuo saw it will ever forget it. No command, but one most admirably drilled and disciplined, could have done it; and, if other troops on that field could, it is safe to say no otherbody did do that thing. In after time around our camp fire, the gallant conduct of those little fellows (for such they seemed to be) was spoken of among ourselves, and always in terms of the highest commendation. With no desire to disparage me conduct of other organizations in that army, I should be doing injustice to myself, the tirave men of my own command, and the young men who composed that battalion, if I failed to render to them unqualified praise, and I most heartily join you in "your purpose to exalt the .gjallantry of the cadet battalion as high as truth can uplift it." »*«««**«** (Signed) William S. Lincoln, Colonel late Thirty-fourth Massachusetts Infantry, and Brevet Brigadier-General United States Yo\viTi\.QQTS.~-Staunton News. Mr. President, England in song and story perpetuates the charge of her 600 at Balaclava; Spain cherishes the memory of the Roncesvalles Pass, where all her harnessed chivalry perished; the story of the bloody river Raisin is not forgotten in DEBATES OF THE COXSTITUTIOXAL COXTEXTIOX OF YIRGIXIA. 1991 Kentucky, for there she plumed her warrior sires; and the annals of France treasure the fame of countless deeds of valor. If I had my wish, sir, this should be a Hall of Fame devoted to the preservation of the memory of great deeds performed by the sons of the Old Dominion. Springing arches would be here, and on them painted Man- assas, Williamsburg, Seven Pines, Gaines' Mill, Malvern Hill, Mechanicsville, Fred- ericksburg, Sharpsburg, Cold Harbor, Slaughter's Mountain, Chancellorsville, Spot- sylvania, Kemstown, Cross Keys, Port Republic^ New Market, and other engagements in which Virginians participated. And on the pillars supporting these arches there should be recorded the names of Lee, Jackson, Johnston, A. P. Hill, Stuart, Early, William E. Jones, Wise, William Smith, Kemper, Pickett, Rhodes, Wharton, Mc- Causland, Terry, Garnett, Winder, Walker, Hunton, Wickham, Corse, Mosby, and the other leading spirits who shed lustre upon the name of Virginia — and above all this inscription, "Read these names, lest you forget." My story is told. I do not feel that it is asking a favor at your hands to desire you to vote to embody a provision in the Constitution for the preservation and perpetuation of the Virginia Military Institute, but rather that it affords you an opportunity to be of service to the State. Leave" it to me, sir, and I will so entwine it in the very vitals oi the organic law that it will last, as I hope the Commonwealth will — Until the years grow old, . And the stars grow cold. And the leaves of the judgment roll unfold. Mr. Glass: On yesterday, in discussing the proposition of the delegate from Han- over (Mr. Carter), I said, "I think the proposition offered by my friend from Hanovei' is, as has been said, a revival of the fight we had before the General Assembly two years ago." What I meant by that was simply this: That the same principle was in- volved in the one proposition as was involved in the other; that, in fact, it was the same proposition. That is all I meant to say. I am told the impression may be gotten from the remark that some telephone company was the inspiration of the propo- sition to amend the committee's report by inserting the single word "local." So far as I am concerned, I had not the remotest idea that any telephone company had inter- ested itself, that it had any knowledge of this report of the committee, or that there was anything more involved in the proposition of my friend from Hanover than that he desired to make the amendment indicated. I wish now to disclaim any purpose to suggest that there was an attempt to revive the fight of two years ago in the sense that any telephone company had interested itself. On motion of Mr. Brooke, the Convention resolved itself into Committee of the Whole for the further consideration of the report of the Committee on the Organi- zation and Government of Cities and Towns, Mr. Withers in the chair. The Chairman: Are there any further amendments to Section 10? If not, the Secretary will read Section 11. Sec. 11. The rights of every city or town in and to its water front, wharf property, public landings, wharves, docks, streets, avenues, parks, bridges and all other public places, are hereby declared inalienable, except by an ordinance or joint resolution passed by a recorded three-fourths' vote of all the members elected to each branch of the council of said cities, and, in case of the veto by the mayor of such an ordinance or joint resolution, it shall require a recorded vote of three-fourths of all the members elected to such branch of the council to pass the same over the veto; and no franchise, lease or right to use the same, either on, through, across, under, or over, and no other franchise granted by a city or town to any private corporation, association, firm or indi- vidual, shall be for a longer period than thirty years. Such grant and any contract in pursuance thereof may, in the discretion of the council and of the grantee of said franchise, provide that upon the termination of the grant the plant, as well as the property, if any, of the grantee in the streets, avenues and otner public places shall 199^ DEBATES OE THE CONSTITUTIONAL CONVENTION OE VIRGINIA. thereupon, without further or other compensation to the grantee, or upon the payment of a fair valuation therefor, be and become the property of the said city or town; but the grantee shall be entitled to no payment by reason of the value of the franchise, and any such plant and property acquired by a city or town may oe maintained, controlled and operated by such city or town. Every such grant shall specify the mode of deter- mining any valuation therein provided for, and shall make adequate provision by way of forfeiture of the grant, or otherwise, to secure efficiency of public service at reasonable rates, and the maintenance of the property in good order throughout the term of tho grant. The Chairman: The gentleman from Richmond (Mr. Meredith) has offered tho amendment, which the Secretary will read. After the word "years," in line 15, insert "no franchise or privilege shall be granted by any city or tov/n for the use of its highways, either above, along, or under the eame, except by an ordinance or joint resolution passed by a recorded vote of two-thirds of all the members elected to each branch of the council of said city; and, in case of the veto by the mayor of such ordinance or joint resolution, it shall require a recorded vote of three-fourths of all the members elected to each branch of the council to pass the same over such veto, m the manner provided in Section 9." Mr. Brooke: Mr. Chairman, I desire to say briefly — I do not propose to make any speech at all — that since this article has been drafted it has been brought to my atten- tion that there is a possible construction of the language which would require that no franchise should be granted in the streets, etc., of the city without a three-fourths vote. I simply wanted to give notice that that is not the construction intended by the com- mittee. I do not now offer an amendment so as to make the construction placed upon it by the committee clear, because I think the whole question will probably be involved in the amendment which is to be offered by the gentleman from Richmond. Mr. Meredith: Mr. Chairman, the amendment I have offered I believe to be neces- sary, because I do not think the language of the committee justifies the construction that it requires anything more than a majority vote to give away the franchises of the municipality, and I desire to have some express language, if I can get the approval of this body, that the franchises of the cities shall not be given away by a majority vote. In the early days of the Convention I offered a resolution, which was referred to the Committee on Cities and Towns, providing that no public franchise should be dis- posed of by the city council except to the highest bidder. That was along the line of the Kentucky Constitution. The committee did not see fit to incorporate that in its report, but as it has seen fit to require a three-fourths vote for the sale of any of the property of a municipality, such as its parks and wharf property and landings, the sale of streets, and matters of that kind, by a three-fourths vote, I desire to have some protection for properties of the cities which are just as valuable, and which are dis- posed of with far greater ease and with far less consideration. I refer to the public franchises of municipalities. We must all recognize that they are getting to be ex- tremely valuable; we must all recognize that they are getting to be extremely numer- ous. We are having electric power plants, light plants; we are having street car companies; we are having other companies of that nature. We all must recognize, if we know anything about it, that to get from the municipal council those very valu- able properties of the city — for they are properties — every conceivable effort is made, honest and dishonest, to get them, and it is just a question of the integrity of the council as to whether the municipality will receive sufficient protection. If they are in the hands of a bad set of men, these valuable franchises are given away without even reasonable restrictions, without a proper system of taxation or comnensation to the city for the use of its highways, sometimes for thirty years, sometimes for fifty years, and I believe in some of the cities of the Commonwealth there is no restriction as to the period of time. I have been told that in one of the cities of the Commonwealth the street car com- DEBATES OF THE COXSTITUTIOXAL COXYEXTION OF VIEGIXIA. 1993 panies occupy its streets, and do not have any burden whatever put upon them as to the repair of the streets; and yet when the streets are paved, either with asphalt or granite, the abutting property owner is taxed one-half of the cost to the middle of the street. In this city, fortunately, we have better protection than that. We do put some reasonable restrictions upon them and require reasonable compensation; but, Mr. Chairman, it is to the evil of corruption and the evil of the lease of property to which I ask the attention of the committee, in order that that evil may be prevented in the future. We all know — and I do not hesitate to speak of my own city — that in the last few years very valuable franchises have been given away without direct compen- sation at the time for the value of the franchises. There was a contest in this city between railroad companies, in which one railroad company asked for a very valuable franchise, involving somewhere near fifty or sixty miles of railway, and the opposing company made an offer of a start bid of $100,000 if it was put up at public auction; and we were unable to get the council to do it. You gentlemen recollect that a few months ago, perhaps within the last year, the Legislature of Pennsylvania, in conjunction with the city council of Philadelphia, gave away franchises in the city of Philadelphia, and after it became known to the public a rich man in Philadelphia came forward and said he would give $2,000,000 for the franchise, and to the man who had it he would give $500,000. That is the history of such things in many of the cities of this country, the value of the franchise, of course, depending upon the size of the city. It is proposed that we shall protect the water-works, the wharves, the landings of the wharves, and similar valuable property, by providing that a majority vote shall be required to pass legislation in regard to it. I do not propose to go over the line of thought I offered to you n yesterday when I asked for protection as to the city finances, because I hope some of you remember some of the things I stated; but I do call your attention to the fact that this matter is perhaps a greater evil than the matter of spending the finances of the city. The finances are frequently appropriated from the current revenues, but the franchises are the capital of the city, and when they are once gone they are gone for years. If we allow the municipalities to dispose of these franchises in so simple a way as by a majority vote, we are acting, in the first" place, inconsistent with the report of the committee, which is a wise one, in regard to the question of streets and docks and other property of that character, and we are also acting most unwisely in not being guided by the lamp of experience. We know the out- cry that has come up from all over this country that these municipal franchises shall not be disposed of except in consideration of a valuable return to the people who own them,' and yet we know, on the other hand, that day after day they are being disposed of by the different municipalities of this country without an adequate return. Now, gentlemen, if we propose to put into this Constitution such restrictions as will govern municipalities to a certain extent — I am not favoring any extreme law upon the subject — but if we propose to recognize that the growth of municipalities is such that we ought to be more careful of the constitutional limitation in regard to them than we are as to county governments, surely we ought to take some means by which the people of the municipalities can be protected as to their property, I urge that the Convention has a chance now to protect the municipalities as to the disposal of their franchises, and that some step should be taken by which they shall not be disposed of except under such restrictions as are reasonable. I therefore ask, in behalf of the cities of the Commonwealth, those that now exist to such a size as to have these utilities, those that are growing and those we hope will grow, that you put into the Constitution a restriction upon their legislative bodies. It is idle to tell us to come to the Legislature for protection. We cannot get it if we have corruption amongst us. The efforts we make before the Legislature to get these 126 — Const. Deb. 1994 DEBATES OF THE CONSTITUTIOI^AL CONVENTION^ OF VIRGINIA. restrictions imposed are defeated by the corrupt elements which defeat us in our municipalities. In conclusion, I wish to say that I am not asking of the Convention as to the valuable property. I have referred to the restrictions which the committee has seen fit to impose as to public wharves and other places of that character. The report of the committee requires that there shall be a three-fourths vote to alienate any property of that kind. I simply ask that we may have a two-thirds vote to protect us as to this property. I recognize the distinction between a sale and a mere franchise for a term of years; but I say the difference is not sufficient to justify us in refusing to put into the Constitution some protection in regard to the disposal of these franchises. Mr. Chairman, it is idle to say that these councils will be tied up by adverse inter- ests. I respectfully submit it is far better that we should trust to the intelligence of a business community like a municipality than that we should trust to the honesty of all the councils, tempted as they frequently are by large amounts of money, tempted as they are sometimes by popular outcry that efforts shall not be made to block im- provements, as they are called, because more danger and trouble, more disasters come to the Commonwealth by raising that cry than by putting reasonable restrictions upon them. I hope the committee will not feel that when a statement of that kind is made it goes to prove an attempt to block improvements, but that the desire simply is that improvements shall be upon the broad lines of reasonable restrictions. We feel that no municipality is going to block improvements in a spirit of obstinacy; and even if it does do it temporarily, we had better have that block than the property should be disposed of for a number of years or should be given away for nothing. Mr. Robertson: Mr. Chairman, I dislike very much to appear so often on this floor in regard to questions coming up in reference to this report, but as the city which I represent in part is deeply interested in all these questions, I frequently feel it my duty to say something, whether it will have any weight with this body or not. I totally differ from my friend from Richmond (Mr. Meredith) in regard to this matter. I think if there be any evil in the world, it is requiring a large majority in any legislative body in order to get through what they want to do. It seems to me that the lobbyist gets in his work with reference to cases of that kind oftener than he does in anything else. The chief duty of the lobbyist, who hangs around all legis- lative bodies, in my opinion, is not so much to get through legislation as to prevent legislation; and it is a great deal easier to do that under the plan suggested by the gentleman from Richmond than it could possibly be if we leave this thing, as we ought to do, to the majority. The whole argument, it seems to me, of the gentleman from Richmond is based on a distrust that has crept into his mind on account of his long connection with the affairs of the city of Richmond, and his knowledge of what is taking place here. His argument, I respectfully submit, is not a proper deduction from a sufficient number of facts. I think if the gentleman would give this matter a little wider range in his own mind, he would not come to such positive conclusions about it. But I submit that because he has found difficulties of that kind in Richmond he ought not to want to put into the Constitution provisions which will bind every city in the Commonwealth. Mr. Meredith: I simply want to ask you, do you mean to tell this Convention that your own reading does not inform you there has been great corruption all over Ihe country in regard to the granting of franchises? Mr. Robertson: I am perfectly willing to admit that; but I do not think your plan will prevent that corruption. I am arguing that if there be corruption now, there will be more of it if your plan is adopted, sir. What the people suffer from in this Commonwealth is that some corporation gets in and gets its clutches upon some ^community, and then the hands of the city council are tied, so that there can be no .competition with the corporation already in there. In every city in the Commonwealth DEBATES OE THE COXSTITUTIOXAL COXYEiSTTION OF VIEGINIA. 1995 th^re are already parties that have valuable franchises, probably granted, as my friend saySj to some extent, certainly carelessly, and probably in some cases, although I do not know of any such, by corrupt methods; but are we to say these people cannot, by a majority vote, allow some other corporation to come in there and compete with the old corporation that got in there improperly? That seems to me a very much greater danger than the danger my friend points out, because it is a great deal easier to control the few men who would prevent the two-thirds majority than it is to control a majority of the council. I would not want anything better if I were a lobbyist for a corporation than to take such a provision if my corporation were already in, for I would have very little difficulty, in my opin- ion, if these bodies are as corrupt as my friend seems to think, in keeping any other corporation from getting in. On motion of Mr. Smith, the committee rose and the President resumed the chair. The President: Gentlemen, under the order heretofore adopted^ the Convention will now proceed to the consideration of the motion to reconsider the vote by Vv^hich the amendment offered by the gentleman from Albemarle (Mr. Boaz) to the report of the Committee on Education and Public Instruction making provision for the main- tenance of the University of Virginia was rejected. The question is on the motion to reconsider. The Secretary will read the amendment. The General Assembly shall provide for the support of the University of Virginia, by an appropriation each year out of the general revenues of the State of a sum of money amounting to not less than one-ninth of the sum arising from the tax on property applicable to public free schools for such year: Provided, the General Assembly may, in any year, limit the sum of money to be appropriated to $50,000. The President: The question is on the motion to reconsider the vote by which the amendment was rejected. The following pairs were announced: Mr. Watson with Mr. Dunaway; Mr. Pol- lard with Mr. James W. Gordon; Mr. Brown with Mr. Manly H. Barnes; Mr. Allen with Mr. Cameron; Mr. Gamett with Mr. Vincent; Mr. Turnbull with Mr. Marshall; Mr. Thornton with Mr. Mundy; Mr. Kendall with Mr. Thomas L. Moore; Mr. Bristow with Mr. Crismond; Mr. Portlock with Mr. Thom; Mr. Daniel with Mr. Pettit; Mr. Lawson with Mr. C. J. Campbell. The first named gentleman, in each instance, would have voted in the affirmative. The question having been taken, the result was announced — ayes, 33; noes, 39, as f ollov^rs : Ayes — Messrs. Ayers, Barbour, Thomas H. Barnes, Boaz, Bouldin, Braxton, P. W. Campbell, Carter, Epes, Glass, Green, Gregory, Harrison, Hatton, Hunton, Ingram, Claggett B. Jones, Lindsay, Lovell, Meredith, R. Walton Moore, Quarles, Rives, Robert- son, Stebbins, Stuart, Waddill, Walker, Walter Wescott, Willis, Wise and Wysor — 33. Noes — Messrs. George K. Anderson, W. A. Anderson, Barham, Brooke, Chapman, Davis, Earman, Eggleston, Fairfax, Fletcher, Flood, Gilmore, Gillespie, R. L. Gordon, Gwyn, Hamilton, Hancock, Hardy, Hooker, Hubard, G. W. Jones, Keezell, Lincoln, Mcllwaine, Miller, Moncure, O'Flaherty, Orr, Parks, Pedigo, Phillips, Richmond, Smith, Summers, Tarry Withers, Woodhouse, Yancey and the President — 39. The motion to reconsider was rejected. On motion of Mr. Brooke, the Convention resolved itself into Committee of the Whole for the further consideration of the repoit of the Committee on the Organization and Government of Cities and Towns, Mr. Withers in the chair. The Chairman: The pending question is on the amendment of the gentleman from Richmond (Mr. Meredith) to Section 11 of the report. Mr, Barbour: Mr. Chairman, I dislike very much to have to differ from the gen- tleman from Richmond in reference to the amen Iment which has been offered by him. 1996 DEBATES OE THE CONSTITUTIONAL CONVENTION OE VIRGINIA. I know he is deeply interested in the welfare of the cities, and, from his large expe- rience in such matters, his judgment is entitled to great weight. But it does seem to me that, from his experience in the city of Richmond, he is permitting his fears to get the better of his judgment. The gentleman says that because we provide that it shall require a three-fourths vote to alienate a certain class of property, therefore we should require a two-thirds vote in order that that property may be leased. That is what in effect is the distinc- tion between the alienation and granting of a franchise, as we limit it here to thirty years. You cannot, by legislation, make people honest. If the people of the city of Richmond, or of any other city, are incapable of self-government, there is no way that we can make them so. If they are not capable of governing themselves, they have no right to make application to the Legislature for a charter to do it. Certainly they have no right to make application to the Legislature to grant them a charter which will permit a minority of a city to control it. That is, in effect, what his amendment will amount to. I am not one of those, Mr. Chairman, who think that the vicious elements in every community, or in any community, are in the majority. I believe that they are in a minority. All that we can do is to arouse public sentiment to the importance of action, and then by these safeguards save them from the results of hasty legislation. That is as far as we can go safely, and it is what the committee has done. It has examined into this matter with great care and deliberation, and it has by a system of checks and balances sought to protect the cities themselves against the results of hasty legislation. They have even guarded legislation by means of the veto power, lodged in the mayor. It seems to me that the gentleman from Richmond ac- complishes the very purpose that he desires to defeat when he absolutely puts it In the power of one-third of a city council to prevent the granting of a franchise. As has been pointed out by the distinguished gentleman from Roanoke (Mr. Rob- ertson), it absolutely puts these franchises in the hands of a minority. One corpora- tion already has a monopoly, for instance, of the street-car business in a city. The citizens want competition, and still, all the first company has to do in order to prevent competition and to maintain its monopoly is to be able to control one-third of the city council. Now, the reasons which impelled the committee to require this three-fourths vote to alienate property were very different from those which impelled it to permit a majority vote to grant a franchise. This provision requiring a three-fourths vote to alienate only applies to water-fronts, wharf property, public landings, wharves, docks, streets, avenues, parks, bridges, and all other public places — to those places in the city which are dedicated to the public use and for the preservation of the public health. They should not be alienated unless there is an overwhelming publfc de- mand that they should be. But the cities can grant franchises in those properties, for a limited time. To the representatives of the people, and in order to protect pos- terity against ill-advised acts in this resnect, we say, "Notwithstanding the fact that you may grant these franchises, you shall not grant them for more than thirty years; so that if you make an ill-advised bargain you will suffer for it, but posterity shall not suffer; and, at the end of thirty years, their rights are restored to them just as they existed before you made this grant." The committee have considered very maturely all these matters in this connection, and have made this recommendation by unanimous vote, and I most earnestly hope that the article will be permitted to remain in the condition in which it 'has been re- ported to the Convention. Mr. James W. Gordon: Mr. Chairman, we are commanded in the Scriptures to be temperate in all things, and the Committee on the Organization and Government of Cities and Towns has attempted to carry out that injunction. DEBATES OF THE COXSTITUTIOXAL COXTEXTIOX OE VIKGIXIA. 1997 We realize, on the one side, that there were certain checks necessary to be im- posed in the Constitution upon extravagant and ill-considered legislation, which is very often carried through in cities. We realized, on the other side, that it was possible to make those restrictions so rigid as to defeat the principle of local self-government in those communities; and I think a careful consideration of this report will show that the committee has steered a mean course, and has brought in a report here which will avoid either one of those difficulties. Y/e have provided, in the first place, Mr. Chairman, that we shall have a double- body council; that we shall have a veto power in the mayor, and a two-thirds vote of all the members elected to both of those bodies in order to override that veto; and we have gone further and provided that the election of mayor and council of the cities and towns shall be at a different time from all other general elections, so as to con- centrate the attention and the interest of the people upon these elections and upon these officers, with a view to securing a better representation in the councils and a better representation in the mayoralty. Now, I believe that with these restrictions and limitations thrown around our municipal government we have gone as far as it is wise and safe for us to go in this regard. Therefore, I trust we will sustain the report of the committee and not adopt the amendment offered by the gentleman from Richmond, although I know how deeply lie feels on this question, and what good reason he has had to feel deeply upon it; but I believe we should not attempt to tie the hands of our local legislatures too rigidly in regard to the granting of franchises, or in regard to any other matter that may come before them. Mr. Hatton: Mr. Chairman, I rise to offer just a few words of protest against the amendment offered by the gentleman from the city of Richmond. I have great respect for the views of the gentleman from the city of Richmond in most matters of municipal government. I feel that his experience in such matters is entitled to great respect, and I have no doubt that his object in offering this amend- ment is to protect the cities of this Commonwealth against the importunities of cor- porations who seek franchises in those cities. But I believe, Mr. Chairman, that the result will be just the reverse, and I believe that the amendment, if adopted, instead of protecting these cities, will tend more to protect these corporations which now ex- ercise and control the franchises in these cities against proper and just competition. In almost all the cities of this Commonwealth we now have street-car lines, tele- graph and telephone lines, gas and water companies, which exercise privileges in the streets and other public places of those cities; and many of these cities, in that respect, have no competition at present, and if we require two-thirds of the members elected to the city council, in order to give another corporation the right to enter that city, what will be the result? Why, towards these other corporations seeking to enter there, it will be the policy, and, no doubt, the practice, of the corporations who now exercise franchises in those cities to endeavor to get simply a one-third vote of those councils in order to keep out that competition, and kill it. And there is wherein lies the defect of this amendment. I hope the gentleman from the city of Richmond will be able to look at this thing with both eyes. Mr. Meredith: I desire to call the attention of the gentleman from Portsmouth to the fact that about four of you gentleman have followed me, and, although each one of you is some ten or fifteen years younger than I am, you describe me as being led away by hot blood and ardor. Mr. Hatton: I have no doubt his blood is very hot, and that he is very ardent, and sometimes very strenuous (laughter) ; but I do think there are two views of this proposition, and I trust that the gentleman from Richmond, as well as the members of this Convention, will be able to see both aspects of the proposition. 1998 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. The Chairman: The question is on the amendment offered by the gentleman from the city of Richmond (Mr. Meredith) to Section 11. The amendment was rejected. Mr. Meredith: I wish to call to the attention of the chairman and one or two mem- bers of the committee, if it meets with the approval of the Committee of the Whole, to what I desire to be added. After the word "places," in line 4, add the words, "and its gas, water, and electric works." After the word "cities," in line 7, add the words, "and under such other restrictions as may be imposed by law." After the word "coun- cil," in line 10, add the words, "in the manner provided in Section 9," as to the method of veto. I understand there is no objection from the chairman as to these amendments. The amendments were agreed to. Mr. Meredith: If the matter is still before the committee, I desire to call the at- tention of the chairman of the committee to the expression in lines 24, 25, and 26. It is provided there that, after the expiration of this franchise, the State may acquire the property, and this provides that "any such plant and property acquired by a city or town may be maintained, controlled or operated by such city." I suggest inserting after the word "operated," in line 26, the words, "sold or leased." Mr. Brooke: I accept that amendment. Mr. Summers: Mr. Chairman, this question will probably go back before the com- mittee, and I desire to state that at the proper time I will move, at the instance of some of my constituents, the substitution of the words "twenty-five" in place of "thirty"" before "years," in line 15, I think, individually, it should be for twenty years, but I was asked to make the amendment I have suggested, and at the proper time we will hear the argument on it. The Chairman: The question is on the amendment of the gentleman from Wash- ington (Mr. Summers), to substitute the words "twenty-five" for the word "thirty," in line 15. The amendment was rejected. iSection 12 was read and adopted. Section 13, relating to the right of cities and towns to issue bonds, was then read. The Chairman: Are there any amendments proposed to Section 13? Mr. Summers: I desire to amend that section by substituting in line 4 the word "ten" for the word "eighteen," so that it shall read, "no city or town shall issue any bonds or other interest-bearing obligations for any purpose or in any manner to an amount which, including existing indebtedness, shall, at any time, exceed ten per centum of the assessed valuation of the real estate in said city, subject to taxation," etc. Mr. Chairman, this is a question that elicited a great deal of discussion in the committee. In our section of the State, where the towns are solvent and the people pay their indebtedness, they are desirous of having it fixed at ten per cent. Being solvent, they want to remain solvent. Therefore, that their properties may not be unrighteously encumbered and confiscated, I hope the committee will approve of the amendment. Mr. Marshall: I desire to offer an amendment to the amendment. My idea waB that the debt limit should be fixed at fifteen per cent. I move to amend the amendment by inserting "fifteen" instead of "ten." The amendment to the amendment was rejected. The Chairman: The question recurs on the amendment of the gentleman from Washington, to substitute the word "ten" for the word "eighteen," in line 4. The amendment was rejected. Section 14 was read and adopted. An independent section offered by Mr. Harrison was passed by temporarily. Mr. Smith: I desire to go back to Section 6, line 10, and move to amend by DEBATES OE THE COXSTITUTIOXAL COXVEXTTOX OF A'lEGIXLl. 1999 striking out the two words constituting the last of that line, "police and." Under the provisions of the present Constitution, the mayor, as the head of the municipal organization, is only endowed with the authority to suspend or remove city officers. By the introduction of these tw^o words in the present article authority^ Is conferred on the mayor to remove a State officer. Under the adjudication of the State a police- man is a State officer. Many of the cities of the Commonwealth desire to divorce the jurisdiction and power of the mayor over their police forces, and that the authority to manage and control the police force shall be conferred by law upon a police board. Gentleman of the committee, it seems to me there is a thread running through the warp and woof of nearly every measure of the proposed Constitution in the nature of centralization or concentration of power in the hands of a few. Those who have lived in the cities have experienced, I think, the bad and "ill effects which arise from the mayor having the control of the police force. It becomes a potential factor if in his hands it is used and directed for a political purpose. For these reasons, and believing that the provision proposed by the committee will not be to the advantage of the city communities, I move that the words I have heretofore designated be stricken from the report. Mr. Harrison: Mr. Chairman. I think the amendment I have offered as Section 15 will probably cover the point the gentleman from Alexandria (Mr. Smith) has made. It does seem to me to be a very peculiar thing that this Constitutional Convention should adopt a fixed charter here for every city in the Commonwealth, without any reference to the wishes or the needs of the community for w^hich this charter is pre- pared. It makes no difference whether it is a city of 100,000 inhabitants, which re- quires certain regulations and certain methods of government, or whether It is a little town of 5,000 inhabitants. Here is a charter which has been made to suit every commu- nity, large or small, in the State, whether it is adapted to the needs of that city or community or not. I always understood that one of the great advantages of having a municipal gov- ernment is that you can have a special charter for that particular community, a gov- ernment that is suited to the local circumstances of that community; but if this article is adopted, you will put upon every city in the Commonwealth a city government such as may be suited to some and absolutely unsuited to others. In the amendment I have offered I have endeavored to secure to every city the right to have a special charter according to the needs and the wishes of the community for which that charter is proposed, and I have asked that that may be passed by, in deference to the indisposition of the chairman of the committee. I think the question that the gentleman from Alexandria (Mr. Smith) has raised ought to be considered along with that amendment; and with that view I move that this amendment also be passed by. Mr. Smith: I will say to the gentleman from Frederick that if he will guarantee that his section is going to become a part of this article, I have do objection to the course he suggests. Mr. Harrison: I have been unable to guarantee anything so far as the Convention is concerned. I can generally guarantee that what I suggest here is going to be voted down. (Laughter.) The Chairman: The question is on the amendment offered by the gentleman from Alexandria. Mr. Barbour: Mr. Chairman, I hope the Committee of the "Whole will retain this section in the shape in which it has been unanimously reported by the committee. While police officers are technically State officers, they are, as we all know, really local officers. The mayor of the city is charged with the preservation of the peace of the city and with the execution of its law^s, and it is absolutely necessary that he shall have charge of the police force. 2000 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. In the very city represented by my friend from Alexanlria there has actually been continual turmoil and dispute between the police board and the mayor as to who has the right to direct the policemen as to what they shall do. It is a condition of affairs that should not be allowed to exist in any city; and there is nothing that will go so far to make the police force obey the orders of the mayor as his right to suspend or his right to remove. The right to remove is a great power, but the committee has attempted to prevent the arbitrary exercise of that power by giving to every officer who is removed the absolute right of appeal to the judge of the city court, in order that he may have the matter passed on finally. The gentleman from Alexandria says there is a constant undercurrent through the work of the Convention having a tendency to centralize power and take it away from the people. Why, Mr. Chairman, the direct effect of this will be to decentralize power. Under the system of appointing police boards to control the police force of the cities you centralize the power and the control of the police in the Legislature. You permit the Legislature to appoint police boards for the different cities of the State, and take it out of the control of the people of the locality, whilst this provision puts the actual power and control of the police force in the mayor of the city, an oflBcer elected by the people themselves, and directly responsible to them. It is the very opposite of centralizing power. The provision is a wise one. It gives these mayors powers which it is necessary they should have in order that they may perform the duties which the Constitution imposes upon them. Mr. Smith: Mr. Chairman, I might have anticipated that the gentleman from Culpeper (Mr. Barbour) would have known very much better what is for the good ot the inhabitants of the cities than do the representatives of the cities. I believe when a question heretofore came before this body as to the proper constitution of the judici- ary of the State, the gentleman from Culpeper was the one who stood forward to say and to express and declare what the constitution of the judiciary should be In the cities, without reference to the views or wishes expressed by the representatives of the cities. I said there was a thread running through the woof and warp of the proposed Con- stitution, because it is not yet a fixed fact that the instrument which is now in process of formation shall become the organic law of the State; and, Mr. Chairman, I do not believe it should become the fundamental organic law of the State until those who are to be controlled by it and to live under its operation shall have an opportunity to ex- press and declare whether it is the will of the people that it shall be the Constitution. (Applause.) The gentleman from Culpeper has adverted to the condition of affairs in the city of Alexandria as being one of turmoil between the mayor of that city and the Board of Police Commissioners. I have been counsel in much of that litigation, and in that way my attention has been directed and drawn to the city such as its contemplated concentration of power in the hands of the executive of the city, such as is contemplated by the report of thiis committee. I say it would become an engine of power and in- fluence in the hands of the mayor if he is vested with the absolute power to remove not only the city ofiicers, but all the State officers who have jurisdiction in that com- munity. The gentleman say I am technical when I say a policeman is a State officer. The question arose in the city of Lynchburg, where the mayor undertook to remove the chief of police from his office. The matter went into the courts and became a subject of litigation; and the chief of police sued the mayor of the city of Lynchburg and re- covered a judgment for a large amount of money uopn the ground that the mayor ex- ceeded his authority and had not the power or authority to remove him. I say it is wise to have a separation of the power of removal of city or municipal officers and State officers, and that the effect of this provision in the Constitution will DEBATES OF TIIE CONSTITUTIONAL CONVENTION OF VIRGINIA. 2001 be to obliterate all distinction so far as that power is concerned, and to mal^e the chief of police, as well as every policeman, practically, a municipal oflacer. For these reasons, Mr. Chairman, I hope the committee will adopt the amendment to strike out the words I have indicated. Mr. Meredith: Mr. Chairman, I desired if possible to have the matter postponed in order that the amendment might be drafted in such a shape as to avoid some evils that I think exist, and at the same time not to be as radical a change as that suggested by the gentleman from Alexandria (Mr. Smith). I think the police force of the city of Richmond should always be under the supervision of the mayor, and that he should have full power of suspension and, unless there is a police board, he should have the power of removal; but, as the gentleman from Alexandria did not desire that the sec- tion should be passed by, I offer the following as a substitute for his motion to strike out the words "police and," in line 10. Strike out, in lines 17 and 18, the following words: "He shall also have power to suspend and remove such oflBcer," and insert in lieu of it the following: "He shall also have pov/er to suspend such officers and police and to remove such officers, and also such police when authorized by the Legislature." I have spoken to the chairman of the committee about the amendment, and to the gentleman from Culpeper (Mr. Barbour), who is a member of the commitcee. Mr. Barbour: There is no objection to that amendment. Mr. Meredith: It simply relieves a difficulty we might have in regard to removal by the mayor, which would conflict with the duties put upon police boards. The Chairman: The question is on the substitute proposed by the gentleman from Richmond (Mr. Meredith) to the amendment offered by the gentleman from Alexandria (Mr. Smith). The substitute was agreed to. Mr. Summers: Mr. Chairman, I desire to call the attention of the committee to Section 2 of the report, which reads: "General laws for the organization and govern- ment of cities and towns shall be passed by the General Assembly in a manner pre- ^rihed by this Constitution." Section 6 provides: "In every city there shall be elected by the qualified voters thereof one city treasurer," etc. We have made no pro- vision in this report for the election of town officers. I hope the committee will insert in Section 6 the words "in every city and town." The Chairman: The question is on the amendment of the gentleman from Wash- ington. The amendment was rejected. On motion of Mr. James W. Gordon, the committee rose and the President resumed the chair. On motion of Mr. George K. Anderson, the Convention adjourned until Saturday, January 25, 1902, at 10 o'clock A. M. SATURDAY, January 25, 1902. The Convention met at 10 o'clock A. M. Prayer by Rev. John G. Scott, D. D. Mr. Barbour presented a lengthy memorial from the Anti-Saloon League of Vir- ginia in behalf of the Barbour-Quarles resolution as to saloon licenses, which was re- fered to the Committee on Preamble and Bill of Rights. On motion of Mr. Brooke, the Convention resolved itself into Committee of the Whole for the further consideration of the report of the Committee on the Organiza- tion and Government of Cities and Towns. On motion of Mr. Brooke, slight verbal changes were made in Sections 1 and 11. 2002 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Under this provision there cannot be a lease for longer than thirty years. Mr. Meredith: But the other municipal property, gas works, and things of that kind, ought not to be allowed to be disposed of without more than a majority vote. You see the necessity of protecting them from sale, and yet you leave the language so that the same thing can be done by a long lease with the right to renew. Mr. Brooke: I appreciate what the gentleman from Richmond says. I think I appreciate it fully; but we do not want to step from the frying-pan into the fire by tying the hands of the councils in the management, from year to year it may be, of any property which the city may have and yet not use for the purposes of the city. For instance, suppose the city has — and I believe in my own city it is true — buildings which are not actually used for city purposes, and are leased out or rented from year to year until they shall become necessary for the purposes of the city. Mr. Meredith: We have an instance of that in the city of Richmond. We have a very large piece of property of that kind, but there is no difficulty in getting a three-fourths vote in a matter of that kind. Mr. Brooke: I am not speaking of large pieces of property. I am entirely with the gentleman on that subject, but I refer to the smaller pieces of property which are not actually in use for the purposes of the city, but which the city may rent from year to year, not desiring to make a long lease of them, because they expect to use them themselves. Mr. Meredith: If the language after line 11 has any reference to the property referred to above, you are requiring it to be disposed of by a three-fourths vote, which I do not think can be the construction of the language. If that is not its construction, as to the vote required, can it be the construction as to the lease of the property, be- cause it is intended to apply to franchises, which are simply the right to do a certain class of work. Mr. Barbour: If the gentleman will permit me, I will read the section as it now stands, and I think he will see the whole subject is covered: The rights of no city or town in and to its water front, wharf property, public landings, wharves, docks, streets, avenues, parks, bridges, and all other public places, and its gas works, water works, and electric lights, shall be sold except by an ordinance or joint resolution passed by a recorded three-fourths vote of all the members elected to each branch of the council of said cities, and under such re- strictions as may be imposed by law, and in case of the vote by the mayor of such an ordinance or joint resolution, it shall require a recorded vote of three-fourths of all the members elected to each branch of the council, in the manner provided in Section 9, to pass the same over the veto; and no franchise, lease or right to use the same, etc. That certainly includes all the property. It includes water front, wharf property, public landings, wharves, docks, streets, avenues, parks, bridges, gas works, water works, and electric works. Mr. Meredith: Then I would ask you to strike out the word "lease," in line 11, and put it where you have put the word "sold" and confine your franchise to what yon do really mean by "franchise," the right to use property. Let it read, "No franchise shall be for more than thirty years," but do not let the property of the city be sold or leased, which can be made to mean the same thing, without a large vote. Mr. Hatton: Mr. President, there seems to be some doubt about this language, and I call attention to the fact that the phraseology here when it includes water fronts and wharf property has a vital effect upon my own city, which owns very valuable wharf property which is now leased in connection with its ferry, and from which the city derives a very large revenue, I would not like to see any language used here that would unnecessarily hamper my city in the disposition or enjoyment of that property which is now leased at an annual rental of some $65,000 a year. I s.sk unanimous con- DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF YIRGIXIA. . 2003 sent to have the matter passed by, so that the committee and the members of the Con- vention who are vitally interested in it may have an opportunity for further consid- eration. I hope that such action will meet the views of the chairman of the committee. Mr. Brooke: Do you object to the word "lease" being retained in line 11? Mr. Hatton: I would object to having the word ''lease" put where the gentleman from Richmond desires it should be put, and to have my city hampered so that it could not lease its ferries except by a three-fourths vote of all the members elected to its city council. I should like to see it properly restricted, but not so materially re- stricted that it might result in tying the hands of my city in so important a matter. Mr. Meredith: Does the gentleman contend as a principle of government for the cities, that a city ought to have the right to lease the gas works for thirty years upon a majority vote? I ask the committee to consider the principles involved in this thing, as to whether a municipality, after having built up a' plant worth, I will say, a couple of million dollars, shall have the right by a majority vote to lease that plant. I re- spectfully submit there is great danger in that, the danger of having your hands tied is not comparable with that of having yourselves robbed of your property. I submit you gentlemen ought to pay some attention to those who have lived in cities large enough to feel the evils. - You gentlemen have been fortunate, perhaps, and have not had that evil amongst you, because you know everybody, and you are in touch with everybody, and you restrain everybody; but that is not the case in a large city. Things are done in a night that you cannot prevent; and I think it wise we should put some protection at least around the disposal of these things, and the line of thought in re- gard to it is that the city and nobody else should own what we call natural mo- nopolies. I respectfully submit you cannot make any language too broad to accom- plish the purpose aimed at in the sale, and when it comes to the lease of this particular piece of property if you will broaden the language down below, and speak of the franchise or right through, along, over or under the streets of the city, it shall not be for more than thirty years, you accomplish your purpose, but you ought not to let any of this property of the city be leased. I do not know very much about public land- ings and wharves. That is a matter in which, it seems to me, the seaport cities are interested, and I should think they would desire to have their cities protected against the improper leasing of them. I am not contending for anything for the city of Richmond. I am repeating what I said before, and I feel it very earnestly. It may be as the gentleman has suggested, that I have had experience that has not been fortunate in these matters, but it is just as probable that these gentlemen will have just such unfortunate experience in the future. I am simply contending that when you allow a city to be deprived of what is regarded as a natural monopoly, which ought to be owned by the city, when you pro- pose to sell it or lease it in such a manner as to be regarded as a sale, you ought to protect it by such a vote as to give it ample protection. I am perfectly willing that it should be passed by if the chairman of the commit- tee is willing that It should be. I think the last few lines, beginning at line 11, can be so modified as to express what I think was the purpose of the language. When you speak of "through, across, under, or over," you refer to the highways of the city. Therefore, if you will confine it to that, and will insert "sold or leased/' above there you will give the city protection. I do not want to criticise the language of the com- mittee's report in any other particular, because I have seen the wisdom of i"t. Mr. Brooke: Mr. President, I will say that the Committee on the Organization and Government of Cities and Towns understands the attitude and temper of the gen- tleman from Richmond on this subject. We simply wish to get the matter in such a Bhape that there can be no mistake about it. We may differ, and I must confess that at present I do differ, as to the wisdom of prohibiting the absolute lease of property by a three-fourths vote. I can understand the difl^culty which, the gentleman suggests with 3004 DEBATES OF THE COJ^STITUTIOJ^AL CONVENTION OF VIRGINIA. regard to city water-works, city gas works, because you do practically accomplish the same thing by a lease for thirty years as you would by selling them; but there are other classes which it would injure the city just as much in the other direction if you tied their hands so that they could not lease them, except by a three-fourths vote. Let me give as an illustration the instance mentioned by the gentleman from Ports- mouth. Prior to about fifteen years ago, the Norfolk county ferries, as they are known, which are owned jointly by the county of Norfolk and the city of Portsmouth, were operated by a joint committee made up of a committee appointed by the Board of Su- pervisors of Norfolk county, and a committee appointed by the council of the city of Portsmouth. During that whole period I cannot, of course, say that the ferries were run at a loss and were a burden upon the county of Norfolk and the city of Portsmouth, but certainly nobody ever supposed from the results of their operations that it was the gold mine that it has been developed to be now. The operation of the ferries was of such a character that it came to be regarded, whether truthfully or not I do not know, as simply a place in which good berths could be found for active politicians. About twelve or thirteen years ago, by some fortuitous happening, the city of Portsmouth and the county of Norfolk determined to lease those ferries for ten years. Now, if this provision, suggested by the gentleman from Richmond, had been the law at that time, I doubt very much whether that could have been done. Against such an • effort would have been arrayed the political power of all the poiticians of Norfolk county and of Portsmouth city, and it would, I think, have been practically impossible to change the method of the management of a joint committee to a lease to an indi- vidual. But somehow they did succeed in changing it by a majority vote, and they leased those ferries for ten years for $10,000 a year. Mr. Hatton: Twenty thousand dollars. Mr. Brooke: Well, the company that got that lease made big money, and two years ago those same ferries were put up for public lease for ten years, and at public auction were leased for $61,000 a year. Now, if you require that no property of the city may be leased without a three-fourths vote, you can see from that instance what would be the result. Of course, I understand that one swallow does not make a spring, and one instance does not establish a rule. But you can take that as an illustration, and you will find that there exists in every city of the Commonwealth some particular kind of property or some property so situated with relation to the city as to make it very in- jurious to the interest of the city if they cannot lease it without a three-fourths vote. On the other hand, as I said when I first got up, I appreciate the position of the gentleman from Richmond with regard to such natural monopolies as ought to belong to the city as do belong to the city. There is some doubt whether they ought to belong to the city or not. There is a difference of opinion about that. But take the water- works, gas-works, and electric-works that do belong to a city. It is certainly the pur- pose of this provision that they should not be sold without a three-fourths vote; and I can appreciate the position of the gentleman from Richmond when he says that to lease them for thirty years would be as bad, to all practical purposes, as selling them. It has been suggested that we might again pass by this section^. It is an important matter, and one which I would not like to see left entirely in the hands of the Commit- tee on Final Revision and Adjustment. Mr. Robertson: I am somewhat interested in this question. Do you not think the same argument you have made with reference to the lease of property would be appli- cable to the sale of property, that a city might own greatly to the interest of the city to sell, and get it out of the hands of the political bosses and other people who fill the oflSces that would manage that property; and might they not prevent an advantageous sale by controlling a minority in the city council? It seems to me there is more danger in that than there is in the other proposition. I recognize the other danger that the DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 2005 gentleman from Richmond has pointed out, but it does seem to me that the danger on the other side is greater, for the simple reason that you have to control fewer men when it is to the interest of the city to do it. After all, the matter has come down to this: the people must elect better councils, and it will then not be necessary to tie the hands of the councils. Mr. Meredith: I make the motion that Section 11 be passed by for further con= sideration. The Chairman: It requires unanimous consent. The gentleman from Richmond (Mr. Meredith) asks unanimous consent that Section 11 be again passed by for the purpose of perfecting the phraseology. Is there objection? Without objection it will be taken as the sense of the committee. On motion of Mr. Waddill, the committee rose and the President resumed the chair. Mr. Mcllwaine: Mr. President, I have been requested, as chairman of the Com- mittee on Education and Public Instruction, to bring before the Convention a matter which was postponed — the matter of schools and colleges. There is only a small num- ber of members present, but I am perfectly willing to have the matter settled by those who are present. It will be remembered that when this subject was up before its consideration was postponed until the report of the Committee on Taxation and Finance should be pre- sented, as it was understood that a resolution adverse to the action of the Committee on Education and Public Instruction had been adopted by that committee. I am in- formed by gentlemen connected with that committee that the resolution has been re- scinded, and that the committee will make no report on this subject. Therefore, it seems to me it is proper for the Convention to take up this matter and to dispose of it now, and unless there be objection, I make a motion to that effect. The motion was agreed to. The President: The Secretary will read the section referred to. And provided, second, that this section shall in no wise affect the act of the Gen- eral Assembly passed February 23, 1892, relating to bonds held by schools and colleges. Mr. Mcllwaine: Mr. President, this clause was not considered in Committee of the Whole, but it was presented to the Convention, and therefore I suppose it is per- fectly proper to take it up now in the Convention. I ask the careful attention of the gentlemen of the Convention to the reading of the first clause in the section, and then to the clause which is to be under immediate consideration: No appropriation of public funds shall be made to any school or institution of learning not owned or exclusively controlled by the State: provided, that this sec- tion shall in no wise affect the act of the General Assembly passed February 23, 1892, relating to bonds held by schools and colleges. The effect of this section was intended, and I believe such a course will be found advantageous, to leave the matter of the schools and colleges exactly in the position it at present occupies, to leave it in the hands of the General Assembly. That is the only desire the Committee on Education and Public Instruction has on this subject. If there are gentlemen present who wish information on this subject, I can go into the matter, and will give them all the information they wish. The report of the committee was unanimous. I do not know that every member of the committee was present at the time, but when the vote was taken every man present — and there was a very large majority there — voted to present the matter to the Convention in this form. It seems to me the view taken by the Committee on Taxation and Finance is the right one; that is, that this is a legislative matter, and 2006 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. not a matter to put into the organic law of the Commonwealth. Therefore, I do not wish to detain the Convention unless it is necessary, but if any gentleman wishes more information in regard to the matter than he is possesed of, I am prepared to give it in full. Mr. Keezell: I move to strike out the language in Section 11 after the word "may," in line 5, down to the word "colleges," in line 9. Mr. President, this matter comes up to-day unexpectedly, as far as I am concerned, and I believe that is probably true as to other gentlemen, but I do not desire to be put in the attitude of delaying the proper conduct of business. The gentleman from Prince Edward (Mr. Mcllwaine) has made a fair statement, I think, so far as the atti- tude of the Finance Committee is concerned. That committee voted, if I am not un- parliamentary in mentioning a matter that happened in that committee — and if I am I suppose I am only following in the wake of my distinguished friend from Prince Edward — to include a provision where the article with reference to the sinking fund comes in, making it incumbent upon the General Assembly of Virginia that in re- tiring the obligations of the State it should first retire those obligations which bore a higher rate of interest, that they should be retired in preference to those which bore a lower rate of interest. That was the provision that was at first tentatively adopted by the Committee on Taxation and Finance. Later on, I understand, in my absence, the committee reversed itself and adopted the view of a number of the members of that committee who declared that this whole matter ought to be a legislative and not a constitutional matter, that it ought to be dealt with by the Legislature and not by the Finance Committee is the correct one Mr. Dunaway: The members of the Committee on Education entix*ely concurred in the opinion that the matter ought to be left with the General Assembly. If the gentleman is satisfied with the existing law in regard to the matter, this is only a pro- posal to leave the matter just where it is, and not affect it either favorably or un- favorably. Mr. Keezell: That is just where the gentleman from Lancaster (Mr. Dunaway) and I differ. If nothing is to be said about it in the Constitution at all by the article reported by the Committee on Taxation and Finance, then I think nothing ought to be said with reference to it in the article reported by the Committee on Education, be- cause I believe it will be misconstrued, and that the hands of the Legislature, whether intentionally or not, will be, to a certain extent, tied in reference to the matter. If it is to be left to the Legislature, why should we not leave it there without prejudice of any kind? These institutions have certificates of indebtedness bearing a certain rate of interest which are as much the obligations of the State as are any of its banks. Why should they be mentioned at all? Mr. Robertson: This section provides that there shall be no appropriation made to any schools or colleges not owned or exclusively controlled by the State. If you do not put some provision in there limiting that language, might it not be construed that this was in the nature of an appropriation? That is the object of putting it in there. It is not intended to tie the hands of the Legislature. It is left open. Mr. Keezell: But it is not an appropriation if it is paying interest upon obliga- tions which the institutions hold in contemplation of this section. Mr. Robertson: I do not say that. I say this is put in to prevent any such con- struction as that. It is not intended, as I understand the language of the article, to tie the hands of the Legislature at all. It is simply to prevent a construction of this article which might be adverse to these colleges. Mr. Keezell: I understand that ts the opinion of some; but I do not think it is a proper conclusion. If these obligations stand upon legislative action, as they do, bear- ing obligations bearing a given rate of interest, created by legislative action, and bear- ing this rate of interest as long as they are held by these institutions, and not paid by DEBATES OF THE COXSTITUTTOXAL COXVEXTIOX OE TIEGIXIA. 2007 the State, it seems to me the auestion of an appropriation does not enter it, because it is simply a question of paying the interest upon obligations which these institutions hold, and which have been executed by the State. Therefore this language does not undertake to put an appropriation in here, and it will probably be misconstrued by the Legislature as being intended by the Convention to perpetuate for all time an obligation which is now redeemable at the pleasure of the State. Mr. Dunaway: Suppose this language is put into the Constitution, could not the Legislature deal with just as free a hand in regard to the matter as if it were not there? Mr. Keezell; I do not know about that. That is a question about which I am not certain. Mr. Dunaway: I am sure that was the feeling of the members of the committee, and, as the gentleman from Roanoke (Mr. Robertson) has said, it is a true explanation of the situation. It is only a saving clause. It may be that some gentlemen would contend that the State is now making an appropriation to these institutions in the way of paying interest. That is a contention that is not admitted by a great many gentlemen on this floor; but in order to prevent any such construction as that from being put upon the language, this is a mere saving clause which leaves the whole matter entirely in the discretion of the General Assembly. That is my understand- ing of it. Mr. Ts'illiam A. Anderson; Mr. President, I desire to ask my friend whether he ever knew of any interest to be paid out of the treasury of Virginia except in pursu- ance of an act appropriating the public revenues for that purpose? It requires an ap- propriation act to pay interest. Mr. Mcllwaine: I desire to say to the gentleman, in reference to that point, that I asked the auditor if this was an appropriation, and he said it was necessary for the Legislature to appropriate interest every year in the appropriation bill. Mr. Keezell: Yes; for every one of its obligations, but it is no more an appro- priation in the sense of being a special appropriation when you come to pay six per cent, interest upon an obligation than it is an appropriation when you come to pay three per cent, interest. The appropriation is not to the schools, but to pay interest just as any other interest is paid, and no one will contend that we could not pay interest at the usual rate to any holder of our bonds. I care not what school or institution might hold them. When these gentlemen ask to have this provision put in here, they admit, and there can be no other construction of it, than that they admit that these particu- lar institutions are getting special appropriations from the public treasury, in exact opposition to the first clause of this section, which says that "no appropriation of public funds shall be made to any school or institution of learning not owned or exclusively controlled by the State." If they are not getting a special appropriation, there is no necessity for the clause in this section. If they are getting a special appropriation, then they are putting themselves upon- a basis different from the basis upon v/hich they want to put every other institution, however worth^^ that institution may be. That is my objection to putting this clause in the section. If the matter is to be left in the hands of the Legislature — and I am not one of those who is going to make any special effort not to have it left there — let us leave it in their hands as it is now, and do not let us undertake either to prejudice these institutions or the rights of the State. Mr. Boaz: Will the gentleman permit me to suggest to him that if we adopted the first part of this section, we cannot leave the discretion in the Legislature. Mr. Keezell: If that be true, then you admit you are getting a special appropria- tion out of the treasury in defiance of this very clause you have already voted into the ■Constitution. Mr. Boaz: We did not vote it in. 2008 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Mr. Keezell: We have voted it in so far at least as the action of the committee is concerned; and so far as the action of the Convention is concerned, you have voted that clause into the Constitution, which says we shall make no appropriation to " secta- rian or other institutions that are not owned or controlled by the State. The Conven- tion has done that, and now you say you shall be exempt from that provision. The position I take in reference to the matter is that under the contract which now exists between the State and these institutions, by which they hold obligations of the State bearing interest six per cent., they are taken from under the provisions of that clause, and you by your own declaration, now say you are embraced by that clause, and that you are undertaking to be made a special and a privileged class, in distinction from all the other worthy institutions of the State which have not yet been favored enough or fortunate enough to held some of the obligations of the State. On motion of Mr. Braxton, the Convention adjourned until Monday, January 27, 1902, at 12 o'clock meridian. MONDAY, January 27, 1902. The Convention met at 10 o'clock A. M. Prayer by Rev. W. B. Beauchamp. Mr. Stuart: Mr. President, I present the report of the Committee on Agricultural, Industrial and Manufacturing Interests and Immigration, and ask that it be laid on the table and ordered to be printed. It was so ordered. Mr. Keezell: Mr. President, on Saturday, when the Convention adjourned, I was addressing myself to the proposition to strike out of the report of the Committee on Education the provision which says — And provided, second, that this section shall in no wise affect the act of the Gen- eral Assembly passed February 23, 1892, relating to bonds held by schools and colleges. As I started to say on Saturday, if it is the desire of the Convention to say nothing whatever on the question of these college bonds, then I think we ought to say nothing with reference to them. I was one of those who believed that there ought to be a pro- vision in the report of the Finance Committee which should say that it should be the policy of the General Assembly in dealing with this question of sinking fund and re- tirement of the State obligations, to retire those obligations which bore the highest rate of interest first. That was my position. A great many of the members of that committee, in whose judgment I had a great deal of confidence, argued that this was not properly a constitutional matter; that it ought to be dealt with by the General Assembly; that it was so certainly a correct busihess proposition that the Legislature ought to pay the bonds bearing the highest rate of interest, if they were due, in prefer- ence to those bearing a lower rate of interest; that it would be considered a reflection upon the intelligence of the General Assembly if such a provision as this were put into the Constitution, and that probably, though it might be put there in a mandatory form, it would only be sugestive, and after all, remain in the discretion of the General. Assembly. From what appeared on Saturday, it seems the Finance Committee has adopted the views of the gentlemen who hold the position that the Legislature should deal with this matter. While I still hold the same view I held then, and believe it would be wise for the Constitutional Convention to express itself in such a way that there could be no mis- understanding about what the representatives of the people here assembled think is the proper thing to do with reference to the finances of the State, yet if the view DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. 2009 adopted by the Finance Committee is to prevail, we ought to leave the whole matter to the General Assembly, and we ought not to undertake to put into this section re- ported by the Committee on Education a provision which would prejudice the inter- ests of the State, in all human probability, when the Legislature, at some future day, undertook to deal with the proposition and to pay off those certificates in accordance with the provisions of the act under which they were issued. I know, Mr. President, that I am trenching on very dangerous ground. I know frhen I favor this proposition I am treading on the toes of a great many interests: and I can see how gentlemen who have stood up here and been very insistent and persistent in their declarations in favor of the principle enunciated in the first clause of this sec- tion are now flinching when it comes to applying that principle to institutions in which they have some individual interest; and I say that in all kindness, because I know we are all human beings, and we are all made up pretty much after the same pattern. During the earlier hours of the Convention there was scarcely a day passed but that there was a flood of resolutions pouring into the Convention from all over the Com- monw^ealth from religious bodies, declaiming and declaring against the policy of allow- ing the State to make appropriations of public money to sectarian institutions or insti- tutions not wholly owned and controlled by the State. We had upon the floor of the Committee of the Whole, and also upon the floor of the Convention, I am told, though my recollection was not along that line, a discussion as to what should be the policy of this Convention in dealing with this question. After a full discussion here upon this floor, there has been engrafted into the Con- stitution a provision w^hich, I understand from the statement of the gentleman from Prince William (Mr. Thornton), the Convention has refused to reconsider, and is now a part of the Constitution, which says that "no appropriation of public funds shall be made to any school or institution of learning not owned or exclusively controlled by the State," and then there is an exception made in favor of William and Mary College as long as the General Assembly may see flt to make the appropriation to it. I am not a lawyer, Mr. President, as I have frequently had occasion to say upon the floor, and probably I cannot understand the detail and the hair-splitting of legal propositions as some of my friends here do; but I maintain and I believe I can show to the satisfaction of the Convention that there is no legal difiiculty in the way of leaving out of the Constitution this proposition I have moved to strike out, and still leave the status of these institutions and the bonds held by them exactly as it is now, for this reason: I do not believe that legally the paying of 6 per cent, interest upon the certifi- cates held by these institutions is an appropriation to these colleges or institutions; it is an appropriation to pay the interest on the certificates of indebtedness which these institutions hold, and not an appropriation in the sense interdicted by this section of the Constitution to those institutions. Mr. President, let us go along a little bit and look at that. These certificates of debt held by these institutions which bear 6 per cent, interest are as much the obli- gation of the Commonwealth as are its 33 per cent, bonds. They are obligations under an act of the General Assembly which provides for the payment of 6 per cent, interest, and, though in one sense of the word — in the sense that these institutions aie getting the advantage of a higher rate of interest than the other creditors of the Common- wealth — they occupy a position of advantage, yet at the same time they hold the legal status of being the possessors of bonds bearing 6 per cent., and any appropriation which is made to pay interest is not made to these institutions, but is made to pay interest on the bonds held by the institutions. Any other construction of that law would have this effect: The Miller Manual Labor School, for instance, holds $1,044,868.49. all except $75,300 of which bears 6 per cent, interest, that $75,300 bearing 4 per cent, interest: and yet that same Institution holds other obligations of the State, It holds $353,600 of the 3 per cent, obligations of 127 — Const. Deb. 2010 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIEGINIA. the Commonwealth, Will any gentleman upon this floor contend it would be in oppo- sition to the spirit of this clause that has been engrafted here to make an appropria- tion to pay 3 per cent, interest upon the $353,600 held by the Miller Institute which it has come into possession of by purchase in the open market? Mr. George K. Anderson: The $300,000 held by the Miller Manual School, I think, can be transferred by that school, or sold in tTie open market. How about the bonds held under the act of February 23, 1892? Mr. Keezell: They cannot sell those bonds; but, while they cannot do so, yet at the same time so long as they hold those bonds they have a right under the act creating them to receive 6 per cent, interest; and it is not an appropriation to the school, but it is an appropriation to pay interest upon these certificates which they hold. Mr. George K. Anderson: Suppose the Miller School should attempt to sell a part of that $1,044,000 of bonds that it holds to you or in the open market, would the State be bound to pay 6 per cent, on it? Mr. Keezell: Certainly not, sir. Mr. George K. Anderson: Then is not the difference between the 3 per cent, now paid by the State and the 6 per cent, paid the Miller Institution an appropriation made for the special purpose of aiding those institutions? Mr. Keezell: No, sir; I do not so construe it at all. I do not think it is an appro- priation in contemplation of law to those schools, and in that sense in opposition to what is provided here in this section. The State has dealt differently with these insti- tutions from its other creditors in more respects than one. In the first place, it has not required that these bonds shall be scaled and refunded upon the same conditions upon which all other obligations of the State have been scaled and refunded. Mr. Lindsay: Do I understand you lo say the schools cannot sell the bonds and- certificates? They are obliged, are they not, to use the interest on them for educational purposes? Mr. Keezell: That is my understanding of it, that so long as the State is under obligations to pay 6 per cent, those institutions that hold the bonds are under obliga- tions to use it for educational purposes. Mr. Lindsay: And they cannot use them for any other purpose? Mr. Keezell: They have no right to use them for any other purpose, and demand the 6 per cent, interest. That is certainly my understanding . But, whilst all that is true, the State reserves the right at any time it may see fit to redeem or pay off these certificates. The position I occupy is that so long as this contract stands between the State and these institutions, the State is bound to pay the 6 per cent, interest in ac- cordance with the contract by which these obligations exist; this being true, however, does not prevent the State at any time it may see fit from paying off these obligations. Mr. Mcllwaine: How do you interpret this language: "Whereas it appears from acts passed by the General Assembly in 1867, and at various times since then, to be the settled policy of the State to provide support for the education of her citizens and to co-operate with the generous donors of her bonds" — now please listen — "by paying full interest thereon so long as they shall be held as endowments for educational pur- poses." That is the language of the act. Mr. Keezell: Let me have that a moment, will you? I want to know from the gentleman from Prince Edward (Mr. Mcllwaine) how he construes this part of it: "These certificates shall be non-transferable and redeemable at the pleasure of the State?" Mr. Mcllwaine: I explain that to mean that whenever these bonds are used for other than educational purposes the State has a perfect right to pay them off. Mr. Keezell: Mr. President, v/hat I want to say is that when this contract was en- tered into by the State, the State reserved the right at any time it saw fit to redeem the certificates, and so expressed itself in the act. So long as it does not redeem these DEBATES OF THE COXSTITUTIOXAL COXTEXTIOX OF TIEGIXIA. 2011 certificates it is bound to pay 6 per cent, interest. What I am now contending for is that we ought not to interefere by constitutional provision with this act; to the preju- dice of the State, if we are not going to say anything in the Constitution about its be- ing a proper policy to redeem these obligations in preference to those bearing a lower rate of interest, we ought not to undertake to put into the Constitution a provision which will probably be construed as perpetuating appropriations for all time, if you call them appropriations, and one that would tie the hands of the Legislature if it saw fit at some future day to pay off these obligations. There is a good deal in that pre- amble that may be construed very differently from the way my friend from Prince Ed- ward construes it. It is the policy of the State to pay full interest. What is meant by full interest? It has not reduced the principal of those obligations, and it means in- terest on the full amount. If it had dealt with S597,91S.30 of that debt as it dealt with ■all the other debt of the Commonwealth, the principal would only represent 46 cents in the dollar of this, amount. If it had dealt with almost all the remainder of those obligations as it dealt with the other creditors, instead of being worth 100 cenfs it would be worth 68 1-4 cents on the dollar. Mr. Lindsay: Does not the gentleman know that if at the time the State adopted its fixed policy in the matter it had paid those certificates, the Miller School, as an illustration, would have had an opportunity to invest in special bonds at fifty cents on the dollar and would to-day be receiving 6 per cent.? Mr. William A. Anderson: And other institutions also. Mr. Keezell: I differ with the gentleman from Albemarle (Mr. Lindsay) in that there never has been at any time a condition of affairs existing in the finances of the State when the holders of these obligations would be in as good a situation as they hiave been in, and have been kept in by the General Assembly of Virginia. A large part of the holdings of the Miller School were purchased in the open market. Only about half of the holdings of that institution came by devise. The balance, some $450,- 000 or $460,000 — I have not the exact figures here — were purchased upon the open market at prices varying from 55 to 74 cents, I believe was the highest. They get 6 per cent, upon those bonds. Mr. William A. Anderson: Century bonds. Mr. Keezell: Not century bonds, but consol bonds, purchased at prices ranging from 55 to 74 cents. They get 6 per cent, interest upon the face of those bonds and have been getting it ever since they have held them, Mr. Mcllwaine: May I ask the gentleman if that is true as to the Miller fund? Did it not come down during the war and was it not left by Mr. Miller in that form? Mr. Keezell: No, sir; it was not. Mr. Mcllwaine: I can say to the Convention, Mr. President, that the very much larger part of the fund held by Hampden-Sidney was brought over from before the war, and for a considerable part of it the college paid above par. Mr. Keezell. Now, Mr. President, the holdings of the Miller School are different in one respect from most of the other funds. One-third of it was cut off to West Vir- ginia. The great majority of the Miller fund is held in consol bonds, which were re- funded under the act of 1871 and from which fund a third was cut off and assigned to West Virginia, Therefore, the State of Virginia is not paying interest on that one- third: but from the bonds held by Hampden-Sidney and a number of these institutions the one-third has never been cut off to West Virginia, as has been done in the case of other obligations: $597,918.36 of these bonds represent the original debt, the one-third which ought to have been cut off to West Virginia as well as the two-thirds which has "been assumed by Virginia, and which has never been subjected to any refunding pro- cesses Mr. Mcllwaine: I will ask the gentleman why? Was it not because of the agree- ment between the bondholders and the State of Virginia? I see on this floor a gentle- 2012 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. man who was one of the agents of Virginia in this debt, and I have this from his lips before the Committee on Taxation and Finance, that when the agreement was made with the bondholders of the State of Virginia, the Legislature, through its agents, insisted on the bonds that were held by the schools and colleges being exempted from what was done with the other bonds, and the full interest being paid on them; and he held and I hold that the State then made an agreement to continue to pay the 6 per cent, on those bonds, and that is evidently the view which the Legislature of Virginia has taken from that time to this. Mr. Keezell: If the gentleman will allow me, when the one-third was cut off all the other debt of Virginia, it was in 1871. It was not in 1892. The one-third was cut off under the funding bill of 1871, and the State recognized herself as being respon- sible for two-thirds, and that one-third ought to be assigned to West Virginia. I am not raising the question that the gentleman insists upon raising here. My position is not that the Legislature of Virginia or the State of Virginia ought to re- fuse to pay the 6 per cent, upon these bonds, just so long as they are held under this bin under which these institutions surrendered their old bonds and securities, but I do object to anything going into the Constitution which shall undertake to say that for all time the hands of the Legislature shall be bound with reference to this matter, and that they shall not have the right to pay off these bonds whenever they see fit. Mr. Hamilton: Do you construe the language of the report to mean that they will be bound at any time to pay them off? Mr. Keezell: I do not know that the language of the report is fairly subject to that construction; but the very fact that these gentlemen are contending for it with the urgency with which they are contending for it, is, to my mind, clearly suflBcient to show that they hope to gain a point of vantage by having this provision put into the Constitution. Of course, I do not mean any improper advantage. Mr. Robertson: Does not the language there expressly say it shall not affect these acts one way or the other; and if it cannot affect them either way, how in the world can this be construed as prohibiting the Legislature from acting in the way it could act without this provision? Mr. Keezell: That does not affect these acts one way or the other, and I say if it does not, why should we do anything about it? Mr. Hamilton: You have said you think gentlemen are endeavoring to obtain an advantage by putting something in here for the future. Are you prepared to say you are not endeavoring to get an advantage by not putting in anything, and leaving it exactly as it is? Mr. Keezell: I certainly do mean to say that. I mean to say there cannot be the slightest doubt in the world, as I see it, that if nothing is said about It, these certifi- cates rest upon the act which created them, and there can be no prejudice either to the State or to these institutions in the matter if nothing is said. Mr. Robertson: How can it hurt to say in so many words that the thing shall not be affected? Does it not leave it exactly as you say you want it left? Mr. Keezell: I say, so far as I am personally concerned, I believe It ought to be the policy of tlie State to deal with these institutions and with this debt just like any business man would deal with a debt of that sort, if it was due and payable. If the gentleman from Prince Edward (Mr. Mcllwaine) is right in his construction of it, it is an obligation which is fastened upon the State for all time, and the Legislature would not have the right to pay it off. Mr. Mcllwaine: Mr. President, if the gentleman will permit me, this debt has been due long, long ago and the State did not pay it when it was due. If the State had paid this debt in 1892, the time of the act of settlement, these colleges and schools could more than double their money. In 1893 these very bonds sold for 47 1-2 on the Richmond market, and if these schools and colleges had had their money, they could DEBATES OF THE COXSTITUTIOXAL COXTEXTION OF VIRGINIA. 2013 liave doubled the number of their bonds and gotten 3 per cent, on them, and have been doubly as well off as they are today, unless the State continues to pay the 6 per cent. Mr, Brown: If you strike out this provision that is alluded to here and leave the language of the first part of the section, and the construction put upon the interest of these certificates is that it is an appropriation to these schools, would it not be a pro- hibition by the Constitution upon the Legislature to continue the appropriation; and leaving it as it was left by the committee, would it not leave the Legislature exactly in the position as far as all these other schools are concerned, as the rest of the pro- vision leaves William and Mary College? In other words, would it not be in the discre- tion of the Legislature at any time, in pursuance of the act of Assembly of February 23, 1892, to call in these certificates and pay them just as it would be within the pro- vince of the Legislature to refuse to make any appropriation to William and Mary' College? Mr. Keezell: I think there can be no question about it, if you say not a word about it in the Constitution. Mr. Brown: The question I want you to answer is this: If you say not a word about it, and the construction put upon these certificates is that they are appropria- tions to these institutions, would it not be mandatory upon the Legislature to refuse to continue these interest-bearing certificates? Mr. Keezell: I do not know how that might be, but I think it is so clear that this is not an appropriation to the schools under the present status, but an appropriate tion to pay interest upon our obligations which they hold, that I do not see how it can admit of question at all in the minds of the legal profession. Mr. Hamilton: If that is your opinion, that it is not an appropriation now, are you willing to have the language of the report so changed as to say that the payment of this interest shall not be deferred, and permit an appropriation to sectarian institu- tions? Mr. Keezell: I say the right thing is to say nothing about it at all, and let it rest just exactly as it is now. Mr. Withers: Mr. President, vdth the permission of the gentleman from Rock- ingham, I will ask him if this amendment would not be leaving this question Vv-ith the Legislature as it is. The phraseology can be perfected: "Provided, second, that this section shall in no wise compel or prohibit the General Assembly of Virginia to con- tinue or discontinue the payment of the interest on bonds held by certain colleges, etc., under the act of February 23, 1892." Mr. Hamilton: Mr. President, if I may be allow^ed to respond to that, I would say that is a proper way to express it. Mr. Keezell: I do not know that I would object to that, but my opinion about it is that nothing ought to be said about it at all. I recognize, Mr. President, that I am somew^hat in the position here of a lawyer I once heard of in my section or the State. As I heard the story, a certain John Smith was charged with having taken from one of his neighbors a certain fat porker against the peace and dignity of the Commonwealth of Virginia. He was brought before the bar of the court to answer for his delinquency. The prosecuting attorney summoned the witnesses and made out a case that he thought was so clear that there could be no possibility as to what the jury would do when they brought in their verdict. When the jury retired, and after staying out only a few minutes, came in with a verdict of "not guilty," he could not give expression to his astonishment. So, when the matter was all over and the prisoner was discharged, he went around to him and said, "John, I would like to know how this verdict was brought about. You are free now. You can tell me. It does not make any difference." "Well," said John, "I will tell you; every one of that jury had a piece of the pork." (Laughter.) When I see gentlemen bobbing up all over this Convention hall who stand here as the representatives of the various institutions and various Interests which will 2014 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. be affected by dealing with this matter from a business standpoint, and as we would deal with it as business men and individuals, I cannot help but remember that story about the pork. Of course, I mean this only as a pleasantry, and do not wish to be uii« derstood as reflecting for a single moment upon any gentleman as to his position. Now, Mr. President, let us look at the question as a matter of appropriation. I do not believe in its legal acceptation it is an appropriation. In fact, however, it is an appropriation of this much money to institutions which are prohibited from re- ceiving it in the very first clause of this section. I leave out the University of Virginia; I leave out the Virginia Military Institute; 1 leave out William and Mary College; I leave out Blacksburg, because every one of these institutions would not be interdicted by this provision, for the reason that the State either owns or controls them in some sort of way, and makes appropriations of public money to them. I say that under this clause here these State institutions would not be affected, because they do not come under its provisions, and it would not make any difference to the State whether they enforced it or not, because if these institutions were to have the same amount of money they now have, if they reduced the rate of interest from 6 per cent, to 3 per cent., the State would have to increase the appropriation to an amount Sufficient to cover the difference. I believe that is the right way to deal with these matters. I believe we ought not to undertake to do what we are doing in the way of appropriating to our institutions in any other than a direct manner. I want these gentlemen to understand that I am not one of those who would object to appropriating money to Hampden-Sidney or Rich- mond College, or ony of these other institutions, if they made out a proper case, and it was a proper thing, in my judgment, that it should go there. I have no disposition to interfere with or interrupt these institutions in any way, shape or form; but we have gone to work here and, after protracted discussion, after a discussion urged and led here by the gentleman from Prince Edward, the chairman of the committee, whose duty it was to defend the report of the committee, and by the gentleman from Lancas- ter (Mr. Dunaway), whose duty it was probably, as a member of that committee, to uphold its findings, and declared solemnly that it shall be against the principles which we are going to put into our Constitution that any appropriation shall be made to insti- tutions other than those owned and controlled by the State. That is what we have said, and yet we are asked in the same clause to say that, as to all of those who have not been fortunate enough to get in, "You cannot get it at all," and to all those who are in, and in up to the armpits, "We are going to let you stay in as long as possible, probably for all time." Let us look at the injustice which would be done by that. I do not know whether all you gentlemen know it or not, but there are still $712,826.36 of these old obligations of the State which have not been refunded, of the character held by the Miller Manual School; refunded under act of 1871 there are about $72,000. The remainder of this amount is of the character held by Washington and Lee, by Hampden-Sidney, and by a number of these other institutions, from which the one-third of West Virginia has not been as- signed, and as to which there has been no refunding under the act of 1871, or any other acts of refunding. These are out in the hands of the public. Now, all in the world you would have to do, only for this provision here — I suppose this provision would be effective to prevent — in order for anybody to evade the law of the State, would be to sell to one of the institutions of learning these bonds at whatever price they could get for them, or give them, if you please, and then if we were to mete out the same justice to the institutions which became the possessors of those bonds which we mete out to these favored institutions which we are endeavoring to protect here by this clause, the State would at once commence to pay 6 per cent, upon the face value of those obligations, and it might be added to your debt on a 6 per cent, basis. Is there any reason why Roanoke College, or a number of the other of the worthy DEBATES OF THE COXSTITUTIOXAL COXYENTIOX OE VIKGIXIA. 2015 institutions of the State I might mention which might come into the possession of these old obligations of the State, should not be treated the same as Hampden-Sidney, or Richmond College, or the Union Theological Seminary, or these various other insti- tutions which hold these obligations? And if it had not been for this provision which you undertake to legislate into this Constitution, they could have been so treated. But now you are undertaking, after you have gotten in the control of these institutions a certain amount of the obligations of the State, to lock the door and to say that they alone are to be the beneficiaries, and it matters not how worthy the object may be which these institutions can say they want this money for, no further appropriation of State money shall be made to any of them. This is what I object to. I am one of those who believe in carrying out contracts to the letter, I have said and maintained that I would not ask these institutions to take 8 per cent, bonds of the Commonwealth of Virginia unless they wanted to do it, and I would not undertake to force their pay- ment in any otlier way than to come and say to the holders of these certificates, "Here is the money; take it and do what you please; if you can get 10 per cent for it, I only wish you that much more success." Why, I have heard gentlemen charge it was im- moral to undertake to pay off these bonds. I say I have never before in my life, until the consideration of this question came up, heard it intimated, or a man charged with being immoral when he wanted to pay every dollar he owed, principal and interest, on an obligation which was overdue. Mr. Meredith: I should like to ask this gentleman from Rockingham whether these certificates represent bonds that have become past due? Mr. Keezell: Every dollar of them represents bonds that have become past due. Let me give you a little of the inside history as to that act. Before the passage of the act of 1892, these institutions each year had to come to the Legislature and ask a special appropriation to pay them the money which would have been due to them in the way of interest. It is true the Legislature — and I have no criticism to make of the Legisla- ture about it — each year did not undertake to pay them this, calling it interest, because that would have been a discrimnation between this class of creditors and the other class; but they took the obligations held by these institutions and made a calculation of what that interest would amount to, and made an appropriation to the institutions of that sum of money; and it was to prevent the necessity of these institutions coming to the Legislature every year and looking after their particular interests that they decided to turn all these old bonds in and to take certificates of indebtedness upon which the State contracted to pay them 6 per cent, interest as long as they were not redeemed. Yes, and there was a little history hanging alongside that, too. There was an institu- tion in the State that if you will go back and look at the record you will find the first time in its history it got in and received some of this appropriation from the State was in 1892. I have no criticism to make of the business tact which the manager of this institution displayed in getting itself in along with the balance of -these institu- tions. Mr. Hamilton: Will the gentleman be kind enough to mention the institution? Mr. Keezell: I will say the first time there ever appears in the appropriation bill anything for the Randolph Woman's College at Lynchburg is in 1892. I say I have no criticism to make of the gentleman who managed the finances to that matter, be- cause, as I understand, there was some $49,000 of bonds purchased at probably 'less than 50 cents on the dollar. That institution had not been upon the pay roll of the State before, and when the bill was passed in 1892, it was included along with the balance, and began to receive 6 per cent, interest on $49,000 and some hundred dollars which had cost it less than 50 cents on the dollar. I say I have no criticism to make of it. It was a good business stroke, and the gentlem.an who managed it was worthy of all credit, because he was putting himself in no different position from that of the other institutions which were already included. 2016 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. All I contend for, Mr. President, is that if it is thought better to put the language in here, it shall be plain that there can be no question that you do not under- take to prejudice the present status of affairs, I shall not raise any objection; but what I do object to is putting language in here that can be construed as prejudicing the rights of the State under the act of 1892, which would prevent it, if it saw fit and had the money, from paying off these obligations, every cent, principal and interest. The gentleman from Danville (Mr. Withers) has spoken of an amendment. I do not desire to press my motion to strike out, because I understand from the parlia- mentary status an amendment should come prior to the motion to strike out. All I have contended for and all I want to contend for is that if we are not going to say any- thing in the Constitution about the propriety of paying off these debts, we should not undertake to put such a provision in as will be construed as making it a perpetuity, and that the General Assembly shall not in any way, shape or form, directly or by im- plication, be deprived of its right to pay off these obligations if it shall see fit to do so. Mr. Hamilton: Mr. President and gentlemen, I think it is desirable, in consiaer- ing a matter of this kind, in which certainly no feeling should enter, that we under- stand the facts, especially before we indulge in innuendoes and reflections upon the motives of other people. Before we go into the facts I wish to say that it seems to me, and I trust I may be entirely parliamentary in saying it, that suggestions as to bad motives of other people and talking about people flinching from principle when insti- tutions in which they are interested are concerned, and getting pieces of pork, etc., are not arguments. Frequently, gentlemen, talk of that kind is used when arguments cannot be obtained. Now, see how unjust suggestions of flinching from principle are, as applied to some of these institutions. The gentleman who has taken his seat has admitted, at a late period of his remarks, that there are various State institutions here which would not be affected by this matter one way or the other, either by keeping anything in the way of a modification in this report, of leaving it out. Mr. Keezell: I thought I had made that perfectly clear. Mr. Hamilton: It did not seem to me so clear when the remarks were made about flinching from principle. Some of those gentlemen were gentlemen who asked the courtesy of being allowed to ask you a question on the floor, and they seemed to be in- cluded in your remark as well as others. Now, Mr. President and gentlemen, my experience in life in debate has been this, that the maxim, "Honi soit qui mal y pense," which, being translated, means those whoi suggest evil in others generally think evil themselves, is by no means a good argument, and it is almost always resorted to when the ground for a proper argument does not exist. Wliat are the facts about this matter? I know what the facts are, because I ex- amined the matter as a member of a sub-committee. The gentleman from Rockingham (Mr. Keezell) knows v/hat the facts are. The whole matter has been gone through with in one of the committees here and has been determined adversely. I can say that with authority, as he referred to the fact on yesterday. On February 23, 1892— that is, prior to that time and at that time— there were certain colleges and institutions of the State which held bonds of the State. Some of those bonds had never been funded; some had never been cut off in the process of readjustment; some of them had been bought after certain things were cut off; certain portions were razed. At any rate, at that time, which was the time of the so-called Olcott settlement, the fourth or fifth readjustment of the debt of the State of Virginia, the State did act honestly and properly with the colleges and institutions holding these bonds, and the following institutions in the State held the following number of bonds in dollars: Washington and Lee University, $236,758.23; the Virginia Military Institute, $20,000. The amendment here has no bearing on that. If I am flinching from principle here, it DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OE VIRGIXIA. 2017 must be on that account, for I have no other possible bias or leaning in the matter; and I want to say right there that that poor little $20,000 was composed of three funds, respect to her debt. I say with respect to the Miller Manual Labor School, the State Part of it is a fund given that institution by Beresford Hope, an English gentleman, w^ho erected this statute out here to Stonewall Jackson. He gave it to the school to pay annually with the income from it for what are called the Jackson-Hope medals and as a memento to Jackson. The remainder of that fund consists in part of the John K. Hilliard scholarship money, an eminent merchant of London, who gave a fund suffi- cient to maintain one poor young man at that school each year; and m nart a bequest by Philip St. George Tucker, of Virginia, to establish a scholarship. So far as that 120,000 is concerned, I stand here to say now, pay it off to-morrow, if you please. We can invest it so as to bring just as much income. I care nothing for it. But it is not involved in this amendment, and therefore I claim to be exonerated from those people who flinch from principle. Xow, let us see which the next one is. Emoiw and Henry College, $G00; Leesburg Academy, S2,500: New^ London Academy, $6,500: Randolph-Macon College, $19,708; trus- tees of Randolph-Macon College for Randolph-Macon Woman's College at Lynchburg, $49,600. Those gentlemen who are managing that seem to have been peculiarly immoral with respect to this transaction. The University of Virginia, $148,600; Richmond Col- lege. $54,017.19; Hall's Free School, $4,800. I do not know where it is. I suppose some good sensible man years ago left a fund for the promotion of free education here in Virginia, and the State took charge of it. The Episcopal Seminary and High School at Alexandria, Va., $59,900: William and Mary College, $35,900; school commissioners of Prince William county, $1,400; Hampden-Sidney College, $96,353.33; Union Theologi- cal Seminary, $137,695; Miller Manual Labor School, of Albemarle county, Va., $1,044,- 868.49. As to the Miller Manual Labor School, the State of Virginia was in the posi- tion of fiduciary w^hen this thing took place. She had taken the bequest of that old gentleman and had undertaken to act as the trustee of the fund, and yet she did put that fund under conditions with respect to its use, and hampered those conditions so they could not use it even if they did see good opportunities. The evidence was that at times the State of Virginia had used that money when she was hard pressed with respect to her debt. I say with respect to the Miller ^Janual Labor School the State owes it a peculiar and a high obligation, the obligation of a trustee who is also the beneficiary of a fund — a trustee dealing with himself. Mr. Meredith: I desire to ask the gentleman from Petersburg whether there fs any violation of trust or breach of trust in keeping the fund in bonds of this character and then redeeming them. Mr. Hamilton: I will answer the gentleman. Mr. President, whenever a trustee requires the fund under his control as trustee to be invested in his, the trustee's, obli- gation, and puts conditions upon the free alienation of those obligations, when he prac- tically puts a clog upon the free use of the trust fund, and apparently at the time for the benefit of the trustee, I say that is not in accordance with my ideas of the high, moral duty of a trustee. I do not take the ground that the State of Virginia cannot pay these bonds off. I think she can pay them off any time she pleases. I do not agree with the gentlemen who appeared before the committee and agreed it was immoral for the State to do it. My position here is that the Constitutional Convention has nothing to do with it; that it is a plain business transaction which the Legislature should deal with; and if I were in the Legislature, and the State had the money to pay them off, I would vote to pay the last cent of them off. But the real question before the Convention is not that. The real question is whether 3'ou will put a provision in this report which may make the Legislature feel in duty bound to pay them off, and at a time when it would be imprudent, considering the finances of the State, to pay them off. The next fund is the Dawson fund, held by the State literary fund in trust for edu- \ 2018 DEBATES OE THE CONSTITUTIONAL CONVENTION OE VIRGINIA. cational purposes in the counties of Albemarle and Nelson, Virginia. I do not know what it is. I know it is some fund that some good person has left to the State for educational purposes. The amount is $34,187.61. The Virginia Agricultural and Me- chanical College at Blacksburg, Montgomery county, $44,312. Mr. Keezell: How about the college at Hampden-Sydney? Mr. Hamilton: I will get to the college at Hampden-Sidney. I shall not miss any of them. The Hampton Normal, and the Polytechnic Institute, $172,156. Both of those institutions, Mr. President, got those bonds from money given this State by the United States Government, and the State gave it to those institutions for educational purposes, in accordance with the act of Congress, and guaranteed 5 per cent, interest upon it for- ever, by contract. St. Joseph's Academy Orphan Asylum, of Richmond, Va., $6,600. The total of these bonds or certificates is $2,466,455.85, and the total interest upon it is $146,330.32. Most of the bonds bear interest at 6 per cent., a portion of them at only 4 per cent. Now, the ground is taken that the State has no moral right to redeem these bonds. After the most careful consideration, I am bound to differ with that view of the sub- ject. The State of Virginia did put some compulsion on these people owning these bonds in 1893. It said to them, "We will not treat you as badly as we treated other creditors. We recognize you hold your bonds as endowments for a high and a good purpose; and if you will bring your bonds in here and give them to us and let ua finance them, we will give you a certificate of indebtedness which on its face will say that as long as you hold these bonds for educational purposes we wil pay you the same amount of interest that your original bond calls for, but we are going to make that certificate on the face of it non-transferable; you shall not sell it, if it goes up, and invest the money in something else to make a good investment, but we will pay you the interest on it at the figure fixed as long as you hold it for educational purposes; but v/e reserve the right to pay these bonds or certificates with interest whenever we get ready." Now, I do not care what the moral obligation prior to that time was on the part of the State of Virginia to keep these bonds at the same rate of interest. The State did not take anything off from the principal at that time. She said, "Change the form of your debt, waive your right to sell it, and I will pay you the full interest on it until I redeem it." The colleges and institutions accepted that, and by their acceptance of the terms of that act they have no right to come here and say that the State shall not pay these bonds off, principal and interest, whenever she is ready to do so. I do not care what the prior equities were, what the prior moral view or the sub- ject was. That is undoubtedly, it seems to me, a conclusion which must necessarily follow from the institutions holding the bonds accepting the terms of that act. But, Mr. President, this is a mole hill which has been somewhat converted into a mountain. The able gentleman from Rockingham (Mr. Keezell) has been greatly disturbed on this subject, disturbed to such an extent that as long as there was a possibility of attain- ing that view, he wished the Constitutional Convention to practically tell the Legis- lature that two and two makes four, and that they must pay these bonds off as soon as they can. I take the ground that it is not a proper subject of constitutional notice, and there should be no reference to it in this report except that the character of the report which has been adopted has made it necessary and essential that you shall put something there to show that you do not mean to require the Legislature to pay these bonds at once. Otherwise the educational report would convey that meaning to some minds. Consequently some reference should be made to it. The amendment suggested by the gentleman from Danville (Mr. Withers) fully carries out the idea, to my mind. I had drawn an amendment myself which said that the payment of this interest should not be deemed such an appropriation as was above referred to, in order to carry out the idea of the gentleman from Rockingham, but he is not willing to accept that. DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE VIEGIXIA, 2019 Keezell: I will state to the gentleman that I am perfectly willing to accept the amendment of the gentleman from Danville, because I think that creates a preju- dice neither one way nor the other. That is all I want, Mr. Hamilton: Did not the amendment I submitted to you express what you told me yourself? Mr. Keezell: It may have expressed somevrhat the langtiage I used, but at the same time I am not sure it expressed the views or the Ideas exactly I wished to convey. Mr. Hamilton: In other words, Mr. President, if the report is left just as it is, and the language referring to these bonds is stricken out, and no language substituted in its place showing that the Convention does not mean to give a premature order on this subject, then the matter will not be left as it has been heretofore, which is what the gentleman from Rockingham now says he is willing to do, but it will be left with the intimation to the General Assembly that this excess of interest, if I may so express it, is tantamount to an appropriation for purposes forbidden by the Constitution. There- fore you must put something in there to prevent the status quo from being changed. It is essential. But let us see, Mr. President and gentlemen, to what extent this matter will affect the finances of the' State of Virginia. The State to-day has not the money to pay off these $2,500,000 of bonds. It has been said here recently that the State had some 8700,000 or $800,000 of money in its treasury. It did have a month or two ago. I do not know what it has now, or w^hat it will have shortly-; but let us see what effect this drastic action, if it were taken, would have. If 3-0U pay 3 per cent, on the $2,390,255 of bonds which bear 6 per cent., it would make an apparent saving of 871,707. If you paid 3 per cent, interest, instead of 4, on $76,200, you would apparently save $762, making $72,469 apparently saved. That is the total apparent saving. Mr. Meredith: Vhat is the amount of saving after all these bonds are redeemed? :Mr. Hamilton: Seventy-two thousand four hundred and sixty-nine dollars, the dif- ference between the present rate and 3 per cent. Of that $72,469, which might be ap= parently saved, $21,629 of it would be saved from interest which now goes to the Uni- versity of Virginia, to the Blacksburg Polytechnic School, to the Hampton school, to William and Mary College, and to the Virginia Military Institute. In other words, $21,629 of that $72,469 would come out of their appropriations or their income. I think it extremely probable that as to those schools the State of Virginia would make up any such deficiency. If she took it away, she v^'ould be taking it out of one pocket and put- ting it in the other. As far as that portion of it which belongs to the Virginia Poly- technic Institute and the Hampton school is concerned, she would have to make up all except 1 per cent., because she has guaranteed to the United States Government 5 per cent, on the money. Mr. Meredith: Could not these colleges take money received from these bonds and invest them in 5 per cent, bonds with ease, which bonds would be free of taxation and the State would only have to contribute 1 per cent.? Mr. Hamilton: I will ask the gentleman if he does not know he cannot buy good 5 per cent, bonds at par. I think the gentleman and I understand each other at that point. You cannot huy good 5 per cent, bonds at par, at present; and that is one of the troubles about this matter. It is true these institutions consented to this act, mark you, but it was a consent under compulsion to some extent. These institutions have been prevented in the time past, when securities were not so high and when they could have gotten good 5 and 6 per cent, securities to put their endovvTuents in, and the proba- bilities are that whatever they had paid at those periods, something like dve or ten years ago, if wisely invested, would have as much increased in value as have the State bonds. I sav the State will not have to make up this $21,000 which would be taken from the income of these purely State institutions, but the extreme probabilities are that it 2020 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA, will do it, and I presume it would do it, certainly as to Blacksburg and the Hampton school, it would have to make up all except 1 per cent, of ft, and they control much the larger portion. I am aware, Mr. President, that talk about figures is a little tiresome, but I trust the members of the Convention will give me their attention for a few moments longer, unless I have exceeded my time. If you deduct the $21,629, you have $50,840 apparently saved. Now, the next $1,067 you save would be saved on the Dawson fund and the Prince William School fund. Of both of those the State is trustee. It was her duty to manage them to the best advantage. That would leave $49,773. The next thing you could cut off and would cut off would be $29,840 from the Miller Manual Labor School. In that case the State is the trustee. She has had the highest obligations and duties to perform in every respect, and if there is any merit in an institution at all, I do not suppose there is any insti- tution in the South, or in the world, as far as that is concerned, that is better managed or a greater credit to the State or a greater benefit to mankind, or those who are permitted to attend it, than that Miller Manual Labor School. I do not suppose any man ever managed an institution like Captain Vav/ter has managed that one. It is something so magnificent as tO' appeal to the highest admiration of anybody whO' knows anything about it. So that unless you take this saving from the State institutions absolutely and the Miller School, and these four school funds that people have given and that the State has taken charge of, you reduce your saving down apparently to $19,933. You cannot pay these bonds off with any money you have on hand. You might pay $700,000 of them off by depleting your treasury and leaving yourself with nothing; and yet there are all sorts of things people want that money for that is in the treasury. Pen- sions is one; reduction of taxes is another. Heaven only knows how quickly it will go; but suppose you can use the $700,000 for that purpose, then you would have to sell nearly $1,800,000 worth of State bonds to raise the money to pay these bonds off with. My belief, Mr. President, and I think it is borne out by the experience of people who know something about such matters, is that if it were known that instead of the State of Virginia buying her bonds every three of four months for her sinking fund to a considerable amount, she was going to make a sale of $1,800,000 of new bonds, they would depreciate 10 per cent., and you could buy them at 90, where they were not more than a year ago. Mr.. Meredith: Do I understand you to say that if it were known the State was going to sell that amount of bonds, not immediately, not at once, but in instalments, in one. two, three, four, and five years, and thereby reduce her interest account, it would depreciate her securities? Mr. Hamilton: My belief, Mr. President, is that any making of new bonds by the State of Virginia and any offering for sale by the State of Virginia of any considerable quantity of new bonds, I do not care for what purpose, would greatly injure her credit and depress the value of her bonds. Acting on that belief, sir, and considering it carefully as I would such a business transaction in other matters, the State would have to sell those $1,800,000 of bonds at about 10 per cent, reduction from par. If that is true, and you calculate the interest on what she loses, the difference between par and the sale price, deducted from what she apparently saved, about $19,000, you reduce the ultimate saving from all this mat- ter which might come to the State of Virginia to less than $9,000. That is the sum and substance of what might be hoped from it. But, Mr. President, the merits of the case are apparently not up here. If the language of the report, to which I can see no ob- jection, and which I think is essential to prevent a presumption against the people hold- ing these bonds, is not acceptable, then I would suggest either the amendment offered DEBATES Of THE COXSTITETIOXAL COXVEXTIOX OE YIEGIXIA. 2021 by the gentleman from Danville, which, according to my recollection, seems clear and definite, or I would suggest this language: Second, that payment of interest upon the certificates of indebtedness issued un- der the act of the General Assembly, passed February 23_. 1892, relating to bonds held by schools and colleges, shall not be deemed such an appropriation. If gentlemen claim here that the payment of interest on these bonds in excess of interest at which the State could borrow money is not an appropriation, they ought not to object to saying that so clearly in this paper as to leave no doubt on the point. Mr. Meredith: Do you think your language would have more moral effect upon the Legislature to preserve the present status than the language of the committee? Mr. Hamilton: I do not think so. On the contrary, I submitted this language to the gentleman from Rockingham, and although he says he cannot go into details and : irs like lavwers, I think he can split pretty fine when his views run that way. He did not see any objection to the language except that he could not take anything. He wanted it to stay without any objection. Mr. Withers: As I understand, Mr. President, the difference between the contend- ing parties in this Convention is simply this: One wants this interest discontinued; the other wants it continued: but the merits of the case are not involved here. It is a question of what the language of the Committee on Education and Public Instruction means. Those of us who take the view that the bonds ought to retire gradually fear that it means that having laid down a general principle that no appropriation shall be made to certain sorts of institutions, it cites two exceptions thereto, and we contend that the citing of the exceptions is an approval of the same and will be so construed by the General Assembly. All we ask for is that the language of the committee's report shall in no wise affect hereafter any action of the General Assembly on this subject. That is all I am striving to do in that amendment. I am not trying to get a position of advantage over the gentlemen who differ with me as to the payment of this interest; but I simply want to save ourselves from the advantage — even though it be uninten- tional, and I am perfectly willing to believe that it is, and do not question that it is — that I am afraid the language of the report of the committee will give to these gentle- men who hold the opposite view as to the payment of interest, to-wit: that when I lay down any rule of government or of conduct, or any principle that should govern men or nations or peoples in their line of conduct and action, when I say this shall apply to a certain action or to a certain thing. I approve the exception w^hi'ch I have cited to which the rule does not apply. Therefore, vhen we say a man's line of conduct should be thus and so, but this principle shall not affect his breach of it in a certain instance, we unquestionably approve the breach, in my humble opinion. Therefore, having said the State should not make appropriations to institutions owned or controlled by others than the State, but that this principle which we lay down shall not apply to an appropriation to William and Mary College and to certain inter- ests paid on certain bonds held by certain schools and colleges and allowed by a cer- tain act of the General Assembly, I say to the gentlemen of the Convention that when we make the exception in favor of William and Mary, it is an implied approval of that exception, and when we make the exception as to the interest on these bonds, it is an approval of the act allowing the continuance of that interest. All we desire is to say that nothing we do in this Convention regarding that as a legislative matter shall be construed as either compulsory or prohibitory upon the Legislature to take suc"h action as it, in its wisdom, may see fit to take. Mr. Dunaway: Mr. President, so far in this discussion nothing has been said by any member of the Committee on Education. I wish to say a few words before the vote is taken, and in the first place, in regard to remarks that were made by our esteemed friend from Rockingham (Mr. Keezell). He seems to me to have allowed himself to 2022 DEBATES OF THE COXSTITUTIOXAL COXYEXTIOJT OF VIRGINIA. fall into two mistakes, the first with regard to the intent, the feelings, the motives ot the members of the Committee on Education. That was a beautiful story he told about the fat porker, but the members of the committee resent the application of the story to themselves. We feel that we have no portion of that pork. The conduct of the committee is very clear upon this subject. In the first place, after they had made their recommendation and the report came into the Convention, it was on the motion of the committee that the subject was passed by in order that it might be thoroughly considered by our Committee on Taxation and Finance, Those gentlemen have considered it. They have determined to make no recommen- dation in regard to it; and now the question is here, and it is a construction of words. So far as we are concerned, sir, we adhere to the principle and cannot, for any per- sonal consideration, be made to seek an advantage for the violation of that principle. That seems to be the insinuation of the gentleman from Rockingham. But we are just as earnestly opposed as he can be, or as any man upon this floor can be, to appropria- tions made by the State to any other institution than -those that are owned or controlled by the State; and I would go further than any gentleman has gone here upon that sub- ject, and say "owned and controlled" by the State of Virginia. So we are clear upon that subject. I am not concerned as a member of a board of visitors of any of these institutions in favor of any one of them. There is an institu- tion owned by the Christian denomination of which I am a member, but we would not ask that, if this excess of interest' shall be construed as an appropriation to that college, a single cent of that money should be paid. Now, the question arises here, a question that does not properly belong to this hour and this Convention, and yet it has been raised: Is this excess of interest an ap- propriation in the proper sense of the word to these denominational schools? If it is the judgment of the Convention that it is such an appropriation, then I would go as far as the gentleman from Rockingham or the gentleman from Danville, or any other gentleman, and I would put in express terms in the Constitution that this appvopria- tion should not be made, for, as I say, I adhere to the principle; but I am one of those who differ with some gentlemen here, that this is not an appropriation to those insti- tutions. In regard to another matter: The other mistake that has been made by the gentle- man from Rockingham is a misconstruction of words. The committee acted intelli- gently upon this matter. It weighed the words it put in this report, and while I have no objection to the principle sought to be enunciated by the proposed amendment of the gentleman from Petersburg or the gentleman from Danville, I say that both of those amendments are unnecessary, and I shall vote against both of them and stand by the language of the committee. I do not disagree with them at all about the principle, but I say there is no necessity for it, and all this argument grows out of a misconstruction of what I consider to be very plain language. The gentleman from Rockingham (Mr. Keezell) says he would not have this Con- vention say anything about it; he would strike this out. I want to say this, that in saying nothing he says a great deal. Suppose this pro- viso were not put in, or suppose, being in, it should be stricken out, what would be the construction put upon it? Why, all gentlemen who hold views like the gentleman from Danville and the gentleman from Rockingham, when the matter coraos up in the Gen- eral Assembly of Virginia, will read their interpretation into the Constitution: This is an appropriation, and the Constitution says the appropriation shall not be made, and there- fore the General Assembly is compelled to pay these bonds by raising the money some- where, perhaps by selling new bonds, perhaps at great inconvenience to the State; but it would be construed, if we read those views into the Constitution, as a constitutional requirement upon the Genernl Assembly to pay these bonds in order to get rid of mak- ing an appropriation. DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OE TIEGIXIA. 2023 I say if nothing were said here, if this proviso were not put in, then it would be considered as mandatory upon the General Assembly, provided the members of the General Assembly had such views in regard to appropriations as are entertained by the gentleman from Rockingham. It was simply to avoid that that your committee put in a proviso so as to leave the matter just where it is. It expresses no opinion, and I do not want to express an opinion. I do not want the Convention to express an opinion that would in any wise hamper the General Assembly of Virginia. I want it to be left entirely free, and as for the greater portion of the remarks of the gentleman from Rockingham, and the greater portion of the remarks of the gentleman from Peters- burg in reply, as he himself will admit^ they are not proper to this forum. It is not a question here of whether these bonds are redeemable at the mere pleasure of the Gen- eral Assembly or not. If that were a question, then I might have a great deal to say upon if it I were in a different forum. I do not agree that these bonds are redeem- able at the mere pleasure of the State, but I say as that matter is not properly before the Convention, I will not attempt to argue it. All I have to say in conclusion is that your committee did not wish to express any opinion at all, and merely put in a proviso as a saving clause, so that the section, if adopted without it, should not be considered as mandatory upon the General Assembly to make paj-ment of these bonds. The President: The question is on agreeing to the amendment offered by the gen- tlemen from Danville (Mr. Withers). The amendment was agreed to. Mr. Brown: I move the adoption of the section as amended. Mr. Eggleston: ]\Ir, President. I simply desire to call the attention of the commit- tee to what seems to be an oversight. It will be observed that in this report the district is the unit for taxing purposes, the districts being allowed to levy taxes for the support of schools. The latter part of this section overlooks that fact. The third proviso reads: "Provided, third, that cities, towns, and counties may make appropriations to non-secta- rian schools." It should read, "cities, towns, counties and districts.''' I move to strike out the word '''and"' before "counties,'" in line 10^ and insert after the word "counties" the words "and districts." The motion was agreed to. Mr. Eggleston: Then at the end of the section, Mr. President, I propose a similar amendment, to add the words "or school districts." The amendment was agreed to. Mr. Eggleston: Mr. President, in Committee of the Whole, in the first part of this section, the original section was reported by the committee read: "No appropriation of public school funds shall be made to any school or institution of learning not owned or exclusively controlled by the State or some political sub-division thereof," Those words, "or some political sub-division thereof," it seems to me ought not to have been stricken out. I call the attention of the Convention to the fact that under this report all of the tax levied for public school purposes in the State has to go to common or grammar schools, that is, to schools of the lowest grade, and it makes no difference how much surplus the State may have at any time it cannot under this Constitution appropriate one dollar of that surplus to school purposes unless it gives it to these higher institutions of learning. Mr. President, it seems to me since the State has gone into this question of public education it ought to provide education which is going to be of some service to the people. I do not think a man is educated i'f he barely learns to read and write. You do not send him to school to teach him to barely read and write. If that be the case, why are you maintaining the universities and these higher institutions? You send him there to learn to think, and it is the policy of the public school system of every State in the Union to enlarge the common schools and not to have so many of them, and to 2024 DEBATES OF THE COXSTITUTIONAL CONVENTION OF VIRGINIA. make them better schools. It seems to me it would tie the hands of the State by strik- ing out that clause, which will forbid the appropriation of one dollar of State funds to any school in the State unless it be to these colleges; and if you do that, then same reasoning that would allow you to do it, or lead you to do it, ought to lead you to in- sert in this provision a clause which will not provide appropriations for these higher institutions, but should absolutely forbid them. The President: The question is on the amendment of the gentleman from Char- lotte (Mr. Eggleston) to restore the words "or some political sub-division thereof," in lines 3 and 4 of Section 11. The amendment was agreed to. Mr. Gillespie: I move to further amend this section by striking out beginning with the word "provided," in line 4, down to the word "Mary," in line 6. The amendment was rejected. , . Mr. Mcllwaine: I move that Section 11, as amended, be adopted. , The motion was agreed to. Mr. Mcllwaine: I move that the report be adopted as a whole, and that it be printed and referred to the Committee on Final Revision. The motion was agreed to. (Applause.) On motion of Mr. William A. Anderson, the Convention adjourned until to-morrow, Tuesday, January 28, 1902, at 10 o'clock A. M. TUESDAY, January 28, 1902. The Convention met at 10 o'clock A. M. ±*rayer by Rev. W. W. Lear, D. D. On motion of Mr. Brooke, the Convention resolved itself into Committee of the Whole for the further consideration of the report of the Committee on the Organiza- tion and Government of Cities and Towns, Mr. Withers in the chair. The Chairman: The pending question before the Committee of the Whole is the motion of the gentleman from Louisa (Mr. Gordon) to reconsider the amendment of- fered by the gentleman from Norfolk (Mr. Thom) to Section 7, which was defeated. Mr. Stuart offered a resolution relating to the elective franchise which was appro- priately referred. The Secretary will read the amendment, the vote rejecting which is moved to be reconsidered. ~ ' Insert after the word "city," in line 16 of Section 7, the following: "May, in a manner to be prescribed by law, increase or diminish the number and change the boundaries of the wards or similar sub-divisions thereof," and stri'ke out, after the word "city" the rest of the section. Mr. Thom: Mr. Chairman, when this matter was before the committee several days ago I hesitated very much to take the time of the committee by any elaborate state- ment, and so contented myself with a very brief outline of what appeared to me the very plain consideration which, in my judgment, should control this matter. The ad- verse action of the committee upon it makes it essential for me in the interest of my people to bring this matter up again. I do so with the utmost reluctance, because I have attempted as much as possible to avoid consuming the time of the committee. This is a most important question to the cities of the State. It may completely control, if left in its present shape, the political destinies of the cities in a most unfor- tunate manner. The proposition is to require the councils to be apportioned among the DEBATES OE THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 2025 various wards of the cities in accordance with the population. The whole method of city government in Virginia for the past thirty years has been adapted to the exactly contrary principle. Let me ask the serious attention of gentlemen to this consideration. Take a city of the State where the African population is 40 per cent, of the whole population. Now, that population is not equally distributed over the whole city, but it accumulates in one particular section of the city, and as it does so the white vote leaves that section. It may not leave entirely, but for the most part it does. Now, no matter ho^ you may change the lines of your ward, if you base the representation in the councils on the population, you are necessarily forced, even with a change of your suffrage law, to give a vastly disproportionate influence in the councils of the cities to the white vote in those negro wards. This is a crying evil in the city of Norfolk. It applies as well to the city of Peters- burg, and I am authorized to speak for one of the delegates of that city in saying so. It is essential, in order to keep the government of our cities in the hands of intelligent men, whether yeomanry or not, but of the intelligent white people of the city, that there should not be a hard and fast rule in the matter of the apportionment of the rep- resentation in the councils according to the population. This is essential, gentlemen, and there should be no action on the part of the committee based upon an isolated griev- ance in one particular city. Of course, I am impressed with the difficulty which my friend from Richmond experiences about his Clay ward. I know nothing of the facts except what I have heard upon this floor, but I am told that there is one of the great, white wards of the city of Richmond which does not have its proper proportion of rep- resentation in the council. That may be true. On the other hand, the contention of the other gentleman from Richmond (Mr. Meredith) may be true. But whatever may be the fact, whether there is a grievance here in the city of Richmond or not, the effect of that grievance ought not to be to put a rule into the Constitution of this State which will hand over the council of the other cities to the most objectionable proportion of the population. I want to impress upon you, gentlemen, that this matter is not brought up for any but the most overwhelming reasons, and your reconsideration is asked of it for purposes which must appeal to your own experience and to your own observation. I ask you to leave that question to be dealt with according to some elastic rule, so that the Legis- lature of the State may authorize the apportionment of the membership in city coun- cils according to such rules as the public necessity may from time to time require, and not to say that a mandamus may issue directing that the apportionment of representa- tions in the city councils shall be made in every case according to the population of the various wards, as they may from time to time exist. It is impossible to divide these wards up according to any line which would relieve this evil. It is essential and inher- ent in the very nature of the proposition, where you have 40 per cent, of your negro population congregated in one section of your city there must be some elasticity in your Legislature and in your council to deal with that problem on some other basis than that of mere population. I ask. therefore, gentlemen, that you will consider the trouble in which these citi'es find themselves and will reconsider the vote by which you rejected this amendment. Mr. Pollard: Mr. Chairman and gentlemen of the committee, it will be remembered when this matter was under consideration by the Committee of the Whole before, the amendment of the gentleman from Norfolk was overwhelmingly voted down. On that occasion I called attention of the gentlemen of the committee, by way of illustration, to the great hardship which was worked in this city by a violation of this principle of government. I referred to our condition simply for the purposes of illustration. On that occasion I did not know that the same condition of affairs existed in many other cities of the Commonwealth. I called your attention to the fact that in our city the wards are represented in the council each by the same number of representatives; that 128 — Const. Deb. 2026 DEBATES or THE CONSTITUTIONAL CONVENTION OF VIRGINIA. our wards are unequal in population; that some wards having but one-third the popu- lation of others have exactly the same representation in the city councils. I called your attention to the fact that by virtue of this unjust rule the city of Richmond is and has been governed by a minority of her people for the last twenty years. If you draw a line north and south on Sixth street in this city, you will find that the population lying east of Sixth street has a majority of representation in the council, while they have only 30,000 population, 55,000 of population lying on the west side of Sixth street. In other words, a minority of the people of this city have a majority of the representation in the city council. It is so in many of the other cities of the Com- monwealth. If you will take the last census report, you will find this is true in nearly every city of Virginia. Now, my proposition is that the Constitution of the State should guarantee majority rule to every city of the Commonwealth; that it should guar- antee to every citizen of every municipal corporation of the State equal voice in the management of city affairs. Mr. "Willis: The gentleman says that he is in favor of majority rule for every city and town. Suppose there should be a majority of negroes in a city or town, would he still favor majority rule in that town? Mr. Pollard: I do not think there is any danger of negro rule in any city in the Commonwealth, especially under any suffrage law that this Convention will pass. Mr. Chairman, if it was not for the fact that the gentleman from Norfolk (Mr. Thom) Is such a serious gentleman I would think he was joking in intimating danger of negro domination. If the proposition he has just laid down had been uttered by my jovial friend from Hanover (Mr. Carter), I would have felt it was a joke, but inas- much as it was made by the serious gentlem-an from Norfolk I am going to under- take to answer that later on. Mr. Willis: If the gentleman will permit me, I will say the conditions in my city are just as serious as those stated by the gentleman from Norfolk to exist in his city, and I feel just as he does about the matter. Mr. Pollard: I will answer the objection of the gentleman later on. The gentleman from Norfolk has said it would endanger white domination in his city. Let us see what the editor of the Landmark, in his own city, says about the condition of affairs there. The trouble about this thing, gentlemen, is that the cities ask from you a right to violate a great principle in order that they may use it against the negro, and after you give them this power they turn around and use the infernal machine on their white fellow-citizens. Look at the census returns of the population of each ward, and you will see that the discriminations are not against the negro wards, but against the white wards. We gave them this privilege of apportioning the representation among the wards of the city to protect this city against the negro rule, and what did they do? They gave the negroes of the city a larger representation in the council than the white people. Mr. Brooke: I just wish to make it clear that the gentleman is speaking of the city of Richmond. 'We have not done that down our way. Mr. Pollard: I will show the gentleman that he is mistaken. The editor of the Landmark, in commenting on this action, says: Now,as to the apportionment of councilmen, we are informed that the object of the committee This is as to the condition in Norfolk In making population the basis is to get a law which will prevent the defeat of the people by politcians who might give majority representation to wards which con- tain actually a minority of citizens. At present, to come right down to our own DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. 2027 case, Norfolk's apportionment is reflated by the General Assembly, which has itself said' how many councilmen each particular ward shall have. Now, listen It requires little thought to realize that there is no fairness in giving the Second ward With a population of 5,500, by the way For instance, as many councilmen as the First ward or the Third ward. With populations of 8,600 and 9,600, respectively, or nearly three times as many as in the Second ward. Serious injury to the public interests might easily be worked by legal conditions which leave everything wide open this way. There may have been a time when self-preservation required that the General Assembly be able to exercise discretionary power in the premises. But if there ever was such a time, it is past. In addition to insuring the equitable treatment of one ward as compared with another, the pro- posed change in the Constitution will keep incoming wards from demanding or re- ceiving unduly large representation. Now, in answer to what the gentleman from Norfolk says about the danger in his negro ward, the Fourth ward, the editor of the Landmark says this: Norfolk's especial problem, of course, is the Fourth ward That is the negro ward "UTiich is rapidly increasing in population. This ward, as now constituted, would nave entirely too much representation for the good of the city if the basis of popula- tion were used in fixing the apportionment. The best thing to do, it seems to us, is for the councils to redistrict the city if the basis of population shall be adopted. The advantages of that basis as a safeguard ought to overweigh the inconvenience to which we may be put in order to adjust local conditions to the law. The presumption is that at each reapportionment (the law would require one every ten years) there would be also, if the city desired, a redistricting. There is the remedy for any such condition as that depicted by the gentleman from Norfolk. Take our city here. The negro section is called Jackson ward. It lies in the northern portion of the city. Now, if the city were redistricted and a portion of that negro population were put in each ward, there would not be enough of them to endanger Democratic rule in any ward, and instead of there being one Republican ward, every ward in the city would be a Democratic ward. The editor of the Landmark is of the opinion that the same thing can be done in the city of Norfolk, and if you take the figures showing the population of each ward you will find that such a thing can be done. Mr. Brooke: Mr. Chairman, I simply wish to justify my interruption of a little while ago. I said neither the city council nor the Legislature had used the power to district the wards of the city in such a way as to make it operate against the white people. The Second ward of the city of Norfolk is not a negro ward. It has a larger representation in proportion to its population than the negro ward has. Mr. Pollard: May T ask the gentleman from Norfolk if the First and Thirds wards are not white wards? Mr. Brooke: Not entirely. They are by a majority, but there is a large number of negroes living in the Third ward. The First and Third wards both bound on the fourth ward, and there is an overflow of the negro population. Mr. Pollard: But they are both white wards. Mr. Brooke: They are white wards, so far as majorities go. 2028 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Mr. Pollard: And yet the First ward and the Third ward, having three times the population of the Second, are given only the same representation in the city coun- cil. So it seems that in the city of Norfolk, as well as in the city of Richmond, they use this power against the white people. Mr. Willis: The gentleman, as I understand, claims that he cannot get relief from the General Assembly. Do not the majority of the white voters in Richmond control your representatives in the General Assembly; and if you control the repre- sentatives in the General Assembly, and you favor an amendment to your charter, in this respect, can you not get at it in that way? Mr. Pollard: Yes; but if the gentleman lived in Richmond he would know that the Common Council, having the control of nearly one thousand employes of this city, forms such a solid political machine that the representatives from the city would be rarely willing to go against their bidding. Mr. Willis: You ought not, it seems to me to get this in the Constitution, though. You ought not to seek it through Constitutional means. You ought to regulate and control your local conditions better. Mr. Pollard: If it is not a fundamental principle that every citizen in the Com- monwealth should have equal voice in the management of the affairs of his city, leave it out of the Constitution? If it is not a fundamental principle that the majority should rule in the cities, leave it out of the Constitution. The affairs of the city of Richmond come much closer to us than do the affairs of the State. The taxation we pay to the State is only forty cents on $100, while it is $1.40 on $100 for the city. We get from the city police protection; we get fire protection, and we get our water and our light from the city. The affairs of the city come much nearer to our homes and our firesides than the affairs of the State. Why should men, in a free country, be allowed to discriminate against the citizens of the cities in this manner? Is this a free country? Are we to allow political cliques to hold by the throats a ma- jority of the people of the cities? Is that fair? Is it just? Is that not a proper mat- ter to guard against in the Constitution itself? Ought not the Constitution to guar- antee to every citizen equal voice in the management of municipal affairs? Gentlemen, I appeal to you not to allow the violation of this great pn'nciple. Though you allow it for the purpose of discriminating against the negro, the day will come, as it has come in this city, in the city of Danville, and in the city of Lynch- burg, where they use it against the white man instead of against the negro. We ought not to violate a principle for a supposed difliculty in these cities that have ap- pealed to you to leave their hands free. Mr. Thom: Mr. Chairman, I have had grave doubt of the wisdom of the step we are taking in the Convention, of applying to all cities general laws, but I had no idea that the diflBculties which I anticipated in that matter would be so early ap- parent. The difl5culty that has presented itself to my mind is that whenever relief is wanted by one of the cities of the State, some condition existing in another city brought necessarily into the question by a general law would prevent the relief be- ing given to the city where the original grievance existed. I have, however, been will- ing to accept that proposition of the government of cities by general laws; but it seems to me that from that proposition alone this corrollary necessarily follows, that in the Constitution there should not be a hard-and-fast rule that will bear harshly upon some of the communities of the State at the behest of any other community in the State, no matter how powerful. The gentleman from Hampton, the representatives from Petersburg and the rep- resentatives from Norfolk are on this floor, or represented by permission here, pro- testing against putting into the Constitution a rule of representation In the council which will have the effect of giving bad government to those cities. The city of Richmond is here, through one of its representatives — opposed, it is true, by another DEBATES OF THE CONSTITUTIO^^AL COis^YEXTION OF YIEGIiyTIA. 2029 of its representatives — demanding that the conditions existing in the city of Rich- mond shall prevail over the conditions existing in other portions of the State, and that a Constitutional rule, harsh upon some of the communities of the State^ shall be engrafted upon the Constitution. On the other hand, the proposition is to leave that whole matter to the General Assembly, so that it can be adjusted by the needs of the city as they change, or as they may be made to appear. Now, which one of those propositions is most just? Is it right to allow the city of Richmond, through one of its representatives, to put upon the city of Norfolk and these other cities of the State an iron rule that will de- stroy the peace, the tranquility and the prosperity of the city, or is it best to leave that matter to the General Assembly, as proposed by this amendment. I cannot conceive that any proper answer has been given to the question asked by the gentleman from Hampton (Mr. Willis) a moment ago. The question was whether or not the representatives in the General Assembly of this State did not rep- resent white majorities from the city of Richmond, and whether or not they would not answer to the voice of that white majority. The answer was that there were in- fluences in the city of Richmond strong enough to control their representatives in the General Assembly. What does that mean? It may mean that the views which the gentleman here has of the city of Richmond are not the views of the majority of its population. It may mean that he is not right in his assertion of the senti- ments of his people upon this floor, but that the other gentleman from Richmond is right; but, however that may be, and with it I have no concern, I do plead against putting into this Constitution a rule that will bear harshly and disastrously upon the other communities of the State, when that whole matter may be left to the General Assembly. The Chairman: The question is on the motion of the gentleman from Louisa (Mr. Gordon) to reconsider the vote by which the amendment offered by the gentle- man from Norfolk (Mr. Thom) to Section 7 was rejected. The motion was agreed to, there being on a division, ayes, 27 ; noes, 24. The Chairman: The question now before the committee is on agreeing to the amendment of the gentleman from Norfolk (Mr. Thom) to Section 7. Mr. Thom: Mr. President and gentlemen, we have about adjusted foui- differences, I believe, and I ask that the following amendment be adopted. I will read it, and I think the gentlemen here will agree to it. Insert after the word "city," in line 16, the following: "May in a manner to be prescribed by law increase or diminish the number and change the boundary of the wards or similar sub-divisions thereof and." Strike out. in lines 19 and 20, the words "in proportion to their population on the basis of the last preceding United States census" and insert in lieu thereof "in a manner to be prescribed by law." In line 22. page 14. strike out the word "herein" and insert the word "so." The section would then read: The council of every city may. in a manner to be prescribed by law, increase or diminish the number and change the boundaries of the wards or similar sub- divisions thereof, and shall, in the year 1903. and in every tenth year thereafter, reapportion the representation in the council among the wards or similar sub-divis- ions in a manner to be prescribed by law; and whenever the council of any such city shall fail to perform the duty in that respect so prescribed, a mandamus shall lie on behalf of any citizen of such city to compel its performance. :\Ir. James W. Gordon: I repeat what I have said heretofore, that I have not come here with the idea of making a Constitution to suit the city of Richmond alone, but one to suit the State of Virginia and all the communities of the State. I be- lieve this is a matter which affects the whole State; and I call the attention of my colleagues to the fact that this provision does not make it mandatory that there shall 2030 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. be a redivision or a redistricting of the cities. It provides that "the council of every city may in a manner to be prescribed by law." Mr. Pollard: No; it says "shall." Mr. James W. Gordon: It says it "may change the boundaries of the wards." Then it says "it shall reapportion the representation." The language there "may change the boundaries of the wards" was put in a tthe instance of the chairman of the committee to meet a possible objection to the reapportionment feature which is contained in the report, and is not intended to be mandatory at all. Mr. Chairman, I believe if the Suffrage Committee, which is at work here every ^ night, succeeds in presenting to the Convention any provision which will in any large degree eliminate the negro voters of the State, the white people of the State are going to divide along economic lines, and that we are going to have two large and strong white parties in the State of Virginia. I believe majorities have the right to rule, just as my colleague from Richmond (Mr. Pollard) has said; but I do see this great danger in adopting the amendment offered by the gentleman from Norfolk (Mr. Thom). If we should have a Legislature here controlled by one political party, and there should be a city or a number of cities in the Commonwealth in which the interests of the other party prevailed, you might have that Legislature forcing upon * these local communities a representation which would absolutely destroy them, per- haps, or reapportion them; and I say you are doing an exceedingly dangerous thing when you put it in the power of a hostile Greneral Assembly to absolutely control the will of all these local communities in this way. There is but one safe way, and that is to allow the local communities to govern themselves according to their local sentiment. You do that when you adopt the pro- vision originally offered by my colleague from Richmond (Mr. Pollard), and you can do it in no other way. If the city of Petersburg or the city of Richmond has a voting population which is Republican in its sentiments, the city of Petersburg or the city of Richmond ought to go Republican; but I do say that no Republican majority in the General Assembly ought to be allowed to apportion the representation in the manner which has been indicated between Jackson ward and the other wards of this city, thereby defeating the best sentiment, perhaps, in the community. It is a safe thing to leave in the Constitution, as has been suggested, a reappor- tionment on the basis of population, with this check upon any evils arising out of that reapportionment, that the Common Council may redistrict the wards so as to throw the colored population along with the white population in such a manner as to prevent any evils arising from it. I do trust the committee will vote down these amendments and allow the report of the committee to stand, only retaining the proposition or the amendment offered by the chairman of the committee. The Chairman: The question is on agreeing to the amendment of the gentleman from Norfolk (Mr. Thom) as modified. The amendment was agreed to, there being, on a division, ayes, 28; noes, 24. The Chairman: The next question before the committee is in regard to the perfecting of the phraseology of Sertlon 11. Mr. Brooke: Mr. Chairman, when Section 11 of the report was last under con- sideration by the Committee of the Whole, it was passed by for the purpose of an amendment in relation to the provision in reference to leases and franchises. I niove as an amendment that the following language be added at the end of the section: "Nothing herein contained shall be construed as preventing the General Assembly from prescribing additional restrictions on the power of cities or towns in granting franchises or in selling or leasing any of its property, nor as repealing any addi- tional restrictions now required in relation thereto in any existing municipal charter." DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF TIRGIXIA. 2031 Mr. O'Flaherty: Mr. Chairman, I desire to ask the chairman of the committee if that would not be the law without putting it in the Constitution? Mr. Brooke: We think so except as to the last clause in regard to repealing. In the end of the second section of this article we have provided that the existing charters shall remain in force except as they are inconsistent with the provisions of this Con- stitution. Now. I think the first clause of the proposed amendment, at any rate, would be law; that the Legislature might prescrihe additional restrictions; but there might be some question as to whether it would be the law that the Legislature might preserve the already additional restriction. Mr. OTlaherty: It seems to me the thing to do is to say what we wish to say, and simply put in a paragraph as to repealing. We do not want to put in the Con- stitution things which we know will have no effect, that are mere surplusage: and I suggest to the chairman of the committeee, with all due deference, that he should simply put in the part of the ammndment which refers to repealing. Mr. Brooke: I will say to the gentleman from Warren (Mr. O'-Flaherty) that, after a great deal of conference with regard to the matter, the language as suggested by the amendment was accepted, as stated to a majority of the members of the com- mittee whom I could see here and there. We have had no meeting of the committee. While it is my opinion, and I think it is the opinion of a good- many others, that that first clause confers no power which does not already exist in the General Assembly, yet there are some gentlemen in whose opinion we have great confidence who think there may be some doubt about it. For that reason we felt it was proper to put it in. The Chairman: The question is on agreeing to the amendment offered by the chairman of the committee (Mr. Brooks). The amendment was agreed to. Chairman: The next question before the committee is in regard to the amendment offered by the gentleman from Winchester (^Iv. Harrison) as independent Section 1.5, which the Secretary will read: Section 15. Nothing in this article is intended to modify, alter or repeal any char- ter of any city of a population under 25.000 inhabitants, or the control of tbe General Assembly over the same. Mr. Brooke: Mr. Chairman. I desire to say to the Chair and to the members of the committee that I feel a little bit embarrassed about having this new section brought up before the committee at this time. Y^Tien it was offered by the gentle- man from Winchester, it was. at my instance, passed over because of personal reasons, which influenced him. I had no idea at the time that the gentleman was going to be absent from the Convention for four or five days. I appealed to him not to press it before the Committee of the Whole at that time, because I was feeling very unwell and wanted to get away, and he agreed it should go over. I feel embarrassed about pressing it at this time. Having made that statement, I will leave it to the commit- tee as to whether they will allow it to go over or not. Mr. Keezell: I hope the Convention will not pass the matter by, but will go on and dispose of it, because no injustice can be done to the gentleman from Winchester by proceeding with it. and otherwise the whole Convention will be delayed. When the gentleman from Winchester returns, if his amendment is not adopted and he desires to insist upon it. he will have an opportunity to do so in Convention. I hope the Convention will not pass the matter by. but that it will finish up this report, so that it may be taken up in the Convention. The Chairman: The question is on agreeing to the amendment. The amendment was rejected. On motion of Mr. George K. Anderson, the committee rose. The President having resumed the chair, Mr. Withers reported that the Commit- 2032 DEBATES OF THE COI^STITUTIONAL CONVENTION OF VIRGINIA. tee of the Whole had completed the consideration of the report of the Committee on the Organization and Government of Cities and Towns, and had directed him to re- port the same, with amendments, to the Convention, with the request that it be printed. It was so ordered. Mr. Hunton: Mr. President, I desire to present the report of the minority of the Committee on Corporations and to ask that it lie on the table and be printed, and that 500 extra copies of it be printed. , - ^ - It was so ordered. On motion of Mr. Eggleston, the Convention adjourned until to-morrow, Wed- nesday, 29, 1902, at 10 o'clock A. M. WEDNESDAY, January 29, 1902. The Convention met at 10 o'clock A. M, Prayer by Rev. H. E. Johnson, D. D. On motion of Mr. Brooke, the Convention proceeded to take up the report of the Committee on the Organization and Government of Cities and Towns, as amended by the Committee of the Whole. The sections from 1 to 8 inclusive were read and considered. Necessary verbal changes were made, but no amendment materially changing the report was adopted. Mr. Ingram sought to make city treasurers eligible after their second term, and Mr. Lindsay proposed an amendment abolishing the office of city sergeant in cities of the second class. Both amendments were voted down. Section 9, relating to the passage of city ordinances and the veto power of the mayor, was then read. Mr. Meredith proposed the following amendment: No ordinance or joint resolution appropriating money exceeding the sum of one hundred dollars, imposing taxes or authorizing the borrowing of money shall be passed except by a recorded vote of two-thirds of all the members elected to each branch of the council of said cities, and in case of the veto by the mayor of such ordi- nance or joint resolution, it shall require a recorded vote of three-fourths of all the members elected to each branch of the council to pass the same over such veto in the manner provided in Section 9. The amendment was rejected. Mr. Hatton: Mr. President, I offer an amendment in that same language, but to strike out the words "two-thirds" and make it a "majority of the members elected"; and the passage over the mayor's veto to be by a two-thirds vote. This amendment will simply provide and insure that when these specified acts are done by the council those acts shall be done by a majority of all the members elected rather than by a majority of quorum. The amendment was agreed to — ayes, 50; noes, 16. . , Mr. Meredith proposed the fqllowing amendment: Add at the end of the section as amended the following: Nothing contained in this section shall be construed to repeal any provision in any existing city charter requiring a two-thirds vote for the passage of any ordinance for the appropriations of money, imposing taxes, or authorizing the borrowing of money. Mr. Meredith: Mr. President, I wish to say a few words in regard to that amend- ment. I simply ask that the cities which now have this protection shall be allowed to retain it. You have passed an amendment requiring a majority vote of all elected. DEBATES OE THE COXSTITUTIOXAL COXTEXTIOX OE VIEGIXIA. 2033 That Tvill protect those that come in the future, but some of us ^'ho live in cities already existing knovr the necessity of this provision, and I respectfully ask that this amendment be adopted, so that those of us who have this protection in our charter shall not be required to give it up. It cannot affect anybody else,, and vre certainly have the right to ask you gentlemen to let us require that our money shall not be expended by a less vote than vre think is proper. The amendment was agreed to. Sections 9 and 10 were then adopted. Section 11. relating to the sale or lease of municipal franchises, was then read. Mr. Meredith: I submit an amendment. The language of the section, beginning at line 13, is: '"'And no franchise, lease or right to use the same, either on, through, across, under, or over, and no other franchise granted by a city or town to any private corporation, association, firm, or individual, shall be for a longer period than thirty years." I desire to have this language added: ''Before granting such franchise or privilege for a term of years, except as to a trunk railway, such municipality shall first, after due advertisement, receive bids therefor publicly in such manner as may be provided by law, and shall then act as may be required by law.'' The whole object of that amendment, Mr. President, is simply to require publicity. These franchises are sometimes given away in a night, and the object is to require that publicity may be had about them and an effort made to ascertain what they are worth. That is the only restriction that is put upon the council; that before you give away this property, no matter whether you do it hurriedly or after due consideration, you shall let the public know what the franchises are worth, and then after that you shall do what the General Assembly may see fit. If the General Assembly shall re- quire you to put it out to the highest bidder, you are compelled to do that, but it is left entirely to the Legislature. All I am striving for is that there shall be some pub- licity given before these decisive actions are taken in regard to the disposition of very valuable property belonging to municipalities. I wish to call the attention of the Convention to the fact that in the Constitu- tion of Kentucky they have a far more stringent rule. It provides: '-'Before granting such franchises or privilege for a term of years, such municipality shall first, after due advertisement, receive bids therefor publicly and award the same to the highest and best bidder, but it shall have the right to reject any and all bids." That Con- stitution requires that the bid shall be given to the highest bidder. There may be instances where that might be unwise and instances where the corporation in ex- istence and using some of the franchises of the city may desire to keep out a very worthy competitor, and it might enable them to do so improperly. That is the argu- ment that has been used, but this amendment does not go to that extent. It does not require that it shall be given to any person, but simply that there shall be publicity about the matter. It says to the council: "You shall do this thing after due consid- eration, and you shall try to find out what the franchises are worth, so that the people can know how their property is being given away or sold, or whatever disposition is made of it"; then afterwards such proceedings may be taken as may be required by law. We are proceeding along the line of modern thought, but we do not go as far as the Constitution of at least one of the States goes; and I ask that the Convention, unless there be some reason given by these gentlemen from other cities In opposition to it, give us this protection, simply that our property shall not be given away secretly and without knowing what it is worth, ^ye want publicity about it and the ascer- tainment of its value before the franchises are disposed of. Mr. Hatton: Mr. President. I cannot understand why publicity as to the other corporations provided for in this amendment should be required, .but that a trunk railroad should be exempt from that publicity. Therefore I feel constrained to vote 2034 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. against the amendment. I ask the Convention to seriously consider before adopting an amendment of this kind which excepts a trunk railroad. I ask the Convention to vote the amendment down. I do not see why a trunk railroad should be exempted from publicity in these matters any more than any other corporation. I am not hostile to railroads, but for the life of me I cannot understand why a trunk railroad should be exempted. Mr. Meredith: Would the gentleman object to making a motion to strike that part out? I want to get a test of the question as to what we shall do with our fran- chises in the cities. I am fighting for the principle that they shall not be given away and that the people shall not be robbed. That is the fight I am making on this floor, and I propose to make it. The reason the trunk railroad is excepted is that one very serious item to munici- palities now is as to their trunk railroad facilities. It is a very serious item with us, the question of handling freight. We all strive, in all of these municipalities, to have the trunk lines come to the doors of our warehouses. There are warehouses in the city of Richmond that have been built at a cost of $45,000, to get rid of having to handle freight from the depot to the warehouses. The expense of a quarter of a cent a pound upon freight destroys practically the profit on it. You can therefore conceive as to how important it is that we should have a railroad to our doors, so that we can dump our freight into a car or out of it, just as there is a necessity for it. Those are modern necessities. If you go through the city here, you will find that wherever they can run a branch or switch track of one of these trunk lines, it is done simply for the purpose of carrying freight, not to carry passengers. The freight is carried up to the door of a warehouse and the car remains until it is emptied, and is then taken away. There are a great many instances of that kind in the city of Richmond, and it is one of the reasons why we are able to compete with other cities in business. Our railroad facilities are encouraged as much as possible in that respect, and it is the great desire of the merchant to have the railroad at his door if he can get it. The objection that applies to street railroads does not apply to the trunk railroad, for the reason that the franchise of these switch-tracks is not worth anything. It is a mere use and occupancy of the street for the benefit of the public generally. There is no charge made by the railroad. It has no receipts from this source, and the branch track is not intended to come in competition with other railroad lines as street railroads come in competition with each other. It is simply for a temporary use in the receipt and discharge of freight. That is one reason the trunk railroad is excepted. In regard to the other, you will find that when cities are limited as to what corporations should enter the streets of the city without permission of the city, nothing is said about trunk railroads, and it would be extremely unwise to do so. I am heartily in favor of letting none of these local utilities occupy the streets without the consent of the municipalities, but I would be opposed to blocking a steam railroad and requiring the consent of the city before it should go throagh. I think that is a thing that belongs to the whole State, and the State ought to have something to say about it. The committee was wise enough to leave that out. Therefore there is no restriction upon a trunk railroad entering a city without the consent of the city; and when you come to this kind of use by a mere spur or switch-trick, it is not a franchise from which they derive any benefit, like a street railroad, in daily use, but simply a temporary occupancy for the benefit of some of the merchants owning warehouses in the -city. I drew the amendment in accordance with the provision in the Constitution of Kentucky, but provided that this Constitution shall not apply to a trunk railroad, because it would not do to hamper the city in regard to a trunk railroad by requirin-g the consent of the city. If any gentleman thinks the provision ought to be extended DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF YIEGIXIA. 2035 to embrace a trunk railroad, all he has to do is to move to keep that out; tut I have explained the reason for it, and the thing ought not be voted down simply because an exception is provided for, unless the thing itself is evil. I earnestly ask that the cities of the Commonwealth may have some chance to ascertain what the value of their franchises is, and that these municipalities shall be required to take some steps to secure publicity before such franchises are disposed of. There are gentlemen on this floor who know their cities have been deprivea or a iarge amount of property by the hasty manner, to say nothing harsher^ in which franchises have been disposed of. I do not represent the only city in which that has been done. It has been done in my city, to our great detriment. We are simply asking that this protection may be given us. and that the councils may have their hands free to any other extent that the General Assembly may see fit to give them. Mr. George K. Anderson: Mr. President, the provision embraced in the amend- ment offered by the gentleman from Richmond (Mr. Meredith) has been very care- fully considered by the committee having these matters in charge Mr. Meredith: May I interrupt the gentleman? I do not think the gentleman re- members what the committee considered. The resolution that was offered by myself before your committee required that they should be put up to be bid upon along the line of the Kentucky Constitution. This amendment does not require anything of the kind. It simply provides that some steps shall be taken to give publicity to the matter, and also to ascertain the value of the franchise, and then the council is perfectly free to act as the General Assembly may require. Mr. George K. Anderson: Mr. President, the proposition, while clothed in differ- ent language, is practically the same. It is that before the council of a town or city shall make a contract for the use of its streets, it shall reduce that contract to writing or to specifications' and then receive bids for it. Mr. President, it is a matter of common note, and we all know it as a practical fact, that the cities and towns of the Commonwealth do not find out themselves what they have. Some man comes along who sees that in the city of Richmond or in the city of Norfolk a street railway would, in his judgment, pay under certain terms and conditions, if he can get those terms and conditions. He goes to the council and agrees with the council as to the terms and conditions under which he may occupy the streets of that city with his enterprise. If that gentleman is met with this proposition, "You have come here and seen exactly what you think w^e need; you have seen that this thing will be a good thing for the city; you have seen it will be a good thing for you; and 3'ou and I now will agree on terms under which we are willing for you to occupy the streets of this city"; and then the council tells him, "Before we can let you do it, we will see whether somebody else will not pay more for it than you will pay for it." it will re- tard the development of the cities of this Commonwealth just as the cities of the Commonwealth of Kentucky have been retarded by the provisions in the Constitution of that State, and just as the cities of West Virginia have been retarded, because they have a statutory provision very much along this line, and I have had some personal experience in that State. It is like making shoes for a man and then putting them up at auction. Nobody will bid for them except the man for whom they were made. So with your franchise provisions; they will suit the man who came to that town to get the franchise, and they will suit nobody else: and putting them up at public auction will be a matter of supererogation. There is no necessity for it in the world. My friend suggested it will prevent hasty legislation. I should like to ask him whether a charter has ever been granted by the city council of the city of Richmond so hastily that nobody ever knew anything about it? We have provided here that those franchises shall be passed by a majority vote of the council and receive the ap- proval of the mayor. That gives publicity enough. Everybody knows that the re- 2036 DEBATES OP THE CONSTITUTIONAL CONVENTION OF VIRGINIA. porters will let the people know what is going on in the city council. There is oppor- tunity enough, and it will just simply amount to this: If you put a provision of this sort in your Constitution, gentlemen who are interested in these enterprises will taboo the State of Virginia, as they have tabooed Kentucky and West Virginia along those lines. For those reasons we thought it wise not to put in any provision offering these franchises for public sale. Mr. James W. Gordon: Mr. President, I am sorry to have to differ with what is apparently the majority of the Committee on Cities and Towns in regard to this matter, but my grief is somewhat modified by the fact that I can so heartily agree with my colleague from Richmond (Mr. Meredith) in the matter. It seems to me the argument just made by the gentleman from Alleghany (Mr. Anderson) is not a good one for this reason: The city council in dealing with these applications for franchises does not deal with them as a body alone, or as individuals, but it represents the whole body of the people in regard to a thing in which the public is interested. I freely admit that if this were a mere matter of private contract between the members of the city council and an applicant for some benefit which they could confer upon him, the gentleman's argument might hold; but where the council represents the whole body of the people who are interested in the value of these franchises and in the nature of the use of the streets that is to be given by them, it does seem to me no harm can come by throwing on light and giving the fullest publicity to the grant which the city proposes to make. The gentleman from Alleghany says that the franchise which it is proposed to publish will not fit some of the bidders, and he likens it to a pair of shoes that would be put up at auction. I call his attention to the fact that there is no one thing that is more sought after in these days than city franchises of all kinds; and the capital that is necessary to run such an enterprise can be furnished by one set or men just as well as by another set of men, and no applicants for these franchises monopolize all the brains that are in the community. We have had frequent illustrations of the fact that franchises are granted by city councils in the face of offers made by other persons to purchase those franchises at a very considerable amount. We had an illustration of it in Richmond a year or so ago. An offer of $50,000 was made for a franchise, and it was given without any such consideration to another company. Mr. George K. Anderson: Was there any want of publicity about the transaction — the fact that a franchise was being sought? Was that the difficulty? Mr. James W. Gordon: No, it was not, in that particular case; but it might very well be in some cases, and it has been in other cases. I will cite the gentleman to the fact that recently in the State of Pennsylvania and the city of Philadelphia one of the greatest scandals this country has ever seen grew out of the very fact that pro- vision was made for the sale of franchises in Philadelphia through the Legislature of Philadelphia and the city council of Philadelphia in such a hurried way as not to give publicity to the matter. If the gentlemen of the Convention have read over the report of the Committee on Corporations they will find that report provides for the fullest publicity as to corporate transactions in the State of Virginia. I can see no reason why we should not extend that principle to the grant of municipal franchises, and when any set of men come before any of our councils with a proposition for the use of our streets, they should be met by the city council, representing the whole body of the people, and be given the franchise on those terms and conditions which will conduce to the best welfare of the whole community, and I believe the amendment of the gentleman from Richmond (Mr. Meredith) will tend to that result. I shall, therefore, support it most heartily, and I trust the Convention will adopt it. Mr. George K. Anderson: I desire to ask him whether he thinks if a long dis- tance telephone company reaches the corporate limits of my town, which contain DEBATES OF THE CONSTITUTIONAL CONVENTION" OF VIRGINIA. 2037 about 3,500 people, and makes an arrangement with the council of that town by which it may traverse the streets with its telephone lines, that council ought to be required to make any specifications and plans by which that company is to go through there and then receive bids for it? _ Mr. James W. Gordon: My friend from Alleghany has cited an extreme case to sustain his position. I wish to say to him that if a gas company or a water com- pany or an electric light company or a street railway company came to his town and asked for the privilege to use the streets, it would be the most natural thing in the world for that council to sit down and draw an ordinance under which any set of men could operate that franchise in the streets, under the streets, and over the streets of his town, and then put it up and see who would be willing to give most for it, and not confine themselves inflexibly to one set of men or to one set of capital. That is the state of affairs that this amendment tends to reach, and it is a state of affairs which is confronting the cities of the Commonwealth almost every day in the year. It seems to me there can be absolutely no injustice done, and great good may come, by the adoption of the amendment offered by my colleague. Mr. Meredith: Now, Mr. President, is the gentleman going to undertake to say because in small towns, where you are not apt to have more than one line of street railway, if any, or one line of telephones, if any, or one set of gas works, or electric works, if any, it is not necessary to advertise and receive bids, that shall be a guide for the municipalities of the State? Mr. Barbour: Could not this provision that you wish put in here be handled better by the General Assembly than in the Constitution? Mr. Meredith: No, sir; we are putting restrictions in here upon municipalities, and, as I said a few days ago, it seems to me there is no subject in modern times that requires more careful consideration and stronger limitations than the municipal- ities. They are becoming the great evils and sores in the body politic, and unless you put some restraint upon them you will not be able to control them and get rid of these evils. Mr. William A. Anderson: Mr. President, if my friend from Richmond (Mr. Meredith) will allow me. The gentleman from Alleghany (Mr. Anderson) asks for some instance in which communities had suffered by reason of the common councils to give the people an opportunity to make opposition to schemes of spoliation. I de- sire to call his attention to a remarkable instance in the recent history of one of the great cities in this country. When the city of Chicago was about to be plundered by the corrupt action of its council, its mayor issued a proclamation announcing that he would put the members of that council in the penitentiary if they dared to pass the ordinance giving away the rights of the people of that city for fifty years to the most valuable franchise under the control of the city council, but that did not deter the council. Under the charter of that city, or the Constitution of the council, they could not pass such an ordinance as that in a single night, as can be done under the Con- stitution we are framing if it is adopted in this shape. And 50,000 or 75,000 of the citizens of that city surrounded the council chamber on the night upon which the ordinance granting the proposed franchise was to be considered, and the members of the council were served by the people with notice that if they dared to pass such an ordinance it would be at the peril of their lives. Mr. George K. Anderson: There seemed to be a good deal of publicity about the matter. Mr. William A. Anderson: Yes, sir, there was publicity because it was required there, and the threatened wrong was prevented. Mr. George K. Anderson: That is what my friend from Richmond (Mr. Mere- dith) is asking for here. Publicity is all he wants. Mr. Brooke: Mr. President, I simply rise for a moment, because I do not like 2038 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. to permit to pass uncorrected an erroneous statement about this very matter we have under consideration. The gentleman from Rockbridge (Mr. Anderson) has said that under the Constitution of the State of Illinois the city council could not pass an ordinance in a single night, as they could do under this Constitution, if this article is adopted as it is prepared, and yet for a week here we have been trying to explain to the Convention that one of the very things we want in this article is to have two chambers to the councils, so that the very thing could not be done which the gentleman from Rockbridge says could be done if this article is adopted as prepared. Mr. Meredith: I have known of ordinances passed at night and presented to the mayor by 9 o'clock the next morning^ in order that there might not be any oppo- sition. Mr. President, we are speaking from experience, and we know what we are talking about. I wish to ask the gentleman from Alleghany (Mr. Anderson) what harm would be done in the case he refers to if that long distance telephone ordinance were advertised? I say that no harm would be done in such a case, but great harm can be done, where large franchises are to be given out, unless you require publicity in regard to them. We v/ant to protect ourselves against such a state of affairs as has existed in Philadelphia and as have been portrayed here as existing in Chicago, and such as has existed in this Commonwealth, not as large in the enormity of the franchises, but just as rotten in the result of the negotiations, just as depraved, just as fraudulent. The only difference is the amount of property that was transferred, and v/e are plead- ing here that our State shall not be subjected to the same things in the future, and that we shall have some protection. What is the protection? In the first place, Mr. President, let me give you a little statement as to how these things are done. A company comes and knocks at the door of the council and presents what it calls a petition or draft of an ordinance. Of course, that ordinance is drawn in the most favorable terms itself. It tries to get everything it can from the council. If the council is exceeding easily handled, it gets that ordinance through just as it is drafted. If there are some watchful members there, they modify, change, and amend the ordinance, and then the company is asked whether it will accept it. All we ask is that you will provide that that ordinance shall be so prepared that you will give the franchise to anybody. What is the result if you do that? In the first place, the man who comes knocking at your door and asking for this ordinance will not buy your council, because he does not know whether he will get the franchise. If you propose to put it up at public auction or ascertain what it is worth, so you can sell it to anybody else to whom it may be worth something, he is not going to pay mem- bers of the council to put favorable provisions in there, because he knows he will be encouraging competition if he does. That is the practical result we have here, that men spend money to get favor- able ordinances passed through the council because the franchise will go to them and they can afford to pay for it; but if they do not know who the franchise is going to, they will not spend their money in buying councilmen. We are asking for protection, that we may have these things so presented to the public that anybody can get a franchise the General Assembly shall so require. We do not require that, but simply that publicity shall be given and that the value shall be ascertained, and then such steps shall be taken as the General Assembly shall from time to time think wise in the premises. Mr. Brooke: Mr. President, I shall take only a few minutes. I see no reason, from my standpoint, why this amendment should be adopted, and I see a good many reasons why it should not be adopted. I have no doubt, of course, of the sincerity of the gentleman from Richmond (Mr. Meredith) in his statement that his effort is to protect the franchise of the city and to keep his people from being robbed, but he must not forget that there are other gentlemen upon this floor also representing DEBATES OF THE CONSTITUTIONAL CONVENTION" OF VIRGINIA. 2039 cities who have just exactly the same objection to municipal corruption as he has, and are here for the purpose of protecting their people from being robbed just as much as he is. The question, after all, is not one of all morality on his side and the contrary on the part of the gentlemen who differ with* him in a proposition which is presented before the people. I think I can say for the Committee on Cities and Towns that they have shown a persistent effort, running through this entire report, upon well recognized lines of accepted thought on the question of municipal government, to protect the people of the cities from the mistakes, the errors or the corruption of their councils. There is no use talking, in this late day we cannot legislate people into morality. There is no use undertaking to make a constitutional provision to suit the unfavorable con- ditions of particular cities. Why, sir, would anybody in the Convention think that if we had on the floor here delegates representing the cities of Sodom and Gomorrah, we should make a Constitution in order to correct the sins and evils of those cities? Is it not better for us to go upon some well recognized lines of thought? What is the declared purpose of this amendment? But one justification on earth is given for it, and that is to give publicity to the fact that these franchises are being applied for. To what end. "If you follow this amendment and give publicity to them, there is an end of it. That is all you do. You are to advertise them, you are to pub- lish them, and they are to be put up for public bids. There is no obligation on the part of the city or anybody else to accept a -single bid. Now, let us see if this quesOon of publicity has not been thoroughly provided for by the committee. We have provided for a council to be composed of two cham- bers. Ordinarily, I might say in every case except in cases of such an extreme nature that I can hardly conceive of them, those two bodies meet at different times. The proposition of a franchise is made to one of the bodies. It is amended in that body between the proposer and the body, until the terms which will be satisfactory to both are agreed upon. Then it goes over to the other body at some future meeting. Now, is it con- ceived — or, it may be conceivable, but is it probable — that all this while that can be kept entirely secret, that the people of a community do not know that certain indi- viduals representing capital are knocking at the doors of the council to ask for the gift of a franchise? Then it comes up in the second branch, and it is all gone over again. If it is amended in a single particular, it goes back to the original branch. Are not the people advised of all this? Is not that a sufficient advertisement? But even after that, the committee, in its anxiety to protect the franchise of the people and to keep the people from being robbed by their councils, have given to the mayors a veto power. Every ordinance passed by those two branches must be sub- mitted to the mayor. He has the right to veto it. If he returns it with his veto, then it cannot be passed by the council except by a two-thirds vote of each branch of the councils. One of the provisions with regard to that veto is that the mayor shall return with that veto his reasons; that the council to which it is returned shall spread those reasons upon the record; that if they agree to pass it over his veto they send it to the other body with those reasons also. Now, along general lines, is there anything more that could be done to give pub- licity to the action of the council? The gentleman from Rockbridge (Mr. Anderson) with one breath says that under the Constitution of the State of Illinois they could not pass an ordinance in one night as they can under this proposition, if it is adopted, because there would be two chambers to the council, and in the very next breath he says: "Why, both could meet the same day, and I have no doubt they could put the halter around the neck of the mayor and lead him"; but we are not providing for things which may occur under such exceptional circumstances. We are trying to 2040 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. make a sensible, and, if I do not use too large a word for so small an effort, a philosophical line of government of cities; not to say that in this particular the city council cannot do so and so, and in this particular it must do so and so, but laying down general lines which will guard in a general way the rights of the people. We have attempted by the provisions of this article to protect the people of the cities against the maladministration of their councils, whether it be from incompetency or corruption, and we have adopted those provisions which, it seems to me, and seems to the committee of which I am chairman, are absolutely sufficient. One other word. It has been said by the gentleman from Alleghany (Mr. Ander- son), and very truly — certainly within my own personal experience, and I have had some experience — that franchises do not originate in the city council. The man rep- resenting a syndicate controlling money comes into one city or another to see if he can find an investment that will be desirable to him and profitable to the city. He does not care so much about its being profitable to the city, of course, but he wants to see if he can get a proposition. He knows the limitations under which he wants his charter. He knows the limitations under which alone he can successfully operate if he gets his charter. He goes to the councils and he makes his proposition, and if he cannot get the provisions which are essential to him, he abandons the effort. Well, the provisions which are essential to him may be objectionable to somebody else. So you take the charter and turn it down to suit the desires of the man who is ap- plying for it, into such shape that it will suit or fit nobody else, and then under the proposition of the gentleman from Richmond (Mr. Meredith) you give public notice that this franchise, which is not adaptable, in all probability, to anybody else but the man who is applying for it, shall be exposed for public bid at public auction, and no- body has any guarantee that any bid offered for it is going to bo accepted; and all this is done only to obtain publicity. Mr. James W. Gordon: Is it not a fact that Mr. John Wanamaker offered a million and a half dollars for a franchise in Philadelphia under those very circum- stances? Mr. William A. Anderson: Two and a half millions. The President: The question is on agreeing to the amendment offered by the gentleman from the city of Richmond (Mr. Meredith), which the Secretary will read. After the word "yeas," in line 17, insert the following: Before granting such franchise or privilege for a term of years, except as to a trunk railway, any such municipality shall first, after due advertisement, receive bids therefor publicly in such manner as provided by law, and shall then act a,s may be required by law. The ayes and noes were ordered, and being taken, resulted — ayes, 54; noes, 13. The amendment was agreed to. Sections 12, 13, and 14 were read and adopted, completing the report, except Sec- tion 7, which had been temporarily passed by. The President: The question recurs on agreeing to the adoption of Section 11 as amended. Section 11 was adopted. On motion of Mr. Stuart, the Convention resolved itself into Committee of the Whole for the further consideration of the report of the Committee on Agriculture, Industrial and Manufacturing Interests, and Immigration. Mr. Glass in the chair. Mr. Stuart: Mr. Chairman, in as much as this report has been somewhat misun- derstood and misrepresented, of course unintentionally, by various persons, and I may say by the press of this city, to some extent, I deem it proper to enter into some- thing of an explanation of the aims and objects of the committee having under con- DEBATES OF THE COXSTITUTIOXAL CONYENTIOX OF YIEGIXIA. 2041 sideration tlie subjects here mentioned. In order to do so, sir, if I may be pardoned, I will refer briefly to some extracts contained in the report itself, which presents the subject in a much briefer and more pointed way than I could expect to do in the course of any remarks I might make. With the consent of the committee, therefore, I will present this for their consideration: Owing to the number of subjects which have come under the consideration of your committee, and the variety of opinions which have been presented, both by the members of the committee and by persons connected with the agricultural and industrial development of the State, it has been with great difficulty that the commit- tee has reached a conclusion which it deemS; in the main, suffiiient, in respect to the development of the State, and at the same time free from surh provisions as might be deemed inappropriate as part of our ' organic law. li may be said that the special consideration of the subject of agricultural and industrial and manufacturing interests is one which has not been heretofore considered as of sufficient importance in itself to justify the creation of a separate committee for its special consideration. The investigation of the com- mittee charged with this high responsibility has fully developed the justification for this rather unprecedented action by the Convention. It would be useless to under- take the recital, within the compass of this report, of all the important features of the subject referred to your committee, or to point out the various beneficial results to be reached by our action. The fact that the masses of the tax-payers and contrihu- tors to the common weal are directly conected with and, to some extent, dependent upon the disposition of the subject under our consideration, is sufficient evidence of the importance which attaches to the deliberations and report of your committee. It is undeniably true that while agricultural interests in some portions of Virginia have been steadily languishing; that while the young men raised on the farms have been drifting in hordes to pursuits which seemed to be alike more congenial and profitable; 3^et, in other States, not greatly favored above Virginia, those engaged i'n agricultural pursuits have been steadily increasing both in numbers and influence. It would be vain for this committee to say that every section of Virginia could be made prosperous under any policy that might be proposed, but it is confidently be- lieved that with the introduction of new and intelligent methods, such as may be ex- pected from a properly organized Agricultural Bureau, that many sections of the State, vvhich now present an appearance of waste and desolation, might be made the scenes of happiness and prosperity. The State of Virginia cannot, through any proper public instrumentality, directly advance the material interests of individuals; and yet it may light the pathway of many of its citizens who are now aimlessly groping in darkness. It may be stated that in no State of the Union is there a greater diversity of soil, climate and adaptability than in the State of Virginia. Travellers who pass through the State from East to West, and from North to South, encounter varieties of soil, production and climate which cannot elsewhere be found in less than three States. It is this condition which has always militated against the unification of the agricultural interests of the State; and it is this lack of unification which it is the object of your committee to relieve, so far as may be, under the provision for a Board of Agriculture charged with the consideration of every important interest known to the agriculture of the State. In approaching this subject, it must be remembered that Virginia has not been heretofore wanting in faithful and unremitting effort, according to the means pro- vided, to extend recognition to agricultural interests: but that heretofore the instru- mentalities used have never been properly organized or brought in touch with each other. Recognizing this condition, it has been the aim and object of your committee to unify and bring into harmony all the agencies which have heretofore been em- ployed in the advancement of agricultural interests. Not only has your committee 129 — Const. Deb. .2042 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. sought to unify existing agencies, but to leave ample room for bringing into contri- bution to the advancement of the agricultural interests of the State all the agricul- tural interests of the State all the heads of the various organizations which now exist or which may be hereafter created, looking to that end. That the work now being done by the Commissioner of Agriculture and Agricul- tural Board, as at present constituted by law, is useful, cannot be denied. Neither can it be denied that the work being done by the Department of Agriculture of the Virginia Polytechnic Institute is beneficial to the agricultural classes, so far as they have been able to avail themselves thereof. But it must be admitted that the efforts of both of these agencies of the State have been greatly minimized in importance and results by the fact that they have not been heretofore so organized as to compel harmony and united action for the betterment of a common cause. Discovering these perfectly palpable facts, it has been the effort of your committee to so unite the State Agricultural Board and the Commissioner of Agriculture, on the one hand, and the Virginia Polytechnic Institute and its corps of trained experts on the other, as to bring the State within the benefits which might be and should be conferred by the utilization of the combined efforts of these two important agencies. The report of your committee has been drawn with a view to the consummation of this much desired result; but at the same time the committee has been exceed- ingly careful that the provisions embodied in the report shall not be such as to mini- mize the importance and effectiveness of either of these agencies, to the advantage of the other. It has, therefore, seemed wise to your committee, and they so report, that reciprocal relations between these two important agencies of the State shall be established, which is, in the opinion of the committee, fully accomplished by the recommendation that the president of the Board of Agriculture and the Commissioner of Agriculture shall be members ex-officio of the Board of the Polytechnic Institute, and that the president of the Polytechnic Institute and the rector of its Board of Visitors shall be members ex-officio of the Board of Agriculture. In this way the wants of each of these arms of agricultural development will be made known to the other, and they will be united in a common cause in which both must either stand or fall. Under this arrangement the Board of Agriculture will have practically the same control of the Commissioner of Agriculture as the Board of Visitors of the Polytechnic Institute has of the president of that institution, making the boards in each case responsible for the proper administration of their respective departments and responsive to the various interests which each board may represent. We may be met by the objection that your committee is going more into detail ^ as to the construction of the Agricultural Board and the manner of the election of the Commissioner of Agriculture than should be attempted within the limits of a State Constitution. To this your committee replies that it is unwilling to recommend a provision which makes it mandatory on the General Assembly to create and main- tain an agricultural department, except there be coupled with the mandate a pro- vision defining the powers, duties and responsibilities of the creation. It has seemed unwise and inadvisable to the committee to call into being a Bureau of Agriculture without accompanying the call by such provisions in detail as will, in the judgment of the committee, give to the State the full benefit of whatever good can or should be accomplished by such agencies. The detail as to the manner of appointment of the Board of Agriculture, and the election of the Commissioner of Agriculture, and the reciprocal duties between the department thus created, and the Agricultural Depart- ment of the Virginia Polytechnic Institute, have seemed essential. To have given birth in a constitutional provision to a bureau, without the least equipping it for use- fulness and guarding it againt the dangers which have heretofore retarded all the instrumentalities which the State has, from time to time, set in motion for the ad- vancement of agricultural interests, would seem to your committee as giving evidence DEBATES OF THE CONSTITUTIOXAL CONYEXTIOX OF VIRGINIA. 2043 of ignorance of the subject or indifference to its importance. It is believed by your committee that tbey have formulated and presented to the Convention a scheme for the organization and control of an Agricultural Bureau which brings into contribu- tion all of the vital forces now in existence for the advancement of agricultural interests, and leaves scope to the General Assembly for the addition of such other future forces as may from time to time appear. It is only through the uniflcatioD of all of these forces and agencies that the agricultural masses of the State can brought within the beneficial influence of an Agricultural Bureau. The constitutional and statutory provisions of all the States of the Union have been diligently searched, with the view of forming for Virginia an Agricultural Bureau on the best models yet discovered; and the information obtained from these various constitutional and statutory provisions has been maturely considered and analyzed, and the best of all has been embodied, in the briefest possible compass, in this report. The immediate details will appear in Section 1, and in so far as they do not ap- pear to be self-explanatory, will be brought immediately to the attention of the Convention. SuflBce it to say that the report is based upon careful consideration of the high aims and objects to be attained, and upon a profound regard for the im- portant interests to be subserved. Now, Mr. Chairman, I thought proper to read that much to the Convention by way of explanation in a very general way of the aims and objects of the committee, and of the consideration which brought about this report. Now, as to the report itself. There appears in Section 1 a provision as follows: There shall be a Board of Agriculture and Immigration, composed of one mem- ber from each congressional district in the State, who shall be appointed by the Gov- ernor, subject to the confirmation of the Senate, for a term of four years, except that the members first appointed, after the adoption of this Constitution, from the odd- numbered congressional districts, shall hold oflSce for two j^ears. I understand there is no objection to that part of the report. Following that there appears this: The rector of the Board of Visitors and the president of the Virginia Polytechnic Institute shall be members ex-officio of the Board of Agriculture and Immigration The General Assembly may, in its discretion, add other members ex-oftico to the said board. That brings us to the first question concerning which there is any material differ- ence of opinion, as I understand it. The object of this clause, briefly stated, is that the example set by other States may be followed in this State, which is to allow representatives of important agricultural interests in their representative capacity membership in the agricultural board of the State. For instance, the president of the Horticultural Society, an association engaged in the growth of small fruits, and all fruits, in fact, which is one of growing importance and value to the State,' and composed of very intelligent men and very prosperous ones— and I cite that depart- ment simply as an example— might be allowed membership on this board, which would bring into the board the representative of a special agricultural interest pre- pared to represent that interest as no other member who might be appointed by ordinary process would be expected to be able to do. Again, the truckers of the East have in contemplation the formation of a similar association, and this provision leaves room for them to come in. as is the case in the States of Illinois, Ohio. Michigan and other States of the West where it is deemed desirable that the direct representatives of special agricultural interests should be 2044 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. allowed direct representation on the agricultural board. Concerning the wisdom of this, it seems to me there can be no two opinions. The next clause is: The powers and duties of the said board shall be such as may be prescribed by law: provided, it shall maintain its principal office at the Capital of the State, and shall elect, and have power to remove, its officers, among them a Commissioner of Agriculture and Immigration, whose term of office shall be four years. Now, Mr. Chairman, that is the clause that seems to have excited the oppositi'on of a large number of persons, and it is that clause which I shall undertake as best I can to show the wisdom of, and I think I shall have no trouble in doing so. That clause begins, Mr. Chairman, by the declaration that "The powers and duties of the said board shall be such as may be prescribed by law." There is a very clear limitation upon the powers of this board. It leaves the board absolutely without power except as conferred by the General Assembly, except with the proviso further appearing in this clause. Now, what are the exceptions provided here? The first one is: "Provided, it shall maintain its principal office at the Capital of the State." I will take the liTjerty of reading an extract from an editorial appearing in the Richmond Di patch of this morning, and I do so because I take it that it reflects fairly the sentiment of the people who are opposed to this section. Among other .things it says: The truth is that the Constitutional Convention is making a great mistake in exercising legislative powers as it is doing — or rather as some of Its committees would have it do. I will say, gentlemen, this editorial is on the subject of this report, which I am now presenting to the committee. The consequence is that not enough time is left it to discuss and consider prin- ciples of government. Nor can the Legislature view without concern and indignation efforts to take from it work that it ought to do; work that it is competent to do, and work which hitherto it has done, and done well. It seems to us that the State's Department of Agriculture is very well fulfilling the purposes for which it was designed. If it has not escaped criticism, no more has Blacksburg or the University, or the Legislature, or the Constitutional Convention. Nor would the Agricultural Department escape criticism if it were removed to Blacks- burg, or to Lexington, or to Charlottesville. In that case, indeed, criticism would rather increase and would not fail to involve the institution to which the department was attached. Plainly this is another matter which the Convention would better leave in the hands of the Legislature. Permit me to say, Mr. Chairman, that I agree very thoroughly with the sentiment there expressed, and it was my object and earnest endeavor to leave this very excep- tion out of this clause; and I may add that it v/as done with a view to preventing the removal of this department from the city of Richmond as it now exists. I will add, further, it is the first line that was ever written in a Virginia Constitution as to the location of the Bureau of Agriculture, and that it is one more line than I think should have been written about it, for I think the Constitution should have been perfectly silent on the subject, as the old Constitution is. I read now from the old Consti- tution, which we are here to revise and amend: The General Assembly shall have power to establish a Bureau of Agriculture and Immigration, under such regulations as may be prescribed. There is not a line there which indicates to the General Assembly where this department should be kept, nor do I think there should be a line in our report on DEBATES OF THE COXSTITUTIOXAL COXTEXTIOX OF VIEGIXIA. 2045 that point. However, in deference to those who felt that, in view of the very liberal provisions which were proposed here as to reciprocal relations between the Poly- technic Institute and the Agricultural Board, there might grow a tendency to move this department from the city of Richmond, and in order that the good faith of those who were proposing these reciprocal relations might be fully attested, we agreed that this clause should be inserted relating to the maintenance of this bureau at the Oapital of the State. Now, I submit, sir, that those who are claiming we are legislating in this Con- stitution, those who are claiming we are burdening this particular measure with legislation, cannot w^ell come forward and insist that we shall lay down a hard and fast proposition that this bureau shall never be removed from the Capital of the State. Speaking for myself, I do not think it would ever be good policy. I cannot conceive of a time when it shall ever be good policy to remove it from the Capital. It has been maintained here without any constitutional requirement for all these j^ears, and it is my opinioiL it will remain here, whether we by constitutional provision make it mandatory or not; but I think the General Assembly ought to be absolutely free on that point, or I did think so, and I may add it is my individual opinion yet, except I have signed this- report with this proviso that the principal office shall remain at the Capital of the State. It is impossible to conceive any circumstances under which a General Assembly should ever move this department, with its present functions and duties, from the Capital of the State. There is here a Bureau of Immigration v/hich has done some valuable service, and no one would seriously say that any general assembly would ever move it from the Capital. There is here an exhibit of minerals from all parts of the State, but who would say that that would ever be moved from the Capital. There is here a labora- tory and apparatus and everything necessary to the analysis of fertilizers, a very competent bureau, as I understand, in that regard. I cannot conceive of any circum- stances in which that should be discontinued at Richmond, but when this point was made in the report of the Committee on Public Institutions as to the location of the penitentiary it was urged by a number of gentlemen, and some of the same gentlemen who are now urging that this agricultural bureau be retained in Richmond, that the Constitution ought to prescribe that the penitentiary should be forever kept and maintained in the city of Richmond, the Capital of the State. That was presented to the Committee of the Whole and thoroughly argued, and after full consideration it was decided that the Constitution should be silent on the subject of the location of the penitentiary. It was argued here that the penitentiary should be located where it would be convenient to a heavy police force, convenient to the fire department and all things which belong to a large city. It was argued with much force, and yet it was the opinion of a majority of this committee that this State institution, im- portant as it was, that it should be near to the police department and fire department, and those other things, should not be bound forever to remain at the Capital of the State or at the city of Richmond. Now, how much less force is there in the proposition that the Bureau of Agri- culture should forever be bound to remain in the city of Richmond? If I had to say that it had to be provided in the Constitution that this bureau should stay anywhere, then I say it should stay in the city of Richmond, but I think when we say the powers and duties of this board shall be prescribed by law in the same manner we say the location or site of the bureau shall be prescribed by law. It would be leaving to the General Assembly the same authority which the newspaper article which I have Just read insists should remain in their hands. However, I feel that it is just to the gen- tlemen who advocate this proposition of keeping the bureau in Richmond that those who differed with them should meet them in a spirit of compromise, and it was the 2046 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. . result of that spirit of compromise which brought about the language I have just read — that is, that, the principal office shall be in the city of Richmond, or at the Capital of the State. Another point of contention, Mr. Chairman, "the board shall elect and have power to remove its officers." I can hardly conceive of any view that would seriously con- test the propriety of that provision. We find here that this board and the commis- sioner, who is its executive officer, has been for years appointed by the same authority acting independently of each other, neither having the slightest control or authority over the other. Either the board should be abolished, or it should be given some power in the direction of the affairs of the Agricultural Bureau. It was thought that the agricultural interests of the State would be promoted by bringing together repre- sentatives from various parts of the State as a board. Having done so, it seems absurd that it should be assembled at an expense to the State and absolutely divested by the Constitution, itself of every particle of authority to deal with the subjects that might come before It. Therefore we have framed this language, and if this be legis- lation, it is only such legislation as is necessary to define properly what we are making mandatory shall exist in this State. To say that there shall be an Agricultural Bureau would be idle without saying just exactly what the character of the bureau shall be. Certainly we should be willing to equip it and put it on foot before saying in the Constitution that it shall exist. Therefore I take it that that proposition will not be seriously contested that the bureau shall elect ?.ts executive officer. Of course, it is not meant that they shall prescribe every specific duty which this commissioner shall perform. He will be vested, doubtless, with a large discrimination just as all executive officers are and should be. And it does seem to me there ought to be some responsibility from this executive officer to a board. I take it the power to remove would be well nigh in- volved in the power to appoint. "Whose term of office shall be four years." That prescribes that the commissioner when appointed shall hold office for four years. There is a reciprocal relation which provides that the Commissioner of Agriculture and president of the board shall be members ex-officio of the Board of Visitors of the Virginia Polytechnic Institute. Now, I wish to say this report has been drawn with great care, and after con- sultation with nearly every important representative of the agricultural interests of the State. We have had before us the Board of Agriculture, and the chairman of that board, and six of its members, including the chairman, expressed their approval of this scheme, so far as it related to the control of the commissioner, the point to which we called their especial attention. I have a letter from the president of the board, who is a very capable and highly respected citizen of this State, and a man whose opinion, I think, is entitled to as much weight on subjects of this kind as that of any man within my knowledge in which he unqualifiedly endorses the report from beginning to end. It does seem to me, therefore, if those persons who have oeen selected with special reference to the representation of the agricultural interests in this State are pleased with this report, certainly no consideration of a merely personal or local character should be allowed to come in the way of its adoption by this Convention. Now it is said that there is danger that Blacksburg will absorb this institution. On the contrary, the language of this report will forever prevent it, because it defines it as a separate and distinct body, an Agricultural Board, the members of which shall perform certain duties. It will be impossible to destroy it, when it is provided that the representatives in that body are to perform certain duties. I take it that thi's objection cannot be seriously considered. In this report is the only line which has ever been written which tended to perpetuate the Board of Agriculture so far as I am able to discern. Besides, Blacksburg, as we all know, is eight miles from the railroad. DEBATES OF THE CONSTITUTIONAL CONTENTION OF VIRGINIA. 2047 I think it is almost undignified to discuss so absurd a proposition as that it Is in- tended to remove this board to Blacksburg. I am really humiliated that sufficient importance should be given to so absurd a proposition as to have members of this body approach me on the subject. Blacksburg is six or eight miles from the railroad. It does seem that any member of this body should know that it would not do to have the Bureau of Immigration, the exhibit of agricultural and mineral products, or any of the essential accompaniments of the bureau now in Richmond at that remote point. But it appears all the more absurd when I state that neither Blacksburg nor any representative of it, so far as I am able to ascertain, has the slightest desire to absorb or in any way to interfere with the Bureau of Agriculture. They are prosperous. They are standing alone. They have developed a great institution, which they started almost entirely as an agricultural school. Mean time the mechanical feature of the school has grown and the agricultural feature has been awarded. It is to vitalize the agricultural department of that great institution that the committee seeks to provide these reciprocal relations. I hardly think it necessary to dwell seriously on the subject that there is any such change contemplated. I dislike to detain the committee so long in the discussion of these matters, but they are new subjects to. most of the members of the committee, and perhaps new to most constitutions. I do not wish to close, however, without stating that the Agri- cultural Bureau as now constituted, according to my best information and understand- ing, is doing a good work, and the Commissioner of Agriculture has shown himself in every way to be an efficient officer. I think the interests of agriculture in the State are steadily advancing under that administration, but we are writing a Constitution which is to be suited to changing conditions, and we do not know that we can always avail ourselves of the services of perfectly competent commissioners, appointed by the Governor, with special fitness for the position, and, as I say, the committee has framed this report to suit conditions as they see it, that may arise in the future as ^^eIl as those that may now exist. Mr. James W. Gordon: Mr. Chairman, I was absent on Monday when this re- port was presented to the committee, and I desire to have it understood that I would have signed it, reserving the same rights which other members do to object to par- ticular items in it. The Chairman: The Secretary w^ill read the first section. Section 1. There shall be a Board of Agriculture and Immigration, composed of one member from each congressional district in the State, who shall be appointed by the Governor, subject to the confirmation of the Senate, for a term of four years, ex- cept that the members first appointed, after the adoption of this Constitution, from the odd-numbered congressional districts, shall hold office for two years. Mr. Parks: Mr. Chairman, I desire to offer the following amendment, as the first of a line of amendments I shall offer, in line 8, after the word "years," I move to insert the following: A Commissioner of Agriculture and Immigration shall be elected by the qualified voters at the same time that the Governor is elected, whose term of office shall be for four years, and who shall be ex-officio a member of the Board of Agriculture and Immi- gration herein provided for. Now, Mr. Chairman, I only want to submit a few words in advocacy of that amendment. The Commissioner of Agriculture ought to be as near to the people of the State of Virginia as it is possible to get him. Our State is an agricultural State, and it seems to me the people of the State who are engaged in agricultural pursuits ought to select this Commissioner of Agriculture. I am not a farmer, sir, though I was bom and raised on a farm. At the same 2048 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA, time I have always lived in an agricultural community, and I know what the wishes of my people are in reference to this thing. In addition to that we all know a great hue and cry has gone out through the country among the people that we are cen- tralizing too much power in the Governor, and in other officers at the Capital, and taking it away from the people. Now, I do not pay a great deal of attention to that thing, nor hold my ear close to the ground to find ont what the popular clamor is in the discharge of my duty, but I exercise the best judgment and call into requisition all the ability that I have, and seek to discharge my duty as my honest judgment dic- tates. I offer this amendment in good faith, believing that this convention can do nothing that will more commend the Constitution which we shall frame to the agri- cultural people of the State than to give them the pov/er to select the Commissioner of Agriculture. I am not asking the appointment by the Governor or the confirmation of the appointment by the General Assembly per se, except that I believe it would be bet- ter that this officer should be elected by the people. I believe the people themselves will manifest more .interest in the Department of Agriculture than they have done in the past, when they have by their votes to elect the Commissioner of Agriculture. I believe in addition, as I have before stated, that nothing that this Convention can do will better recommend the efforts of the Convention to the farmers of the State of Virginia than to give them the power to select this Commissioner. Mr. Stuart: Mr. Chairman, it occurs to me that if that amendmeni* Is adopted, we might as well dispense with the formality of a Board of Agriculture. What the duties of that board will be after they are assembled, in the presence of an officer elected at the general election with the Governor, I would be unable to imagine. They would certainly not be useful, and possibly not very ornamental. Mr. Fairfax: Mr. Chairman, with all due respect to the representative from Page (Mr. Parks), I wish to express myself very briefly in the way of objecting to the election of the commissioner by the people. I base my objection upon a clear business ground, and only in that way. One difficulty, as I see the matter, would be that the present law allows the Commissioner of Agriculture a very modest salary. Of course, the details, and the laws governing this subject, are left to the General Assembly, and they have the power to increase his salary; but it would be practically Impossible to select the best man for that position in the manner suggested by the amendment of the gentleman from Page. It would be a very difficult matter for the people of Loudoun county, for exr ample, which is an entirely agricultural county, to cast its votes intelligently or send their representatives to a State Convention to name a man who would poll a good vote in the State of Virginia, and who would be a competent man to fill the position. There are comparatively very few men in the State, as I understand, who are fit and competent to properly perform the duties of the position. It requires a man of certain attainments and qualifications. He has details to carry out with which a politician or a man who looks after the affairs of the State generally is not familiar. If I may allude to the fact, the proposition was brought up in discussion in the committee that there might be eleven members of the board appointed by the Governor, and one of those members elected Commissioner. I raised the point that while a man might be a very efficient member of the board, he might be entirely in- efficient in regard to the duties of Commissioner of Agriculture. Satisfactory men for the position cannot be often found, and when found, ihey are, as a rule, not publicly known, or known prominently throughout the State. It seems to me it would be a very difficult matter to secure the services of the best man for the position i'f the amendment of the gentleman from Page is adopted. Mr. R. L». Gordon: Mr. Chairman, I desire, very briefly, to support the amend- DEBATES OE THE COXSTITUTIONAL COXVEXTION OF TIRGIXIA. 2049 ment of the gentleman fiom Page (Mr. Parks). We have heard that the people are incapable of selecting justices of the peace, judges and other officers, hut it does seem to me the most remarkable proposition I have ever heard advocated, that the farmers of the State of Virginia are not capable of electing a farmer to act as the head of this Board of Agriculture or to be a member of it. If there is any one thing the people of the country do know, and would be likely to know^ it is something about agriculture, and whether a man would be fit for a position on that board. Mr. Portlock: Mr. Chairman and gentlemen of the committee, I happened to be a member of this Committee on Agricultural, Manufacturing and Industrial Inter- ests and Immigration. I would say that we have considered this question very fully, as to the method of selecting the Commissioner of Agriculture. This report contem- plates, to all intents and purposes, a distinctive branch of industry; pertaining more directly to agriculture, in which the people at large, in other branches of business are remotely, certainly not very directly, interested. "We deem it important that the people who are interested in this matter should have a voice in the selection of the Commissioner of Agriculture, for, as a matter of fact, the agriculturists alone feel any interest in the selection of this officer. The only way, Mr. Chairman and gentlemen, to provide for this is to place the farming communities in a position to recommend some suitable person to some appointive power. This report provides that such nominations may be made by the people to the Governor, either in person or through their representatives, expressing their desire as to whom they wished to fill the position of Commissioner of Agriculture. This cannot be accomplished by popular election, as I shall undertake to demonstrate. No man upon this floor concedes to the people of Virginia a greater right to select their own officers by popular elections than myself, whenever it shall best subserve their interests so to do. But the people of Virginia have sent us here, as their rep- resentatives in this Convention, to do what in our judgment may be best for them, whether it be to provide for the election of certain of their officers by the people at large, or to have them appointed by the Governor, or other appointive power. So far as I am concerned, I shall always do what I conceive to be best to be done in that direction in the interest of the citizens of this Common- wealth, regardless of the fact that the "people" are being preached to us from the beginning to the end of the chapter. "We are here to do our duty as we see it, and when we do this, I am sure the "people" will at least give us credit for the courage of our convictions. Therefore, I say our committee, acting upon this theory, have deemed it wise and best for the agriculturists to make this officer appointive, and in this case to depart from the general theory that the people must have a direct voice in a general election, in the selection of the officers Vyho are to serve them. We have already provided for several exceptions to this general rule in the work which we have heretofore accomplished, and our committee have thought It best to make an exception in this case. Now, Mr. Chairman, what is the effect of the election of the Commissioner of Agriculture by the people. It simply means that a vast number of people living in the cities, a vast number of people engaged in other pursuits than that of agricul- ture, who are very remotely interested in that important industry, will have a voice in the selection of a Commissioner of Agriculture, will be called upon to vote for an officer in whose case they feel no interest whatever, and about whom and whose fitness and capacity they know nothing and care less. It was to obviate that trouble, and to obviate the necessity of calling upon the people in the cities to elect a Commissioner of Agriculture, it was to avoid the necessity for calling upon the professors of col- leges, of calling upon lawyers, doctors, and other professional men, manufacturers and other business men, to elect an officer in whom they had no interest whatever, and about whose duties they know nothing, it is impossible in a general election by the 2050 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. people at large, as I conceive it, to eliminate the one set of electors such as I have mentioned from the other. It is impossible to say the farmers alone, under any general election scheme, can elect their Commissioner of Agriculture, and that th© residents of the cities and people engaged in other pursuits, entirely different from that of agriculture, may not have a voice in it, and it was for that purpose that the election in this case, at least, was sought to be dispensed with. The gentleman from Louisa (Mr. Gordon) has stated that the farmers should select these men because the farmers are experts. Now, Mr. Chairman I think, with all due deference to the gentleman, and with all due deference to the farmers, that they are not, as a rule, expert agriculturists. They do not as a class claim to be scientific agriculturists. Certainly the merchants, manufacturers, and professional men living in cities are not supposed to be capable of deciding upon the expert and technical qualifications of a person who is to fill the ofBce of the Commissioner of Agriculture. We all know farmers are not experts as a class; they, as a rule, are too much disposed to follow in the old rut and methods of their fathers and of their forefathers, and it was for the purpose of getting them out of these old methods, which are impracticable and not based upon scientific principles that it has been deemed wise by this committee to establish this Bureau of Agriculture; and it is for the same reason that it has been thought expedient that an expert, scientific officer should be provided for the farmers to aid and counsel them in the higher art of agriculture. I am sure the gentleman from Louisa would not desire the city people to select for his people a Commissioner of Agriculture. Who is better able to judge of the abilities of the man who is sought to be placed in this position? Why, Mr. Chairman, these people representing the various dis- tricts, the various sections of the State, the intelligent people, who can come to- gether and discuss the abilities and qualifications of an individual, and present his name to the Governor, who in turn nominates him and refers that nomination to the Senate for confirmation. I think it is unwise, Mr. Chairman and gentlemen, to under- take to elect a Commissioner of Agriculture by people representing the various in- dustries and branches of business which have no interest whatever in the matter of agriculture, and I hope the committee will vote down the amendment offered by the gentleman from Page, and allow the provision as embodied in this section of the re- port to be reported to the Convention. Mr. Parks: Mr. Chairman, the gentleman from Russell (Mr. Stuart), for whom I have the highest regard, says he cannot see what use the Department of Agricul- ture will be, and that it will be neither useful nor ornamental. This report does not propose, and I shall certainly not propose by any amendment I offer to define the duties of this board. I leave the board to be selected just as the committee has reported it, to be appointed by the Governor. The commissioner will simply, by virtue of his office, be a member of that board. The duties of the board will be pre- scri^bed and defined by the General Assembly, and the Board of Agriculture will have control of the whole matter. Now, as to the people selecting the officer by their votes. It is claimed it re- quires a peculiar sort of man. In some respects it does, but we have men who are qualified for the place, and who are active farmers, engaged actively and continually in the business of farmers ; and I would say to the gentleman from Russell and to the gentleman from Loudoun (Mr. Fairfax) that if my amendment is adopted, and either one of them will consent to become a candidate, I will guarantee him the sup- port of the farmers of my county for the position; and we will get a good man in either instance. It is true that people in the cities will have a right to vote for this officer, Just as the people in the cities have a right to vote for other officers in whom the farm- ers are equally interested. The people of the cities are interested in agriculture. As DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF VIHGIXIA. 2051 has been stated by another, wiser than I am, if you destroy the cities and leave the farms, the farmers will build up the cities; but if you destroy the farms, the cities must go down. The people in the cities are interested in agriculture, ajid certainly they will do no harm in this regard, but will come up shoulder to shoulder with the farmers, taking advice from the farmers as to who is the best man for the place, and cast their votes for a fit man for the position. I simply repeat what I said before, that while we have said the superintendent of schools should be elected, it is well known the people in the country desire the election of school trustees. We have declined to give them that for a good reason. In m^ny cases they wanted to elect the judges by the people. I did not think that was wise, and I voted against it, but I say this Convention can do nothing, in my judgment, that will recommend the work we pro- pose to accomplish here more than to give to the farmers of the State of Virginia the right to say who shall be at the head of the Agricultural Department in the State. I think it will be wise and politic on our part to do that, and at the same time I think it will be just. It will bring the people more in touch with this department of the government than they have been in the past. They are growing more in touch with it, sir, and that is what I want to accomplish, to bring the farmers more in touch with this department; and we can do it by giving them the selection of the head of the department. Mr. Pedigo: What is the reason you are not willing to let the several congres- sional districts elect their members to that board, instead of having the Governor ap- point them? Do you not think farmers in the country are as well qualified to elect that board as is the Governor? Mr. Parks: I have no doubt of that, sir; but I do not care to cumber them with the election of too many officers, and I think, as the duties of this board are pre- scribed by the General Assembly, if they are appointed by the Governor and con- firmed by the General Assembly, it will be all that is necessary. The Chairman: The question is on the adoption of the amendment of the gentle- man from Page (Mr. Parks), which thue Secretary will read. The amendment was rejected, there being, on a division, ayes, 28 ; noes, 32. The Chairman: Are there any further amendments proposed to Section 1? Mr. Gwyn: I offer the following amendment: In line 3, after the words "who shall be" make it read this way: "There shall be a Board of Agriculture and Immi- gration, composed of one member from each congressional district in the State, who shall be a practical farmer, appointed by the Governor, subject to the confirmation of the Senate," etc. Mr. Stuart: Mr. Chairman, I appreciate the view stated by the gentleman from Grayson (Mr. Gwyn) in introducing those words, and I have no doubt his motive is a perfectly good one, and one that I should be very glad to see carried out. Some dif- ficulties occur to me, however, as to what would be the definition of the term "a practical farmer." I really am not able to give one myself. Some people think it is the man who can make money on a farm. I do not see that that would give him any qualification for the special duties involved in this provision. However, I am not at all wedded to the exact language proposed here, and if it is the sentiment of the body that it would be better to incorporate those words, I shall offer no objection. Mr. Barbour proposed an amendment making the members of the Board of Agri- culture elective by the people. The amendment was rejected, there being, on a division, ayes. 29; noes, 39. Mr. Parks: I desire to add these words after the word "immigration," in line 11: "But shpll have no vote in the selection of the officers to be selected by said board." The whole section would then read: "The rector of the Board of Visitors and the president of the Polytechnic Institute shall be members ex-officio of the Board of Immi- gration, but shall have no vote in the selection of the officers to be selected by said board." 2053 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. Mr. Stuart: You will observe the relation between the Department of Agricul- ture and the Polytechnic Institute are made reciprocal. I should like to ask you if you further wish that the president of this Board of Agriculture and the Com- missioner of Agriculture, who are to be ex-officio members of the board of the Poly- technic Institute, should likewise be deprived of the power of participation in the election of officers there? I thought it proper at this point to call your attentidn to the reciprocity which is made exact in this case between the two institutions. Mr. Parks: I had noticed that, and I confess, sir, I had intended when I reached that point to move to strike that out absolutely; but still, if it is retained, I would be glad to have that amendment, that they should have no vote in the selection of the officers at Blacksburg. Mr. Stuart: I only wanted to ask the questiion whether it had escaped your at- tention. Mr. Chairman, I shall object very seriously to any such provision as that. The object of providing these reciprocal relations is to arouse the interest of one in the other, and to make each participate in the affairs of the other, which would be Impossible, under the amendment offered by the gentleman from Page (Mr. Parks). Of what use would these members be if they were in any way to be deprived of the powers that belong to the other members of the board? So far as I am concerned, I have always been one of those who thought that any executive officer had a right himself to choose his immediate subordinates. That is a thing which I do not think ought to be even in the power of a board, nor do I think there ought to be anything to exclude any member of the board from partici- pating in everything that every other member of the board can do. I think the powers which are to be laid down and provided by law, as expressed I'n this report, should be equal to each and every member of the board. Mr. Fairfax: Mr. Chairman, one reason for having these reciprocal relations be- tween the Polytechnic School and the Board of Agriculture is that we hear rumors and we have hopes that the United States Government will make additional appro- priations to these institutions throughout the United States. Those appropriations must go through the institutions of learning, like the Virginia Polytechnic Institute, which receives now $15,000 or $18,000 a year from the United States Government. If the States are allowed an additional appropriation for this interest, we want the farmers of the State, through their Board of Agriculture, to reap some of the benefits that will be brought to us by the additional appropriation. Mr. O'Flaherty: Mr. Chairman, I wish to call the attention of the gentleman from Page (Mr. Parks) to the fact — and doubtless he has seen the effect of it — that if the words he proposes to add are adopted, he destroys entirely the usefulness of these members on the board. If they have no power to vote, I do not see what necessity there will be for their being on the board. The chairman of the committee has already called attention to the fact that there are reciprocal duties and powers and privileges between these men. I doubted the wisdom of that at first, but after hearing the matter discussed the gentlemen of the com-mittee will remember it was at my instance that this board was appointed. They will remember I took a deep interest in agricultural matters, and ever since this committee has been in existence I have had it dinged into my ears that there is a fight between the Board of Agriculture of the State and Blacksburg. They say it has been going on for years. I do not know anything about that, but I believe a union of interests would be the best thing that could be had. The committee believed that if we forced one of these departments under the other without a union of inter- ests, and a union of sentiment, it would not be a perfect union and would do no good. Therefore, I agreed, and I think it was wise, that the members of Blacksburg should be ex-officio members of the Board of Agriculture, and that the members of the Agri- DEBATES OE THE CONSTITUTIOIsTAL CONVENTION OE VIRGINIA. 2053 culture and Immigration Board should have power and voice in regard to the election of officers at Blacksburg, and in that way the two would be brought together. I do not believe you will ever hereafter have any friction. I do not believe you will ever hereafter have any talk in regard to this matter, because you will have a union of interests, and if you adopt the amendment of the gentleman from Page, you destroy the symmetry of the proposition we offered to the committee. We have considered it well. We have striven to do that which will be for the best interests of the agricultural people of the State; and again I say if you adopt the amendment of the gentleman from Page, you might as well strike out those lines, and I hope it will not be done, I believe in the future the interests of Blacksburg College will be in harmony with the interests of the Agricultural Department, and the money that the State of Virginia is indirectly receiving from the government of the United States will be better utilized. As it is now, gentlemen, we find there are several departments to our agricultural interests in Virginia, one at Blacksburg, working independently, and one here; and there is friction, and there may be jealousy. I think there is, and I believe this will do away with it. I do hope the gentleman's amendment will be voted down. Mr. Parks: Mr. Chairman, I wish to say to the gentleman from Warren (Mr. O'Flaherty) that my amendment does not contemplate that those members shall not have a vote upon anything, but simply that they shall have no vote in the selection of the officers that the board may be authorized by the General Assembly to select. I will state further that I know" the fact that since 1895-96 at every session of the General Assembly there has been an effort to take the entire Department of Agri- culture from the city of Richmond to Blacksburg; and if you will give to Blacksburg more power, it will only increase that effort. Mr. O'Flaherty: I will say to the gentleman that I fully appreciate that- situa- tion. I want to know how it will be possible for three members to outvote ten mem- oers, and remove the department, if it were possible to remove it. which it will not oe under the provisions we have made, with the further power and ability on the part of the General Assembly to increase this board. How would it be possible for those three members to override the vote of at least ten others? It can never be un- less the representation in Congress is reduced. I appreciate the fact that there has been a motive of that kind; but here we have Blacksburg, it seems to me, more safe than it has ever been. Mr. Brown: The gentleman has stated that since 1895-1896 there has been an effort made at every session of the General Assembly to remove the Board of Agri- culture from Richmond to Blacksburg. I desire to ask kthe gentleman if he asserts that influence has been exerted by the authorities at Blacksburg. Mr. Parks: I am not able to say that, but I know that the president of Blacks- burg was before the committee, and I heard him make a speech in favor of it. Mr. Brown: I desire to state to the gentleman that at the last session of the General Assembly, v/hen the matter of the fertilizer act was up, members of the Blacksburg board were approached and asked to take part in such a movement as that, and declined to do so; and I want to state here and now on this floor that this is no movement on the part of Blacksburg to remove the Department of Agriculture to Blacksburg, but that is an endeavor to have these boards put into thorough inter- communication with the agricultural interests of the State. Mr. Keezell: Mr. Chairman, I am exceedingly desirous to see some amicable ar- rangement between the Blacksburg school and the Agricultural Department. I believe there ought to be a harmony of interest between these Institutions. They ought both to have the same object in view, and they ought to be able to work together in such a way as to accomplish that object. I have thought that for a long time, and as a mem- ber of the General Assembly have been willing to vote for such a proposition, but I 2054 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. very much question whether the provision in this report is calculated to bring that about. I should like to see the lion and the lamb lie down together in harmony, but I do not want to see the lamb lie down inside the lion. (Laughter.). That is not my idea about harmony at all. When you examine this report you will see that you are giving to the rector and to the chairman of the faculty at Blacksburg as much power as you are giving to the representatives of two congressional districts. You are taking one-fifth of all the power that the people have in the congressional districts and giving it to the Blacksburg board. That is one objection I have to this arrangement. I have another objection. I do not believe in these ex-officio appointments on any board. They might be first-class to-day. I have no doubt that if the rector of the board at Blacksburg and the president of that institution now were made members of the Agricultural Board, you would have two most excellent and competent men; but I do not know how that may be ten or fifteen years from now. Mr. Stuart: I should like to know from you your views as to what power would remove this agricultural department from Richmond. "Where would the power come from for its removal? Where is it lodged in this report? Is it not left with the General Assembly? Mr. Keezell: I am not speaking now so much with reference to its being located at Richmond or at Blacksburg. I am talking about the control of the board and its affairs. The point I was objecting to was that they would have just as much control, so far as the management of all the interests connected with the Agricultural De- partment are concerned, as would the representatives of two congressional districts. I do not know whether under this provision which says the principal office shall remain in the city of Richmond it could be moved from Richmond or not. I under- stand the chairman of the committee has stated — and I have no doubt he has stated it perfectly frankly and fairly, that he does not think it ought to be removed from Richmond. I do not think it ought to be removed from Richmond ,but I do not know whether you guard against it when you make this provision here that says the principal office shall be retained in Richmond. It might, to all intents and purposes, be removed from Richmond, and yet its principal office might remain in the city of Richmond. I do not know how that might be, but the principal objection I have to it is (and for that reason I do not know whether I am going to vote for the amendment of the gentleman from Page (Mr. Parks) or not that I object to putting ex-officio members into these boards. I think men ought to be appointed to Blacksburg with reference to their fitness for managing the affairs at Blacksburg, and that the Gov- ernor ought to select those men with reference to that matter. I think the same about the Agricultural Department, that if the Governor is to appoint these members, they ought to be appointed with reference to their fitness for this particular work. For that reason I do not want to cumber either the board at Blacksburg or the agricultural board with ex-officio members who may to-day be first- class people for the business and ten years from now might be very improper persons. I am very much disposed to offer as a substitute to the amendment of the gen- tleman from Page that we strike out that whole provision from line 9 to line 12. The Chairman: Does the Chair understand the gentleman from Rockingham to make that motion? Mr. Keezell: Yes, sir; and in making that motion I want it distinctly understood that I am in favor of such legislation as will bring the Agricultural Department and the department at Blacksburg into the very closest harmony, but I think it is very dangerous to undertake to put into the Constitution a cast-iron provision which might prove very ineffective in accomplishing the results which it is endeavoring to ac- complish. Mr. Mcllwaine: Mr. Chairman, In support of the motion just made by the DEBATES OE THE COXSTITUTIOXAL COXYEXTIOX OF VIEGIXIA. 2055 gentleman from Rockingham (Mr. Keezell) I hold in my hand two letters which I received in the mail this morning from my constituents which seem to take identically the same view held by the gentleman. Both of them are from gentlemen of intelli- gence and education. One of them is a large farmer; the other man lives on a farm and does some farming. One of them says: As the mail is about to go out, I will urge upon you to use your influence against the proposed changes in the Agricultural Board. It is doing the best work now it has ever done, in my opinion, and any tampering with the present law may result in evil. The other gentleman expresses the same views, and then adds; I am sorry to see that it is probable that the president of the Polytechnic Insti- tute and the rector of the Board of Visitors of said school will have anything to do with the State Department of Agriculture. That school has not been worth a row of pins (laughter) to the farmers of Southside Virginia. The bulletin sent out from that institution is not practicable. The last three sent me treated of how to cure dog distemper, how to raise forestry, etc. (laughter). Nov>", sir, we have a superfluity of dogs in Southside Virginia and a superfluity of trees. Mr. Stuart: Mr. Chairman, I dislike very much to address the committee so often. The gentleman from Rockingham (Mr. Keezell) seems to object to this pro- vision here which is necessary to the very thing he seems to approve of. He says he thinks there ought to be reciprocal relations, but he is opposed to the only thing we have been able to think of which would provide reciprocal relations. I have asked both the gentleman from Page (Mr. Parks) and the gentleman from Rockingham (Mr. Keezell) to give me a direct answer to a direct question — what control these two members from the Polytechnical Institute could have of the question of moving this department from this city? What control will these two representatives from Blacks- burg have of the question of the situs of the agricultural bureau by reason of their membership on the agricultural board? Can the board usurp powers that are left by the Constitution in the hands of the General Assembly? Mr. Parks: The whole thing will be a nullity unless the General Assembly car- ries it into effect. Mr. Stuart: That is perfectly true, but we are leaving it in the hands of the General Assembly, and your views are based upon the assumption that two members from Blacksburg and one member from the Ninth congressional district can exercise more power than all the rest of the State east of the Alleghanies. Mr. Parks: Not at all. Those two members will have their influence with the other members of the board. I wanted to prevent that, so far as I am concerned, although my motion was not to strike out that at all. If the committee thinks it will break down the rivalry between these two institutions, and bring them into harmony. I was v.'illing to leave it there, but at the same time I agree with the gen- tleman from Rockingham (Mr. Keezell) as to the unwisdom of appointing men to positions by reason of constitutional provisions because they hold some other oflBce. I am opposed to ex-officio mejnbers. I think it unwise, but still I was willing to yield that point to the committee, provided these men had no vote in the selection of officers. That was as far as my amendment went. Mr. Stuart: I understand the gentleman, then, to favor reciprocal relations, but to object to the measure which is the only means of securing them. As regards the letters read by the gentleman from Prince Edward (Mr. Mcll- ■waine), I will say I have had a number of such letters. I will not undertake to say whence the letters he has read emanated, but I will say that mine emanated from the 2056 DEBATES OE THE CONSTITUTIONAL CONVENTION OE VIRGINIA. ex parte statements of interested parties and were generally written in response, and in direct response, to entreaties from such interested parties to address letters to members of this Convention. I state that as the history of those I have received, and I will state further my opinion or surmise that he might find the same to he true in regard to those he has read, without casting any insinuations on the character of the gentlemen who wrote the letters. Mr. Mcllwaine: All I know about the letters, sir, is that I received them from these gentlemen through the mail this morning, and I know the gentlemen to be up- right, intelligent, honorable men, whose opinions are worthy of consideration. Mr. Stuart: So are my correspondents, and that is the reason they were selected to write the letters. On motion of Mr. Eggleston, the committee rose and the President resumed the chair. The hour of 2 o'clock having arrived, the Convention adjourned until to-morrow Thursday, January 30, 1902, at 10 o'clock A. M. THURSDAY, January 30, 1902. The Convention met at 10 o'clock A. M. Prayer by Rev. i . M. Maxey, D. D. Mr. Green: I beg leave to submit the report of the Committee on the Preamble and Bill of Rights, and ask that it lie on the table and be printed. It was so ordered. Mr. Fairfax: I am instructed by the Committee on Taxation and Finance to pre- sent the report of that committee, and request that it lie on the table and be printed. It was so ordered. On motion of Mr. Stuart, the Convention resolved itself into Committee of the Whole for the further consideration of the report of the Committee on Agriculture, Industrial and Manufacturing Interests and Immigration, Mr. Glass in the chair. The Chairman: The question before the committee is on the adoption of the amendment of the gentleman from Page (Mr. Parks). Add at the end of line 11, Section 1, the following: But who shall have no vote in the selection of the officers to be selected by said board. The paragraph would then read: The rector of the Board of Visitors and the presi- dent of the Polytechnic Institute shall be members ex-officio of the Board of Agricul- ture and Immigration, but who shall have no vote in the selection of the officers to be selected by said board. Mr. Parks: I suggest striking out the word "who" after the word "but," as it is not necessary. The Chairman: That will be done, without objection. Mr. Brown: Mr. Chairman and gentlemen of the committee, I take it there is a wide field of usefulness in this State for a properly constituted Board of Agriculture. In no State of the Union are there greater possibilities than in Virginia; and no question of greater moment to the interests of agriculture in this State can present itself than the one now under consideration. A proper determination of it means the establishment of a principle that will underlie and prove the foundation of all really successful effort for an early upbuild- ing and advancement of the agricultural interests of this State. DEBATES OF THE COXSTITUTIONAL COXYEXTIOX OE VIRGINIA. 2057 It means the separate and independent establishment, but the permanent unifi- cation in interest, of the varied agencies working for the advancement of the agricul- tural interest along progressive lines. We are at the parting of the ways; a false step now will have serious conse- quences. It would make possible a continuance of the lack of community of interest and sympathy between the great agencies that can and should work together unselfishly for the benefit of agriculture in Virginia, and would perpetuate indefinitely present unprogressive methods, with the hard struggle for the survival of the fittest, unaided by united and intelligent direction and by scientific research, and by practical demon- stration of the usefulness of the results obtained. Harmonious and joint effort of all agencies established for the benefit of agriculture is needed to secure success. To this end cordial relations should be established between the Board of Agricul- ture and the Board of Visitors of the Agricultural College and their officers. The provision of the report that makes the president of the board and the Com- missioner of Agriculture and Immigration members ex-officio of the Board of Visitors of the Virginia Polytechnic Institute, and the rector of the Board of Visitors and the president of the Virginia Polytechnic Institute members ex-officio of the Board of Agriculture is the necessary step to insure the most cordial relations between the two institutions. In almost every other State such harmony and mutual help exists and is made possible by just such a provision as is here proposed. I desire just here to most emphatically deny any suggestion that the authorities at Blacksburg desire in any way to absorb or interfere with the proper functions of the Board of Agriculture. In an editorial of the 28th on the subject of this report the Richmond Dispatch says: The report of the committee submitted to the Constitutional Convention yester- day not only proposes to reorganize the Board of Agriculture of this State and take from the Governor the appointment of the commissioner, but may result in the de- partment's being moved from Richmond. It is understood that Blacksburg would very much like to have it. Should the proposed ordinance be inserted in the new Consti- tution it probably would be easier than ever for Blacksburg to get it. I can authoritatively deny such a suggestion, and as authoritatively state that the sole interest the Board of Visitors of che college feels in the matter under dis- cussion is entirely impersonal as far as themselves or the college is concerned, and speaking for them I assert that they are solely actuated by a desire to see such a pro- vision as will establish such a community of interest as will necessarily result in harmonious and cordial relations between the said boards in their common efforts to advance the agricultural interests of the State. The proposed provision in the Constitution that there shall be reciprocal ex-of- flcio membership between the two boards emphasizes the fact that there must be two boards always separate and distinct, and in itself denies the assertion that either board can absorb the other. The joint efforts, on the other hand, of the two boards working independently, but in harmony, will produce most valuable results, which will be for the best in- terests of the agriculture of the State. It is to put them in this sympathetic touch with each other that the committee has wisely made the provisions It has recom- mended. One of the great State agents for the advancement of knowledge in agricultural pursuits is the Virginia Polytechnic Institute, the Agricultural and Mechanical Col- lege of Virginia, with its corps of scientific investigators along lines that deal with the most material interests of agriculture. 130 — Const. Deb. 2058 DEBATES OF THE COA'STITUTIOXAL COXVENTIOJsT OE VIRGINIA. The investigations of the Experiment Station, supported entirely by funds fur- nished by the United States Government, and the work of the college in stock hus- bandry veterinary science, in the best methods of the manufacture of all the pro- ducts of the farm into canned goods, fruit, jellies, butter, cheese^ and all creamery products, and the valuable work of the department of horticulture in all branches, and particularly in its attention to the scientific culture and protection of fruits, the work of the Board of Crop-Pest Commissioners, and the Board of Quarantine Commissioners, and the success of the college in all lines of practical instruction, are well known, and contribute to the estimation in which it is held, but are too valuable to the general agricultural interests of the State not to be made free use of by the Board of Agriculture. All these active forces should be and are at the disposal of the Board of Agriculture, and I support with pleasure this report of the Committee of Agriculture, which provides for a line of intercommunication and mutual interest between the Agricultural College and the Board of Agriculture, and which will enable them to work together in the greatest harmony and with the greatest economy of money and energy. The Board of Agriculture, as at present constituted, is restrained and restricted m its greatest usefulness and its highest efficiency by the vague, unsatisfactory and contradictory nature of the laws defining its duties and powers, and especially by the fact that the powers of the board and of its administrative ofllcer, the Commis- sioner of Agriculture, are inconsistent and conflicting. He is supposedly the officer of the board, but independent of it by reason of his appointment by the Governor and not by the board itself. The board has responsibility to the public, but no real power to fulfil its obliga- tions, meet its responsibilities, or demonstrate its usefulness to the fullest extent. Responsibility without authority — a fatal position for any man or set of men. Under the present system the commissioner, while independent of the board, is a member of it, atteuds all its meetings; and this renders a fair and thorough criticism of his administration difficult. In case of an open issue, he could defy the board. Just here I desire to state that I am entirely impersonal in what I say, as I am sure the present commissioner is held in the highest esteem by his official associates, and the chairman of the committee has spoken of his work in the highest terms. I simply wish to emphasize the wisdom of the committee in providing that he shall be an officer of the board elected by and responsive to It. A board of several members must be intended to subserve a certain purpose — presumably the advancement of the agricultural interests of the State in the differ- ent sections represented by them . With tied hands, all initiative is checked, effort and enthusiasm dampened, good work rendered difficult by the concentration of all power In the hands of one not responsible to them. With larger powers, more voice in the administration of the affairs of the de- partment, each member of the board would be an active officer of the body, a special commissioner, as it were, in his section of the State, in close touch with his people. One-man power in such a department, and especially with the responsibility so ill- defined, is thoroughly unsatisfactory. Power granted to the commissioner to appoint all assistants would greatly increase and intensify the evils of the present system. Assistants, dependent upon his pleasure -for reappointment, would be active workers in his personal interest. With the development of this department made possible by the constant increase in fertilizer tax (now over $30,000, I believe) there would be a score or more of officials wholly devoted to his service. Such a system is unknown in our State or the South, and directly opposed to our Democratic-Republican ideas. DEBATES or THE COXSTITUTIOXAL COXVEXTIOX OE VIEGIXIA. 2059 Besides the otLer evils incident to one-man power, it is impossible for a single man adequately to deal with, the various agricultural and horticultural interests of the State — to feel equal sympathy with all. Hence the value of a hoard with ade- qu3.te powers, representing every section and its peculiar interests. If experts are to he employed, or scientific assistants, these should he selected on their merits. Such a selection is best made by a large board, not by an individual who is not directly responsible for his acts or at best only remotely so. The department should rest upon the confidence and support of the agricultural public. A representative board can best secure such support. In the great majority of States, and particularly those in which the Boards of Agriculture are most efficient, there is no commiss^ner, but a secretary, who is the administrative officer of the board, elected by and subject tc it. I cite the composition of a few of the State Boards of Agriculture that I have convenient: Connecticut — Governor a member ex-officio; four are appointed by the Governor; eight elected by agricultural societies. Board elects a secretary. Vermont — Governor and the president of Agricultural College are members ex- officio; three members appointed by Governor. Board elects its own officers. Maine — President of Agricultural College and director of experimental station are members ex-officio; sixteen members chosen by agricultural societi&s. Board elects its own officers. New York — Has no board; only a commissioner appointed by the Governor for three years. South Carolina — Has neither board nor commissioner, but the duties of such a board are discharged by the trustees of Clemson College, and the secretary of the college performs the duties usually assigned to a secretary of agriculture, Michigan — Governor and president of Agricultural College members ex-officio; six members; elect officers. Board is also board of trustees of college. Illinois — Governor ex-officio member, also president of Agricultural College; twentj'-two members chosen by congressional districts; elects own officers, Ohio — President of college ex-officio member; ten members elected by the dele- gates from all the counties in the State which regularly hold agricultural fairs; elects a secretary. Rhode Island — Governor, Lieutenant-Governor, and Secretary of State are ex- 'officio members; two members are appointed by the Governor: ihree are appointed by the agricultural societies; one by State Granges: one by Rhode Island College of Agriculture. Missouri — Governor, superintendent of schools, and dean of Agricultural College ex-Gfficio members; fifteen members appointed by Governor; elects its officers. Massachusetts — Governor. Lieutenant-Governor. Secretary of Commonwealth, and president of Agricultural College ex-officio members: three members appointed by Governor: thirty-four chosen by the incorporated agricultural and horticultural socie- ties; elects its officers, including a secretary. Where there is a commissioner vested with full powers, as in New York, there Is no Board of Agriculture, for there is nothing for the board to do. Only in Virginia does such an illogical condition exist. Either a commissioner with full powers, as in New York, or a board with, the power to satisfactorily meet its responsibilities, as in the other States. The committee has wisely chosen the latter, and I understand that the present Board of Agriculture concurs with them in this position, and I understood the chair- man of the committee yesterday to state that the president of the Board of Agriculture 3060 DEBATES OF TllS CONSTITUTIONAL CONVENTION OF VIRGINIA. had written him a letter in which he heartily endorsed the whole section of the com- mittee's report dealing with the Board of Agriculture. If this Convention does not reach the same conclusion, I am sure there is a failure to grasp the true inwardness of the situation and the vital importance of the principle involved. It will be noted that in every instance cited — and I believe it is the practical rule in nearly every State in the Union — the Agricultural College has ex-o^icio rep- resentation on the Board of Agriculture and the Board of Agriculture elects its own oflBcers. An experience of more than twenty years in many States has approved such an arrangement. Your committee proposes to extend the principle and give the Board of Agriculture reciprocal ex-officio representation on the Board of Visitors, the gov- erning board of the college. Gentlemen cannot claim that any advantage is given in this provision by your committee to the Board of Visitors of the college as against the Board of Agricul- ture, for the last named board consists of ten members, to whom are added two ex- officio members from the college authorities, while the Board of Visitors of the college consists of eight members, to whom are added two members representing the Board of Agriculture. If there is any advantage given, it is in the proportionate weight of the members on the Board of Agriculture on the Board of Visitors of the college rather than to the representatives of the college in the Board of Agriculture, the Board of Agriculture having one-fifth membership of the board of the college, and the latter having only one-sixth of the membership of the Board of Agricultnre. This oflBcial reciprocal representation between the two great vital forces at work to pre- serve and advance the interests of Virginia agriculture will do more than any one thing possible to unite their efforts and allow each board to bend its energies to the accomplishment of the results each can severally best attain. It will produce the greatest economy possible and will conserve the energies of each where the work of one touches and interlaps the other, one can aid the other intelligently, feeling tlfat in a sense it is thereby accomplishing his own work the better. Where the work is divergent, each can aid the other by friendly sympathy and suggestion. There will be no danger of either going over the same ground passed over by the other, at great cost to the tax-payers, who support both institutions. There should be an experiment farm in the peanut and trucking section, as now in the tobacco section, and another possibly in the northern or valley section of the State. The Board of Agriculture may find it advisable, and certainly economical, to take advantage of facilities at the college for the scientific determination of results obtained from the experiments on said farms, without which accurate determination all efCort and expenditure in this line of work is worse than useless. To do this ex- tensively will require an extensive corps of experts and assistants. Why place ttis charge upon the tax-payers of the State when the facilities are already provided at the Polytechnic Institute, and largely at United States Govern- ment expense? Why adopt a course that may demand a double list of experts in horticulture, veterinary science, etc., to be provided and maintained at great cost, when the Board of Control of the Experiment Station — the executive committee of the Board of Visi- tors — is already, by law, created a Board of Crop Pest Commisioners, and its horti- culturists are State oflBcers empowered to investigate and protect the fruit inter- ests and to eradicate disease from the orchards of the State? Few know the great work already done along this line, done, too, at comparatively small cost to the tax-payers — only the traveling expenses of the experts and a small salary to assistants. All the expert work Is paid for by the United States appropria- tion. DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE VIEGIXIA. 2061 The same Board of Control is, by law. created a Quarantine Board, with power to deal vritii diseases of domestic animals. Its veierinarians are State officers, and the same quality of vrork done by the crop pest workers is best done in the matter of protecting the cattle interests of the State from infection. The Federal Government threatened to place the whole State south of the quar- antine line ten years ago, and would have done so but for the creation of this Quar- antine Board and the powers Tested in it by the General Assembly, a fact not known, perhaps, to many present. Incidentally, I may say to gentlemen interested in the matter of quarantine af- fecting certain counties north of the James, from Nelson to Henrico, that I am glad to say that the board has had assurances of co-operation from the authorities in the several counties a^ected, and the matter will be taken up at once with the Federal authorities, and the counties released from Federal quarantine immediately, it is confidently expected. I shall take pleasure in giving any gentleman full particulars. I have gone more fully, perhaps, than necessary into these phases of college work, touching the agricultural interests of the State, but there are others that could be as easily elaborated. I mention these matters to show how the work of a Board of Agriculture and of the Agricultural College must touch or interlap, and to empha- size the importance of harmonious and cordial relations. Referring to scientific de- terminations of the result of experiments conducted on State farms, I have stated that the whole success of the experiment is dependent on such determination. In like case must the value of the experiments to the people at large be governed by the ability to disseminate the information gained. The college issues many thousands of bulletins monthly of its own work, and has a United States Government frank. If the Board of Agriculture was working in close touch with the college, the college would be able to use this frank for the results obtained jointly for the college and board, and to save thousands of dollars in the matter of postage alone. I need not further trespass upon your time with such enumeration; but it can be shown that a Board of Agriculture and the Board of the College, working together harmoniously and cordially, though being entirely distinct and independent of each other, can yet accomplish a threefold greater work, at the same or less cost to the tax- payers, than the same boards at odds. Your committee has provided for this community of interest by providing the reciprocal ex-oificio representation. It also provides that the General Assembly may add other ex-officio members to the Board of Agriculture — a very proper provision. TVifh a revivification of the hopes, and a consummation of the efforts, of those vvorking for the advancement of agricultural interests there may, and doubtless will, be a rejuvenated State Agricultural Society, whose president might be so honored, as well as others, perhaps. There will arise, no doubt, an association for advanc- ing the peanut and trucking interests of the State, especially in the Tidewater sec- tion, and already we have a State Horticultural Society which is particularly inter- ested in advancing the fruit interests of the Commonwealth. This provision would allow the General Assembly to add to the board special accredited representatives of such associations, in the persons of the president or other officer. I have sought to support, in a desultory way, the principles upon whose adop- tion depends, in my humble judgment, the success, m largest measure, of the great movement now possible, for the advancement of all the agricultural interests of the State. I have tried to show some matters — there are many others — in which, under the report of this committee, the Board of Agriculture and the Board of Visitors of the Virginia Polytechnic Institute can co-operate, to the great benefit of the agricultural 2063 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIEGINIA. interests in the State, and with saving to tax-payers, and how the report, at the same time, in terms, insures the preservation of the two institutions separate and distinct. I desire again to repeat, as emphatically as possible, that there is no desire whatever — nor has there ever been any such wish — on the part of the authorities and friends of the Virginia Polytechnic Institute at Blacksburg to in any way prejudice the work of the Board of Agriculture or take any part of its functions to Blacksburg. But it is the earnest desire of them all to support a provision that will draw the two boards into the most harmonious and cordial relations possible. The mutual helpful- ness, of such a plan cannot be denied. The principles involved are a control by the Board of Agriculture of its own officers, with the power given thereby to meet its responsi^bilities, to the satisfaction of its members, and with the approval of the people — a reciprocal official representa- tion on the Board of Agriculture and the Board of Visitors of the Virginia Polytechnic Institute by representatives of each institute, respectively. Adopt these principles as embodied in the report of your committee, and I shall feel confident you will have done more to advance the true interests of agriculture in all its branches than is possible in any other way. I hope gentlemen will think carefully before they accept an idea that there is in this proposal of your committee any idea to prejudice the Board of Agriculture in favor of Blacksburg. I am sincere in the statement, and I am borne out by all ex- perience in the past, that this college has never undertaken to tak-e the Board of Agriculture to Blacksburg, and does not propose to do so now, but that it believes there are agencies that should be working together in the State to uplift and upbuild the agricultural interests of the State, and to do so along progressive and healthful lines. It seems to me you have provided in the report of your committee the most powerful incentive to accomplish this in the most feasible manner. You are following lines that have been adopted in nearly every State of the Union which has agricultural colleges and agricultural boards. The tendency in the State is to keep them inde- pendent in their departments, but to draw them closer together in their work for the interests of agriculture. Colleges are heavily endowed by the United States Govern- ment in every State of the Union, and the endowments are given for the purpose of employing experts, and are in just measure restricted to such uses in nearly every instance. In fact, the law making these appropriations defines absolutely how they must be used. It does seem to me that when we have an opportunity to draw all these forces together for the advancement of the agricultural interests we should not do anything that will further force tliem apart, but should do what the Convention best may do to require that there should be this harmonious and cordial relation which I have pointed out as desirable, to the end that the people of Virginia may be able to enjoy to the fullesf extent the result of the appropriation made by the Government of the United States. A wide field of usefulness is proposed for the Board of Agriculture, and I am glad to see that the people of the United States realize generally its value and grasp its opportunities. There is a wide field for college work, and I am glad to see the people endorse the work being done in the colleges; but it is in the power of the Convention to draw these two agencies together in Virginia, to unite them into one effort, so that they will be, though separate and independent, still working together along lines where they overlap. They will be working separately where their Interests are divergent, but always working in the common interest, with the full knowledge of the demands and desires of the people who need their help and for whose assistance they are established. Gentlemen, I thank you for your attention. DEBATES OE THE COXSTITUTIOKAL COXVEXTION OE VIRGINIA. 3063 The Chairman: The question is on the amendment proposed by the gentleman from Page (Mr. Parks). Mr. Fairfax: Mr. Chairman, I respectfully submit the following amendment: Strike out, in line 9, the words "the rector of the Board of Visitors and," which would make it read: "The president of the Virginia Polytechnic Institute," and in the same section strike out, in line 20, the v/ords "and the Commissioner of Agriculture and Immigration." Mr. Keezell: I would suggest to the gentleman, in the interest of harmony in appointments, that the rector of the Board of Visitors should be put on the board. Mr. Fairfax: My amendment was to strike out the commissioner. Mr. Keezell: It seems to me the rector of the Board of Visitors of the Polytechnic Institute would correspond more to the president of the Board of Agriculture than would the chairman of the faculty there. The chairman of the faculty would represent the Commissioner of Agriculture to a very great extent. That is merely my sug- gestion. Of course, I have nothing to do with the amendment except to make that suggestion. Mr. Fairfax: I am offering it with a view of meeting objections that have been made. I want to make the board as nearly as possible a perfected board, and to have it please the farmers and those interested in this measure, if, possible. I think, Mr. Chairman, we had better strike out the commissioner. Mr. Parks: Mr. Chairman, I withdraw my amendment, and will let the vote be taken on the amendment of the gentleman from Loudoun. Mr. Hubbard: Mr. Chairman, I have the highest regard for the distinguished members of the Committee on Agriculture, and it is with great reluctance that I rise to oppose the part of their report which undertakes, as I conceive, to change in a radical manner the agricultural system of Virginia by adding the rector of the Board of Visitors and the president of the Polytechnic Institute to the Board of Agriculture. I have before me on my desk a document received from my county this morning, which assures me that the farmers of my county are unanimously opposed to this radical change. We are presumed here to be a representative body, and it must be conceded that the agricultural Interests are of paramount importance. I say, Mr. Chairman, this change Is radical. Why do I say that? This body yesterday decided, an^ properly decided, that each member of the board to be ap- pointed by the Governor and confirmed by the Senate should be a practical farmer. What assurance has this body, or can it have, that the rector of the Board of Visitors or the president of that institute shall be practical farmers? What justice can there be in allowing that institution to have twice as much representation as any con- gressional district in the State? The farmers of the various congressional districts are allowed but one representative, and yet this favored institution, which has no place upon this board at all, is allowed, if the amendment of the gentleman from Loudoun (Mr. Fairfax) prevails, to still have one. The injustice of that is manifest. The Impropriety of it is manifest, because in either event, whether it has one or two, this body, which saw the wisdom and the propriety yesterday of deciding that the other members of this board should be practical farmers, allowed In the one case one and in the other case two members of that institution to be placed on this board, which in the one case would give equal representation to each congressional district and in the other twice as much representation, without any assurance whatever that either of them would be practical farmers. Now. Mr. President, I think this change ought not to be made, because this Is a purely agricultural matter. The present agricultural system has proved a success, and experiments are dangerous. I think we ought to heed the words of warning that come from the farmers, as appear in this document upon my desk, which assures me my constituency are unanimously against this change. They want us to let well 2064 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. enough alone. Therefore, I heg the members of the committee to pause long and seriously before you make a change which will, in any event, If only one is added, give one vote to an institution through the voice of a man who may not be a practical farmer against the ten votes of the practical farmers selected by the Governor, as provided in this Constitution, in the various congressional districts upon that board. I hope it will be the pleasure of the body to heed this warning from the farmers, and to respect their wishes. In view of the fact that the system is now a success, I hope you will vote down this clause in the report which puts these new gentlemen upon the board, and that you will not allow the General Assembly the dangerous power to add any other men they may see proper upon this board. Mr. Stuart: Mr. Chairman, I desire to say that the amendment proposed by the gentleman from Loudoun (Mr. Fairfax) is acceptable to the committee, so far as I have been able to see the members, and so far as I have any knowledge of their wishes on the subject. It simply gives recognition to the views expressed by some gentlemen who are very much interested in this question, that it might be giving undue authority or undue weight and influence to one particular section of the State; and in order to give evidence of our desire to avoid any such condition as that, the committee, so far as I am able to represent them, will be very glad to accept that amendment. As to who shall constitute the member from the Agricultural Board, it seems to me to be immaterial. So far as I am concerned, I shall have no objection to having the commissioner instead of the president. I leave that matter, however, in the hands of the mover of the resolution. The Chairman: The question is on agreeing to the adoption of the amendment proposed by the gentleman from Loudoun (Mr. Fairfax). The amendment was agreed to. Mr. Parks: I offer the following amendment, to come in at line 14. It reads now as follows: "The powers and duties of the same board shall be such as may be pre- scribed by law: provided, it shall maintain its principal oflQce at the Capital of the State." I move to insert the following words in lieu of those I have just read: "The powers and duties of the said board and of the Commissioner of Agriculture and Immigration shall be such as may be prescribed by law: provided, the principal office of the commissioner and of such board shall be permanently established and main- tained at the Capital of the State." I do not move to strilie out the balance of that paragraph. Mr. Mcllwaine: I move as an amendment, sir, that instead of tlie words "prin- cipal office shall be permanently established and maintained at the Capital of the State" to strike out the words "principal office" and substitute the words "the Depart- ment of Agriculture." Mr. Parks: I accept the amendment The Chairman: The gentleman from Prince Edward (Mr. Mcllwaine) moves an amendment to the amendment, which has been accepted by the gentleman from Page (Mr. Parks). Mr. Stuart: Mr. Chairman, the amendment proposed by the gentleman from Page (Mr. Parks) is one which, on its surface, seems to be very little at variance with the views of the committee as expressed in the report. It is the intention of the report, as I understand it, to do something which has never been done before, either by Constitution or by statute in Virginia. That is, to provide that there shall be a Board of Agriculture. There has been no division of sentiment whatever, so far as I have been able to hear, as to the importance of inserting the word "shall" instead of the word "may." The committee, recognizing the importance of this board, have used the word "shall." That gives perpetuity to the department. As at present, the General Assembly has power to wipe it off the statute books entirely; it has power to move it anywhere it may choose, and, as the gentleman from Page said, it had seriously DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE VIEGT^'IA. 2065 under consideration two years ago, or at least had representatives before it, seri- ously proposing that it should be abolished altogether, or if not abolished, to move it to some other point which would be equivalent to abolishing it. Now it is to take this department out of this uncertain state, this precarious existence, that this committee has introduced this feature of the report. It seems to me that when we provide that this Department of- Agriculture shall exist, and that its duties and powders shall be prescribed by law, that is about as little as we could safely leave to the General Assembly. I do not see how w^e could leave them anything if we do not leave them that much. We have felt that if the General Assembly shall prescribe the duties of the Board of Agriculture, and the Board of Agriculture shall elect its commissioner, in effect it would deprive the board to some extent of proper administrative capacity to have one set of duties prescribed to the board and another set to the commissioner, which might in some cases produce the very condition we are now trying to cure. When the duties of that board are prescribed by law, the powers of the board and the limitations of the powers are clearly set out not only in dealing with the commissioner, but in dealing with every other subject that may come before it. Now, if the General Assembly shall undertake to define the powers of the board and the powers of the commissioner, it may define one set of powers for the department and one set for the commissioner, which would be entirely in conflict with each other, or might lead to conflict. It is to announce the principle that the executive officer shall be elected by the board and shall be, as all other executive offi- cers are, dependent upon the power of that board that this report is drawn. It is to leave that question in no uncertainty. Now, if the committee thinks it unwise to modify or qualify the powers of the Board of Agriculture in dealing with the commissioner, it would be proper, perhaps, to adapt the suggestion of the gentleman from Page, but I have never seen any good result from extending power to a board with a string to it. If we intend this board to exercise discretion and power, and we have already provided that they shall be prac- tical farmers, why attach this qualification and condition? It does seem to me their powers and duties could be defined, and that is sufficient. Now, as to the location of the board, some people seem to think that the report is drawn for the express purpose of enabling this department to be moved from Richmond, whereas there is ample authority now to move it if it were desired: and this committee has written the first line, so far as I know, in the Constitution or on our statute books which tends in any way to curb the discretion of the General Assem- bly in that particular. I have said I thought it ought to be entirely discretionary with the General Assembly as to where this department should be located, or as to where the headquarters of the Board of Agriculture should be located. I called attention yesterday to the fact that the strong and cogent reasons were given for requiring the penitentiary to remain at the Capital of the State were not considered favorably by this committee or by the Convention, but, upon the contrary, the General Assembly was left free to deal with that question as they might deem proper. Now, if the General Assembly fails to see any reason for keeping the penitentiary here — and the reasons for that are very much greater than for keeping this department here, although personally I am in favor of keeping it here, and see no reason why it should ever be removed — if it was deemed improper to qualify the control of the General Assembly In this regard in dealing with the penitentiary, how much more improper it is in this case. Now, it says the principal office shall be here. It is desirable that there shall be branches. There may be State experimental stations, supplemented by Federal aid. There may be many varieties of cases coming before the General Assembly, or before this board, of a nature w^hich it would not be well to prejudge. I think the report of the committee in this regard is ample for the purpose. It is absolutely impossible 2066 DEBATES OF THE COXSTITUTIOIsTAL CONVENTIOlSr OP VIRGI^TIA. to move tlie department from here, in any proper or essential sense under this lan- guage. I cannot, therefore, see any good to be accomplished by this amendment. It is urged that there are animosities between the Board of Agriculture and the Polytechnic Institute which may result in a movement to get the department away from here. It Is a recognition of the fact that there are such animosfties which brought the com- mittee to the very conclusion stated in this report. It is to cure these animosities, to make it impossible for those animosities to exist, and to unite them in a common interest and put them in a boat together, to sink or swim, so that they will have a common purpose in protecting their joint interests instead of fighting each other. If this is not in the interest of peace between the two institutions, I am unable to dis- cover any measure that could be presented for that purpose. It is said there are some individual members of the Blacksburg board who would like to see this department transferred there. If any man should think that, he would certainly be opposed to this report, for this is the only thing ever written, as far as I am aware, which absolutely and forever prohibits it. The agricultural board is here required to be a permanency and its entity cannot be destroyed by any legislative act; hence It can never be lodged with Blacksburg. It is the only provision ever proposed which has for its express object the prevention of that very result. Now, Mr. Chairman, I do not wish to be understood as antagonizing the interests of the city of Richmond in this matter, v/hich are, to some extent, as we all know, local, and very properly so, but I do not see why this Convention or this committee should require a department of this kind to be located forever at the State Capitol when it refused to do so in the case of the penitentiary. Mr. Parks: Mr. Chairman, in the first place, I wish to be distinctly understood as not intimating that the Board of Visitors at Blacksburg, or any officers at Blacks- burg Institute, or any member of this committee, has contemplated for a moment the removal of the office of the board from the city of Richmond. Neither have I offerS'd this amendment because of any predilection that I have for the city of Richmond in that particular. I have offered it, sir, for the purpose of settling the matter. This report says that the principal office of the Board of Agriculture shall be at Richmond. The board can have its office here and meet here. They can let out contracts for the fertilizer bags here, and they can remove the Commissioner of Agriculture, the museum, and the branches to Blacksburg, or wherever they please under this report. I want the Department of Agriculture kept at the Capitol of the State, so that the people can have access to it, and close to where all the other departments of the State are. If it is to be a department, then let it be a department of the State, co-equal with other departments of the State, recognized as such by having its habitat at the Capital of the State. Mr. Eggleston: Mr. Chairman, I desire to call the attention of the gentleman from Prince Edward (Mr. Mcllwaine) to the fact that this department is called the Depart- ment of Agriculture and Immigration. I suppose he contemplates retaining the whole department at Richmond. And that the word "Immigration" should be inserted in the title of the depart- ment? Mr. Mcllwaine: Yes. sir. The Chairman: That will be done if there is no objection. Mr. Keezell: Would the scope of your amendment prevent them from having branches? Mr. Parks: The chairman of the committee just came to me and asked me about that, and I said I had no objection to inserting in the amendment the words "with- such branches as might be established." I have no objection to that. Mr. Brown: Mr. Chairman, before this amendment is voted on, I desire 10 ask DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OE VIEGIXIA. 2067 the chairman of the committee if the committee will accept the following amendment: In lines 15 and 16 strike out the words, "its principal office," and substitute the wordS;. "the Department of Agriculture gnd Immigration," so that the paragraph would read: "The powers and duties of the said board shall be such as may be prescribed by law: provided, it shall maintain the Department of Agriculture and Immigration at the Capital of the State, and shall," etc. Mr. Parks: It is the same thing in other words. Mr. Stuart: That leaves the report in better shape, though, in vtew of the way in which it is presented, it mutilates the report much less than the proposition of the gentleman from Page (Mr. Parks), and accomplishes the same results, as I un- derstand it. Mr. Portlock: I offer the following amendment, which is drawn to meet the point. I think the language will cover it. It is offered as an addition to the amend- ment of the gentleman from Page (Mr. Parks). The Secretary read as follows: Add after the word "State," in line 16, the words "with such branch ofaces as may be located elsewhere, as may be prescribed by law." Mr. Parks: I have no objection to that if it is acceptable to the chairman of the committee. Mr. Stuart: That is acceptable, sir, up to that point. Mr. Eggleston: I desire to ask the chairman of the committee if he thinks it should be 'T)ranch offices" or "branches." As I understand, the Department of Api- culture is established in these test farms in different parts of the State. It seems to be apprehended that that would break up the arrangement unless they were at Richmond. Ought it not be "branches" instead of "branch offices''? You could not say a test farm is a branch office, and it would be a branch of the department. Mr. Stuart: I must confess, Mr. Chairman, there is a great deal in what the gen- tleman from Charlotte (Mr. Eggleston) has just said. The fact is these propositions are being sprung upon the committee so rapidly as not to give us time for mature consideration of the exact importance of them. I think vrhatever branches may be established should be branches of the department itself, and that they should have such powers as the department is capable of conferring on them. Mr. Wise: Mr. Chairman, I would like, to say to the chairman of the committee that it seems to me the amendment is not necessary at all. Under the amendment offered by the gentleman from Page (Mr. Parks) you could have these branch farms all over the State. There Is nothing in his amendment which forbids if. It simply provides that the Department of Agriculture shall be permanently located in Rich- mond, and that amendment, in my opinion, w^ill simply mystify, and not clear. Mr. Stuart: I must insist on that language, Mr. Chairman, because of the fact that I feel it is necessary to the full import of the whole article. I beg to differ with the gentleman from Richmond (Mr. Wise) as to the fact that the amendment is superfluous. Mr. James W. Gordon: I offer the following as a substitute for that vrhole para- gTaph: "The said board shall elect for a term of four years a commissioner of agricul- ture and immigration, and shall also elect its officers. The powers and duties of said board and of said commissioner shall be such as may be prescribed by law; provided, that the Department of Agriculture and Immigi-ation shall be located at the captial of the State, with such branch offices and experimental stations, to be located elsewhere, as may be prescribed by law." That will cover the experimental stations. The said board shall elect for a term of four years a Commissioner of Agriculture- .2068 DEBATES OE THE c'OXSTITUTIOJnTAL CONVENTION OE VIRGINIA. and Immigration, and shall also elect its officers. The powers and duties of said board and of said commissioners shall be such as may be prescribed oy law: provided, that the Department of Agriculture and Immigration shall be located at the Capital of the State, with such branch office and experimental stations, to be located elsewhere, as may be prescribed by law. Mr, Brown: Mr. Chairman, it does seem to me that we have reached the point where we are all practically seeking the same object. In none of these resolu- tions that have been offered amending this paragraph or proposing a substitute therefor do I see anything except the report of the committee clothed in other lan- guage. I contend that the report of the committee, with the amendment I have sug- gested, and possibly with the addition of the amendment suggested by the gentleman from Norfolk county (Mr. Portlock) allowing the Board of Agriculture to maintain branch establishments, is the proper language to use in this report. We have in the report the provision that the powers and duties of the said board shall be such as may be prescribed by law. "We have an amendment offered by the gentleman from Page (Mr. Parks) that the powers and duties of the said board and of the commissioner may be prescribed by law. It seems to me, though the language is different, the intent and purpose is the same; and furthermore, the powers and duties of the board, unless prohibited by law, are more carefully guarded in the language of the report than is provided for in the language offered by the gentleman from Page. The Board of Agriculture, under the provisions of the report of the committee, only has such pov/ers and duties as may be prescribed by law. Those powers and duties have to be prescribed by the Legislature. When that provision of the legisla- tive act is being adopted, the special provision as to the particular duties and powers of the commissioner can very easily be put in that act without a constitutional pro- hil>ition providing that the commissioner has only such powers as may be prescribed by law. It does seem to me that the wording of the committee is the correct and proper wording, because it covers the whole ground. Then, to proceed with the proviso which follows, it seems to me the amendment which I have offered and which has been accepted by the chairman of the committee, so that the section will read: Provided, it shall maintain the Department of Agricul- ture and Immigration at the Capital of the State," meets the objection that has been offered by the gentleman who offered other amendments. It seems to me proper, too, if there is any possible misconstruction of this so that the State Board of Agriculture cannot maintain its branch farms in different parts of the State for experimental work, it would be wise to add such words as those suggested by the gentleman from Norfolk county (Mr. Portlock), but in other respects it seems to me the language used by the committee is the proper language and covers the whole ground. It protects the Department of Agriculture from ever being re- moved from Richmond. It guards that point which some of the friends of the De- partment of Agriculture seem to think has been attacked. It provides that the powers and duties of the whole board, including its powers over the Commissioner of Agri- culture, shall be prescribed by law. It is compact; it has no useless prohibition, but it gives to the board only such powers and duties as may be prescribed by law; and it seems to me, when there is so little difference of opinion, it is useless to mutilate the carefully worded language of the report as proposed by the Committee on Agriculture. The Chairman: The question is first upon the first part of the amendment of the gentleman from Page (Mr. Parks) to insert the words, "and the Commissioner of Agriculture," in line 14. The first part of the amendment was rejected, there being on a division, ayes, 27; noes, 30. DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIKGIXIA. 206^> The Chairman: The question recurs on the second branch of the amendment offered by the gentleman from Page. Mr. Stuart: If the gentleman from Page (Mr. Parks) will permit me, I desire to offer a suggestion that will perhaps smooth the tangle which we seem to be in. I submit this to see if it will not cover the point proposed: "The powers and duties of the said board shall be such as may be provided by law: provided, that the De- partment of Agriculture and Immigration shall be maintained permanently at the Capital of the State, with power to establish and maintain branches of said depart- ment located elsewhere." Mr. Parks: I have no objection In the world to that. I think the department would have power to do it, anyhow, but I have no objection to putting it in there. So far as I am concerned, I accept it. The Chairman: The question is on the amendment proposed by the chairman of the committee and accepted by the gentleman from Page in lieu of the amendment offered by him. The amendment was agreed to. Mr. Hubbard: I offer the following amendment: In line 18, after the word "immigration,-" insert the words, "who shall be a practi- cal farmer." The sentence would then read: ''A Commissioner of Agriculture and Immigration, who shall be a practical farmer, whose term of office shPAl be four years." The amendment was rejected, there being on a division, ayes, 5; noes, 46. Mr. Brown: Mr. Chairman, I desire to offer a further amendment to this section, which may meet the views expressed by the gentleman from Charlotte (Mr. Eggles- tion). I ask the chairman of the committee to pay attention to it, so that he may de- cide whether he will accept it. It is tto strike out, in line 18, the words, "whose term of office shall be four years," and insert after line 8 the words, "there shall be a Commissioner of Agriculture, whose term of office shall be four years." I think this meets the view expressed by the gentleman from Charlotte, and de- fines in the Constitution that there shall be a Board of Agriculture, and that there shall be a commissioner, whose term of office shall be four years. It simply strikes out in the latter part of the section the reference to the term of office, and leaves the rest of the section exactly as it has been reported. Mr. Eggleston: I desire to call the gentleman's attention to another fact, that whereas this report created a Board of Agriculture, it does not create a bureau or department. It creates the board, but it does not create the department. Now, I would suggest — and I know these gentlemen have given it a great deal of consid- eration — in lieu of this first paragraph, the following: "There shall be a Bureau of Agriculture and Immigration, under the control of a board composed of one member from each congressional district, who shall be practical farmers, and the Commis- sioner of Agriculture and Immigration. Their terms of office shall be four years, except that the members of the board first appointed from the odd-numbered con- gressional districts shall hold office for two years. This board shall be appointed by the Governor, by and with the advice of the Senate." The object of the change, Mr. Chairman, would be, instead of creating the board, to create the department and put it under the control of the board. It seems to me that is the proper way to do it. if it is agreeable to the committee. I do not under- take to change any of the purport of their report at all, except to create the depart- ment Instead of creating the board. Mr. Brown: I desire to ask the gentleman if this will meet his views — of course, I am Interested In the matter: "There shall be a Bureau of Agriculture and Im- migration, which shall be under the charge of a Board of Agriculture"; and then go ^070 DEBATES OE THE CONSTITUTIONAL CONVENTION OF VIRGINIA. on with the wording as it is here. It seems to me that would practically meet his view, and make the matter very much more concise. Mr. Eggleston: That will meet my view exactly, sir — "There shall be a De- partment or Bureau of Agriculture and Immigra?tion, undei^ the control of the Board Mr. Brown: I will read this as I have drawn it, and then send it to the desk: "There shall be a Bureau of Agriculture and Immigration, which shall be under the control of a Board of Agriculture and Immigration," and then follow the wording of the report. The amendment was agreed to. Mr. Hancock: I move to strike out, in line 13, the words "ex-officio." As I said a while ago, the Committee of the Whole has determined that only one member of the faculty of the Polytechnic Institute shall be a member of this board ex-officio. I suppose the committee by this action intended to decide that there shall be no other ex-officio member of this board. But this section reads: "The General Assembly may, in its discretion, add other members ex-officio to the said board." It seems to me the General Assembly should not be limited to the appointment of ex-officio members of the board. If the General Assembly should be of the opinion that other members, practical farmers, should be placed upon the board, and should deem it wise to have two or more members from each congressional district, I see no reason why its power should be limited. I hope these words will be stricken out. Mr. Lindsay: I move as a substitute that lines 12 and 13 be stricken out. Mr. Stuart: So far as I am concerned, I am willing to accept the amendment proposed by the gentleman from Chesterfield (Mr. Hancock). I see it leaves the scope of the Legislature a little wider than I thought wise, but still, as it is insisted they should have absolute discretion in adding members.. I have no objection. The amendment was agreed to. Mr. Lindsay: I renew my amendment to strike out lines 12 and 13. It seems to me if the present provision is maintained, there is great danger of making this board cumbersome and unduly large. The very object sought to be attained would be accom- plished by the appointment of these representative heads of the various agricultural and horticultural societies. It seems to me this is an unnecessary provision, and I hope the committee will agree with me and strike out these lines. The Chairman: The question is on the motion of the gentleman from Albemarle (Mr. Lindsay) to strike out lines 12 and 13. The amendment was rejected, there being, on a division, ayes, 26; noes, 27. Mr. Watson: I offer the following as a substitute for the whole of Section 1: . i The General Assembly shall establish and maintain at the seat of government, and such departments elsewhere as may be necessary, a Bureau of Agriculture and Immigration, whose duties and powers shall be defined by law. Mr. Watson: Mr. Chairman, in offering the substitute which has been read, I must state to the Committee of the Whole that I feel much reluctance and some em- barrassment. I have great personal respect, sir, for the gentlemen composing the committee of this body who have brought in this report, and especially for the hon- orable chairman of that committee. It is perfectly obvious, sir, that the gentlemen of the committee themselves do not agree as to this matter, and it has been threshed out here for two days past. Now, Mr. Chairman, the whole of their report Mr. Stuart: What is the basis of your statement that the committee does not agree? Mr. Watson: The basis of the statement is that the report of the committee em- bodies but three sections, and they do not agree on but one of them. Mr. Stuart: We are only considering one section now, as I understand it. My un- derstanding is that the committee does agree on that section, with one exception. DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE YIEGIXIA. 2071 Mr. Watson: Mr. Chairman, the point I wish to make is that while these gentle- men have only been able to bring in here three sections of the committee's report, the fact is that about two of them they do not agree among themselves, and to the third one they have accepted so many amendments that the committee s report is practically nullified before this body. Mr. Chairman, where doctors fall out, laymen themselves have a right to express an opinion, and I think the contention here upon the floor of the committee this morn- ing illustrates the wisdom of a maxim which the celebrated John Randolph often used, that when a thing is at rest you ought not to disturb it, but let it stay where it Is. In my judgment, the report of the committee undertakes to weave in the Con- stitution a cumbersome piece of machinery which may in the future prove exceed- ingly impracticable, and which at some future day the Commonwealth may find un- desirable. Mr, Chairman, we cannot undertake to say in the year 1902 that the Board of Agriculture ought always to be composed of twelve members, one from each con- gressional district. We cannot undertake to say here, in the present impoverished condition of agriculture in the State, that this machinery recommended by those gen- tlemen is the only perfect ' and desirable machinery for the administration of a de- partment of this sort; and I believe, sir, while I claim no expert knowledge on this subject, but simply the same right to speak on this subject that my farmer friend, the gentleman from the county of Norfolk (Mr. Portlock), and my farmer friend, the gentleman from the county of Warren (Mr. O'Flaherty) have to talk about agri- culture, I am here with much diffidence and a good deal of reluctance to express my opinion among these experts. The fact is that in this report of the committee they have changed the Constitution in two important particulars. In the first place, they have undertaken to yoke up a practical department of the government with a theoreti- cal agricultural school in one section of the State. I hope the gentlemen of the committee will not understand me as attacking the usefulness of that institution, because I believe, sir, it is doing good ork vv-ithin this Commonwealth; but, while the powers of a Constitutional Convention may be unlimited, while we can do almost anything here except make a man a woman and a woman a man. the fact is we will not be able to hitch up in the same harness and drive double the theoretical and the practical people on the subject of agriculture. Why, sir, you cannot get practical farmers themselves to agree about any proposition like this. Mr. Stuart: Do you belong to either one of these classes, theoretical or practical? Mr. Watson: I am in identically the same attitude that the gentleman from Brunswick (Mr. Turnbull) occupies; I undertake to spend what money I make prac- ticing law trjang to run a farm. (Laughter.) Mr. Stuart: We have some gentlemen on this committee^ and there are a good many gentlemen all through the State, who agree with us, who have been able to make some money running a farm without the aid of an outside business. Mr. Watson: Well, Mr. Chairman, taking a fair comparison among the gentle- men here, that must be explained by the character of the soil on which those gentle- men reside, and not by their character of mind, or the occupation they follow. What I mean to say, sir, Is that of the farmers in Virginia, who comDose 86 per cent, of the people, no two of them agree as to this matter of practical administration of an agricultural department, and I would risk my life upon the assertion that there is not a practical farmer within the Commonwealth who will agree with the presi- dent of Blacksburg College, up yonder, who Is a theoretical farmer, as to how to make a crop or make two blades of grass grow where only one grew before. It is all very well for these gentlemen to say there Is no competition, no conflict 2072 DEBATES OE THE CONSTITUTIONAL CONVENTION OF VIRGINIA. between Blacksburg College and the Department of Agriculture. I do not undertake to say that the competition heretofore has been inspired by that educational insti- tution, or that it in any way has been connected with it; but the fact is that the Gen- eral Assembly of Virginia and the halls of legislation have witnessed this conflict in former sessions, and there has been an irreconciliable difference between the practi- cal department of "the government known as the Agricultural Department and this theoretrical institution beyond the mountains yonder. In the first place, this report that you intend to incorporate into the Constitution undertakes to yoke up and combine, nolens volens, the theoretical department of agri- culture connected with the State and the practical department. That is one objection I have to it. The second objection I have is that the report of this Commissioner of Agriculture by the Board of Agriculture, undertakes to fasten on the Common- wealth a Board of Agriculture consisting of fourteen members, one from each con- gressional district of the State, one from Blacksburg College, and the Commissioner of Agriculture himself. At some future time within the State it may be found by the General Assembly, just as it has been found by the Convention, that instead of having one commis- sioner to discharge the functions of this department there should be a commission to discharge it. I understand the Convention, for the next week, perhaps, will be here deliberating upon the proposition as to whether there shall be a commission to manage the corporation and railroads in the State instead of a commissioner, as has heretofore been the case; and I say if in one department of the State government It has been ascertained that the multiplication of corporate interests demand that there shall be a commission instead of a commissioner, so the diversity of agricultural pur- suits in the Commonwealth may at some time require that there should be a com- mission, and not a single commissioner, to discharge this duty. Mr. Chairman, the conclusion I have arrived at and the opinion which I pro- posed to express to the committee was that we ought not to put in the Constitution a hard and fast rule on this subject, but to do as the old Constitution did, devolve upon the General Assembly of Virginia to make from time to time such changes as, in their wisdom and discretion, the needs of the people of the Commonwealth may de- mand. Consequently, sir, I have offered a resolution which provides practically in the language of the old Constitution that the General Assembly shall establish a Bureau of Agriculture and Immigration with its office at the seat of government, and such subordinate departments as may be necessary, with powers and duties to be pre- scribed by the General Assembly of the Commonwealth; and I submit that, while the opinion of your committee, and especially of distinguished farmers upon that commit- tee, is entitled to more consideration at the hands of this body tthan my own upon this subject, with which I am not specially conversant, the fact is I have no guar- antee that these gentlemen have found the philosopher's stone in undertaking to manage agricultural affairs. I do not know that there is any special virtue in the number twelve as a Board of Agriculture. I do not know, sir, that even adding the head of Blacksburg College would give all the wisdom and all the experience in the administration of an agricultural department that is necessary to be gained; and I am unwilling to con- cede that they can sit down here at the beginning of the twentieth century and formulate and project a department of agriculture with such branches and such provisions as will meet the needs of all future time. For that reason, sir, while deferring to their judgment, and while not wishing to antagonize their opinion, still I prefer to trust to the needs of the future and to the combined wisdom of the General Assembly of the people from time to time rather than to the opinion of the committee formulated here in a concrete manner on a subject which may vary as the years come and go. DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 2073 I submit, Mr. Chairman, we ought to devolve this thing on the General Assembly and let them arrange all these details about which there is so much difference here among the agricultural doctors, and trust in the future, as we have trusted in the past, to meet these responsibilities and exigencies from time to time. Mr. Stuart: I have listened with great interest to the very courteous and con- siderate remarks of the gentleman from Nottoway (Mr. Watson). By the way, his remarks are always courteous and considerate. When he made the announcement in the beginning of his speech that he spent the proceeds of a fairly good practice un- dertaking to farm, I was somewhat surprised; but before he finished I felt no sur- prise whatever. On the contrary, I was convinced that he could spend at farming the proceeds of a practice five times as big as his, large as it is, as we all know. Now, he has come here from Nottoway county to announce the proposition that theory in farming is a failure. He might as well announce the fact that electric power and electric lights are failures. If there is any one thing that is fastening itself upon this country to-day, and I say it as a practical farmer it is the fact that every man who undertakes to make a living at that calling must know the theory of farming as to new methods, new crops, new markets, and as to all the advanced dis- coveries being sent out constantly from the various experimental stations and agri- cultural institutions of this whole country and being read with eagerness by the only class of agriculturists in the United States who are able to make money without an outside business. We hear this is a theoretrical institution up there. It is just such a one as is presided over by James F. Wilson, who was called by Mr. McKinley to the head of the Department of Agriculture of the United States, and who, since his incumbency in that oflSce, has done more for the agricultural interests of this country than all the other commissioners; combined. He has brought about the introduction of new crops in new territory. He has shown people what they can grow, and what they ought to grow, and has then found them a market for it. He has opened up the markets of the world to products which had been locked up hard and fast in this country for many, many years. He is the kind of a theorist that the gentleman from Nottoway says should not be brought In contact with the agricultural interests of the State. It is the lack of intelligence and of knowledge of the science of farming, not of the red tape — I repudiate that as much as he does — but it is the lack of these essentials which come with a scientific training, that is making all or the greater portion of Virginia, at least, take the back rank among agricultural States; and it is the senti- ment which he has expressed on this floor, if he will excuse me, which makes the section from which he hails stand in the advance guard of the class I have just mentioned. Mr. Watson: Anticipating that my friend may make some such suggestion as that, and knowing that he comes from the great grazing section of the Common- wealth, where the cattle lie upon a thousand hills, I looked at the Auditor's report this morning to see hov/ that great and flourishing community stood in the way of * agricultural prosperity. I ascertained the fact that the broom straw down in my county is assessed at a little over $5 an acre, and that the blue grass in his county is assessed at a little over ?4 an acre. Mr. Stuart: Well, sir, you do not know anything about the average quality of the land of that county. Two-thirds of it is mountainous, as everybody knows, and and a great deal of it is assessed at fifty cents and $1 an acre, and assessed too high at that. Mr. Watson: Will not my friend admit, then, that two-thirds of his county is in the van of that class he described a moment ago? Mr. Stuart: No, sir, it is just in the situation where nature left it. It has not undertaken to lead other people in anything. But be that as it may, we were on the 131 — Const. Deb. 2074 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIEGINIA. question of experimental or theoretical farming, and he says we must not undertake to yoke the practical with the theoretical. It is to make the Polytechnic Institute more practical, and to give the Agricultural Board the opportunity, at least, of pre- senting more and better theories than they are now able to do with their limited resources, that this report is formulated. I want to say again that this agricultural bureau, in my judgment, is admirably managed by the present incumbent. It is doing a good work; but I do claim, and am able to prove, that there are agencies and instrumentalities lying idle at our Polytechnic Institute which he would be glad to avail himself of if brought properly in touch with them, and this continual friction between these departments would be removed. It was to bring about peace and harmony, mutuality of interests, unity of action, and all the things necessary to utilize the theoretical and the practical that this report is framed; and I submit, sir, it will reach that result for whatever it may be worth. Mr. O'Flaherty: Mr. Chairman and gentlemen of the committee, I shall detain you but a few minutes. I hope gentlemen will not vote for the substitute offered by the gentleman from Nottoway (Mr. Watson). The Committee on Agriculture met with many difficulties, and it at last decided that it would put beyond peradventure the existence of an Agricultural Board in the State of Virginia. The motion of the gentleman from Nottoway, v/ould put it right back where it has been for a long time. You go to the farmers of Virginia, and you say to them, "The Constitutional Con- vention refused to put in the Constitution that there shall be a Department of Agri- culture," and you do one of the worst things you can do for commending this Con- stitution. Gentlemen have said on this floor to-day that there has been a fight for the very existence of the Department of Agriculture in the General Assembly. I desire to call attention to the fact that the gentleman's amendment proposes to leave this matter with the General Assembly, where it has been for so long a time. He claims that theoretical farming in Virginia has been a failure, and yet the whole question has been with the General Assembly for twenty-five or thirty years. I am not going to take the time of the Convention, but I hold in my hand the report of the Commissioner of Agriculture, and if any intelligent man in Virginia can read it and not come to the conclusion that we are making progress, I cannot understand how he can do so. Take the question of raising apples in Virginia, a great industry. The people are dealing with it in a systematic, intelligent way. They are learning to know what are the natural enemies of the apple tree, how to deal with them, and destroy them, and yet the gentleman gets up here in the twentieth century and says we cannot make a system, which will protract itself out into the future; and that same gentleman hails from the county of Nottoway, the county that got up the famous "Nottoway Resolutions" that set the State on fire about a matter that, in my opinion, is not of as much importance as the agricultural interests of the State. He comes here from the Black Belt of Virginia, and is striving now to force upon the people of Virginia new suffrage laws that are to go down through the decades yet to come, and still he says to the white people of Virginia who are interested in farming, "You cannot do a thing for the future; you must leave it all to the years as they come and go." Here comes a man from a county that is as poor as hen-grass itself, and tries to dictate to the agricultural people of Virginia — Nottoway, the land of "Nottoway Resolutions." I will answer the gentleman in his aniniadversions upon the county of Russell, by a comparison of the county from which I come and the county of Nottowiay. Nottoway county has 177,000 acres of land belonging to whites, valued at $429,000, or about $2.50 an acre. DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 2075 I have made tlie calculation, and I will let the gentleman look at the Auditor's report if it is of any interest to him. It has not much interest for him, I suppose. In the county of Warren there are 125,000 acres of land owned by whites, assessed at $805,000, in round numbers, and in Clarke county there are 109,000 acres, owned by whites, assessed at $1,389,103, or more than a million and a third The total value of real estate of whites and blacks in Nottoway is $1,078,880, and that of Clarke and Warren Is $3,390,952. I do presume to come here and in part speak for the agricultural interests of the State, and I ask that this committee put it in hard and strong in the Constitu- tion of Virginia that there shall be an Agricultural Department, and that it shall be maintained forever. I am not a farmer, in one sense, and yet I know something of it, because I was born and reared on a farm. I have done all sorts of farm work, and I am doing a little farming to-day, and I am glad to say the money I make practicing law is not all lost in farming. If the gentleman will come up there in God's country and go to farming, he will take a different view of it; but down in Nottoway county, where they cannot see anything but the ever present imaginary phantom of negro rule, perhaps it will be possible for him to have other interests than that of suffrage, and not think this subject of too little dignity to go into the Constitution of the State. Now, let us see if we are too theoretical. We have tried to combine the theoreti- cal with the practical, and that is what we ought to always do. We give the power to the State to select the best men from every congressional district of Virginia to come here with a trained Commissioner of Agriculture, who shall gather around him a staff of scientists, and men who understand the different kinds of farming, such as horti- culture, agriculture, and all that, that they may in an intelligent way send out and distribute the information which the United States is giving them, and which Vir- ginia herself can give, and furnish such information as will bring us intelligent emigrants to fill up our waste places. I wish to call attention to what the gentleman from Bedford (Mr. Brown) said to-day in regard to Blacksburg. You can send out from Blacksburg through the United States mails, free of cost, a great deal of information. And what the people want to-day is information. I will say to the gentleman that a distinguished senator of this State who is now ill and absent from this body said to me last summer that he believed there ought to be an experimental station in every county of the State to teach the people, and I believe it; yet this gentleman from Nottoway, from the land of broom sedge and rabbits, comes up here and tells us it is theoretical; he tells us we can learn nothing. That same theory used to be held in regard to school teaching and preaching, that all you needed was to go forth and trust to luck or the Lord to teach or preach, and you did not need to study child nature or methods of teaching in order to instruct the youth. That has been exploded. A man cannot even preach without education, and we are on the verge of a time when a man, in order to succeed in farming, will have to be a broad-minded, educated, up-to-date man; and farmers like my friend, who says he farms without any intelligence and loses money, will have to go and take a back seat, as they ought. I say we have not made any theoretical department, and I wish to refute that idea. The committee has agreed to and accepted every amendment that looked to perfecting the report, and there never has been a report that came in here and was amended in as good faith and with as good feeling as this is to-day; and those of the gentlemen of the committee who did not agree with the committee have all gotten together, and there is not a man raising his voice, that I know of, against establishing this department except my distinguished young friend, the farmer from Nottoway. Mr. Watson: I will inform the gentleman that under the resolution, if he will 2076 DEBATES OF THE CONSTITUTION^AL CONVENTION" OF VIEGINIA. take the care to read it, the General Assembly is compelled to establish a department of agriculture. Mr. O'Flaherty: The only difference I see between it and the old Constitution is that you say it shall and in the old Constitution it was "may." We have already got out of the realm of "may" into the realm of "shall" as to the power this department shall have by the action of the General Assembly. But it has been said upon this floor, and I have letters from people who know about this matter, and confirm the statements that there has been a fight from time to time for the very existence of this department. How can the department grow and succeed when its very existence is imperilled by the meeting of the General Assembly every two years. In the name of the farmers of Virginia, I ask and demand that you put it in the Constitution that there shall be a Bureau of Agriculture and Immigration; that It shall be maintained at Richmond; that there shall be certain officers whose duty it will be to look after it, and put it beyond the pale of peradventure. I say to you that the white section of Virginia, the great agricultural sections of Virginia, want this. You can do nothing that will please them better. It I have said anything that will offend my friend from the Black Belt, I did not mean to do It, but I am in earnest about the agricultural interests of Virginia, the most important interest of the great Valley of Virginia, a part of which I represent upon this floor; and I ask you to adopt the report of the committee as it is now presented to the Committee of the Whole. Mr. R. L. Gordon: Mr. Chairman and gentlemen of the committee, I will ask your attention for a short time in support of the amendment offered by the gentleman from Nottoway (Mr. Watson). I never expected, when I came to this body, to be put In the position to have to plead for and defend the Underwood Constitution. I had some little prejudice against that instrument, I confess, when I came to this body; but, as the situation now stands, we have to appeal to John C. Underwood to protect us against the gentleman from Warren (Mr. O'Flaherty). Mr. Chairman, I have the utmost respect for the gentlemen who compose this committee. I confess, sir, I thought when the committee was composed it might possibly be a little play to the galleries, and I, for one, while I stand upon this floor representing a community of farmers, and representing nothing but farmers, never desire to undertake to give those men what I do not believe is really for their good; in the first place, on my own account, and for a second reason, that I believe they have intelligence enough to understand that which will really benefit them, and to see through that which will, in the guise of a benefit, possibly increase the expenditures which now rest upon them. Mr. Chairman, why should we make this a constitutional board? Take the report of the committee. We have a board with no powers; we have a board whose powers are to be entirely conferred by the General Assembly; and if the powers of that board are entirely within the province of the General Assembly, why not leave the board within its control? If the General Assembly can absolutely control it, and dictate to it, and dominate it in every way, why should we have more constitutional officers? That is the question. Now, sir, I leave the question between the gentleman from Warren (Mr. O'Flah- erty) and the gentleman from Nottoway (Mr. Watson) as to theoretical and practical farming. My own experience is that a man who can make money out of the ground never can make it on paper, and that the man who can make money on paper never can make it out of the ground; but, apart from that consideration, we have here a board of twelve, to begin with, and we have the power in the General Assembly to add to that board, ad infinitum. We have an unlimited board, and, gentlemen, you cannot have boards without having expense. I believe the practical farmers of Vir- ginia will see that this will place upon them an additional set of officers who, sooner or later, will be an additional expense to them. DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. 2077 Mr. Stuart: As I understand you, sir, you want the General Assembly to have control of the whole question of creating that board, as to its powers and all? And yet you object to leaving the simple discretion to the G-eneral Assembly of adding to it? Mr. R, L. Gordon: On the contrary, Mr. Chairman, I am willing to leave the whole matter to the General Assembly, for the reason that all legislation is experi- mental. I stand here to deny the proposition that this body of men are endowed with all the wisdom that can ever come. I expect to vote here, perhaps, for legisla- tive measures, but I shall never cast my ballot for any legislative measure unless it is beyond the power of the people of Virginia to get that measure through their General Assembly, That will be the ground, and the only ground, upon which I will vote for it; but when the gentleman from Warren tells me that this Board of Agri- culture has to fight for its existence, I say in an agricultural State like Virginia, where the agricultural interest on this floor and in the General Assembly is an overpowering interest, when it can outvote every interest in the State, if the Board of Agriculture as now constituted can demonstrate to the people of the State that it is worthy of existence, th-e farmers of Virginia will keep it in existence; if, on the contrary, they find the Agricultural Board which they have established is a board which ought to be B.bolished, the people can abolish it. The point I make is that the provision of the Underwood Constitution, offered by the gentleman from Nottoway, has the advantage that it leaves the farmers of the State to regulate this matter as may seem best to them in the future, and it does not bind upon them and tie upon them a hard and fast board that they cannot rid themselves of. That, Mr. Chairman, is my main objection to this board. One word further. As I understand this report, there are only two principles in it to show how these things may reflect upon the future. The first is that no license tax or charge of any kind whatsoever can be assessed against or collected of any pro- ducer of farm products for the right to sell in any part of the State the products which he has raised. That strikes me,, representing a farming country, as all right I do not know what the representatives of cities here are going to think of it. But the next proposition or principle which is embodied in this report— I am not going to discuss it, Mr. Chairman; that would be out of order, as I understand, but simply to show wh3^ we had better have the system of elasticity which would be given us by our General Assembly than to have the iron-bound rule fixed in our Constitution — and I read Section 3: "Counties, cities and tov^ns shall have the power" Mr. Stuart: Mr. Chairman, I raise the point of order that we are discussing an agricultural bureau and the section creating that bureau, and the gentleman is reading a clause or a section which is presented for an entirely different purpose in reference to an illustrial branch of the committee's work. The Chairman: The substitute of the gentleman from Nottoway (Mr, "Watson) applies only to Section 1 of the report, although the debate has covered everything from the suffrage question to the Agricultural Bureau. (Laughter.) Mr. R, L, Gordon: I did not intend, Mr. Chairman, to read that article, and 1 will not detain the committee for the purpose of discussing it; but I merely allude to that section for the purpose of showing that this report does not embrace principles which ought to be placed in a Constitution, except two, and that one of those prin- ciples is a vicious principle, showing the unwisdom of making this a constitutional matter. That principle gives the right of exemption to industries. It gives the right practically for us to go in the old boom business again and exempt property from taxation in order to induce people to come among us and invest their wealth. I am one of those gentlemen, Mr. Chairman, who believe that if you have a good thing in your State that is going to pay the man that develops it, that good thing is going to make him develop it for the money he can get out of it. The point I wanted to 2078 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. make and emphasize to this committee is, that practically the only thing this report does besides enunciating those two principles to which I have adverted is to con- stitute a board. Now, if any gentleman on this floor believes the General Assembly is not just as competent to form that board as we are, and who further believes that the General Assembly does not have an additional advantage, if we give it the privi- lege of changing and regulating that board as the changing interests of the future may demand Mr. Portlock: I should like to ask the gentleman from Louisa if the Gen^raU Assembly could not with equal propriety establish a corporations commission? Or any other office that it sought to be established? Mr. R. L. Gordon: Undoubtedly, the General Assembly could establish a cor- porations commission, but some of us are afraid the General Assembly will never do it, because they have not done it for thirty years. Mr. Chairman, I do not desire to detain the committee further in this matter. In conclusion, I ask the members of the committee to be careful how we impose upon the future generations a board of this sort, for which there is no necessity. The General Assembly has already created a board which will be entirely responsive to the will of the people of Virginia, because the agricultural interest of the State is over- whelming in the counsels of the State, and there is no corporate interest or any other kind of interest that will come here to antagonize a board of this character, peculiarly for the farmers; and therefore I say the General Assembly can manage this matter better than we can manage it. Mr. Dunaway: Mr. Chairman, this is not a question of what we know about - farming. Neither is it a question of respect for one of our committees. Every com- mittee that has been appointed is entitled to all respect. The question is one of opinion about v/hat should be put into our organic law. It is not a question of whether there should be theory along with practice. I think the gentleman from Russell (Mr. Stuart) has unintentionally, perhaps, been unjust to the gentleman from Nottoway (Mr. Watson), for I am sure he believes, as well as the gentleman from Russell, that we need theory and sound principle as the precedent of good practice. But that is not the question here. The question is whether we shall have in our organic law the lan- guage proposed by the gentleman from Nottoway, or that which If; proposed by the committee. I unhesitatingly give my preference to the incorporation of the language sub- mitted in the substitute of the gentleman from Nottoway. It seems to be left out of sight, Mr. Chairman, that we already have in Vir-^ glnia what is proposed to be put here as a constitutional provision. Some members, at least, speak as if they have forgotten the fact that we already have in Virginia a Board of Agriculture. I have taken the pains, Mr. Chairman, to provide myself with a compilation of the laws of the State relating to the Agricultural Department, which I hold in my hand. The present Constitution, very wisely, as I think, leaves this matter to the Gen- eral Assembly of Virginia, and the General Assembly of Virginia, acting in its wisdom, in the session of 1887-1888, did pass an act providing for a Board of Agriculture for the State, and making appropriations therefor. That board consists of ten members. Its duties are specified here, and an annual appropriation is made, so that as to the question of necessity there is no necessity for putting in the Constitution a provision for what we already have by an existing statute of the Commonwealth. There is no need, therefore, for the first paragraph of Section 1 of the report, which provides that there shall be a Department of Agriculture. If we did not have that in the State, if there were no disposition on the part of the General Assembly to have that board, if that were necessary to the farming interests of Virginia, then I should vote for this report. DEBATES OF THE COXSTITUTIOXAL C0NVENTI02sT OF VIRGINIA. 2079 That first section simply makes it obligatory upon the General Assembly to do what it has already done, and the General Assembly of Virginia, representing the farming interests of Virginia, may confidently be relied upon to perpetuate this board. As the gentleman from Louisa (Mr. Gordon) says, if the farming interests of the Commonwealth, as represented in the General Assembly, do not want the board, they may get rid of it, whereas if you put it in the Constitution it will not be in their power to do so. Now, as for that part of the report beginning with line 14, saying that the powers and duties of the board shall be prescribed by law. That is in the language sug- gested by the gentleman from Nottoway. It will be done whether this provision is put in or not, and so far as I can see, the only new thing that has been proposed by your committee is that the rector of the Board of Visitors and the president of the Vir- ginia Polytechnic institute shall be members ex-officio of the Board of Agriculture and Immigration. I do not know that they have peculiar qualifications for that office, and I should feel like objecting to that part of the report that makes the president of the board and the Commissioner of Agriculture and Immigration members ex-of- ficio of the Board of Visitors of the Virginia Polytechnic Institute. So far as theory is concerned, and having a theoretical man upon the board, tthere is nothing in this law that would prevent the Governor from appointing the president of the Blacksburg Institute as a member of this commission; but I do not conceive that there is any necessity for that. If gentlemen will look in the Code of Virginia they will find a most excellent act there, which not only provides for a Commissioner of Agriculture and defines his appointment and his term and fixes his bond, but pro- vides for a clerk, chemist and geologist for the preparation of hand-books, the testing of fertilizers, and all that kind of thing, and I believe it can be done as well by ex- isting institutions as it could by a new board that is suggested by the report of the committee. I see no necessity for it. I do see some objection to it. There is a danger — and I will make the remark here as applicable to this matter, as it has been applicable to matters already passed upon, and I believe will be applicable to matters that are to engage the future attention of this body — that this Convention will put too much legislation in the organic instrument that we are framing. I, for one, am opposed to that principle, and I would leave the hands of the General Assembly freer than a great many gentlemen upon this fioor are disposed to do. I therefore heartily approve the substitute offered by the gentleman from Notto- way, and shall give it my vote. Mr. Brown: Mr. Chairman, I dislike to prolong the discussion on this matter, but I desire to advert a little to what was said here by the gentleman from Nottowaj (Mr. Watson). I do not desire to enter into any sectional discussion. I do not pro- pose to depart from the subject matter of the clause at issue. As I understood the gentleman from Nottoway, he gave two reasons for offering his resolution. One of those reasons was that he did not want it defined in the Con- stitution that the Board of Agriculture should have the power to appoint its own officers; and another reason was he did not want in the Constitution any provision for the association of experts or representatives of colleges with practical farmers. I simply want to make the observation which wa^ so ably made by the chairman of the committee that in this progressive age, if there is one way in which the farm- ers of the State can be helped, it is by a close and practical association between those who are working along theoretical lines and those who are working along practical lines. Speaking of the Board of Agriculture, which is to-day the subject of discus- sion, it seems to me the provision of the State law for a Board of Agriculture, and the way in which it can carry on its work best, is not only upon practical lines, but along theoretical lines. Why establish a farm in the tobacco section for the purpose of expert determination and consideration of the best methods of growing tobacco, If 3080 DEBATES OE THE CONSTITUTIONAL CONVENTION OF VIRGINIA. the work is only to be on practical lines? Any negro can raise tobacco. It must develop the newer and more progressive methods. Why have farmers' institutes all over this State, conducted by the Board of Agriculture, where you have not only prac- tical men, but experts? Why go into a proposition of that kind if it is not well to mingle expert opinion and theory with practical knowledge? The gentleman from Rockingham county (Mr. Keezell) told me only a night or two ago that until they iiad one of those institutes in Rockingham county they had not found out the opportunities for practical utilization of the products of their farms, in the way of the establishment of creameries. One of those institutes was conducted there by the Board of Agriculture, in which there were addresses by practi- cal men, who, however, associated theories with practice. The result was the estab- lishment of a creamery that is bringing thousands of dollars into the county of Rockingham. It seems to me, gentlemen, that the report of your committee does not depart from the action of the Legislature in the past. It provides for a Board of Agriculture exactly as created by the Legislature and maintained by the Legislature, but it does make more easy, more perfect, that intercommingling of practice and theory which must be the sole safeguard and the sole power that will upbuild the v/hole agricultural interests of the State. I hope it will be the pleasure of the committee to vote down the substitute offered by the gentleman from Nottoway, and to support the committee In its effort to unite theory and practice with a progressive Board of Agriculture that is able to meet these requirements of the people of the State. The Chairman: The question is upon the substitute to Section 1 offered by the gentleman from Nottoway (Mr. Watson). Mr. Mcllwaine: Mr. Chairman, I would suggest to the chairman of the commit- tee that the Commissioner of Agriculture ought to be a member of that board. Mr. Stuart: In reply to the suggestion of the gentleman, I wish to say that ques- tion was asked the members of the Agricultural Board who appeared before our com- mittee, and if I mistake not, a majority of them were of opinion that the commis- sioner should not be a member of the board, for the reason that they frequently have to pass upon questions relating to him personally — his expenditures and various ques- tions of a delicate nature for him to vote upon, as well as upon his election. The Chairman: If there are no further amendments to that section, the Secretary will read Section 2 of the report: Section 2. No license, tax, nor charge of any kind whatever, shall be assessed against or collected of any producer of farm products, for the right to sell in any part of the State the products which he has raised. Mr. Hatton: Mr. Chairman, I offer the following amendment to that section: Add at the end of section the following: "Provided, that nothing herein shall pre- vent the imposing by municipal authority of the same charge imposed upon other per- sons for the occupation of any place specially provided or reserved for the sale of such products.'* Mr. Chairman, I have only to say in reference to that amendment that I trust it will be acceptable to the committee as I have offered it. The language of the section Is suflSciently broad to be susceptible of a construction which, in my judgment, might be hurtful not only to the farmers, but to the cities as well, and, as I understand it, that section is embodied in this report in order to protect the farmers against undue license taxes for selling their products through the streets of the city from their wagons. I think they ought to be protected in that, but at the same time it might be susceptible DEBATES OF THE COXSTITUTIOKAL COXVEXTIOX OE YIEGIXIA. 2081 Of a construction that would prevent the cities from imposing a small charge for the privilege of places specially provided by the city at great expense for the sale of these products. It might also be construed to enable a farmer to open a store in a city, and if the sales in that store were confined to his own products, no tax could be levied upon him. It would therefore bring about a very unequal condition of trade and commerce in the cities. The amendment which I have prepared I think does justice to both sides, and I hope, therefore, it may be adopted. Mr. Portlock: Mr. Chairman, as one of the members of the committee that sub- mitted this report, I want to say that amendment entirely agrees with my views as to what should be accomplished in this direction. Y/hile I have not stated any reserva- tions in express terms, every member of our committee reserved the right to object to any part of the report or to add any amendment that he might see proper when the report was brought up. When the matter was discussed in the committee I objected, and I object now, to this section remaining in its present shape. I make this objection in the inter- ests of the farmers alone. . I am not considering any questions as to the rights of the cities to collect license taxes or any other taxes from the farmers. I think it is abso- lutely proper that they should be protected to the extent to which this section now goes, and I think they should be further protected by the amendment offered by the gentleman from Portsmouth. That is to say, they should be protected against any license tax or charge of any kind in the sale of farm products grown by themselves. But the effect of this section, standing as it does, without the amendment offered by the gentleman from Portsmouth, would, in my opinion, as I stated before the standing committee, and as I desire to state before this committee, have the effect or tendency of depriving the farmers of the right to come into the market places of cities and use the particular streets usually set apart for the sale of their goods, in the event that the cities could not charge them the usual fees which are necessary in order to keep the market places and the streets in a clean condition, which fees ought to go into the general fund for the police regulations of the city. I know in the city of Norfolk, for instance, the most desirable location in the city for the sale of the products is around the markets, and the principal streets are set apart for market purposes for the farmers of the surrounding country. The city collects a small fee from the farmers for the privilege of using the street in order to keep the streets in proper order for .their use. But if the city of Norfolk and other cities of this State are deprived of the right to collect a small fee, such as may be prescribed by the city ordinance, for police regulations and for cleaning the streets and market places of the cities, then the cities would have to say to the farmers, "If we cannot make these small charges^ you cannot occupy our streets." It goes without saying that every city has a right to prevent market carts occupying perma- nently any particular places along its streets. The public highwaj"^ are places which are designated under the law for the purpose of travel, and not for the purpose of stopping and using any portion of them for traffic and commercial purposes. They are not so designated under the general principles of the law. But often the cities see fit to invade that principle by provisions in their city ordinances allowing the producers of farm products to sell their goods upon the streets, and especially at the places designated for such purposes; and the farmer himself would suffer if the cities were deprived of the right of charging small fees for these privileges. It is in the interest of the farmer that I think the cities should be allowed this right. It is in the interest of the farmer that he should occupy these streets, that he should occupy a favorable location in the market places, which he could easily be deprived of by city ordinances, if the city were not allowed to charge him such fees as would enable these places to be kept in proper condition. The farmer 2082 DEBATES OE THE CONSTITUTIONAL CONVENTION OE VIRGINIA. would be thus deprived of the right to use such streets as might otherwise be desig- nated for that purpose, and he would in the end be the sufferer. For that reason I hope the amendment offered by the gentleman from Portsmouth may be adopted by this committee, as I said before, in the interests of the farmer, and with no reference, so far, at least, as I am concerned, as a member of the com- mittee, to the rights and privileges of the cities. The Chairman: The question is on the amendment proposed by the gentleman, from Portsmouth (Mr. Hunton). The amendment was rejected. Mr. Keezell,: Now, Mr. Chairman, I move to strike out the whole section. On motion of Mr. Stuart, the committee rose and the President resumed the chair. Mr. William A. Anderson: Mr. President, I offer the following resolution and ask its immediate consideration: Resolved, That the Committee on Final Revision and Adjustment of the Various Provisions of the Constitution that may be agreed upon, and upon the schedule, be in- creased by the addition of two members, to be appointed by the President of the Con- vention. Mr. President, the enlargement of this committee has become important by reason of the necessary absence of two or three members, so that it is very diflacult to get a quorum of the committee. In addition to that it is necessary that all of the important committees which have reported articles in the Constitution shall be represented upon that committee, and one or two of the standing committees of the Convention are not represented upon it. I do not suppose there can be any objection to the enlargement of this committee by the addition of two members, and I ask for immediate consid- eration of the resolution, and its adoption. The resolution was agreed to. On motion of Mr. Thomas H. Barnes, the Convention adjourned until to-morrow, Friday, January 31, 1902, at 10 o'clock A. M. FRIDAY, JANUARY 31, 1902. The Convention met at 10 o'clock A. M. Prayer by Rev. L. B. Betty, D. D. The President: Under a resolution which was adopted yesterday, the Chair appoints Mr. Meredith and Mr. "Watson members of the Committee on Final Revision and Adjustment. On motion of Mr. Stuart, the Convention resolved itself into Committee of the Whole for the further consideration of the report of the Committee on Agriculture, Industrial and Manufacturing Interests and Immigration, Mr. Glass in the chair. The Chairman: The report of the Committee on Agriculture, Industrial and Manu- facturing Interests and Immigration is now before the Committee of the Whole. The question is upon Section 2 of the report. Mr. Stuart: Mr. Chairman and gentlemen of the committee, since the committee rose yesterday, the subject treated of in section 2 has been referred to a number of persons representing the special interests sought to be protected. There is a variety of opinions as to what the exact language to be employed should be. We find there is a statute which has been highly satisfactory, as I understand, to a great many persons — possibly not entirely so to others — and representing to some extent ,at least, agricultural sentiment, as well as other interests, on this committee. It occurred to some of the members of the committee that it would not be prudent to curtail the privileges already DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE VIEGIMA. 20b3- accorded to the producers of agricultural and domestic products by any action of this body, and certainly not by the recommendation of this committee. Our investigation has brought us to the full realization of the fact that this is a very difficult subject to deal with by words and terms. I therefore present section 2 slightly amended so as to conform in its provisions absolutely to the present statute. It makes constitutional that which is now statutory, the naked question for the consideration of this body being whether or not this statutory provision shall be made a constitutional provision. In other words, the question is whether or not the rights fixed here shall be made permanent in the Constitution. I must confess to some hesitation in giving my unqualified approval to making a provision of this character a constitutional one, owing to the delicacy of the subject. There is a difficulty of defining by language the limits within which these products may or may not be sold, or the kind of taxes that may or may not be imposed. It seems to some members of the committee, and to some members of the Convention, that it might be better left to be adjusted from time to time by statutory amendment to the changing conditions and changing wants. I therefore submit Section 2 amended so as to conform in exact terms to our present statute on this subject, and present the naked question as to whether or not this statutory provision shall be made a constitutional provision. As we have amended the section, it now reads: No license tax or charge of any kind whatever shall be assessed against or col- lected of any producer of farm or domestic products by any city or town in this State, or by any agent or officer of any such city or town for selling his farm and domestic products within the limits of such town or city outside of and not within the regular market house and sheds of such cities and towns. That, as I understand it, simply makes perpetual a provision already statutory. The Chairman: If there is no objection, the substitute proposed by the Chairman of the committee will be accepted by the Committee of the Whole as Section 2 of the report. Mr. Parks: Mr. Chairman, I desire to call the attention of the chairman of the committee to one point that may not be properly guarded by the language. The object, as I understand, is to prevent any charge of license or tax against the farmer for the sale of domestic products produced by him. How would that language be construed? If a man purchases farm or domestic products, they are his just as much as if he raises them. The reason I call attention to that is that I have seen instances of this sort where a man has a small farm and raises fruits and other products and sells them on the market. He is not liable to any charge, of course, and he will go around and buy all he can from other people and sell them the same way he sells his own, claiming he has raised them, when in fact he has not raised them at all. It seems to me the language ought to be guarded, and I suggest that it should read, farm or domestic pro- ducts produced by him." Mr. Meredith: Mr. Chairman, before the vote is taken on that I thinK: we ought to explain the circumstances that surround the municipalities in matters of this kind. My impression is that that statute was dravs-n owing to a dispute that grew up at the time between the city of Richmond and some of the producers of farm produce around this city; and after it was drawn the result was found to be so injurious to the farmers that they had to come and ask the city council to pass an ordinance allowing them to be taxed along with the renters of the stalls, a ten-cent tax instead of an annual or monthly tax, in order that they might sell at the market. You see, you may have the right to sell your produce as long as you are moving. You can go up and down the streets and sell under that statute, but just as soon as you stop your cart and undertake to make a stand of it, you are then met by the police power of the municipality. That was where the burden bore upon them.' The statute said that no tax should be imposed upon them for selling in the market sheds or market-houses. Now, gentlemen, you may not be familiar with some of these things, but you take the markets of the city of 3084 DEBATES OE THE CONSTITUTIONAL CONVENTION OE VIRGIN Richmond and they expand according to the season. Of course, we could not have a couple of squares that would cover everybody at all times, because the expenses would be too enormous. We would have to reserve a valuable tract of land and costly houses Therefore we have sufficient houses for the long seasons, the fall, the winter and the early spring, and they accommodate most of the people who desire to sell- but when the summer season comes on the amount of produce is so great on account of green vegetables, that the number of carts that come into town cannot be accommodated in those sheds and market houses. Therefore, for the purpose of accommodating the public as well as allowing these persons to have the farm products to sell we allow them to sell within certain streets, Y/ithin a space of two hundred yards around these market houses; and some of those places are more valuable even than the sheds in the markets, because they are nearest the point of approach of the purchasers of those goods. The farmers are perfectly willing to pay for that privilege. It is a small charge, either a weekly or a daily charge, for the purpose of paying for the cleaning up of the market. The statute does not authorize a man to come and sell as he wants to sell— that is, to take out his mule and back his wagon up to the sidewalk anywhere. You can imagine that power would not be given, because if it were they might do it in front of St. Paul's church or in front of the Jefferson Hotel, or places of that kind, which, of course, no one contemplates allowing to be done. Therefore I say the language of the statute is not as fair to the producer of these farm products as the proposed language of the Committee on Agri- culture and Immigration. The language of the committee is better, for the reason that there are two classes of tax that you desire to avoid. One is the tax on peddling. That is the one they object to most, and that is the one that created the difficulty. If the statute had been so drawn as to allow them to sell by peddling, there would have been no difficulty, but it undertook not only to do not, but to say that they should not be charged for selling anywhere except in the market shed or market houses, which confined the charges of the city to those structures. That was a limitation upon them which was injurious, and, as I say, they had to come and ask that the provisions of that statute should not be applied to them. Now, gentlemen, under such circumstances, desiring as you do to benefit the farmer, I am perfectly willing to meet you half way in the matter and say there shall not be any vending tax put upon them, but when they come to back up and make a market of their own, as it were, in the city, it is violating a police power which no one would think of permitting. I suggest that you let the language of this provision in the committee's report stand with the amendment that I submitted to a gentleman who has had experience in matters of this kind and who represents a country constituency. I allude to the gentleman from Henrico (Mr. Waddill). If you adopt this language you will give them better protection than the statute gives them, and at the same time will allow the cities to extend their limits according to the necessities of the truckers as they come in. It is not desired by us that you should keep out the truckers'. There are two classes of people in the markets, those who are called hucksters, who buy from the truckers, and the truckers themselves. The hucksters go out a half mile from town and buy their goods from the truckers, and they will go over the streets in their wagons and represent themselves as having raised the produce they sell, and it often turns out they have simply purchased them. It is absolutely impossible to tell whether they have done so or not. They come with their country wagons, dressed up as if they had been ploughing, in order to induce people to believe that the truck is particularly fresh. All those dodges are indulged in, and you cannot trace things of that kind. Therefore I claim you cannot prevent, by simple language, a distinction you cannot draw in actual life. In addition to that, you are putting a burden upon these men by confining the tax upon them to the shed or structure. If you use language like this, which will be broad DEBATES or THE COXSTITUTIOXAL COXVEXTIOX OE VIEGIXIA. 2085 enough to protect them, and at the same time encourage them to come into the city, it is language that I believe is agreeable to the gentleman from Henrico (Mr. Waddill), who, as I have said, has had experience in these matters and represents country constituents. Add after the language of the committee's report these words — and this is very much in the line of thought offered by the gentleman from Portsmouth (Mr. Hatton). There is very little change in it, and I ask his attention, to see whether it is agree- able to him: "Provided, that nothing herein shall prevent the imposition by municipal authority of the same charge imposed upon other persons for the occupation of any space specially provided or reserved for the sale of such products." As I tell you, that space has to contract or extend according to the season of the year. Therefore, to designate the market houses and sheds would be confining the men to a space they do not want to be in. because they would be subjected to a monthly or annual charge, if they rent a stall. I cannot see any objection to putting upon them the same charge for the space they occupy, which is frequently more valuable than the space in the market itself. You give them protection against the peddler's tax, and at the same time you allov.' the imposition of the same charge upon them, which is really nothing but such a charge as would be necessary to keep the market clean. The city does not want to make any money out of the market, but she wants to have a space where she can gather the sellers, as well as the buyers. That is the object of a market. Therefore, I say that unless you will change the language offered by the chairman of the committee, which is really the language of the statute which has been found to be injurious, you will be putting in the organic law language which has been found unsatis- factory and injurious to the very people you propose to protect. That is our actual experience. I repeat I think they ought to be protected from the peddler's tax, but as to the other charge, it is fair, and should be put upon them, and they desire it. What will be the result if you do not do it? You will simply say that no man shall back up his cart, take out his mule and sell his produce unless he shall deposit ten cents for cle-aning the space. Mr. Quarles: Do you not think a matter of this kind ought to be left with the General Assembly to deal with? Mr. Meredith: I think so myself. I think that is the wiser course to pursue. The Chairman: The question is upon the motion of the gentleman from Rock- ingham (Mr. Keezell) to strike out Section 2. The motion wa-s agreed to. The Chairman: The secretary will read section 3 of the report. Section 3. Counties cities, and towns shall have the power to exempt from local taxation, for a period of not more than five years, manufacturing enterprises to be established therein: provided, there is no other enterprise of a like nature already established in such county, city, or town that is not exempt from local taxation. Mr. Wise: Mr. Chairman. I move to strike out that section. Mr. Stuart: I beg to say, sir, that this section was purely in the nature of recom- mendation, and the chairman of the committee was instructed, by the unanimous vote of the committee, to present it simply as a recommendation. The section itself, however, was not passed by unanimous vote, even as a recommendation, it having been dissented from by four members, whose names appear. However, this was in the nature of a recommendation, much as the recommendations from the Committee on the Reduction of Expenditures, etc., and being recommended to the finance Committee, the chairman presented it to that committee for its action. The Finance Committee, having con- sidered it. reported adversely on it. which I presume terminates the connection of this committee with that subject. I am not able to state just what would be the parliamentary status in this case. Certainly the action of the committee has been correctly stated. It ,2086 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. did not assume to be able to embody sucli a section in its- own report in the Constitu- tion, but simply to present it by way of recommendation as to the industrial interests of the State. Mr. James W. Gordon: Mr. Chairman, I think this will cover the point: Resolved, That the Committee of the Whole requests the Convention to relieve them from the further consideration of Section 3 and refer that section to the Com- mittee of the Whole for consideration as an independent section, in connection with the report of the Committee on Taxation and Finance. The substitute was rejected. The Chairman: The question is upon the motion of the gentleman from Rich- mond city (Mr. Wise) to strike out section 3. The motion was agreed to. Mr. Stuart: Mr. Chairman, the report of the committee having been acted on, I now move that the committee rise. The motion was agreed to, and the committee rose. The President having resumed the chair, Mr. Glass reported that the Committee of the Whole had completed the consideration of the report of the Committee on Agriculture, Industrial and Manufacturing Interests, and Immigration, and had directed him to report it back to the Convention, with amendments. ORDEE OF BUSINESS. Mr. Braxton: Mr. President, I move that the consideration of the Committee on Corporations be made the special and continuing order for Tuesday morning next at half-past 10 o'clock, and I hope it will be the pleasure of the Convention to adopt that motion. The motion was agreed to. Mr. Stuart: Mr. President, in consideration of the brevity of the report which has just been acted upon by Committee of the Whole, it occurs to the chairman and to some of the other members of the committee that it might be feasible to enter upon the consideration of that report in the Convention without waiting for the printing of the report. That course seems to be the proper one in view of the fact that at this time the convention is in a position to consider the report, there being practically nothing else pressing upon the attention of the Convention. I therefore move that the report of the Committee of the Whole just adopted be now considered by the Convention. The motion was agreed to. The President: The secretary will read the first section. Section 1. There shall be a Bureau of Agriculture and Immigration, which shall be under the management and control of a Board of Agriculture and Immigration, composed of one member from each congressional district in the State, who shall be a practical farmer, appointed by the Governor, subject to the confirmation of the Senate, for a term of four years, except that the members first appointed after the adoption of this Constitution from the odd-numbered congressional districts shall hold office for two years. There shall be a Commissioner of Agriculture and Immigration, whose term of office shall be four years. The President of the Virginia Polytechnic Institute shall be a member ex-officio of the Board of Agriculture and Immigration. The General Assembly may, in its discretion, add other members to the said board. The powers and duties of the said board shall be such as may be prescribed by law: provided, that the Department of Agriculture and Immigration shall be main- tained permanently at the Capital of the State, with power to establish and maintain branches to be located elsewhere, and shall elect and have power to remove its officers, including a Commissioner of Agriculture and Immigration. The President of the Board of Agriculture and Immigration shall be a member '€x-offcio of the Board of Visitors of the Virginia Polytechnic Institute. DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF TIEGIXIA. 2087 Mr. Eggleston: After tlie words "term of office shall be four years" I move to add the words, '"'and who shall be a member of the board, and ex-o-lficiG its president." That part of the section would then read: "And there shall be a Commissioner of Agriculture and Immigration, whose term of office shall be four years, and who shall be a member of said board, and ex-officio its president." Mr. President, it seems to me that certainly the head of this department, which we regard as an important one in the State of Virginia — and it has been growing, and its importance has been increasing year after year — the man vs-hom the people hold responsi- ble for its success or its failure should certainly be something more than a mere clerk of a board, responsible to nobody. That is the state of the case as this report comes from the Committee of the ^Tiole. The people look upon this commissioner as the head of this department. They hold him responsible. If it is a failure, he is the man who Is responsible for it,, not a board appointed by the Governor, responsible to nobody, a constantly shifting, changing board, but the commissioner, who is a salaried officer. Unless yoti adopt this provision you vrill have a department that will be absolutely without any head, and how can you expect any success from it? If anything goes wrong the commissioner can say, " Why, I am nothing but the clerk of the board." Then when you go after the board of directors they are not responsible to anybody. They are not salaried officers. They hold honorary positions. They are expected to meet once in three or four months to supervise and regulate the proceedings of this bureau. You want a head to the bureau, and unless you have one, it is going to be an absolute failure. It does seem to me, ^Ir. President, that in this important bureau established by the Convention we ought to be careful and put an absolute responsibility somewhere, so that the people can hold somebody responsible for its failure. More than that, sir, from the tax on fertilizer tags, as established by law at present, there will go into the hands of this department about ?30,000 a year. Unless you put a responsible head here, there will be absolutely nobody accountable for it. You cannot hold the board respon- sible, as they do nothing more than direct the department. It does seem to me that the whole report ought to be wiped out, or that we ought to put somebody at the head of the bureau who will be directly responsible to the authorities of the State, and who can be held accountable for the expenditure of this $30,000 collected as a tax on fertilizer tags. Mr. Stuart: Mr. President, I am very much surprised that a gentleman of such legislative knowledge and experience, and a man of such usually sound views, should have presented a proposition which carries on its face as much sophistry as the one he has just presented. He says the Agricultural Department, under our report, has no head. Then he says that ten men appointed by the Governor, and the President of the Poly- technic Institute, and the President of the Board of Agriculture, constituting a board of twelve, are not capable of electing a head who can render an account of their steward- ship to the people of the State. That would be a very remarkable fact, that the Governor should find ten men who, with the heads of these two departments constituting such a board, would not be able properly to discharge their responsibilities to the people. We had the members of the Agricultural Board before our committee, and the fact is the proposition to make the commissioner president of the board was never considered, but most of them made the positive statement that they did not want him to be even a member ex-officio of the board, for the reason that they would be constantly passing upon his business transactions, auditing his accounts, going into matters personal TO him, and passing on questions affecting his salary or the salaiy of his subordinates, or the justification of this or that expense of the department; and it would be embar- rassing for the board to have him present as a member. I think I can call as evidence of that statement made by the board at least half a dozen members of our committe who are now present. If they objected to his membership on the board, ex-officio, it does seem to me they would object very much more to his being president of the board: and if we are to have a president ex-officio, what is the 2088 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. president of the board to do? What are to be the powers of the board if the president of that board and the executive officer of it are named in this report? The construction of the board is just as it should be. It has had the mature consideration of this com- mittee. It is the result of consultation over and over again with the members of the board. It meets the approval of a majority of them; and I have a letter from the present president of that board endorsing it. so that it does seem to me there is absolutely nothing whatever in the view presented by the gentleman from Charlotte. I beg of the Convention that they will not hear to any such proposition, because it will be fatal to the effectiveness of the organization we have brought to your attention. Mr. Mcllwaine: Mr. President, it may Sieem a little strange to the gentlemen of the Convention that I feel so deep an interst in this subject; but, sir, I have lived in the country for more than half of my life. I am now the representative of a country constituency, and I know the needs of my people. While this is true, I have been con- nected with boards for the last twenty years, and am now, and I know something of what is necessary to make an officer of those boards efficient. B'esides, sir, this Con- vention has already, in another one of the departments of government, passed upon this question, and has enacted into its fundamental law the very principle and practice which are enunciated in the resolution of the gentleman from Charlotte (Mr. Eggleston). Under the report of the Committee on Education, the Superintendent of Public Instruction is made a member of the Board of Public Instruction, and is ex-officio made its president. There he has a commanding position. There he is looked to by the people of Virginia for the progress, the advancement, the direction and the furtherance of all the interests committed to his charge. Mr. Stuart: You are seeking to draw a parallel. I should like to ask you if the Superintendent of Public Instruction is elected by a board? It seems to me there is no parallel in the two cases. He is elected by the people under the present Constitution. Mr. Mcllwaine: I am going on to that point directly. It seems to me, Mr. President, to be fundamental that if you want this department, which has been created as a depart- ment to be of any service to the people of the State of Virginia, you should endow its executive officer with the position and the authority which is necessary for him to exercise the duties which are laid upon him. In other words, sir, it may be expressed in this way: That duty, in order to be performed, must presuppose the power on the part of the man on whom the obligation rests to perform the duty. You are putting necessarily a high responsibility upon this man. Then give him the position and endow him with the authority which will enable him to fulfill the position. The only objection I have heard is the one urged jxist now by the gentleman from Russell (Mr. Stuart), and that is that, according to present enactment, as it has come into the Convention from the Committee of the Whole, the Commissioner of Agriculture is to be elected by the people. Why, sir, if necessary, have him elected by the people, or have him elected by the General Assembly, by all means. I do not consider this an insuperable objection. I am a member of the Board of Trustees of Hampden-Sydney. I am the president of that college, and still I was elected by that board. I was for years the secretary of missions of the Southern Presbyterian Church. I was a member of that board. At the same time I was its treasurer and handled $100,000 of money every year, and there was no trouble about the auditing of my accounts, about the holding of me to a responsibility: but I had such a position that when that board met from month to month I was expected to take the lead and to make suggestions to them of what ought to be done in order to carry forward the work. Now, the question just comes up to us in this v/ay: Are we to have an efficient or an inefficient Board of Agriculture, If you are going to have an efficient board, then you must have some one at its head, some one who is responsible, and who is held responsible; and in order to do that you must give him the power and the position to carry out these duties. It has been intimated, Mr. President, by several gentlemen that you cannot have DEBATES OF THE COXSTITUTIOXAL COXVEXTION OF VIRGIXIA. 3089 tliis officer elected by the people because the salary is insufficient. Then, I say increase the salary. Of course, that is not a question for this body to deal with, but making this department now one of the co-ordinate departments of the State, I w^ould place him in at least as high a position in connection with the work which he has to do as the Superintendent of Public Instruction occupies in the work which he has to do. Give him an adequate salary and make it so that he can fulfill the duties which devolve upon him. Mr. President, our agriculture in many parts of the State is now in a very depressed and tried condition. The people throughout a large portion of the State who cultivate the land are poor. They have the land and the native ability, but most of them have not the advantage of scientific education. They need help as to methods, and we want this board, which has now been established, to be fully up to the point of yielding the necessary information and of observing the proper influence, and of helping the people throughout the State; and, in my honest judgment, no move has ever been made by the Convention in this direction which will be so effective as to adopt the resolution presented by the gentleman from Charlotte (Mr. Eggleston). Mr. Brown: Mr. President, it seems to me this resolution offered by the gentleman from Charlotte strikes at the whole root of the report of the Committee on Agriculture which was so carefully considered on yesterday and the day before. It provides, as I understand it, that the Commissioner of Agriculture shall be ex-officio president of the Board of Agriculture. It seems to be if there was one thing contemplated by the report of the committee it was that the Commissioner of Agriculture should not be appointed, as now, by the governor, but should be put under the control of the Board of Agriculture as one of its officers, responsible to that board for its action, and that board responsible to the people. The gentleman says that the Board of Agriculture has at its disposal $30,000 as an income from the fertilizer tag tax. He says unless the Commissioner of Agriculture is made ex-officio chairman of the Board of Agriculture the people will have no opportunity to hold him responsible for the expenditure of this money. Gentlemen of the Conven- tion, every other board in this State that has to do with the great educational institu- tions of the State has to deal with large amounts of the people's money, and I have never heard it coming from any one that the presidents of these institutions where the money of the people is spent should be ex-officio a member of the governing board of the college. It seems to me, gentlemen, the position taken by your committee is the correct one. Have this board appointed to control this department of the State's finances, you may say, and directly in control of its officers and of the expenditure of the money under it. It seems to me there is no trouble about these boards making their proper reports, as they do ma.ke them, or should make them, to the Senate of Virginia, where I know in the past all of these matters have been carefully scrutinized. Mr. Eggleston: He wishes this Convention to consider this report and adopt it, because it has been so carefully considered. I should like to know of the gentleman if the committee intentionally left out a provision which would prevent the members of this board from electing each other Commissioner of Agriculture. Mr. Brown: I do not know, sir. I am not a member of the committee. It might have been an oversight. I do not know anything about that. So far as I am concerned, I think it would be a very good provision to put in, and certainly an eminently proper one, if the resolution of the gentleman is to obtain, because I am very much in favor, if we have a commissioner of agriculture, of having an expert who can do something to elevate the interests of agriculture in the State, and not have the gentleman who is one of the appointees of the Governor appointed as a representative practical farmer from the different sections of the State to be able to elect himself to be Commissioner of Agri- culture. I should like to see such a provision as that adopted, because I am heartily in favor of having a commissioner of agriculture who shall be not only a practical man, but an expert able to lead the farmers along in technical lines and show them wher« they can improve their farming. 132 — Const. Deb. 2090 DEBATER OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. It seems to me that is one of the very reasons why the suggestion made by the gentleman from Charlotte should not be adopted, but that the matter should be left, as has been contemplated by the report of the committee in the hands of this Board of Agriculture, and under their control, so they can go ahead and elect a man who will aid them in carrying on this work. I should be very glad, as far as I am concerned, to see an amendment adopted to the effect that the Board of Agriculture cannot elect any of their members officers of the board. It seems to me it would be a proper amendment to be adopted, but I do think the Commissioner of Agriculture ought to bear the same relation to the Board or Agriculture that the president of the college with which I happen to have a most intimate association bears to the college. He ought not to be ex-officio a member of the board. He ought not to be president of the board, but the respon- sibility ought to be vested in the board that is appointed by the Governor to manage the finances and affairs of the institution. I think a board of agriculture ought to be on the same plane that the Commissioner of Agriculture ought to be a member of the board, and that the board ought to be able to have an expert man, as I believe it is conceded the gentleman now in charge of that position has shown himself to be, not only a practical man, but able to lead farmers along technical lines. I do not want to see anything adopted that may reduce the efficiency of that commissioner. I hope the amendment will not be adopted. Mr. Parks: I have an amendment I desire to offer, and if my amendment is adopted, there might, and in all probability would be some change in the amend- ment he desires to offer. The amendment I propose to offer is that the Commissioner of Agriculture shall be elected by the qualified voters of the State, and I would ask if the gentleman would withhold his amendment until we vote upon mline, and then if my amendment is adopted there would have to be some consequential amend- ment that would affect the amendment he has offered. Mr. Eggleston: It seems to me the best way to accomplish that would be by just adding to my amendment the words " who shall be elected by the qualified voters of the State," as an amendment to my amendment. That would give the Conven- ^;ion an opportunity to consider the matter. • Mr. Lindsay: Mr. President, I rise for the purpose of offering this amendment to the amendment of the gentleman from Charlotte: "And who shall be elected by the qualified voters of the State." The President: The gentleman from Albemarle (Mr. Lindsay) moves to amend the amendment of the gentleman from Charlotte (Mr. Eggleston). The Secretary will read the proposed amendment. Mr. Stuart: Mr. President, just one word before the motion is put. I promise to detain the Convention but for a moment. The suggestion offered by the gentle- man from Charlotte (Mr. Eggleston) absolutely destroys the check which has been proposed between the executive officer upon one side and the managing board upon the other. It destroys the symmetry of the whole scheme, and absolutely makes the system a cumbersome and a useless one. There are no checks possible under the system he proposes. As to election by the people I have heretofore expressed myself on that subject. I deem it unwise, for various reasons heretofore expressed, which I hardly need repeat, and which it seems to me will readily occur to members of the body. Mr. Brown: I desire to call the attention to one point that seems to me may be lost sight of in this matter. If this commissioner is to be elected by the people, we are building up here a very large interest in politics which may influence that commissioner more than the consideration of agricultural matters. The Board of Agriculture, in its field of usefulness, has no stronger interest than that of holding Institutes in each of the counties of the State, for the purpose of elevating the people, and elevating their ideas; but, gentlemen, if you vote to make this commissioner elected by the people, you put in his hands not only the opportunity to build ud DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF VIRGINIA. 2091 as a political factor, but you put behind him the treasury of the State in his peregri- nations through the State with that object in view. I hope the gentlemen of the Convention will consider that view of the matter carefully before they adopt the amendment offered by the gentleman from Albemarle (Mr. Lindsay). The President: The question is on the amendment of the gentleman from Albemarle (Mr. Lindsay). Mr. Lindsay: I desire to announce a pair on this question between the gentleman from Fairfax (Mr. Moore) and the gentleman from Lynchburg (Mr. Glass). If they were both present the gentleman from Fairfax, would vote "yea," and the gentleman from Lynchburg v/ould vote "nay." The question having been taken, 'the result was announced — ayes, 33; nays, 36, as follovvs: Ayes— Barbour, Barham, Manly H. Barnes, Thomas H. Barnes, Boaz, Bouldin, Bria> tow. Chapman, Earman, Garnett, B. T. Gordon, R. L. Gordon, Green, Hancock, Hubard, G. W. Jones. Lindsay. Lovell, Mcllwaine, O'Flaherty, Parks, Pedigo, Phillips, Quarles, Richmond, Summers, ' Tarry, Thom, Watson, Wescott, Withers, Yancey, The Presi- dent— 33. I^Toes — Allen, George K. Anderson, Blair, Braxton, Brooke, Brown, P. W. Camp- bell, Carter, Dunaway, Eggleston, Fairfax, James W. Gordon, Gwyn, Hamilton, Hatton, Hooker. Hunton, Ingram, Claggett B. Jones, Kendall. Lawson, Lincoln. Meredith, Miller. Moncure, Orr, Pollard, Portlock, Rives, Stebbins. Stuart, Turnbull. Waddill, Walker Willis, Wise— 36. The amendment to the amendment was rejected. Mr. Mcllwaine: Mr. President, I hope the gentleman from Charlotte will allow that to be divided, so that we may vote first on " who shall be a member of the board," and, second, on "ex-officio president." There may be some gentlemen here who are willing for the one and not for the other. The President: The gentleman from Prince Edward (Mr. Mcllwaine) asks a division of the question as indicated. The Secretary will read the first branch of the proposition. Add after the word "years" in line 8, the words "and who shall be a member of the board." The ayes and noes being talien, the result was announced — ayes, 18; noes, 45. The first branch of the amendment was rejected. The President: The first branch having been rejected, the whole amendment necessarily fails. Mr. Stuart: Mr. P-resident, I have consulted with several members of the com- mittee whom I have been able to reach, and they have brought to my attention tlhe fact that in lines 12 and 13, Section 1, there should be some additional languag-e employed to clearly express the meaning. It reads: "The General Assembly may, in its discretion, add other members to the said board," the words " ex-officio'' having been stricken out. Now, the words I wish to add are these, "appointed by the Governor." The appointing power of the (xovernor shall remain, but the General Assembly may prescribe what members shall be added to the board. Mr. Mcllwaine: Mr. President, I move to strike out that clause. I cannot imagine what use in the world the addition of members other than those that constitute the regular board will be. We want a ooard that is properly constituted, and that will feel their responsibility. But as for adding other honorary members to that board, it seems to me it will weaken it and will interfere with its efficiency. The President: The question is on agreeing to the motion to strike out. The yeas and nays have been ordered. The Secretary will call the roll. The question having been taken, the result was announced — ayes, 36; noes, 23 — as follows : Ayes — Messrs. George K. Anderson, Manly H. Barnes, Thomas H. Barnes, Blair, 209,2 DEBATES OE THE COAtSTITUTIONAL CONVENTION OE VIRGINIA. Bristow, Carter, Dunaway, Earman, Eggleston, Garnett, James W. Gordon, R. K Gordon, Gwyn, Hancock, Hooker, Hubard, Claggett B. Jones, G. W. Jones, Lawson, Lincoln, Lindsay, Lovell, Mcllwaine, Meredith, Moncure, Orr, Parks, Pedigo, Phillips, Quarles, Tarry, Watson, Wise, Withers, Yancey, and the President — 36. Noes — Messrs. Allen, Barbour, Boaz, Bouldin, Braxton, Brown, P. W. Campbell, Fairfax, Ingram, Miller, O'Flaherty, Pollard, Portlock, Richmond, Rives, Stebbi'ns, Stuart, Summers, Turnbull Waddill, Walker, Wescott, and Willis— ?3. The motion to strike out was agreed to. Mr. Barbour: Mr. President, I move to amend Section, 1 by striking out, in lines 2 and 3, the words, "appointed by the Governor, subject to the confirmation of the Senate," and inserting in lieu thereof the words "elected by the qualified voters of the respective congressional districts." The effect of the amendment is to strike out the word "appointed," in lines 5 and 6 and insert in lieu thereof the word "elected." Mr. Brown: Mr. President, I offer as an amendment to add, after the word "Immigration," in line 18, at the end of that part of the section, as follov>^s: "Except that no member of the board shall be eligible to such election." That will meet the views of the gentleman from Charlotte (Mr. Eggleston), and will make it impossible for the Board of Agriculture to elect any of its own members to this board. Add after the word " immigration," in line 18, the following: " Except that no member of the board shall be eligible to such election." The paragraph would then read : The powers and duties of the said board shall be such as may be prescribed by law: provided, that the Department of Agriculture and Immigration shall be maintained permanently at the Capital of the State, with power to establish and maintain branches to be located elsewhere, and shall have power to elect and remove its officers, includ- ing a Commissioner of Immigration, except that no member of the board shall be eligible to such election. The President: The question is on agreeing to the amendment offered by the gentleman from Bedford (Mr. Brown). The question having been taken, the result was announced — ayes, 60; noes, 2. The amendment was agreed to. Mr. Pedigo: Mr. President, I now offer this amendment: After the word "State," in line 3, strike out down to and including line 8, and in- sert in lieu thereof the words "who shall be elected by the people." The section will then read: "There shall be a Bureau of Agriculture and Immigration, under the man- agement and control of a Board of Agriculture and Immigration, composed of one member from each congressional district in the State, who shall be elected by the people." Mr. BTown: I move to lay the motion of the gentleman from Henry (Mr. Pedigo) on the table. The motion was agreed to. Mr. Barbour: Mr. President, I move to amend Section 1 by adding to the first paragraph thereof, as it has been amended, the words "and who shall be elected by the qualified voters of the State." I understand that this motion has been submitted once and ruled out on a point of order, and I make the motion now simply that I may be given an opportunity to be heard by the Chair on. the point of order. The motion as originally submitted, as I understand it, was in the form of an amendment to an amendment offered by the gentleman from Charlotte, which, if carried, would have coupled this proposition with another proposition which was not supported by the Convention. The amendment is now offered as an independent propo- sition, and has nothing to do with the amendment of the gentleman from Charlotte. The President: The Chair is glad to hear the gentleman. It seems the propo- sition was embraced in an amendment to an amendment, and that was voted down, DEBATES OE TEIE COXSTITUTIOXAL COXYEXTIOX OF VIEGIXIA. 2093 but this seems to me a separate and distinct proposition. The Chair holds it to be in order. The Secretary will read the amendment. Add after the word "years" the words "and who shall be elected by the qualified voters of the State." The paragraph would then read: There shall be a Commissioner of Agriculture and Immigration, whose term of office shall be four years, and who shall be elected by the qualified voters of the State." Mr. Lindsay: Mr. President, I sincerely hope the Convention will see fit to adopt this amendment. The question of selecting the Commissioner of Agriculture has been considered in a number of other States, and various methods have been adopted. I happen to know of the experience of one of the Southern States in this regard. For some time the Commissioner of Agriculture was selected in North Carolina by the Legislature, and in every Instance a politician was put in that office as long as the choice was left to the Legislature. Five or six years ago the method of selecting the Commissioner of Agriculture was changed to election by the people, and I point to the experience of that State to prove the wisdom of that method. Since the adoption of this plan there has never been • selected any one but a practical farmer, one who was experienced in agriculture, and the choice by the people has proven eminently satisfactory in every particular. In the State north of us, Maryland, they have had identically the same experience. In Georgia, if I mistake not. the Commissioner of Agriculture is chosen by popular vote. The same is true in South Carolina. I have looked at no other states, but from what I have heard, the majority of the States that have commissioners of agricul- ture have them elected by the peopla Now, this Convention has in the past selected a number of the heads of different departments. It did not see fit to select the judges of the Supreme Court, but in every other instance the heads of the different departments have been elected by the people, and it does seem to me we can safely entrust this to the people of Virginia, and especially to those who are interested in the subject. I believe the people would in every instance make a wise selection, but certainly they would be more likely to do so than would either the General Assembly or the Governor, and I appeal to this Convention to give the people the opportunity. Mr. Brown: Mr. President, I dislike to detain the Convention in this matter, but it does seem to me that we are face to face with one of the vital propositions dealing with the efficiency of this Board of Agriculture. The gentleman from Albemarle county (Mr. Lindsay) states that in the majority of the States having commissioners of agriculture they are elected by the people. I believe my information is correct that the majority of the States do not have a commissioner of Agriculture at all, by that name, but have an officer who performs the functions performed by the Commissioner of Agriculture, and who is called the Secretary of the Board of Agriculture and elected by the Board of Agriculture. I wish to again call the attention of the members of the Convention to the fact that if they provide that this officer, known as the Commissioner of Agriculture, shall be elected by the people, they are treading upon very dangerous ground. One of the chief functions of the Board of Agriculture, to which I tried to call the attention of the Convention before, is in holding farmers' institutes. Farmers' institutes ought to be held, and will be held, in every county of the State. Those farmers' Institutes are held under the Board of Agriculture, by the Commissioner of Agriculture, principally because he is, or ought to be, the man who can attend those institutes and give the farmers direct information upon the most progressive methods to be used in agriculture. It does seem to me the Convention is taking a wrong step in putting into the hands of one man an opportunity to go into every county of this State to hold these institutes and deliver these lectures to the people, and have back of him the treasury of the State in doing it. 2094 DEBATES OE THE CONSTITUTIONAL CONVENTION OF VIRGINIA. May this office not fall into the hands of some man who would use the opportunities offered for personal and political purposes? Would it not be a very dangerous step for the Convention to take? I think it would, and I therefore move to lay this motion on the table. The President: The motion is withdrawn. The question is on agreeing to the amendment, which the Secretary will read. The Secretary read as follows: Insert after the word "years/' in line 8, the following: "And who shall be elected by the qualified voters of the State." The paragraph would then read: "There shall be a Commissioner of Agriculture and Immigration, whose term of office shall be four years, and who shall be elected by the qualified voters of the State.*' Mr. Stebbins: On this question I am paired with the gentleman from Fauquier (Mr. Fletcher). If he were present he would vote "yea," and I should vote "nay." Mr. Glass: I am paired with the gentleman from Fairfax (Mr. Moore). If he were present he would vote "yea" and I should vote "nay." The question having been taken, the result was announced — ayes, 36; noes 28 — as follows: Ayes — Messrs. George K. Anderson, Barbour, Barham, Manly H. Barnes, Thomas H. Barnes, Blair, Boaz, Bouldin, Bristow, Brooke, Chapman, Earman, Garnett, R. K Gordon, Gwyn, Hancock, Hubard, G. W. Jones, Lawson, Lindsay, Lovell, Mcllwaine, O'Flaherty, Parks, Pedigo, Phillips, Quarles, Richmond, Summers, Tarry, Thorn, Wat- son, Wescott, Withers, Woodhouse, and the President — 36. Noes — Messrs. Allen, Braxton, Brown, P. W. Campbell, Carter, Dunaway, Eggles- ton, Fairfax, James W. Gordon, Hatton, Hooker, Hunton, Ingram, Claggett B. Jones, Lincoln, Meredith, Miller, Moncure, Orr, Pollard, Portlock, Rives, Stuart, TurnbuU, Waddill, Walker, Willis, and Wise— 28. The amendment was agreed to. Mr. Carter: I offer the following substitute for Section 1: The General Assembly shall establish and maintain at the seat of government, with such subordinate branches elsewhere as may be necessary, a Bureau of Agricul- ture and Immigration, with powers and duties to be defined by law Mr. President, it will be recognized that that is the same substitute that was voted on by the Committee of the Whole yesterday, and therefore I shall make but very few remarks in support of it. It seems to me, Mr. President, that this report, in the condition in which it now is, violates one of the cardinal principles for which we were sent here, and that was to diminish officers in the State of Virginia. It creates some twelve or fourteen constitutional officers whose number cannot be diminished, whatever may be the necessities of the occasion. It fastens on us for all time to come, until the Constitution is changed, a board which consists of one member from each congres- sional district, and one from the Polytechnic School in Bedford, which will be, I fear, an increasing power for expense in the Commonwealth. I do not pose as anything of a prophet, but I think if we live for ten years we will see the expenses of the present Agricultural Department increased fourfold, or even more, without any increase in its efficiency, and it will be beyond the power perhaps of the General Assembly to change it. There will be a constitutional officer in every congressional district of the State, who will be working for increased appropriations, increased expenditures, experi- mental farms here and there and everywhere; and it will be almost impossible to overestimate their influence or to properly reach it if it be an influence for evil. Mr. Thom: Do I understand my friend is sufficiently acquainted with the views of the farmers to take this position? Mr. Carter: I am sufficiently acquainted, Mr. President, with human nature to know that if you establish such a board as this, it will begin to work with the view DEBATES OF THE COXSTITUTIOXAL COXVENTIOX OF VIEGIXIA. 2095 that that is the one important thing for them to do in. the Commonwealth. They will think their work is the most important in the State, just as my friend from Norfolk thinks his city is the gem of the State, and the fact that he so thinks and is so mistaken, shows how even a man of his strong intellectual ability will be domi- nated by what surrounds him. If we establish such a board as this we will have men here like my distinguished friend from Bedford (Mr. Brown), with one idea alone, and that will be to magnify the position they hold, and to get into the coffers of the Commonwealth, for the purpose of increasing the efficiency of that position. Honest and patriotic as he is, we have seen that since this report is being considered, he is dominated by one idea, and that is that the Polytechnic Institute in B-edford — I believe that is where it is — is absolutely necessary to save the agricultural interests of Virginia from an impending doom; and that, Mr. President and gentlemen of the Convention, is the vice in this report. It has affected the members of the committee, and its clear-headed, sensible chairman, for whom I feel not only admiration but affection, but yet it does seem to me that they have fallen into this dangerous path, and I think that to preserve us for the future from the danger which I think this thing threatens ,we had better adopt the substitute which was offered by the gentleman from Nottoway (Mr. Watson) on yesterday, which leaves it as it is now, in the power of the General Assembly to make such changes as experience in the future may demon- strate the wisdom of. Mr. Barbour: Mr. President, I offer the following amendment to the substitute: Provided, that the chief executive officer of said bureau shall be the Commissioner of Agriculture and Immigration, who shall be elected by the qualified voters of the State for a term of four years. Mr. Barbour: Mr. President, I simply desire to call attention to the fact that the object of that amendment is to clinch this matter of electing a commissioner by the people, if the substitute of the gentleman from Hanover (Mr. Carter) is adopted. I do not favor his substitute, but if it is adopted, it should be adopted with that proviso. Mr. Stuart: Mr. President, it has been the effort of the chairman of this com- mittee and his associates to fulfill the expectations of those people in Virginia who have an interest in the subjects which have been under their consideration. I am not here to indulge in cheap talk about agriculturists or about farmers, or about the hard- ships of farmers or anything of that kind. I am not here for the purpose of making demagogic appeals to the country or any other section; but, sir, I want to call the attention of this body to one significant fact, that the first effort that has ever been made in this State to write a line in its Constitution in support of the agricultural interests of the State, and in recognition of it, is now in serious danger of being stricken out. Mr. R. L. Gordon: I desire to appeal to this body not to perpetuate a thing which is experimental in its nature, and which v/e know, if we know anything, may be shown to be imperfect when touched with experience. We know, sir, that hardly any act has ever been passed by the General Assembly which, when put into practical operation and the touch of experience was applied to it, did not demonstrate that it needed amendment, and that the gentleman who prepared the act did not know everything, but that the future had some developments in regard to it. I want to say further that the farmers of Virginia have been heard in their legislative halls. They have now a Commissioner of Agriculture. They have now the power to improve that condition of things as the experience of the future may demand, if there is any defect in it. The farmers of Virginia, through their representatives in this body, will have no difficulty in supplying that defect and in improving that system as the future may require; but the gentleman from Russell, I think, is led by an over-zeal in the interests of agriculture. I know that every heart-throb of his is in the interest of the farmers of Virginia, and I think that mine are equally so, but it 2096 DEBATES OF THE COXSTITUTIOaSTAL CONVENTION OE TIEGINIA. is only a difference of opinion between we gentlemen; and if there is one thing, gen- tlemen, that we must reserve and keep sacred upon this floor, it is the right to differ, because we have done nothing but differ since we met. Mr. President, I think I said on yesterday that the very beginning of the commit- tee was a little play to the galleries, and while my friend from Russell Mr. O'Flaherty: Mr. President, if the gentleman will permit me, that statement went unchallenged yesterday. I made the motion to have this committee appointed, and I absolutely mean to say to the gentleman that I had no such idea, and I repu- diate that assertion. I had no more idea of playing to the galleries than I have now. Mr. Pv. L. Gordon: I am very glad, Mr. President, to know that the gentleman was not playing to the galleries. I thought he was, but I am sure now that he was not, because he says so. But, Mr. President, I started out by saying that inasmuch as my friend from Russell has been placed in this position, while I regret as much as any man on this floor to antagonize any position he takes, I do not think any sense of courtesy ought to induce this body to put into the fundamental law any principle which does not commend itself to their common sense, whether it will mortify one gentleman or any gentleman, and I hope the Convention will give to the General Assembly the right to control and govern this matter in the future as the wisdom and experience of the future may dictate. Mr. Wescott: Mr. President and gentlemen of the committee, I deprecate ex- tremely the renewal of this proposition which was yesterday made and defeated in Committee of the Whole. It seems to me, gentlemen, that with the amendments which have been made in the recommendations of this committee by the Committee of the Whole its report ought to be adopted; and I wish to say in that connection that in my advocacy of this report, whilst a member of that parasitical body to which the gentleman from Henry (Mr. Pedigo) referred, I do not wholly derive my means of subsistence in that way, but live upon and cultivate my farm. I merely rise to reply to the suggestion of the gentleman from Louisa (Mr. Gor- don), who says upon this floor that in his opinion the appointment of this committee was a play to the galleries. I want to suggest to my friend that if he is in earnest in that proposition, and if it takes any hold upon the minds of the members of this body, if we concede the appointment of a Committee on Agriculture was a play to the galleries, and if the farmers of the State of Virginia are the galleries to whom we have begun playing, I would urge most seriously upon the consideration of this body that this is no time to cease playing, and we had better play on consistently to the galleries to the end. Mr. Brown: Mr. President, I desire to say only a few words on this matter. From the remarks of the gentleman from Hanover (Mr. Carter), who introduced the resolution, it seems that my position has been absolutely misunderstood, certainly by iim. I hope his ignorance on that point is as great as his ignorance of the position of the Polytechnic Institute to which he referred. I hope I have not produced on this body the impression of being a special advocate. I am sure I did not intend to do so. My idea was to help this committee's report through this body by drawing atten- tion to its good features. I did not alone make such allusions. It is true I voted against the proposition in the committee's report providing for the election by the people of the Commissioner of Agriculture, but I do not think that proposition is Tital to the real success of this report, and I hope the Convention will adopt the report of the committee as it has been amended, and vote down the proposition of the gentleman from Hanover. ("Question! question!") At this point Mr. Walker took the chair as presiding officer. Mr. Barbour: I withdraw the amendment which I have offered to the substitute. DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIEGIXIA. 2097 The Presiding Officer: The question is on agreeing to the substitute proposed by the gentleman from Hanover (Mr. Carter) to Section 1 of the committee's report. The question having been taken, the result was announced — ayes, 13; noes, 61. The substitute was rejected. Mr. Lindsay: I offer the following amendment: In line 20, instead of the words, ''president of the board," substitute the words, '-Commissioner of Agriculture and Immigration." Mr. President, I do this for the reason that, the president of the Virginia Poly- technic Institute is made a member of the Board of Agrictilture, and correspondingly that officer would naturally be the Commissioner of Agriculture, vrho would, if my amendment is adopted, be made a member ex-officio of the Board of Visitors. Mr. O'Flaherty: I raise the point of order that there cannot be any more amend- ments offered to this section, as there was a substitute offered for it. The Presiding Officer: The Chair thinks the amendment ought to have been offered before the substitute was voted on. Mr. Stuart: I move the adoption of Section 1 of the report as amended. Section 1 was adopted. Mr. Stuart: Mr. President, I suggest that the report be read as amended, so that members may see if there is anything they desire to correct. The Presiding Officer: The Secretary will read the report as amended. The Secretary read as follows: There shall be a Bureau of Agriculture and Immigration, which shall be under the management and control of a Bureau of Agriculture and immigration, composed of one member from each congressional district in the State,, who shall be a practical farmer, appointed by the Governor, subject to the confirmation of the Senate, for a term of four years, except that the mempers first appointed after the adoption of this Constitution from the odd-numbered congressional districts, shall hold office for two years. There shall be a Commissioner of Agriculture and Immigration, whose term of office shall be four years, and who shall be elected by the qualified voters of the State. The president of the Virginia Polytechnic Institute shall be a member ex-officio of the Board of Agriculture and Immigration. The powers and duties of the said board shall be such as may be prescribed by law: provided, that the Department of Agriculture and Immigration shall be main- tained permanently at the Capital of the State, with power to establish and maintain branches to be located elsewhere, and shall elect and have power to remove its officers. The president of the Board of Agriculture and Immigration shall be a member ex-officio of the Board of Visitors of the Virginia Polytechnic Institute. At this point the President resumed the chair. On motion of Mr. Meredith, the Convention adjourned until to-morrow, Saturday, February 1. 1902, at 10 o'clock A. M. SATURDAY, February 1, 1902. The Convention met at 10 o'clock A. M. Prayer by Rev. W. F. Davis, D. D. Mr. Green: I move that the Convention resolve itself into a Committee of the Whole for the consideration of the report of the Committee on the Preamble and Bill of Rights, the Division of Governmental Powers and on such portions of the Constitu- tion as shall not be referred to other committees. The motion was agreed to, and the Convention resolved itself into a committee of tie Whole, Mr. Turnbull in the Chair. 2098 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Mr. Green: Mr. Chairman, I do not desire to detain the committee with any speech on this report. I will ask that the first section be read. Mr. James W. Gordon: I move to strike out the word "two," in line 8, and insert "one." It would have the effect of reducing the homestead exemption from |2,000 to $1,000. Mr. Chairman, my reason for offering this amendment I can state in a very few- words. This article in the Constitution was adopted just after the war, out of respect to the impoverished condition of the people, and at a time when the cost of supplies was much higher than at present. I believe $1,000 in quite as much at this time as $2,000 was at that time, and I believe that $1,000 is all that any man ought to be allowed to hold exempt from the just claims of his creditors. I believe that it is the only protection that is necessary to carry out the public policy of this provision, and I believe it would enhance the security of commercial enterprises and be a benefit to the debtor himself if we would reduce this amount. For these reasons I hope the committee will see fit to make the change. The amendment was rejected; there being upon a division, ayes, 18; noes, 33. The Chairman: Are there any further amendments to Section 1? If not, the secretary will read Section 2. Sec. 2. The said exemption shall not be claimed or held in a shifting stock of merchandise. Mr. Green: Mr. Chairman, I think it is proper to- explain that that was an addi- tional section to- the homestead provision now existing. It w^as put there, however, in deference to a decision in the Gourt of Appealsi, and I think v/hen the case is thoroughly presented, the court would hold anyhow, as the law exists now, that they could not claim the exemption. We thought we had better put that question at rest, and we just put that section there for that purpose. Mr. Boiildin: May I inquire from my friend from Danville if there is any difference contemplated in the use of the words "shifting stock of goodts" from , a stock of goods. Mr. Green: A shifting stock of merchandise means, of course, a merchant's stock that is being changed every day by sales and additions, and a growing business of that kind. It is. intended to be confined, and I think is confined, to a meircantile business and the shifting stock of a mercantile business. Mr. Bouldin: It is intended then to apply to all mercantile goodsi? Mr. Green: Yes; as suggested to me by the gentleman from Richmond (Mr. Mere- dith) it is the very expression used by the Coiurt of Appeals in the case of Sharplese vs. Rose, as applying to goodsi which ought tO' be exemipt. Mr. Hunton: I desire to ask the chairman of the committee whether the word "shifting" in that sense means anything. Is not a stock of goods necessarily shifting, and does not the introduction of the w^ord "shifting" only leave the matter open for construction by the courts? Is not a stock of merchandise a necessarily shifting stock? I am asking for information. Mr. Green: I do not think so. A man might close up his businesis and pay all his debts and still have a stock of merchandise which he is going to dispose of. A man might die leaving a stock of merchandise with no debts. The busiiness is not going on. The stock itself is not shifting and changeable, but it would still be a stock of goods or a stock of merchandise, in my opinion, and would have tO' be sold oiut; but it is intended to confine this to a changing, growing business, and that a man shall not claim exemption in a case of that kind. Mr. Hunton: But if there were no debts the homestead would not be applicable at all. Mr. Green: I am not sure about that. Mr. Hunton: I think so. Mr. Green: But still there would be a distinction between that stock and the other. DEBATES OF THE COX.STITUTIOXAL COXVEXTIOX OF VIRGIXIA. 2^099 Mr. Stebbins: I move that the word "shifting" be stricken out. It seems to me that b}' the very nature of the case a stock of merchandise is necessarily shifting. Mr. Pollard: May I ask the chairman of that committee a question? Mr. Green: Certainly. Mr. Pollard: Is not the term "a shifting stock of goods" used and defined in the Rose case by tlie Supreme Court of Appeals of the State? Mr. 'Green: I have just said so. The gentleman from Richmond (Mr. Meredith) mentioned that. The 'Chairman: The gentleman from Halifax (Mr. Stebbins) moves to strike out the word "shifting" in the second line of the section. The amendment was rejected. Mr. James W. Gordon: I move to amend Section 2 by adding thereto these words; "Nor in any property the conveyance of which has been set aside on account of a fraud or want of consideration." It seems to me, Mr. Chairman, if there is one blot upon our law it is the fact that a man in Virginia can ma.ke the most fraudulent conveyance of his property; make all kinds of shifts; that he can absolutely convey the legal title to his property away, and then come in after the conveyance has been set aside and claim that property as exempt under the homestead law. " It is a proceeding which our own courts have condemned in unmeasured terms, but which they have been obliged, under the provisions of the homestead article in the Constitution, to enforce. This is a matter of simple good faith in the business community. If a man, with the intent to defraud his creditors, goes to work and makes shifts and conveyances which cover up his property and tries to screen it from his creditors, it seems to me he ought not to be given any advantage by being allowed afterwards to take that property out of the hands of the donee, and claim it as his own property and exempt. Mr. Quarles: May I ask the gentleman a question? Mr. James W. Gordon: Yesi, sir. Mr. Quarles: Is not the homestead exemption intended for the benefit of a man's family as vrell as for his own benefit, and ought his fraudulent act to prevent such pro- tection of his own family? Mr. James W. Gordon: Yes sir; and I will say that while that may be the intent of all tile homestead provisions, there never has been a law Vv'hich has so signally failed to carry out its intention. The homestead exemption, as we have it administered in Virginia to-day, is a mere cloak for fraud in probably eight cases out of ten. When a man indicates his purpose to defraud his creditors by making this kind of convey- ance, he ought not to have a double show at his property by coming in and claiming it as exempt after the conveyance has been set aside. Mr. Barbour: Mr. Chairman, I rise merely for the purpose of stating that I concur fully in the remarks made hy the gentleman from Richmond, and I hope that this amendment will be adopted. I will call the attention of the committee to the fact that the adoption of this provision could have no effect upon homestead exemptions which have already been claimed, as under the provisions of Section 4 this does not in any way affect any homestead exemptions' already claimed. It would only apply to cases arising hereafter. I state tliat for the purpose of calling the attention of the committee to it, and because of the additional fact that I am counsel in cases involving this very question, and I wish it to be understood that I am not in any way influenced by the fact that I am counsel in those cases in my attitude on this question; because this provision cannot possibly affect it. I will state further, Mr. Chairman, that it seems to me the theory upon which the Supreme Court has gone in permitting homesteads to be claimed in fraudulently conveyed property is all wrong and is contrar^^ to the principle upon which the theory of setting aside conveyance is based. As I understand the matters of setting aside 2100 DEBATES OF THE COKSTITUTIOisTAL CON"VEI^TION" OE VIEGI2TIA. fraudulent conveyancesi, a court has no right to set aside a conveyance except as between a creditor and a debtor, and if the creditor has no right in the property, then the court cannot set aside the deed, but only sets it aside for the purpose of permitting the creditor to assert his rights against it. Under this decision, as announced by the Supreme Courts, I may convey my property to a third party in fraud, and I can in no way get it back if I am not indebted, but if I am indebted and the creditor chooses to bring a suit to set aside that conveyance, the court will set aside the conveyance, revest the property in me and then permit me to claim the homestead exemption in it. That is not right, and it is contrary to all sound principle. The effect of this provision is that if a man parts witli his property he parts with it for good, and the question then only arises as between the creditor and the grantee as to which has the best right to that property. The debtor hims.elf having parted with all his right to it, the only question which then remains is as to who has the best right to it, the fraudulent grantee or the creditor, and as between those parties I can say there can be no doubt but that the creditor has a better claim to the property than the fraudulent grantee. Mr. Carter: Suppose the grantees are the wife and children? Mr. Barbour: It would be the same thing. The principle is the same. Mr. Carter: You would take i'E away from them any way. ' Mr. Barbour: Yes, sir; it would just put a stop to that thing. It is "heads I win and tails you loose" under that provision, and it ought not to be so. Mr. Meredith: I suggest also to the gentleman from Culpeper that the law gives the debtor an honest way of proceeding by taking a homestead. If he prefers a dishonest way of proceeding and the property is set aside, surely he nor .nobody else ought to be allowed to claim it again, because it just ties the hands of the creditor and prevents him from making any fight. He knows that if he wins, he looses. Mr. Barbour: Certainly. If he and his wife attempt to defraud a creditor — and they must do it to carry out the case stated by the gentleman from Hanover (Mr. Carter) — neither would have any right or any equity to be restowed to their right. Mr. Summers. Mr. Chairman, I appreciate the remarks of the distinguished gen- tleman w^ho have spoken on the other side, but I think they lose sight of the law and the object of it. The object of the homestead law of Virginia is not for the protection of the men. It is for the protection of the helpless women and children, and the pros- perity of all the States of the Union are known by the extended limits of the home- stead exemptions. Now, I am opposed to making helpless women and helpless children dependent upon the misconduct of a man, and when the gentlemen have lived as long as I have and have seen the inetSciency and perfidy of mankind you will never hazard the living, the home, the cover of a poor woman because of the turpitude of a man. That is right, and it is God's truth. The gentlemen say that because I make a transfer to my wife and that is fraudulent, my wife, in her old age, and her children should be put as waste upon the earth because of my perfidy. It is not law, it is not equity, and it is not the intention of the law. Mr. James W. Gordon: Mr. Chairman, the inspired gentleman from Washing- ton (Mr. Summers) and the gentleman from Accomac (Mr. Wescott), it seems to me, have both fallen into error, in setting up a mere theory against the practical demonstration of the operation of this law in the State of Virginia. They say that this homestead is to be beld not only for the benefit of the claimant, but of his wife and family. That may be the intention of the law, but how does it operate under such circumstances as are contemplated in the amendment? If a man who makes a fraudulent conveyance of property to his wife, say, and that conveyance is set aside at the instance of his creditors, his wife cannot get it, because as between her and the creditors the creditors have a prior right to it, and it gets back in the hands of the very man v>^ho made the fraudulent conveyance; and a man who will be guilty of this kind of fraud is the very man who will fail to make adequate pro- tection for his family out of that property. DEBATES OF THE COXSTITUTIOXAL CONVEXTIOX OE VIEG.IXIA. 2101 Mr. Barbour: I suggest to the gentlemaii further that this same man is per- mitted to -^^aive the homestead exemption at any time. Mr. James W. Gordon: Yes, he is permitted to waive the exemption at any time, and it seems to me there can be no more definite way in which he could attempt to waive it than by conveying it away from himself. Mr. Chairman, we are putting a premium upon fraud in Virginia, unless this constitutional provision, which is hard enough in its operations, anyhow, has some safeguards thrown around it. The gentleman says that the costs of litigation are sufficient to deter a man from making a fraudulent conveyance of his property Mr. Wescott: Will the gentleman pardon me? I deprecate having to interrupt the gentleman, but I did not make any such statement. I said merely that the law, in its present status, imposes a penalty in the matter of cost and expenses of litiga- tion. I did not say, however, the penalty w^as sufficient to deter individuals from fraudulent conveyances, and therefore I submit that the gentleman is incorrectly quoting me. Mr. James W. Gordon: I admit that the gentleman's language was as he has just stated, but I think the natural inference was that this penalty in the nature of costs was a sufficient deterrent to relieve the community from any practical diffi- culty in the way of fraudulent conveyances. It has not been in the past, and be- sides, we must consider, gentleman of the committee, that those costs do not fall alone upon fraudulent claimant. They fall upon the man who in attempting to enforce his legal rights against one who has defrauded him, and they fall more heavily upon him because he is all the time going down into his pockets and taking out good money to send after bad. The other man is paying his costs out of the disputed property. Mr. Chairman, I desire to call the attention of the gentleman from Accomac to the fact that on the floor of the Committee of the Whole he made a most strenuous and successful fight in favor of what he conceived to be a great principle in the Bill of Rights, which gave to persons whose property had been taken or damaged for public uses just compensation. There is only one principle upon which these homestead exemptions are allowed, and that is on the principle of public policj^; and yet he says that a man's debt, which is as much property as his land, shall be confiscated practically without any compensation whatever. It is taken on the theory that the community ought to be relieved of the public charge of supporting those who are divested of all their property; yet there is absolutely no protection given to this class of property, and he has contended most strenuously as to the other class of property. I say that if we put any such provision as that in the Consti- tution, we ought to safeguard it at least in this respect, that no man shall be en- titled to this exemption unless he comes into court with clean hands. That is the only case of which I know in which a man can come into court and plead his fraud as a title to property. I say it is wrong in principle, and it tends to degrade and de- bauch our commercial intercourse with each other. I hope, gentlemen, that you will not only recognize the great principle of public policy embodied in the committee's report, but that you will also recognize the great principle of public morality that is recognized in the amendment which I have sent to the desk. Mr. Green: Mr. Chairman, it is well enough for us to understand that the whole doctrine of homestead protection is for the betterment of modem philanthropy. If the speech of the junior gentlem.an from Richmond (Mr. Gordon) had been made at a time when men were imprisoned for debt, I w^ould not have been surprised at it; but, sir. the world has been advancing in the protection of Its people and the ele- vation of its citizens by means of philanthropic laws and methods. It is too late, it seems to me. for Virginia to set herself to curtailing them and breaking them 2102 DEBATERS OF THE C0X8TITUT10XAL COXVEXTIOX OF VIKGIKIA. down. However much, the gentleman from Washington (Mr. Summers) m^ay be called inspired, he certainly fell upon the truth when he said that the objects of this law were two-fold, one to protect the helpless, and the other, and a far higher one, to protect the State itself against poverty and degradation and loss of good citizen- ship and crowded poor-houses. The arguments which have been urged against the morality of the law which so shocks the gentleman from Culpeper (Mr. Barbour) and the gentleman from Rich- mond (Mr. Gordon) have been urged just as strongly against the courts ever holding that vvheu a deed is set aside, the homestead still continues in the property, before almost every court in this Union, and I take it for granted that the gentlemen in those cases considered those moral questions that are now being urged; and the Supreme Court decided, the gentleman from Culpeper says, wrongly, but rightly, I think — all the courts, at any rate, differ from the gentleman from Culpeper — that there was no wrong or fraud in a conveyance of that kind that ought to prevent the homestead. Why should it prevent it? The gentleman from Culpeper (Mr. Bar- bour) has a curious idea — I suppose it is necessary for the cases in which he says he is engaged : and I do not mean that it applies to his position here, but he has it in his head from arguing those cases — that when a fraudulent deed is set aside, the title remains somewhere in the grantee or the grantor. The court simply declares that the title remains where it was; that the deed is a nullity; that there is no deed. It stands exactly in the same position as if it had never been written upon paper or gone before a magistrate. The whole thing is a nullity. Mr. Barbour: Does the gentleman undertake to say that the court sets aside a deed further than is necessary to pay the creditors? Mr. Green: Yes; I say it sets it aside as absolutely null, but as between a fraudulent grantee and a fraudulent grantor, neither one has any standing in court. Mr. Barbour: I think the gentleman is mistaken if he asserts the debtor can get that property. Mr. Green: All I can say is that if you base the cases you are going to try on that theory-, the court will be against you and you will lose them. The court sets aside the deed because it is an absolute nullity. Mr. Meredith: That does not apply to all fraudulent deeds. It applies only to some. Mr. Green: It does apply to all deeds, and I think I can demonstrate it to you before I get through. As there is nothing existing, the property is where it was before anything was done. A vain act having been attempted, ao act was com- pleted or carried into perfection. Mr. Meredith: I do not think the gentleman understood me. I say the prin- ciple of the deed being absolutely void applies only to some deeds. There are some deeds that are absolutely void and others that become void because of the circum- stances. Mr. Green: Exactly. I am going to call attention to that. Let us take an in- stance of the practical effect of the object of these gentlemen. Here is a provision that says if any deed is made fraudulently or without due consideration, and it shall be set aside, no homestead shall ever be claimed in that property by a man or his wife and children. That is their provision. Now take this instance: Suppose a man is an endorser for B, who is worth five times as much as his endorser, and that while an endorser for B for $5,000 or $10,000, he makes a deed of settlement upon his wife to secure her a home for herself and her family. Suppose B fails utterly and cannot pay a cent. Why, as soon as that case should occur, the young gentleman from Richmond (Mr. Gordon), or the elderly gentleman from Culpeper (Mr. Bar- bour) (laughter), would at once rush into court and say, "Why, this deed of settle- ment upon his wife was made while he owed this debt." The gentleman would go DEBATES *0r THE COXSTITUTIOXAL COXVEXTIOX OF YIRGIX'IA. 2103 into court and the court would set it aside, and must necessarily set it aside, because tlie voluntary deed was made without sufficient consideration. He made that settle- ment upon his wife when he owed this debt as a security, as an endorser for a man worth five times as much as he^ and without any thought of ever being called upon to pay that security. Now, when the deed is set aside we are told in this Conven- tion it is a horrible immorality if the wife is allowed to claim a homestead in that property. Sir, it strikes at the very foundation of homesteads. You had as well strike out the homestead exemption altogether as to provide an entering wedge of this sort which the lawyers would pursue until they utterly annihilated it. Why, the gentle- man from Richmond (Mr. Gordon) offered a resolution earlier in the session that annulled the homestead in Virginia. Mr. James W. Gordon: I did not offer any such resolution. I offered a resolu- tion which you conceive to do that thing, but I had no intention of accomplishing that result. Mr. Green: Well, I will not go into that question. At any rate, if the gentle- man will allow me to call his attention to the fact, I think he stated before the committee that he thought the whole homestead exemption ought to be swept out. Mr, James W. Gordon: I did say that, as a matter of principle, but I did not offer any such resolution. I think the whole thing is vicious in principle except as to a reasonable poor debtor's exemption. Mr. Green: I say, sir, that a case such as I have just described of a voluntary settlement upon a wife without a valuable consideration, and the depriving her thereby of the right to claim a homestead, and of her protection, seems to shock the moral sensibilities of every man. Now, gentlemen, I know it is very fashionable, perhaps it is very honorable, to laud the necessity of paying debts. It is a homely virtue that ought to belong to every man. The homestead exemption was never intended to discourage the pay- ment of debt. No man can ever commit a fraud under it — to call it a flat fraud. No man, if you will consider it, can ever commit a fraud under it, because his homestead must be recorded in the Constitution of the State, and every man must be presumed to know he has a right to claim it; so that when you deal with him, in each transaction you have with him you have your eyes open, and men who deal in money generally have their eyes open. You know the fact, and you are dealing with a man across whose paper, every time he gives it, unless you make him put a waiver, there is the declaration of the law that that paper is subject to the homestead ex- emption. How can a man deal with another with the knowledge clearly in his mind and before his eyes, and then when the law declares the homestead exemption, begin to cry out like a baby that he has been defrauded? Who has defrauded him? He has known all the time that this homestead exemption was a legal and an inevitably legal right. He dealt with him with that knowledge. Why should he say he has been defrauded? Ah, but they tell me that the merchants are the men who will be bene- fited by this. When I go to a merchant and run an account with him for three or six months, he can easily say to m.e, "I would like for you to sign a paper," and he can have it printed just as the bankers print their notes, "in which you will agree to waive the homestead exempted as to any debt contracted for goods." If I sign it, I cannot claim the homestead. If I refuse to sign it. that is a full notice to him that I intend to claim it, and he cannot say he is defrauded when I do claim it. There is no possibility of any man being defrauded under the homestead law of this State, save and unless he calls it a fraud to get his money and then not pay it back again, if you cannot do it. I agree with the gentleman from Westmoreland (Mr. Walker) that this is too 2104 DEBATES OF THE COA^STITUTIOXAL CONVENTIO]^ OE VIRGIAHA, small a game for a Constitutional Convention— the pursuit of sporadic rogues. It does seem to me that these gentlemen who are falling out of line are like a pack that is running a magnificent stag and one or two little hounds fall out to run a rabbit. (Laughter.) It is entirely too insufficient a matter. In addition to that, gentlemen^ I say this question has been thoroughly considered under the present Constitution by the Court of Appeals, and in line with the decisions in other State the courts of Virginia have settled the law on those subjects. I do hope the Convention will not attempt to unsettle it by adding the provision suggested by the gentleman. The Chairman: The question is on the adoption of the amendment offered by the gentleman from the city of Richmond (Mr. Gordon). The amendment was rejected, there being, on a division, ayes, 13; noes, 38. The Chairman: Are there any further amendments to Section 2? If not, the Secretary will read Section 3. Section 3. The General Assembly shall prescribe in what manner and on what conditions the said householder or head of a family shall set apart and hold for him- self and family a homestead out of any property hereby exempted, and may, in its discretion, determine in what manner and on what conditions he may hold, for the benefit of himself and family, such personal property as he may have coming within the exemption hereby made. But this section shall not be construed as authorizing the General Assembly to defeat or impair the benefits intended to be conferred by the provisions of this article. Mr. Waddill: I offer the following amendment to Section 3: Add at the end of the section the following words: "Nor to authorize a married man to waive the benefit of his homestead exemption in real estate of the value of a thousand dollars or less without the consent of his wife expressed in writing." Mr. Green: Mr. Chairman, I wish to call the attention of the gentlemen of the committee to the fact that that section is identical with the section in the home- stead law as it has existed for the last thirty years in Virginia, that it has been considered very carefully and thoroughly by the Supreme Court of Appeals, and that the result of this will be to deprive the poor man, who may have the advan- tage of a homestead, of all credit whatever and prevent him using it as he ought to be allowed to do, for the support of his family. I hope it will not be adopted, language of the present Constitution. When that Constitution was framed it was Mr. Waddill: Mr. Chairman, the language adopted by the rommittee is the claimed a man should not have the right to waive the effect of his homestead ex- emption at all in any of his property. I happen to know that the author of the homestead exemption in the present Constitution contended that a man could not waive his homestead exemption at all, but the courts decided otherwise. Many of these homesteads. Mr. Chairman, are the result of the labor and toil of some good woman, and by the decision of the court a worthless husband can go out aud by signing a note waive the homestead and deprive her of the property. I did not know this proposition v/ould be up this morning, and therefore have not looked into it as carefully as I might, but I know that in some of the State Constitutions of this Union such a provision is made, notably in the Constitution of the State of North Carolina. Under such a provision the community will know that a man who has only $1,000 of real estate, in order to waive the homestead exemption, must have the consent in writing of his wife. I submit that consent ought to be required; other- wise she is deprived of her home without any knowledge of it whatever. I trust it will be the pleasure of the committee to adopt the amendment. It must result in great good and in the saving of these homes to women and children. The homestead exemption is intended primarily for the benefit of women and chll- I DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE VIRGINIA, 3105 dren, and it ought not to be taken away from them without their consent in some manner expressed. If a man wishes to deal with another man who has a thousand dollars" worth of real estate or less, he must deal with him with the knowledge that his wife has a right in the property, and that she must be consulted before it can be taken away from her. Mr. Meredith: Mr. Chairman, I should like to inquire of the gentleman how the consent is to be expressed, whether by a deed or on the face of the note, or how? If a man goes to buy a bill of goods and he is required to give a note before the goods are delivered, how is it intended the wife shall join in the conveyance? It seems to me a matter of perfect impracticability, sir. Mr. Green: That is a matter for the General Assembly to control. It has here- tofore controlled such matters. Mr. Wescott: Mr. Chairman, I do not wish to detain the committee with any suggestions upon this matter further than to suggest that the adoption of the amendment of the gentleman from Henrico (Mr. Waddill) will not leave the law in anything like a symmetrical condition. Let us see now. This inhibition against waiver under his amendment is applicable only to the case of a waiver by the hus- band of a married woman living, the married woman in that instance being regarded as the beneficiary. If you adopt that, let us suppose the husband is not the head of the family, but is deceased, and the married woman herself is the head of the family. Then the beneficiaries are others than the married w^oman herself; and if you adopt this provision, you permit it to be waived in the one instance and not to be waived in the other. For that reason I submit the children, who are equally beneficiaries in the case I suggest, have no means of consenting to the waiver, and the provision is not sym- metrical for that reason. Mr. Parks: In addition to that, Mr. Chairman, it happens ver^' frequently that a man who claims a homestead is not a married man at all and has never had a wife, but there are persons dependent upon him, and under the law he is entitled to claim the homestead. Another difliculty also suggests itself to my mind: How are you going to determine the value of this land? Are 3^ou going to take its assessed value, or how are you to get at its value? And if you do not take the assessed value, one man may put one value upon it and another man another value on it, and when you get into court to determine whether the party had a right to waive the exemp- tion, it will have to be determined by the opinions of different witnesses as to the Intrinsic value of the land. Mr. Portlock: Mr. Chairman, I desire to ask for information and explanation of the concluding clause of Section 3. I much prefer to have matters explained be- fore the report is adopted than to have to look around for an explanation afterwards. The last paragraph in this section provides: "But this section shall not be con- strued as authorizing the General Assembly to defeat or impair the benefits intended to be conferred by the provisions of this article." I am aware of the fact. Mr. Chairman, that that same provision is embodied in the present Cinstitution, but I must confess I have never understood what it meant. I should like to know what really is meant by the committee by this clause as re- ported to the Convention. As I lia^-e said. I do not know what it means in the old Constitution, for the reason that it would seem to provide that the General Assembly may not pass anj' laws which would impair or defeat the provisions of the Consti- tution relating to the homestead exemption; that is to say. the General Assembly shall not pass any laws which would allow a man or his family, or his wife and children, to be deprived of these benefits: and 3"et we know the General Assembly has passed laws pursuant to the present Constitution in which a householder, the head of a family, is allowed to defeat the objects of the clause, so far as his wife and chll- 183— Const. Deb. 2106 DEBATES OF THE CONSTITUTIOI^AL CONVENTION OF VIRGINIA. dren are concerned. If this does not mean he shall not do that, then I do not under- stand what it can mean, because the Legislature is not supposed to pass any laws which can defeat or impair the provisions of the Constitution. I should like the gentleman to explain, merely as a matter of information, what it means here and also what it has meant in the past in the old Constitution. Mr. G-reen: The gentleman is aware of the fact that the Supreme Court has decided that it does not prevent the Legislature from authorizing homesteads. So that it does not mean that. He needs no explanation on that subject. The intention of the committee, and I suppose the intention of the Convention prior to this, in adding those words seems to me to be this: If you will read the former part of this section, you will see that very large and extraordinary and ex- tensive powers have been bestowed upon the General Assembly. For instance, the General Assembly may, in its discretion, determine in what manner and on what conditions the householder may hold for himself such property as he may have com- ing within the exemption. The General Assembly may also determine the manner, and describe the manner in which he shall set it apart. Now, under those large powers in this section, the General Assembly might pre- scribe such manner and mode of settling as to render it impossible of accomplish- ment. They might, by some means adopted by them as to the mode and manner, impair the general right to homestead in all property, both real and personal, which had been provided for; and so the provision was added that the General Assembly should not have the power, in executing those very large duties and powers con- ferred upon them, to utterly destroy and annihilate the homestead by placing around it such difficulties in the setting apart of it as to defeat the benefits intended to be conferred. The Chairman: The question is on the amendment offered by the gentleman from Henrico (Mr. Waddill). The amendment was rejected. Mr. Barbour: I move the following amendment to Section 3: Amend Section 3, after the word "made," in line 8, by adding the following: ''No property so set aside shall be sold or exchanged except by deed signed by the householder and wife where that relation exists, as well as by the grantee, and except the proceeds shall be reinvested, in this State upon the same uses under the direction of the grantee." Mr. Barbour: Mr. Chairman, the object of that amendment is to prevent this homestead law from being made an instrument of fraud, as far as it can be done. It merely provides that a man having claimed a homestead exemption, when he sells it again or exchanges it, it must be reinvested in this State, subject to the same uses in which the first homestead claimed by him was held. I have seen numberless cases of fraud arise under this provision in pursuance of the homestead law. which directs this very thing to be done. It directs that a homestead may be sold and the proceeds reinvested, but it says that the purchaser, the grantee' of such homesteads, need not see to the application of the purchase money, with the result that a man having claimed a homestead, ?oes out and sells it and puts the money in his pocket and does what he wants with it. The creditor whose rights under the theory of the law are merely stayed as long as the house- holder and his wife live and until their children become twenty-one years of age. may then wait until doomsday, and he will never get anything, because the man can leave the State if he wants to, spend the money if he wants to, or do anything in the world with it except keep it for his wife and children, for whose benefit he is given the right to keep it. This amendment, if adopted, will shut that door of fraud, and I hope the Convention, in its wisdom, may see fit to adopt it. DEBATES OE THE CONSTITUTIOXAL CONVENTION OF VIRGINIA. 2107 Mr. Green: Mr. Chairman, I simply desire to call attention to the fact that that provision makes every man who is the head of a family a trustee for the investment of that property for all time, and utterly destroys the possibility of ever selling it under any circumstances, because no man would buy a piece of property and as- sume a trusteeship absolutely. If it should be invested for all time in this State, it Y/ould prevent the transfer of the homestead under any circumstances, and to that extent would cripple it. Mr. Barbour: Mr. Chairman, the objection raised by the gentleman from Dan- ville (Mr. Green) that it would put on the grantee the duty to see that it is prop- erly applied is a duty that is put on everybody who ever buys a trust. They do not have to see that the Investment remains good forever. They simply have to use or- dinary prudence and see that the property is fairly invested. It is not an unfair duty to impose on the purchaser. The Chairman: The question is on the amendment proposed by the gentleman from Culpeper. . The amendment was rejected, there being, on a division, ayes, 11; noes, 40. The Chairman: Are there any further amendments to Section 3? If not, the Secretary will read Section 4. Section 4. Nothing in this article contained shall be construed as invalidating any homestead exemption already claimed under the provisions of the former Con- stitution, but the same shall be hereafter held and disposed of under the conditions and provisions of this article; and the provisions of this article shall be liberally construed. Mr. Blair: I propose to following as an independent section to come in after Section 4: The word "householder" or "head of a family," as used in this article, shall be construed as to include both males and females, Mr. Blair: Mr. Chairman and gentlemen of the committee, I simply offer that section so as to settle the question in the State of Virginia as to who can claim homestead exemption. I do not suppose there is an attorney who has ever practiced at the bar of this State but who has had cases where a woman was rightfully entitled to claim the homestead, and under the same circumstances under which the husband or man could have claimed it, but she was prevented from claiming it, under the de- cisions, or rather the lack of decisions, in the State. Now, I believe there is a de- cision in the District Court of the United States holding that a woman can claim it. I do not suppose there is any question as to her moral right to claim it under the same circumstances as a man, and I think the Constitution should settle the question. The amendment was rejected, there being, on a division, ayes, 22; noes, 29. The Chairman: Are there any further amendments to Section 4? If not, the Secretary will read Section 5. Section 5. The General Assembly Is hereby prohibited from passing any law staying the collection of debts commonly known as "stay laws;" but this section shall not be construed as prohibiting any legislation which the General Assembly may deem necessary to fully carry out the provisions of this article. Mr. Meredith: I move to strike out all the five preceding sections. I do not propose to discuss It. I know the views of the body, but I think It Is a wrong prin- ciple. The Chairman: The gentleman from Richmond city (Mr. Meredith) moves to strike out Sections 1, 2, 3, 4. and 5. The motion was rejected. 2108 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. The Cliairman: The Secretary will read Section 6. HEIRS OF PROPERTY. Section 6. The children of parents, one or both of whom were slaves at and during the period of co-habitation, and who were recognized by the father as his children, and whose other was recognized by such father as his wife, and was co- habited with as such, shall be as capable of inheriting any estate whereof such father may have died seized or possessed as though they had been born in lawful wedlock. The section was agreed to. The Chairman: The Secretary will read the next section. ARTICLE . Sale of Intoxicating Liquors. Section 1. First, No intoxicating liquors shall be sold in this State without a license therefor first obtained. Second. No license to sell intoxicating liquors in quantities of less than one gal- lon, or to be drunk at the place where sold, shall be authorized or granted in any town or county of this State for a period of more than twelve months, nor without the written request of a majority in number of the legally qualified and registered voters resident in the town, or in the precinct of the county wherein such liquors are intended to be sold who actually voted in the last preceding regular election in such towns or in such precinct. Third. Nothing herein contained shall be construed as in any way interfering with the local option or dispensary laws existing in this State at the time of the adoption of this Constitution, or as preventing the Legislature from prescribing additional requirements, or from passing or authorizing other restrictive laws, rules or regulations, touching the sale of intoxicating liquors, in addition to the require- ments hereof, or from authorizing the sale of such liquors under the direct super- vision and control of local public authorities. Mr. Quarles: I wish to offer a substitute for Sections 2 and 3 of this article. The Chairman: The Secretary will first read the substitute. The Secretary: The member from Augusta (Mr. Quarles) proposes as a sub- , stitute for Sections 2 and 3 the following: The Legislature shall have the full power of enacting local option or dispensary laws, or any other laws, controlling, regulating or prohibiting the manufacture or sale of intoxicating liquor. The Chairman: The gentleman from Warren (Mr. O'Flaherty) offers an amend- ment to Section 2. The names of which voters shall be posted ten days at the court-house door of the county, and also in some public place in the precinct or town wherein liquors are Intended to be sold. At this point Mr. Walker took the chair. The Chairman: The gentleman from Warren proposes to insert the amendment which has just been read as an addition at the second paragraph of the article. Mr. O'Flaherty: My amendment is to add the following words: "The names of which voters shall be posted for ten days at the court-house door of the county, and also in some public place in the precinct or town where such liquors are in- tended to be sold." Mr. William A. Anderson: Ten days before what time? Mr. O'Flalierty: Ten days before the license is granted. If there is any doubt about the language as to the time at which it shall be posted, I will insert it. It DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE A'IRGIXIA. 2109 refers back to the language in the section, but I am perfectly willing that should be perfected. I do not intend to make a speech on this subject^ but simply to call the attention of the committee to the fact that if we are to put this power in the hands of petitioners or voters, the public ought to know who these petitioners are. I am a friend of temperance, but I am not willing that this provision shall be inserted in the Constitution as it is now reported by the committee, for the reason that it is possible for any bar-keeper to go around in the average community in the State of Virginia with w^hiskey in his saddlebags or a whiskey bottle and money in his pocket, between sundown and sunup, and get the signatures of enough petitioners to have the court act on his application. In other words, I think that men who put their names to a petition saying that a bar-room should be established in the com- munity ought to be willing to have their names posted in a public place in the same community. I have talked with a good many temperance people on this subject, and they fully agree with me that this Barbour-Quarles resolution, as it is called, and as reported here, is defective in that particular. I live in a local option town and dis- trict. Just recently, I understand, an attempt was made to have an election. As we all know, a certain number of petitioners must be gotten to petition the court to hold an election; and a number of men signed the petition, and when certain gen- tlemen got hold of the petition and were about to publish it in the county papers, we found the men took their names off as fast as rats would get off a sinking ship. They did not want their wives and friends to know that they were petitioning the court for an election for this purpose. If a man is in favor of a liquor license being granted, he ought to have the man- hood to have his name posted in a public place. I say, again, it is possible for a man to go around at night and get a petition for almost anything. As some one has said, and as I believe was done in the General Assembly of this State once upon a time, one gentleman from Augusta got up a petition to have another gentlemaji hanged (laughter), and it could have been signed, perhaps, by a majority of the people of that county. I do not refer to any present state of affairs in Augusta county! Mr. Carter: When is that petition to be circulated? (Laughter.) Mr. O'Flaherty: I do not know. If you get it up we will see about it. I want it distinctly understood that I am not endeavoring to make fun of this provision, because I shall, as I see it now, vote for it if the amendment is adopted, but I am not willing to put the people of Virginia in a worse position than they are in now. It is no hardship upon a man if he wants a saloon to be established, and places his name upon a petition that that petition should be posted in the community where the saloon is to be established, so that everybody may know w^hat stand he takes; and if he does not w^ant to put his name on the petition, he does not need to do so. I talked with a gentleman some time ago, who said that he was going around getting up petitions to send here to memorialize the Convention, and it occurred to him during the time he was getting them up that here was a defect that was so apparent that he absolutely stopped and sent in his petition without getting any more names, because he felt he was not sure it ought to pass in that shape. I do not want to discuss the main issue. It is not my fight; but if it is to be enacted into the organic law of this State, then it ought to be so perfected that It will be effective. I was about to offer an additional amendment that this should not preclude the court from passing upon the fitness of the person and the suitableness of the plac'j, and all that; but that is covered, I see, by other provisions of this article wherein it states it does not prohibit the General Assembly from prescribing addi- tional inhibition. Mr. Barbour: I suggest to the gentleman from Warren that the point he Is mak- ing at present Is also covered by the third sub-section. 2110 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. Mr. O'Flaherty: That may be true. I concede that is possibly true, but that might be said of the whole subject matter, the Legislature could deal with it; but I think this is so vitually necessary that it will work for the benefit of temper- ance. It is easy in a community that is now absolutely free from bar-rooms for a man to go around and get a petition, and come to the court and say, "I have a majority of the people of this community; I want the court to grant the license"; and I say that without this amendment instead of this provision being in the interest of temperance it is against it. If you do not give publicity to this petition, you will find that the people have put in the organic law, where they cannot change it, the most detrimental and deleterious provision for temperance that has yet been devised. I say with due respect to the temperance people, to the gentlemen who got up this provision, I have talked with gentlemen who are high in the councils of the temperance movement, and they agree with me on this subject. I am speaking in the interests of temperance. I am not trying to load it down with any provision in order to defeat it, because I think it ought to stand on its merits; but in the in- terests of temperance I do not think the opportunities ought to be given to a bar- keeper to go around at night and get signatures to a petition and then to be per- mitted to establish a bar-room in some place where there may not be bar-rooms now, because, I take it, that the petition of the majority of any of the voters in any pre- cinct or town would have very great influence upon the judge of the court that would grant the license, and I do hope this amendment will be adopted, even though the rest of it might be afterwards voted down. Mr. Lindsay: In view of the ease with which signers to a petition are obtained, would not an amendment of this kind meet the objections which the gentleman from Warren urges: "No license shall be granted against the written protest of a majority in number of the legally qualified and registered voters?" That would give to the temperance people an opportunity to obtain a majority of signatures against the granting of licenses, if such majority actually exists. I desire to offer that amendment. Mr. O'Flaherty: I think gentlemen will see that the vice in that is what the temperance people have claimed heretofore, viz., that the burden is upon them to keep the saloons out. Mr. Lindsay: It is not a burden, though, from your statements, and I agree with your statement. Mr. O'Flaherty: I wish to call your attention to the fact that the temperance people of the State desire to shift the burden to the men who seek to obtain the license, and in that I think they are right. The burden ought not to be all on the temperance people. This is in the line of local self-government, and nobody can say anything against it on that account; but if I understand the amendment of the gentleman from Albemarle (Mr. Lindsay), the effect of it would be to shift the burden, and it would be similar to the local option election. Mr. Lindsay: As I understand, though, it is not a burden. I agree with you fully in the contention that the securing of signatures of petitions is an easy matter. A petition was gotten up in Augupta to "elevate a lawyer to a high position." I be- lieve that was the wording of V e petition, and when it was investigated it was found to be a proposition to hang him. If it is true that you can secure the names to a petition with ease, and you \s ant to take away from the bar-keeper the oppor- tunity to go around at all hours oi the night and obtain signatures, then I say that advantage should inure to the tenperance people; that they should have the ad- vantage of taking around the petition, and if the majority of sentiment in that com- munity is against the sale of whiske)', I would give to the temperance people an op- portunity to obtain a fair expression of that sentiment. DEBATES OF THE COXSTITUTIONAL CONVENTIOJT OF VIKGIiv'IA. 2111 Mr. O'Flaherty: You would have a contest there between two sides getting up petitions. Mr. Lindsay: But every advantage would be given to the man who was taking around the petition. The whiskey people would not know where the temperance people were working. They would get the different names, and the whiskey people would not know where to check-mate them. If the proposition is reversed, the same would be true the other way, that the whiskey people would have the opportunity to carry the petition, without an opportunity on the part of the temperance people to know when, or where, or upon w^hom they were working. I say we will shift that It is not a burden, but an advantage to the temperance people. Mr. Turnbull: I desire to make a suggestion before my friend from Warren proceeds, if he will allow me. I have an amendment I desire to offer to the first part of the section, and if it is adopted, I think it will answer the purpose that the gentleman wants to get at. Mr. O'Flaherty: I will finish what I have to say, and then my amendment may be voted on first, and then your amendment will come up if it seems to be of ad- vantage. I wish to read my amendment, at the request of the gentleman from Petersburg: . . The names of v/hich voters shall be posted for ten days prior to the time appli- cation shall be made for licence at the court-house door of the county, and also in some public place in the precinct or town where such liquors are intended to be sold. I wish to say in reply to the gentleman from Albemarle (Mr. Lindsay), and then I shall be through, that I get rid of the difficulty he speaks of by precluding men from putting their names upon this petition unless they are willing for every- body to know it. I say this puts a burden upon the man who wishes to establish the saloon, and it gives publicity to the names of the petitioners or voters, and if a man does not want his name to appear, he is not likely to sign the petition my friend refers to. Therefore I think my amendment would be better than the suggestion made by him. Mr. Lincoln: This petition to the court is a matter of public record, is it not? And if so, would it not be subject to publication by any person in the county who desired it; and does not the gentleman think that the temperance people in the community would see that the names that were signed to the petition for a liquor license were published in the county? Mr. O'Fla-herty: I will answ^er the question by saying that under these provisions I do not believe anybody would ever see a petition until the session of the court. A man could absolutely hold the petition in his pocket until the last day and you would have no access to it whatever. Mr. Lincoln: But the temperance people would probably let it be known that that list would be published after it was presented to the court. Mr. O'Flaherty: I do not think that would have the same effect as the other proposition, though. The man could keep the petition in his pocket until the very time of the granting of the license. It would be absolutely secret in the hands of the man seeking a license for a saloon. Mr. Turnbull: My fimendment Is to the second sub-section of the a.rticle. The second reads: No license to sell intoxicating liquors in quantities of less than one gallon, or to be drunk at the place where sold, shall be authorized or granted in any town or -county of this State for a period of more than tv/elve months, nor without the written re- quest of a majority in number of the legally qualified and registered voters resident in the town. ^113 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. My amendment is to strike out the words in line 7, "without the written request of," and insert the following: "Unless the court to which application be made for license be satisfied by proper proof that a majority in number of the legally qualified and registered voters," etc., so as to make it read as follows: "For a period of more that twelve months, or unless the coun to which application is made for license be satisfied by proper proof that a majority in number of the legally qualified and registered voters resident in the town or in the precinct of the county wherein such liquors are intended to be sold," and strike out the balance of the section. I wish to say a word, Mr. Chairman, in explanation of my position in regard to the matter. So far as I am concerned, my people are not directly interested in this matter, except from the point of view I am going to call to your attention. There has been no liquor sold in my county for fifteen years, and that condition of things was brought about in the manner I wish to detail to you in as few words as possible. In the town in which I live, about fifteen years ago the conditions became so bad on account of the bar-rooms, that the bar-keepers themselves and the people of the town asked the court not to grant any license within the corporate limits of the town. That was rather a peculiar state of things, but nevertheless it was a fact. Thfe court then refused to grant a license, and then there came in from the outside of the town, outside of the county even, others who were so anxious to sell liquor in other towns that they were willing to make application to the court for that pur- pose, notwithstanding the fact that the parties who had prior to that time been bar- keepers there, and the people of the town had made up their minds they did not want it. The effect of not granting a license there was so great — officially, I mean — that it spread out in the county, and the bar-rooms in the county were gradually closed up. Now, what was the result of that? The result was that these same people from the outside, notwithstanding the people of my county did not want the license, would come there to make applications to sell it at a particular place, and would prove they were people of good character, and that the place was as suitable and convenient as any other, and the court would refuse to grant a license because the people of our county did not want it. An appeal would be taken to the Circuit Court, and the judge of our court, in accordance with the spirit of the law, would be obliged to decide that if the applicant showed he was a fit person and the place was a proper place, the decision of the County Court should be overruled and a license should be granted. That decision was made because the spirit of our law was to get revenue from this license; and under the law a man only had to prove it was a suitable, fit and convenient place in order to entitle him to a license,, notwithstanding the oppo- sition of the people in the community to it. Local option, and the expense of local option, was forced upon the people In my county at the instance of these people, who, in a number of cases, did not live In the county, and I undertake to say that the only persons in my county or in my town now who want to sell liquor and who would be willing to put that evil upon our people, and who would make application for a license, if they thought there was any chance to get it, are persons who reside outside of it. As I understand it, the amendment recognizes the fact, as I believe, that there is not an opponent of the sale of liquor or an advocate of the sale of liquor in the country who does not admit that these bar-rooms in the country are an evil, not only to the morals of the community, but an evil that directly affects the business interests of the community; and recognizing it as I do, not only as an evil, but as a nuisance, it has piled up the criminal expense of the State and materially affected the interests of those communities, I submit that those people who recognize the fact that it is an evil should not have the evil put upon them unless they want it; that the present condition of the law should be reversed, and that the court, in granting DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 2113 the license, should have the discretion and the power to decide upon this question aa to whether the people of the community want it, and if they do want it, to grant it to them, but if they do not want it, it should not be granted against the protest of all the good people of the community in which the effort is made to establish that evil upon them. That is my proposition, and, occupying that position, I feel this amendment should be adopted, and this principle should be inserted in the Constitution of Virginia for all time. That will recognize the principle I lay down, that the communities in which this evil is attempted to be put upon them should have a voice in saying whether those evils should be driven away from there or not, and that the State of Virginia, in order to get revenue out of an evil, should not put it upon people who do not want it. The present law puts upon those people the necessity, every time an out- sider comes and makes application, of having an election to put it out. Now, I say they ought to satisfy the court before they put that evil upon those communities that the people want it. That is the principle I would insert in the Constitution. I want to ask what harm is there in inserting in the organic law such a principle as that? Is there any man in this body who does not recognize this evil? Put it to your own communities and your own people. If they want this evil, let them have it, in order that the State may get the revenue; but if they do not want it, I submit there is no harm in asserting the principle in the Constitution that no people shall, against their protest, have this evil put upon them, but that there shall be put upon those who undertake to fasten the evil upon them the necessity of showing that these people do want it. Mr. Portlock: If this is an evil, and undoubtedly it is a general evil through- out the State of Virginia, why not offer some amendment making a general law for its prohibition as to the people at large instead of some particular communities? Mr. Turnbull: I do not do so because of the fact, as I understand it, that some people differ from what I think. I say, if there are some people in the State who want this evil, let them have it, but do not put it upon the people in my country who do not want it. Under the present law, at the end of two years you can have another election and decide what the people wish in reference to it. This provision would do av/ay with the necessity of that, because it would submit the matter to the court, and there is not a judge in this land, in my opinion, who would not be glad to grant the wishes of the people where he knows the sentiment of the people, and a large majority of them, of all interests, is against this evil. He would be glad to have the opportunity to pass upon that question and deny the application if he was satisfied the people did not want it. Mr. Carter: Would not the very best evidence the judge could have, if he were going to find out the wish of the majority of the people, be the petition, signed one way or the other, and would not that be used for one side or the other in order to present the case? Mr. Turnbull: I do not think so, because if you are enabled in court to pass upon this question in a judicial manner, just like any other question, people could come before the court and represent the facts on either side intelligently and let the court pass upon it intelligently. Mr. Braxton: How far ought the court's opinion on that matter be reviewable? I ask the question for information. Mr. Turnbull: The court's opinion on that matter would be reviewable in such a manner as the General Assembly might prescribe, so as to give the people the right of appeal, just exactly as they have it now if they want it, or in euch other manner as the General Assembly may prescribe. Now, gentlemen of the committee, that is my view in reference to the matter, and being of that view and that opinion, I am going to support this resolution, be- 2114 DEBATES OE THE COISrSTITUTIOXAL CONVENTION OE VIRGINIA. cause, so far as I am concerned, I see no harm in it. So far from there being any harm in it, I think it would put the matter in exactly the position where it should be put, and it would put in the proper light, the application of the parties to sell liquor, because they ought not to be allowed to force this evil upon people unless they can show a majority of them do want it. Mr. O'Flaherty: You and I agree as to the defects here and as to what we should get at; but if I understand you aright, your amendment means that either side or both sides would get up a petition, because you would have to satisfy the court that one side or the other had the majority; but it would not give publicity to the names on the petition until the case was called, perhaps. I want to get with you if I can on this, because we are after the same thing. Do you not think it would be better to let the whole burden, as my amendment puts it, be upon the man who is seeking to establish the saloon, and also at the same time give publicity because of the fact that after it is done the whole matter is left to the court? Without your amendment by the very language of this act, it is left to the court to determine whether they have a majority or not; so it seems to me my amendment is preferable, because it puts the burden upon the people who want to establish the bar-room, and also gives publicity. Mr. Turnbull: If this amendment is adopted, not a word is said about petitions, but it just leaves the matter to be passed upon by the court like any other question is passed upon , and the mind of the court would have to be settled in some way with reference to it. I think my friend's idea of publicity would be accomplished entirely by the fact that these parties would have to go into court with the names of these signers, if they have a petition on either side, and that would give them publicity sufficient to prevent the thing being gotten if a majority of the people really did not want it. I did not say anything in reference to my amendment as to the latter part of the section. That is to strike out the words "voting at the last election" because it might be that people have not taken any interest at all in the last election, and have not voted. I think that part of the section is wrong, and should be stricken out. Therefore I move to strike out the words beginning with "who" in the latter part of that section, where it says "who voted at the last election." Mr. Carter: Mr. Chairman, I thought if there was one subject that we could not by any chance get into a Constitutional Convention, it was the subject of the regula- tion of liquor licenses. I thought the powers of the State that have been exercised by the General Assembly for so many years under the police power were universally recognized as peculiarly within the province of a General Assembly, and altogether outside of and beyond such matters as we are called upon to consider. I venture to say there is not a man in this body who ever had a question asked him about this matter during his canvass for the seat he occupies. It was not men- tioned, so far as I know, in any newspaper, or at any street corner or cross-roads in the county, and to my mind it is utterly out of place in this Convention. That would be far enough to go in our decision as to whether or not we ought to entertain this sort of resolution. As to the amendment offered by the gentleman from Warren (Mr. O'Flaherty) to publish or post a list of all those who sign an application for the sale of liquor, shall we put that in the Constitution of Virginia? If so, shall we state also in there how long that list is to be published, how many days it is to stay there, at how many places in the counties or districts it is to be put up, whether or not if when you stick it up it is a rainy day, and it is washed down, it has to be put up again in so many days? Does not that show the impropriety of putting this sort of provision In the fundamental law of the State? Not only that, but I say, Mr. Chairman, it is a dangerous thing to publish such DEBATES OE THE COXSTIIUIIOXAL COXYEXIIOX OE VIHGIXIA. 2115 a list, and it is highly improper. Why one of the dangers has been described by the- gentleman himself. He said they published a list of people who signed a petition to vote against a local option law, and the women got after the men so strong that they had to seek cover, and stand not on their order of their going. I say he himself poses as an awful example of the terror which may be struck into the male breast by such proceedings as those, and that that perhaps explains a thing that I. haye been wondering at ever since I have known him — how a man of his attractive per- sonality and individuality could have so" long remained a bachelor. Ke has been, afraid of the women. I doubt not that some fair maiden is now sighing and shedding tears on account of what she has been deprived of by reason of that kind of thing. (Laughter.) Mr. Chairman, I expect there is more than one. I expect there are three or four. Y/hat would become of these poor fellov%-s that were put on the list? The v/omen would be after them. They would be prayed for in the pulpits on Sunday as people almost beyond redemption. It would destroy^ Mr. Chairman, the secrecy of the ballot, where it is most needed. I think his amendment ought not to prevail. So far as the gentleman from Brunswick (Mr. Turnbull) is concerned, it seems to me that the present local option law in the State gives him all the remedy he could desire,, and certainly all, he ought to have. I will say that the recommendation of the ma- jority of the committee— though there was but a bare majority of one, six out of the eleven members signing one report and five the other — here carries with it, to my mind, some evil consequences that are perfectly patent and apparent, and need not take more than a few minutes to be considered. The man who wants to get a license to sell liquor is turned loose just before the- time he applied for it, with a petition to go by himself to see the voters of his dis- trict. He may go, and some of them will go, with a jug in one hand and a petition in the other. A man will sign that paper who otherwise would never think of get- ting drunk, and would take more than is good for him. There is a certain class who could not be approached in that way, for the jug would not get them. There are some more esthetic and more dainty in their tastes. They may be approached with a wine glass, with flowers on the side, with mint and good liquor in it, with a strawberry on top, and . if that were the case, I would be afraid to trust the virtue of the gen- tleman himself who introduces this resolution. (Laughter.) And then, after having signed that paper, poor, weak human beings that they are, under the inducements and enticements and blandishments brought to bear on them, they go home, and their wives or their sweethearts get after them, and they say, "Oh, I did not know what I was doing; that fellow talked to me so much, and confused my head so, that I did not understand it, and the thing is not properly there." So there will be liti- gation, and a case in court, and every application for one of these licenses will lead, or may lead, to half a dozen law-suits. Why, instead of reducing the courts, and having twenty-four court districts in this State, you will have to increase them. Mr. Barbour: The gentleman stated that after having signed one of these peti- tions, and going home, he would have to make excuses as to vv'hy he signed it, I simply want to ask the gentleman if he had that experience when he went home after having signed this minority report. (Laughter.) Mr. Carter: 3.1r. Chairman, that is the most unfair question that I ever had asked me in my life. (Laughter.) It may be. if my wife was here in Richmond, and as close to me as is the wife of the gentleman from Culpeper to him, that T. too. would be afraid to vote my sentiments. (Laughter.) There is another phase of the question. ]\Ir. Chairman, which should not be lost sight of. We are asked to attack an interest in our State, and it is an interest, and will be so construed, whatever you may say to the contrary, which is influential, compact, and well organized. We are asked to put another weight upon this vessel ^116 DEBATES OF TPIE CONSTITUTIONAL CONVENTION OF VIRGINIA. that is now loaded to its gunwales. We are asked to jeopardise whatever suffrage plan we may adopt. We are asked to jeopardize whatever scheme of economy may go through this body; we are asked to jeopardize all the improvements, if improve- ments there be, and there are many that are to be put into this Constitution, for this measure. And if I were in favor of it as an abstrct question, I would say: "The sacrifice is too great; the price we may have to pay is too high; we may lose all by grasping at more than we can safely get." The gentlemen who advocate this pro- vision feel the force of that view. Ah, it" is said, "Submit it separately." Will that remedy it? I fear not. I would rather submit it separately than to have to vote on them together, but when you get the average man to violently oppose one section of this Constitution, he is mightly near in that frame of mind when he says, "One bad, all bad." We will lose by it thousands of votes, and these gentlemen who want this temperance legislation will go back, perhaps, to the very suffrage law that now exists, and which has often defeated them in their local option contests. It is unwise. It is the rankest intemperate temperance I ever knew. It seems to me, Mr. Chairman, for every reason of expediency, on the ground of the proper kind of a Constitution we ought to make, and on the ground of the evils that may come from it, this should not be put in our organic law. It is an experi- ment, a new and untried field. So far as I know, no Constitution in the United States has this provision in it. A Constitution is not the place to try experiments, and a Constitution is not the place to fasten hard and fast rules which cannot be changed, cannot be modified, cannot be repealed, if their operation shows the neces- sity of it. I hope, Mr. Chairman, that the dangerous amendment offered by the gentleman from Warren will fail, and that the substitute offered by the gentleman from Staun- ton will be adopted. Mr. Garnett: Mr. Chairman, I want to say that on this proposition I stand very much in the attitude of the member from Brunswick (Mr. Turnbull). In my own county, the county of Mathews, about twelve years ago we had to get rid of whiskey because of its evil influences, and from that time until now the temperance element in my county has predominatted to such an extent that the whiskey element has never made any effort to reverse the vote. Before that action in every little town in my county there were two or three whiskey shops, and in the whole county there were about thirty or forty whiskey stores in a population of about 8,000 inhabitants. At one time, sir, the people of my county engaged in the fishing and oyster industry thought a man could not go out on the oyster rocks or fishing grounds and properly protect himself against the exposure incident to those callings unless he had whiskey with him. That was the custom that prevailed about twelve years ago. The result of that condition was that we had in public oflacials absolute failures and defaulters, who mulcted the county treasury for thousands and thousands of dollars; and one of the best schools I have ever known in the State of Virginia, on account of unfortunate intemperance at the head of it, was destroyed in our county. Then the people raised their voices and said, "We must get rid of this evil." In the first fight we had there, sir, the whiskey element beat us overwhelmingly; but under the law we had a right to renew that fight in two years; and in my own precinct, the largest whiskey precinct in the county, where we have a registered vote of 700 — it was 3 o'clock in the afternoon before a single wet ballot was cast, and we beat them seven to one. From that time to this temperance has prevailed tthere. Of course, we have some speak-easies there; some scoundrels persist in that; but catch them, and we mulct them in such heavy fines that they do not try it often. I want to say, sir, that we went to work to better that condition, and from that day until now the respectable element of that county is as a unit as to the sale of whiskey. DEBATES OE THE COIN STITUTIOXAL COXVEXTIOX OE YIHGIXIA. 21U I want to make the further statement, that I was prosecuting attorney of that county for fifteen years, and I have been its judge for the past sixteen years. Mr. Carter: I desire to ask if the splendid condition to which your county hai arrived has not been done under the present law. Mr. Garnett: Certainly, under the law as it now stands. Mr. Carter: Then you have achieved your independence under the present law? Mr. Garnett: We have. Mr. Carter: I want to ask another question, if the gentleman will permit me. Do you not believe if a proper suffrage law is passed for the State of Virginia, that the white people of this State will carry your good institutions into effect all over the State, and that you do not need the provision? Mr. Garnett: I cannot tell whether it will or not. I want to say for the benefit of the negroes in my county that they assisted the whites in getting rid of that evil. I want to tell you a pretty good joke in regard to that matter. I had a negro living on my place by the name of Bob Brooks. We called him "Moonshine" because he was an Albino, you know. (Laughter.) I tried to persuade that fellow to stand by me and vote with us in "this fight against the evils of whiskey selling. He was a man of religious principles, and an intelligent man, of fine moral character, and an exhorter in the church, but I could not persuade him to do it. He was one of these fellows who believe that every man has a right to do as he pleased, you know — and I think that is one of the most damnable doctrines on earth. It is all right for him to do as he pleases as long as he don't get on my toes; but when he does, I will lift him off. (Laughter.) Well, I couldn't persuade him to go with me in that efCort which we were making. Finally we got the colored preachers to help us in the fight down there, and I want to say, to their credit, that the ministers of the gospel of all denominations and all colors stood together in that fight. Mr. Carter: How much did it cost you to get the colored preachers? (Laughter.) Mr. Garnett: It did not cost one cent; not a solitary dime was spent. I want to say to the gentleman that we know very little about spending money down in my county in our elections. I have held public office there for thirty-two years, and it has never cost me one single, solitary dime from the day I started in until now, I said I used all my persuasion of tongue and brain to persuade "Bob Moonshine" to help in local option, but I could not get him to do so. Finally, we had a meeting at the courthouse, and we got the colored preachers there talking on the subject. It so happened that some of the whiskey dealers down there heard of it, and they said, ■'We are going to rotten-egg these niggers if you allow them to ^o into the court- house." So we went to the church and threw the church open and said, "Come in here, and we will see whether you will be rotten-egged or not." Now, Bob Moon^ shine was always on hand whenever the preachers were to speak. He was there, and when the meeting was opened the preacher called upon Brother Bob Brooks to lead the meeting in prayer, and being a religious man, he could not pray for the success of whiskey, and he had to pray for the success of temperance. And they converted him, on his knees in that church, to the cause of temperance. Now, gentlemen, I want to say to you that for three years and a half from the time we established local option in my county the jail door keys of the jail were not turned in the lock. We did not have a man go Inside of them, and the result haa been that in that little county or 8,000 inhabitants — nearly 9,000 inhabitants It has now — you will find, if you will examine the auditor's books, the criminal expenses last year amounted to $99 and some cents. It is one of the three counties in the State of Virginia w^hich have drawn out of the public treasury less than $100 for criminal expenses. I want to reply to my friend from Hanover (Mr. Carter), if I can, upon the posi- tion he has taken here. He has complimented the women of the State of Virginia as 2118 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. I never before heard them complimented by saying that they all favor thia amend- ment that we propose to put into the Constitution. Mr. Carter: How about scaring the gentleman from Warren? Mr. Garnett: I do not know how much it has scared him in this matter; but I do not want to treat it as a trivial matter. I believe there are people in the Com- monwealth of Virginia whose voices should be heard upon this matter, and they are the mothers and the daughters. On all questions of morality — and I do not claim to be, par excellence, a moral man — and upon all questions of that character, I stand with the women and the preachers of the State of Virginia. As the gentleman from Hanover says, none of these questions were discussed during the campaign; but I want to ask you, sir, if there has been any such deluge of peitions on any other question as there has been pouring into this body from every country and every neighborhood and every city of the State as there has flooded this Convention in favor of a provision of this character. What does it mean? It means that the public conscience of the State has been aroused to the evils of this iniquity in such a way that there has been a united public opinion concentrated upon it, such as I have never known in all my life upon any other question. There is no respectable minister of the gospel in the State of Virginia; there is not a mother that I have known or heard of who is not praying and working for some amendment of this sort that will rid the people of the Commonwealth from the iniquitous influence, the evil influence, that my friend from Brunswick (Mr. Turnbull) speaks of, growing out of this question. Now. how are we to do it? The gentleman from Hanover (Mr. Carter) says it is an untried experiment. In the name of God, gentlmen, it cannot be an experiment. If it is, it is an experiment that was started by Thomas JefCerson him- self in a doctrine which we have all subscribed to, the right of local self-government. We are entitled to that. I am in favor of the amendment proposed by the gentleman from Warren (Mr. O'Flaherty). In addition to the publication of the names, there Is this other pro- tection it would give, that these people who go around with their Jugs and their whiskey bottles and entreat the people to come out and sign their petitions. I am afraid sometimes not very particular as to how many names and whose names they put down on the petitions, and the advertisement of the names would show to the people of the community who are the signers of the petition, and thus prevent fraud in procuring signatures. I say, gentlemen, that this sentiment is spreading over the Commonwealth. Start- ing out twelve or fifteen years ago, 55 counties of the State to-day out of 100 have subscribed to the doctrine of temperance, and they are coming here and asking th&t you shall voice their sentiments by putting this provision In the Constitution. The gentleman from Hanover (Mr. Carter) says you are antagonizing a very strong ele- ment in the community in opposition to your Constitution. I desire to call his atten- tion to the fact that when he says that he seems to ignore this concentration of public opinion by the very best people in the State of Virginia in favor of it. I want to say further that at the meeting of the Anti-Saloon League the other night these gentle- men all favored this proposition; and one of the most distinguished divines in this Commonwealth, who was present, said he would advise and urge his friends to vote for the adoption of the Constitution. I do not think that shows a very illiberal spirit I think the people have confidence in us, believing we are sent here to do the best we can, and that they will support the results of the deliberations of this body. So, in making your calculations as to the Influences that will work against us In the event we adopt this amendment, do not forget on the other side that there Is rising up a mighty wave of public opinion of the best people in the State of Virginia favorable to it, to which we ought to respond; and not only that, but we know that the influ- ence of the whiskey business is evil, and only evil. Tell me it is an experiment mak- ing an effort to get rid of it or to keep it within bounds! DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OF YIEGIXIA. 211d Mr. Chairman, I hope the resolution of my friend from Warren (Mr. O'Flaherty) will be adopted. I shall vote for that, and if it is defeated, then I shall vote for the proposition of my friend from Brunswick county (Mr. Turnbull. (Applause.) Mr. O'Flaherty: Mr. Chairman, I wish to make my acknowledgment to my dis- tinguished friend from Hanover (Mr. Carter) for the bouquets he threw at me. I am glad, however, that I am on the side of the good women of the State in ihis matter, as my friend has said that I must be on the right side. I think that was a very pertinent question that was asked him by the gentleman from Culpeper (Mr, Barbour), as I see he has signed his name to the minority report, and that in itself indicates that we ought ever to be able — and I do not mean this as applying to the gentleman — to have our acts such that the sunlight of publicity may shine upon them and that we may not be afraid. I do not believe this is a question that we ought to settle here to-day by laughter or by fun and frolic. I would not at- tempt, in a joust of that kind, to pit myself against my jolly, jovial, good-natured friend from Hanover; but I do believe that under this there is involved a principle of right and wrong that is not violative of any of the broad fundamental principles that underly constitution making. I call attention to the fact, gentlemen, that we are treading to-day on new ground, not only the question of temperance, but on the question of corporations, finance and suffrage, that no Convention in Virginia ever trod before. New conditions are confronting us, and we are pioneers. I hope we may not be so lonely as pioneers in this matter. Whoever before had to regard and consider the question of a corporation commission in the Constitution of Virginia? And I call on my friends who have signed that report to witness that they want support for a brand new proposition. When before in the history of the Commonwealth were Virginias called upon to determine whether or not the colored man should be permitted to exercise the right to vote, confronted by the 13th, 14th and 15th amendments? I say there does not lie before us one particle of ground, to the end of our deliberations in this body from now on, that is not new. The consid- eration of the executive, judicial and legislative departments of the government has been completetd, and if we were situated like the people of 1851, we could adjourn and go home. 'Everything for us, I say, is untrodden ground, and there is uncer- tainty in it, but must we hesitate because of that fact? Now, my friend from Hanover (Mr. Carter) says it will jeopardize this Consti- tution to adopt this provision. If I remember correctly he is not in favor of sub- mitting the Constitution to the people anyhow. He made a speech some time ago Mr. Carter: I have not said I was not in favor of submitting it to the people. T argued merely in favor of the power of proclaiming it. Mr. O'Flaherty: I agree with the gentleman on the proposition of the power of proclaiming the Constitution, but I hope he will vote to submit it to all the people. I wish to say that, as my friend has said, this is a two-edged sword, and on the mere question of politics we cannot afford to drive the good temperance people of Virginia from us, and yet they have said they are perfectly willing that the proposition In this article alone should be submitted to the voters of Virginia.. That is fair. If the Convention sees fit, it may submit this question separately; but I do insist on my amendment, that the community may know whether the petition Is a &ona fide one and whether you do have a majority of the qualified voters. My objection to the amendment of the distinguished gentleman from Bruns- wick (Mr. Turnbull) is that you have two counter forces fighting each other, and it is necessary to determine the question of the validity of two petitions, whereas, under my amendment, it is all narrowed down to the question of whether or not the petition gotten up by the saloon man has the majority or not. I desire to say to the friends of this measure on the floor that I hope you will '^120 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. not give it a black eye to start with. Vote for this amendment, because on the ques- tion of how this is determined will depend many votes in this body. I unhesitatingly say I do not think I can vote for this proposition as it comes in, because it will be possible to get petitioners to put a bar-room upon people who do not want it. There- fore I hope you will vote for the amendment I have offered. Mr. O'Flaherty: Mr. Chairman, before the question is put on that amendment I ask to have read a fourth sub-section which the majority of the committee desires to add to the article. The Secretary read as follows: Fourth. The above provisions shall not go into effect nor become a part of this Constitution until and except the same be submitted to the qualified voters under this Constitution residing within the limits of the State affected hereby, at a sepa- rate election held for the purpose, and hereafter to be provided in the final schedule, and be ratified by a majority of those voting at said election. The Chairman: The Secretary will read the amendment proposed by the gen- tleman from Warren. At the end of line 12, in sub-section 2, insert the following^ "The names of which voters shall be posted up ten days prior to the granting of such license at the court-house door of the county, and also at some public place in the town wherein such liquors are inttended to be sold." The amendment was rejected — ayes, 25; noes, 30. The Chairman: The question is on the amendment offered by the gentleman from Brunswick (Mr. Turnbull). Mr. Turnbull: Now, Mr. Chairman, I want to say a word or two further, so that my position in this matter may be fully understood. I want it understood at the outset that I am no fanatic on the subject of whiskey. I take a drink when I get ready. I keep it for my friends at m3^ house. It is from a business standpoint that I discuss this question, because I think everybody else has a right to take a drink whenever he gets ready. I am not one of those fanatics who undertake to control people in that line; but I do think that when the State of Virginia under- takes to license an evil in the shape of bar-rooms in any community, the people of that community should have a voice as to the conditions in which such evils shall be placed upon them. I am not opposed to a man taking a drink when he gets ready, although I have a perfect contempt for a man who drinks more than he ought to and cannot control his desires in that respect. I cannot appreciate how that is. I have never been in that situation. But I want you to understand my position. The people in my communitty demand that before you put this evil upon them you shall let them have a voice in it by requiring the man who makes the application to show to the court that a majority of- the people desire it. The result will be that no outsider can come into my county to make application for a license, because he will know the majority of the people of the county do not want It. He will not go into the community of my friend from Mathews (Mr. Garnett) and annoy his people in that way, because he will know he stands no chance to get a license; but when he goes to the community of my friend from Hanover .(Mr. Carter) and is satisfied the people there do want it. he can make an entering wedge and put it on those people. Mr. Carter: How would the court determine what the majority of the people want? Would it not be necessary to have a majority of the peortle there to testify as witnesses, and would not that include men, women and children? Mr. Turnbull: Not necessarily so, at all. When you want to prove any question do you have present everybody who has any knowledge on the subject? Is there not such a thing as cumulative testimony? When you assert facts and undertake to DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OE TIEGIXIA. 2121 prove them, you are not bound to bring everybody who knows everything about it. I want to i3ut this thing in just the same position that any other matter would occupy before a court when an application is made. Mr. Portlock: Will not your provision amount to prohibition, or if not to a prohibition, to a monopoly on the part oi certain people, residents of your own county? Mr. Turnbull: I am surprised that the gentleman from Norfolk county should ask such a question as that. Have not the majority of the people of the county the right to say Vv-hether an evil shall be put upon them? Is it a monopoly when the majority rule? The very foundation on which this government rests is that it is a government by the people, and a majority of them shall rule. All I want is that when a man makes application for a license to sell liquor the voice of the people in that community who recognize the evil, who know it is a nuisance, shall be heard to say that they do not want it. Let me give you an illustration in regard to the matter again. In my county, as I say^ every application for a license was refused. In the county adjoining mine, the county of Mecklenburg, the judge granted a license to sell liquor at a place just over the border line, and I undertake to say that in the two years in which that bar-room on the Mecklenburg side existed every solitary criminal offense of any importance at all came from that town, and was the result of that bar-room being there. Then the people of my county came down here and got the General Assembly to pass a law that no liquor license should be granted within two miles of that town; and I undertake to say that the prosperity of that town and the people around it demonstrates the fact that I am endeavoring to impress upon this committee that it is an evil from a business standpoint, besides being an evil from a moral standpoint. Mr. Meredith: Would not the third section and the second section of this article be contradictory of each other? The third section says: "Nothing herein contained shall be construed as in any way interfering with the local option or dispensary laws existing in this State." It looks to me as if the third section and the second section were cutting each other's throats. Mr. Barbour: They provide different ways in w^hich to keep from granting the license. That is all Mr. Meredith: But you say "nothing herein shall interfere vvith the general local option law of this State." That prescribes where you can get liquor. Mr. Turnbull: I have never seen this article until this morning about fifteen or twenty minutes before the Convention assembled. Therefore I have had no oppor- tunity to examine the third section to see whether there is this conflict the gentle- man speaks of or not, and, so far as the local option law is concerned, I simply w^ant to reverse the proposition in reference to it. There you have to have a local option for the purpose of getting rid of this evil. I want to fix it so that the evil cannot be fixed upon a community from a revenue standpoint, unless the people of that com- munity want it. In other vs'ords, I want to put on the man who wants to establish the evil the onus of proving that the people of the community want it. Mr. Dunaway: If the gentleman vrill permit me. I wish to say that there is no doubt the gentleman from Brunswick is in harmony with the committee on the general proposition, and this seems to be a question of words. I wT^nt to ask if the proper language to use is that the written application shall be signed by a majority, and what is the necessity of changing the words? I would not antagonize the amendment, but I do not see the necessity of chang- ing the words, and I would like to hear the gentleman from Brunswick on that mat- ter, about the difference in the words, what it is. There seems to be no differenc* in principle at all. Mr. Turnbull: Mr. Chairman. I wish to explain, in answer to the gentleman from Lancaster (Mr. Dunaway), what my idea about it is. and why I offer this 134 — Const. Deb. 3122 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. amendment. It is to accomplish the very object that is intended by the gentleman from Warren (Mr. O'Flaherty), except in a different way. I want to do away with the effect of what my friend from Hanover (Mr. Carter) described so graphically as the way in which these people get names signed to a petition. I want to put it in the power of the court to pass on those questions as to whether the evil should be put upon a community by the granting of a license when it is not desired by them. In other words, I want to put it in the power of the court to examine into the whole matter and then pass upon the question whether the license should be granted or not. If a petition is allowed to come in as the foundation for the license at the request of the majority of the voters, the court would be bound to grant the license, and no inquiry could be made in reference to it. Mr. Bggieston: Your amendment pro'Vides that the court shall be satisfied that a majority of the registered voters are in favor of the granting of the license. Now, a petition is not legal evidence. Would not that necessitate the attendance of a majority of those registered voters as witnesses when the application is made? A court cannot receive anything but legal evidence. So^ would not the result be that an applicant would have to go into court with a majority of the registered voters at his heels when he made his application? Mr. Turnbull: I think not. Mr. Wescott: If the gentleman will permit me, would it not be equally neces- sary, under the proposed amendment, that those who maintained the negative propo- sition should also present the testimony of a majority of the voters as being opposed to the granting of the license; and would it not practically result, if the amendment is adopted, in requiring every legal voter in every magisterial district, whenever this question should be raised, to be present and testify in court in order to enable the judge to determine this fact judicially; and is not that a supposition that is almost beyond seriously contemplating in this body? Mr. Turnbull: Mr. Chairman, in reply to the position taken by my friend in reference to this matter, I would say that in every instance where the applications are made now to sell liquor it is necessary to show a certain state of things. Then you have a fight over the question as to whether they are proper persons or proper places, and proof is introduced in reference to those matters. What is that proof? It is simply the opinion of the people as to whether it is a fit place or not. The testimony is introduced giving the views of the different people as to what they be- lieve in reference to this matter. The idea of my amendment was simply to let the court, in its discretion, examine into this matter in any way that it should think proper, and be able to pass upon the question as to whether or not the people of the community desired this evil to be put upon them. The first thing done by the Legis- lature in Mississippi after the new Constitution was to pass such a provision as this, except that it was more drastic. It required that no license should be granted in any community except upon the application of a majority of the land owners within five miles of the place, and left it in the discretion of the court, just as I propose in my amendment to do, as to whether the license should be granted or not. I think the amendment should be adopted. I cannot see what harm there is In it. You may talk about going around with a jug. You may talk about mint juleps with a cherry on top of them. All this is very nice, and the julep is just as good as they talk about in reference to it. I admit all that, but I say that when an attempt is made to put on a community an evil that affects its business interests find the good order of the community, in my judgment it should not be done without the court being satisfied that the people of that community want that evil, and do not regard it as an evil, and that you should not force those people to go to the expense of having an election, but that you should put upon the man who makes the application the onus of proving that it is desired by the people of the commu- DEBATES OE THE CONSTITUTIONAL CONVENTION OE YIHGINIA. 212o nity. My amendment is simply designed to get at a proper way of ascertaining that question. I know the fact of my own personal knowledge that when liquor selling in my town was prohibited, at first there were many in my employment whose families were in rags, because every dollar that came out of my pocket and went into theirs in the way of wages they earned was spent between Saturday night and Monday morning in the bar-rooms, and their families got nothing. In less than three or four months after the saloons were closed up a great difference was presented in the appearance of these people, and there are many persons in my town to-day who will verify the statement that business increased more than a third in the first twelve months after these bar-rooms closed up. I undertake to say there is not a merchant in my tov/n who does not recognize the fact that the destruction of this evil has had a greater effect In building up my tovvn than anything else that has occurred there, notwithstanding the fact that there are some people there now inside the corporate limits who are insisting that the only way to make a town is to have a bar-room in it. At the time this evil existed there was not a lady in the town or county who was willing to go into the town of Lawrenceville to buy goods without having a man along, an escort to take care of her, and I undertake to say there are ladies all over the county and the adjoining county who do not hesitate to drive into town in a buggy when they want to buy goods of the merchants, whose stores have increased more than ten times the size they were when this evil existed without any fear or chance of being: interrupted by the drunken crowd that used to hang around these bar-rooms. Mr. Garnett.- 'If the gentleman will permit me, I should like to interrupt him to say, on that line, what I forgot to say when I was on my feet before. There were four or five business houses of considerable importance in the town of Saluda, and it was predicted when we drove whiskey out of that town that business would go with it. Since that time we have about twenty business houses in the town, and the amount of business done is five times as great as it ever was before. Be- fore whiskey selling was stopped there no respectable woman could be found on the streets of Saluda on Saturday afternoon even with her husband or friends on account of the obscene or rude talk she would hear. Since whiskey selling has been stopped there has been absolute peace and good order. Mr. TurnbuU: I listened to my friend from Hanover (Mr. Carter) as I always do, with a great deal of interest, because I have the highest opinion of his judg- ment and ability; but when he undertakes to come before the Convention and say that if a certain provision is put into this Constitution, a certain class of people will not support it, it is time for men who think as I do to express their sentiments in reference to that matter. I believe a majority of the country communities of the State believe that something should be done to rid them of this evil fastened upon them by the State. You must take into consideration the other side of that matter, and the people of the different communities who have at heart the interests and the upbuilding of the old State are going to have a voice in saying what you shall do in reference to the adoption of a Constitution when you turn down this most reasonable request that they make. It is not a request to turn down bar- keepers; it is not opposing the liquor traffic; but the State of Virginia has fastened this evil upon our people, and it is simply asserting a principle in the Constitution that the State, in order to get revenue, shall not fasten that principle on any com- munity unless a majority of the people of that community want it. I ask the gentlemen of the Convention, before they undertake to deny to the people the in- sertion of that principle in the Constitution, to weigh this matter well. Gentlemen, I do not speak on this subject without carefully considering it. I have given my best thought in reference to it. I am as much opposed to hamper- DEBATES OE THE CONSTITUTIONAL CONVENTION OE VIRGINIA. ing people in their rights as any man within the hearing of my voice or in the State of Virginia; but when we say, as a simple business proposition, that this is an evil, as is acknowledged by all, which interferes with the business of the com- munity and increases the criminal expenses of the community, and that it is main- tained in order that the State may get the revenue, I do insist that the people of the community who have acquired property in the community and pay the taxes and are trying to have a proper administration of the affairs of the government w^ithout this evil should be permitted to insert in the Constitution a provision that you shall not put it on them or on the people of any other community without a majority of them being favorable to it. Mr. Claggett B. Jones: Before the gentleman takes his seat I should like to ask him if his amendment provides that where a majority of the voters of a pre- cinct request that a person may be granted a license to sell whiskey, that is con- clusive of the matter, or whether, after that is done, the court can exercise its dis- cretion as to whether or not that license shall be granted. Mr. Turnbull: I think not, because the amendment provides that it shall not be granted unless a majority of the voters desire that the license be granted. Mr. Claggett B. Jones: In your argument you said emphatically that the court would have to grant a license where a majority of the voters express their wish that it should be granted. Mr. Turnbull: I said that, in my judgment, under the provisions of this article that was the case. It is not so under the present law. But I said that under the present law where the man proved it was a proper place, suitable, fit and convenient, and that he was a proper man, the court had decided they were' bound to grant a license, because it was a measure for revenue by the State; and each time where an appeal has been taken that has been the decision of the court. Mr. Claggett B. Jones: Mr. Chairman, if I understand that is the purport of this law — and I w^ant to understand clearly just exactly what is intended here — I am very sorry to say that I cannot give my adherence to it. Mr. Green: I wash to say to the gentleman that the provision is simply to ask an additional safeguard against the sale of whiskey, and it does not interfere with any single rule or regulation or safeguard that now exists. It distinctly provides that not only the laws now in existence shall continue in existence, but that the General Assembly shall have the right to add other restrictive measures, bo that, although a man may get a majority of the voters on a petition, 3''et the court must ascertain that it is a suitable place, and that he is a man of good character and a proper man to be intrusted with the sale of liquor. Mr. Claggett B. Jones: Mr. Chairman, I was not speaking as to the provisioR in the report as formulated by the committee, but in reference to the amendment as I understand it offered by the gentleman from Brunswick, I clearly understood the gentleman to state that if it was a suitable place and the man was a fit person, and a majority of the voters of the precinct requested that a license should be granted, the court would be compelled to grant it. Mr. Dunaway: If my friend will permit me, I would say that tbe thing he fears does not grow out of this section, either expressly or by necessary implication. It says that the license shall not be granted without a petition signed by a majority of the qualified voters. It does not say that if that petition is signed by a majority, the courts shall necessarily grant the petition. There is still the discretion in the courts, and there is nothing in the language here and nothing in the language of the amendment of the gentleman from Brunswick that makes it obligatory upon the judge to grant the license. Mr. Claggett B. Jones: I did not misunderstand him at all. I understood the gentleman to say exactly what he did say. I contend that the respectable element DEBATES OE THE COXSTITUTIOXAi COXVEXTIOX OE YIKGIMA. 2125 of a community has the right to rule that community; and when this Convention wants me to put myself in the position of turning my people over to a rabble I do not propose to cast my vote to do any such thing. If it is proposed that the judge shall still exercise the same power he has to-day to refuse a license, even though a majority of the voters of a precinct may sign a petition for the granting of a license, then I should be disposed to vote for this proposition. Otherwise I certainly shall not do so. I have tried to make my position explicit, and I cannot help it if I have not the language to do so. I was not discussing the provision as brought in by the report, but the amendment as offered by the gentleman from Brunswick. Mr. Wescott: Mr. Chairman, I desire to offer the following amendment as a sub- stitute for the amendment offered by the gentleman from Brunswick. I wish, in bringing the matter to the attention of the committee, to direct at- tention to the fact that the amendment in the nature of a substitute which I offer is germane to the amendment of the gentleman from Brunswick, because it aims at establishing a substitute method for the one suggested by him for determining conclusively and satisfactorily the wishes of a majority of the voters of a precinct. The amendment I propose is to insert after the word "precinct"' in line 12 of sub- section 2 of Article on the sale of intoxicating liquors the following language: Provided, however, that the signattire of each individual signing such request shall be acknowledged before some officer authorized hy law to take acknowledgments to deeds, or be proven by at least two witnesses in the same manner that signatures to deeds are required to be acknowledged or proven for admission to record. I do not propose at this time to address myself to the main proposition involved in the suggestion to incorporate this article in the Constitution of Virginia. I expect to do so at a later day. I sincerely hope that no gentleman, knowing that I am strongly opposed to the insertion of this article in the Constitution we are engaged in formulating, will misconstrue the motive with which I offer the amendment I have just sent to the desk. It occurred to me prior to the very suggestive question of the gentleman from Charlotte (^Iv. Eggleston) that the proposition involved in the amendment offered by the gentleman from Brunswick was wholly impracticable, and ought not to be an amendment to be seriouslj' considered in a deliberative body of this character. I assure the gentlemen of the committee that I offer this amendment in perfect good faith, with no ulterior design, with no purpose, if I know myself, save to make this provision an intelligent, intelligible, self-enacting provision in our Con- stitution. That I shall oppose it I frankly admit, but if it is to be adopted, I sub- mit I am entitled, in such suggestions as I may see fit to offer, to as much consid- eration as its most ardent advocate upon the floor of this bodj'. Mr. Chairman and gentlemen of the committee^ I think it is not necessary in detail to do more than has already been pointed out to show that the suggestion of the gentleman from Brunswick is utterly unpracticable, utterly unfeasible, in that in every instance, and throughout every county and magisterial district in the State of Virginia where this question shall arise, if this provision be adopted as an article of our Constitution, and where it shall become the province of a court to determine the wishes of a majority of the legal voters of that voting precinct, every man entitled to vote shall be massed in one controversy, the court green shall be taxed, the voting precinct shall be drained of its male citizens, in order that this solid phalanx, pro and con, may be arraigned in the court-house to advise the county judge by their testimony of their opposition to, or their advocacy of, the issuance of the license. On motion of Mr. Green, the committee rose and the President resumed the chair. On motion of Mr. Barbour, the Convention adjourned until Monday, February ■3. 1902, at 12 o'clock M. 2126 DEBATES OE TIIE CON^STITUTIOi^AL CONVENTION' OE VIRGINIA. MONDAY, February 3, 1802. The Convention met at 12 o'clock M. Prayer by Rev. John Moncure, D. D. On motion of Mr. Green, the Convention resolved itself into Committee of the Whole for the further consideration of the Committee on Preamble and Bill of Rights, the Division of Governmental Powers, and on such portions of the Consti- tution as shall not be referred to other committees, Mr. Turnbull in the chair. Mr. Turnbull: I wish to substitute this language in place of the amendment which I offered on Saturday. It is simply a slight change of the language. Th« substance of the amendment is not affected. Strike out in line 1, page 7, the words "without the written request of" and in- 'sert in lieu thereof the following words: "Unless the court to which the application is made for license be satisfied from the testimony introduced for and against the application that." Strike out all the residue of the section after the word "sold," In line 10, and insert the words "desire that the application be granted." Mr. Westcott: Mr. Chairman and gentlemen of the committee, at the conclu- sion of the deliberations of this body on Saturday last upon the subject now before the House, I was engaged in endeavoring to point out the undesirable and impracti- cal nature of the provision embodied in the amendment offered to the committee's report by the gentleman from Brunswick (Mr. Turnbull). At the same time I was indirectly discussing the amendment offered by myself as a substitute there- for. I submit, Mr. Chairman, that tthe alteration in the proposition of the gentle- man from Brunswick, which has just been sent to the secretary's desk and read, effects no material change in the proposition which he had theretofore offered, and is open to as many and as serious objections, and each and every objection that could have been offered, and which I was endeavoring to make appear existed, as to my original proposition. The proposition of the committee Is that no liquor license shall be issued — I omit some of the esentials because they are not under discus- sion — "without the written request of a majority in number of the legally qualified and registered voters in the town or in the precinct of the county wherein such liquors are intended to be sold, who actually voted at the last preceding regular election in such town or in such precinct." That proposition, it seemed to me, was open to very serious objection, and it was with a view to removing, in so far as was possible, the objections that were inherent in that provision of the committee's report that I directed my amendment. I will not undertake to even summarize what I attempted to say on Saturady with reference to the objections to the committee's recommendation or either of those amendments further than to say, for the benefit of the members of this body who were not present on Saturday, that the proposition of the gentleman from Brunswick unquestionably, indisputably, to my mind, entails upon every voting pre- cinct in the State of Virginia where this question arises the necessity to mass the legal voters, who are either in favor of the granting of liquor license, or opposed to it, in court for the purpose of ascertaining whether or not they favor or oppose the granting of such license. I submit, Mr. Chairman, that if there be any other method In contemplation by the gentleman who has offered this amendment, that It is necessarily impractical and incapable of operation, because it would result in permitting members of the community to come into court and to testify to a matter merely of opinion as to what, in the opinion of such witness, Is the majority sentiment upon this subject In his voting precinct. I shall not address myself at length to the proposition con- tained in my amendment offered as a substitute for the amendment offered by th© DEBATES OE THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 2127 member from Brunswick further than again to recur to this proposition: That if a question of such vital interest to the people of every voting precinct in a county as the granting of a liquor license therein be relegated to the determination of a court upon mere petition, there should be some means determined upon by this body in its legislative enactment whereby the reliability of the names upon that petition can be determined by the court which has to pass upon the question. There is not a gentleman in this body, I take it, who has not had his attention drawn to the absolutely unreliable character of a p.etition, in the various functions which popular petitions have been made to serve, as showing, proving^ or demon- strating any sort of status, from the fitness or qualification of a man to hold office to the highest purpose for which it has ever been used. My mind reverts to ex- periences which I have had since I have been engaged in the practice of my profes- sion in my native State that have demonstrated the proposition for v/hich I contend. But a few years ago there was a motion set on foot in one of the sections of the county I have the honor immediately to represent in this body to secure the passage of a charter of a certain portion of that county as a municipal corporation. I refer to the incorporation of the town of Chincoteague. The representatives of the county declined in a matter which, in the very nature of the thing itself, ad- mitted of such a wide divergence of sentiment and of opinion to act upon the mere request and importunities of certain individuals in the passage of such a charter law, and demanded of the advocates of incorporating that town, that the consensus of the wishes of the inhabitants of that section of the county be demonstrated by a petition to the General Assembly to pass such charter, signed by a majority of the legal voters of that island. Such a petition was furnished to the representatives of my county in the General Assembly, and the act chartering the town of Chincoteague was passed, and the town incorporated. What was the result? Charges of whole- sale forgery were made against the individuals who were most active in getting up the petition. Mind you, gentlemen, I speak not, because I know not, of the extent to which, if any, there was foundation for such charges, but merely to the fact that such charges were made and earnestly insisted upon. It was said, for instance, that whilst the name of every colored voter resident upon Chincoteague island waa to be found upon that petition, as a matter of fact, with the exception of the name of a single individual colored man who did sign the petition, the name of every other colored man upon the Island, attached to the petition, w^as an out and out forgery. The charges and counter-charges did not stop there. The fact that the General Assembly had acted upon a petition purporting to indicate the wishes of that community which had been demanded by the members from that section re- sulted in strife, commotion, ill-feeling and dissatisfaction, which culminated at the last session of the General Assembly in the repeal of the charter, because it had been enacted into law without, in truth and in fact, the proposition to incorporate that territory ever having met the sanction of a majority of the people concerned, notwithstanding the fact that the names of a majority of them were signed to the petition. Another instance of a similar nature in connection with the Incorporation of another town in my county. After the charter had been enacted by the General Assembly, and the town had been incorporated by a similar effort, . which was also brought in question, so great was the dissatisfaction and the claim of misrepresenta- tion of the wishes of the people residing within the corporate limits of the town that an effort was set on foot to Induce the General Assembly, if not to repeal the charter, at least to submit the question as to whether or not the charter should be repealed or should remain upon the statute books, to be determined by an election of those interested. Petitions, pro and con, to the General Assembly with refer- ence to the matter were circulated and largely signed. I came up myself to Rich- 2128 DEBATES OE THE COXSTITUTIOXAL COXVENTIOX OE VIRGINIA. mond to interview our representatives in the General Assembly in behalf of that contingent, or element, within the corporate limits of the town who desired that the ehaiter should be repealed. From the day the question was first agitated — from the time that one petition in favor of the repeal was started — and a petition against 'he repeal was also started — the charges that were constantly made, of signatures that were induced by misrepresentations, of lack of authority to place the names of certain individuals upon that petition and other equally questionable methods of procuring signatures went on until the personnel represented by these petitions was as uncertain and as unreliable and as instable as the quicksands under the influence of opposing currents in a river. Utterly unreliable, I submit to you, gentlemen, as demonstrating the wishes of a majority of any community upon any subject, has ever been, is to-day, and, in my humble opinion, will ever prove the effort of demon- strating the wishes of that majority by the signatures to petitions. Therefore, gentlemen, whilst my objections to the Quarles-Barbour proposition would not be removed even if my amendment should be adopted, and if every sig- nature w^ere properly affixed to the petition which is to be the polar star of the judge in his action in granting or refusing a license under the provisions in this measure. I do submit to your practical sense, to your past experience, to your ob- servation, in matters that have been heretofore determined by petition, the utter unreliability, untrustv/orthiness, aye, absolute worthlessness of that sort of method of determining the consensus of opinion of any community upon this or any other question. Mr. Chairman and gentlemen of the committee, when I rose on Saturday I dis- tinctly stated that it was not my purpose to project my remarks further than to discuss the proposition with which I have just concluded, because of the fact that the clock indicated that there would be but a few minutes of the session left, and within that space of time I had hoped to be able to conclude the remarks I desired to offer upon that branch of the qustion; but since my effort to conclude that branch of the discussion on Saturday has failed, and since other gentlemen who have pre- ceded me in favor of and in opposition to this proposition have gone into the dis- cussion of the general merits of the proposition to insert this as an independent article in the Constitution we are now engaged in revising, I shall proceed with such other observations as I desire to make in opposition to the whole measure. It was said, and I am painfully conscious, far better than I can say it, by the distinguished member from Hanover (Mr. Carter), that the proposition to incor- porate in the Constitution of our State the provision regulating the sale of intoxi- cating liquor is an experiment. Indeed, it is an experiment, and far more than an experiment. It is not only an experiment, the like of which, the rashness of which, has never before been attempted in the history of any Constitutional Con- vention of any State in this broad Union, but, gentlemen, it is an experiment so rash, so questionable, that never, so far as my reading and observation have gone, has it ever been even attempted by a General Assembly or a legislative body in this or any other State or country. An experiment! Yes, it is experimenting in our fundamental law with a ven- geance! I am aware, gentlemen, of the fact that a number of the General Assemblies of the various States of the Union have passed what are known as local option laws, and in the use of that term in this particular connection, I wish to point out to you a discrimination between "local option laws," as ordinarily understood, signifying those pertaining to the sale of intoxicating liquors, and the term "local option laws" in its more comprehensive sense, embracing every character of legislation wherein It is proposed and provided that the law shall become effective in any given integral portion of the Commonwealth until the question of its expediency shall have been isubmitted to and ratified by the majority of the legal voters of that integral portion DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OE YIEGIXIA. 2Ud of the Commonwealth. Laws of that character, even when passed by General Assem- blies, have been gravely attacked and their constitutionality has been questioned. I conceive it is no longer a matter of dispute that such a law is constitutional by the weight of authority of the American Commonwealths; but, sirs, I would direct your attention to the fact that when that class of legislation was in its infancy, when the constitutional test was first invoked and applied in the several Common- wealths of these United States, a number of the courts of last resort of the United States deliberately determined that enactments of that character by the General Assembly were obnoxious to the objection that they involve a delegation of the legis- lative power, which is vested, under the Constitution, in the sovereign legislative branch of the government^ and the States of Pennsylvania, Indiana, Iowa, Califor- nia, and Delaware have each deliberately determined that a legislative enactment of this nature, even when the question of whether the law should become operative was to be determined by an election, was absolutely unconstitutional and void, because it was a delegation of the legislative power by the legislative branch of the govern- ment. •'But,'' say the gentlemen who are advocating this unique, anomalous, ex- perimental proposition, "we are sovereign ; all things are possible at our hands, and for that reason those questions need not be considered"'; nor would I have attempted to advert to this phase of the question except for the purpose of tracing brief!}' the history of legislation of this character in support of the proposition made a few moments since. I desire to call the attention of this committee to another objection to the incor- poration of this article in our Constitution. Perhaps it may not be amiss in this connection to say that I came to serve the people of my section as a member of this body with well-defined views as to what character of measures were within the legitimate province of a Constitutional Convention. It is a well-recognized prin- ciple among constitutional lawyers everywhere that the main province of a body of the nature and character of this is merely to declare the ftmdamental principles which shall underlie the government of our State. There is a considerable portion of this body, and I confess I belong to that contingent, who will claim that there are circumstances and conditions which have been deemed suflicient by other bodies of like character, which have heretofore been held, for departing from that general rule, and actually embarking in legislation in the Constitution; but to each and every individual who has yielded his assent to that proposition, which will be most earnestly debated and vigorously contested by many of the ablest members of this body, to those who, like mj'self, have yielded their assent to the proposition that there may be conditions under which a Constitutional Convention is justified in de- parting from the broad course which it is their main duty to pursue, I submit that the present character of legislation does not come within the scope of the exception which they invoke to justify their votes and their proposed measures in other lines. What is the great underlying principle which has been and will be invoked upon the floor of this body to justify such a departure to engage in general legislation? It is this that whensoever past legislative history has demonstrated the utter futility of the wishes of people to have enacted in their laws certain character of reforms which they have repeatedly demanded, and whenever their manifest desires have been defeated by motives and methods which they themselvs call into question and deem reprehensible, those are the circumstances which justify the departure from that broad plane of our duty which I have already endeavored to define. Now, let me submit to you gentlemen who are advocates of this species of ex- periraental legislation in our Constittition, you may justify your votes in this body in favor of the fellow-servant's liability bill along the line of that exception to the general rule to which I have referred, but when you attempt to array this as an analogous instance in which you are justified in departing from the chart which 2130 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. has ever been broadly laid out and followed by bodies of this nature, I submit to you that the exception is not applicable to the measure under consideration. When was it that the General Assembly of the State of Virginia ever failed in enacting into law any demand of the people of the Commonwealth for reformation of our laws with reference to the question of the sale of intoxicating liquors? I would be glad if some gentleman who professes to be governed by the general rule which I have endeavored to lay down, with the exception I have stated, would point out the instance. So far as I am advised, the only contest of that character which the General Assembly of the State of Virginia has ever been called upon to determine arose when the proposition was presented to incorporate into law the local option provision of our law as to the sales of intoxicating liquors. Did the General Assem- bly fail in that instance to accede to the demands of the people? Has there ever been a sharper legislative conflict in the annals of our State than was fought out upon these very floors when that question was before the General Assembly? I thinl? not, and the wishes, the demands, the persistent and insistent demands of the same element of the community that is asking this provision which it is proposed to insert in our Constitution did not have then a deaf ear turned to their demands, but the very provision and substance as they demanded it was enacted into law. Then, what excuse is there, gentlemen; what justification is there, if you con- cede such limitations of our authority as I have endeavored to law down as regu- lation in which you conceive your people are in need, unless you absolutely cut this character of experimental legislation, legislation that the General Assembly of Virginia has never refused to enact into law? Gentlemen, if you wish to be con- sistent, unless you turn yourselves adrift and say you are prepared to enact into law, aye, into the fundamental laws of our State, every good and salutary piece of legis- lation in which you conceive your people are in need, unless you absoluttely cut yourselves loose from all these restrictions as to your duties, I ask you, wherein lies the justification for a piece of legislation of this character in your Constitution? I will listen with attention and with interest in the hope that I may be enlight- ened by the distinguished member from Culpeper (Mr. Barbour) as the patron of this measure as reported. The next objection to the proposed article which I wish to urge is that it is local in its operation. I would have you bear me out that, in this matter, I have been consistent in my objection, that this Constitution should con- tain no provision local or special in its character. I am aware, gentlemen, that local, private and special legislation has been the rule and not the exception in the past history of the legislative experience of our State, but I had hoped that that mad species of folly had run its race in old Virginia. I had hoped that the salu- tary provisions inserted by the committee on which I had the honor to serve — the Committee on the Legislative Department— which reported against legislation of that character, and which report has been adopted not only in the Committee of the Whole, but by the Convention, had forever, at least during the life of this Consti- tution, if it get to life, ended that folly. But, sirs, in this very fundamental instru- ment of ours itself it is proposed by this article to insert a provision as seriously and inherent obnoxious to that objection as any provision that the General Assem- bly has ever passed in the history of the State. It is proposed to legislate in our Constitution, in the first place, upon this subject as to the counties as distinguished from the cities. Now, I fancy that some of the capable, astute, ready-witted advo- cates of this measure will be heard to say that we have already made such dis- criminations in our work because we have adopted some provisions applicable to cities and some applicable to the country. I deny it. I dispute it. I say that any man who has an eye to real analogy can see the difference as between the two characters of measures. I admit that in the Constitution there must, of necessity, be discrimination between some of its provisions applicable to cities and others ap- DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF YIEGIXIA. 2131 plicable to counties only, because of the intrinsic difference between the situations and conditions existing in the subject matters affected by these several provisions. What is the real character of this measure? It is, in my humble opinion, an ill-advised effort at temperance reform. I ask the advocates of this measure, in its present shape, wherein and whence have they concluded that the people of old Vir- ginia, who live in its counties, in its rural sections, are any more in need of the protection of a constitutional arm in the form of this article than the inhabitants of the cities of this Commonwealth? Is not this an effort on the part of those who be- lieve the saloon is a curse? And I wish to say, in this connection, that in that opinion I heartily concur. It is only a question, as between those gentlemen and myself, of difference of opinion as to the means which shall be pursued in the accom- plishment of a common end. I say, gentlemen, if that is the true and the real pur- pose of this measure, wherein lies the difference between the conditions existing in the cities and those of the counties which is to be the basis of your discrimination, the justification of the proposition that this provision is to apply to counties and not to cities? I want to ask some of these gentlemen who have made such earnest and labored temperance speeches — worthy, indeed, of the cause, were they made before another forum and under different circumstances, and which I could applaud from the very depths of my heart — you gentlemen who have already proceeded in that line of declaration rather than argument, and others who will doubtless follow us, are there no homes blighted in the cities by this terrible curse? Are the protection of the husband and the father and the provision of the necessaries of life v>hich are- incumbent upon him to afford taken away from none of the women and children who reside in the cities, but alone those in the counties, by this terrible curse? Are your penitentiaries, your lunatic asylums, your various eleemosynary institutions filled alone by reason of the effects of this blighting curse upon those who live in the country? Do they draw alone from the country regions? Have there been any greater number of paupers made by indulgence in this iniquitous habit of the peo- ple of the country than in the cities? On the contrary, gentlemen, I submit to you that the reverse is true. The only reason I have heard, and it is. in my humble opinion, as fallacious as an attempted reason could be, is that the cities hare poUc* protection and the counties have not. The country does not need that character of police protection which the density of population of cities makes necessary and the possession of which by the cities is the sole flimsy pretext upon which this discrimi- nation is attempted to be excused. Has your vaunted police protection in the cities, which is your pretended justi- fication of this exception, ever ameliorated to any extent the terrible ill consequences that are the direct outgrowth of this traffic in the cities? Have those men who stalk the streets of Richmond in the livery of the city, the guardians of your peace, been enabled to check the consumption of intoxicants in the city? Have they been able to thin out the ranks of this army of people who seem bent upon their own de- struction, or to restrain their evil appetites and tendencies along this line in any par- ticular? Not at all. Then, why, in the name of reason, shall we undertake, we, th& hundred men assembled from every part and portion of the old Commonwealth of Vir- ginia, and intrusted with the sacred mission of revising the fundamental law, in the name of the dignity and the intelligence and the sober earnestness of purpose with which we are supposed to be actuated. I beg of you tell me why should we attempt to incorporate a species of special, local legislation in our Constitution? "Why insist that this body, because of the great moral force that is behind this movement — and God knows I revere and respect the motives that actuate its movers as much as any man in this body — shall respond to that unreasoning demand that we incorporate a local, special species of experimental legislation in the Constitution of our State? 2132 DEBATES OE THE CONSTITUTIONAL CONVENTION OF YIKGINIA. Where is it proposed that this Barbour-Quarles resolution, if incorporated as a separate article in our Constitution, shall operate? Not in a city of the Commonwealth. It would be open to every word of every line of every objection that I have attempted to array against it if it stopped there, but it goes much further. It is not to operate in a single local option county or district of the State of Virginia — not one. It has been stated upon this floor, and I have seen the proposition in print, that no less a number than fifty-five of the one hundred counties of the State have local option as a status in them at this time. Therefore not only does this provision not apply to your cities, but it does not even apply to one-half in number of the counties in the State. It ap- plies not to a single city, and to but forty-five of the one hundred counties in the State. Let me ask you, gentlemen, is not that experimental, local, special legislation in your Constitution with a vengeance? I know you cannot contemplate any such effect of this law without some feeling of revulsion. That is not all; and I would ask the special attention of the members of the com- mittee to this suggestion. Mind you, it is not proposed that this Barbour-Quarles reso- lution — and I want parenthetically to eliminate the distinguished member from Augusta (Mr. Quarles) from the name of this measure, because he stands here, instead of its champion, its opponent, and I shall call it henceforth the Barbour resolution — is not only not to interfere with the local option status where it prevails in any county in the State, but by express provision it is not to interfere with the local option general law of the State of Virginia, or any other local option law. Now, let us go a step further in noting what is contemplated by this ill-advised species of legislation. It is proposed to one hundred grave, dignified and supposedly experienced men in human affairs, to enact a provision in our Constitution which, as these local option laws are not interfered with, will permit each of the forty-five other counties of the State to adopt local option whensoever it will, and then you will find yourselves in the anomalous and preposterous position of having an article in your Constitution that has no application to a single foot of the territory of the great State of Virginia. Gentlemen, pause, contemplate and consider well. I beg of you, before yielding your assent to so unusual, startling and unprecedented a proposition. Is that an unfair argument? Is it not justified by this provision? Is it not an absolutely fair and real- istic description of what you gentlemen who favor this matter are contemplating? Talk about experiment! Talk about constitutional legislation! Where, I ask you, in the annals of all constitutional bodies and of all legislative bodies, was there ever such an enormity as that proposed in this measure? If gentlemen say this is not a fair argument, I but point you to the growth and the constant trend of increase of the number of counties where local option has been exercised since this great fight was made upon the floor of these halls, and the temper- ance sentiment of the people of our State found expression in this enactment of that law. Every year since that time there have been additions to the number of counties in this State which have established local option. What right have we, then, to assume that that growth, that increase, that accretion, will not continue on until there shall not be a foot of territory in the whole length and breadth of our dear old Commonwealth to which this Barbour resolution can have the slightest application or significance in the world? Gentlemen, I hope you will indulge me for a few moments further while I attempt to direct your attention to other objections to the incorporation of this provision In the Constitution of Virginia. In this connection, I trust it may not be amiss for me to say — much as I deprecate personalities — ^that the distinguished gentlemen who have pre- ceded me in advocacy of this measure, and who, I submit, have substituted for substan- tial arguments in its favor, eloquent denunciations of the liquor traffic in general, and of the saloon in particular, shall not place me in the attitude of the defender, of either. DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE YIRGIXIA. 2133 I vehemently protest against giving any such shape to the issues under discussion now. I hope I may be further pardoned for the utterance^ intensely personal though it be, that for years I have been a total abstainer from all intoxicants and hope, by the help of God, so to continue throughout the remainder of my life; that my influence, in so far as I have had any, or pretended to exert any, has been for several years past, and will ever be exerted in the furtherance of any discreet and wise measure looking to the promotion of the cause of temperance that is ever propounded w^hilst I am per- mitted to play upon the scene of life's action. Not one word of the eloquent flood of denunciation which has been uttered by the distinguished and able gentlemen who have preceded me in advocacy of this measure has struck a single note of objection or discord in my heart. I yield to no man on this floor in the earnestness of my purpose, deep down in the innermost recesses of my soul by every means in my power to aid, counte- nance and promote every legitimate effort to bring about the ends w^hich the w^ortliy gentlemen and the noble sentiment behind these numerous petitions in favor of this article seek to attain. But I question not only our right to do it, not only the propriety of it, not only the constitutional ethics of it, but I question the wisdom of it, from the standpoint of its very advocates themselves. I know that these view^s may involve me in adverse criticism of too great a degree of self-confldence which may be very seriously reprobated by some of the gentlemen who may follow me, but even though I expose myself to that risk, I cannot decline the opportunity which this occasion and my attotude upon this question give me to define the reasons w^hy I have opposed, am still opposing, and shall ever oppose this as a constitutional measure. I had — I do not know whether to say the good or the evil fortune — to be assigned to service upon the committee that had this matter under consideration as a standing committee of this body. I have listened with attention, with interest, I trust, exceeded by none upon that committee, to every argument that has been urged either upon the floor of that committee room or in the Committee of the Whole. T remember very distinctly, gentlemen, that aside from the temperance lectures w'hich w^ere delivered before us in the committee, and with which I w^as in entire sympathy, except in so far as I questioned the propriety of delivering them upon such occasions and to such a body, there was but one real cause offered by the advocates of this measure, before the standing committee, as to w^hy it should be incorporated into law at all. What was that? It was that under the local option law' the burden of proof vras upon the good people, the non-w^hiskey drinking people, the opponents of saloon licenses, to demonstrate that they did not want that evil in their midst, and they asked, and if that request had been addressed to a legislative body, I v>^ould concede that they asked with equal reason as vehemence, that the burden of proof be shifted upon the shoulders of the whiskey man instead of upon those who were the opponents of that traffic. They said. "If you will enact the Barbour resolution into law. the burden of proof w'ill shift. Under your law the State treats this as a legitimate trafnc. and until the requisite number of people have petitioned the County Court and the local option election has been called and held, the burden of proof in showing that the people of any county or magisterial district do not want whiskey, is upon the good people, and we want to shift that burden by this provision, and let that burden rest upon the shoulders of the applicants for license to carr3^ on this iniquitous traffic themselves." That was the ground, if I remember correctly, and about the only ground that, judging this from the standpoint of a legislative enactment, com- mended Itself in the slightest to such feeble reason as I could bestow upon the con- sideration of this matter. Let us see. Have they shifted the burden of proof? Yes, under some circumstances they have, and under others they have not. The astute young representative from Culpeper (Mr. Barbour) w^ho would sit 21o4z DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. astride this popular wave, found this measure incurred opposition in committee of members of the committee in whose counties the status of local option prevailed; and after we had heard all of this convincing reason and logic as to the question upon whose shoulders the burden of proof should rest, the determination of local option/ the gentleman discovered that it v/ould not do to shift that burden totally, because it would not do to interfere with or annul the local option laws of the State of Virginia. Whether that was his original purpose or a subsequent one, i care not, nor do I mean positively to assert that such is the case, but let us consider it from either aspect. The proposition as reported under the persuasive eloquence of the distinguished member from Culpeper by a majority of this committee, has culmi- nated in a proposition the effect of which I desire to briefly call your attention. Mind you, the local option laws of the State, or the local option status prevailing in any county or magisterial district of the State, is not hereby interferred with at all. That is the provision contained in the committee's report. Now, then, in the forty-five counties of the State, if the local option law, by this provision, is not in- terferred with, there is still the right on the part of one-fourth of the voters at the last preceding general election to invoke the only true, authoritative, legitimate and reliable test of local sentiment that has e^er been given the sanction of the approval of any legislative body as a means of determining that sentiment, to wit: by an election at the ballot-box, by submitting this question as to whether local option shall exist or not to the arbitrament of the people in a tangible way. In each mag- isterial district of those forty-five counties, is the burden of proof shifted? No; it is still there. Now^ let us see about it. Suppose the requisite number petition the court in any one of the forty-five counties for an election to determine the local option, or the consensus of the wishes of a majority of the people, and that it be determined, as a result of that election, by virtue of a statue now upon our statute books, recognized by this very provision, that local option is not desired. We say in one breath that that local option thus expressed at the polls by secret ballot shall control in this matter, and then in the next breath we say it shall not, but that the county judge shall have the right to again decide the question as to what is the wish of the people, upon petition, when under the reasonable and most com- mendable provisions of the local option law the test has been once decided by the people concerned against local option in that community. We play fast and loose with the people. We blow hot and cold. Mr. Barbour: Does the gentleman understand that there can be no license in any county where local option prevails? Mr. Wescott: I hope that I, who presume for so long a time to detain the committee in the discussion of this question am not so absolutely bereft of com- prehension as not to understand that. If you had waited a moment I think I would have enlightened you. Does the gentleman dispute that if this provision is incor- pora,ted in the law, it does not detract one iota from the full force and effect of the local option statutes of the State of Virginia as they exist to-day? Does it take away from them one whit of efficacy in determining the consensus of any commun- ity? Not at all. Then, if that be true, there is still, by a statute expressly recognized In this Constitutional article one means, one method, the most salutary that has ever been suggested or invented, of determining the consensus of opinion in a community; and by this express Constitutional provision we recognize the continuing force of that statute and say, that the local option, the consensus of opinion of that community upon this subject, shall be determined by election, and then we take that away result and undo that which we have expressly affirmed, as I will show you in a moment. Let us suppose, sir, that in one of these forty-five counties a local option election shall hereafter be held and the people decide against local option. Then comes in DEBATES OF THE COXSTITUTIOXAL COXVEXTION OF YIRGIXIA. 2135 * the beneficent wise effect of this beautifully concocted Barbour scheme to shift the burden after the issue has been negatively determined by the people. It has not been shifted in any other way. This authoritative decision of this question made by the people concerned pursuant to the provisions of a statute that has heretofore been enacted, by this Constitutional article, goes for naught, is set aside and wholly abrogated, the issue reopened, and for the first time the burden of proof is shifted expressly vivified and given life. The assent of this Constitutional body to the repeal of local option statutes is expressly withheld from any future General Assem- bly. We say that notwithstanding in that election, whether it be for a county or magisterial district, it has been expressed as the consensus of opinion that local option should not exist, still, before any one can procure license for retail sale of liquor the applicant shall undergo still another local option test. This is so incon- sistent as to be absurd. Now, gentlemen, you have an opportunity to contemplate the detail working of the beautiful scheme which is here proposed to a dignified body engaged in Con- stitution-making. Notwithstanding, by a method expressly ratified and held suf- ficient under your Constitution, the right of that community to local self-govern- ment has given expression in every voting precinct in it to the view, to the opinion and to the option, that liquor shall not be sold, you say, "We will shift this burden onto the liquor men when you come to get your license; and whilst the burden of proof before was on us, the temperance people, now the burden of proof is on you." That is the only sort of shifting of burden of proof this thing does. In effect, the advocates of this measure would make this Convention say: "This is a Republi- can form of government, and the will of a majority of the people concerned in this matter is all-powerful and must prevail: provided, however, that you determine this question -in a certain way, but if you fail so to determine it, the will of a majority is wrong, absolutely worthless and meaningless, and we will attach no legal signifi- cance whatever thereto." That is the proposition. That is local option, I say, of an anomalous character, with a constitutional flavor, which I do not believe in the whole range of legislative or constitutional experience could ever be equalled in its absurdity. That is the character of provision that you gentlemen are asked to adopt in your Constitution the embodiment of the slight-of-hand principle, now you see it and now you do not see it, in the Constitution of your State. Gentlemen, I can scarcely conceive that a majority of the members of this body, notwithstanding the power of the value of influence that confronts us with this irrational demand for this species of legislation — and I have myself been made to feel it. as every other man here has felt it — will not rise to a proper sense of your duty, fittingly discharged, and repudiate it, despite the powerful influence which urges us on to the commission of such egregious folly. Now, just a word, and I shall have concluded. My only apology . for presuming to detain you so long in the discussion of this matter is the fact, to v/hich I have heretofore adverted, that I feel I ovve it to myself, to my constituents, to each and every of the petitioners, hundreds though they have been, who have sent up this thoughtless request, to give some reasons for the faith that is within me In & matter of such vital importance as this; and I trust that apology will be accepted by the members of this committee. Another objection I had to this measure, gentlemen, even If all those which I have enumerated shall have utterly failed in finding lodgment in your reason, as the groundwork upon which to base your vote in opposition to this measure, Is that I believe in many of the counties — I do not say all of them — of the State, my own, for instance; in fact, in that class of counties where the sale of liquor Is not In the hands of men engaged in general mercantile business — now, mark that exception; 2136 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIEGINIA. I will address myself to it subsequently — this measure, if incorporated in our fun- damental law, would result in practical prohibition. You say, "If the sentiments you have uttered on this subject be true, why should you stand up and express them as reasons for your refusal to give your assent to this measure?" I say, gentle- men, if there were no other reasons, if every one which I have endeavored to ad- dress myself to and enumerate did not in fact exist, I would withhold my assent from this proposition on that account, because I do not believe it is wise legisla- tion. I believe there is wisdom, in the utterance of one of the most eminent divines of the State, when he said, that "if the temperance cause may be saved from its friends; it can easily take care of its enemies." I believe it unwise because I have had an opportunity, which I think has not been equalled by many members of this body, to observe the effects of drastic, prohibitory liquor selling legislation through- out the United States. I lived in a sister State in the West when that craze reached its acme in the States of Iowa and Kansas, and I have seen with my own eyes, not once, but repeatedly, there as well as upon the native soil where first I saw heaven'6 light, a living, actual attestation of my contention that prohibition under all cir- cumstances does not prohibit; and for that reason I am opposed to it. Prohibition of this traffic, from my standpoint, is a good thing when there is sufficient impetus, a sufficient moral force and conviction behind those laws in a community to have them enforced, and only then. I have seen its baneful effects in my own county, where we had local option, and where we have repudiated it; where, sir, many of the highest types of Christian gentlemen communicants in the various churches have had to stand almost at arms' length with their several pastors in asserting their right to vote against local option, and have done it, because, in their opinion, it was an unqualified curse upon our community. Such is not the experience all over the State. I ask no man to measure his corn by my half-bushel. I am speaking of facts. The criminal records of the courts of the Eastern Shore will attest every word I have uttered. There sits upon this floor now a gentleman who has had the proprietors of not less than a dozen of these speak-easies, upon whom to impose the penalties of the law, at a single term of court, where local option had been voted for, and where the sentimeiit in favor of non-liquor selling was not strong enough to enforce it. There has never been a period in the history of my county when that sentiment was sufficiently strong to secure the beneficent results which the advocates of this measure are hoping for. Gentlemen, I want to aver, with whatsoever credit my assertion may give it, to you gentlemen who have never had an opportunity to v/itness such a condition, that if there ever was in the history of civilzed communities a condition which waj? damning and demoralizing to the uttermost, it is that status where the law says liquor shall not be sold, and yet, where there are hundreds of places which are openly, hourly, daily, conspicuously exposing it for sale, and yet go unwhipped of justice. Now, gentlemen, I have said prohibition would result, in my opinion, in certain classes of communities from the adoption of this article; but there are other com- munities, and I have in my mind's eye now a county in my congressional district, as to which I want to submit to you what in your opinion would be the effect were the members of the Convention ever so far to forget the objects and purposes for which they were assembled, and the limitations of their powers and duties here, as I conceive them, as to enact any such anomalous piece of experimental legislation as this into our Constitution. I have in my mind a county wherein there never has been a local option elec- tion, where the campaign which has been waged from one end of these United States to the other of education and moral suasion upon this subject has alone been waged — and may God give impetus, force and effectiveness to that campaign in DEBATES OF THE C OXSTITUTIOXAL COXA^EXTIOX OE YIEGIMA. ' 2 137 every hamlet of our fair land which inyolves resort, as I contend, to the only methods that erer, in the history of a highly civilized race have been efficacious in reformation of the human family and inducing them to turn aside from any sort of deleterious habit in which they have an inherent legal right- to indulge — in that county to-day there are but three saloons. Each one of those saloons is kept by a man engaged in general merchandise, a man who carries the poor people as creditors upon his books from a half to two-thirds of the year, and gets his reward in the payment of his bills at the time when his customers realize for their year's work in the dispo- sition of their annual crops. Xow, let me ask you what effect do you suppose this measure Avill have in that county? AATien these petitions, or requests, are passed around by the would-be licensee, when he comes to a poor man, a man who has been the recipient of his favor, his kindness, his indulgence, whom he has ever manifested his conlidence in and his regard for by extending him such indulgence and to whom he now owes more money than he can possibly pay, and asks him, '-Will you sign my petition?"' what would you say to him? It might be disagi^eeable and against your sentiment, but I ask 3'ou whether yoti are a free moral agent under those circumstances? And 3'et every single dispenser of liquor in that county, where there has never been a local option election in its history, is a man of that character, who carries the great bulk of the people on his books almost from one year's end to another. There are other reasons, into the details of which, in this discussion, gentlemen, I shall not attempt to go, which I trust will, without specific mention, be as obvious to every member of this body and as worthy of earnest consideration as they appear to me. In conclusion, gentlemen, permit me to say I am opposed to this measure for each and every reason I have enumerated. If one alone of those ob^jections existed to the exclusion of every other, and I was the sole dissentient in this body. I would register my vote, my protest, against this measure being adopted here. I hope the members of the Committee of the Whole will give due regard to other considerations than those enumerated which ought to be as obvious to their minds as they are to mine. I regret to have detained the committee so long, and I thank you for your attention. (Applause.) The Chairman: The question is on agreeing to the amendment of the gentle- man from Accomac. The amendment was rejected. The Chairman: The question is on agreeing to the amendment proposed by the gentleman from Brunswick (Mr. Turnbull). The amendment was rejected, there being, on a division, ayes. 14 ; noes, 37. Mr. Lindsay: Mr. Chairman, I desire to offer this amendment: Strike out on page 7, line 7, the words "nor without" and insert "against"; and in the same line strike out the word "request" and insert ""protest." The section would then read: No license to sell intoxicating liquors in quantities of less than one gallon, or to be drunk at the place where sold, shall be authorized or granted in any county or town of this State for a period of more than twelve months, against the written protest of a majority of the legally qualified and registered voters, etc. At this point ]\Ir. Turnbull resumed the chair. Mr. Barbour: Mr, Chairman, before the vote is taken in this matter I am going to ask the indulgence of the committee whilst I attempt to state some ob- jections to the amendment which has just been read, offered by the gentleman from Albemarle (Mr. Lindsay), and at the same time attempt to give some reasons why the resolution as reported by the committee should be permitted to remain as it is. 1.3.5 — Const. Deb. 2138 DEBATES OF THE COXSTITUTIO^fAL CONVENTION OF VIRGINIA. Before going into that discussion, however, I desire to state to the committee what my personal relations, so far as this movement is concerned, and what my personal opinions are in reference to this question of the regulation of the liquor traffic. I will state, Mr. Chairman, that I do not believe in prohibition, for the reasons, to some extent, which have been assigned by the gentleman from Accomac (Mr. Wescott). I will state further that I am not, like him, a total abstainer -from the drinking of liquor. I take a drink whenever I want it. Nor, Mr. Chairman, am I one of those who believe that all saloon-keepers are the worst people in the world. I do, however, believe that saloons, taken as a whole, are a source of great evil to the public, and I do not believe there are half a dozen members upon this floor who do not agree with me in that proposition. My position upon this question at my home was well understood when I was elected a member of the Convention. It is true, no such question was raised or broached in the canvass, and it never occurred to me to propose any such article for the Constitution. Such a thought had never crossed my mind, Mr. Chairman, until I happened to be present at a meeting of the Committee on the Preamble and Bill of Rights one evening in the Senate Chamber, when a number of ministers of this city appeared before us and presented their reasons for asking that the prin- ciple embodied in what is now known as the Barbour-Quarles resolution should be embodied in the Constitution. I was not then convinced that it was wise to do so, because I was afraid the same reasons which apply to local option, as it is called, might apply to this resolution and to its results, that it might not be supported by sufficient public sentiment to make it effective; and upon that question I was in doubt for some time, until, by some inquiries which I instituted as to the effect of this principle as it had been embodied in the legislation of other States, I was sat- isfied it was safe, and that no possible harm could result from it. Until I was sat- isfied on that point, I was not willing to support it. As soon as I became satisfied that no possible harm to temperance could result from the resolution, it did not take me long to conclude that I should support the matter properly in the commit- tee and before the Convention. Mr. Chairman, this resolution has been attacked upon the ground that it is legislation, and not properly constitutional. I differ from that position, and it seems to me that if the members of the Convention will divest their minds of all preju- dice in connection with it: if they will take the resolution upon its merits and consider it carefully, they will see it is in no sense a statute. So far as its being a statute is concerned, it would be totally ineffective, because it does not go suf- ficiently into detail to make an effective statute. The only effect of this resolution is to fasten in the Constitution the principle of neighborhood government in a matter of the retail sale of liquor. It is absolutely flexible. The application of the principle is left entirely to the discretion of the General Assembly in each and every particular. The only effect of it is to "fasten in the Constitution the principle that no bar-room shall be opened in any neighborhood unless a majority of the people of that neighborhood want it and ask for it. It has been the effort of the members of the majority of the committee to avoid all detail, and for that very reason it has been subjected to some attack upon the floor by friends who favor the principle. It seems to me they have lost sight of the fact that we are not enacting a statute, but are trying to fasten a principle in the Constitution. The amendment offered by the gentleman from Warren (Mr. OTlahertyl was a detail which the committee did not think it wise to incorporate in the measure; and the same thing is true, to a less extent, of the amendment offered by the gentle- DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIEGIXIA. 2139 man from Brunswick (Mr. Turnbull), because the effect of tliat amendment, U adopted, would have been to compel all applications for liquor licenses to be pre- sented to courts. That is our system at present, but there is nothing in the Consti- tution which requires liquor licenses to be granted by courts, and in some, at' least, of the cities of the State they have excise boards, and it might be developed that it would be wise to have such boards in the counties to pass upon these matters instead of having them passed by the courts. We have been attempting throughout to avofd detail, to fasten this principle in the Constitution, and to leave it to the General Assembly, with which body I am perfectly willing to leave it to work out these details, and to cure defects and im- perfections in the first draft of almost any law that can be proposed, in the view of experience. I have said, Mr. Chairman, that the effort of the committee in this matter has been to assert this principle, and to have it fastened in the Constftution. When you come down to a matter of that kind, when you are asked to put a principle in the Constitution, the question is, is the principle right"? If it is right, w^e can afford to adopt it; if it is not right, we should not adopt i^. Now, what does this principle involve? It involves, first, the majority rule in each neighborhood Mr. Pollard: You just stated it would insure majority rule in each neighbor- hood. I see that the clause provides that the applicant shall have a majority in number in those v\'ho voted at the last preceding election. Mr. Barbour: Yes, sir. Mr. Pollard: Take for illustration one of our precincts here at the last regular election. There are more than 500 voters in that precinct, and yet only about forty voted. According to this plan, twenty-one voters of that precinct could fasten a bar on the precinct, although a majority of the voters might be against the bar; so it would look to me as if it was minority rule. Mr. Barbour: Well, if the gentleman will permit me, I will try to show the committee that this provision in the report of the committee is sound public policy, in this, that if you have this provision in the Constitution, it will be the last time that any election in one of your precints is carried by a majority of forty votes. It will have a tendency to make your best class of citizens come out and vote, so that they may preserve their right to pass upon this other question in which they are much more deeply interested probably. You will get a class of voters to come out and to participate in 3^our elections that 3-ou cannot get to come out in any other way; and I submit it is a desirable class of citizens to induce to exercise their suf- frage. That is one reason for it. I find that exactly the same provision — at the time this draft was drawn it was not known to me exactlj^ — applies in reference to the local option elections now, that one-fourth of the voters who voted at the last pre- ceding election may petition for the local option election. Mr. Pollard: But do they not decide the question? Mr. Barbour: No. sir: they decide the question as to whether there will be an election or not. On motion of Mr. Green, the committee rose and the President resumed the chair. The hour of 2 o'clock having arrived, the Convention adjourned until to-mor- row, Tuesday, February 4, 1902, at 10 o'clock A. M. 2140 DEBATES OE THE CONSTITUTIONAL CONVENTION OE VIRGINIA. TUESDAY, February 4, 1902. The Convention met at 10 o'clock A. M. Prayer by Rev. Richard Mcllwaine, D. D. CORPORATIONS. On motion of Mr. Braxton, the Convention resolved itself into Committee of the Whole for the purpose of considering the report of the Committee on Corporations, Mr. Eggleston in the chair. Mr. Braxton: Mr. Chairman and gentlemen of the committee, when the Com- mittee on Corporations first began its work last summer it found that it was labor- ing under a disa.dvantage which many of the standing committees did not have. When this committee first began its work it was confronted with the fact that there is not, at present, in our Constitution any article on corporations to guide us or work by, notwithstanding the fact that in nearly every modern constitution existing In this country there is an article of more or less extent bearing upon the subject. In order, therefore, to cut out our work and to get something to work upon, the first thing that the committee did was to have transcribed the various sections and provisions of the other constitutions throughout the Unil:ed States bearing upon this important subject. Their method of procedure was to take these various sections and to consider them, reading them over again and again, and excluding them from time to time as we found that they were not suited to the conditions which con- fronted us here. It was a method of exclusion whereby we thought we would ulti- mately get down to a basis which would be satisfactory to the conditions as they exist in Virginia. In order to have a more intelligent appreciation of the merits or demerits of these various provisions we did what we could, after great labor and effort, to ascer- tain how these various provisions had operated in other States, whether they had been successful or unsuccessful, whether they had proven defective or otherwise, and, so far as we could, to learn exactly what construction had been put upon them by the courtsi in the various States. As we would go over the article, from time to time, v/e would become satisfied that first one provision and then another was not suited to the conditions as they prevailed in this State, and it was eliminated. As you can well understand, the closer we got down to the bottom the more difficult It was to decide these questions, and the more doubt there was in the minds of the committee, frequently, as to whether to adopt or reject certain provisions. After awhile, in order to get our work more into shape, the committee concluded to adopt, tentatively, as we expressed it, certain provisions, so as to make an outline of an article for still further consideration and trimming down and modification. We adopted the article in this tentative manner, with the fullest explanation by each member, as he voted for it, that it was only tentative, and only intended to be something to work upon. The committee, I assure you, has always been actuated by the keenest sense of responsibility, and has possessed the fullest kuowledge of the importance of the matter it had to deal with, and a most earnest desire to err always on the safe side and on the side of conservatism. The committee, wishing to get all the light on the subject it could after about eight or ten of these sections had been adopted, the newspapers were permitted to publish them, and we supposed it would be pei* fectly well understood that they were published merely as tentative articles and that they were only a part of the suggested article on corporations to be embodied in the DEBATES OF THE COXSTITUTIOXAL COXYEXTION OF YIEGIXIA. 2141 Constitution. Unfortunately for the committee those sections were published as & complete article, and as an article complete not only in its entirety, but complete so far as its consideration was concerned, as the article which the committee had framed and was about to report to this Convention. It is needless to say that we secured the criticism we were after; but that »i'iticism was very unfair to the committee because many people among the public at large were led to believe that this was a complete article, a final article, the* concluded work of the committee, when it was only a part of a mere outline, and tentative lay figure, as it were, to work upon. I mention these matters in justice to the committee. Immediately after the tentative adoption of these sections, the committee con- tinued its investigations and labors until at last a majority of the committee, eight out of eleven^ agreed upon the article which finally has been reported to this body, and which is now here for your consideration. Much to our regret two of our most distinguished members were unable to agree with us on some of the most essential particulars, and they have filed a minority report setting forth their view^s. These two reports, while they -agree in some respects, present the most radical difference of opinion in many others. I will not at this time attempt to go into a detailed discussion of each and every section of this article reported by the majority; but will leave that for the occasion when each section is taken up for final discussion and adoption b3^ the Committee of the Whole. The first section iu the article, as it is presented to you now, is merely a section setting forth certain conventional definitions, terms and phrases used in the report to avoid the constant repetition of those explanations every time the phrase is used. The second article or section is one about which I presume there will be no difference of opinion. It is intended merely to prevent private and special legisla- tion on the subject of granting charters. I presume that this body is entirely agreed on the question of the expediency of such a provision. I think, in substance and outline, it has already been passed upon in the report of the Committee on the Legislative Department, and, as will be pointed out to you when we come to technically and critically consider this sec- tion, there are some provisions, in general terms, embodied in the legislative report, which our committee thought it was necessary to refer to more particularly, by & fuller and more carefully drawn article. The third and fourth sections of this report deal with the establishment of a corporation commission, prescribing its powers and specifying its duties. It Is needless for me to say to this Convention that this is by far the most important provision contained in this report. It is the most far reaching in its effects, the one which has attracted the greatest amount of attention, and the one in which the public is most interested. In its importance it completely overshadows, I may say, everything else in the report. While it is true that this commission is a corporation commission, clothed with certain powers and charged with certain duties in reference to corporations gener- ally, yet its powers and its duties, as they affect every corporation other than trans- portation and transmission companies are practically the same powers and duties which are now being exercised by other departments of the government, which are simply collected together in this one department for reasons which I will explain to you later on. rts powers and functions, so far as they affect any other corporation than trans- portation and transmission companies, are practically ministerial only. The novel- fy, the pecularity and the essential features of this corporation commission, as we report it, is w^ith reference to its powers and its duties affecting transportation and transmission companies, and railroads '"'par excellence." DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Mr. Chairman, the question of the control and regulation of railroad companies and the fixing of their rates of charges is, I presum^e, the greatest and most im- portant economic question before the civilized world. Fifty years ago the question of transportation was not so important, but to-day it enters into every considera- tion; it affects every branch of business; it infringes upon every human being in this land. So far-reaching, so important, so extensive is the question of transpor- tation rates that, as has been said and truly said, the right to control railroad rates is equivalent, in its importance and effect upon the community, to the right to lay taxes. That is true, but it is not half the truth. The money that the people of this country pay to transporation companies is largly in excess of the money they pay for taxes. It may be that it is rightfully so; but whether rightfully or wrongfully, I take it that no man will say that the right to lay such tribute upon the people should be placed in the uncontrolled power and left to the arbitrary discretion not of any department of government, but to the people into whose pockets the very tribute that they lay passes. A recent writer on this subject in the North American Review expresses this matter much better than I can, and I read it: "There is no element in the economic world that is so pervasive as the cost of transportation. It constitutes an integral part of the cost of every article of food and clothing used by every man, woman and child, and of all materials that enter into the construction and furnishing of a habitation for man, and the heating and lighting of such habitation; and, in fact, of everything that is employed for the sustenance and comfort and gratification of man. To the man who ultimately meets it in the price of what he consumes it comes as mysteriously as the wind which 'bloweth where it listeth, and none can tell whence it cometh and whither it goeth.' It is collected as silently and as unconsciously to the actual payer as the customs duties of the government, the levying of which is the subject of deliberate and sharply contested legislation, over vs^hich the entire country is thrown into a paroxysm every few years. But the levying of freight charges, which for railway traffic alone aggregate annually five times as much as the customs duties, is left wholly to the irresponsible and self-interested action of railway officials, without any practical governmental supervision, and with no restraint whatever except that imposed by the natural law which determines 'what the traffic will bear.' The figures furnished by the statistical bureau of the Treasury Department of the United States show that the important duties collected during the three years from 1898 to 1900, inclusive, aggregated $581,001,542, and the freight earnings of the railroads of the country for the same period, according to the reports of the Interstate Commerce Commission aggregated $2,843,038,287. ''As is well known, a process of amalgamation, or unification, of interest has been going on for some years past between competing lines of railway, which has during the last two years assumed enormous proportions, and competition is fast becoming extinguished. During the period last mentioned a large proportion of the railway mileage of the country, variously estimated by different authorities as ag- gregating from 101.000 to 112,000 miles, constituting not less than three-fifths of the entire railway mileage of the United States, has been brought under the absolute control of five great capitalists, and the process is still going rapidly forward. This constitutes a power for extorting money from the public the exercise of which, how- ever fair-minded may be the individuals in whose hands it is now vested, it is cer- tainly unwise to permit, without throwing around it such safeguards for the pro- tection of the public, by governmental authority, as shall effectually prevent its abuse; otherwise it is appalling to contemplate the results that m.ay ensue." "If consumers, who ultimately bear the cost of transportation in tlie price of everything they use; or producers, the local value of whose products is determined DEBATES OE THE COXbTITUIIOXAL COXVEXTIOX OE VIKGIXIA. 21^3 by deducting from their value at the place of consumption the cost of transporta- tion thereto, are to be protected from the rapacity of the common carriers of the country, it must be accomplished by a body organized by the government for the purpose, with due authority to administer equal justice between the two opposite in- terests. The necessity of administering justice in relation to these interests by a different method from that pursued in contentions arising between parties to ordi- nary commercial transactions, lies in the fact that the conditions surrounding the two classes of cases are not analogous. The rate charged for transportation is not the subject of negotiation and contract between the two interested parties, but is determined by the will of the carrier and enforced upon the shipper. The party by whom it is primarily paid is a middle-man, who has no direct interest in it; and the consumers, between whom it is distributed and upon whom it finalh' falls, have no cause of action for recovery in case the charge is extortionate or unjust. Their only protection lies in the proper exercise of governmental authority in the preven- tion of such a charge at the outset." In the report of the Interstate Commerce Commission, submitted to Congress on January 4, 1901, the commission states: " Tn every part of this country carriers have, by concerted action, withotit any notice to shippers, and indeed against the vehement protest of shippers, advanced their rates upon a large portion of the merchandise, carried under class rates, an average of one-fourth,' and justlj' remarks that, 'when hundreds of shippers com- plain that a public servant has perpetrated a wrong upon the public in the discharge of a public duty, there should be some public tribunal before which inquiry 'ould sug- gest that if it is not possible to amend this law in its more essential features, it ought at least to be possible to deal v*^ith those coercive features of the act which are intended to prevent practices of this character. All of this goes to show one thing, gentlemen of the committee, not only that the State has the right to control railroads and to regulate and presicribe their rates, but that the time has come and is now upon us when it is essential for the welfare of this coun- try and the protection of our people that that right should be effectively administered; that it should no longer exist in theory, but, as the commission says, should be put in practice, and that some effective methods should be provided to afford the redress which the courts have always said exists, in theoiT- A distinguished gentleman, Mr. Baxter, who is one of the most prominent railroad lawyers in the United States, a specialist on this subject, and who was brought by the representatives of the railroad company to address your committee on this subject, a learned man, a man who was there as an advocate representing the interests of his clients, frankly admitted that the State had this right, that no respectable authority to-day denies it, and my distinguished friend, the gentleman from Fauquier (Mr. Hunton), who, I regret to say, differs so much with me on this subject, frankly concedes the same thing in effect in his report; because if the State has no right to regulate them, if the times do not require that that right be exercised, why would he provide a method which he claims will enable the State to regulate it and to exercise it? The report of the minority undertaking to establish a tribunal for this purpose is an admission that v/e have the right to regulate them, and that we ought to regulate them, and the only difference between me and my distinguished friend is as to the method of regulating them. Now, Mr. Chairman and gentlemen, I say it is idle for us to prate about this right, idle for us to admit it, idle for the text writers to lay it down and for the courts to proclaim it, unless there is some efficient and some effective machinery through which 2148 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIEGINIA. the right can be enforced, and redress can be given. How shall we do it? Through what sort of instrumentality shall we enforce this? Can the General Assembly do it? Many of my opponents in this matter will tell you that we ought to leave it to the General Assembly. I ask you, now, as practical men, looking at this as a practical question, to ask yourselves and see if you can answer in your own minds, to your own satisfaction, how in the nature of things it is possible for any body, organized as a General Assembly must be, to exercise the function of prescribing the rates of a trans- portation company? It is not a question of the individual capacity of the members of the General Assembly. Concede to each of them as much sense as the combined wisdom of this body; suppose the General Assembly were made up of Isaac Newtons; it is impossible, I submit, for 140 men, organized into two separate chambers, meeting once in two years, to make the calculationsi, to go into and keep themselves in touch with the facts and all the collateral facts necessary for the fixing of rates, and to change those. rates from time to time, from week to month, as the case may justify it. It is absolutely impossible; and this same distinguished gentleman, Mr. Baxter, when asked the question if he thought it was possible for a General Assembly or any body organized as a General Assembly is organized, to make railroad rates, frankly said he did not think it was possible. I go further, and I ask if a single solitary instance can be mentioned in the history of the United States where a General Assembly did prescribe railroad rates. I chal- lenge the production of a single, solitary instance where it was ever done. Gentlemen of the committee, the most that can be done for them in that line is for them to prescribe maximum rates, and not the actual rates. Think of the number of articles that can be transported; think of the number of routes over which they can be transported and the list of carriers, making a great book like this; imagine a General Assembly taking up and discussing and passing on each one of 10,000 items. They cannot do it. They never did do it. It is physically impossible for that number of men, organized in that way, to do it. If they should do it on one occasion, no rates of that sort could stand for two years without any change in them. They can fix maximum rates. But, gentlemen, do not be deluded by that ignis fatuus. The fixing of maximum rates amount to nothing. You know that the rates for hauling merchandise vary to the utmost extent. The rate on coal is very cheap. The rates on dry-goods and some kinds of live stock is very high. When you fix max- imum rates, you have got to fix the rates so high that it will go^ over the top of the head of the highest one of them.' and how far does that prove to be a regulation of the rate below? Take your ov>^n State for example. What has our General Assembly done — and I submit that our General Assembly is as good as any other Legislature — I say that its defects, I say that its sins of omission, are due to the organization and constitution of the body, not to the personnel of it. I concede that if we, ourselves, were in their position we could not do any better and possibly might not do so well, in fixing rates, as they have done. The only thing they have done in this regard is to say that no rail- road shall charge more than eight cents per ton per mile on freight except on fertilizers, which are reduced to four cents per ton per mile. Now mark you that is a straight rate, over the top of everything. Vvhat does it mean? Gentlemen, these are dry facts, but this is a very important matter, and I trust you will give me your attention, as difficult as I know it may be for you to do so. Eight cents per ton per mile is the rate fixed by the State beyond which freight charges shall not go; when the manager of the Norfolk and Western Railroad Com- pany admits that the average charge for freight on that road was a small fraction over one-half of one cent per ton per mile. The General Assembly says, in effect, "You shall not charge more than sixteen times as much as you do charge for transportation over your road." So far as the protection of the people is concerned, you might as well have said: You shall not charge more than eight dollars per ton per one hundred yards. The rate is so high that it does no good ; and yet if they had fixed a lower rate. DEBATES OE THE COXSTITUTIOXAL COXYEXTIOX OE VIEGIXIA. 21^9 as they must strike over the tops of the heads of the verv highest, they probably would have done harm. The fixing of maximum rates by the Legislature is mere fol-de-rol. It is nothing; it cannot be anything. It is a tub for the whale to play with. Let us look that in the face and recognize it. In speaking on this subject with Mr. Baxter, to whom I have referred, I asked him the question, whether it was possible for any body organized as the Legislature is organized, regardless of its personnel — although individually each man In it might have more sense than the entire Constitutional Convention — to fix railroad rates. This dis- tinguished railroad lawyer, this expert in these matters, replied: "Xo, sir; it could not." ^Tiat is the use of members of this Convention coming here and telling us about the General Assembly fixing rates. Go over in 3-our minds the ''modus operandi" and see how it could be done. To make assurance doubly sure, I asked him again: '"'Do you think 140 men could enter into the minute calculations necessary for such a task: would not the very bulk and size of such a body as the General Assembly make it impossible to do such work?" INIr. Baxter said: '1 agree with yoti in that." I say, therefore, 'Mv. Chairman, that we must lay aside as utterly impracticable and impossible any hope of the General Assembly fixing rates. Let us not content ourselves with fixing maximum rates when, for the reasons I have given 3'ou, those maximum rates amount to nothing. "WTiere is there man who, in his private business, would object to the government fixing his charges if the government said to him: Be it enacted. that you shall not charge Mr. Einstein for your clothes more than sixteen time the price you do charge him. He says, that if that is as near as you are going to come to him, he would just as soon you should fix his rates as not. That is, in effect, what the General Assembly says to the railroads, and that is about as close as the General As- sembly can safely come to them, in fixing maximtim rates. Then they say: Let us go to the cotirts and have the courts fix the rates. I think I can shov\- to you, if you will bear with me patiently that it is just as impossible, just as hopeless, and just as impracticable to have the courts fix the rates, as an original proposition, as it is to have the General Assembly fix them. In the first place, as was held by the Supreme Court of the United States in the case of Munn vs. Illinois, 194 V. S.. the fixing of rates is not a judicial question. It is a legislative question. The court is no more able by reason of its being a court to fix rates, than a doctor is. A man may be ever so learned as a lawyer and whatever his individual capacity in rate-fixing may be, his knowledge as a lawyer no more helps him in fixing rates, than a preacher who depended upon his knowledge of theolog%- would be assisted in fixing rates by that knowledge. It is not a question of law. It is a practical question; it is a business question. It is a question that any good mer- chant, manufacturer, banker, or shipper of any sort is better able to deal with, so far as the experience of his business is concerned, than a lawyer is. \Miy, then, refer it to the courts? The cost, and the delay of judicial procedure would alone make it utterly impossible. The unyielding character, the inelasticity, the stiffness, the formality and the technicality of legal procedure, would render it utterly impossible to do it. Take an actual case. The fixing of a rate depends upon the consideration of a large number of collateral facts — what rates are charged on other roads under similar conditions, and what rates this road has charged for the same services before, and so forth and so on. Imagine a court going into these facts, and having each one of them proved by strictly legal evidence, with a lawyer sitting there and cross-examining and objecting to ever^-- thing in the nature of hearsay evidence. Five years would not suffice to get up the evidence to fix one rate from here to Petersburg. It would be practically impossible to estahlish these things by the strict legal proof required in judicial proceedings. In the courts there must be a controversy with the railroad on one side and the shipper on the other, and, gentlemen of the committee, whenever my friends, the enemy, come into court with a railroad on one side and a shipper on the other, I cannot but remember the old nursery rhyme: "Won't you walk into my parlor, said the spider to the fly?" Gen- 2150 DEBATES OF THE COXSTITUTIONAL CONVENTION OE VIRGINIA. tlemen, I ask you what show in the world a private individual shipper will have in any controversy with a railroad company over rates? He can make up but one case, on one rate; and, mark you, there are ten thousand rates to be regulated and adjusted, and tens of thousands^ of people to whom the rate applies. One man ships a load of tobacco from Danville to Richmond, and he is overcharged $25 a car. In order to recover the $25, that one man has to go into court, summon the railroad company, get counsel and go into an examination of all the intricate and endless collateral facts which go to make up the question as to the unreasonablenesiS of that rate, with the burden of proof upon him to establish it. I say that it is impossible for him to do it. And if he could do it, after he has litigated for days and weeks and months and years, if he is successful, he recovers liis $25; in the meantime, this extra charge of $25 has been collected by the railroad company from ten thousand other men pending the litigation. When that $25 is recovered, they can turn around and charge him $25 excess rate on each car again, and he will have the litigation all to go over again. In order to have the courts fix the rates, you will have to have a separate suit, for each separate rate, over each separate road, on each separate article that can be transported over each separate route. In order to fix the rate to Newport News you would have to go over the entire list of merchandise and fix the rate from here to Fair Oaks and from there t6 Elko and from there on to the various different stations ad infinitum. A hundred thousand suits would not suffice to fix it. If I am asked for any other argument than this, I appeal to the notorious fact that the courts have never, anywhere that I know of or ever heard of, afforded one single man adequate redress in this particular. The great majority of the people in this country are poor people. They are small dealers. In the aggregate they amount to the great body of the Commonwealth; but how can these individuals, these pigmies, enter into a contest with giants. There can be only one conclusion, and that a foregone conclusion. The city of Danville, one of the richest and most flourishing cities in this Commonwealth, with all the power and force of money back of it, has, I understand, been in litigation with the railroads over rates there for over three years and have never yet brought it to a conclusion. But, gentlemen, that is not all. It is not even proposed by the report of the minority of this committee that the court shall fix the rate. I ask your particular at- tention to this. It is proposed merely that they can condemn a rate, but not fix a new one in place of it. For ten years after the Interstate Commerce Act was passed, that commission, construing the act as its distinguished president, Judge Cooley, thought was proper, and as was acquiesced in for ten years hy the railroads without any opposi- tion, considered tliat it was their right, when they condemned one rate, to substitute another for it. I think my distinguished friend, Judge Baxter, is entitled to the credit for having invented the way to pull the sting out of that bee. In a case which went to the Supreme Court of the United States, in a decision rendered by Mr. Justice Brewer, it was held tha.t inasmuch as the word "presicribed" had not been used in the Interstate Commerce Act, all that the commission could do is what the report of ther minority committee tells you is all that your court would be allowed to do, that is to condemn the rate and say that 3'ou must not charge that rate; but you have not the power to fix any other. Mr. Hunton: Do I understand the gentleman from Augusta to contend that such is the intention of the article contained in the minority report of this committee? Mr. Braxton: I so understand it. If I misunderstand it, I hope the gentleman from Fauquier will correct me. Mr. Hunton: You most assuredly do misunderstand it. Mr. Braxton: I certainly do not wish, intentionally, to do any injustice to the report of the minority. If my friend thinks I am mistaken, I thank him for calling my atten- tion to it. I will, however, read that portion of the report v/hich led me to believe it was succeptible of the construction I have put upon it. DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF YIEGIXIA. 2151 Section 8 of the minority report after prescribing what the procedure shall be when the railroad charges too high a rate, after providing that there shall be a com- plaint to the commission, that then the commission shall complain to the railroad, and then the commission shall report it to the Attorney General, and, after proper pro- ceedings, it shall be brought into court, says, on page 14: "The said court or judge, if the decision is in favor of the Commonwealth, shall, by a mandatory or restraining order, prevent the common carrier or person comxplained of from further continuing to violate the law, and the costs thereof shall be- paid by the common carrier or person complained of." The point I make is that, under that provision, all that the court could say to the common carrier would be: '"You must stop charging the rate you are now charging, which is a wrong rate."- Mr. Hunton: I will state that our own Supreme Court has said exactly the reverse, not as to rates but as to connections. Mr. Braxton: I do not think the two cases are parallel. In the case to which I have before referred, decided by Justice Brewer, he discusses the matter at length. I think that the language of the Interstate Commerce Act, by inference, was just as strong, if not stronger, than the language of this section of the report. The court said, that because they did not use the word "prescribe," which was the proper and natural word to use, all that the commission could do was to condemn the rate. The provision in this section is that they shall be restrained from "continuing to violate the law;" that is, to prevent the continuance of that rate. What w^ill be the result? Let us take an instance of this sort. Here is, a specific rate that, we will ssiy, ought to be tvv^enty cents. The railroad is charging fifty cents. Some poor wight starts up a fight against the railroad on this fifty-cent rate, and after the court has heard the case and determined that the fifty-cent rate is wrong all the court can do is to say: "You must stop charging this fifty-cent rate,"' thereupon they will charge a fortj'-nine cent rate, and you have got to go back to the beginning and go over the whole matter again; and so they can come down, dying, like the squirrel, from limb to limb, falling a half a cent at time. What practical good v/ill such a provision do you? I tell you, Mr. Chairman and gentlemen of this committee, that if there is any error we can commit in connection with tliis matter it would be the error of saying, as this minority report will have you ss.y, that the right to regulate, in any way, these rates shall be left only to the courts. I point you to the distinguished failure of the Interstate Commerce Commission to-day. I point you to the distinguished failure of the present Virginia Railroad Commission of to-day, whose commissioner has again and again pointed out to the General Assembly how perfectly impotent he is with the means under his control. The effect of this minority report is to say to you: Here are two systems, the interstate commerce system and our own system, both of which have been tried for years, both of which have proven to be absolute failures, so much so that the dis- tinguished gentlemen, honorable and honest as they are, who undertake to adminster them, have come forward and told you that if you do not amend them, you may as well abolish their offices. If there be any system known to man, if there be any system v.diicli can be devised as to the inefficiency of which there is no doubt, it is the inter- state commerce system of to-day and the railroad commission system of Virginia as it exists to-day. You may have some question about others. There can be no ques- tion about these. They have been weighed in the balances and have been found absolutely wanting and inefficient. And yet the report of the minority of this committee taking up those two systems, inefficient and absolutely worthless as they are, would em- body them in your Constitution and write over their heads "Esto perpetua." As long as they are not in the Constitution, we at least have the faint hope of having them remedied by the General Assembly. To put these two defective systems into your Con- stitution, ineffective and absolutely worthless as they are, is to say: "We now place 21 b'^ DEBATES OE THE COJsTSTITUTIONAL CONVENTIOi^ OE VIRGINIA. them liere in such a way as to deprive you even of the faint hope of a possible remedy for any of their main and essential defects, to-wit: by leaving it to the courts to fix the rate, a thing which the courts have said they cannot do and are incapable of doing." As was pointed out in the article I read awhile ago to this committee, in many cases the burden and brunt of these railroad rules does not fall on the shipper. They are passed over his head to the consumer. He is the "Jones that pays the freight," just as our tariff duties to-day are not paid by the importer, but by the consumer. This is nothing more nor less than an internal tariff upon commerce by the railroads. It falls upon the consumer. In many cases there is no desire or incentive on the part of the shipper to bring suit to recover the excess charged, because he passes that on to the consumer. In shipping produce from one point to another if the railroad rate is exhorb- itant, I simply tack it onto the price and charge so much more for the product. The man who ultimately consumes it bears the brunt of the excess charge. He has got no claim against the railroad company. He has no contract with them. He would have no standing in court. How, then, is it possible for us to get any relief, or to exercise any check or control over freight rates, from the courts, as the orignal fixers of it? Mr. Chairman and gentlemen of the committee, the experience of this entire country has demonstrated that this right of the State, this conceded right of the State to regulate railroads and fix their rates is but "the sounding of brass and tinkling of cymbals." It is nothing, unless some method of enforcing that right other than through the General Assembly and the courts can be devised. In not a single solitary instance that I know of has a legislature or a court been able to show itself capable of enforcing that right. It was for that reason that a new tribunal, particularly constituted for this purpose and this work has been devised, and through the course of years has, gradually developed Into a state of comparative perfection for this purpose. It is a tribunal which combines some of the powers of a court and some of the powers of a legislature, just as the Senate has executive, judicial and legislative functions to perform. These railroad commissions are the only things which have ever yet proven even approximately capable of fiting railroad rates and of controlling railroads. The first one of them, so far as I know, was established in the State of Massachusetts. That was in the early and experimental days, when the public was groping around, recognizing that there must be something done; that there must be some other method, some other machinery for enforcing this right. They reached out and in a spirit of great conserva- tism they established their commission, which is known generally as an advisory com- mission. It did not have power to do anything except to investigate, to report, to recommend, to advise, to remonstrate, to beseech. It was purely persuasive, and absolutely without authoritj^ Gentlemen, every railroad man I ever talked to about commissions said the best commission there ever was in the world was the Massachusetts Commission — because it did not have authority to do anything. It so^ happens that that commission was com- posed of men of great distinction, of national renown, headed by Mr. Charles Francis Adams. Owing to the very remarkable and unique personnel of that commisision, owing to the peculiar and unique situation of business and railroad affairs there, that com- mission did do a great deal of good, and proved in the State of Massachusetts very satisfactory, because the railroad companies, for reasons satisfactory to themselves, saw fit to co-operate with them, to accept their recommendations in regard to the things they advised them to do. On the strength of that, other commissions, known as advisory commissions, have been established in a few other Statesi, and as far as your committee has been able to ascertain, without a single, solitary exception they have proven egregious and absolute failures so far as accomplishing anything on earth is concerned. DEBATES or THE COXSTITUTIOXAL COXYEXTIOX OF VIRGIXIA. 2153 Mr. Thorn: I understand your investigations have led you to believe that the com- mission in Massachusetts has been found adequate and satisfactory^ in that State. Mr. Braxton: In that State; yes sir. Mr. Kendall: I wish to ask the gentleman from Staunton if it was not conceded by the railroad commissioner of Massachusetts before the Industrial Commission that the efficiency of that commission in the matter of fixing rates was largely due also to its power over capitalization in that State? Mr. Braxton: I think that is true too sir; because in that State they have powers over capitalization vrhich we do not seek to give them here, and I do not think are generally given them in other States. But I leave it to the commion se'nse of this committee if it is wise for us, coming here as we do to represent the people and to provide means of government, to spend weeks and months here as we have done, and in response to the almost universal demand throughout the State that some efficient remedy be provided, that the mountain should bring forth a mouse in the shape of a commission that can do nothing, and which, after elaborate investigation of the railroad companies, VN'hen it finds that they have done w^hat it has been proven they have done would simply say to them. "Are you not ashamed of yourselves?" I say it is derogatory to the dignity of the Commonvv^ealth, it is an anomaly in government, that a commission should be established to inquire into the wrong doing of any person or corporation subject to that government, and when it finds out that they have violated the law, can simply bring them here, like a mother wo aid her little boy, and read the bible to them, and reprove them. Government of itself implies force and power. It implies the ability to enforce its^ requirements; and when you do not have if, 3'our government is worse than no government at ail; and the facts, I submit, if you investigate them, will bring you to the conclusion that in not a single state of the Union has the Massachusetts Commission ever amounted to a row of pins. You will find the railroads with one accord saying: "Give us the Massachusetts Commission," because they know when they get the Massachusetts Commission, they have nothing but a naked shadow. About 1870 to 1872 the State of Iowa established the first commission v/ith power, a commission which had the right which every other department of government has, to inquire into wrongs, to correct those wrongs, and to enforce its judgments. A great hue and cry went up and the same raw head and bloody bones that have been shaken at us here in this State and are now paraded up and down, that they were going to stop railroad building, that they were going to drive out capital, that they were going to bring chaos and old night upon us, was paraded out there and did service there as it has done in every State that has attempted it from that time to this; and yet, gentlemen, none of those predictions came true. Nineteen States of this Union to-day have within their borders commissions with powers to fix rates and to regulate railroads; not advisory commissions, but commissions of the same general character that we propose to give you here. A letter from the Interstate Commerce Commission gives me the following infor- mation: There are twenty-nine States in the Union that have railroad commissions of some sort. The following State commissions have only advisory powers in regard to rates: Maine, Massachusetts, New York, Rhode Island and Vermont, those old Ea-stem States, where conditions are essentially different from what they are here. There are five of them. The following State commissions or commissioners have full power in regard to rates: Connecticut, Michigan, Ohio, Virginia and Wisconsin. The following nineteen States have commissions with powers to prescribe rates: Alabama, Arkansas. Cali- fornia, Florida, Georgia, Illinois, Iowa, Kentucky, Louisiana, Minnesota, Missouri, Mis- sissippi, New Hampshire, North Carolina, North Dakota, South Carolina, South Dakota, Tennessee and Texas. 136— Const. Deb. 21U DEBATES OF THE COXSTTTUTTOXAL COXVEXTIOX OF YIRGIXIA. This is no new experiment, Mr. Chairman. Mr. Hunton: How many States have such provisions in their Constitutions? Mr. Braxton: Tw^o of them, Kentucky and California. Mr. Chairman and gentlemen of the Committee, one of the things which will be held up to terrorize and alarm the committee — I do not mean that in any improper sense; I have no doubt the gentlem,en who use that argument believe it themselves, but I think they are mistaken in it — but one of the dangers which it is thought by some of our worthy and distinguished friends encompass this thing, is that it will check the building of railroads. Now gentlemen of the Committee, I leave it to you, if the building of railroads, or the want of the building of railroads, depends upon anything in the world but two con- ditions, the one a geographical condition, the other a trade condition. Did you ever hear of a railroad built because of friendly legislation that would not have been built otherwise? Did you ever hear of a railroad that was not built because of adverse legis- lation that would have been built otherwise? Go over the country, think of it yourself, and you will see that geographical conditions and trade conditions are the sole and only causes for the building or the non-building of railroads. Everything the railroad can get out of the State in the shape of unreasonable concessions, just like the subscriptions they get from the counties, is just that much that they have humbugged silly men out of. They would have gone there anyhow, or they would not have gone there anyhow. I do not say we should enact a single, solitary thing in our constitution that is unjust, unreasonable or unwise; but I say that in the considerationsi which actuate us do not let us think that reasonable and proper legislation will deter the building of railroads, be- cause the building of railroads does not depend on legislation. I feay that, within the range of any ordinary reason, there is no legislation I know of that will do so ; and I will show you figures in a moment, that in those very States where it is said anti-railroad legislation is the most violent, there has been built the greatest mileage of railroads in recent years. I think the railroads considering their size and their power, are very scary people. When the poor, little innocuous Interstate Commerce Commission was proposed, they fought it for eleven years, and swore it would break up railroad building in the United States. Eleven years elapsed from the time the Reagan bill was introduced until it finally got into the state in which it is to-day as legislation. It has done no good, but if it has hurt anybody it certainly is not the railroads that have been hurt by it. Wben we proposed to put the employers' liability bill upon the railroads, they besieged High Heaven with their protests that it would absolutely ruin them and abso- lutely destroy them. Many of those gentlemen now think it is not so bad, after all. A few years ago, when the question of taxation was up, it is said that prominent railroad officials came here and said: "Of all methods of taxation, in the name of jus- tice do not impose upon us any taxation upon our gross income. It is the worst, the most unjust, the most unfair, the most absolutely destructive thing, that ever was in the w^orld;" and if I understood their position correctly, men representing the sarae interests, in a great address to the Taxation Committee of this body came forward and recommended substantially that that very method of taxation be adopted as a fair and just and equitable one under all the circumstances. I say this to show that they are not infallible in their predictions as to the effect of these m.easures, any more than any one else. I say that to tell you you must not allow yourselves to be scared away merely by these predictions of destructiveness to capital and interest, unless they can give you reasons which appeal to your own reason to support it. The miere naked generalities that they deal in do not pan out; and giving those gentlemen credit for believing all they say at the different times, I say they are mistaken. They are too timorous, too sicared. Now as to the effect on the general prosperity and on the building of railroads. One of the most effective commissions in this country is the railroad commission of DEBATE? OE THE COXSTITUTIOXAL COXVEXTIOX OE YIEGIXIA. 2155 Georgia; and Tvlien the State of Texas was tliinking of establishing a similar commission with power some eight or ten years ago, I well remember seeing a letter from Mr. C. P. Huntington, the president of the Southern Pacific Railroad, in which he told them if they did establish such a commission, he would never invest another cent in the State, and he predicted there would never be another mile of railnad built in that State. Yet they did adopt it, and they adopted what at that time was the most effective and the most drastic one in the L'nited States. I will give you statistics to show you that last year, under our present ineifrcient Railroad Commission Bill, where we had about twenty miles of road built, the State of texas had 581 miles, more than any other State In the South, and almost more than any other State in the Union, Those people down there were alarmed by these Cassandra-like predictions, and they wrote to the chairman of the Georgia railroad commission to find out how the actual working of that commission, which had been in existence about eleven years, had acted; and if the committee will bear with me, I will read you the reply of the chairman of the railroad commission; JrxE IS, 1S90. Kon. T. .J. Browx, Sherman, Texas. Dear Sir — In reply to yours of the 3rd Instant, asking to be informed in reference to the workings, effects, influence, etc., etc., of the railroad commission in this State, I give you the following st-atement of facts, without detail or elaboration: The railroad commission of this State was organized October 15, 1S79. Its annual cost to the State is S10,00<"'; S2,500 of this sum being appropriated to^ each of three commissioners, SI, 500 to a secretary, $1,000 to advertising, publishing and office ex- penses, A very large reduction in the charges made by railroads for freight and passengers has been made since the organization of the commission in this State. To show this reduction I state that in 18-79 the charge made for the transport ati on of passengers was five cents per mile, whilst the rate now charged is three cents per mile, and to show it in freights I submit the following table of rates in 1879 and in 1S90, taking the Savannah division of the Central Railroad as an example: Rate charged by the Central Railroad Company per 100 pounds: Articles. 10 Miles. 50 Miles. 100 Miles. 140 Miles. 200 Miles. 250 Miles. Bacon Su.20 SO. 22 S0.25 SO. 28 SO.-iO S0.45 Flour 0.20 0.22 • 0.25 0.28 0.40 0.45 Grain 0.15 0.18 0.22 0.2:3 0.35 0.40 Cotton 0.25 0.30 0.40 0.40 0.55 0.65 Rate allowed by the Railroad Commission per 100 pounds: Articles. 10 Miles. 50 Miles. 100 Miles. 140 ^liles. 200 Miles. 250 Miles. Bacon $0.08 S0.13 $0.18 $0.22 S0.26 SO. 30 Flour 0.06 0.10 0.15 0.19 0.23 0.25 Grain 0.05 0.09 0.14 0.18 0.20 0.22 Cotton 0.10 0.19 0.25 0.29 0.35 0.40 This immense reduction in charges for freight and passengers has been accom- plished without injury to the railroads. They have prospered, whilst the people have been benefited. The market value of the stock of our most important railroads has been steadily increased. This is shown by the following comparative statement of the prices at which the stocks of the Central Railroad and of the Georgia Railroad and Banking Company, the two most extensive railroad systems in this State in 1879, were selling in 1579, and are selling now: Selling at Selling at in 1879. in 1890. Georgia R. R. stock 78 201 Central R. R. stock 79 121 Xot ouly have the charges of railroads been reduced, and the value of their property enhanced; but there has been an immense increase in their mileage since 1879. The 2156 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIEGINIA. records of this office show that for the five years immediately preceding the establish- ment of the commission, in 1879, there were built in this State less than 100 miles of railroad, showing an annual average of about 20 miles, and since 1879 to the present time there have been built in Georgia 2,000 miles of railroad, making an average of 200 miles per annum. The sentiment of the people of Georgia towards a railroad commission can be deter- mined by the following facts : All candidates! for the office of Governor in the past eight years; the members of the present Legislature, without a known exception; the present candidates for Governor; the candidates for Congress and for the Legislature at this time, who have been announced, have been, and are, in favor of a railroad Commission; and that "many organizations of the alliance favor and increase of the powers of the existing commission. The establishment of a railroad commission with the proper powers to make joint rates, for all connecting roads in your State, would certainly result, in my judgment, in the building of many roads from trunk lines into sections that otherwise will never have the benefit of a railroad. This would follow, because the railroad commission, by the making and enforcing of a joint rate over the two roads (the new and the trunk line), to the commercial centers of your State, would be a guarantee against the exercise of unfriendly hindrances, and the establishment of such arbitarary rates by the trunk lines as to head off and crush out the new road and thereby making its construction impracticable. With such a joint rate, however, the new road would be able to reach your commer- cial cities with their shipments over the trunk line upon such just and reasonable teiTQs as to insure their construction and make them pajdng roads. In the absence of such a regulation, the new roads would be forced to build long and expensive through lines to reach the commercial thoroughfares, at a cost so great, in many instances, as to entirely defeat their construction. Without such power vested somewhere to overcome the arbitrary rule of trunk lines, they may entirely prevent, by the means above alluded to, the building of roads in large sections of your country, and absolutely lock them up against all railroad facilities except as furnished by themselves upon their ov.'n terms. With such a regulation, however, and the enforcement of such a rate, all sections of your State that are able to build a short road and connect it with any other road can do so with the assurance given by the authority lodged in a commisision of being justly and fairly dealt with, which would, as I have said, insure the building of railroads into sections that are now without them. One other reason, and probably the strongest one that can be given showing the necessity of a railroad commission, grows out of the fact that the stocks of railroads are now held largely for speculation, and not as an investment. If they were held as an. investment, it would be to the interest of those holding them to give to the country such a service, at such rates as would add to the wealth and population of the country, which would, in return, remunerate the roads by the increase of travel and larger tonnage, as the natural results of increased population and wealth. But when the stocks of the road are held as they now are, for speculative purposes alone, the holders have no interests in the future of the railroads, or in the future of the country which they traverse, or in the people of that country. Their interest is in the reports and in the next dividends. As these are to govern and regulate the prices in which they look for advantageous sales and large profits, this state of affairs causes an irresistible demand by the holders of the stocks, upon the officers who are managing the roads, for favorable reports and large dividends, which can only be given by exacting such high rates of the patrons of the roads, and the country through which they pass, as to strip every industry and every interest that the road may touch, of all profits, with most disastrous results to the country arid to the people. A railroad commission, clothed with proper authority, could prevent all this by the establishment of rates that would be just to the country and to the roads by dis- DEBATES OF THE C0X5TITUTI0XAL COXTEXTION OE YIRGIXIA. 2157 regarding these demands made by speculators in stocks, and prescribing and fixing a rate for the roads by which the country would be developed, enriched and made populous. The stimulus that such a favorable rate would give to all pursuits and all industries would in return pay the roads, by reason of increased travel and a larger tonnage, more than they now make by the high rates upon their light travel and small tonnage." That was the opinion of the Chairman of the Georgia Commission as to the effect of a railroad commission such as was established in Georgia, after eleven years of exper- ience. In North Carolina they have had a similar commission, one which is more like the commission which the majority of your committee report than any commission in the United States. It is one of the most recent, being only about three years old. In reply to the fears that my worthy friends have, that this vrill work a hardship on the railroads, I will tell you how it has affected them in North Carolina, as shown by their report, gotten out in January, 1901. This was under the working of a commission substantially the same as we have now: In 1S97 the gross earnings in North Carolina were $11,2.52,359; in 1S98, $11,543,516; in 1899, $12,995,725; and in 1900, $14,919,832. While the operating expenses for 1897 were $7,657,786; for 1898, $7,395,548; for 1899, $8,186,500; and for 1900, $9,336,881. So that the net income from operations for 1897 was $3,594,573; for 1898, $4,147,- 968; for 1899, $4,809,235; and for 1900, $5,582,950. A steady increase from year to year right straight along; and last year was, as I said, nearly $800,000 net increase, and all under the operation of a railroad commis- -sion which my worthy friends think would be absolutely destructive to railroad inter- ests. Let us look at this Georgia Railroad Commission in a more recent report. I will give the mileage and the gross earnings, and not encumber the record with any fuller statement of this table, but I should be very glad to show it to any member who desires to see it. I read from page 138 of the last Georgia Commission report. In 1S95 there were 5,240.52 miles of railroad in Georgia, whose net earnings were $4,532,416.36; in 1896 there were 5,291.41 miles of railroad; net earnings, $5,270,131.67; in 1897 there were 5,374.82 miles, with net earnings of $5,632,349.06; in 1898 there were 5,475.26 miles, with net earnings of $5,552,306.01. In 1899 there were 5,531.86 miles, ^ith net earnings of $6,296,591.51; in 1900 there were 5,614.88 miles, with net earnings of $6,790,519.43; in 1901 there were 5,816.80 miles, with net earnings of $6,862,573.19. So that it seems the Georgia Commission has not proven so destructive. Remember, Mr. Chairman and gentlemen, we have nineteen States in the Union under which these railroad commissions are in operation. In a recent publication which appeared in the Virginian-Pilot, of January 4, 1902, as to the mileage of some of the southern roads, I find that in Alabama last year there were built 102.97 miles; in Arkansas, 155.91 miles; in Florida, 59.80; in Georgia, 203.45 miles; in Kentuclcy, 37.24 miles; in Louisiana, 160.73 miles; in Mississippi, 98.46 miles; in North Carolina, 72.90 miles; in Oklahoma, 427.82 miles; in South Carolina 47.50 miles; in Tennessee, 125.13 miles: in Texas (where they have one of most stringent railroad commissions in the country), 583.60 miles — and that is the State where Mr. Ktmtington predicted there would never be any more railroads built: in Virginia, where vre practically have a com- mission without pov'ers, 20.60 miles; in West Virginia, 100.85 miles. Can you think from that that the existence of these railroad commissioners is inju- rious to the building of railroads? Louisiana has a very stringent railroad commission, and It has, next to Georgia, I believe, the largest mileage in the South. Then in the matter of increase of mileage last year, comes Georgia, and then Texas, with 160,203 and 583 2158 DE-BATES OF THE COXSTITUTIOXAL COXVEXTIOi^ OF VIRGINIA. miles respectively, in those States where they have the strongest railroad commissions, except in North Carolina, in the South, as against twenty miles for old Virginia. Here we stand at the very threshold of all the northern commerce that is pouring into our Southland. Day by day, month by month, and year by year, do we see it pass over our borders and go down to the southland, down to North Carolina and to Georgia, where we see manufactures budding forth like young spring blossoms almost every day in the year; where they have prosperity and thrift; where $85,000,000 was added last year, as I understand, to the taxable value of North Carolina. They have railroad com- missions, and we practically have none. Can anything speak to you, gentlemen, more eloquently than that; and yet my worthy friends tell you that if we adopt the very institutions that have been adopted by these thriving States, who kre not blessed by nature with one-tenth of the resources we have, that what has proven a God-send to them and made their wilderness bloom and blosisom like the rose, will prove absolutely destructive to us, and will make us lose that miserable little mileage of roads we got last year instead of gaining some of the hundreds of miles of roads that these other States gained under similar circum- stances and conditions! I do not like to weary the committee so much with these dry figures, but gentle- men, we are not here so much for pleasure or for our health; we are here to attend ta business, business of the utmost importance, and even if it does weary us, we must stand up to it and bear it, because it is important. Figures talk, and figuresi do not lie. In connection with what I stated to you just now, that in the United States are jn^neteen States with power to control railroads and fix the rates, let us see if the- railroads have suffered under these institutions; and in this connection, Mr. Chairman and gentlem.en of the committee, let usi try, if the human mind is capable of grasping such figures, to form some vague conception of the extent of the power of the transpor- tation companies, that are now practically, so for as our trade is concerned, without law in the fixing of their rates and the controling of their facilities. I read from the last report, made about a month ago, of the Interstate Commerce Commission: The returns of railroads show that they are operating 192,193 miles of line, or probably 99 per cent, of the mileage that will be covered by the final report for the year. The passenger earnings of these railways were $426,909,210, and the freight earnings $1,114,740,770. The total earnings were $1,578,164,205, or $8,211 per mile of line. The gross earnings for 1900, as shown in the final report for that year, were $1,487,044,814. The operating expenses for 1901 amounted to $1,023,156,281, or $5,323 per mile of line, the net earnings of the roads included in this advance report being $555,007,924, or $35,577,218 in excess of their earnings during the fiscal year 1900. The total income of these roads, including $65,271,244 received from investments and other sources, was $620,279,168. The total deductions from income, not including dividendsi, were $421,625,796. In this amount are included interest of bonds, rents for leased lines, betterments charged to income, taxes (which were $47,041,214), and other miscellaneous charges. The amount of dividends declared during the year was $121,108,637. As it is shown that the dividends of the corresponding roads for 1900 were $108,210,652, it appears that the pecuniary returns to their stockholders in 1901 were about $13,000,000 greater than in the year before. It should, perhaps, be explained that the dividends stated in these preliminary reports, which are compiled from the reports of operating roads only, do not represent the total amount of dividends declared on the stocks of all tne railways in the United States, because the dividends declared by those companies that lease their property tO' others for operation are paid from the rentals they receive, and such dividends are necessarily omitted from the reports- of this character. Returns for a series of years indicate, however, that the total amount of dividends paid by both classes of companies annually includes about $30,000,000 paid on the part of leased lines. I read those figures,, gentlemen, to refute the charge that railroad commissions are injurious to the railroads and the people who invest in them. We cannot control inter- state commerce, or effect it. Our railroad commission is limited in its operation to DEBATES OF THE COXSTITUTTOXAL COXVEXTIOX OF VIRGIXIA. 3159 local traffic; but gentlemen of the committee, local traffic is vastly more in need of protection from the government than is interstate commerce. Interstate commerce is generally much larger in bulk; much more is involved; bigger interests are at stake, and they can better afford to fight their own battles and protect the little local ship- pers along the line. Interstate commerce almost invariably proceeds from points where there is v\-hat- ever may be left of competition. Local traffic is absolutely vithotit competition. But one railroad runs through one community, and that railroad is absolutely master of thQ situation. It is in the nature, necessarily, of a monopoly, ho^Yever liberal-minded the men may be who manage it. I say, therefore, it is the local traffic that needs protection most. As to many of the little local dealers, because their freight is not large, the railroads do not care to haul it. In every business, there is a part of it which is not remunerative nor particularly desirable, either on account of its character or on ac- count of its extent. That is true in the railroad business just as it is in every other business, and the railroads vrould be very glad to get rid of it. They do all they can to discourage it: and notwithstanding the fact that that traffic and freight may mean everything in this world to the man who ships it, it is of such little importance to the railroads that, in order to get rid of the bother of handling it, they will do all chey can to harass him. to break him down and drive him out of btisiness. He is the man who needs protection. How often, when a railroad, in order to get freight to carry from one big metropolis to another, does not make as much on its through freight as it would desire, it makes up the difference on its local freight, where there is nothing to protect the local shippers and where the railroad can charge what it chooses. One other remark, gentlemen, and this I want you to remember if you do not re- member anything else I have said in my long and. I know, tiresome address to you. The railroads of the State have practically admitted that it would be just and proper to increase their taxes some $200,000 or more. Your Committee on Taxation has re- sorted a scheme of taxation where the taxes of the railroads will be increased several hundred thousand dollars in the State. Now, I ask you, gentlemen, as business men, as a common-sense proposition, unless, there is some efficient government control over the rates of those roads, do you not know that they will pass every dollar of that tax over to the shippers along their local lines, and make the people of Virginia pay every cent of it? While yoti think yoti are taxing the railroads, they are laughing in their sleeves and saying, as a distinguished railroad president is said to have stated to a member of this Convention not long since, "You old fogies down in Aarginia don't know how to handle corporations and railroads." Ever\' dollar of it will come from your constituents and mine, unless you adopt some effective means to control them and prevent their raising their rate just as ft may be necessary to meet their increased taxa- tion. Mr. Hunton: As to the remark which the gentleman attributes to a distinguished railroad president, was it addressed to the subject of taxation or the subject of rates and a commission? :*dr. Braxton: I think it was addressed to the subject of taxation. That was the subject to which I was trying to address myself, and to show that unless you couple with your provision for increasing their taxation some other provision that will pre- vent their passing that tax on to the local traffic on the sides of their roads, 3-ou have done a vain, futile thing, and you have just increased 3-our own taxes without knowing it. Now, gentlemen, I come to the discussion of the particular provisions of our com- mission, as your committee has reported it to you. It has been painted to you very much like the devil, with hoofs, hide and horns, but I think when you examine it you will find it does not justify any of the criticisms that its opponents have passed upon it as being a radical and extreme measure. This commission affects both the transportation companies and the general coi^ora- 2160 DEBATES OF THE CONSTITUTIONAL CONVEXTION OF VIRGINIA. tions of all sorts, kinds and descriptions; but so far as it affects private corporations, not transportation companies it contains nothing practically new. Your committee when they come to consider this subject, recognized the fact that the corporate Interests of the State are exceedingly large, that a very large proportion of all the property of the State is invested in corporations of one kind or another, and a large part of the people of the State are interested in corporations of one kind and another. They recognize the fact that as. time goes on there is every probability that the increase of corporate property will be very great; and that niodern commercial life demands and requires that any entei-prise, except on the smallest scale, be conducted and approached through the instruments of corporations. It seems to us, therefore but reasonable, when we came to deal with a subject of such vast importance as this that there should be devoted to its consideration some special department of the government, and not that it should be tacked on as an excresence, as it were, upon a half dozen different departments of government made the duty of different government officers to consider that, along with other duties which they have which are not at all cognate. Therefore, it was our idea to take all the departments of the State in every respect as they relate to corporations, and bring them under the head of one great department, devoted entirely to the consideration of the corporate situation, making it sufficiently elastic to have as many several depart- ments, bureaus and what not, as in the course of development and time it may be found necessary to have. We found that the General Assembly was taking up a great deal of its time, two-thirds of it, in granting or refusing applications for special charters. We found that all the cities throughout the Commonwealth were grinding out charters day by day, without any uniformity of action, and without any regularity, with nobody keeping tracK of them. We found the Secretary of State charged with being the custodian of those charters. We found the auditors charged with collecting reports from banks and insurance companies.. We found the Board of Public Works charged with assessing the property of certain other kinds of corporations. We found the Railroad Commissions charged with looking after still another kind of corporations. Six departments of the government were looking after the corporate interests in their various capacities. We thought the best and v/isest thing to do, without changing those functions at all, v/as simply to collect them together and put them under one department charged with the exclusive duty of looking after corporate interests, con- structed especially with reference to that thing, headed by men whose sole duty it was to consider the corporate situation as it existed, capable of advising the General As- sembly, when they come here, through their annual reports, of what is wise and un- wise in the dealing of the States with those corporations. So far as private corporations are concerned, we simply say that all the functions of the State in creating, regulating, supervising and controling these corporations, whether those functions be extended or contracted, shall be brought together and per- formed through this one department of government. With respect to the private corporations, thlsi commission has no powers whatsoever that are not purely ministerial. It practically does not do a thing with reference to them that is not already done by some one else. The insurance companies, in stead of making their reports to the Auditor, make their reports to the Corporation Commission, The banks, instead of making their report to the Auditor, make their report to the Corporation Commission. When a man wants a charter, instead of going to the court and leaving it to the judge, unrestrained, to say whether he will grant the charter or will not grant it, or on what terms he will grant it, he makes, an application under the law to the Corporation Com- mission, which is bound to grant a charter when asked for, provided the requirements of the law in such case are complied with. When that charter is issued, it is filed at one place. All the reports that may be required to be made — they do not specify the report; the General Assembly specifies the report — are now gathered together, some in the railroad office, some in the office of the Secretary of State, some in the Auditors DEBATES OF THE COXSTITUT tOXAL COXA'EXTIOX OF VIRGIXIA. 2161 office, some in the office of the clerk of the House of Delegates : but all public documents and information with reference to corporations will then be found in one place, where j'ou can go, and to which you can write for all information that the public will have a right to get. Some of my worthy friends have thought that this provision authorized the com- mission to prescribe what sort of reports corporations should make; but if you will read it carefully you will find that they are given no such authority. They are given exactly the same authority as the auditor has to-day. The General Assembly pre- scribes the report, and the commission simply provides the form in which the report is made, just as the statute to-day says^ that the Auditor shall prescribe the fo/m in which the reports that are required by the General Assembly shall be made. So that, so far as all private corporations are concerned, this Corporation Com- mission does not affect them one iota or one stiver more than they are affected to- day. One single function is put upon them which does not exist to-day; and that is that, while the statute to-day requires different kinds or corporations, especially foreign corporations, to comply with certain requirements, to file their charter, make a list of their directors, state what their capital stock is, and appoint an agent to have process served on him nobody is charged with the duty of seeing that that law is enforced. The result is that from what we can learn, there are hundreds and possibly thousands of corporations; doing business in the State to-day who have not complied with the law. It is made the duty of this commission not to prescribe any report, not to prescribe any duty for a private corporation; but simply when that duty is prescribed by the General Assembly, it is, the duty of this commission to see that the corporations comply with it, by making the kind of reports that the General Assembly says they shall make, and all they can do in such case is, when it comes to their at- tention, or when they ascertain, that a company has failed to file a report which the law requires of it, they shall send a notice to the company to appear before them on such a day and show cause why they should not be fined for not filing their report. When they appear, if they do not show good cause, this commission has jurisdiction to fine them, from one cent to $500, if they choose. The General Assembly is left free to give them an appeal in every case as to ever^'thing the commission can do, to the Supreme Court of Appeals of the State; and I challenge any gentleman to put his hand on anything in connection with the private corporations of the State, where the so- called arbitrary power of the Commission exists. It has no power or right to do a thing except to administer the identical functions that are to-day administered and in addition to that simply to say that the corporations shall make the reports that the law requires of them, and on their failure to do so, to fine them, subject to the right that the General Assembly can give them at any time, to appeal to the Supreme Court of Appeals from any decision, however trifling it may be. Great effort has been made by my friends, the railroads, to confuse in the minds of the people the functions of this commission as they apply to private corporations and as they apply to public corporations. They use the vague phrase, that it affects all coHDorations. Certainly it does, but it affects them in very different ways. WTien they tell you this is an iron hand upon the corporations, that it has put them in straight- jackets, that it is arbitrary. I ask 3'ou to take the report for yourselves and see what single solitary thing there is in there that this Commission can do to any corpora- tion, outside of a transportation company, that is not now done by some officer of the State, unless it is in the respect of which I spoke to fine them for failure to make such kind of reports as the General Assembly may require. They cannot specify a thing in their reports upon these private corporations that the General Assembly has not control of. Now, then, gentlemen of the Committee, and Mr. Chairman, I hope you will, in all I am about to say now, understand and bear in mind that none of the functions which 2163 DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF VIRGINIA. I am about to discuss of fixing rates and prescribing rules and regulations, apply to any corporation except the transporation or transmisssion companies. They are the functions which this commission performs in its capacity of a railroad commission, and in that capacity only. First, as to rates. I will endeavor to point out to you that the State has the right to prescribe rates, and that is conceded. I have attempted to point out to you that the occasion exists for exercising that right; and that is practically conceded, even by the report of the minority. It is simply a question between the minority and the majority of this committee, as to which is the most effective and efficient way to do it. We say this Commission shall have the power of fixing rates and charges of transporta- tion of railroad companies. We say it because, for the reasons I have tried to explain to you, it is utterly impossible, as a physical thing, for the General Assembly to do it, and it is utterly impossible for the courts, as an original thing to do it; and we say this Commission shall fix those rates and classification of traffic. But out of abundance of caution, so that there cannot be, by any possibility, any injury done, — and your committee has striven with all the might they are capable of to be as conservative and as careful to hedge about this provision by every means known to civilized government, to prevent abuse in every case where a rate or a classi- fication is fixed or anything that can affect the charges of a railroad company — they are given the right to appeal to the court of appeals; they are given the right to con- tinue making their own rate and continue collecting their own rate until the appeal is settled by merely giving a bond to refund the over charge if the appeal is not sus- tained. The hearing of that case is given precedence on the docket of the Supreme- Court, and it is provided that it matters not whether that court is sitting here or in Staunton or in Wytheville, it matters not how many cases are on the docket ahead of it, with the sole exception of cases involving personal liberty, such as criminal cases and habeas corpus, all these appeals from decisions of the Commission on rate ques- tions shall have precedence and shall be heard without delay by the court. We provide that when the case gets into the court, if the railroad thinks it has forgotten or omitted any evidence that it ought to have introduced, or if it has been taken by surprise by any evidence certified up by the Commission, it shall be in the discretion of the court to remand the case to the Commission for further examination; and during all that time the railroad goes on charging its own rates, just as it did before, merely with the provision that if the appeal is ultimately dismissed, it will refund the excess. So that if they sustain their appeal, no possible harm is done to them. In order to illustrate to the Committee the actual work of this provision, and to leave it to you as fair-minded men to say whether any harm comes in, any injustice, anything arbitrary, we will say there is a rate from Lynchburg to Richmond, on some specific article, of fifty cents. This Commission, either of its own investigation or because its attention is called to it by anybody complaining, has it brought to their attention that this rate is probably too high, and that some lower rate, say forty cents is a proper one. The railroad is summond to show cause, if they can, why the rate of fifty cents from Lynchburg to Richmond be not reduced to forty cents. The railroad appears and introduces its evidence. It makes its arguments to show why fifty cents is a proper rate, and ought to be retained. If the Railroad Commission thinks that is true, it confirms the rate. If the investigation was started on the complaint of anyone, and that complainant is not satisfied, he can take an appeal but suppose the Railroad Commission says, after hearing the railroad. "We are not satisfied with your reasons; we find that you used to haul this same thing, up to six months ago, for forty cents; you have not been able to point out to us any difference in conditions. We find that other railroads are carrying the same character of goods for forty cents. In short, it is our decision that forty cents is a proper rate." Now, if the railroad company thinks that is just, all they have to do is to stop and ask forty cents. But if the railroad DEBATES OE THE COXSTITUTEOXAL COXVEXTIOX OE TIEGIXIA. 2163 company thinks the Commission has erred, if they think they ought to continue charg- ing fifty cents what do they do? They say to the c-ommission. "Yi'e will take an ap- peal; we will give a refunding hond under which we will agree to refund to the various shippers that additional ten cents that we may collect from them pending an appeal if our appeal is not sustained." They give that refunding bond, and they continue to charge fifty cents, :"List as they always did.. That case is immediately certified to the court of appeals. Accompanying the certificate is a report of the Commission exactly like the report of the special Master in Chancery, stating the reasons and the facts upon which it bases its conclusions; and when it comes up before the Supreme Court, if the railroad is satisfied with the record, they go to trial on it and it is the duty of the Attorney-General to represent the decision of the corporation commission; but if the railroad finds that in the facts certified up by the commission are some facts that they did not know were before the Commission and that they think they could meet, they represent that fact to the court, and the court can remand it for further proceedings by the Commission. The case, when finally made up, is heard by the court, just as any other case is heard, on the record, on the report of this special master, you may say; and if the court thinks the decision of the commission is right, it affirms it, and then the railroad will have to refund that ten cents to the people from whom it collected it pending the appeal; but if the court does not affirm it, the court can set it aside and restore the fifty cent rate, or it can say that the rates shall be forty-five cents, and the refunding will only be five cents. Xow. what harm is done to the railroad company? Here is a controversy between the shippers and the public on the one side and the railroad company on the other. The railroad company says in effect. '"We alone are capable of deciding that con- troversy, to which we are a party." I say, "You are not fit to decide it. No man should be allowed to be judge in his own case. Here is a matter that you do not agree to, and it must be passed upon by an impartial tribunal, from which you shall have the right of appeal to the highest court in the State, with every protection that every other man has on any controversy that can involve his life liberty or property." Xow, gentlemen of the committee, unless it be that this question of fixing railroad rates is a thing which is incapable of treatment, how in a fairer way could you have it passed upon than in the way your committee has proposed to you? If you went to the court, in the first place, what would the court do? It would inevitably refer the matter to a master in chancery, or to a special master, to examine into it and report on it. We say it shall go to the master in the first place, that the master must not be an ordinary master in chancery, but must be a body composed of high officials of the State who are experts in such matters, who pass on subjects of that kind, and nothing else, every day; and when they have made their report, if the parties are not satisfied with it, the court can revievr it like they do any other report, and can render a judg- ment accordingly. My friends say that this commission should not be allowed to pass upon these mat- ters to investigate them themselves. I say, gentlemen, that that is the function per- formed by this commission in its capacity as a special Legislature, as a committee of the Legislature. It is a legislative function which the Constitution confers upon them because it is of such a peculiar character that the ordinary Legislature is not organized in a way to perform it. It is its duty to investigate it just like it is the duty of the Committee on Taxation of this body to investigate the subject of taxation, and not to sit still and wait until complaints are made before it; and when it has rendered its decision — and here comes in another difference between me and the gentleman with whom I am so unfortunate as to disagree — some of my worthy friends may say that you may let your railroad commission fix it, but you ought not to allow them to enforce it, you ought to make them go to the courts to enforce it. I am frank to tell you, gen- 2164 DEBATES OF THE COXSTITUTIOIsTAL CONVEXTIOJsT OF VIRGINIA. tlemen of the committee, that in many of the States the railroad commissions are obliged to go to the courts to enforce their rates; but, without exception, as far as I know, it is recognized in those States that that is a defect in the provisions of their railroad commissions. It is a defect which has occurred because of one of two reasons. Those commissions, as a rule, were established by statute and not by Constitution; and, therefore, judicial powers could not be conferred upon them. For the identical same reason that in Illinois the statute which established the Torrens land system failed because they could not give it judicial powers without a constitutional provision, and, therefore, owing to that constitutional defect in the State, they were obliged to say to these people. "You will have to go to court to enforce your restrictions; we can- not confer upon you judical powers;" but just for the same reason that in the report of the Judiciary Committee made to this body, the authority is given to establish a special court for the Torrens system, and give them judicial powers, so for the same reason we say here that that defect shall not exist here, because we are not struggling to-day with a constitutional inhibition. We are making a Constitution, and we will provide that this commission should have judicial powers to enforce its own decisions, subject to appeal in every case in which the Legislature chooses to permit an appeal, and in cases of execessive charges, subject to the appeal that we give it by this Consti- tution itself. In other States where the difficulty was not constitutional, the same question arose that was referred to by the Interstate Commerce Commission, the opposition of the railroads to any legislation along that line; because there has not been a single step taken in it that has not been taken against the serious protest of the railroad interests in every one. Where is there anything unreasonable in this? We establish a commission com- posed of men of the highest character it is possible for us to get. Their method of appointment, their qualification, their term of office, their remuneration, are all cal- culated to establish a tribunal as high in every respect as the Supreme Court of the State. We establish it for the purpose of fixing railroad rates; and yet, if what my friends say be true, we say to that tribunal. "Having been organized for the purpose of fixing rates, having inquired into the matter and given the parties their day before you to be heard, and having fixed those rates, the presumption of the law shall be that those rates are wrong, unjust and unreasonable until some court shall have reviewed the decision and stated it is otherwise." We say on the contrary, that when such a tri- bunal, in the exercise of its functions, has fixed these rates, the presumption of the law shall be that they are just, reasonable and fair until a court reverses it and decides to the contrary. We say the same rule shall apply in that case as applies to every other inferior tribunal, that its judgments shall stand and shall be enforced until they are set aside, and shall not remain nullities until they are affirmed. What sort of a position would it be, gentlem.en, to say that a judgment of a circuit court should be of no effect until the man in whose favor it is rendered had taken it to the Court of Appeals and had it affirmed? And will it not be substantially the same thing if you say that these rates, which have once been fixed by this commission, shall remain without force and virtue until the State or the railroad commission has taken the question to a court and had the decision affirmed. We say that, just like a judg- ment of a circuit court, those rates, when made by the constituted authority, shall be regarded as legal, fair and reasonable, and shall be in full force and virtue until the person objecting to them has taken them to the court and had them reversed. We say to the railroad in every case, without exception, however small or however great, "Where your charges are affected, you shall have the constitutional right to take the matter to the court and have it reversed if you are not satisfied with it; but if you do not choose to do that, then you shall not stand still and defy this commission and say to them that you will not appeal their decision nor pay any attention to it." We clothe this commission with such power as its importance and dignity demand, so that when it has fixed a rate for a railroad it may say to that road, "You must either DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE YIRGIXIA. 2165 appeal from this rate and have it reversed, or you must obey it; and if you do not obey it, Vr'e will summon you here; and unless you give us good reason for it, we will fine you; and if you do not want to pay the fine, 3-ou must appeal from that; and if you do not appeal from it, the sheriff shall execute it as any other judgment of a court." Is there anything unreasonable in that, gentlemen. Is it not perfectly anomalous to do otherwise? We might as well recognize this fact once for all. We must say we will give up our power to fi:x the rates, we will surrender ourselves to the tender mercies of these gentlemen who control the railroads; or else, if we are going to do it, we must do it in some effective way — effective but conservative, proceeding along the same old beaten track of judicial proceedings as has been done heretofore, and of legislative investiga- tion and enactment. Let this commission investigate the matter, get all the evidence they can and pass upon it, when the public thinks the railroad is charging too much and the railroad thinks it is not. Do not say we will leave it to the railroad to settle it; but let us go, like every other man goes, into the courts of justice established especially for that purpose, organized in the only way in which to perform that function. Let us go to the commission, composed of impartial men, and have them say whether or not the railroad is right or the people are right. Do not wait for the individual man to complain; because, as I have told you, a shipper away out in the Southwest who is over- charged five dollars cannot come here and litigate a year or two with a railroad com- pany. Many a time the overcharge does not rest upon the shipper, but is passed on to the consumer. The State having parted with its right, it is its bounden duty, as it is to legislate on any other subject, of its own motion, to keep a constant eye and watch upon these people, to administer the ounce of prevention instead of the pound of cure, and to say to the railroads, whenever they are found doing wrong, "You shall not charge any more than this, and if you think our judgment is unfair, if you think that in exer- cising power which you concede we can exercise, we have been unjust to you, go to the Court of Appeals, the highest court in the State, and we will furnish you with the best judicial facilities we have, not to pass on it originally, but to review it, and we will make every other suitor in the State stand aside and wait until j'our matter is settled for you, and in the meantime we will enable you to go on charging just as you did before, providing you secure to us the refunding of the overcharge if it should be wrong." T^Tiat more can they ask in the name of justice, unlesss we are to absolutely surrender -to them? The next thing, gentlemen, is the fixing of any other rule, regulation, or require- ment of railroad companies that does not involve the question of charges or of rates, or of classification of traffic. It has been stated and earnestly contended by some gentlemen, that this would be giving up the power to manage and operate the road. I submit that there is nothing in this languarge to justify such a contention. The right of the State to control the railroads is a right which has always existed. The creater is ever greater than the creature, especially when that creature is brought into being for the purpose of serving the public. The essential differeence between the American and the European idea on this matter is, that the Europeans believe in owning the roads, in managing the roads, and in operating them. The Americans idea is neither to own them, to manage them, nor to operate them; but to control them so far as their operations affect the general public, so as to see that the general public is not injured. In all of its functions, in all of its internal business -arrangements, and in all of its physical management, it is left absolutely to itself. The only thing the commission can do is to make rules and regula- tions so that when, in the management and operation of its roads, danger or apprehen- sion of danger results to the public, it can say, "You must stop." The commission is there to control it and to regulate it in the performance of its public duties. My friends say, that inasmuch as the corporation is public, all of its duties are public. Can it be said that the court cannot decide what are its public duties? When we say "public duties" it is clearly an intimation that some of its duties are not public. 21GG DEBATES OF THE COXSTITUTIOIsTAL COXVENTIOJf OF YIRGI^tiA. Is it not a matter too clear for argument, that in the physical management of the road its duties are not public duties in the sense in which the words are used her© to-day? Its public duties are those only which affect the public, such as its schedules and its rates. For example, here is a road that runs by a little town struggling along and try- ing to build itself up. The train does not stop there at all, or stops only in the middle of the night, or at some outlandish hour. Here are two roads running together, and one train misses the schedule of the other by five minutes, but neither will stop. They are like two bad boys quarreling with one another, while the public is standing by freezing or dying. Take such a case as we had there in Richmond, the metropolis of the State where one of the railroad companies, for years and years, had in lieu of a depot a miserable old cow-shelter that would have been a disgrace for any man to have on his place to put his stock in. Is it possible that the State should not have the right to say that a decent and respectable depot should be placed there? These are the mat- ters and the only matters while can properly be construed to be public duties, and which can be regulated and controlled. But observe, gentlemen, the extra safeguards put around this provision. From every decision of this commission that can possibly be rendered the General Assembly can grant an appeal. My friends have prayed to us to leave them to the General As- sembly; let the General Assembly do it; leave us to the Generally Assembly; that is where we want to go; that is where we will feel safe; that is where, and where alone, these powers can be safely bestowed. We say, "We will leave you to the General As- sembly, the tribunal of your own selection, the harbor to which you have always pointed and to which you want to steer your ship. We say that this General Assembly can give you an appeal from every decision of every sort, kind and description this commis- sion can render. If this commission abuses the discretion vested in it and undertakes to interfere with the private internal management and operation of the road, you have got the Supreme Court of the State, ta which you can appeal, with a supersedeas, if you wish; and the Supreme Court will determine whether the regulation is reasonable. Then, if the commission thinks the regulation is reasonable, and if the Supreme Court of Appeals thinks it is reasonable and just, I say it is fair to conclude that it is reason- able and just, the opinions of the railroads to the contrary notwithstanding. Back of all that, we virtually prescribe that from every rule, regulation and re- quirement it is possible for this commission to make, not only shall there be an appeal to the court, but the General Assembly shall remain supreme as it is to-day. The right to make rules and regulations exists in the General Assembly to-day. I call your at- tention to the fact that we cannot give to this commission a single power under God's heavens that is not already existing in the General Assembly or in the courts, because the entire power of the State is vested in the General Assembly and the courts. It is simply a question as to where v/e shall vest this power. I say that this power to rule, regulate and control the railroads, so far as we are capable of giving it, exists to-day in the General Assembly. By the provision of this article you will see that we say in so many words, that in all such matters the power of the General Assembly to legislate shall remain supreme and par-amount, and in all matters, except the fixing of rates, the General Assembly can tie the hands of this commission just as tight as it is possible to tie them. There is no rule or regulation they can make which the General Assembly cannot rescind. There is no restriction that can be put upon them which the General Assembly is not capable of putting upon them, except the fixing of rates. We thought that was a good thing, for this reason. We believed that the power of the railroads to enact legislation is very small as compared with its power to prevent legislation. We think there is no material danger of the railroads getting the General Assembly to enact afRrmative bills to tie the hands of this comm^ission in any matter outside of the fixing of rates; whereas if we left it to them to grant these powers, the railroads, as we believe from experience, could succeed, by one means or another, in preventing that legislation. So that, when we come to consider the supposed danger resulting from the power given to this commission to control the railroads we find that DEBATES OE THE COXSTITUTIGXAL COXTEXTIOX OE YIRGIXIA. 2167 it is imaginary, tliat it is restricted to their public duties and matters which injure the public. In the second place, the General Assembly is left the power of giving an appeal to the courts, and finally the General Assembly is left paramount and supreme in the whole matter, and can restrict or tie the hands of the commission just as much as it can to-day. This power to regulate and control is nothing new. It exists to-day in Florida, in Iowa, in Louisana, in New Hampshire, in North Carolina, in Minnesota, in Tennessee and in Texas. It has never been used there to abuse the roads. The exact confines, limitations and restrictions of that power have been well-settled and well-defined. It is no new venture or departure on our part, but it is following in well-tried lines in other States, the prosperity of whose people and whose railroads have been shov-n to you by the facts and figures which I have read. Some one says we ought not to go into the Constitution to fix this matter. It is essential, gentlemen, if we want to have a perfect department to accomplish what we want, that it should be constitutional, and for this reason; we want to give this tribunal the power to enforce its own judgment, which is absolutely essential if it is to be effectual, subject, as I have told you, to appeal; and it takes a constitutional provision to give it the powers of. a court. If we wish to give them the right to prescribe rates and to make rules and regulations, subject to the restraints and safeguards I hava mentioned, it might be held — I do not say it certainly would be — ^that it was an invasion of the legislative department of the government which the General Assembly could not delegate; just as in the case of the local option matters, referred to by my distin- guished friend who spoke on yesterday, it was held that the local option statutes were wrong, in that they were an endeavor by the General Assembly to delegate its power. To prevent the possibility of such a question arising, we have put into the Consti- tution the provision that the commission shall have legislative powers so far as fixing rates and prescribing rules and regulations are concerned, and that it shall have judi- cial power so far as enforcing its own judgements is concerned: and that, in reference to both of these powers, it shall have both the courts and the General Assembly to guard it in the way of an appeal, and as superior and paramount throughotit. This provision goes a good deal into what is unquestionably legislative detail, and your committee thought it best to do that for this reason; we thought it probable that no Legislature could have in their minds as clear a conception of how this institution was intended to work as the body which provided it, which constituted it and which built it up; just as the machinist who puts in place a new piece of machinery, puts it into working order before he leaves, and then turns it over to the master who is to continue its use. Y^e did not think that any Legislature could carry out the original details in the manner we conceived they should be carried out, as well as we, ourselves, could. "When we once put it in working order; when we show, in the way we have done, how this instittition is intended to work; then the General Assembly can take charge of it under suitable restraints and provisions, can enlarge its scope, can modify -and improve it, from time to time, as it thinks proper. We recognize this further thing, gentlemen, that if this institution could not come into effectual existence without first obtaining legislative sanction, then, :udging the future by the past, it was abso- lutely necessary that we should give it enough of a start to put it on its feet, because of the power of the railroads to prevent adequate legislation to start it, and because we believed that the roads would not have sufficient power to enact affirmative legislation to destroy it. I take it that the people who are expecting us to provide for them adequate facili- ties, to give them relief in the matter of railroads, not only want us to make and turn over the material out of which an institution for that purpose can be constructed, but desire us to construct the institution, put it in working order, show how it can work, how it will work, and how it does work, and then say to them: "If you wish to destroy it, if you wish to amend it, if you wish to improve it or to enlarge it, we leave you free scope. Vre have made the machine, we start it in working order, and here it is for you." 21G8 DEBATES OF THE COXSTITUTIOIs'AL COXVENTION OP VIRGINIA. We recognize tlie fact from the statements made before us by the representatives of the railroad companies that whatever they may say about leaving this to the Legis- lature and the inadvisability of putting it into the Constitution, they will fight it just as hard before the Legislature as they will fight it here, because their arguments would apply just as strongly against the Legislature establishing an efficient institution as they do to this Convention establishing such an institution. We recognize the fact, gentlemen, that when the railroads fight a measure vigor- ously in the Legislature, it is a more or less hopeless thing to get it through. We recognize the fact that the Employers' Liability Bill has been again and again and again brought up, and has been killed with absolute and hopeless certainty. We recognize the fact that the present railroad commission has not only been inefficient, but its inefficiency has been pointed out by the present railroad commissioner, year after year, and he has argued the passage of a law which will make it more effective, but it has all gone for naught. We recognize the fact that for years the interstate Commerce Commission has pleaded with and besought the Congress of the United States to enlarge their powers so as to make them of some value; but it has gone for naught. We thought it not an unreasonable conclusion that for some cause or for some reason the same Legislature that has refused to render efficient the present corporation commission, would continue to render inefficient, by lack of legislation, any other cor- poration commission we might provide, unless we ourselves, set it upon its feet and start it going. We also recognize that in these details which involve the working of this com- mission there may be errors and mistakes; that practical experience may show that it can be and ought to be improved upon; and we have provided that the very next Legislature, in 1905, upon the recommendations of this commission, can amend any part of its provisions which is legislative and administrative in its character, just as readily as they can amend a statute. Mr. Thom: Do I understand the construction given to the report by my friend to be that the Legislature has the right to repeal the powers of this Commission as to rate-making? Mr. Braxton: I cannot answer that question yes or no; but I will explain myself to you. Mr. Thom: I would like also to know to what extent, in the article suggested, you contend that the Legislature has the right to vary the law, and whether there is any power in the Legislature to do more than act upon the suggestions of the commis- sion itself — whether they have any initial power. Mr. Braxton: My understanding of the matter is that in the question of prescrib- ing rates, charges and classifications, the power of this commission, subject to repeal and review, is paramount, and that the Legislature can make no rates. Mr. Thom: And the Legislature can make no change in that power. Mr. Braxton: They can make no change in the power so far as fixing rates is concerned. My view is that the power of the Legislature to fix rates is a pure matter of theory. It is utterly impossible for it to regulate them. It never did, and never can, execute that power. Therefore we say that we will transfer the theoretical power to some body so constituted that it can exercise the power; and, therefore, as to the question of fixing rates and the question as to the classification of traffic, the power given to the Commission, subject to review by the Supreme Court, is paramount. But when it comes to make any other rules, regulations or requirements, the power which we confer upon the commission is. subject to the paramount power of the Legislature. I will refer my friend to line 58, page 8, of the report, where this language is used: The authority of said commission (subject to review on appeal as hereinafter pro- vided) to prescribe rates of charges and classification of traffic for transportation or transmission companies, shall be paramount; but its authority to prescribe any other rules, regulations and requirements for such companies shall be subject to the superior authority of the General Assembly to legislate thereon by general laws. DEBATES OF THE COX>TITUTIOXAL COXVEXTIOX OF YIEGIXIA. •2169 Mr. Thorn: I imclerstand that clause just as you are nov,- explaining it. The reason for my question was that I understood your arg-ument, heretofore, to be that the scheme of this report was to put the commission on its feet in all respects, and then in all respects to leave it to the Legislature to change as they might see fit. I probably misunderstood your argument in that regard. Mr. Braxton: That is not what I intended to say. I do not Kno\Y ^Yhethe^ my friend misunderstood me or Ys-hether I expressed myself awkwardly. I am glad he called my attention to it, so as to prevent any misunderstanding. In reference to the matter that my friend refers to, I desire to say that, so far as the legislative and administrative features of this report are concerned, beginning with sub-section D, and including E, F. G, H, I, and K, the next Legislature, and any one after that, is given the power, upon the recommendation of the commission, to make any amendment of the commission, to make any amendment to that part of the section, which is purely administrative and a matter of detail, they may devise. Mr. Thom: Suppose the commission refuses to make recommendations? Mr. Braxton: I was just coming to the very point about ^Yhich my friend asks me. Someone may ask, " Why 'not leave it absolutely to the Legislature?'' AYe think that it is not best to do so for this reason: The power to amend the Constitution, even in such details as this, is an unusual thing to give to the Legislature, although it is some- times given to them. We do not wish to put into the hand of the ordinary Legislature the power to make an enactment which will emasculate this institution. We think that if the proposed amendments are intended to make the com- mission more efficient, the commission will certainly recommend them. If it is anything tending to make this body a better body and a more efficient body, one that "Will serve the people better, we believe that we can safely rely upon the commission to recommend it. If the commission's recommendation is one that would unduly aggrandize their power, the Legislature will not enact it. On the other hand if the proposed amendment of the Legislature is one that Y'ould unduly Y'eaken their power, the commission would not agree to it. We leave them the ordinary method of amending the Constitution, but we say that as to this particular part, which is detail and adminis- trative, the Legislature can amend it at any time just as readily as they can amend a statute. We thought it not unreasonable to conclude that if the amendment was really desirable, in the interest of the public welfare, both the commission and the Legisla- ttire would agree upon it. A few words more, Mr. Chairman, and I will conclude my remarks. This com- mittee, in all they have done, have not been actuated by any feeling of hostility towards the railroad interests. We have all recognized that the railroads are the greatest civilizers in the history of the world. We have all recognized the great and inestimable good that they are to communities. We think it is just as unreasonable to say we are actuated by feelings of hostility to them, because we Avish to have laws and rules to regulate and control them, as it would be to say that we are hostile to the human race because vre want to make laws and rules to regulate and control the human race. We recognize that these great powers of transportation are, like fire and water, most excellent servants, but the most destructive and unreasonable masters. We think that as long as they are reasonably controlled they will prove of inestimable benefit to the country; but that if turned loose, uith a free hand, they will do what men have done when they were entrusted with uncontroliable power and authority, they will abuse it. I think this is no reflection on the men who operate them. It is only saying that they are human beings like other men. I say to you that few potent- ates on this earth — and I will challenge any man to successfully contradict it — that few potentates, including the Czar of Rtissia, have as great power over the country and over the people as J. Fierpont Morgan has in this country to-day. I say that that power is not to be destroyed, but that it should be regulated and controlled by law; by just law, by reasonable law, by fair law, but by lavr. and not by caprice or arbitrary will. 3. ST — Const. Deb. 2170 DEBATES OF THE COXSTITUTIOXAL CO^sTYENTIOIST OE VIRGINIA. We frequently deceive ourselves by reading about the great wealth of the country. I once heard a wag say that he and John D. Rockefeller were the richest pair of men. m the United States; that Rockefeller was supposed to be worth a thousand million, and he was worth ten cents, but the combination was very strong. The aggregate wealth of the country is not, by any means, a proper indication as to the reasonable distribu- tion of that Avealth. I wasi shocked and horrified, not long since, in reading the report of a Mr. Roundtree, who was appointed by the British Government to investigate the conditions of wealth and poverty existing in England. He v/as given large means and a larger number of assistants, almost equal to the taking of the census, to ascertain the extent of poverty in England — England, which is recognized as the richest nation upon earth, the creditor nation of all others. It will shock you when I tell you that the report of that man, recognized as accurate, was that between twenty-five and thirty per cent, of the population of that country were absolute paupers. I do not mean poor men, I mean paupers, that were not earning the absolute necessaries to support life. Gentlemen, I say that if we go ahead as we are, and turn loose all of these un- restrained and immense powers to sap the vitality of our life and to draw in wealth wherever they choose, to tax the people ad libitum, and to charge as much as the traffic will stand, they will bear us down until our backs are about to break. If we allow them to gO' on unrestrained, and undertake to satisfy ourselves by a chuckle over the report of the aggregate wealth of this country, where some men are worth thousands of millions of dollars, we will find ourselves, in the course of time, in the condition that England is to-day, the richest nation on earth, possibly, but with the largest prO" portion of helpless paupers. How can we stop that? By acting like reasonable men, and by imposing reasonable restraints. Not by doing anything wild or destructive, not by carrying on a war against capital; but by saying to these men, "Yon have been given by the State these immense powers, and the State will regulate and control them, because they are powers too great to be entrusted to any one man or any set of men on this earth, not subject to governmental control." Do not let us manufacture some- thing here that is too weak to accomplish anything when we are undertaking to treat these great corporations, these great lions of commerce. Do not let us give them anything like the minority report, a dose of catnip tea. Let us give them some medicine that will do them good, not medicine that will do them harm, but medicine strong enough to act upon them, and to make them feel the power of the hand of government — something that will make them recognize the fact that, big as they are, they too are subject to the rules of civilized government and to the restraints that other men are. Let us give them something which will make them recognize that, however great their powers may be, the State is still greater; that the State will ever act to regulate those powers she has constructed, which she has donated; and will see to it that they doi not injure, and are not turned against, the people for whose protection the government was brought into existence. The railroads say they regret thi,& because it will bring them into politics. God save the mark. When did they get tired of politics? The railroads afraid of politics? I ask you if there has been a judge elected in this State, if there has been a legislature elected and in session, if there has been a campaign fought out, in which you do not see the hand of the railroad? In every bit of legislation done or contemplated "Charley was at the cat hole." They come now and say they fear they will be drawn into politics. I say the railroads will have less occasion to be in politics if you adopt the reasonable and proper restrictions which we propose, than they ever have had before. I say that instead of maintaining a lobby to overlook our General Assembly and influence it for their good, they will have to contend with a body of as able and high-minded men as this State can produce, from whose opinions and decisions, either for or against them, there is an appeal to the Supreme Court of this State. If it be true, as they have threatened, that they will debauch, buy and control that body, I say the sooner we know it the better it is for us. But even if they do, will we^ be any worse off in the hands of the commissioners than we will be if we are in their hands DEBATES OF THE COX^TITUTIOXAL COXTEXTIOX OF VIEGIXIA. 5iri and at th^ir mercy to^ fix the rates themselves without saying "by your leave" to anyone? I say that if they do buy, and do control, and do debauch this commission, the commission can be no more partial to them than they are to themselves; and, at least — aside from the shame and degradation that vrill overwhelm us, in the knowledge that our highest tribunals are bought up — we will, in a material matter, and so far as rates are concerned, be no worse off than we are to-day in the hands of the people who threaten to buy them. The people of this Commonwealth have long looked for, and prayed for, this time. I say that all of the people are here, their hearts are here, and their prayers are with us. in the hope that they vnuTI get now what they have never been able to get before, and what, if they lose now, they will never get again, and that is an affective, a reas- onable, a just and a fair corporation commission, capable of executing those powers which the State has given for the protection of its citizens. Every board of trade in the State of Virginia, as far as I know, has earnestly endorsed this report, and besought this Convention to adopt it. Tliere may be some few exceptions; btit so far as I know, the entire press of the State, outside of the city of Richmond, is in favor of it. You, gentlemen, are to judge for yourselves how much your own private constituents at home favor it, are looking for it, and hoping for it. and praying for it. I say to- yoti now, that we have joined issue on this question once for all, as to whether the people or the railroads will run the State of Virginia. If we fail in this fight do not think it is going to be carried on in the General Assembly. The fact that we have failed here will be used as the greatest argument in the General Assembly why it should not be adopted there; because the great Constitutional Conven- tion, in its wisdom, after thinking over it, and working over it, solemnly concluded that it was wrong and ought not to be done. Do not lay that "flattering unction to your soul;" btit recognize the fact that if this fight, which is now joined with the railroads, is lost, neither you nor I will see the day when the victory will be gained. I say, do not disappoint the people in this matter, do not, when they have "asked for bread give them a stone." Let us not turn over to them a play-thing. Let us not give them some- thing that is fair to look at but that means nothing. Let us not give them a com- mission authorized only to recommend and report to this man and that man, and then ^o to the courts and ask the courts to do something. Let us give them a commission conservative and reasonable, as we have provided for here, having the right to look into these matters and decide them according to the rules of reason and justice, between man and man; and when it has come to its decision, with the authority of this State behind it, to say to these people: "You must appeal from it or obey it. "You shall not stand here and defy us." Let us go into this fight, gentlemen, with that impressed upon us. Let us stand up to it. Let us determine, once for all, whether this State can have this Constitutional provision. Let us stand by the result of it and may God save the right. (Great Applause.) On Motion of Mr. VTlliam A. Anderson the Committee rose and the President resumed the chair. On motion of Mr. Eggleston the Convention adjourned until to-morrow, Wednesday, February 5, 1902, at 10 o'clock A. M. WEDNESDAY. February 5 1902. The Convention met at 10 o'clock A. M. Prayer By Rev. Robert Strange, D. D. 'Mv. Orr proposed a resolution relating to the Elective Franchise. On motion of Mr. Braxton the Convention resolved itself into Committee of the Whole for the further consideration of the report of the Committee on Corporations, IMr. Keezell in the chair. Mr. Kunton: Mr. Chairman, it is my purpose to present the views of the minority of the Committee on Corporations. The minority report deals exclusively with those 2172 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIKGINIA. articles proposed by the Committee on Corporations dealing with transportation and transmission companies There are some features of the general article as to corpora- tions to which I personally, and I believe the minority of the committee, have some objections. These articles it was deemed wise to leave for amendment upon the floor of the Convention. The minority of the committee has dealt entirely with those articles, as I say which relate to transportation and transmission companies. There is one article referring especially to transportation companies, as to which I desire to state the position of the minority of the committee, and that is as to the article popularly known as the employers' liability bill. For myself I will say that I have always favored a reasonable employers' liability bill. It is true that when both parties, composing all the people of this Commonwealth, had acquiesced in an employers' liability bill, and when it was believed at least that the railroads had withdra^vn their opposition to the measure, I did not deem it wise that it should go into the Constitution, believing that the General Assembly itself would pass a reasonable bill regulating that important matter. There are some few sections in no wise affecting the general principle of this section which do not meet my approval, and which I will seek to^ reach by amendment upon the floor. Therefore, in this argument I shall confine myself to the article of the committee with reference to transporation and transmission companies. Mr. Chairman and gentlemen of the committee, it seems to^ me there never was a time when conservative Virginians should proceed more carefully, more conservatively and with more deliberation upon the consideration of any matter effecting its material prosperity. We all know that the time has been upon us for some years when it seemed that Virginia was entering upon a period of prosperity and of development. It has seemed that the prejudice of capital to come south of the Potomac and to be invested in enterprises in the South was passing away, and it is of the first importance that this body should do nothing to dispel that healthy sentiment; for it is known of us all that the resources of Virginia consist of the intelligence of its people, of its labor and of its undeveloped natural resources. It is the need of this State that capital, foreign capital, should come to us to develop these resources. We all know that capital is the most timid thing on earth. We who are older know that the time was, until the plethora of money that has come in the last few years, when there was a prejudice against even lending money in the State of Virginia on exceptional security, because of some apprehension as to the efficiency of the collection laws of the State, and that a great evil, a great burden and hardship was thereby Im- posed upon the people of Virginia, because of their inability to borrow money to develop its natural resources. I say that the same danger exists to-day that we may create the impression upon capital that, instead of coming to a friendly people, where there is at least a just senti- ment, that it may come to a hostile people; that it may come where it will not be fairly treated and fairly dealt with; that it may come to a State where oppressive laws and legislation may be apprehended. The result of that will be to drive capital from this old Commonwealth, in whose destinies we are so interested, each and every one of us, and the spirit of progress, the spirit of industrial development that is now upon us may be retarded or may be stopped by unwise action in this most important respect. I say those are the general principles that we must all bear in mind in the considera- tion of this great question. Let us consider for a moment the issues with which we are faced. It is proposed to place in the Constitution of conservative Virginia — a State that has heretofore been a leader in thought, a leader in conservatism, a leader in statesmanship — into its organic law, a principle and a measure that exists in the constitutions of but two States in this Union. Remarkable indeed must be the conditions which justify the expectation that this State will follow such a course. Do those conditions exist? Let us see. DEBATES OE TEIE COXSTITETIOXAL COXVEXTIOX OE TIRGIXIA. I trust that I am too much of a lawyer to dispute the proposition that the Govern- ment has the right to manage and to control public corporations, and that the only limitation upon that power is when it becomes confiscation. There is no difference between myself and my learned friend from Augusta (]\Ir. Braxton j upon that proposi- tion of lavv-. As to the Vvusdcm of that course I desire to call the attention of the com- mittee, I lay down this broad proposition that while that authority and power is con- ceded, it is unwise for the Commonwealth of Virginia to undertake the management and the control of these quasi public corporations. I recognize, however, another principle, viz., that it is right and proper that the State should stipervise and regulate them. I concede the power to manage and control. I question the wisdom of asstiming the right to manage and control. I rec- ognize the power, and the wisdom of supervision and of regulation by the State. I come now to consider whether there is such a condition of affairs in Virginia, that the State should assume the management and the control of these quasi public corporations. And in order to justify that, the reasons for it must be of the strongest kind and of the most compelling character. They must be two-fold; first, there must be such conditions, such conduct upon the part of the transpoTtation companies of Vir- ginia as to demand this radical departure from precedent — a departure taken by only two States of the Union in their fundamental law. In the second place, in order to justify such a departure from precedent, there must have been such a failure upon the part of the legislative branch of its government to give super^'ision and regulation, as to justify placing this dangerous experiment in the fundamental law of our land. Because, gentlemen of the Committee, there is no consensus jDf opinion as to the wise method with which to deal with these matters. This is a prohlem with which every State in this Union is confronted; it is a problem that has been dealt with by no two States in indentically the same manner. It is in its experimental stage. VTiat will be the conclusion of the wisdom of years as to the proper and wise method of dealing with it, I say is too experimental to be placed in a constitution. Now, as to the necessity for this radical departure from precedent, the necessity of Virginia taking the management and control of its corporations out of the hands of the corporations themselves, and the State assuming their management. The logical consequence of that would be to divorce the ownership and the management, and to give to the commission all the powers of presidents and boards of directors directing the policy of these great corporations, while you take from the State the responsibility for failure. You give to them the power +0 destroy these great agencies of develop- ment. I say the natural and logical consequence of that would be that which I believe is most abhorred by the enlightened democratic sentiment in this land, the govern- ment, or. in this case, the State ownership of the railroads. I come to the conditions in the State of Virginia. I want to deal with the concrete facts with which this body is confronted, with which Virginians have to deal, and ask whether the railroads of Virginia have been guilty of anj' such conduct as to demand at your hands this drastic and radical measure. Far be it from me to maintain that the railroads of this State or of this country, do nt wrong. I believe that from their publicity and the fact that there is this possibility of State control resting over them fewer wrongs are done by them in proportion to the amount of business transacted than is done by individuals conducting similarly large enterprises. Is there anything in Virginia to-day to justify ths proposed article in the Constitution? Have your roads dealt with you unfairly? I do not mean that there may not be individual cases of hardship, some accidental, some, it may be. designed; but is the general conduct of the railroads of the State of Virginia to-day such as to justify any drastic measure for their control and their management? I say it, and I say it without the fear of successful contradiction, that the railroads of Virginia to-day are dealing with the citizens of Virginia in as fair, as equitable, and as reasonable a way as the railroads of any other State of this Union, however 217-i DEBATES OF THE COXSTITUTIOXAL COXTEJfTIOX OF VIRGINIA. drastic their laws may be, however many commissions or commissioners they may have, and whatever the local conditions. I am going- to deal with the rates now in effect in the State of Virginia and under- take to demonstrate to this body that the people of Virginia have been fairly dealt with by these transportation companies. I am not going to confine it to the present, ' but I am going to compare it with the past and show, that, without regulation, without legislative interference and without commissions to control and manage the roads., rates in Virginia to-day are lower than they were ten years ago; and lower than they are now in the boasted State of Georgia, from which my friend from Augusta has taken his inspiration — from a statute which he now seeks to engraft upon the Constitution of Virginia for all time to come. I do not confine it to Georgia, but I will compare the rates in Virginia with those in force in the State of North Carolina, the ideal of my friend from the City of Danville, and will show to my friend that they are lower to-day in Virginia than they are in North Carolina with its railroad commission. I hold in my hand a table of comparison of the rates now charged by the Chesapeake and Ohio Railway Company, furnished to me by Mr. Stevens, the president of that road. I can only vouch for its accuracy by the source from which it comes. My personal acquaintance with this gentleman is slight, but, from what I have learned of him from others in the city of Richmond, there is no man in its midst who for character and veracity, stands higher. I know that it will be said by gentlemen upon the floor of this Convention that these rates are influenced by the fact that the Chespeake and Ohio hauls large quanti- ties of coal. But if those gentlemen will examine these rates they will realize that coal can be in but one single clas,s, and can therefore, affect the rates in that class alone. I will say further that when this table was given to me I was advised by Mr. Stevens that the rates here given are substantially the same as are now charged by all the other railroads in the State of Virginia, and that the rates are practically standard. The first table gives the mileage and the classes, and the rates in cents per 100 pounds. Then, knowing that this statement as to the coal traffic would be made, and for the purpose of furnishing a more intelligent comparison, the rate is given on certain com- modities, such as bacon, grain, hay, flour, fertilizers, and lumber — materials that are in common use in the State of Virginia. A comparison is made between the years of 1891 and 1901, a period of ten years. The reduction of rates, without the intervention of a railroad commission with power to fix rates, has been as large as it has been in the boasted State of Georgia, and as large as it has been in the State of North Carolina. Mr. Withers: Then why do you fear a commission? Mr. Hunton: I will answer you at length in my own way. Your question cannot be answered categorically, and I shall, therefore, follow the line of my own argument, and not be diverted here to answer that question. The next table is a comparison of rates on grain, flour and hay from Staunton to Harrisonburg, Virginia, and other southern points in the year 1891 and the year 1901. "Why that table was given I do not know, except as a personal compliment to the dis- tinguished chairman of the Committee on Corporations, and to the gentleman who so gracefully fills the chair upon this occasion. The next table is a comparison of the class and the commodity rates in force in Virginia and those in force in North Carolina, South Carolina and Georgia, in which latter State rates are fixed by a railroad commission — Georgia, the inspiration of my friends from Augusta and the inspiration of my friend from Danville. There is a note here which reads: The rates for Virginia are those of the Chesapeake and Ohio Railway, which are practically the same as other Virginia rates. The rates shown in North and South Carolina and Georgia apply on any quantity, while in Virginia the ra^es shown apply to shipments in less than car-loads — the car-load rates in Virginia would be fifth-class — ■which would be lower, in every group, than the rates in the Southern States. DEBATES OE TEIE COXSTITUTICXAE COXVEXTIOX OE TIEGIXIA. •21:5 Classification: The rates in Virginia are governed, for tlie most part, by the official classification. On this basis it will be noticed that the Virginia rates are lower on ih^ following, than for the other Southern States named — dry-goods, cotton fabrics, boors and shoes, sugar, molasses, coffee, grain and fiour. For short distances the Virginia rates are a little higher on bacon in less than car- loads. The average rates in Virginia are far lower than in any of the other State§-. I want to call your attention to the fact that these rates are lower than in the other States named on articles Avhich enter into the dailj' life of every citizen of this Commonwealth to a greater extent, perhaps, than any other articles that could be named. Dry-goods are lower; cotton fabrics are lower; boots and shoes are lower; sugar is lower; molasses is lower; coffee is lower; grain and flour are lower. For short distances the Virginia rates are a little higher on bacon in less than car-load lots; but the average rates in A'irginia are far lower than in any of these other States. Now, gentlemen of the committee, this has been the action of the railroads of Virginia to the people of Virginia to-day. You see hardships. You see things that you think are unjust, but as to how many of them, upon thorough investigation and thorough knowledge of the facts, would prove to be unjust, cannot be estimated. We look at it from our own point of view. Ve look at it from our own selfish interest. But when you take the broad view of this matter, when you investigate it, when you know what all the facts are, you find that the rates in Alrginia to-day are far lower than those of Georgia, North Carolina or South Carolina, not only in classes but on specific articles, and especially upon the articles that are most in use in the State, such as dry-goods, flour, grain, bacon and hay. The rates are lower here than they are in these other Southern States regulated by commissions. Is there anything very outrageous in th6 conduct of the railroads of Virginia, as developed by these facts? My friend from Augusta on yesterday produced a communication from the chairman of the railroad commission of Georgia to some gentleman in Texas, and he gave a table of rates charged in Georgia and the wonderful results that had been accomplished by this wonderful Georgia commission. In those results he gave four commodities — bacon, flour, grain and cotton. I want to compare the results in Georgia, from the tables produced by the gentleman from Augusta himself, with the charges of the Vir- ginia railroads for the same commodities; and although there has been no power to fix rates in Virginia, they have been from the very beginning of these figures down to and including this present time, cheaper to the people of Virginia than in any one of these three States, with their tripartite commission. The table the gentleman read from on these articles gave the rates for ten, fifty, one hundred, one hundred and forty, two hundred and two hundred and fifty miles. Fortunately, the tariff of rates with which I had been supplied dealt with three of those four articles, not with cotton, because that is not largely a Virginia product. On bacon for 10, 50 and 100 miles the charges in Georgia under the regulations of the railroad commission were identically the same as they were in Virginia, and there similarity between them ceases. I will give the charges in cents of 100 pounds. For 10 miles, on bacon, Virginia, 8 cents, Georgia 8 cents. For 50 miles, Virginia, 15 cents, Georgia 15 cents. For 100 miles, Virginia IS cents, Georgia 18 cents. Every other article that I am going to refer to was lower in Virginia than in the State of Georgia, under whose benign administration of these public corporations the gentleman has drawn the inspiration for this majority report. VTien it gets up to 140 miles, the charges in Virginia on bacon were 21 cents, in Georgia 22 cents. For 200 miles, in Virginia 2-i cents, in Georgia 26 cents. For 250 miles,in Virginia 21 cents, in Georgia 30 cents, a difference of 6 cents on 100 pounds for every 250 miles. VTien we come to flour, the difference is always in favor of the Virginia rates. For 10 miles the charge in Virginia on flour is 4 cents, in Georgia 6. 2176 DEBATES OF THE CO >fSTITUTIOJsTAL COXVEXTIOX OF VIIIGIXL For 50 miles, in Virginia 6 cents, in Georgia 10 cents. For 100 miles, in Virginia 10 cents., in Georgia 15 cents. For 140 miles, in Virginia 12 cents, in Georgia 19 cents. For 200 mJles, in Virginia 15 cents, in Georgia 23. cents. For 250 miles, in Virginia 15 cents, in Georgia 25 cents, a difference of 10 cents in every 100 pounds. I come now to grain, and find the same thing going all through the table as to that article. In Virginia, in every case, the rates are lower than as regulated by the Corporation Commission of Georgia. On grain, for 10 miles, the rate in Virginia was 4 cents, in Georgia 5 cents. For 50 miles, in Virginia 6 cents, in Georgia 9 cents. For 100 ,miles, in Virginia 10 cents, in Georgia 14 cents. For 140 miles, in Virginia 12 cents, in Georgia 18 cents. For 200 mJles, in Virginia 15 cents, in Georgia 20 cents. " ' - ■ For 250 milf>3, in Virginia 15 cents, in Georgia 23 cents. Is there anything in that, gentlemen of this committee, that would justify extreme, drastic control and management of the railroad companies of the State of Virginia. Is that not evidence of fair and reasonable treatment? Is not that evidence that the commercial conditions in Virginia have done m.ore than your railroad commission for the vaunted State of Georgia? Mr. Meredith: If it is true that in Georgia with the railroad commission they do not have as low a class of tariff rates as we do in Virginia without a commission, will you please account for it? How does that happen? Mr. Hunton: God Almighty knows; I do not. I am just talking about the effect of a commission, and to show that it is absolutely impossible to regulate these things by a commission, and that it is ineffective and inefficient, and fails to accomplish the purpose for which it was designed. Mr. Quarles: May not the railroads control the commission? Mr. Hunton: I do not know, sir; it is possible. But from the citations from them as the ideal of the other gentleman from Augusta (Mr. Braxton) I would scarcely sup- pose that his ideal commission would be one that is run and governed and controlled by the railroads. Surely it would be an unfortunate ideal if he should select one that was owned and controlled by the railroads, because you v/ill remember that the great force of his argum^ent, splendid as it was, was based upon the magnificent per- formances of this three-minute stepper from the State of Virginia. Mr. Braxton: In reading the rates you have just read Virginia rates as compared with Georgia rates. For what year were those Virginia rates taken? Mr. Hunton: Those Virginia rates were taken from the year 1901. Your Georgia rates were taken frcm the year 1890. I anticipated that my friend from Augusta would ask that identical question, and I am ready to ansiwer it now as to a comparison between the rates in Virginia to-day and the rates for 1901 in Georgia. I have compared the rates in Georgia for the year 1890 with the rates in Virginia for the year 1901. I am now going to compare them for the year 1901 in both States on these same articles. The rates on bacon in Virginia for 1901 for 10 miles is 8 cents for 100 pounds; in Georgia it is 9 cents. For 50 miles, in Virginia it is 13 cents, in Georgia 14 cents. For 100 miles, in Virginia it is 18 cents, in Georgia 20 cents. For 140 miles, in Virginia it is, 21 cents, in Georgia 24 cents. For 200 miles, in Virginia it is 24 cents, in Georgia 30 cents. For 250 miles, in Virginia it is 24 cents, in Georgia it is 33 cents, a difference of 9 cents. " I now take flour. V^e find that the rate on flour for ten miles in Virginia in 1901 is 4 cents, in Georgia 5| cents. For 50 miles, in Virginia 6 cents, in Georgia 8| cents. DEBATES OE THE COXSTITUTIOXAL COXTEXTIOX OF YIEGIXIA. 217,7 For 100 miles, in Virginia 10 cents, in Georgia Hi cents. For 140 miles, in Virginia 12 cents, in Georgia 13 cents. For 200 miles, in Virginia 15 cents, in Georgia IGJ cents. For 250 miles, in Virginia 15 cents, in Georgia 19 cents. I now take grain, a commodity in which tlie great agricultural interest of Virginia is greatly interested and I find that for 10 miles in Virginia in 1901, the charge on grain is 4 cents, in Georgia 5 cents. For 50 miles, in Virginia 6 cents, in Georgia 8 cents. For 100 miles, in Virginia 10 cents, in Georgia 11 cents. For 140 miles, in Virginia 12 cents, in Georgia 13 cents. For 200 miles, in Virginia 15 cents, in Georgia ISJ cents. For 250 miles, in Virginia 15 cents, in Georgia 18 cents. There is your boasted Georgia commission, and my friend's colleague (Mr. Quarles), coming to his relief, wants to know if the railroads may not own and control the Georgia commission, the ideal of the other gentleman from Augusta. I desire to say to his colleague (Mr. Quarles) that I do not know anything of the Georgia commission — • VkHiatever may be the character of the Georgia commission, I believe the natural conditions will produce the same res.ult in Virginia that the commission is said to have produced in Georgia, and no other and no more; and there is absolutelj- nothing, so far as relief to the people of Virginia is concerned from any burdens they arei bearing, real or imaginary, because I believe these great corporations are compelled, from the conditions in which they are placed, to deal with fairness and with justice to the people and the communities through which they pass. I believe it is tHe only way that the railroads can develop their trade. I believe if you make rates so high, the farmers will not raise the product unless they can get a fair return from them. I believe the result wherever you have a commission, will be just such as has been described as to this Georgia commission. Now, I will say that this is the strong medicine that my friend from Augusta (Mr. Braxton) was going to administer to the corporations of the State of Virginia. In Georgia, although it has had its commission ever since 1879 — I believe I am right in the year — the rates have never gotten as low as they are in Virginia. It seems to me the ideal of the gentleman from Augusta has been giving catnip tea. If I were to go to the medical world to define the prescription that my friend would administer to the railroads of the State of Virginia, I should neither describe him as a physician of the Allopathic or the Homeopathic class, but I would denominate him as an herb doctor; or if I were to go to the medico-religous world, I would call him a preacher of the faith-cure persuasion; and when I look to this remedy, this catnip tea, that he is administering to the corporations of Virginia, I would incline to the latter classification rather than the former, because I believe the herb doctor is a reasonable charger, and that the catmp tea doses of the herb doctor at least cost but little; but the faith- cure preacher I have always understood lives on the fat of the land and on the con- tributions made to him by those to whom he is administering his very effective remedies. This remedy that my friend from Augusta would propose to the people of Virginia In a Convention assembled to reduce expenses and diminish the number of ofiice- holders, who have been thrust upon us by the Underwood Constitution, creates five new constitutional offices, three of them with a salary of $3,000 each, and a clerk and a bailiff, and such additional officers as the General Assembly may prescribe, with the power to summon witnesses from all over the State of Virginia. If v/ith this remedy the people of Virginia escape with charges of 25,000 per annum, in my judgment, they will be fortunate indeed, and this expenditure will give no practical remedy or relief to any of the burdens, whether real or imaginary, from which the people of to-day are suffering. I say it is the most expensive dose of catnip tea that I ever knew of being administered by any herb doctor. 2178 DEB^iTES OF THE COXSTITUTIOXAL COXVENTIOJT OF VIRGINIA. Now I say, gentlemen, is. there anything in this record of the railroads of Virginia that should lead to such drastic remedies? Has not their conduct been fair? Has it -not been reasonable in every respect and in every way, manner, shape and form? Far be it from me to deny there are individual cases of Vv^rong, possibly of intention, in some cases, of accident in more. 1 say, however, that in the cases of apparent wrong and of apparent injustice, it would frequently, with a full knowledge of the factsi, be understood and realized and recognized to be of no such character, and the justice of it would be recognized by the men interested, if they knew all the facts and were able to put themselves in the position of those who were dealing with this great subject; because it is the biggest subject, gentlemen of the Committee, of a financial and a practical character, with which this body has been called upon to deal. I wish to God I had the power to understand and comprehend it in its full force and affect and mean- ing, and to intelligently and fully present those views to this body because I realize and recognize that I am not the master of the subject which I am discussing before you. " Ah, one other thing," says my friend from Augusta, " in behalf of this Georgia commission, and if there were nothing else to endorse that commission, it would to my mind forever establish its penetration. The chairman says it is desirable because all the candidates in Georgia want it." Well, gentlemen, it seems to me if we had fewer candidates, present or future, this matter would probably be considered in a different light, and the inclinations of men's minds would be less strong and they would be better prepared to hear in an impartial way both sides of this question. I recognize that it is not popular to advocate even justice and fairness to railroads. I recognize the popular cry is that of opposition and hostility. I recognize that the man who seeks or who expects to seek office thinks that that is the open sesame that puts upon his brow the crown of political honor; but I ask the members of the Conven- tion to consider this question as becomes and befits them as members of a Constitu- tional Convention of the great State of Virginia. Does the course of the railroads justify drastic, hostile regulations, going farther than any State in the Union has gone, and putting them in our Constitution when there are but two States that have done it? Is that reasonable? It is proper? Is it right? Is it fair? My friend says the General Assembly will do nothing. I know nothing of it, except that I do know that when my friend was making the argument in behalf of his commission with the power to fix rates, he dwelt upon the failure of the General Assembly to pass the Employers' Liability Bill, and said nothing as to any failure on the part of the General Assembly to pass a proper law supervising and regulating these railroads, although the law upon the statute books was passed in the year 1892. These are the general conditions, my friends, with which we are surrounded. These are the general conditions that you must face and upon which you must reach your conclusions. Now let us look for a moment, having considered these general condi- tions, at something of the character of the provisions of the article offered by the majority of the committee. In the first place. Mr. Withers: In this table of rates here, which I have not, of course, had a chance to examine, will the gentleman give the rate on a carload lot of hay, wheat or flour from Staunton, on the Chesapeake and Ohio Railway, to Danville? Mr. Hunton: I do not think I can, sir. I do not think the table shows it. It shows the rate on hay from Staunton to a number of points, but I am sure it does not show it to Danville. Mr. Withers: I just wanted to ask the question. You might be able to give it in the morning and compare that rate with the rat^ on a similar carload lot of hay • Mr. Hunton: I am not willing to yield for the purpose of allowing the gentleman to ask me to make comparisons to-morrow morning. I am willing to yield for the purpose of allowing him to ask me to make any comparisons on the facts and figures I have here before me. DEBATES OE THE COXSTITUTIOXAL C.OXVEXTIOX OE YIEGIXIA. 2ir9 Now, as to the powers tliat are given by this majoritv article against corporations; and I vcant to cali attention for a moment to the personnel of this corporation com- mittee. Seven of the eleven members are lawyers. Four of these lawyers endorse the majority report. Three dissent from it. As to the other four members, who are not lawyers, for vrhose intelligence and judgment and integrity of purpose I have the utmost confidence and respect, and whose effort to . do nothing that was imprudent, unwise, or radical, was as great in my judgment, as mine, it was impossible for those members, who are not lawyers, to realize the force and the effect of the provisions of this majority report; and I believe that if those same men, with their desire to do nothing to injure the material vcelfare .of the State of Virginia, had been able to appreciate the legal effect of this report, some at least of them would have been with the minority instead of with the majority. Now, let us look at the report itself, and some of its cardinal features. My first objection is to the commission. I do not believe that it is proper or wise that questions should be submitted to a court that is organized for the ptirpose of passing upon those questions. I believe that court — and nobody who considers it can reasonably escape it — x the Supreme Court of Appeals of this State, under such rules and regulations as may be prescribed by law. It shall be the duty of the Commonwealth's Attorney of any county or city in which proceedings are instituted under this act, under the supervision and control of the Attorney General, to represent the State, and such proceedings shall have precedi- ence over all civil cases on the docket. Yesterday, when I made my statement before the committee, I was under the impression that this precedence of civil cases on the docket was something added, but I find that it is exactly the same as in the Mason act. It shall be the duty, says the Mason act, of the Commonwealth's Attorney of any county or city in which proceedings are instituted under this act to represent the State, and such proceedings shall have precedence over all others on the docket in either court. The Mason act also provides: Either the Commonwealth or any common carrier, being aggrieved by any judgment or ruling made by any circuit court or judge thereof, under the provisions of this act, shall have the right to except thereto, and have such exceptions entered of record, and have the right, by bill of exceptions, to have any evidence introduced made a DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGINIA. 2207 part of the record : and the right to present a petition to the Supreme Court of Appeals, or an appeal, writ of error, or supersedeas to any final judgment, order or ruling com- plained of, and the right to such appeal, writ of error or supersedeas shall be deter- mined, and. if allowed, the case shall be proceeded with, heard and finally determined as in like cases made and provided. These, gentlemen, are the provisions of the ^^lason act. It does seem to me, gentlemen, with the profoundest respect for my friends who present this minority report, that if they were dissatisfied with the provision of the majority report, they might at least have offered something in its place and stead other than those which already belong to the people of Virginia, and had belonged to them for all these years since 1892. And this is the Trojan horse they have brought up to the walls of this Com- mittee, with which they were to go into the very heart of our citadel. But this Trojan horse is so badly constructed as not even to excite the curiosity of these Trojans. It might do very well for some mighty Ajax.to test his strength in the construction of. It might give the other Greeks bearing gifts splendid exercise to haul this machine up to the gates of this Convention; but other than acting as a development of their muscle. I am satisfied it will have no effect. Gentlemen of the committee, we all feel a peculiar interest in this matter. It is not to be decided by suggestions that the fate of this Constitution may be imperiled. It is not to be deteraiined by kindly digs at the gentleman from Danville (Mr, Withers!, who was so unfortunate as to lose his figures; but if I am not mistaken, those figures will yet return before this debate is over to plague his accusers. This is a matter, gentlemen, too serious to be determined by friendly badinage. It is a matter that goes to a very right, fundamental and organic, which means something or it means nothing, which is a breathing, living force, or, like the Dead Sea fruit, all ashes. These gentlemen who offer this report stand neither protected by the helmet of Pluto, for the weakness of their own scheme is plainly seen, and yet they are lulled into the mistaken idea that they wear the shield and bear the mirror of Pallas. They are neither invisible to others, nor can they see that others see the weakness of their substitute. In the zeal and earnestness of their advocacy they have lost sight of the fact that this is a matter about which this committee has worked for months, about which the people of Virginia have thought for years, and this is the field upon which this contest shall be fought out. This is the field. Ve are not to be deluded or persuaded to try our chances at any other place. \Ye are not here to await the slow and tardy action of a legislature, that all these years has done nothing in the pre- mises. This "is the forum, and it must be determined here whether this plan shall succeed or not. But I want to say to you, gentlemen of the committee, and I hardly deem it necessary to say it. that if in yotir wisdom and judgment you see fit — and I cannot see hov- you can come to such a conclusion — to turn down the report of the majority, giving a conservative commission to regtilate the rates of the railroads in A'irginia. I pray yoti not to accept this so-called substitute. The history of a people is often best preserved by their laws and ci^^l institu- tions. "The fame of the areopagus survived the military glory of Athens; and when the battle of Marathon, the passage of the Hellespont and the victory of Salamis v-ere treated as fables at Rome, the memory of the Grecian laws still lived in the twelve tables of the Capital of the Universe." And so, too. the fame of Magna Charta will outlive the military glory of England, and when the story of the warlike spirit of the Conqueror at Hastings, the heroism of Nelson at Copenhagen and Trafalgar, the unbending courage of V^llington at Waterloo and the magnificent genius of Marlborough at Blenheim shall be consigned to the pages of fiction, the historian of ages yet unborn will point to Runnymede as the birthplace of Anglo-Saxon liberty. And if, by the wise action of this Convention, we enact into the organic law of our State conservative and beneficent provisions along this line of the suitable 2208 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. regulation and supervision of corporations, the work of the Convention will be pointed to with pride by those who are to come afterwards. We have a magnficent State, inviting immigration, inviting its building up; and yet if you go up the line of the Richmond and Alleghany, now the James River Division of the Cheaspeake and Ohio Railroad Company, you will go through a country which at one time was the equal in the fertility of its soil, in the bravery and intelligence of its people to that of any country on the habitable globe. You will be confronted with a curious state of facts. You will look across the river from Goochland and you will see the county of Powhatan, represented on this floor by my colleague (Mr. Hancock) and myself. Go up as high as Jefferson, go up as high as Michaux, go to the point where the ferries are free; yet you will often see the farmer coming down that old river road hauling his tobacco and his other crops in competition with this splendid James River Branch of the Chesapeake and Ohio Railroad. In the old days the tolls were such tliat freight was brought to Richmond in the canal boats, but as we progressed we thought it was better to give the bed of that canal, as far as we could, tO' the incorporators of the R. & A., and they built this railroad, which is now a division of the Chesapeake and Ohio. For that reason this improvement to the farmer on either side has not followed in the wake of the con- stuction of that road. Possibly it is cheaper for him to haul his produce twenty-five to forty miles over the rough roads to the city of Richmond. Possibly the rate is unjustly high upon the railroad which is his only common carrier other than his own wagons. I cannot explain these things, nor will the figures furnished us on yesterday by the president of the Chesapeake and Ohio Railroad Company; and I take occasion to say here that, like the gentleman from Fauquier (Mr. Hunton), I know that gentle- man and think most highly of him. In the county of Chesterfield, which is singularly blessed, I am glad to* say, with railroads, eleven miles from the city of Richmond, where a Western farmer, and a good one, lives, where he carries on his dairy business, I have seen that man daily hitch up his wagon and haul his milk to be sold at wholesale in Richmond. Why that is I do not know, and yet I imagine it is due to^ the fact that the rates are so high and his cargo is so small that it would not pay him toi ship by train. Possibly this condition of affairs might be benefited. If it is right that it should be remedied, it ought to be remedied; if it should not be remedied, it will not be remedied. Competition lowers rates. Commercial competition entersi as a factor, but there is no competition, the rates are not lowered save insofar, as it is to the interest of the carrying corporation to lower them, to the extent that they may not kill the goose that lays the golden egg. That is the testimony of that great Pennsylvania jurist, Judge Black. That is the testimony, in a different form, of the last report of the Interstate Commerce Commission, though it dealt largely with the question of rebates; but it showed how powerless the commission is in the premises, because they have not the power to punish these offending corporations. The statutes are against the persons and not against the property, and being tired of asking for larger powers, the commission merely contents itself with the recommendations it has made annually all these years that have gone by since its constitution. Now, Mr. Chairman and gentlemen of the committee, all that I ask of you is that you will consider carefully, before you turn it down, the report of this committee. Its chairman, I desire to state, gave to the consideration of this question more time and more conscientious study, I dare say, than has been given to any other question that has come or will come before this Convention. To Washington, to the library, to confer with the Interstate Commerce Commissioners, to North Carolina, to every- where he could get his hands upon useful information, he went, listening with great care and courtesy and attention to these able arguments made by Judge Baxter and Mr. Glasgow and Mr. Finley and others before our committee, adopting many sugges- tions that have fallen from the lips of those who appeared before us that were to the DEBATES OF THE CONSTITUTION" AL CONVENTION OF VIRGINIA. 2209 real interest of the people of Virginia. We have presented to you for your considera- tion this report, and, my friends, I feel that if you give it your careful consideration it will result in its adoption by this committee. I regretted exceedingly on yesterday the suggestion of my friend from Fauquier (Mr. Hunton) — not a threat; he never makes threats; he is too high and honorable — but I regretted, I assure you, gentlemen of the committee, a s.uggestion eminafing from so high a source that in passing upon whether this was a proper article to go into our organic lav/, we must take into consideration its influence in arraying against us the corporations of the State. It should "not weigh one jot or tittle with any man in the Convention, in my humble judgment. Mr. Hunton: Did not my friend consider exactly the same idea in passing upon the Quarles-Barbour resolution? Mr. Ingram: I have not passed on it, sir. Mr. Hunton: Certainly there are very m.any members of this body who have con- sidered it and who will consider it. Mr. IngTam: Possibly that is true. I am not here to deny it; but I do say there is a difference, and, so far as I am concerned, neither question should influence this Convention, and I hope it will hot enter into the consideration of this question. Mr. Hunton: Does my friend from Manchester think it is wise, however great the instrument that this body may finally formulate to ignore the sentiment of the State and of the people upon the subjects upon which we are passing? So that our work, when formulated, will be absolutely ineffective, inefficient and fail to become a part of the organic law of our land? Mr. Ingram: Not at all. Mr. Hunton: Then, is not your argument fallacious? Mr. Ingram: Not according to my idea; but I do deny the right that any sugges- tion should be made in passing upon this question of the fact that the corporations are to go against it, and if, for nothing else, than on the score, if you take it on that ground, of its popularity. I tell you if it gets deep down into the hearts of the people of Virginia that the corporations of this Commonwealth are to hold at bay the acts of their sovereign agents, in defense of their liberties on the ground of popularity this measure will carry. I thank you, gentlemen, for your kind attention. (Great applause.) Mr. Quarles: Mr. Chairman, I rise not to make a speech, but simply to make an explanation. On yesterday while the gentleman from Fauquier (Mr. Hunton) was making his speech, I interrupted him to ask whether or not the Georgia commisision may not be infiuenced and controlled by railroads. I fear it may be inferred that I intended to charge that that commission is so controlled. I know nothing about or against that commission, and I did not intend to make this charge. That commission may be composed of gentlemen of the highest character and integrity, and I would not do them the slightest injustice. The idea I intended to suggest and impress was, that it is possible for a railroad commission to be influenced by railroads, Mr. Brooke: Mr. Chairman and gentlemen of the committee, I believe that those gentlemen who ai*e members of the Convention, with whom I have the honor and pleasure of a more than ordinately intimate personal acquaintance, and who, there- fore, know how largely I am possessed of that quality of modesty which adorns a woman and destroys a lawj^er will entirely appreciate my sincerity when I say that it is Vv^ith the utmost reluctance that I arise to enter upon a debate upon this important question, which has been already so elaborately discussed and so ably debated from both standpoints. I do not hope, Mr. Chairman, to be able to cover the subject in all its details. I shall not attempt to follow the able and elaborate argument of the gentleman from Augusta (Mr. Braxton) through all its lines and all its course. That is a duty from which I have been largely relieved by the fact that much of that argument, able, adroit and captivating as it was, was directed to the establishment of principles that 2210 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. nobody denied, of principles which we of the minority concede now and alwaysi have been ready to concede to the majority. Nor do I think, Mr. Chairman, that I shall be able to imitate the almost fatal paroxysms of disgust which seized upon my friend from Manchester (Mr. Ingram) at the very suggestion that anybody would offer him a dose of catnip tea. That term, as applied in reproach to the minority report of this committee, is. like some of the arguments that the gentlemen have made on this subject — a little time-worn and a little stale, to my mind. It was first uttered in a squib in a Staunton newspaper, then greedily accepted and rolled under his tongue as a sweet morsel by the gentleman from Augusta (Mr. Braxton), and then passed over by him to his able assistant, who spews it from his mouth as a nauseous dose. Birds in borrowed plumage have not always attracted the admiration of mankind, and the users and devotees of borrowed wit frequently destroy by its use the force of an otherwise good argument. I am not aware, as the gentleman from Manchester is, what Mr. Jefferson would say if he were here, nor what Mr. Madison would say if he were here, although the gentleman undertakes to give us the sentiment of those distinguished and illustrious statesmen, while he forbears to give us information as to the route by which he has communicated with them, and the post-mark which their communications bear. Nor do I appreciate just exactly what Ajax has to do with this case, or the shield of Pallas, or any of those oild-fashioned fellows, who had to deal with the problems which faced them in their day, as we now have to deal with the problems which face us. I beg this committee to believe that in what I am, about to say as to the causes which led me to separate myself from the judgment of the majority of this committee and to sign the minority report, will be given with a frankness and with a sincerity which are due to the members of this committee, and which I feel in my heart are the only actuating motives which have operated upon me to determine my course. Would it be considered an impertinence for a moment and to reflect for an instant upon the purposes of our Convention? We are charged by our people with the duty of a dis- passionate, calm, judicial and earnest examination of all the great questions which will be submitted to us, and to give to them, as they have the right to demand, the result of our best judgment, uninfluenced by prejudice and unswayed by the desire for popularity. I have undertaken to call the attention of the committee to that fact because frankly, gentlemen, I cannot understand the mental attitude of the gentlemen who have led the debate on the other side. It has been conducted, it seems to me — whether intentionally or unintentionally — as if the railroad and transportation com- panies of the State of Virginia were the natural and implacable enemies of the people. It has been discussed, it seems to me, not with a view — my friends will pardon me for say ng it — of arriving at the best result between these two competing measures, but as if it was the cause of the people against the railroads;, and I have sometimes felt, as the argument went on, that in the minds of the gentlemen whoi were speaking, that word was spelled " peepul." (Laughter.) If it is true, as we admit (and this is one of the propositions which the gentleman from Augusta seemed to me to labor so hard to prove), that the State has the power of legal control of the rates, and if it is true that that power grows out of the fact that the gift to these transportatTon com- panies, to these carriers, of the power of eminent domain, of the right to charge tolls,, was made in consideration that those companies should perform a public service to the people, is it not equally true, in law and in morals, that the consideration for those contracts is reciprocal, and that when a State gives to these common carriers, for the purpose of having this public service performed, these rights, is it not equally true — ought it not to be equally true — that the State does it with an implied promise on her part that these companies, conducting themselves with propriety, seeking not to trample upon the interests of the people shall not be throttled by the State by oppres- sive, drastic regulationsi? Is this a one-sided business between the State and the carriers? We say that the DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 2311 State has the right to demand, on the part of the common carrier, the performance of these public services; but we also say that, in the name of morals, in the name of the high character and great reputation of this old Commonwealth of ours, the railroads, the carriers, should have the right to say to the State: " Supervise our performances, regulate our conduct, but do not throttle us out of existence. Do not take from our possession the management of the property that you have induced us to build up by the expenditure of millions upon millions of our own money." Now, gentlemen, in what attitude, in what mental attitude, does it become us — earnest, and I hope patriotic, representatives of the people — to approach the decision and the consideration of a question as important to the large interests involved on either side as is the one which now claims our attention? I shall, as briefly as I can — I know ineffectively and without attractiveness — proceed to discuss some of the provi- sions, some of the fundamental principles underlying these two propositions, and will call the attention of this committee to the line of demarcation between these funda- mental principles. I ha,.ve said that we do not deny the right of the State to control. We do not deny the power of the State to control. The question between us is as to the propriety, as to the justice, between man and man, between the State and her servants^ — if you please to call them such — of the State exercising such complete and absolute control as is proposed by the majority report. The difference between us is simply this: We claim that the proposition of the majority, as laid down in their report, carries the exercise of this power of control to the extent of actually and pratically taking out of the hands of the men who own these properties the management of it and putting it in the hands of this agency of the State, which assumes the management but declines to accept any of the responsi- bilities of their operation. We, of the minority, on the other hand, believe that all of the interests of the State can be properly, and will be properly, protected, and that the citizens of the State will be protected, by such a proper supervision and regulation of these roads, as will enable the State to correct abuses upon complaint, and to protect the interests of the individual, and yet leave, as it seems to me, in justice and common honesty it should be left, the management of their own property in the hands of the men who have invested their money in it, not only for their own benefit — or, if that be the main purpose — yet also resulting in a large benefit to the State in the upbuilding of her resources, in the linking together of community with community, in furnishing markets for producers, and in contributing more largely than any other commercial agency on earth to the civilization, the happiness and the prosperity of the community. Is it true that the plan of the majority practically takes from these companies the actual management of their property? I shall not discuss many of the separate propositions of the proposed article, but will confine myself almost entirely to those which give this power to this commission. Mr. Meredith: May I ask the gentleman, as he goes along, to state what is the great difference between the majority report and the minority report, taking the con- struction of the language of the minority report put upon it by the gentleman from Fauquier (Mr. Hunton) on yesterday? Assuming that language to be as broad as he construed it to be, please show us wherein there is this extreme power given by the majority report that is not given under the minority report. Mr. Brooke: I will try to do that, and, for the time being, I will make this answer. As I have just said, the majority report differs from and is more drastic and compre- hensive than the minority report, in the fact that it authorizes this commission, as an initial proceeding, to fix the rates and control these companies — as an initial pro- ceeding — in all respects and in all matters in which they touch the public. Mr. Meredith: No matter what may be in the minority report, is it possible for there to be initial proceedings on the part of this board, taking into consideration the fact that you are now in existence, that you have your schedules in use and will have 2212 DEBATES OE THE CONSTITUTIONAL CONVENTION OF VIRGINIA. them when the board comes into existence. Can they do anything more than supervise them? Mr. Brooke: One of the arguments against this majority report is that it not only gives to the commission the right but im^poses upon it the duty to do the very thing v/hich the gentleman says it is impossible for them to do. If they connot do it, why give them the power; why fling out the red flag of warning to capital to keep out of the limits of this State? If they have no power, under this proposition of the majority, why signal to the world at large that Virginia is dangerous ground for men who have money to invest, brains to use and efforts to exercise in upbuilding the industrial resources within our borders? Mr. Meredith: I hope that I am not interrupting the gentleman too much, but I would like, since you say this power is given, foT you to show us the language which speaks of that power as being anything except supervisory, regulating and con- trolling. You have used this very earnest declamation about driving capital away; but, to get down to the point, I would like you, if possible, to show us the language which gives them any initial power, and how it is possible for initial power to be exercised by them, when you are in existence, with your rates established, and they can only be revised or supervised. Mr. Brooke: I will try to answer the gentleman as I go along. I will say, however, in passing, that I construe this language as it is con- strued by its friends, by the chairman of this Committee on Corporations. If they do not know what they mean, the apology ought not to come from our side of the house. I will show my friend that the chairman of this Committee on Corpora- tions, himself, has said that the kind of control he intended to give over the rates of of the railroad companies was just the control that the general freight agent had — just exactly the control that he had. If that does not mean control, if that does not mean absolute management, I would like to know exactly what it does mean. Otherwise I shall remain in the dark. I have said that our contention is, or, if I may put it a little bit more mildly to suit the possible ideas of some of the gentlemen upon the floor, our fear is that the powers given to this railroad commission under sub-section B of Section 4 amount to turning over to this commissin the practical management of the properties of these companies in all respects in which they touch the public interests. I may say, in passing, that I cannot conceive of any matter relating to transportation and charging the cost thereof which does not belong to that class of matters which do touch the. interests of the people. Here is what the report says: The said commission shall have the power, and be charged with the duty — it is not optional with them. The majority have placed upon the commission not only the power but the duty, which they will, if true to their oaths of oflice, attempt to per- form — of supervising, regulating and controlling all transportation and transmission companies doing business in this State — Mr. Braxton: Will the gentlemen please not stop at that point, because he does not do justice to the report of the committee. The report says " in all matters relating to the performance of their public duties and of their charges therefor," which is an essentially different thing from what it would mean if you stop at the point where the gentleman stops. Mr. Broo'ke: I pray the committee to believe me when I say that I am too old a lawyer not to recognize not only the want of ethics, but the danger of not reading an entire quotation. I certainly do not intend to stop at that point. I may stop at that point, briefly, to comment upon it in connection with what I shall read as fol- lowing it, which I think is a fair and proper way of arguing the question. They are charged with the power and with " the duty of supervising, regulating and controlling all transportation and transmission companies doing business in this DEBATES OF THE CONSTITUTIONAL CONVEXTIOX OF VIRGINIA. 2213 State, in all matters relating to the performance of their public duties and of their charges therefor." Now, vrith the permission of the gentleman from Augusta, .1 will pause at that comma for a moment. " Charged v.'ith the duty of supervising, regulating and con- trolling all transportation and transmission companies doing business in the State, in all matters relating to the performance of their public duties and of their charges therefor" — what matters in the operation of a railroad company, or other carriers, do not pertain to the performance of their public duties? Is it too much to say that the whole matter of transportation, the whole matter of rates, the whole matter of con- veniences for the public, the whole matter of schedules, the whole matter of the establishment of depots — the list is too long for me to go over it by memory — that everything which pertains to the earning power of the railroad company has relation to its duties concerning the public? Give them the power to control the railroad com- panies in all of these matters, and you take away from the companies themselves the management of everything which relates to their earning power. You take away from them every power, so far as I can generalize upon the moment, except that of making contracts for the purchase of supplies; but you do not take away from them one single pound of the burden or responsibility which rests upon them as trustees of the men who have intrusted their property and their money to their management, nor do you take away from them the obligation and the respon- sibilitj" which they owe to the State, and to the citizens of the State, for the safe con- duct of their business, so that the citizens of the State may be safely transported upon the vehicles of these carriers, I would like to ask 3'ou, in fairness — just in fair- ness, gentlemen; just in good, ordinary, common-sense fairness, and, if I may use the words without offense, in common decency and common honestj^ — whether, if you take awaj^ from the railroad companies the power of the management and operation of their property, the State should not assume the responsibilities which rest upon these men from whom the power is taken, and assume the ownership of all these carriers in the State? How does this section direct that these powers shall be exercised? " And to that end " — to the end of supervising, regulating and controlling these cai^ riers in all matters relating to the performance of their public duties and charges therefor — " the said commission shall, from time to time, prescribe and enforce against such companies, in the manner hereinafter authorized, such rates of charges, classifica- tions of traffic and rules and regulations, and shall require them to establish and main- tain all such public service, facilities and conveniences as the said commission may, within the limitations of the Constitution of this State and of the United States, deem reasonjSble and just." Considering the language which I have just read, was there any reason for the gentleman from Augusta CMv. Braxton) to ask me not to stop, after stating that the commission should have the power and be charged with the duty of supervising, reg- ulating and controlling all transportation and transmission companies doing business in this State? Is there anything further, after the comma at which I paused, to restrict the power given by the general language which I had" read? They are to pre- scribe, from time to time, in the manner hereinafter authorized, " such rates of charges, classification of trafiic and rules and regulations, and shall require them to establish and maintain all such public service, facilities and conveniences as the said commission may, within the limitations of the Constitution of this State and of the United States, deem reasonable and just." I should hardly suppose, Mr. Chairman, that in this body there could be found a gentleman who would not fully appreciate the meaning of the word " control " and the extent of the power given by the use of that word. But to show to this committee, Mr. Chairman, what the chairman of the Com- mittee on Corporations thinks it means, I will read from his own language, and, in an interruption to an address before the Committee on Corporations, when we were giving public hearings. How does the chairman of the Committee on Corporations expect that word " control " to be construed and that power to be exercised? A gentleman 2214 DEBATES OE THE CONSTITUTION"AL CONVENTION OE VIRGINIA. was making an argument before the committee to show that it would be impossible to select three men in the United States who would have the physical ability or mental capacity to perform the onerous duties which are imposed upon tEis commission by this article. The chairman of the committee interrupted him and asked him, "Are there not several roads whose total mileage is more than that (more than the mileage in Virginia), and whose traffic is controlled by one man? Take the Southern Railway, for instance; has not that road two or three times as much mileage as there is in the State of Virginia, and is not that under the management and operation of one man?" The answer was: "Under the control, but not under the management and opera- tion of one man." The chairman then said : " We do not say here that it is to be under the manage- ment of one man, but he would control it just as the general freight agent of the Southern Railway controls the rates." Can you have any more direct statement of the intention of this article, so far as it is construed by the chairman of the committee, than this, that this commission shall take exactly the same control over the question of rates and the management of traffic as the general freight agent of the Southern Railway does. If that is not taking out of the hands of the company the management of its own property and giving to a State commission the power to control it, even almost to confiscation, then, in the name of the lovers of the English language, what does it mean? The chairman seeks to explain that proposition, and says: "He does not personally make all the calcula- tions and do all the clerical work, but it is under his supervision and control, and he has three times as much mileage under his jurisdiction as there is in the State of Vir- ginia." Now, do not let us quibble about this. Let us try to get our minds together as honest, earnest, sensible men, desiring to deal fairly and justly between man and man. Tell me if the provision of this article, as constructed by the chairman himself, does not take the management, the absolute management, of the freight and traffic depart- ment of the railroads out of the hands of the boards of directors and the general freight agents and put them into the hands of this commission? So much for the management of the traffic department of railroads. That is what this commission is to have the power to do. It is to have the power to m_anage and control the traffic departments, just exactly as the general freight agent has now, upon whom all the fixing and prescribing of rates finally rests. How about the other departments? If the chairman of this Committee on Corporations construed the word " control " to mean that much in respect to the traffic department, is it not fair to suppose that he would construe in the same way the same word in the same sentence in relation to those other departments of railroad management and operation which deal with the establishment and maintenance of all such public service, facilities and conveniences as the commission may think just and reasonable? Can he construe the word " control " in that wa.y with reference to the traffic department and deny that it has the same meaning in reference to these other departments, the fixing of' schedules, the building of depots, and all the various subjects which come under the control and management of the general manager of a railroad company? And if that is what this provision means, gentlemen, I ask you, is it not equivalent to taking away — is it not in fact taking away — from these companies the management of their own property, placing that management in the hands of the State Commission, and leaving upon the companies themiselves the bare responsibility for injury to investors and for damages to citizens incurred by what might turn out to be the bad management of this very railroad commission itself? Now, gentlem^en, I say, and I say it sincerely, that this is too much power to put in the hands of this commission. I will not repeat the argument, to which I have briefly referred, that it places upon these men more work, requiring technical know- DEBATES OF THE CONSTITUTIONAL CONVENTION" OF VIRGINIA. 2215 ledge, more duties than they could possibly perform in a way which would be satisfac- tory and safe to the people of this State. But I go a little further than that. I know I am speaking to Virginia gentlemen, each one of whom, in his personal relations to his fellowmen, v/ould rather have his arm withered at his side than to fail to recognize the obligations of reciprocal considera- tions growing out of relations between the two. I say this is not a question only of the State bestowing upon the carriers these great powers in consideration of the performance by them of public service. This is not a gift for nothing. It is a gift for the purpose of obtaining a result; a.nd I say that on the part of the railroad com- panies it is not an acceptance without conditions, express or implied. The State says. In effect, to the railroad companies, " Come here, invest your money under the protec- tion of our laws, perform these public services for us," and then, because a State can- not sYvear by another, it swears by its own honor that they shall be protected in all the reasonable exercise of the power which they have- not had given to them, but which they have bought from the State. It is not a one-sided question? Individuals, singly or in associations, have their rights as well as the public at large. Mr. Chairman, I am taking more time than I intended. The minority of the Com- mittee of Corporations feel, and felt, that that was too great a power to give to this commiission without some extraordinary necessity. They felt that the situation sur- rounding the people of Virginia as regards the common carriers was not such as demanded such drastic treatment. They felt that unless the situation did demand it, it was a violation of all honor and trust and confidence in the State to take away from these people practically the earnings, of their brain and the results of their investi- ments. We were perfectly willing to admit, and have admitted, the power to do it. We might have been willing to admit the propriety of doing it if these carrier Ishmae- lites had in fact raised their hand against every man or against the interests of the State. Have they done it? I shall not go into this question of rates and detail. It was so much better done than I could possibly do it by the gentleman from Fauquier in his presentation of the minority report that I will not reduce its affect by a weak repetition. I call your attention simply to this fact, and it is just as irrevocable a fact as are any other of those great eternal facts upon which we lean for our hope of salvation, that the rates in Virginia are comparatively as low for the same class of traffic as they are in any of the States that have these drastic forms of commissions imposed upon them by the State Legislature. I am not going to explain that fact. I am not going to undertake to tell you how it has occurred. I do not know; but I do think I know as wedl as the gentlem.an from Manchester (Mr. Ingram), who says that the rates in Southwest Virginia and in the Valley are made low by reason of the competition of the James river and the Rappahannock. I will not undertake to explain this fact. I do not know why it is, unless it be that it is the result of the inter-action of commercial forces. But this is what I do insist upon, that the situation in Virginia does not show such relations between the railroad companies and the people of the State as justifies this — I had almost said, and I say it now with an apology — ^highway robbery under the forms of law. We recognize that all men are human. We recognize tlie truth of that Latin sentence which we used to translate in the distant past, when the gentleman from Manchester was reading his mythology and learning those finely turned phrases which tickle the ear but dull the intelligence. We recognize that men are human. We recognize that they will err. We say "govern these railroads by the same system of law by which you under- take to prevent other people, the citizens of the State, from violating the laws of the State." What have they done that you should establish for them a different philosophy of law, a different philosophy of human government, a different method of procedure to prevent the violations of the law, than you prescribe for the individuals who are 2216 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIEGINIA. the citizens of your State? Punish them in advance! The Gentleman from Augusta says, " We will apply the ounce of prevention rather than wait for the pound of cure." Punish them in advance! Take out of their hands their property, because its vast- ness gives a power which may become dangerous. Assume that they are going tO) violate all the laws of the land, and punish them in advance by taking away from them, by fining them, the amount of their earnings, or by at least depriving them in some great degree of their right of property in the State of Virginia! We feel that all that is necessary to be accomplished in this respect can be accom- plished by the regulation and supervision, not going to the extent of absolute control and management of these companies in respect to freight traffic and to public con- veniences and appliances. Now, having that view in our minds, we have presented an article which we think gives all of the powers, provides for the correction of all the violations of law, places before these railroad companies and other carriers the knowledge of the fact that their impositions, if there are impositions, their extortions, if there are extortions, upon the people of the State, shall be corrected, and they shall be punished. Now, Mr. Chairman, I shall run over this report of ours, very quickly. I have nearly exhausted myself, and I feel the committee might be very justly exhausted, but I feel a deep interest in this matter. I do not often feel justified in trespassing upon the time of the committee. I never do it unless I feel impelled to it by such deep interest in the subject as makes me feel that it would be a failure of my duty to myself, to the Convention and to my people if I held my peace. It has been said, Mr. Chairman, in regard to this minority report, that it is ineffi- cient. It has been said that it does not provide any proper method of regulation and control. It has been derided as being made up of the Interstate Commerce act and of the Mason bill, as the argument of the gentleman from Manchester on that subject would lead you to believe. If you did not make any examination of it, that this report of the minority of the committee is an embodiment of the Interstate Commerce act, with all of its infirmities on its head, and an embodiment of the Mason act without the change of a comma, the dotting of an i or the crossing of a t. It shows you, gentle- men — I mean it not offensively — how unfairly this proposition has been presented by the gentlemen on the other side. May I ask your attention just for a few moments to this consideration — I hope it may be worth your consideration; I offer it as worthy your attention: We are here to make laws; we are here to make laws in this respect, dealing with a situation. Is it not fair, is it not right, is it not proper that we should approach the performance of that duty along the safest lines which we can discover? Shall we, regardless of the destruc- tive effects of any fundamental error on our part, go careering through the realm of guess-work, carried hither and thither by every apparently attractive theory which presents itself, absolutely untried and unknown? If any of you lawyers have before you the preparation of a difficult contract, if you are called upon to prepare any legal paper which is to be binding for a number of years, and is to deal in great elaboration with many details and many possibilities in the future, do you not, as a matter of practice, feel relieved, do you not feel that you are getting on safe ground if you can find anywhere, to guide you in the preparation of that contract, or important paper, some other paper of a similar kind, some other contract of a similar kind, which, by reason of its long existence, by reason of the trial to which it has been submitted, has shown both its excellencies and its defects, enabling you to follow the one and to avoid the other? And when we come to consider an article which is to deal with these important interests for a generation, probably, to deal with these complicated matters, to pass this absolute power away from the owners of the property into the hands of the administrators of the State, is it not good policy, at least, it is not safe procedure, to take as, a basis of such a plan some act — I do not care whether it is the Interstate Commerce act, or another — but some law which, by virtue of its trial, stands now with DEBATES OF THE COXSTITUTIOXAL COXTEXTIOX OE YIRGIXIA. 2217 all of its excellencies emphasized, upon its face, and "^-itli all of its defects written in italics in the minds of the people? But you would not be justified, nor would we, in taking any such statute with its defects thus pointed out, without some effort to correct ii; and there, gentlemen, is where I say comes in the unfairness, in spirit if not in intention, of the argument of the gentlemen who made the atta-ck upon this miniority report. The report is, in large part., based upon the Interstate Commerce act. Now, gentlemen, I shall not detain you with any historj^ of that act. I will only say this, that the committee which, after eleven years' examination and testing, succeeded in getting the Reagan bill passed through Congress under the name of the Interstate Commerce act — and they started their work just upon the same principles upon which we are endeavoring to start ours — svvept the field of legislation, to see if they could find some act dealing with the same subject which had been tried and by its trial had been proved either good or bad. They took the railroad act of England, passed in 1S54 and amended in 1873, and after investigating the situation, after investigating the surroundings, after investigating in every point and every direction that they could, for eleven long years, they put this Interstate Commerce act upon the statute books of the United States. There it has been since 18S9. There it has been undergoing trial for all those years. Defects have been discovered in it — defects which have gone far to deprive it of the value which it was supposed it would have to the people of this counfrj^ Now, is it not fair, in undertaking to construct an article of this sort, to take that act as a basis, and, avoiding, if we can, correcting where we can, the defects which have become marked in trial, submit that to the people of Virginia as an act which will, honestly and with due regard to the rights of all the people, regulate and supervise these railroads in the exercise of their powers? Now, :\Ir. Chairman, I did desire to go through, to some extent, the defects in that act which have been brought to light by trial, and show how we have attempted to correct them in our own report. If we have not corrected them, if the language is not sufficient to carry out the intention to correct these defects, then I say for myself, and I think I can say for the other members who signed the minority report, that if our failure has come from our inexperience and inadeptness in the use of the Eng:lish language, strengthen the language to carry out the honest purpose of the minority of the committee, and we will accept it. The gentleman from Fauquier went over this question so thoroughly that I shall but briefly touch upon it. It seems that under the Interstate Commerce act the com- mission, after investigating, had only the power to direct the offending carrier to " cease and desist " from that particular violation of the law. ^Tien he went into court, after the carrier had failed to obey the order to cease and desist, if the court thought the carrier was wrong and the carrier was right, it had the power, through the writ, only to enforce the lawful order of the commission. That lawful order the Supreme Court of the United States has held can go no further than to direct the carrier to " cease and desist from the particular violation of the law. The mandamus — if it were a mandamus, the injunction — if it were an injunction, could go no further than to enforce the lawful order of the commission, and as the lawful order of the commission was only to '"' cease and desist " the courts had the right to issue no larger order than to direct the offending carrier to " cease and desist." It soon became apparent that this was ineffective, because the order could be obeyed without a removal of the cause of complaint. As the gentleman from Fauquier, I believe, illustrated on yesterday, if the complaint was that there was a charge of fifty cents per hundred-weight on a certain class of freight, and the order of the com- mission, after examination, was that the railroad company or carrier should " cease and desist " from charging fifty cents, they could evade the power of the court, they could annual the power of the commission, by reducing their charge to forty-nine cents. 140 — Const. Deb. 2218 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. They would then have " ceased and desisted " from charing fifty cents, but the order of the court, and their so-called compliance with it, would not bring about a correction of the cause of complaint. We think we have corrected that. We think we have, by our article, given to this commission and to the court enforcing its order, not only the power to say what shall not be done, but the power to say what shall be done in order to remove the cause of complaint. I will not go further than to make that statement. Some sug- gestion was made by the gentleman from Richmond (Mr. Meredith) on yesterday that probably our language was not apt to give that pov/er. I say to him, as the gentleman from Fauquier said to him, if it is not apt to give that power, that is the power which we desire to give, then we will accept an amendment which will make it absolutely above dispute. By common consent, by the utterances of the men who have been most intimate with the operations of this Interstate Commerce Commission, by writers who have been hostile to it, this has been found the main defect in the Interstate Commerce act. This has been what, almost alone, prevented the other admirable provisions of the act carrying relief wherever relief was desired, and wherever relief was proper. Another objection to the Interstate Commerce act^ another alleged defect in it, was that by reason of the commission not having the power itself to enforce its orders, and having to apply to the courts to enforce them, railroad lawyers, by ingenuity, possi- bly by subterfuge, maybe by their greater information and talent, succeeded in post- poning and delaying the trial of these cases until, through delay there was a loss and a denial of justice. If that is so, it was a defect; and I believe, I have no reason to doubt, that it is so; but what have we done? We have tried to correct this defect also, and that in the face of the statement made by the gentleman from Manchester that we have given you the old Interstate Commerce act. We have tried to correct it. If you will take this act which we offer for your consideration and make the calculations of the time, you will find that in twenty days from the time the com- mission issues its order to correct an error you have your case either in court itself, standing first on the docket of all civil cases, or you have it in the hands of a court sitting in vacation. Now, gentlemen, that is not a thing to be overlooked. If there has been any trouble about the Interstate Commerce act because of the delays, have we not attempted in this minority report to correct them? Will you make the calculation and see whether what I have said is not true? When a person feels he has been injured by the carrier, he makes his application to the commission. The commission then gives notice to the common carrier and takes up the case and investigates it. If it finds that the common carrier is wrong, it issues a notice or a service or an order, whatever you choose to call it, to the carrier to^ correct the cause of complaint. If within ten days the carrier does not correct the cause of complaint, then the commission turns the facts over to the attorney-general of the State, and it rests with him to some extent as to how soon the application may be made to the court. But the direction is that he shall give ten days' notice to the carrier of the fact that he is going to apply to the court for redress, and give in his notice the cause of complaint. At the expiration of ten days more, being twenty days in all, the attorney^general doing his duty, as he always will, we have in court at the expiration of twenty days the case of the complainant against the railroad company in court, with a right of way over the other cases, or we have a case before a court sitting in vacation, with no other case having any right of way at all. Those are the defects in the Interstate Commerce act which we have tried toi correct. They are the defects in the Interstate Commerce act which have been developed by trial. They are the defects, and almost the only defects, in the Interstate Commerce act which have been pointed to as rendering that act Inefficient and of no avail. It has been said that this proposition of ours is not efficient. I hardly know, sir, DEBATES OF THE COJ^STTTUTIOJTAL CO^'VENTIOX OF VIRGINIA. 2219 how to begin the discussion of that question. I promise the already wearied committee that I shall take but a few moments in disposing of it from our standpoints, I can- not, for the life of me, see how it can be claimed that when we put behind the hum- blest complainant against a railroad company or a carrier, complaining of a loss by overcharge of fifteen cents, perhaps, when we put behind a man with such a small claim as that against this great carrier, all the power of the treasury of the State of Virginia, all of the power of the prosecuting officers of the State of Virginia, and have his case prosecuted for him by the officers of the State without cost and without charge, and have it prosecuted in those courts to which, sir, you or I or any of us would have to appeal for the protection of our lives, property or sacred liberty, it is not makirg an inefficient provision for the poor complainant against the great carrier — when all he has tO' do is to go to the commission and make his complaint. V/iiether it involves 37S cents or $37,000, it yet becomes the -duty of the commission to fake it up and investigate it without cost to him, without labor to hirn. If they find he has been wronged, then they issue their order to the carrier to remove the cause of com- plaint. If the carrier does not do it in ten days, they call upon the highest executive officer in the State Judiciary Department, the attorney-general of the State, and lay it upon him, by virtue of his oath of office to faithfully discharge the duties of th© same, to present in ten days that case, made up by the commission, to the court where you, sir, would be tried for your life if you were ever unfortunate enough to be brought, circumstances requiring it; where I would have to defend my property, and where you might have to defend your liberty. And yet they say we are not providing for this injured poor man all the efficiency v/hich can grow out of putting at his back, to pay the costs and expense of his complaint, the treasury of the State of Virginia, putting at his side, to prosecute the case, all of the able prosecuting attorneys of Vir- ginia under the leadership, and guidance, and direction, and under the duty imposed upon him by the law to see that they do their work, of the attorney-general of the State of Virginia, and then turning them over to the same courts which try all other questions as between man and man, and between the State and the members of society. Now, Mr. Chairman and gentlemen, I have occupied much more time than I intended to occupy. I feel that I have been ineffective and possibly confused in the presentation of our side of this question, and I can only ask you not to visit upon this efficient measure the infirmities of its supporters; but to take these two measures, take the conditions which exist around us, take the necessities of the case, and say whether it is not fairer, whether it is not more in consonance with the principles of justice between man and man, whether it is not fairer in view of the implied contract made by the. State in granting these franchises that they should not be ruthlessly destroyed, whether it is not more in keeping with the record of our old State not to adopt a measure which undertakes to punish a man in advance for crimes which ho may commit, but tO' adopt the one which says to him, " There is a power in this land which will see to it that if you do violate any of the laws of this- land, you shall be held to the same accountability, through the same instrumentalities and through the same courts as any other citizen, and you shall always, in that way, be made to respect the duties which the powers and franchises granted to you have imposed upon you. I thank you, gentlemen. (Applause.) Mr. Kendall: Mr. Chairman and gentlemen of the committee, I feel almost as if I were doing a wrong to this committee when I undertake to add to what has been so well said by the chairman and the gentleman from Manchester in defense of the majority report upon the subject now before the committee. I wish that I could post- pone to another occasion what I now have to say; but it suits the plans of those who wish to further the interests of that report that I should speak at this time. I shall call yonr attention, for a very short while, to a few points which, it seems to me, have not been presented to this committee in their true and legal aspect. 2220 DEBATES OF THE COJ^STITUTIONAL CONVENTION OF VIRGINIA. It ia admitted by the minority, or those who represent the minority report, that the people have grievances against the railroads. It is admitted that vi^rongs are done intentionally or unintentionally. That admission is expressly made in this debate, It is inferentially admitted that wrong is sometimes, if not oftentimes, intentionally done, because if that is not the fact there is no excuse or reason for the presentation of this weak provision which these of the minority report offer us. It is true that if the people of Virginia are enjoying, under what the gentleman from Fauquier denom- inated commercial regulation or commercial rule or commercial law, cheaper rates and better service than our sister States of the South are enjoying, it would not only be unwise for you to adopt the majority report, but it would be unwise, also, for you to adopt this wealding of the minority report. You should rely upon that commercial law and com- mercial regulation v/hich has heretofore given you cheaper rates and cheaper service than the commissions have given in the State where they have the power to fix rates. It is also true that if the railroads have been enjoying high rates in those States where the hand of the law has fallen upon them through commissions endowed with power to fix rates, it would seem to bo folly on their part to object to the provision which we offer. And yet, as we are not here to-day seeking consistency, but practical results, it may be well that we should recur to the great principle out of which this authority of law grows, and upon which we base our right here, if it be in our power, to place this provision in the Constitution of this State, and, Mr. Chairman, I cannot better do thisi than by quoting the language of the Supreme Court of the United States in the decision of the case of Munn vs. Illinois, in an opinion delivered by Mr. Chief Justice Waite. I am not reading this decision of the Supreme Court so much for the benefit of the lawyers as for the benefit of those who are not lawyers. That decision, as you lawyers know, grew out of a statute of the State of Illinois undertaking to fix the rates which the warehouses should charge, which, I believe, had never previously been regulated by statute in any State in this country. Upon an examination of the whole question. Chief Justice Waite used this language: When one becomes a member of society, he necessarily parts with some rights or privileges which, as an individual not affected by his relations to others, he might retain. " A body politic." as aptly defined in the preamble of the Constitution of Massachusetts," is a social compact by which the whole people convenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good," This does not confer power upon the whole people to control rights which are purely and exclusively private; but it doesi authorize the establishment of laws requiring each citizen to so conduct himself, and so use his own property, as not unnecessarily to injure another. This is the very essence of govern- ment, and has found expression in the maxim sic utere tuo ut alienum non laedas. From this source come the police powers, which, as was said by Mr. Chief Justice Taney in the license cases. " are nothing more or less than the powers of govern- ment inherent in every sovereignity, * * * that is to say, * * * the power to govern men and things." Under thes.e powers the government regulates the conduct of its citizens one towards another, and the manner in which each shall use his own property, when such regulation becomes necessary for the public good. In their exercise it has been customary in England from time immemorial, and in this country from its first colonization, to regulate ferries, common carriers, hackmen, bakers, millers, wharfingers, inn^keepers, etc., and in so doing to fix a maximum of charge to be made for services rendered, accommodations furnished and articles sold. To this day, statutes are to be found in m.any of the States upon some or all these subjects; and we think it has never yet been successfully contended that such legislation came within any of the constitutional prohibitions against interference with private property. With the Fifth Amendment in force. Congress, in 1820, conferred power upon the city of Washington "to regulate * * * the rates of wharfage at private wharves, * * * sweeping of chimneys, and to fix the rates of fees therefore, * * * and the weight and quality of bread," and in 1848, " to make all necessary regulations respecting hackney carriages and the rates of fare of the same, and the rates of hauling by cartmen, wagoners, carmen and draymen, and the rates of commission of auctioneers." ^, ^. ... Mr. Chairman, I do not read that to show what is the law upon the question. All DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIEGIXIA. 2221 lawyers recognize this power as existing in the goTemment, and most of the laymen recognize it as there existing; but I read it to you because it shows that the very fundamental rights upon which goTernment rests are those inyolved in the question that is now before this committee. I read it to you because, under the burning elo- quence of the gentleman from Fauquier and others who liawe spoken upon this question, your mind has been directed so continuously to the wrongs, injuries and oppressions of the railroads in this Commonwealth, under the provisions presented by the majority of the committee, that you hare forgotten, I fear, there are other rights to be safe- guarded and other wrongs to be remedied besides those of which the roads complain. There are the rights of the people to be protected. There are wrongs which the people endure; and it is as much your duty to look after those rights and prevent those wrongs as it is to guard against abuses and wrongs to the corporations. It is, Mr. Chairman, a condition upon which eveiw charter is granted to a railroad that it shall charge only reasonable rates. Government itself has no other povrer than that. The government, if it were exercising the rights which are granted to the rail- roads, would not have any constitutional power or right to impose any rates other than those are known in the law as " reasonable rates." If they do impose any others, it would be a form of taxation which could not be justified upon any other ground than the necessities of government. I take it for granted it will be conceded that, in this country at least, the government has no power to grant any private individual or any corporation, other than a municipal corporation, the power of taxation. Surely, there- fore, if it be true that the government has no right to impose rates other than those which are reasonable, it has no right to permit its agents to do so, and, it seems to follovr as a necessary conclusion, beyond doubi, question or dispute, that if it shall fail to so manage and control its agents as to permit them to abuse the privilege, it is failing in one of the highest and greatest duties which can come to any govern- ment. It is of the very essence of good government that it shall not permit those whom it has entrusted with power to so abuse that power as to injure any of its citizens. AMll any gentleman dispute the fact that it is a part of every charter, that it is at least written by implication in every charter, of a railroad that only reasonable rates shall be charged? If there should be any question upon that point in the mind of any man here, I will read to you a very short extract from a decision of the Supreme Court of the United States in the case of the Charlotte Railway vs. Gibbs, 142 United States: " The duties of the railroad commissioners, when properly discharged, must be in the highest degree beneficial to the public." I trust this committee will not fail to note what these gentlemen are holding up their hands, in alarm and consternation, at is pronounced by the Supreme Court of the United States to be highly beneficial to the public — "securing faithful service on the part of the railroad companies, and safety, convenience and comfort in the operation of their roads. That the State has the power to prescribe the regulations mentioned there can be no question. TTiough railroad corporations are private corporations, as distinguished from those created for municipal and governmental purposes, their uses are public. They are formed for the convenience of the public in the transportation of persons and merchandise, and are invested, for that purpose, with special privileges. They are allowed to exercise the State's right of eminent domain, that they may appropriate for their uses the necessary- property of others, which can only be exercised for public purposes. And they assume, by the acceptance of their charters, the obligation to transfer persons and merchandise upon conditions and at reasonable rates." So, my friends, you have at least the sanction of the Supreme Court of the United States for the doctrine that it is a part and a condition of every charter granted to a railroad that they shall only charge " reasonable rates." If you make that as a con- cession to me, I shall answer this further question: Whether it does not follow, if that is a contract and a condition between the road and the State, it is not the duty of the State to see that the contract is enforced. Talk about wronging these people! Talk 2223 DEBATES OF TITE CONSTITUTIOXAL CONYENTIOX OF VIRGINIA. about confiscating their property! I ask you whether the State is not rather neglecting this high and great duty which it owes to her people, to see that they are not ruined and abused and — I might almost use the word — confiscated by the agents of the State. Mr. Chairman, if that be true, we are led to a consideration of what are reasonable rates and how they are to be ascertained. I shall read you, as authority upon that subject, a deliverance of the Interstate Commerce Commission, and upon that subject, which ought to be accepted as the very highest in this land — a commission especially selected for their fitness for the positions, and composed of men who have given it their attention for years: " A reasonable rate is one which will make just and fair returns to the carrier, when it is charged to all who are to pay it " — not to all those whom the railroad may choose to charge, not by those whom it may choose to favor, but the same rate to all alike — "v/ithout unjust discrimination against any, and v/hen the revenue it produces is subjeect to no improper deduction." This, my friends, isi the definition of a " reasonable rate." And then as to how that rate shall be ascertained and enforced they say: " In order to know this, it is the right of the public to know what the corporation actually imposes and collects and to have access to its books for that purposie." Although it may be somewhat in the nature of a repetition, I say it is as much the duty of the State to see to it that no possible injustice is done to the people in this matter as it is to discharge any other of the great duties which the State owes to the people. If the States were exercising this great prerogative and charged unjust rates, the revenues would go into the coffers of the State and would be distributed, by way of taxes, for the benefit of the whole people. But when it is granted to some individual, then, I repeat and ask your attention again to the fact, it is granting away rights and privileges in abuse of some of the people and in the interest of others. I come now, gentlemen, to the conclusion that it is the duty of the State, v*^hen she has created an agent with such powers, capable of abuse, to throw around that agent every supervision and control which may be necessary to prevent it from abusing those powers. What is the great difference, Mr. Chairman, between the provision contained in the minority report and that contained in the majority report which have been presented to this Convention? It is, if I understand the gentleman from Fauquier correctly, that the commission, in the majority report, is given the power to make rates without having first heard the complaints of the railroad and their evidence. He argues that the railroad will go to a prejudiced court when it goes to a comr mission which has already fixed its rates. In the first place, Mr. Chairman, I do not so construe the article which we have presented. That article, on the contrary, says that all the evidence which shall be heard by the Supreme Court shall have been given, first before the commission, and the commission will of necessity, therefore, have heard the whole of the evidence before rates have been finally fixed. I will say further, if that is the only matter of contention between us, for my part, and I believe I may speak for the committee, I would be perfectly willing for him to write into this article a provision that no rate shall be fixed by the commission until after due notice to the roads and all the evidence which they wish to offer shall have been fully heard. But I do claim, and contend, here and now, that there is no necessity for any such provision. I dispute the position of the gentleman from Fauquier from start to finish, when he complains that the roads would be called before a judicial tribunal which have already passed upon the question on which they have expressed themselves. The fixing of rates is not a judicial question in any sense of the word. It is purely and alone a leg- islative act. Lest that proposition should be disputed, I shall again take the liberty of quoting what the Supreme Court of the United States says upon the subject. In the case of the of the Interstate Commerce Commission vs. Railway, 167th United States, the Court said: It is one thing to inquire whether rates which have been charged and collected DEBATES OF THE COXSTTIUTIOXAL CONYEXTIOX OF YIEGIXIA. 2223 are reasenabl^-that is a judicial act, but it is an entirely different tiling to prescribe rates "U'hich shall be charged in the future — that is a legislative act. Mr. Hunton: Do I understand my friend to say that I differ from that proposition of law? Mr. Kendall: I understood you to complain that this commission, acting as a court, would have the railroads c-ome before them, after having already fixed their rates, and vould therefore be a prejudiced court. Mr. Hunton: My proposition was this — that, under the report of the majority of the committee, the commission has, as a legislative tody, the power to fix rates, and then, as a judicial body, if the ralroads complain of the rates they have fixed, the railroads have to come before the same body that has previously, as a legislative body, fixed those rates. Mr. Kendall: I do not believe the article is subject to such construction. I believe that when the commission believes or thinks there is a rate which needs modification, it will cite the road to a hearing upon that question. :\Ir. Hunton: Have they not the right to fix it, primarily, without any hearing whatever? Mr. Kendall: They may have that right, and I believe that no harm or injury would come to the railroads of this State by the exercise of the right to primarily fix the rates. But I believe that, in practice, they would simply say to the railroads: "We believe that certain rates which you are now charging are unjust and unfair, and we will fix a day to hear you upon that question." That is, almost unavoidably, the proper reading of the article. I will say to the gentleman that he may write a provision in such language into the article, so far as I am concerned. But if he means to say that because the commission intimates to the road that it has been called to their attention, or they have reason to believe a wrong is being done and they call the road to account for it — that that constitutes a prejudiced tribunal, I say to him that I cannot agree with him. Mr. Hunton: If my friend thinks that is the way his provision will be executed, does not my friend think it would be fair and right to make it obligatory under these provisions that they should so execute it? Mr. Kendall: I say that for myself, and I believe I may speak for the committee, if thaft is the only complaint he has to make about the report, he may write that pro- vision in to the article. I repeat, Mr. Chairman, that the fixing of a rate is the discharge of a legislative duty. It is nothing more than the Legislature itself might do, by one of its committees first investigating a complaint and reporting it to the Legislature. That has been done in many of the States. But the gentlemen complain, in anguish, that they are brought before a committee that has already formed an opinion. They are brought, gentlemen, before a commission performing its duties, under the law, under circum- stances far more favorable to them than the ordinary citizen when he is called into a court of law with respect to anything that pertains to his life. ^Tio among us are called before the Legislature and asked whether such and such a principle of law will do injustice to us? They will have the fullest opportunity of being heard, if they wish, and the fullest opportunity of appeal. They may present what evidence they desire, and carry it to the highest court of the land to haA'e their complaint heard and and the action of the Legislature revised. As I listened to the gentleman from Fauquier I wondered what it was that could happen to the railroads of this State. It seemed to me that he had concluded, because we proposed this measure, that it was the purpose of this Convention and was in the hearts of the people of this State to wipe out and entirely destroy this great interest of the State and of the people. Sirs, that is a falsely mistaken view. It is the com- plaint of a great, and I might almost say, pampered interest — an interest so pampered that it has forgoTten its great duties to the State as a part of its citizenship. Let me call to the attention of the gentleman from Fauquier and the gentleman from Norfolk 2224 DEBATES OF TPIE CONSTITUTIONAL CONVENTION OE VIRGINIA. Y/hat a different view the Supreme Court of the United States takes upon this subject. In the case of Reagan vs. The Farmers' Loan and Trust Company reported in 154th United States, it says: Specific objections are made to the act, on the ground that, hy Section 5, the rates and regulations made by the commission are declared conclusive in all actions between private individuals and the companies, and that by Section 14 excessive penalities are imposed upon railroad corporations of any violation of the provision of the act; and thus, as claimed, there is not only a limitation but a practical denial to railroad com- panies of the right of a judicial inquiry into the reasonableness of the rates prescribed by the commission. The argument is, in substance, that railroad companies are bound to submit to the rates prescribed until in a direct proceeding there has been a final adjudication that the rates are unreasonable, which final adjudication in the nature of things cannot be reached for a length of time; that meanwhile a failure to obey those regulations exposes the company, for each separate fare or freight exacted in excess of the prescribed rates, to a penalty so enormous as in a few days to roll up a sum far above the entire value of property; that even if on a direct proceeding the rates should be adjudged unreasonable, there is nothing to prevent the commission from re-estab- lishing rates but slightly changed and still unreasonable, to set aside, which requires a new suit, with its length of delay, and thus, it is claimed, the railroad companies are tied hand and foot and bound to submit to whatever illegal, unreasonable and oppressive regulations may be prescribed by the commission. Gentlemen of the committee, what does the Supreme Court reply to that? It is enough to say in respect to these matters, at least so far as thisi case is con- cerned, that it is not to be supposed that the Legislature of any State, or a commission appointed under the authority of any State, will ever engage in a deliberate attempt to cripple or destroy institutions of such great value to the community asi the railroads, but will always act with the sincere purpose of doing justice to the owners of rail- road property, as well as to other individuals, and also that no legislation of a State, as to the mode of proceeding in its own courts, can abridge or modify the powers existing in the federal courts, sitting as courts of equity. So that if in any case there should be any mistaken action on the part of a State or its commission injurious to the right of a railroad corporation, any citizen of another State, interested directly therein, can find in the federal court all the relief which a court of equity is justified, in giving. We do not deem it necessary to pass upon these specific objections, because the 14th section, or any other section prescribing penalities, may be dropped from the statute without affecting the validity of the remaining portions; and if the rates established by the commission are not conclusive, they are at least prima facie evidence of what is reasonable and just. Just as our article has provided. Under the majority report we have a right, first of a full and complete hearing before the commission, and we then have a further right of an appeal, with all that evidence, to the Supreme Court of the State; and if injury has been done to them after all this hearing, they may still then take the case to the Supreme Court of the United States, and if wrong or injury has been 'done them, fhey then may get reparation there. V\^ill anybody say that they are helpless to defend themselves? Is it a fact that they are unable to pay attorneys? Is it a fact that the courts, either state or federal, have failed to grant them a ready and willing ear? Who is it in these contests, in our experience here in the State of Virginia, or in these great contests upon this very interstate question before the Supreme Court of the United States, who has usually been victorious? Mr. Chairman, it sounds to me as if a great and mighty giant, because a weak and helpless babe held him by the hands, was crying out in mockery, "Oh, do not hold me, I want to go." I say, therefore, there is nothing in this objection which the gen- tlemen v/ho represent the minority article have made, and I have been unable to hear any other complaint that amounted to a snap of your finger from any wiho have spoken on that side. They have charges that we have attempled here to prove that the State should manage the railroads. Again and again have I heard this charge fall from the lips of speakers, and I will defy one of those gentlemen to find the word "manage" in the article proposed by the majority. No such thing was either provided or con- DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIEGINIA. 2225 templated. No such thing could by any possibility be deduced from the article as it has been reported. I maintain here that we not only have provided for their control, but that is our duty to provide for their control. I miaintain that we have not attempted to provide for their management, and that nothing would be greater folly. The gentleman from Norfolk (Mr. Brooke), who dwelt at such length upon this question, has insisted that the word "control" includes the word "management." Does not the State of Virginia control all of our citizens in their public relations? Does not the State lay down rules and regulations that guide all their private lives as citizens? Does not the State control our banks and other public institutions? But does anybody say she undertakes to manage any of them? Does not the State control the gentleman from Norfolk himself, distinguished as a practicing lawyer (whom I do not now see present), in the discharge of his duties as a practicing attorney? But does anybody know of the State ever having interfered with him in the management of his business or in the presentation of his cases in court or elsev/here? Is there not a v/orld-wid© difference between the control which the State should exert, and must exert, over the affairs of ail her citizens, and the management of the private affairs of those citizens? Mr. Thom: This question was asked the chairman of the committee by some one; "I am trying to ascertain what is the object of the provision proposed by the com- mittee." The answer of the chairman was: "The commission is to have the same general duty that Mr. Gulp has, for instance, Mr. Gulp being the traffic manager of the road." Do you agree with the chairman of the committee when he says that? Mr. Kendall: Mr. Ghairman, the chairman of the committee was speaking at that time of the control over those rates, and not the management of them. I do not see why this commission should not have the control over rates, wherever it finds it necessary to interfere for their control, as much as the president of the road. I maintain that the president is only permitted, or the road itself is only per- mitted, to fix these rates by reason of a concession from the State, and upon the con- dition that they shall be reasonable, and as it is his duty to see that they are reasonable, it is likewise the duty of the State to see that they are reasonable, and as he should so control them as to make them reasonable, the State should so control him as to make them reasonable. Mr. Thom: Then, do I understand my friend as agreeing with the chairman of the committee that the commission is to have the same power as the traffic manager of the road? Mr. Kendall: Yes, sir; to that extent and with that meaning and with that restric- tion, I do mean to say it, and do agree with him. But if it is meant to ask me if I believe the State should enter, or under this amendment would enter, into the man- agement of rates and interfere in all matters of rates, I tell you in all candor, I have no such thing in contemplation. I never supposed for an instant that this commission will undertake to fix every rate that is to be charged In Virginia by any railroad. Mr. Brooke: Is it not made the duty of the commission to do it? Mr. Kendall: I do not think it is made the duty of the commission to fix every rate in Virginia. And if they undertake to do It, I presume they will just simply adopt the rates fixed by the roads of Virginia, until they have reason to believe there is some case where those rates should be changed. It would be entering upon a great and vast and useless labor for that commission to look into all the cases of rates in the State where no complaint is made. But if there is such a construction to be put upon the article, they would at most, simply adopt the rates of the whole railroad sys- tem of the State, until, as they have a right under the article to do, they change those rates and see that they are reasonable and proper. Will that offend themi? Why, my friend, I appeal to you in the language of the Supreme Gourt, which I just read to you. Will you suppose it is the policy of the State or the policy of this Gonvention or the policy of that commission to make war upon the railroads? Have we any enmity to those roads? It may be they have often done what the gentleman from Fauquier so lamented they have done. They have gone outside of their right and privilege to enter 2226 DEBATES OF THE CONSTITUTIOx\"AL CONVENTION OF VIRGINIA. and to meddle with\ the public duties of the citizens of the government in politics — a matter which I propose to mention later— but I do not believe for an instant that that commission, or the people, or anybody else, would wish to visit vengeance upon them, though perhaps the fact of their useless meddling with politics will be prevented by the fear that the hand of the government might be laid upon them will, sir, in my opinion, go further to keep them from meddling with politics than it will induce them to enter it, as the gentleman seems to think. I do not mean any improper or invidious comparison, but they are very mucti like another interest that troubles us, the matter of our colored friends. They are very manageable when you have them down and in proper control, and they are very uppish and hard to manage when they have you in control. This case should not be argued upon any such presumption as that the people of the State, or that this commission, will undertake to make war upon this great interest, involving perhaps a third of the values of the State. I cannot believe that such a thing would be done and I think it is much fairer to take the view which the Supreme Court of the United States has taken in the case which I have read you, than to sup- pose that we should wish to cut our own throats, and to destroy our own homes, by any such absurd, ridiculous and nonsensical procedure. The gentleman from Fauquier told us on yesterday that under this power of con- trol, if this commission should require a road to build a branch road, as I caught him, twenty of fifty miles long, to the mineral lands of the gentleman from Russell (Mr. Stuart) it would be the duty of the road to do it. I cannot conceive that the gentle- man from Fauquier could give his sanction to any such legal proposition as that. It seemed to me he was but stretching his imagination and stretching the word "con- trol" along with it, to cover a multitude of sins wlhich nobody ever conceived it had except himself. Why, sirs, is not the charter of a road a contract betv/een the State and the road? Does not every layman, certainly every lawyer, know that the State cannot violate that contract or impose upon the road additional burdens not embraced and contemplated within that contract? Would anybody undertake to argue that the State would attempt so absurd and ridiculous a thing, to have the heavy arm of the Supreme Court of the United States at once laid upon it, to expose its weakness and foolishness? Mr. Hunton: I think my friend is inaccurate in stating that I argued that that came under the power to control. I did argue that it came under this provision of the article: "And shall require them to establish and maintain all such public service facilities and conveniences as the said commission may, within the limitations," and so on. I do not think I said branches of fifty miles, either. Mr. Kendall: Did you say twenty miles? Mr. Hunton: I think I said twenty miles, yes, sir. We all know that under a charter a railroad has the right to build branches of certain lengths, without special legislation. Now, when you give to this commission the power to require what public service facilities and conveniences shall be required of these roads, I say it is a matter that may be of very grave doubt as to whether this commission could not compel such a branch as that to be built under the language of this article. Mr. Kendall: Mr. Chairman, the right to build these branch roads is not a duty to build them, in the eye of the law, in the eye of the charter, or under any provision of this article. Mr. Hunton: But we are making new duties and new laws. Mr. Kendall: We are not imposing any duties or laws of that kind. We are imposing duties and laws as to the service which they have already undertaken, and nothing else; and we cannot impose any other duties upon them. They have certain public relations which they have already assumed. Those relations are the relations in Wlhich we are entitled to deal with them, and none other, and neither this Conven- tion, the General Assembly, nor the commission, can impose upon them other duties than those which they have contracted for in their charter, by implication or otherwise. DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF YIRGIXIA. 222'7 That is the great difference between the gentleman and myself. I am contending that they owe public duties which they have contracted to discharge, and that the duty of the State is to see that they discharge those contractual duties, and none other. He is undertaking to argue here that we are attempting to place in this Constitution new articles of contract with these companies, which they never made or contemplated, and which we cannot impose upon them, and I am unwilling to believe that any lawyer familiar with any of the decisions upon the question, from the Dartmouth case down, will for an instant believe that this Convention has any such power or can dele- gate it to anj^body else. I say it but illustrates the stress and extent to which these gentlemen are driven here in defence of a weak measure, and in objection to this just and reasonable measure, when they set up such excuses as this, and array such imagi- nary dangers, which are not in the contemplation of any reasonable man, lawyer or layman. Mr. TTnom: I think everybody will quite agree that it is the duty of the State to see that the public corporations perform their public duties. As I construe your article it does not do that, but undertakes to perform public duties for them, to take the con- trol of tiheir property out of their hands and perform their public duties for them, and I would like to know what justification there is for the State undertaking itself to perform the public duties instead of requiring the companies themselves to do it. Mr, Kendall: Mr. Chairman, I deny that the article is subject to any such con- struction. This article does not undertake to take from these roads the m^anagement of their property in any sense of the v>^ord. It does not undertake to take from them the control of any private interest they have. I undertake to say, as I said before, that, although the law controls the gentleman in the practice of his profession, it does not take the right of that practice from him nor interfere in the management of it. .It has a right to prescribe the rules under which he shall contract for his fee — Mr. Thom: But if you appoint somebody to say how much I shall charge — Mr. Kendall: Oh, sir; that is not a publiv duty which you are exercising. That is a private right which you have. I say that Vv^herever you come, in the dicharge of your duty as a practitioner in any public relation, there the State undertakes to con- trol you. Mr. O'Flaherty: I want to know whether this commission would have power to require a railroad company to build a switch for a manufacturing enterprise, over how long a route, and all that. Mr. Kendall: I believe, sir, just so far as these are contractual rights on the part of the road, they cannot be interfered with or enforced to do anything more than the contract between the State and the road gives the State power to enforce it; and I do not believe for an instant that if it should be construed by the courts, or if it should be the opinion of the court that this was a violation of the charter or a burden which was not contemplated in granting the charter, the State would have power to enforce any such rules or regulations, or that the commission would construe their powers as giving them any such authority. Mr. O'Flaherty: Suppose nothing is said at all in the charter about that? Mr. Kendall: I say, then, the charter would not give the commission any such powers, and would be confined exclusively to what was said in the charter. The gentleman from Norfolk (Mr. Brooke) to-day, as I understood him, stated that the complaints which had been made by the Interstate Commerce Commission as to the law under which they acted were fully met by the provisions of the minority report, that report, it seems, having been modeled, as they say, upon the Interstate Commerce act. Mr. Chairman, the gentleman from Norfolk has read very differently from what I have the complaints that have been made by the Interstate Commerce Commission upon that subject. This provision of the minority report but provides when complaint is made by any individual of a wrong done him, that that individual may go into the courts and there have the assistance of the Commonwealth's attorney of a county to prosecute a great question involving the vast magnitude of the whole 2228 DEBATES OF TIIE CONSTITUTIONAL CONVENTION OF VIRGINIA. railroad interests. Sirs, the complaint which the Interstate Commerce Commission has made is not and never has been, that the courts did not have power to enforce proper and reasonable rates. I admit that that is the law of the "United States under their Constitution, and it would be the law in this State, certainly, unless we place a pro- vision in the Constitution giving them express power to fix rates when they have passed upon a rate as unreasonable. But that has not been, and is not to-day, the com- plaint of the Interstate Commerce Commission. That commission has said, not once, but again and again, "Give us power to fix rates." It has said, not once, but again and again. "We are the proper tribunal to settle this question." It has said, not once, but again and again, "We are capable of passing upon these great questions by reason of our long familiarity and dealing with them, and the courts are not." Mr. Brooke: May I interrupt the gentleman a moment? Does he deny the fact that the amendments offered to the Interstate Commerce act during the last Congress were offered to correct existing defects in the act? Mr. Kendall: Yes, sir, Mr. Brooke: Does he deny the fact that they were attacked upon the ground that it gave an arbitrary power to fix rates, and that it was claimed that construction was put upon the amendments for the purpose of breaking down the passage of the amend- ments, showing that the very amendments which were prepared for the purpose of perfecting this Interstate Commerce act did not pretend to give them the right to regulate the rates in an arbitrary and initial way? I wish to ask the gentleman this further question, and I promise not to interrupt him any more. Is it not true that these amendments to which I refer, that were offered to the Interstate Commerce act at the last session of Congress, were offered at the suggestion of the Interstate Commerce Commission for the purpose of correcting the defects in the act, and not one of them asked to give arbitrary power to make rates. Mr. Kendall: Yes, sir; that commission has stated that by reason of some influ- ences — I believe the chairman of the committee read a part of the report on day before yesterday — that the commission had again and again recommended tlhat power to fix these rates should be given them, and that Congress, for some reason, or through some influences or other, had refused to do it, and that they came to the point of saying, " If you are unwilling to give us those powers, then give us certain other powers that are absolutely necessary for the discharge of the duties you have imposed upon us, as construed by the Supreme Court of the United States. I will see if I cannot turn to a reference of that kind here. I am not sure tihat I have it. On motion of Mr. Braxton the committee rose and the President resumed the chair. On motion of Mr. Braxton the convention adjourned until Friday, February 7, 1902, at 10 o'clock A. M. FRIDAY, February 7, 1902. The Convention met at 10 o'clock A. M. Prayer by Rev. W. F. Dunaway, D. D. On motion of Mr. Braxton the Convention resolved itself into Committee of the Whole for the further consideration of tihe report of the Committee on Corporations. Mr. Keezell in the chair. Mr. Braxton: Mr. Chairman, with the permission of the gentleman from North- ampton, who I believe is entitled to the floor, I would like to state to the committee that, in view of certain contentions that have been made by the gentlemen who oppose the report of the majority of the committee as to the meaning of certain language contained in that report, and as to the effect of the report, those of the committee who signed the majority report have concluded that, while in their opinion the criticisms are not just and could not be sustained, yet, to put the matter beyond all peradventure, to make their meaning perfectly plain, they will at the proper time offer certain verbal amendments of which I now wish to give notice. In the first place, it has been con- DEBATES OE THE COIs^STITUTIO^^AL CONVENTION OF VIEGINIA. 2229 tended that this commission, in prescribing rates and rules and regulations, would proceed purely in an ex parte manner, and make the rule, regulation or rate in question without giving the companies to be affected any notice until after the rate, rule or regulation shall have been made, by which time, their contention was, that probably the mind and judgment of the commission would have received such a cast and pre- judice by reason of their having already made the rule, that they could not give a fair consideration to any objection to its action that might then be urged. It was the idea of your committee that there were certain rules and regulations of a general character that would be applicable to all corporations; that is, to all railroad companies, or to all telegraph companies, and it would be impracticable in making such rules to sum- mon every railroad company and every telegraph company to be heard on it before the rule or regulation be made; just as much so as it would be impracticable when the Legislature enacts a law to first summon everybody who could possibly be affected by that law to be heard thereon. For that reason, it was not originally specified in the report as to what class of cases and what class of regulations the commission should first summon the company on, and as to what class such summons was unnecessary, believing, as we did then, and do now, that a certain latitude of judgment should be given to the commission, especially when their action v/as subject to review. But, where any rule or regulation especially directed to any one or two or more companies by name is made, not only is there no objection that those companies should first be summoned and heard before the rule or regulation is made, but it had never occurred to the committee that the commission would fail so to summon them. We merely did not prescribe it in so many words, because we thought it was such an obvious precau- tion and such a just mode of precedure that they would certainly do it, in view of the fact that no such rule, either of a general nature of otherwise, could be enforced against any company until that company had been heard against the rule. But to put that matter beyond all doubt, the com.mittee at the proper time will offer this amendment to come in on page 8, at the end of line 57, in Section b: But before prescribing any rate, charge or classification of traffic for, or making any order, rule, regulation or requiremient, directed against any one or more companies by name, such company or companies shall first be duty summoned by the commission and afforded reasonable opportunity to be heard thereon. And no such rate, charge, classification, rule, regulation or requirement shall go into effect against any company or companies to be affected thereby until at least ten days after due service thereof upon such company or companies. So that there cannot then be any question of the commission doing the thing which the committee thought they would inevitably do, even under the report, to-wit: That before they make any such rule, regulation or requirement, the company shall be sum- moned and given an opportunity to be heard, and that then at least ten days shall elapse before the rule, regulation or requirement goes into effect. Again, it was contended that the word " control," as used in this section, amounted to management and operation of the work. Your committee — and when I speak of the committee it will be understood, of course, that I refer only to those members who signed the majority report— think that that construction is a most forced construction, that it would never be sustained by a court, for reasons which it is unnecessary for me do detain you with now. Power to " regulate and control " is almost a set form of expression, used, as far as I know, in nine-tenths of all legislation on this subject. I noticed in the paper this morning a recommendation of the Interstate Commerce Commission that they be given additional power of " regulation and control," and, as explained most clearly by the gentleman from Nortbampton on yesterday, "control" cannot, in that connection, be stretched to mean management or operation, but is almost synonymous witlli " regulate." In some few cases possibly there is a shade of difference. But in order to put that mat- ter at rest, so that there cannot possibly occur the construction which my friends on 2230 DEBATES OF THE COXSTITUTIOIS^AL COXYEXTIO^i" OF VIRGINIA. the other side give to it, we propose, on page 10, at the foot of section c, to insert this language: Observe that I do not mean this as applied to the sub-section alone, but to the whole of Section 4 — Nothing contained in this section shall impair or abridge the full and absolute right of any corporation, without interference or restriction, to manage and operate its own property and franchises, subject to the provisions of this Constitution, and to such just and reasonable control, rules, regulations and requirements as may be authorized or prescribed by any law passed in pursuance thereof. Mr. Hunton: Will the gentleman permit me to suggest, that putting it in the middle of sub-section c might lay it open to the construction that it referred only to that sub- section? Would it not be wiser to say that it includes the whole Section 4? Mr. Braxton: I will accept that suggestion, and will be glad to have any sugges- tions that the gentleman may wish to make that will tend to carry out the idea more perfectly. Now, Mr. Chairman, at the top of page 11, near the beginning of line 115, the second line from the top, I will suggest another amendment. Your committee did not give a right of appeal, by force of the Constitution operating proprio vigore, in anything, except orders affecting the rates and charges of a transportation or transmission com- pany, but thought that it would suffice to leave the General Assembly the right of grant- ing appeals in every other case that they chose, because there was, obviously a number of small cases, so insignificant — such as the fixing of a fine of $2.50 upon a corporation — that nobody v/ould ask or expect that an appeal would lie from that to the Supreme Court, and we thought that we could safely leave it to the General Assembly to grant appeals in all cases where it was proper that an appeal should be granted. It w'as in the mind of the committee that in all rules, regulations or requirements affecting the schedules of its trains, the making of additional requirements as to public facilities and conveniences, &c., that that road should furnish, the General Assembly, would unhesitatingly and beyond all doubt give an appeal in such cases, and we simply said, and thought it was sufficient to say, that the General Assembly was given a free hand to grant appeals in all those cases in which they wanted to, and particularly did we think that our friends on the other side, who have so strenuously contended all along that this whole matter should be left to the General Assembly, would concede that, if the whole thing could be safely left to the General Assembly, certainly a small part of that thing could be safely left to them, and that we could safely trust the General Assembly to grant these appeals wherever it was nece&sary. But my friends seem to think, if their argument is an indication, that although the General Assembly could be trusted with the whole thing, yet it is not safe to trust them with part of it, and that the General Assembly might fail to grant tihe right of appeal from any of these rules or regulations affecting the schedule of the road, or requiring additional facilities. Now. therefore, to put that matter beyond all doubt, we propose to insert words to cover that in the second line from the top of page 11. As the words are disconnected in themselves, I will read the language as it now stands in the article, with the words proposed inserted, so that you can see the affect: "From any action of said commis- sion prescribing" — Here insert the word "rates" — ■ "From any action of said commission prescribing rates, charges or classifications to traffic"— Now insert — "or affecting the train schedule of any transportation company or requiring any additional facilities, conveniences or public service of any transportation or transmis- sion company" — ■ Now the section goes on — "an appeal, subject to such reasonable limitations as to time, regulations as to DEBATES or THE COXSTITUTIOXAL COXYEXTIOX OF VIRGIXIA. 2231 procedure, and provisions as to cost, as may be prescribed by law may be taken by tbe corporation whose charges, or classifications of traffic" — Here insert — "schedules, facilities, or conveniences of service" — "are aifected" — ■ And so on, so that there can be no question, under the provision, as it now stands, that not only will the General Assembly have the right to give an appeal, but the Constitution, proprio vigore, will give an appeal in every case affecting charges or schedule, the requiring of any additional facilities of the road— in every such case, so that although the General Assembly may not raise its hand, the appeal will be by force of the Constitution itself? Mr. Hunton: There is no use of having a protracted fight over anything that we can arrange without a fight. The language in which this appeal is given is not satis- factory to me, and I infer from the statement of the chairman of the committee that he desires to make it so. It has been stated to this body that the fixing of rates is a legislative and not a judicial duty. The language giving the appeal does not carry with sufiicient clearness, at least to satisfy my mind, the idea that by that appeal the power is given to the corporation, or to the party complaining, to complain as to the rate itself — the fixing of which is a legislative duty. As I understand the chairman, it is the purpose to give the Court of Appeals the right to revise the fixing of rates and the rates themselves, and not merely the regularity with which they have proceeded. I desire to call his attention to that point so that he may direct his mind to it and make the language of the article clearer, if that is the purpose of the majority of the com- mittee. Mr. Braxton: That is certainly the purpose of the majority of the committee. As I understand the law, as it has been laid down by the Supreme Court of the United States, the question of fixing rates is a legislative and not a judicial act. The only judicial act, the only judicial question, connected with it is as to whether the rates are confiscatory or not, whether or not they violate the Fourteenth Amendment. It is our purpose and desire not to stop at that point, not merely to say that the Court of Appeals is restricted to saying whether those rates are confiscatory, but to go further and say whether they are just and reasonable, with merely this presumption, that the rates fixed by the commission shall be prima facie, presumed to be just and reasonable and not otherwise. If this language does not clearly express that idea, I will be more than glad to see my friend privately, when we can talk over this matter more satis- factorily, to see if we cannot agree upon language which will put its meaning beyond peradventure. In this connection I will call his attention to a further provision which, it seems to me, puts this matter beyond doubt by providing that the appellate court, when it fails to sustain a rate fixed hy the commission, shall itself substitute a new rate for the rejected one. We think, therefore, there can be no question that it is not limited to a mere denunciation of the rate, on the ground that it is confiscatory, because it has been expressly provided that when they denounce one rate they must substitute another rate for it, it being the idea of the commission that while the court is not capable of fixing the rate as an original proposition, yet when it sits in review upon the action of the commission, with the report of the commission, like the report of a special master in chancery, before it, and with all the facts before it, it is competent to substitute a new rate for the old one. We think it is reasonable to say that before any man can bring his mind to say that a certain rate is unreasonable he must have in his mind some other rate that in his opinion is reasonable, and all he will have to do is to put down the rate which he thinks is reasonable. But, after looking at it in that light, if my friend still thinks the language is ambiguous, I will be more than glad to confer with him and, if possible, remove the ambiguity. We have no desire to do any of these wild things that have been artributed to us. No man will be more ready than I, and I think 2232 DEBATES OF THE COJvTSTITUTIOAtAL CONVENTION OE VIRGINIA. every member of this committee who signed the majority report, to make any mere verbal change in order to correct what may seem to be an ambiguity, or what is sus- ceptible of sustaining any such construction as has been put upon it here. With the amendments of which I have given notice the effect will be that, in every ease, the corporation to be affected will have a hearing before the rate is fixed and before the regulation is made, and, afterwards, if it is brought up for a violation of the rate, it will have a further hearing as to whether it did violate it and as to whether it was justified in the violation of it. It is provided, further, that in everything affecting rates, schedules, regulations and requirements of these railroad companies, there shall be, whether the Legislature says so or not, an appeal to the Court of Appeals, and^ finally, the paramount and supreme power of the Legislature over every sort, kind and description of regulation, except the one fixing rates, charges and classification of traffic, is left where it is to-day, and the commission is put absolutely under the domination and control of the Legislature so far as the making of rules and regulations affecting the railroad is concerned, except upon the question of fixing rates, charges; and even from that, as from everything else they do, there is an appeal to the Court of Appeals so that you have the Court of Appeals and the Legislature, both, standing back of this commission to correct any evil it can do, either intentionally or unintentionally. I do not wish to restrict myself to the exact language of the amendments of which I have given notice this morning, but merely wish, in this notice, to express the general ideas your committee has on the subject. The language used will be revised and considered more critically by us before the exact final form in which we will offer the amendments, for the consideration of the Committee of the Whole, is determined upon. Mr. William A. Anderson: Would the amendment suggested by the committee to sub-section B of Section 4, at the top of page 11, unquestionably give the right of appeal from an order or a regulation adopted by this commission in reference to interchange of freights between different companies or train connections between different com- panies? Mr. Braxton: I should think so. I will read, in that connection, the language of the section: "From any action of said commission prescribing rates, charges or classi- fication of traffic, or affecting the train schedules of any transportation company, or requiring any additional facilities, conveniences or public service of any transportation or transmission companies" — there can be an appeal. It would seem to me that would cover everything along the line that you can mention. If you think it will not, we may change the language to meet that view. In addition to that, I call the attention of the gentleman to the fact that if, by any possibility, there is anything they ought to have an appeal from, which we have not mentioned, he will find on page 11, line 126, a provision that "the General Assembly may also, by general laws, provide for appeal from any other action of the said commission by the Commonwealth or by any person interested." It does not make any difference what it is. We give specific appeals in certain impor- tant cases. If it turns out that there are others which ought to have been mentioned, the Legislature is given the right to grant the appeal in other cases. Mr. Robertson: I understand that the position you take is that the fixing of rates is not a judicial act. You claim that the Supreme Court has held that as a matter of fact it is true that the fixing of rates is, in itself, a legislative and not a judicial act. I would like to ask you how it is that an appeal to the Court of Appeals will do anyone any good, when that court has to act judicially and cannot act in the legislative capacity? I do not see how the court could pass on the question at all. The Court of Appeals is not a legislative hody. Mr. R. Walton Moore: If my friend will allow me, while he is making his answer to that proposition, will he add this to the inquiry of the gentleman from Roanoke? He fixes, as a standard for the Court of Appeals, the reasonableness and justice of the action of the commission. To what extent is that standard definite? To what extent would that standard enable the court really to take jurisdiction a^d administer relief. It being conceded that the right to fix rates is a legislative and not a judicial act? DEBATES OF THE CONSTITUTIONAL COXYEXTION OF YIRGIXIA. 2233 Mr. B'raxton: If the gentleman will turn to page 14, Section G, lie will find this language: Whenever the court, upon appeal, shall reverse an order of the commission affecting the rates of charges, or the classification of traffic, of any transportation or transmis- sion company, it shall, at the same time, substitute for the reversed order the order which, in its opinion, the commission should have entered at the time of entering, and in lieu of the order appealed from, otherwise the reversal order shall not be valid. Such substituted order shall have the same force and effect (and none other) as if it had been entered by the commission at the same time the original order appealed from was entered. Mr. Robertson: That just brings my mind to the very question I want to ask you. How in the world can a judicial body, such as the Court of Appeals, do the thing jou say there it shall do, when you yourself say that that is a legislative proceeding and not a judicial proceeding? Mr. Meredith: Can they not do it if the Constitution gives them the power? Mr. Robertson: Is it not an appeal from a body that has legislative powers, as the gentleman from Staunton admit, to a body that has simply judicial powers, to a body that has simply judicial powers and cannot have anything else, because other sections here show that the court has to act on the evidence that was before the commission, and not on any evidence that comes before it. It would be an impossibility for the court to carry out the very thing here that you say it must do, and your argument shows it is an impossibility. Mr. Braxton: Mr. Chairman, while it is true that the fixing of rates is a legis- lative and not a judicial function, there is no reason that I know of why a purely and absolutely legislative function cannot be conferred by the Constitution on the Court of Appeals or on any other tribunal. The Senate of the United States is a part of the legislative branch of the Government, and yet there is conferred upon it judicial powers to try impeachments, executive powers, in the advice and consent it has to give to the President in the appointment of officials, and so on. That rule, like every other rule, is subject to exceptions; and, while it may be true that the Legislature cannot confer any such power upon the court, and that is one of the reasons I think it is essential this should go in the Constitution, there is no reason why the Constitution which we are now framing cannot confer this power, even though it be clearly and distinctly and absolutely a legislative power; but it is not that absolutely. It is only so sub modo. The right to fix regulations to regulate their train schedules, to require them to make proper crossings, is a legislative power and not judicial, and yet the court, in theory at least, exercises that power to-day; but, sir, the original, the initiative of this thing is not done by the court. It is done by the commission, which is clothed with legislative powers for that purpose, and the court sits in review upon them. It exercises this function partly in a legislative capacity and partly in a judicial capacity in reviewing the discrimination which is vested in the commission, and say whether that legislative discrimination which has been given to the commission has been abused by Therefore the difficulty which my learned friena suggests woujd be a difficulty that would stand in our way if we were acting through the Legislature, and would exist if the question was whether the Legislature could confer even quasi-legislative powers upon a court, no longer operates as a difficulty to the framers of a Constitution, who can place legislative and judicial powers where they choose and In any way they choose Mr. Robertson: I do not want to interrupt you, but I want to state a difficulty that your argument presents to me. Perhaps you do not understand now what I am asking. I am not asking what the Constitution can do. I am asking you with reference to the nature of this duty. I understood your argument the other day to amount to this: That neither the court nor the Legislature were the proper tribunals to fix rates, and you made an able argument, I will say to you, on both those lines. I agree with you that the Legislature cannot fix rates. You went on to argue that the court cannot fix 141— Con?t. Deb. 223^ DEBATES OF THE CO?s"STITUTIOXAL COXVEXTION OF VIRGI>^'IA. rates, that that was the necessity for this commission. Am I not right in that — that as a primary proposition the court could not fix the rates? Mr. Braxton: You are not accurate in that. Mr. Robertson: The question I aslt is this: How, then, on an appeal, can the court fix rates and substitute them in the place of other rates that have been fixed by this commission? They would have to do what you say they cannot do, in order to do that. Mr. Braxton: The commission, in investigating the matter, fixes the rates. The commission gets a large number of collateral facts before them and reviews them, and come to its conclusion, just as a legislature would and writes down the reasons and the facts upon which it bases its reasons. The court, in review, is limited to those facts, unless the railroad wants to add to the record and have it sent back to the court below. The sole function of the court is to say in effect to the commission: "Acting upon the facts which you say you had before you, and taking them as facts, we will decide whether or not that legislative discretion which is vested in you for fixing a rate has been abused or not; whether the rates you have fixed in view of the facts upon which you said you based your judgment, are just and reasonable, and if they are not, what are the just and reasonable ones? " The court is limitde in its action by what was done first by the commission. Such proceedings, or review, are of a judicial character, with two parties to the controversy — the railroad, by its attorney, and the Common- wealth, by the Attorney-general. The question has then lost almost entirely the legis- lative aspect which it bore in its earlier and initiative stages before the commission. I will give you an illustration. In the enforcement of the police powers of a State, in prescribing police regulations, that is a legislative function, pure and simple. No court can prescribe police regulations; but it is a limitation upon the power to prescribe police regulations that they should be reasonable, and while the court has not the func- tion of originally prescribing such regulations, it can review them after they have been prescribed by the Legislature, in the performance of a legislative function, and say, in the performance of a judicial function, whether such regulations are just and reason- able or not. You can never find two cases that are exactly analagous, but I think that is suffi- ciently analagous to illustrate what I mean: That while the court cannot in this case originally fix a rate, yet when the commission which has acted on it does fix the rate, the court can review it and say whether, by exercising that power the commission has been just and reasonable or not. The United States Federal Court to-day does not con- demn a rate until it has first been condemned by the railroad commission, but having been done that way, the court reviews that action. Now, if my friend will pardon me, as I am taking up the time of the gentleman from Northampton (Mr. Kendall), and as I have consumed very much more of his time than I dream-ed I would consume, I will be glad to yield the floor to him and thank him for his courtesy. Mr. Kendall: Mr. Chairman and gentlemen of the committee, when I closed yester- day I was attempting to reply to the contention of the gentleman from Norfolk (Mr. Brooke) that it was not the purpose, as I understood him, of the Interstate Commerce Commissioners to ask for powers to fix rates. I took issue with him upon that point and was about to quote the authority when the committee rose. I did not contend, in anything I said, that that commission had ever asked for powers to fix rates exactly as are provided by the majority report now before you for consideration. The difference is that they did contend and ask for power to fix rates when complaint had been made before them of an abuse by the roads in fixing the rates, whereas we have given to our commission power to fix rates whenever they believe that it is necessary so to do, either upon complaint or upon their own initiative. I wish to read a short extract from the report of the Interstate Commerce Commis- sion for the year 1895 and the act which they then recommended should be passed by Congress, to show that my contention was correct. I further expressly stated that when DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE VIRGINIA. 2235 that conimission found that Congress for somie reason or other, malign or otherwise, was unwilling to grant them that power wholly as they had asked it, they then asked at least that power should be given them which would enable them to enforce the duties which Congress had imposed upon them as construed by the Supreme Court of the United States. After reviewing somewhat the history of the Interstate Commerce act, the Com- mission says: From such considerations as there is seen the manifest duty of Congress to invest this commission, or such other agency as may be wisely employed for the purpose, with adequate authority to correct ascertained excesses in railroad charges, and to enforce with respect thereto the observance of relative justice. The power so conferred should be proportioned to the requirements of effective administration, so that through its instrumentality the obligations of the government in regard to public transportation may be properly discharged. Congress has not undertaken — and probably will not under- take — to say by specitic enactment what rates shall be charged on any line or for any article. The tariffs in current use are for the most part made up by the carriers them- selves. They are filed and published as the law requires and are the standard of compensation — binding both on the railroads and on the public — until they are ques- tioned or assailed. Presum.ably if they are observed nobody is injured and nobody at fault. But if complaint is made that a given rate is too high, or is relatively unjust, and that specific charge is denied by the carrier complained of, how is the controversy to be decided? Shall it be relegated to the courts, whose methods and rules are unsuited to such an inquiry, or shall the special tribunal created by Congress, and exercising its power, be clothed with authority to determine in the first instance, and with the finality of a nisi prius court, the merits of the contention? And then, after reviewing at length the whole history of this trouble, they formu- late an article, and ask that Congress shall enact it in these words: That it shall be the duty of the commission, if there shall appear to be reasonable ground therefor in any case— i That would almost look as if they comtemplated that the commission should act upon its own responsibility. If there shall appear to be reasonable ground therefor in any case, to investigate all complaints relating to the rates, fares, charges, facilities or practices of any com- mon carrier or carriers subject to the provision of this act; and whenever the com- mission, after due notice to such carrier or carriers and reasonable opportunity for them to be heard, shall find that any such rates, fares, charges, facilities or practices are in any respect excessive or unreasonable, or result in any unjust discrimination as between individuals, localities or articles or traffic, or are otherwise in contravention of any of the provisions of this act, the commission shall so report, and shall there- upon issue an order requiring any such rates, fares, charges, facilities or practices to be changed, modified or corrected as in such order specified, and it shall be the duty of the carrier or carriers affected thereby to comply with such order within such reasonable time as shall be fixed by the commission, I do not think anybody can contend, after hearing that, that the Interstate Com- merce Commission did not ask for power to fix rates. That was the burden of their song for years and years; and, more than that, that was the course of their procedure when as they state in one of their reports that for ten years they have fixed rates, and not until it was decided by the Supreme Court of the United States in a case, I think, reported in 167 or 1G9 U. S., that that power was not conferred upon the commission, did tOiey cease to do so. Mr. Chairman, the question was not before that commission thereafter; it has not been before the courts of the United States whether it was advisable or not to give that commission power to fix rates. The Supreme Court of the United States has not in any of the decisions which it has delivered, said that that commission should not have such power. It has simply said that the act, as it had been passed by Congress, had not 2236 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. conferred such powers. It was for Congress to say whether they should be conferred and not for the Supreme Court; hut a great and far different reason might be given why that commission should not have such powers, when the identical powers should be conferred upon this State commission. The Interstate Commerce Commission has to deal with questions not confined to one State. It has the territory of forty-five States, thousands of miles in extent, with a traffic not only interstate, but also involving, as was decided by the Supreniie Court of the United States, our trade with all the foreign nations; and perhaps it might well be argued, and for my own part I am ready to concede, that no three or five men would ever be able to pass upon the multitude of questions which might be brought before them in the vast territory of the United States, with its infinite and intricate commerce; but here in our limited territory, with but a few trunk lines passing through our State from one end to the other, with but a few branch lines running from those trunk lines, the question is but infinitesimal as compared with those which must arise before the Interstate Commerce Commission. Sirs, when this commission, after long experience, after they have been engaged in this duty for years and years, with that great, eminent lawyer, Judge Cooley, in their number, when they have considered this question for years and years and knew, there- fore, what they were capable of doing, come and ask Congress again and again, year after year, to give them power to do this thing of fixing rates upon complaint, from one end of this Union to the other, how can it be said that no three men are capable of performing a like duty here in our little state of Virginia? I hope you gentlemen noted one passage that fell from my lips as I read that explanation from the Interstate Commerce Commission. I will again read it to you, for fear you may have overlooked it: Shall it be relegated to the courts, whose methods and rules are unsuited to such an inquiry, or shall the special tribunal created by Congress, and exercising its power, be clothed with the authority to determine in the first instance, and with the finality of a nisi prius court, the merits of the contention? Who is it says that commission is the most capable of passing upon this question? Is it a court whose hands are tied and whose minds are trained in great theoretical question that are best capable of passing upon these infinite matters of detail, or is it a commission selected because of their special fitness for tha.t particular business, and their long experience in it, that should deal directly with this question? They have again and again pleaded to Congress — " Give us at least the power, when we have made a report, to say tihat report shall have the effect of the report of a com- missioner in chancery in fixing the facts;" and you will find in one of their reports that they quote a decision of one of the Federal courts to show what are those powers, and what is the extent and authority of the report of a commissioner in chancery; and in what I read you they say, " at least let this recommendation we make have the finality of the decision of a nisi prius court." Gentlemen contend they have modeled their minority report upon the Interstate Commerce act. Gentlemen of the committee, they have modeled it only to some extent upon that enactment, as emasculated by the decisions of the Supreme Court of the United States, when it has been shorn of its powers— powers which it had exercised for ten years. They have imitated it and followed it like the women at the crucifixion, afar off and weeping. They have not, as a matter of fact, undertaken even to give the same powers in their article that have been given by the Federal States to the Inter- state Commerce Commiission, even as construed by the Supreme Court of the United States, and I will show that later as I come to it more directly in the order of the line of my argument. When the Supreme Court had taken from the commission, by its decision, all the powers which Congress had intended to give it, as the commission have again and again argued — whether it v/ere indeed written in the words of the act or not, and I do DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 2237 not mean here to assert that the construction which the commission has given to that act should be accepted in preference to that given by the Supreme Court — but I assert that as this commission does say, that construing that act in the light of the demands of the day in which it was passed, in the discussions upon it in Congress when it was passed, it was the purpose to give them all the powers of fixing rates, and this commis- sion, reviewing the inefficiency of the act after those powers had been taken from it, in their report in 1899, breathe a wail of despair in their appeal to Congress to reinvest them with these powers with v/hich the people had intended to invest them. Oh the first page of that report they say: Many persons do not understand the precise nature of the amendments required for enforcing the substantive provisions of the act, while others have apparently reached the belief that no scheme of regulation short of government ownership and operation can be made effective. So far had our people been disappointed, says the commission, that they are begin- ning to believe that the time is near at hand when, if we are to control this great agency as it vv^as intended it should be controlled, the government itself should take the ownership and management of th'ese roads into its hands and exercise it for the people in tile spirit in which the charters were granted to them. Nevertheless — (continues the commission) — it is perhaps safe to say that nine- tenths of the people do know that any railroad company can charge for its service whatever it pleases and as much as it pleases, without any real power in this commis- sion, or any other tribunal or court, to limit the amount of such charge for the future when complaint is made by an aggrieved shipper, and that they are substantially of one mind in desiring that this and other defects in the statue be promptly remedied. It is also true that shippers generally have been practically unanimous in favor of a single classification of freights, one that will be uniform for all roads and all sections of the country, and reasonably stable when established. I understand the gentleman from Fauquier to say that the commission in its last report had only made its recommendation with reference to the enactments of the Cullom Bill, or with reference to the outrages that had been perpetrated by the w^are- houses and packing-houses of the West, against which, and against the railroads in the discussion of v^^hich, they hurled their anathemas, as quoted by the chairman in his opening discussion. Mr. Hunton: My friend is in error. What I did say was that the quotation made from that report by the gentleman from Augusta (Mr. Braxton) as to the violations of law and the destruction of vouchers was directed as to secret rebates and not as to rates. That was what I stated. Mr. Kendall: Well, sir, I will accept, then, the gentleman's construction, I hope this committee remembers those anathemas as they were read by the chairman. Let me present this question which does, then, meet exactly what the gentleman did say. If these railroads and these packing-houses are engaged in cutting rates in such violation of the law that they may be stigmatized as being upon the par of men who are guilty of petty larceny, why should we hope that they will follow any higher rule of conduct when they come to this vast question of fixing rates? Mr. Hunton: But the law, as it was then, and as botih the majority and the minority reports make it, prohibited those secret rebates as positively as it was possible to do, did it not? Mr. Kendall: I am not denying that. The argument is more forcible against you because it is so. Mr. Hunton: Then would not the same violation be encouraged by giving the absolute power to fix rates? Mr. Kendall: Then, Mr. Chairman, I ask this question: If, under the law which the gentleman concedes gives this power to the commission to prohibit the cutting of rates, these railroads and packing-houses are guilty of acts 2238 DEBATES OF THE COIs^STITUTIOXAL CONVENTION" OF VIRGINIA. which should invoke or call from this commission anathemas as have been read to this committee, what would they do with no power at all preventing them from applying unjust, unreasonable and unfair rates? If they defy the law when its thunders have been opened upon them and the prison-houses themselves have been opened to them, wlhat will they do if you lock the prison-houses and throw away the laws? I fail, gentlemen, to appreciate the position of the gentleman fromi Fauquier when he told us, as I understand him certainly to do, that we did not need any commission, because we might fall back upon that great commercial regulation and commercial law which had therefore governed and controlled this matter. Mr, Hunton: My friend will pardon me again. He does not quote me accurately. I never said we needed no commission. I said that while it was probably unwise that a provision of a legislative character should be put in the Constitution, it was proper that the roads should be properly regulated and supervised. Mr. Kendall: Did not my friend argue that these commercial regulations or rules would prohibit the roads from imposing rates that would impoverish the country which was to feed them, and did he not use language to this effect, that it would stop the farmers from raising their crops, and the roads knew better than to do such a thing? Did he not made at least that argument? Mr. Hunton: Unquestionably I did, but I also stated that there were causes of complaint; that there were wrongs, and that there should be a body to correct those wrongs where they existed. Unquestionably I stated that, and argued that, and pre- sented the minority report as giving all that was fair and reasonable supervision and regulation. Mr. Kendall: Why Mr. Chairman, I think that this minority report itself says that no provision whatever is needed upon the subject. My friend certainlj^ did assume, as you have all heard, and as he admits, that the commercial law would prohibit the roads from establishing rates too high; and I have heard it so often that I may have attributed more to him than perhaps fell from his lips. Mr. Edward Baxter appeared before the committee as attorney for the road, and the burden of his song was that we needed no such provision, that we had one that was now fully efficient, that this com- mercial law and commercial regulation was the only law that was needed for the regu- lation of railroads. Mr. Chairman, lest that same idea may be in the mind of some one here present, let me say that the com,mercial law to which he referred was the law of competition. My observation and reading have led me to the conclusion that the competition of markets has been used as an excuse by these roads to put their rates, wherever com- petitive points were found, at a point which would lead to the abuse and wrong and injury of other sections. How could it be possible that the competition of markets could make roads fix their rates as between each other, where at least there was no competi- tion whatever? I say that the day of competition is past. The roads of Virginia are controlled, as is conceded, by one interest— by the great Pennsylvania Railroad sys- tem—the anaconda which has swallowed up everything in this section, from Penn- sylvania to Alabama. The day of competition is gone. I heard one of the high officials of the Chesapeake and Ohio road say that Mr. Cassett, in investigating the affairs of the Pennsylvania Railroad, found that their surplus had not been equal to what it had previously been, and that when he went to look into the matter he found it was by reason of the fact that the Norfolk and Western and the Chesapeake and Ohio were delivering coal at 25 cents a ton cheaper than the Pennsylvania Central could deliver it, and that he said it was much cheaper for that road to buy a controlling interest in those competing roads than to enter into any freight war with them. He brought together his stockholders and they made an agreement that they would so do, and in due course of time the management of the Chesapeake and Ohio and of the Norfolk and Western went into the hands of the Pennsylvania railroad; and then and there, said he, the price of coal went up 50 cents a ton in the markets of Norfolk and the East. DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. 2239 Competition? Commercial competition? It is an iridescent dream, a thing of the past, as everj^body who has cut his eye-teeth now knows. If we cannot have the com- mercial law, for heaven's sake let us have the Massachusetts law, say our friends, the law of advice. I would as soon think of talking to a highway robber about some fine and disputed principle of ethics when his hand was in the act of clutching gold as I would have talk about advising railroads about their duty in fixing rates. They would tell me I was talking about something I knew nothing about; that I had better stick to my last and that they would control such interests as that, and if I got out of the office without being kicked out, I might be most grateful. Massachusetts law! Conditions in IMassachusetts differ from conditions here. I do not know that the law of competition has been entirely swept away in Massachusetts. Mr. Thorn. I understand that there is but one system of roads in the State. Mr. Kendall: I will say this to my friend: When the railroad commissioner of Massachusetts was before the Industrial Commission in Washington last year he was examined by that commission upon the matter now before this committee, and this question was asked of him, "Is it not true that the power of the Corporation Commission in Massachusetts over capitalization goes a long ways towards enforcing proper rates in matters of railroads?" And he said. " Undoubtedly so." All of you may not be so familiar as the members of the committee who made this report are with the powers of the Corporation Commission in Massachusetts in matters of capitalization. It was that which was embodied in the tentative report that went out to the press, which stirred up some of our corporation friends. The power of the Massachusetts Commission, when a corporation was being organized and services and property was to be capitalized into stock, to pass upon the valuation of those services and property and fix the valuation in stock, and no stock should be issued until that had been done. This power, gentlemen, did go a long ways toward enforcing proper rates on the railroads in the State of Massachu- setts. Why, gentlemen, can you not see that, as these railroads are continually run- ning out their branches and increasing their stock, they are in the hands of the Corpora- tion Commission of Massachusetts in that matter in such a way that they fear to violate their advice when given in matters of rates. The Railroad Commission of Massachu- setts, at least, was of that opinion. I can give you the page of his answer in that examination before the Industrial Commission. Advice! Why we have got a Railroad Commission that has given advice, offered prayers and issued commands. Tell me, gentlemen of the committee, what they have amounted to. Do you ask for a continua- tion of affairs as they now stand? If so — if that is all you want — for heaven's sake sweep all of these matters out of the house and do not give us this minority report. Mr. Thom: Will the gentleman say in what respect they have been disregarded, and give any instance of it? Mr. Kendall: They were disregarded in one case which went to the Supreme Court of the State, reported in Ninety-eighth Virginia. I would as soon have gone to the commissioner of New York or the commissioner of Massachusetts to know what has been done in Virginia as to our own railroad commissioner. Not that I mean to impugn him in the slightest way in the world, but I am considering him only in accordance with the powers that have been vested in him. Mr. Hunton: Is not my friend aware of the fact that the railroad commissioner, in his last report, states that there has been no friction on that subject since that decision? Mr. Kendall: No, sir; I am not aware of it, I come now, Mr. Chairman, to a matter to which I want to call your attention. Our friends, who have presented to us the minority report, have been good enough to say that something ought to be done and to recommend what that should be. I state here that the plan they have recommended is, if I may coin a word, absolutely unwork- able. I ask the committee to give me a hearing upon that question. I say that the plan recommended by the minority of this committee is a thing which is absolutely unworkable. What is it? They provide that when a complaint has been made to the 2240 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. commission, the commission shall order the railroad into court. They provide that the com^plainant is to have the aid of the commission and the power of the Commonwealth's attorney of the county in the prosecution of that case. This is not the special objection I am going to make to the provision. Some of our Commonwealth's attorneys are very able men. I will, however, stop here long enough to ask a question. What chance do you think the ordinary Commonwealth's attorney of a county would have in connection with the vast relays of attorneys which the railroads keep employed in their interest, control — aye, control — and management, when the questions involved necessitate the ripping up of the entire detail of railroad management and the vast traffic which they are carrying and the emoluments to be derived therefrom — because that question is always involved, under the Fourteenth Amendment, as has been decided in the case of Ames vs. Railroad, reported in 169th United States. This case, when complaint is made, is to be carried into court. Let us suppose that the court is good enough to decide the case for the complainant. The court has decided that the complaint was just and says to the railroad: "You must fix this rate as we say you must. It is to stand as so fixed for all time? That is the question I ask you. When a rate has been fixed by the court, under this minority plan, how is it ever thereafter to be changed? It stands there fixed in the law, imbedded like rock. It is the fiat of this court, a thing which we know is great, and it has back of it, for its enforcement, what these gentlemen v/ould seem to claim to be almost the divine power of the court. How can it be changed? Has the case gone out of court? If so, that is the end of it. You can never change it until the question has been raised by another complaint of some one else. When the railroad finds that it is necessary to have a change made, they, perhaps, in their mighty power may bring about a different set of circumstances in some way, as, for instance, in the way of bringing about some apparent competition. The giant hand of the Pennslyvania railroad, that controls all along the line from Pennsylvania to Alabama, may touch one off somewhere that we do not know about. Competition will arise at this particular point or that particular point, and then they will see that th-e conditions are not the same; that they have changed, and the rate will at once be changed by the railroad and put back to what it was before or to some other figure. Then, before the question can ever be decided again, you have got to start another case, carry it before the commission, take it to the Supreme Court of the State or. to the circuit court, as they have provided, with an appeal to the appellate court, and you know that they will appeal even to the Supreme Court of the United States. During all this time, for months and years, they are raking in the rate just as they were before. In the name of heaven, what nicer little game could they desire? If, on the contrary, it should be contended that the case is not to be dismissed, but is to be retained in court as a standing order for further consideration, what then is the condition of affairs? It is that you convert your courts into railroad commissions, where all of the courts of the State are to be continuously passing upon questions of rates, to the absolute and exclusive absorption of their time, so that I do not know that they could give any consideration whatever to the affairs of the rest of us common mortals within the State. Mr. Hunton: The gentleman asks how the order of the court could be changed, and whether it was fixed for all time. In the very case to which we have all been re- ferring, that was the only modification made by the Court of Appeals to the order of the circuit court of Shenandoah county, which dismissed the case from the docket. The Court of Appeals modified that order so as to retain the case upon the docket, in order that if it became desirable to change the schedule, that change could be made and the order of the court modified to conform with it. Mr. Kendall: I thank the gentleman. I have answered him in advance. I told him in my concluding remark, before the interruption, that if the case should be retained in court you would then have your docket filed forever, with these cases going up singly and alone from all parts of the State, because each individual case has got to be treated as a case in court is treated. DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OE TIRGIXIA. Mr. Himton: Does not \-our plan expose the Court of Appeals to very much greater danger in that direction than the plan of the minority would expose the circuit court to, by giving the right of appeal to the Court of Appeals? Mr. Kendall: Xot in the least, for we have provided that all the evidence shall he taken before this commission, and fully examined and passed upon by them, before it is submitted to the appellate court, and the Court of Appeals will have before it a record fully and completely made up. Mr. Braxton: Would not the method of procedure stiggested by the gentleman from Fauquier, if it operated at all, have the effect of constituting every circuit court in the State a corporation commission? Mr. Kendall: I so stated just now. I want to ask the gentleman this question. If the Court of Appeals is to retain the case in the Court of Appeals for further orders, how is this evidence to be gotten, when a new cause of complaint arises, except by starting the case in the lower court? Mr. Hunton: The Court of Appeals did not retain the case on its docket. It re- manded it to the circuit court of Shenandoah county and directed that it be retained upon the docket of the circuit court. Mr. Kendall: I misunderstood your answer. You were counsel in the case and remember the case better than I do. Gentlemen of the committee, I think what I have submitted to you upon this ques- tion demonstrates, beyond the shadow of a doubt, the unworkableness, to coin a word, of this scheme, unless 3'ou propose to convert all the circuit courts of the State, with their multitudes of minds differing one from another, into railroad commissions. Let us suppose that a railroad line runs through two judicial districts. One judge decides it one way, and the other judge decides it the other way. In the name of high heaven, the ruling of vrhich judge is to control? I suppose then you have got to take it to the Court of Appeals to decide which is right. But suppose one case is taken up and the other is not. If this is not a futile, idle and worthless thing I never read of and never heard of one in my life. In the place of such a provision as that, we, gentlemen of the committee, offer you a scheme complete and full upon its face. I am glad that the chairman offered the amendments which he did offer this morning. I reallj^ thought, until night before last, that they were in the report. They were in, as I understood it, at one tim<='. but in some way or other they were omitted. We want to give the railroads the fullest opportunity of being heard upon the fullest evidence which they introduce, and we want to do what the Interstate Commerce Commission said should be done in their case — require all the evidence that is to be introduced and go before the court to be first introduced before the commission. I almost feel like laughter when the gentleman complains that when this commission simply has reason to believe, on complaint or otherwise, that there may be a rate which needs to be investigated, and asks the railroad to come before them for a hearing and submit their evidence, that the road is prejudged. Is there any possi- bility for any prejugdment or any injustice on ajij such ground as that? We give them the right to appeal to the highest court of the land. As I stated yesterday, and I think you will not deny it, they will be able to bring to the aid of the court all of the legal ability that is needed without the addition of one red cent to their expense, for they have their retained lawyers at so much per year. Gentlemen of the committee, I know that I have detained you too long; but there is another matter to which I am going to call your attention before I sit down. We have heard all over this floor, from the opposers of this measure, that while the scheme may be good enough, with some exceptions, it would not do to put it into the Constitution; but it will do to put theii^ in the Constitution — remember that, gentlemen. Some of them. I think, say that it would do to make it a legislative enactment, but they pray you not to put it into the Constitution. Why, gentlemen, here is a gi'eat, vast and mighty question. It is a question, as I said, in arguing before you yesterday, where the fundamental rights of the people are involved. I argued before you yesterday that 224:2 DEBATES OE THE CONSTITUTIONAL CONVENTION OE VIRGINIA. it was the duty of the government, when it created an agency with such powers as is given to these railroads, to, at the same time, throw around them government control to see that they do no wrong. When you are granting to the proper tribunal, to this commission, or under your present Constitution, to the Legislature, the power to grant charters, will you tell me how there is anything wrong in principle, at the same time, providing in that Constitu- tion for some other tribunal, with power to prevent the violation of those charters into which there is written, by implication, as stated by the Supreme Court of the United States in the decision I read yesterday, the provision that rates shall be reasonable. Where is the violation of principle? Where is the danger? It seems to me that the guard ought to go along with the danger; that the protection of the people ought to go along with the creation of the agency which may oppress and abuse the people, and that it should be in the Constitution, where both are fixed. But where is the danger? These gentlemen say we may put something in here that is wrong; that we cannot see into the future. But, gentlemen, the only thing that we have really put in, although we have elaborated it to a considerable extent in this Constitution, is that this commission shall have tne power to fix rates. Is that a debatable question? Does anybody want to leave that to the future? Is that a thing to be settled upon trial? Have we not reached the time when it has been tried to its fullest and final limit? Has not the Interstate Com- merce Commission honestly tried it since 1888 or 1889, and have they not, with one uniform and continuing voice, cried out, "Give us this power?" Have not nineteen States of this Union tried it and found it good and well? What longer trial do you want? I am afraid that my friends are becoming republicanized. It sounds like that old thing we used to hear about the tariffs. They were in their infancy, and one hundred years has not brought them out of their infancy. They are more infants now than they were in the days of Henry Clay. If anything is settled upon this question it must be conceded that this is settled and settled fully. This power to fix rates is a great public necessity, and I say there is nothing in this provision of ours that these gentlemen can object to or do object to, as I understand them, except the provision as to fixing rates. Mr. Thom: You are very much mistaken about that. Mr. Kendall: I do not mean to say that there are not some other questions upon special provisions that will arise hereafter for separate discussion; but I do say that their one great complaint is with regard to fixing rates, and I say that is a subject which has been settled by experience — the greatest of all teachers. It is by "the lamp of ex- perience," as the chairman of the Convention said, quoting from the immortal Henry Clay, "by which our feet are guided." I say to 3'ou that if you put this article in the Constitution it will settle the question, and your Legislatures will not forever hereafter be harassed and worried by the logrolling of these railroads. But gentlemen tell us that if you put it into the Constitution it will bring the railroads into politics. Poor things! Something they have never thought of before. I ask you, then, if you leave it to legislative enactment if it will not bring the railroads, or rather, if it will not keep them in politics, for they are already there, and always have been, and generally on top. Put it into the Constitution and it will be a settled question. They will then know that it is there duty to obey this commission, and this mighty word "control" will con- trol. But if you leave it to the legislature, gentlemen, it will be an eternal question of contention, and God knows whether we will ever have, and in my opinion we never will have, anything in the world that is worth a bauble. This is but the beginning, gentlemen of this committee, of that fight that looms up in the future, which, to my mind, is to be the great contest of the future — the battle between the people and capital. This progeny of modern industry has grown so great that it has forgotten the meat upon which it doth feed. It is time we should teach it the lesson which it has forgotten. It is a lesson which goes back to the great principles of civil liberty, which our fathers thought out and fixed. You dare not evade this question now; and if you do, I tell you that you will be re- creant to those great principles, and you will commit the people to the domination of DEBATES OF THE COXSTITUTIOXAL CONYEXTION" OF YIRGIXIA. 2243 those who have dominated them in the past to their great wrong, injustice and injury. Gentlemen, I beg your pardon for delaying you as I have. After the splendid pre- sentation of the question before you by the chairman of this committee, and after the burning eloquence of the gentleman from Manchester, and his splendid logic, I feel that it was pretentious on my part to arise and address you; but it was a duty which I felt I owed as a member of this committee, and I pray you that if I have been too ardent or said aught that I should not have said, you will at least attribute it to no purpose of mine to erect in this land any spirit of populism. From the days of my earliest thought upon political questions, to this hour, the one great cardinal principle with me has been to give as much power to the people and as little to government as possible. But I tell you that in fighting out this great battle the people will not be trifled with. From the language of the commission which I read to you, you will see that it is a question in their minds already whether or not it is possible to control these railroads except by government ownership. They tell you, from one end of this country to the other, that question is arising. It has already been adopted as one of the cardinal principles of populism. I wish it might be possible to stay the progress of that creed, which I be- lieve is a mistaken one. If you are to settle it as all other great political questions are settled — by putting it upon the principles of common justice; for until things are settled right, they are not settled. If it is right that the people of this country should control their destinies, the question can never be settled until it is so fixed that they do control them. I will tell you, my friends, one and all now and here, you must decide that ques- tion. I conceive it to be the greatest and most important one that can arise before this Convention, save one. Gentlemen of the committee, I thank you. (Great applause.) Mr. Robertson: Mr. Chairman, I will not as some of my friends have seen proper to do, make any apology whatsoever for speaking on this question. I conceive it to be the right of every representative of the people upon this floor to say what he thinks about every question that comes up, and I think he ow^es no apology to any man in this body, or out of it, for speaking upon any question that may come before it. I will state at the outset, that some of my very good friends in this body, who hap- pen to differ from me on this question, have been kind enough to say to me that they hoped — on my own account only — I would not speak in regard to this important matter, (Laughter.) Well, Mr. Chairman, if the way in which I talk about this question, or the way in which I vote, is going to ruin me, let the ruin come. It will not be my fault, but the fault of the people who ruin me. I hope I nave not gotten to that point where I cannot get up here and say what I honestly believe about every question that comes before this body, without unduly considering what the people may think of my conduct, or what those controlling corporations may desire. Now, Mr. Chairman, this question is not one involving a fight or battle between the people on the one hand and the railroad companies and other corporations of this State on the other. I have heard a great deal in private talk, by way of suggestion and comment, to the effect that the railroad attorneys will, as a matter of course, defend the railroads; that their arguments are unworthy to be heard, and that they should be prac- tically tabooed in this Convention. On the other hand the people who represent all the other interest, have got a right to get up here and say whatever they choose in abuse of the railroads and other corporations. Now, I say if a man who is connected with the railroad companies, or a man who has had railroad companies for clients, is prejudiced in favor, where is the man who has been bringing suits against the railroad companies, or the farmer who has been shipping goods over the railroads, who is not just as much prejudiced against those companies? Let us discount all this matter of prejudice. Let us not consider this matter from a personal standpoint, but rather let us consider it in the cold light of reason. Let us see what these gentlemen, in their honest zeal — and I admit they have honest zeal in this matter — are attempting to argue this Convention into doing. I respectfully submit that this is not simply a question of whether rail- 2244 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIEGINIA. road rates ought to be controlled or not. It is not simply a question of whether there ought to he a commission which can regulate and dominate the railroad companies with reference to the connections that they may make, and all of the other rules which generally govern them in their treatment of the public dealing with them. The ques- tion is not before a legislative body here. We are not assembled here as the General Assembly of Virginia. From the arguments that I have heard here, if I was a stranger and had stepped in here, not knowing what this body was, I would have thought that these men assembled here were the representatives of the people in Legislature assem- bled, and that they were discussing the merits of some great legislative enactment which the people had sent them here to consider. Now, I respectfully submit that we were not sent here to consider questions of this kind. We were not assembled, and the people did not call us here, for the purpose of acting as a Legislature. Certainly there must be some line drawn between the Gene- ral Assembly of Virginia and the Constitutional Convention, or we will have to abolish the General Assembly. What is the General Assembly for, I pray you, if we, sitting here, are going to undertake to say that we will legislate about subjects that the General Assembly has always heretofore been called to deal with? Now, that is at the bottom of this v/hole matter. I am not going to weary this committee by talking about figures and reading statis- tics, and talking about whether a railroad company has treated anybody with injustice or not, nor what the rates should be. I am going to confine what I say strictly and simply to the question of whether or not this is a proper subject to put into our Con- stitution, because that, it seems to me, is the real question. I will state frankly that I am opposed to both the majority and the minority report in this matter. Neither of them have any business in the Constitution. The gentlemen have argued here about the Interstate Commerce law, and about the nineteen States in the Union that have commissions, and they have gone into the details of what the powers of this commission should be; but when they come to this crucial question, as to whether this report should be embodied in the Constitution, which it seems to me they ought to have established before they went to any other, the only argument they make is that our General Assembly has never provided for this wise law they offer to us here. Is that a legitimate argument? Let us see, in the first place, where that argu- ment leads. Assume, for the sake of argument, and it is a mere assumption, that there has been an effort to get legislation of this kind — some general public effort to get this action — and that the General Assembly has not, as yet, granted the people what they want. Is that any reason for putting it into the Constitution? Gentlemen, our govern- ment is a representative form of government. The law-making power is placed in the hands of the General Assembly. Our English forefathers, unto this day, in that great little island across the sea, have no written constitution. Parliament there is supreme. When we came to frame our government in America, we had been living under charters granted to us by the Crown, and those charters were taken as a kind of guide by which the people undertook to provide constitutions for our government; but it was never thought of by our fathers; it never entered into the remotest corner of the mind of a single one of those great men, who are so often referred to here on this floor, that they were going to tie up in the manner now proposed the supreme law-making power of this State by the Constitution vv^hich they framed. Why, in the very nature of things, gen- tlemen, a Legislature should have all law-making power — absolutely untrammeled, ex- cept so far as the absolute necessities of society require that its power be restrained. We have a right to say what sort of governonent we are going to have; we have a right in a general way to outline the powers of these different branches of the government, and to put into the Constitution — which, after all, is simply a matter of the people tying their hands — all of those strictly fundamental matters, that lessons of years of experi- ence have taught us are fundamental. But that is no excuse for saying that we must put into the Constitution things which in their nature are bound to change as society changes. Now, let me bring my remarks down closer home, to what we have under DEBATES OF THE COXSTITUTIOXAL COXYEXTIOIs OF YIRGIXIA. 22-15 consideration here. But before I come to that, let me say I have heard it remarked by some gentlemen that they cannot understand the difference betYveen a legislative enact- ment and a constitutional provision; they say that some of us appeal to this theory when we do not want a thing, and break over it when we do wa.nt a provision of our own inserted. To some extent that may be true; but im questionably there is a broad distinction, and I think I can illustrate it by the comments that I will make upon this enactment of twenty-six pages, which is proposed to be put into the Constitution. Now, this article begins like the Interstate Commerce act, and other acts, by giving a great number of definitions about the words it is going to use. It then, after having defined them, provides how charters to corporations shall be granted. Then, in Section 3, it undertakes to provide for this commission, and under Section 4 it undertakes to prescribe the duties of this commission, with a minute detail that I have never seen in an act of the General Assembly. After prescribing their general duties it splits up into a number of sub-divisions, covering every letter in the alphabet. It starts out with "a" and goes on b, c, d, e, f, g, h, i, j, k and 1 — I believe it goes down to the middle of the alphabet. It not only prescribes in a general v/ay what this commission have a right to do, but it tells them exactly how they shall do it. Take the question of appeal to the court. It actually tells the Court of Appeals how it must act when these questions come before it. In our Judiciary report, while we went a great deal further than I believe we ought to have gone, we did not go that far. It tells the Court of Appeals that it must act as the gentleman upon this corporation com- mittee thinks that court ought to act, although that is a judicial body, which in its nature is bound to act judicially. It goes into every kind of minute detail as to what the powers and duties of this commission shall be. You gentlemen are familiar with the matter, and there is no use in my taking up the time of the committee in discussing all those enumerated powers and duties. Mr. Hunton: They tell the courts that they must keep open every day except Sundays and legal holidays. Mr. Robertson: Yes; that they must sit every day except legal holidays and Sun- days. I think they ought to have provided that a machine should be invented, called "a commissioner" to do this work — a machine with great intelligence, but with little soul and no bodily infirmities. But supposing this provision should go into operation, I want to point out where the danger lies. I v/ant to speak to you men who have feelings like those of my friend from Northampton (Mr. Kendall), who has just closed his address. When he was asked any question about this matter his replies showed the intense bitterness of his feelings against the railroad companies. Let me assume, for the purposes of argument, that these feelings are justified by the facts. Let me appeal to you who are being appealed to here along the line of prejudice. I am not here to defend the railroad officials or any- body else for doing wrong, because, I will say in passing, there is nobody in this Com- monwealth who does not do wrong sometimes. Our criminal laws are being evaded and violated every day, and our laws of all kinds are being violated every day. The rail- road companies evade and violate them — I admit it. I am not sa3^ing one word about whether you ought to control them or not. But in return, upon this floor, this morning, after this preliminary debate has only proceeded thus far, the chairman of this Committee on Corporations, on account of the weight of the argument made against this report, saw fit to get up and offer amend- ments to the language which he had used therein. Human language is defective. I do not care what the thought in the mind of my distinguished and able friend from Augusta (Mr. Braxton) may be, however able he is, however skilled in the use of language any or all of them may be, I say that they cannot prepare an act of twenty-six pages, deal- ing with a new matter, giving new rights and remedies, without the language being capable of more than one, and probably of two, three of four constructions. How do you know — how does any one in this body know — what construction the Court of Appeals may put upon any of these various clauses which these gentlemen have been talking 2246 DEBATES OF THE CONSTITUTIOXAL COXYEiS^TIOX OF YIRGIXIA. about so long? I ask that question in all seriousness. Looking at it from that stand- point, suppose the Court of Appeals should hold one of these clauses that you think means a certain thing, which gives this commission power over these railroad com- panies in the way you want them to have it, was practically a nullity, and did not have the effect which you intended it to have. Have you not tied your hands? Have you not tied them so that the people cannot get what they want, if the people want what you say they do? But the gentleman says, there is here the power of amendment. Let us look at that power of amendment which is given the Legislature. The Legislature is not given an unlimited power of amendment. Look at line 243 on page 16 of this report and you will find the only power of amendment which the majority of this committee want to give to the Legislature, unless some one of the amendments I brought in this morning gives a more extended power of amendment. I hope my friend from Augusta will continue to amend this report until he gets it exactly the opposite to what it is now. Whenever we make a strong argument against it, he meets it — not with an argument, but with an amendment. But, as it stands now, here is the power of amendment given to the Legis- lature. I say that the power of amendment of laws is the crucial question involved in all of these cases. Is it a law which, in its nature, should be amended from time to time, as the exigences of the case, the necessities of the people and the good of this Commonwealth require? If it is it ought not to go into this Constitution. Now let us see what power of amendment we have under this provision of the majority report: "After the first day of January, 1905" — you can get no amendment at all before then. These clauses cannot be amended at all until 1905, and who knows what may happen during that period — "The General Assembly, upon the recommendation of the said commission" — not upon the demand of the people; not because of the fact that there has been a heated campaign in Virginia, involving the question of the control of these railroads, and the people have sent their representatives here to carry out their wishes, but upon the recommendation of this very body of men which you propose to put in supreme power over the greatest interests we have in this Commonwealth. You cannot turn a wheel, in the way of legislation, until the commission, which you propose, recommends that an amendment shall be made. "Upon the recommendation of the said commission may, from time to time" — I do not know whether these gentlemen mean that the only amendment the Legislature can make is one which is recommended to them by this commission. I do not know whether it means that or not. I do not know whether it means, if this commission recommends some change, that the Legislature could make some other amendment or not; but cer- tainly it is capable of the construction, that they must make only such amendments as are recommended by the commission. These gentlemen who argued so strongly in favor of this commission— and I have nothing to say against that; I state candidly I believe a proper railroad commission is a necessity— these gentlemen who argue for it, and, in the next breath, speak of these railroad companies as if they were pariahs, as if they were worse than pariahs, because they speak of them as if they w^ere some kind of Juggernauts, not only running along the rails that they have paid the money to run upon, but running over the rights and bodies of the people of the Commonwealth, occupy a remarkable position. If these rail- road companies are the monsters they are represented to be, if they propose to get the people in their grasp and keep them there, is there not a danger, gentlemen— and I call your attention to it now; we are not sitting here to listen to the popular clamor of peo- ple who have not read this article outside this body, because I do not believe many men outside of it have read it carefully! I have read it three times and do not understand what it means— is there not a danger, I say, of these giant railroad combinations, that my friend from Staunton was so eloquent about, getting hold of this commission? Is it not much easier to get three men than it is to control a majority in the Senate and in the House of Delegates? The Governor appoints them, under the provisions of the re- DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE TIRGIXIA. port, and ttie Legislature confirms them. The Legislature, of which you have this ter- rible distrust, the people who are not able, as you say, to compel their representatives to do what they demand. The Governor, who is elected by the people, who are supposed to be bought up by the railroad company, is to select the members of this commission, and yet it is assumed that for all time to come they will be perfectly honest men and that everything they do will be in the interest of the people. Can you assume any such thing as that? Suppose they will not make the recom- mendation as to amendments? I think in the course of five years it is more than likely you will find it will be proper to introduce some other amendments here, judging by the rapidity with which they have come in here so far. I think we maj' take it for granted there will be other amendments needed within a few years. What are you going to do about that? You cannot get any amendments at all unless the members of this com- mission recommend them. Let us go a little further. You cannot get any amendments on certain portions of this section, whether the commission recommends them or not. Gentlemen, this is a grave question. You cannot decide this question by talking about whether people have done wrong or not. You might just as well argue against the criminal classes of the Commonwealth. If I had the strength I could curse and villify the miserable scoundrel that murdered that poor old woman down yonder in Lunenburg county. I could attack the vicious classes of every city in the Commonwealth, and if I had the eloquence of the distinguished gentleman from Northampton (Mr. Kendall), probably I could make you i tingle with indignation against them; but would any of you be rash enough, unwise enough, because I said the laws of the Commmonwealtli were not being enforced, that there are defects in them which the Legislature has not corrected, to say we must put the criminal laws of the Commonwealth into our Constitution? Gentlemen, the viola- tion of the law is no argument for taking away from the law making power of the State the right to make the laws? Xow let tis see. The only changes that can be made here shall be made upon the recommendation of three men. who will, after all, be men, and who, perhaps, may be influenced by some of the motives by which, as these gentlemen claim, the Legisla- ture is influenced. But that is not all. You will notice, if you look at the Section I refer to. that the only change you can make in this matter is with reference to sub- sections D. E. F, G. H and L Xow, turn back and see what sections you cannot amend. Section A and the following sections deal largely with the question of appeals — the manner of permitting those appeals and in what cases they shall lie. The Legislature, on the recommendation of this commission, can change that : but let us look at these other sections. Section 4 contains prior to sub-section D, sub-section A. B and C. I will not read those sections, because the gentlemen of the committee are familiar with them; but I respectfully submit that whatever you may think about the necessity of having a commission to regtilate rates, all of you are botmd to admit, and every argument these gentlemen have made here has been on the theory that the making of the rates is the most important matter in the whole thing. I defy any of them to deny it. They say that is what they want this commission for, that that is the reason these other commissions which are created by legislature or by Congress are inefficient, because they cannot fix rates and enforce them; and yet the very clause in this report which gives this commission, composed of three men, paramotint power — a word that is very offensive to me, at least — over this Commonwealth, provides that the Legislature, which represents the people, is absolutely prohibited from altering or changing it. If I am wrong in that I should like to be corrected. I have read this thing over care- fully, and I cannot see how you can change it, except by getting a constitutional amendment to it. I pause to know whether that is not correct. I think that is the effect of it. Now, gentlemen. I have had some experience. I was delighted the other day when my distingtiished friend from Richmond (Mr. 3,Ieredith) included me with a lot of young 2248 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. men here and said we were all from ten to fifteen years younger than he is. It delighted my heart to find that I looked young enough for my friend to think that. But I have had some experience in this life. I have been here some time myself. My hair has not gotten quite as gray as his, but there are a good many lines in my face that have been caused by my struggle in life, and I know something about the laws under which we have to live. I have had some little experience at the bar, and some experience on the bench, where I looked at both sides of matters, I hope. I have never known the Legis- lature to pass any law involving any great right— take for instance, the married woman's law, or any law, I care not what— when it has not become apparent within a few years that that law does not meet the requirements of the case, does not fully carry out the objects which its promoters had in view. Take the married woman's law. It has been amended at nearly every session of the Legislature. These sorts of things have to be amended until experience teaches us they need no further amendment. Our great body of the common law is practically amended by the judges where it is not perfected by legislation. As new times and new circum- stances arise the judges make that law fit into those new times and circumstances. Our great body of legislative law, which commenced after the old Constitution of 1776 was adopted, has been the gradual growth of the experience of our people. If v/e adopt this report we enter upon a new and important field. I confess that I know nothing of the details of such matters, and venture to say there are comparatively few members of this body who could write an intelligent treatise on this subject, because it is a subject that transcends the petty village affairs that most of us have to deal with. This question of the great powers of these common carriers which the gentleman from Augusta spoke about so eloquently is a matter not for our Legislature even to deal with, in its broad sense, but Congress is compelled to deal with it, because it is not bound by the lines of this State. This whole continent is affected by these great public carriers. Our whole civilization has been changed by the build- ing up of these great mighty highways upon which all the commerce of this country is transported; and we cannot undertake to deal with it here in this body of one hundred men. I do not care if we came up even to the representations that the newspapers were kind enough to give us when we first came here. (Laughter.) Suppose we are the wisest men in the commonwealth; suppose we are all actuated by the highest and noblest sentiments, by feelings of the purest patriotism — and I believe that most of us are actuated in that way to a very large extent — yet every one of us, gentlemen, has two sides to his nature. Every one of us, I hope, has some intellect, but at the same time we have an emotional nature, and the intellectual is not always in control over the emotional nature. We may be honest in the sense that we think we are right, but on a great many questions we are unable to think right because the emotional side of our nature dominates the intellectual side. I do not claim I am any superior to any other man. I am perfectly willing to be- lieve, and I do in the frankest manner believe, that every gentleman in this body is actuated by an honest motive and desire to protect and preserve the highest interests of the Commonwealth; but can we say that we are so free from our prejudices and emo- tions as to have such clear minds and intellects that we can look into the future, that we can say what should be the law of this Commonwealth with reference to one of the greatest interests in the Commonwealth until this Constitution be amended. Now, that is a grave question, gentlemen. It is not whether you want the thing or not. It is not whether, if you were in the Legislature, you would advocate this measure. It is a question whether you are willing to put beyond alteration the work of men who certainly have some of the failings that most men have, who certainly cannot always express themselves in such language that the people will understand what they write. There comes to my mind, at this point, an illustration of this, so striking that I call your attention to it. When my friend got up this morning to offer those amendments there could be no stronger argument against making this report a part of the Consti- DEBATES OF THE COis^STITUTIOXAL CONVENTION OF VIRGINIA. 2249 tution than the spectacle of two sincere, earnest men differing about the meaning of important provisions contained in it. This commission you appoint may take a different view from that of either of my friends, and yet you are going to say you will keep this thing here as a permanent part of our law for all time until this Constitution is changed. Why, gentlemen, I cannot see that the importance of the matter has anything to do with reference to whether it shall be constitutional or legislative. That is not the question. The more important it is the more apt you are to do harm by making it per- manent. Is not that true? Is it not bound to be true? And here you propose to tie up the people so that our Legislature cannot respond to their appeals, cannot change the law, even though the whole people were to rise up and demand it. We would have to go through the slow process of a Constitutional Convention, or of submitting an amend- ment to the people, and you know how unsatisfactory that is, especially as to a ques- tion of this kind, for — and I do not care who hears me say it — I do not believe that most men can understand the effect of these provisions. I do not believe the masses of the people can understand these complicated provisions. They simply have a general idea that they want the railroads controlled, and some of them may think the Constitutional Convention ought to provide for it, but do you believe the great mass of the people in this Commonwealth are able to read this paper and understand the legal effect of it? If you do, you have a higher regard for the intelligence of our people than I have, because I do not believe there are any people on the face of this earth amongst whom there are many that could appreciate the effect of this report. What is the argument? I am not going to take up much more time. I simply thought it my duty to point out this danger, I will leave it to others to discuss the merits of the details of this matter. I simply want to state briefly, before I close, what I con- ceive to be the fallacy of claiming that the Legislature of Virginia has turned a deaf ear to the clamors of the people for any such thing as this. Where has there ever been any popular clamor on this subject injected into any canvass for the Legislature? I should like for any gentleman on this floor to answer me. That has been assumed as a fact here. I respectfully submit that the trouble with our Legislature in Virginia has been not that it does not respond to the wishes of the people; not that it turns down proper laws and pigeon-holes them in committees, but that our people, politicians as they are in the sense of being office-seekers, do not take enough interest in public questions to make them issues before the people. I believe every man on this floor knows that such is the fact. When was there ever a campaign in Virginia in which the question of the control of railroads was made an issue? If there ever has been I want these gentlemen to tell me about it. To say, because the Legislature has not as yet passed a stringent law putting into the hands of three men the powers of all three branches of the government, that it will not yield to the proper demands of the people as to control of corporations, is based on no facts within our experience. They comment on the Mason law. Well, if that law be defective — and I am not going to argue about it; I do not care, for the purposes of my argument, whether it is defective or not — why did not my friends from Northampton (Mr. Kendall) and my distinguished friend from Manchester (Mr. Ingram), who could certainly have reached the ears of the peorle with the witchery of his eloquence, enter into former legislative contests, whether they ran for the Legislature or not? Why did they bring forward that issue and say. "I will not vote for a man who will not vote for this measure," Not one of them can claim they have ever gone around in this State trying to arouse the public sentiment of the people in regard to this matter; and yet they say that the Legislature of Virginia will not give them what they want, and that is an excuse for abandoning all the principles of constitutional law and injecting a statute twenty-six pages long into our Constitution. If I know anything, I believe that what I say is a fact, I do not believe any man in this body can claim that this question has been the subject of public agitation here in Virginia, It certainly was not when this body was elected. 142 — Const. Deb. 2250 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. I was told by several distinguished members of this body when I first came down here that we came here to disfranchise a certain race and to cut down the salaries of a few officers, and try to reduce expenses, and then we were going home. The first night I got here some of my friend said, "Oh, we will only be here three or four weeks," and yet, because certain committees were appointed here, every committee that was appointed with a big name to it got an idea that it was bound to do something. They did not like to come in here and report." "We will not advise any changes in the Con- stitution in this regard." I think some of them would have decided very wisely if they had acted on the advice that a distinguished old judge once gave me when I was a young man. He said it is a great deal better, if you want to be a good, honest lawyer, to know how not to bring a suit than how to bring one. I think if this body had been governed by the same idea, if it had known how not to do anything at all in reference to some questions, the Convention would have adjourned long ago and we would have had something for the people to vote upon, and we would not have been here engaged in academic discussions in regard to everything on the face of God's earth, and some things that do not exist at all, eimer on earth or in heaven. (Laughter.) Now, gentlemen, I appeal to you if three-fourths of the time of this Convention has not been taken up in discussing all the evils in this Commonwealth, from the commis- sioners of the revenue up to this question. I do not say those are not important ques- tions, but there is another forum for many of these questions. We have been discussing the question which is now hung up in mid-air as to how a man should get a liquor license. I am surprised we have not adopted a whole code of police laws for every city in the commonwealth, because that is nothing in the world but a police law. Every- body knows this. But we are told we must do here what we say the Legislature will not do. I say if the Legislature will not pass the laws the people need and require it is the fault of the people themselves. But, certain it is, they did not send us here to this Convention for the purpose of legislating. Nothing was said about these matters before this Convention assembled. Talk about what the people want! The people have never voted on this question. You do not know what they want. In my opinion they do not know themselves what they want, because they have never had these matters intelli- gently discussed before them, i know they have a vague desire to put some of the corporations under control. Some merchant who has shipped goods over the railroad may be as mad as he can be at some railroad company because he was charged fifteen cents more on some shipment than he ought to have been charged; but I venture to assert that there are very few men in this Commonwealth that know how far the powers of this commission would go, if we adopt it. I venture to say that comparatively few of them know that the interstate commerce in this country is probably ninety-five per cent, of the commerce, and that if they got this thing, these gentlemen who feel so sore about their fifteen cents, or whatever other grievance they have, could not get the relief through this commission they think they can get; because, after all, the vast bulk of the business of this country is bound to be controlled by Congress. These railroads run from State to State, and most of the business is interstate commerce. I do not think anybody would have the hardihood to venture to get up in the Congress of the United States anu propose an amendment to that venerable instrument, putting in it any such provisions as are in this report with reference to interstate commerce. Do you believe anyone would dare to do any such thing? Why, gentlemen, the great strength and the great beauty of our institutions and the reason they have been preserved in spite of the fact that we have gone through the terrible arbitrament of arms in civil strife, which involved the very continuance of this Union is on account of the simplicity, the generality of the language of that great instrument our fathers pre- pared when this government was founded. Foreign authors who have read our great Constitution have said it is the greatest work that ever fell from the pen of man. The great English statesman, Gladstone, is one who spoke thus, and its greatness con- sists in its containing only general and fundamental principles and not going into details. DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. 2251 Gentlemen, the Constitution of Virginia of 1776 covered only five small printed pages, and none of the Constitutions which we have adopted since then — not even the much-abused Underwood Constitution — has ever undertaken to go into such minute legislative details. I do not believe any of them is much longer than this article that is presented here. If you want anything like this, I say let us discuss it before the people; let us have an election on this question; let us have a fair discussion before the people. Let them come here and introduce their bills in the Legislature. Let us get the best law we can. I will assume, for the sake of argument, that this is the best law that the wisdom of man can devise, for the present. If it be so let us get it through the Legislature, but do not, I pray you, fix it so that we cannot change it if it should happen to develop defects that might injure the highest interests of the people. I have the greatest respect m the world for the gentlemen of this committee. There is not one of them, I believe, who is not a personal friend of mine, but they are not all wise and omniscient. There is not a man in this body who is omniscient. I do not care to go into details, but I cannot believe that this report is such a perfect instrument that it ought to be ptit into our fundamental law and remain there until it is changed by the dubious method of a constitutional amendment. Gentlemen, the argument for this is practically an attack upon representative gov- ernment in this country. It will not do. I cannot understand the position which some of my friends take here. Some of us who are members of the Committee on the Legis- lative department had the audacity (as some of these gentlemen seemed to think it was) to suggest that the Legislature should not meet every two years, but should meet every four years, and there came up a great wail — a classic wail — from our friend from Manchester (:\Ir. Ingram) that we were going to deprive the people of the power they should have (laughter) ; and yet he comes here and advocates a measure that absolutely takes out of the power of the people, and of the Legislature they elect, the right to control some of their most important affairs, absolutely and entirely. They cannot change it in four years; they cannot change it in one hundred years, unless there be an amendment to this Constitution. Now, gentlemen, these sorts of arguments are inconsistent. AVe were turned down on that proposition. The gentlemen of the Convention said four years was too long. They may be right. I do not claim to know how often they ought to be elected. I, myself, thought four years was a short enough time; that they ought to wait a while before they changed laws; that they ought to find out what the laws are before they change them, because I know they generally do not find out before they change them. (Laughter.) Btit however that may be, I do not believe that this Convention ought to invade the province of the Legislature and absolutely prohibit it from changing our laws in the manner in which these people are seeking to change them. It is an attack upon representative government. They say we cannot point out any instance, except that they did not give the labor- ing man the fellow servants' law. I want to say, in passing, that I have always been in favor of a fair fellow servants' law. I have so stated publicly and I state it here now. I think if there is any one thing our Court of Appeals has done to injure the corporations of the State, it is its tendency to go too far in favor of the corporations. I think it has produced a great deal of prejudice against corporations. I am in favor of a fair law that will protect the lives of the men who go out upon that dangerous work. They cite that as an instance that the Legislature will not give them what they want. Well, gentlemen, you cannot produce changes in some great fundamental prin- ciple of the law in a year or two years. You have to fight for what you want in this government. It is the survival of the fittest here, as it is everywnere else. Here are conflicting interests. Intrests on both sides have to be looked at. and because a law is turned down by three or four Legislatures, are we to throw up our hands in despair and say our Legislatures will not give us what we want, and therefore when we come 2252 DEBATES OF THE COXSTITUTIOXAL CONVENTION OF VIRGINIA. down here to disfranchise the negro and do other things we will take advantage of being here to pass all kinds of laws that the Legislature will not pass. That is exactly the attitude we are adopting here. These gentlemen, in eloquent appeal, say: "Now is the time. We have a terrible fight on our hands. We have got these people where the wool is short, and we are going to give them a dressing up. The Legislature does not do it, and they never do it." I absolutely deny that is true. I believe the people of Virginia control their own affairs. I do not subscribe to the sen- timent that the corporations control this great people. It is a cowardly plea, I say, to proclaim that the people of this great Commonwealth, who, as the gentlemen said, have always been radical, who have never been afraid to do what they thought to be right for their true interests, are dominated and controlled by any men or set of men for their own selfish purposes. They may thwart them for a time, but that is all. I ven- ture to say that if my distinguished friend from Augusta (Mr. Braxton), my distin- guished friend from Manchester (Mr. Ingram), or my distinguished friend from North- ampton (Mr. Kendall), will take the trouble to go over this Commonwealth and talk to the people as they have been doing here, the people will rise in their might and majesty and demand of their representatives that they give them the laws they should have. To think otherwise is to write the word failure upon our form of government, to say that this government does not suit the needs of the people. That view of the matter will not do. Congress has heeded certain of the demands of the people. It has pro- vided an Interstate Commerce Commission with great powers; and because it does not change the powers of that commission every time the commission asks for it, is no argument that its powers will not be changed when the people become properly roused. No, gentlemen, there are two sides to this question. I do not intend to go into the merits of this law now. When it comes up in detail I may have something to say about some of these matters, although I do not know that I will. But there are two sides to it. The people may get hoisted by their own petard by putting this report in the Con- stitution. They may not get the control of the corporations that they seek or ought to get; and, on the other hand, in your desire to protect your own interests, you may oppress the people who, whether they have done wrong or not, are at least entitled to justice. Even the poorest negro that stands in the dock accused of felony, as guilty and as black morally as he is outwardly, is protected by our laws and is given a fair trial and a fair hearing, and every presumption is made in his favor. Are we to say that out of prejudice, out of passion, out of wrongs, if there be such, committed by the railroad companies, we are going to make an attack upon the capital of the country and put the attack in a permanent form, so that, however injurious it may be, we cannot change it for years to come? Certainly those are weighty considerations with me, and I do not see how they can keep from being so with you. These gentlemen may argue as much as they choose about what they meant by this thing. The man who draws an instrument is never the man to construe it. The courts all say that. The man who prepares a contract thinks he has said all he wants to say, and yet very often that is not the case. He is the last man to construe it; and however good the intentions of these gentlemen may be, I submit you cannot trust to the language that is used. Are we on the one hand to tie the hands of the people so that they cannot get the relief they want, and on the other, to drive out and oppress the capital of this State? Now, gentlemen, in closing, let me call your attention to one fact. Of course you all know it, but we very often forget it. A great many people have an idea that a corporation partakes very little of what concerns humanity, that there are no human beings connected with it at all. As I said just now, it is thought by many to be some kind of tremendous engine which can be used for the destruction of the rights of the people. And yet the chief difference between a corporation and an individual, and be- tween a corporation and a partnership, is that of limited liability. The stock of these companies is owned by human beings; their bonds are owned by individuals. Now, I grant you these quasi public corporations have to-day certain public powers given them. DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE VIRGINIA. ^253 They have the power of eminent domain; and for that reason the courts have held that the public has a right to control them. They are engaged in public work, and they constitute public highways. But there are two sides to that matter. They are not altogether public. They are spoken of as quasi public. The State, because it cannot perform certain things itself, has given these people certain powers; but, after all, a railroad is a private corporation. The money that builds the road is the money of private individuals. The bonds upon which they borrow money are held by individuals. Now, is there any man within the sound of my voice, whatever he thinks about the operations of these companies, however much trouble he has had about getting proper rates, who will undertake to say that he wants to do anything to injure the interests of those private individuals, who own those bonds and that stock? Does he want to practically make that kind of investment worthless, and prevent people in the future from making investments? If so, he not only injures the private individuals who have already invested their money, but he prevents this State of ours from developing as it should develop. These gentlemen who want to appeal to the low ignorance and prejudice of the unthinking man may say as much as they choose: 'Tf capital does not want to come here, let it stay out;" but, gentlemen, it does seem to me the conservative patriot, the man who wants to subserve the true interests of this old Commonwealth of ours, is the man who, without oppressing other people in their rights, is engaged in the great work of developing the resources of the Commonwealth. The old order has passed away and the new order has taken its place. The old patriarchal life of our people is gone like a dream, never to come back. We have to take our places in the ranks of the commercial States of the Union; and you, gentlemen, know just as well as I do that if you pass any permanent inimical legislation here, the people who have money to put it into these things will put it into some other State where they will not be afraid of their investments being impaired in value or destroyed. That is common sense. Nobody who has money is fool enough to build railroads in Virginia when he sees that the people, by their best representatives — the men who have been lauded up to the skies as being superior to the Legislature — are willing to come here and put into their permanent law something that is bound to hamper, cripple and probably bankrupt every great railroad corporation in the State. If it does not do that, and I hope fo God it will not do it, and I hope, too, that what the newspapers say is not the fact, that this report is cerainly going through. I say, if this article does not bank- rupt those companies that are already here, it may so seriously injure them that people outside of Virginia who have money and who would be willing to invest it here and help to build up our waste places, will prefer to put their money somewhere else where they may look for welcome and protection. These gentlemen may think I am exaggerating. They may think the fact that I have a railroad pass in my pocket actuates me in what I say. I do not care who knows I have that railroad pass in my pocket. I say it boldly and openly that I have it, and I believe a great many other gentlemen haA^e them also. (Laughter.) But I say a rail- road pass cannot buy my opinion, and I do not believe it can buy those of any other man. I frankly admit that we may have a more kindly feeling toward railroads because we are connected with them. I think any man is apt to have a kindly feeling toward the man who employs him; but you must recollect that the unkind feelings that some of these gentlemen manifest by their action— though they deny them, and I believe they deny them honestly— are probably produced by the fact that they have not a pass and do not draw a salary from a railroad, (Laughter) or to the fact that they have been placed in some position of antagonism. I do not believe any man here is consciously actuated by such considerations. I want to say for myself that I have voted here time and again for things that I knew the railroad companies considered inimical to their interests. I voted with my friend from Staunton for a majority verdict of juries instead of retaining the old system of juries. I believe that proposition was successfully fought, and the old unanimous verdict was retained; and I think most of the people who are largely interested in railroads were glad that my friend from Staunton was defeated. 2254 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIEGINIA. A hung jury is a very good thing for a railroad company in the present state of popular prejudice. But I do not believe any of us ought to be actuated by any such thing. We ought not to talk that sort of scandal right here amongst ourselves. (Laughter.) What I say I want you to answer in substance. Do not turn it dow^n because you think a man is interested in the railroads. The only interest I have in them on God's earth is to defend a railroad company when it is sued in court. I have no other interest in it. They never consult me about their politics, if they have any, or about anything else, but I go before a jury and defend them; and I will say here that I have a great many Repub- lican clients, and yet that has never for a moment made me think of becoming a Repub- lican. We have to answer the argument that either side makes, and not allow prejudice, not allow the personal equation, to dominate us here, because if we do we will be going blindly in the dark. I am sorry that I have taken up so much time, and that I have been so rambling in my remarks; but I feel deeply on this qestion, and I hope that nothing that I have said has indicated even in the slightest degree, that I think the men who have spoken against the railroad companies are actuated by any improper motives. I do not believe they are; but all I ask for the people who speak in favor of keeping this legislative enactment out of the Constitution is that you shall throw over us also the mantle of charity and answer our arguments instead of criticizing us. (Great applause.) Mr. Stebbins: Mr. Chairman and gentlemen of the committee, as is well known to all of you, I am not accustomed to expressing myself upon my feet, and to addressing bodies of this character. Interruptions are annoymg and embarrassing to me, and might have the effect of throwing me off the line of my argument; and I ask this body that they will extend me the courtesy not to interrupt me while I am speaking. Mr. Chairman, my limitations in this debate have already been fixed by my esteemed friend, the gentleman from Fauquier (Mr. Hunton). He has reminded me and the other lay members of the Committee on Corporations, that we are not capable of understand- ing the force and effect of the terms used in this report. I accept the suggestion, and will not discuss the legal phases of the question, but will present it simply as it occurs to a practical business man. My friend from Fauquier with one hand throws us bouquets, while, on the other hand, he commiserates us on our incapacity to appreciate the full import of the lan- guage used. I do not like to have him throw me bouquets without returning the com- pliment — at least in kind — and I will say that, with his splendid intellect, and with the patriotic motives that inspire his conduct, if he knew the practical workings of the railroads from an intimate connection and dealing with them in their freight depart- ment, or in their department of business, rather than by deriving theoretical knowledge from the head of a department in a fourth-story office, and if he were a business man, instead of a lawyer, he would cast his talents and his high patriotic motives on the side of the majority report of this committee. Mr. Chairman, I was impressed, long before I came to this Convention, with the importance — aye, the dire necessity — of placing some regulating hand upon corpora- tions. It is a question that every thinking man has had to face in the past few years. I have seen these great amalgamations of capital, those great combinations of interests going on around us, and have realized that unless some restraining hand was placed upon them the people would suffer from their cast. When I came to this Convention and was appointed on the Committee of Permanent Organization, one of the things that I proposed, and the proposition came from me alone, and was insisted upon by me, was that there should be a standing committee of this Convention on corporations, to deal specifically with the subject, and that it should not be relegated as a side-show to some other committee of this Convention. That same feeling has inspired me in the transactions of this committee through the long weary months that we have labored, and indulged in research and investigation. DEBATES OF THE COXSTITUTIOXAL COXVENTIOX OF VIRGINIA. 2255 that we might devise a scheme of dealing with corporations that would not be injurious to them in the least, and, at the same time, would protect the interests of the people. My esteemed friend from Fauquier, in his admirable address on Wednesday, appealed to the conservatism and statesmanship of Virginia not to put this into the organic law. He says: "Let us consider for a moment the issues with which we are faced. It is proposed to place in the Constitution of conservative Virginia — a State which has here- tofore been a leader in thought, a leader in conservatism, a leader in statesmanship — into its organic law a principle and a measure that exists in the Constitutions of but two States in this Union. It must indeed be remarkable conditions which justify the ex- pectation that this State will follow such a course." Gentlemen, it is utterly astounding to me that, when any action out of the old ruts is proposed, which will advance the highest interests of the people, its opponents ring the changes on conservatism and statesmanship. Their idea of conservatism and statesmanship is to fold their hands and let well enough alone. Conservatism can be carried to such an extent as to amount to inaction, inertia, decay and death. Conserva- tism is worn threadbare in Virginia. I believe in conservatism — a broad, intelligent, liberal, progressive conservatism. Not that antiquated, fossilized conservatism which rejects everything however meritorious, because it is new and fears to take a step because the path has not been beaten smooth beforehand. The conservatism which Virginia wants is that which can grasp conditions, measure effect from cause, project itself into the future, take advantage of strategic positions and control all public agencies so that they will promote her fullest development and insure the greatest prosperity and happiness of her people. Too long has Virginia been held back by her ultra-conservatism, been a laggard in the race, until all her sister States have outdis- tanced her. It is time for her to awake from this lethargy, burst the manacles of con- servatism, so called, which have bound her down so long and by modern method of thought, action and legislation enter the lists and align herself with the progressive States of the Union. I have, gentlemen, heard our sister State of North Carolina frequently sneeringly referred to. We do not need the Constitution of North Carolina for Virginia, we do not need her system of courts or her system of county government, but I tell you, gentlemen, we can learn many lessons of thrift and industry from the people of North Carolina. It is a State without any large cities, with only one seaport, and that an unimportant one. It has no great trunk lines of railway, with their terminals, on her coast. And yet I believe it has two or three times as many small towns of from one to ten thousand inhabitants as has the State of Virginia, and each one of these is a center of industry and thrift. I believe that the people of North Carolina — and I say this advisedly, be- cause I live near that State and have constant business intercourse with the people of that State — that her people are far more generally thrifty than the people of Virginia. What I save said of North Carolina will apply equally to the States of South Carolina and Georgia. These are the States, south of us, that have these much-dreaded railroad or corporation commissions, with all this power. I do not contend that the existence of corporation commissions in these States is the cause of all this prosperity; but it clearly demonstrates that their existence have certainly not retarded it. We cannot, Mr. Chairman, doubt that they have been instrumental, to some extent, in creating this state of affairs, by giving to the small manufacturers throughout the State reasonable rates on their raw materials and supplies and also on their manufac- tured products to market. The question is asked whether there is a demand in Virginia for commission with such powers. I have here resolutions and letters from all the boards of trade in the State of Virginia asking for this commission, and, in addition, the members of this com- mittee, and I have no doubt the members of this Convention, generally, are receiving private letters every day urging the adoption of this majority report. Mr. Dunaway: Will the gentleman mention some of them? 2256 DEBATES OF THE CONSTITUTIONAL CONVENTIOX OF VIEGIXIA. Mr. Stebbins: Here is one from the city of Petersburg. Here is one from the city of Staunton and one from the city of Norfolk. Here is one from the city of Richmond, one from the city of Lynchburg, one from the city of Bristol, one from the business Men's Association of the city of Danville. Then here is one from the Traveler's Pro- tective Association of Richmond, urging the same thing; and last, but not least, I have a paper in my desk from the business men of the town of South Boston, the most pro- gressive town of its size in the State of Virginia, asking for the same thing. These chambers of commerce in the various cities of the State maintain, at great cost to themselves, traffic bureaus. They employ in those traffic bureaus men who have been connected with the freight departments of the railroads and are familiar with rates. Why is this? Why is this? Why do they go to all this trouble and expense? It is because they want some one familiar with rates and classification, who can state, and state advisedly, whenever their city is being discriminated against, in order that they can take such measures as' may seem advisable to in duce the railroads to remove the discrimination. If these things do not exist, if these discriminations do not exist, there would be no use of having traffic bureaus. The traffic bureau is the effect of these constant discriminations. Are the business men of these cities, who compose the membership of these associations, through whose instrumentalities these memorials have been sent here, men of large affairs, directing the financial, commercial and manu- facturing interests of the State, radical and Poplistic? Will any gentleman arise on this floor and say that this large class of our most intelligent business men, the men who feel the pinch of the shoe, are radical and Populistic? Do they not know what they are talking about? Are they not as sensitive as any one else to anything that would injure the State, because the result would fall on them as heavily as on any other class of people? These, gentlemen, are the men who have been and are now developing the resources of the State, promoting our enterprise, sending abroad our products in their crude and manufactured state to the marts of the world, and who, gathering the wealth thus obtained from their bold emprise, bring it and lay it at the feet of their mother — Virginia. It will not do for gentlemen on this floor, when memo- rials from some of the cities of this Commonwealth are mentioned, to sneeringly remark, "A city with a grievance." Why, sirs, the grievance is as universal as the limits of the Commonwealth. It is confined to no town and no section. Gentlemen of the committee, I believe it is recognized by all who have taken part in this debate, those who favor the minority as well as those who favor the majority report, that there should be some regulation of these common carriers, and the only question between -gentlemen who differ here, is as to the extent to which that control shall go. It is said that we have a railroad commission in Virginia, but I have been told that the commissioner, himself, says that he is powerless to do anything. One case, and only one, which went up to the Court of Appeals is relied on to show that the commis- sion has the power to enforce its mandate against the railroad companies. I do not know how many years it has been in existence, but this is the only case that we have any record of where its mandate was enforced by the court. I have understood that its powers were merely supervisory and recommendatory. I have been an active business man in Virginia for thirty-one years, beginning before I was twenty-one years old. I have daily transactions with the railroad companies, and necessarily I sometimes have grievances. But it has never occurred to me in my life to make a complaint to the Rail- road Commission of Virginia until at one time I stated my grievance to the gentleman from Fauquier, and he reminded me that the Railroad Commission of Virginia could deal with it. I filed a complaint some months ago, and the commissioner informs me that he wrote to companies involved and they promised some time to come and see him in regard to it. Now he has summoned them here, and he says they will heed the summons and come down and talk to him about it. But if it had not been suggested to me by my friend I would have hardly known that we had a railroad commissioner in Virginia, so far as his utility is concerned. ^ DEBATES Of THE COXSTITUTIOXAL COXVEXTIOX OF VIKGIXIA. 2257 Mr. Cliairman, if we take the report of the railroad commissioner for 1900, in his summary to the Genera] Assembly, we will see there the confession of his utter inability to do anything. He says, on the question 9f rates: There has been a general raising of rates in Virginia in the past year. In most cases it has been done by raising the classitication, a matter about which the average shipper knows very little. The peculiar situation of our roads afford a great deal of protecting for the shipper, our lines being mainly on the great through route north and south and east and west. There have been some eases of extreme hardships, which I have not found means of correcting. Nature has done a great deal for us, but the railroad commissioner has been able to do very little. Our geographical position, and our having several trunk lines run- ning through the State, has done a great deal, but the railroad commissioner has done very little. He acknowledges that rates have been raised, not by raising the tariff, but by that system peculiar to the railroads, by which the people cannot learn that rates have been raised. For instance, an article in the second class can be put in the first, and one that is in the fourth class can be put in the third. When the shipper pays his freight bill he finds that he is paying more on a certain article than he paid before. He goes to the agent and says : " You have raised your rates." The agent .says, " No; our tariff is just the same as it has been for two years." The commissioner acknowledges that there have been great hardships which he has found no means of correcting. Now, there should be some means of correcting these hardships. Let me call your attention to the question as to the efficiency of this commission. We have a statute providing that the maximum rate on fertilizer shall be 4 cents per ton, 2,240 pounds, per mile; and that the minimum rate shall be for 10 miles. I do not know how long this statute has been on our statute books, but it is there. If you will examine the rates for fertilizers for the different railroads, you will find that they have been violating the law for all short distances, up to about 30 miles, for years. Whether it has ever come to the knowledge of the railroad commissioner or not I am unable to say. Take, for instance, Bon Air, on the Southern railroad, eight miles from Richmond. The rate is ?1 per ton; the rate fixed by statute should not be more than 36 cents, and the difference, which is an overchange is 64 cents. Take Moseley's, 20 miles from Richmond, and the rate is ?1.20 per ton; the maximum rate fixed by law is 76 cents, and the overcharge is 44 cents. Take Churchland, 9 miles from Norfolk, the rate is 70 cents; the maximum rate fixed by law is 36 cents, and the overcharge is 34 cents. Now, let us take the Chesapeake and Ohio road. To Elko, 14 miles, the rate is 90 cents; the maximum rate fixed by law is 51 cents, and the overcharge is 39 cents. Take Weilkham, a distance of 21 miles, and the rate is $1.20; the maximum rate fixed by law is 78 cents, and the overcharge 42 cents. Take Lorraine, 12 miles, and the rate is 90 cents, the maximum rate fixed by law is 44 cents, and the overcharge 46 cents. Take Burgess, on the Seaboard Air Line, a small station 31 miles from Richmond, the rate is $1.70 per ton; the maximum rate fixed by law is $1.12, and the overcharge is 58 cents. Now, Burgess is S miles from Petersburg; the rate there is $1, while the maximum rate fixed by law is 36, a difference of 64 cents. Here is a rather curious thing I discovered in investigating these fertilizer rates. There is a little station 12 miles this side of Norfolk called Drivers. I think it is on the Atlantic Coast Line. I do not know what distance it is from Richmond. The freight rate on fertilizers from here to Drivers is $3 per ton, and the freight to Norfolk, 12 miles beyond, in car-load rates, is 75 cents per ton. It is a dollar from here to Norfolk in less than car-load lots. Now, if a man lives in Drivers and should hny his fertilizer in Richmond, he can save half his freight by shipping it to Norfolk and then shipping it back to Drivers. So far as my investigations have gone the Norfolk and Western Railroad has 2258 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. observed the legal tariff, I now want to tell you a little secret. I will Let you mto> my confidence as to a matter I discovered after 1 had made up these rates. Although the Chesapeake and Ohio and the Southern railway were charging these rates on July 20, 1901, the Chesapeake and Ohio put in a new tariff which conforms exactly to the law, and in October of last year the Southern road put into operation a new tariff that conforms exactly to the law. I do not know, gentlemen, whether any significance attaches to it or not; but at the time the new tariff was made, a Constitutional Con- vention was in session in the city of Richmond and a corporation committee was at work. I want to talk to you a little now on the coal situation. We have only two coal carrying roads in Virginia of any consequence — the Norfolk and Western and the Chesa- peake and Ohio. The Norfolk and Western, I believe, mines a great deal of its coal in Virginia, but runs it around through a little corner of West Virginia and back into Virginia, which possibly may make it interstate. The Chesapeake and Ohio, as we all know, gets its coal from West Virginia. Up to 1899 both of these roads had the same freight traffic on coal to Richmond, Petersburg and Norfolk. But not very long ago, and since this great " community of interest " plan has been in operation, the Chesa- peake and Ohio put a tariff on coal to Richmond which is 25 cents a ton less than the Norfolk and Western rate. The Norfolk and Western carries coal to Petersburg and Norfolk for 25 cents per ton less than the Chesapeake and Ohio. So we see the beauti- ful w^orking of this " community of interest " principle, in dividing up the territory of the State between themselves — an act is restraint of trade. If a citizen of Richmond wants to use Pocahontas coal he can have it, but he must pay 25 cents a ton more for it than he does for Kanawha splint, and vice versa, if a citizen of Norfolk and Peters- burg wants to use Kanav/ha splint he must pay 25 cents more a ton for it than he does for Pocahontas. But that is not all. The Chesapeake and Ohio coal costs in Richmond to-day 78 cents a ton more than it did, and Norfolk and Western costs $1.03 more per ton than it did. A part of this advance comes from the advance in freight rates and a part of it is an advance in the price of coal. ^Vhat effect does that have on the coal miner? He has no choice of markets. If he is on the Chesapeake and Ohio road he has to sell the coal in a market that they have picked out for him, and if he is on the Norfolk and Western he has to do the same thing. Mr. Chairman, I want to call your especial attention to this because it is a very important matter. A case similiar to this arose in the great State of Georgia about 1891, and how did the commission deal with it? It was interstate commerce, and they had no power over interstate commerce. The railroads coming into Georgia determined to raise the freight rates 25 cents per ton on coal from Tennessee. The commission cited them before it, and the Hon. L. N. Trammell, who was chairman of the com- mission at the time, made this address to the railway authorities: You have been invited to meet the commission in consultation because of the ad- vance made in the interstate coal rate. In the revision and adjustment of the local rates made by the commission last year we spared no time nor labor to arrive at a proper conclusion as to what would be renumerative to the roads and just to people. As evidence of the fairness and cor- rectness of our deliberations and the rates made, we have but little or no complaint from the people, and the evidence declared by the leading roads in the State the present year demonstrate, beyond a doubt, that these rates were not only just but liberal to them. The change of the interstate coal rate which the roads have made since this revision raises the price of transportation on an average of about 25 cents per ton on all coal consumed in this State, which has caused a protest to come up from the press and the people that challenge the attention of this board and demand of it all the relief it can give the country by exercising the powers w^hich the law has placed in its hands for the protection of the people against extortions and unjust and unreasonable charges upon freight. The policy of the commission has been to allow the railroads of the State a reason- able dividend after paying their fixed charges and all other legal and just demands DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF VIRGINIA. 2259 against them, and in making the present local rates we based their earnings on the local rates, and the interstate rates as the latter were at that time, but this change of interstate rates on coal has destroyed the balance established by the commission and turned the scale largely on the side of the railroads and heavily against the people. As this basis, upon which the estimates were made in establishing the present local rates, has been changed, I must state frankly that, for this commission to be consistent, it wall, if the roads insist on their present interstate rates on coal, thereby destroying the basis upon which the local rates were made, consider it to be their imperative duty to so readjust their rates as to prevent the roads from getting more than we think they are justly entitled to. To do this it will be necessary to take as much from the local rates as has been added to the interstate rates. This is not a proposition looking to, or to be considered in a spirit of retaliation, but for the purpose of enforcing a just and reasonable rate, and maintaining the balance heretofore set up by the commission as just and reasonable to the people and the roads. It is not only necessary for the protection of the people, but it becomes absolutely necessary for the future protection and welfare of the shareholders of the railroads that the commission should pursue this course when the interstate rates threaten to imperil, to the extent that the rates now under discussion do, the manufacturing interests of this country, and it requires no argument from me to show that, while the roads may increase their revenues by such a policy for the present, they will be largely the losers in the future by crippling the great and growing manufacturing interests of this coun- try', which is dependent, more than any one thing else, upon cheap rates on coal. It is proper that I should add that, upon investigation, the commission find the local rates on coal too high, and that they should be reduced. The result of that little speech, delivered by Mr. Trammell, was that the advance in interstate rates was rescinded and the original rate restored, as is shown by a letter from Mr. Thomas H. Carter, then commissioner of the Southern Railway and Steam- ship Association. On motion of Mr. Braxton the committee rose and the President resumed the chair. ELECTIVE FRANCHISE, Etc. Mr. Barbour: — I desire simply to introduce a substitute for the report of the Com- mittee on the Elective Franchise, etc., and ask that it lie on the table and be printed. It -was so ordered. On motion of Mr. James W. Gordon the Convention adjourned until to-morrow, Saturday, February S, 1902, at 10 o'clock A. M. SATURDAY, February 8, 1902. The Convention met at 10 o'clock A. M. Prayer by Rev. Edwin B. Snead, of Richmond, Virginia. On motion of Mr. Braxton the Convention now resolved itself into Committee of the Whole for the further consideration of the report of the Committee on Corporations. Mr. Keezell in the chair. Mr. Stebbins: — Mr. Chairman and gentlemen of the committee, I regret very much that the arrival of the hour for adjournment yesterday prevented me from concluding my remarks at that time, and in resuming this morning I desire to thank the committee for the patient hearing which they gave me and to assure them that I will not detain them but a short time to-daj^ I endeavored to show on yesterday that it was a mistaken conservatism that would reject everything because it is new and refuse all proposed reforms because they were untried in our midst. I endeavored to show that there was a demand for a railroad commission, with ample power to deal with the questions that might come before it and to stand as a tribunal between the people and the railroads, I showed you that this demand came from the business interests of Virginia, represented through the various chambers of commerce and boards of trade of the cities of the State; that it came from men actively engaged in the commerce and manufactures of the State, men who have the highest interests of the State at heart, and men who would be most seriously affected by any action on our part which might be detrimental to the interests of the 2260 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. State. I endeavored to show that this demand also arose from the fact that the present commission which we have is utterly inefficient, as acknowledged by the commissioner himself in his last report to the General Assembly. I also endeavored to show that for years the railroads have been violating the statute law of Virginia in regard to the maximum rates of freight on fertilizers for short distances, and I endeavored to show the effect of the " community of interest " plan upon the coal trade of Virginia at the present time. I stated that up to a short time ago the Chesapeake and Ohio and the Norfolk and Western railways, the only two coal-carrying roads in the State, had the same rate of freight to the cities of Richmond, Petersburg and Norfolk, but that recently they have divided this territory among themselves, the Chesapeake and Ohio taking Richmond and the Norfolk and Western taking Petersburg and Norfolk — the Norfolk and Western charging 25 cents per ton more for carrying coal to Richmond than the Chesapeake and Ohio and the Chesapeake and Ohio charging 25 cents more per ton on coal to Petersburg and Norfolk than the Norfolk and Western. I showed you that the dealers of Richmond are paying to-day an advance of 78 cents on the Chesapeake and Ohio's and $1.03 on Norfolk and Western coal, part of which is an increased rate in freight and .part of which is an advanced price of coal, and that the coal operator has no choice of markets, but must submit to this arbitrary ruling of the companies. This, gentlemen, is where I left off in my remarks on yesterday. Now, I will take up the matter of cattle shipments from Southwest Virginia to the Seaboard. We are all aware that this is one of the largest industries of that thriving section of the State — the raising of cattle for the foreign markets. The rate on cattle per carload from Chicago by the Chesapeake and Ohio road is $50 per car. From Kentucky points it ranges from $43 to $50 per car to Newport News. By the Norfolk and Western, from Chicago to Norfolk it is $54 per car. The rate from Southwest Virginia points west of Salem on the Norfolk and Western railroad is the same as from Chicago to Norfolk — $54; but the foreign steamers that take these cattle to Europe do not touch at Norfolk, and Norfolk is not the point on the coast that the shipper desires to reach. Therefore if the Southwest Virginia cattle raiser should wish to ship to Newport News he must be subjected to the rate of $68 per car, or $18 more than the Chicago and Kentucky shipper pays, and $14 more than if he shipped his cattle to Norfolk. The explanation, as I understand, which is given for this is to be found in the fact that the cattle must be tranferred from one road to another. For instance, the shipper from Southwest Virginia to Newport News must ship Sirst to Lynchburg and there transfer to the Chesapeake and Ohio road. The rate to Lynchburg being $41 per car and from Lynchburg to Newport News $27 per car. But we must recollect also that the shipper from Chicago to Newport News must make several transfers instead of one, and it does seem that that is a manifest discrimination against the cattle raiser of Southwest Virginia. I will now take up the table of rates, as submitted by the gentleman from Fauquier (Mr. Hunton) on Wednesday. The idea of the gentleman was to prove that while Vir- ginia had no railroad commission, and the States south of Virginia did have commis- sions with these powers, that Virginia has all the time, and at the present time, had cheaper rates of local freight than those States. We all remember how he said he could show that Georgia had higher rates than Virginia — Georgia, the inspiration of the gentleman from Augusta (Mr. Braxton), had higher rates than Virginia! How North Carolina, the model of the gentleman from Danville (Mr. Withers) had higher rates than Virginia. Now, I have gone carefully over this matter and have a copy of his table here, which shows the rates on the Chesapeake and Ohio railroad as of 1901. These rates he dis- claims any responsibility for, claiming that they were furnished to him by Mr. G. W. Stevens, president of the Chesapeake and Ohio railroad, and that they are practically the same rates that are in effect on the other railroads of the State. Mr. Chairman, I wish to say that a comparison of the classified rates — that is. DEBATES OF THE COXSTITUTIOXAL COXVEXTION OF VIRGINIA. 2261 those rates, first, second, third, fourth and fifth class, and so on, as distinguished from commodity rates — of the Chesapeake and Ohio railroad, cannot be made with classified rates in the States south of Virginia, for the reason that the Chesapeake and Ohio rail- road uses the official classification and the States south of Virginia use what is known as the southern classification, between which classifications there are great difierences. For instance, an article may be designated in the official classification as fourth class, and in the southern classification it may be called third class or fifth class; and those Inequalities run through these different classifications. In order to make any com- parison of the classified rates with those of the States south of Virginia, it must be made with some railroad in Virginia which uses the southern classification. Therefore, I have chosen the Southern railway, which uses the southern classification, and which also has lines of road with the same classification in the States south of us. Another misleading statement is that in which the -rates of the Chesapeake and Ohio railway are used. The gentleman from Fauquier has been made to use the rates of the railroad having the lowest rates in the State of Virginia; a railroad which also has the reputation of being one of the lowest rate railroads in the country; and if we will make an examination and comparison of their tariff rates with the various other rail- roads of the State we will see at a glance that they are not practically the same rates as those of the other roads of the State. Now, gentlemen, I do not mean to charge that any one has intentionally made any misstatement, but I suppose the gentlemen who tabulated these rates are men who are exceedingly busy and did not take the time to investigate the matter thoroughly, per- haps thinking they were practically the same rates that prevailed on the other roads in the State. But let us see. The Southern railway seems to have two sets of rates, one applying to that portion of the road between Alexandria and Danville, which is prac- tically the same as the Chesapeake and Ohio; that set of rates applying to the portion of the road from West Point to Danville and from Norfolk to Danville being consider- ably higher. Now, in making my comparison of rates in Virginia, North Carolina and Georgia, I shall take the rates on the lines of the Southern railway from Norfolk to Danville and from West Point to Danville. Let us see the differences, as they exist. For 10 miles on the Chesapeake and Ohio railroad, the rates first-class is 16 cents; second class, 12 cents; third class, 10 cents; fourth class, 8 cents; fifth class, 6 cents; sixth class, 4 cents, per hundred pounds. For 10 miles on the Southern railway, from Alexandria to Danville, being nearly the same: First class, 16 cents; second class, 13 cents; third class, 11 cents; fourth class, 9 cents; fifth class, 7 cents; sixth class, 6 cents, per hundred pounds. For 10 miles on the road from West Point to Danville and from Norfolk to Danville the rates are: First class, 21 cents; second class, 17 cents; third class, 15 cents; fourth class, 12 cents; fifth class, 10 cents; sixth class, 8 cents, per hundred pounds. I will now turn to the 50-mile distance and w^e will see the same thing running all through. On the Chesapeake and Ohio road, for the 50-mile distance, the rates are: First class, 28 cents; second class, 22 cents; third class, 18 cents; fourth class, 13 cents; fifth class, 10 cents; sixth class, 6 cents, per hundred pounds. On the Southern railway, between Alexandria and Danville, the rates are: First class, 30 cents; second class, 24 cents, third class, 19 cents; fourth class, 16 cents; fifth class, 14 cents; sixth class, 10 cents, per hundred pounds. On the Southern railway, between West Point and Danville and Norfolk and Dan- ville, the rates are: First class, 42 cents; second class, 38 cents; third class, 33 cents; fourth class, 24 cents; fifth class, 21 cents; sixth class, 16 cents, per hundred pounds. I omitted, when I was directing your attention to the other table of rates, to mention the rates in North Carolina and Georgia, which I will take up. In North Carolina the rates, for a distance of 10 miles are: First class, 18 cents; second class. 2262 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 13 cents; third class, 11 cents; fourth class, 9 cents, fifth class, 8 cents; sixth class, 7 cents, per hundred pounds. In Georgia, for the same distance, the rates are: First class, 20 cents; second class, 18 cents; third class, 16 cents; fourth class, 13 cents; fifth class, 11 cents; sixth class, 10 cents, per hundred pounds. In those States, North Carolina and Georgia, for a distance of fifty miles, the rates are: In North Carolina: First class, 36 cents; second class, 28 cents; third class, 24 cents; fourth class, 20 cents; fifth class, 15 cents; sixth class, 12 cents. In Georgia the rates are: First class, 38 cents, second class, 34 cents; third class, 31 cents; fourth class, 28 cents; fifth class, 23 cents; sixth class, 16 cents. I will now pass from the classified rates, although I could give other instances, from five miles up to 300 miles; but I do not care to burden you with figures, involved in a comparison of the commodity rates. Mr. O'FIaherty: What do you refer to when you speak of "commodity rates"? Mr. Stebbins: I mean the rates on such articles as bacon, flour, corn, hay, lumber, etc. In making this comparison of the commodity rates, I wish to say that the Ches- apeake and Ohio has a carload rate and a rate for less than carload lots — the car- load rate, of course, being lower than the one for less than carload lots. All of the roads south of Virginia have but one rate, which applies to both carload and less than carload lots, irrespective of quantity. The figures used by the gentleman from Fauquier were the carload rates, and by an error in the stenographic report, it said they were less than carload rates. When I made up my statement, thinking that he had fallen into the error of using carload rates Vv^hen he intended to use less than carload rates, I made my figures on less than carload rates, also stating the rate which he had mentioned, which are the carload rates. Mr. Hunton: Do you mean to make that statement as to the tables used by me, of your own knowledge? You have made a very broad statement about the figures in the table used by me. Now, I ask if you make that statement of fact upon your own knowledge, or upon information derived from others? Mr, Stebbins: Well, it is both from information derived from others and from an examination of the table on my part. Mr. Hunton: I ask the question, because I do not know of my own knowledge; but from the information that I have received, the facts are very different from those which you have stated. Mr. Stebbins: In what respect? I should be very glad to set myself right if I have made a misstatement. Mr. Hunton: In this respect — I expect to have the information in a more definite shape soon — but in this respect, as I understand. I will give it more definitely, of course, when I get it more fully. The commodity rates in the figures given by me in the comparison of the Chesapeake and Ohio rates were carload rates in Virginia, and in North Carolina, South Carolina and Georgia. In the classified rates as to the fifth and sixth classes, I believe, and the fourth — 'I will not undertake to be accurate — but in the first, second and third they were carload rates, and less than carload rates, both in Virginia and in those three States. And those rates embraced the articles in common use and common transportation in Virginia as well as in those States — namely, dry goods and those articles that were named by me when I referred to the table; so that as to the first, second and third classes, as I understand it, the comparison was on the carload and less than carload lots in all four States. Mr. Stebbins: The classified rates? Mr. Hunton: I did not say that. I say, as to the classified rates of the first, second and third classes, they were as to carload and less than carload lots in all four States. DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. 2263 But as to commodity articles in carload lots, tlie rates in all four States are the same. Tiiat is my information. Mr. Stebbins: I think I can make myself clear, and it is certainly my intention to be exactly and perfectly fair. ]Mr. Hunton: The gentleman from Pittsylvania (Mr. Withers) suggested to me that very question on yesterday privately. At once I went to the same source from which I had gotten my information. If that information had been misleading to this house, or had been in corroboration of my position, in either event, I should have given it to the house. If it had been misleading I should have been extremely and excessively annoyed. My information, however, is that the basis of comparison is practically the same, that upon the goods enumerated — dry goods, boots, shoes, sugar, molasses — it is identical, and that as to the commoditj' rates, that they were for carload lots in both cases. As soon as my friend suggested that, as I say, I went to the source from which I had derived my information, and I expect to get it in a more definite form than I have presented it at this moment, Mr. Stebbins: Did I understand you to say that the classified rates were for car- loads and less than carloads? Of course, they have no separate rates for carloads and less than carloads. Mr. Hunton: I cannot undertake to deal technically with language in this mat- ter, because I am not familiar with the technique of rates; but I mean to say this, that upon the commodity rates — rates upon grain, flour, etc. — it was for carload lots in all four States, and upon the classified rate in classes 1, 2 and 3 they were for carload lots and less than carload lots in all four States, and, therefore, were a proper basis for comparison. The classified rates, as I understand of the first, second and third classes, embrace the items of general traffic within the borders of Virginia, such as dry goods, boots, shoes, sugar, molasses, etc. The rates in the fourth, fifth and sixth class I do not think were for less than carload lots in Virginia, but they were as to articles that fall in the fourth, fifth and sixth classes that are not of usual or large transportation in Virginia, as I understand. Mr. Stebbins: I will say to the gentleman, that as far as my information and experience goes, classified rates always apply to any qllantit3^ That there is no dif- ference between a carload and less than a carload in those classified rates. I will also say that I am still of the opinion, from the best information that I have been able to obtain, and if the gentleman's information is different, I will very cheerfully acknow- ledge my error when he brings it in — that in the States south of Virginia they do not have but one rate for carloads and less than carloads. I think if the gentleman will go to his table, and to the gentleman from whom he got his information, he will find that the rates on the Chesapeake and Ohio are car- load rates and the rates for the other States are either carload rates or less lhan car- load rates, for they have but one rate. Mr. Hunton: I have already gone to the gentleman from vrhom I got my informa- tion, and my information is that that is not correct. I asked them to put it in the shape of a letter, so that I might give it in that more certain form, rather than to depend upon uncertain human recollection. I have not received the letter, but I have just sent to my office to see whether it has been received there. Mr. Stebbins: Now Mr. Chairman, I will reserve the right, if I desire to do so, to print this whole table. I am not going to burden you with any more figures than I can help. I am simply going to take the distances and the commodities that the gentleman from Fauquier used in his illustration on Wednesdaj^ As I stated previously, having discovered in an examination of his speech, that he said he was using less than carload rates, I found that he was actually using carload rates, and I inserted under the head of the correct rates, the less than carload rates on the Chesapeake and Ohio. Whenever I use that term " the correct rate," I hope the committee will understand that it means less than carload rates by the Chesapeake and Ohio tariff. I think fur- 2264 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. ther that the comparison is just between less than carload rates on the Chesapeake and Ohio and the rates that prevail in the South, which apply irrespective of quantity, be- cause the great mass of local shippers ship in less quantities than carloads. It is only the large wholesale merchants who receive any commodity in carload lots, and that generally from beyond the borders of the State, which is interstate commerce. The gentleman from Fauquier stated the rates on bacon to be 8 cents for 10 miles in Virginia and 9 cents in Georgia. On the Southern railway, for the same distance, the rates in Virginia are 9 cents and in North Carolina 6 cents. For 50 miles he stated the rate in Virginia to be 13 cents and in Georgia 14 cents. The Southern railway rate in Virginia is 16 cents and in North Carolina 12 cents. For 100 miles he stated the rate in Virginia to be 18 cents and in Georgia 20 cents. For the same distance the Southern railway rate in Virginia is 21 cents and in North Carolina 17 cents. For 140 miles he states the rate in Virginia to be 21 cents and in Georgia 24 cents. The Southern railway rate in Virginia is 21 cents and in North Carolina 19 cents. He states the rate for 200 miles to be in Virginia 24 cents and in Georgia 30 cents. The Southern railway rate in Virginia is 23 cents and in North Carolina 22 cents. For 250 miles he states the rate in Virginia to be 24 cents and in Georgia 33 cents. The rate of the Southern railway in Virginia is 25 cents and in North Carolina 24 cents. It will, therefore, be seen that the rates in North Carolina are lower, in all instances named, up to and including 200 miles, while for 250 miles the rate in North Carolina is no higher than the Virginia rate. On this commodity the Southern railway rates in Virginia are, for nearly all of the distances, higher than the Chesapeake and Ohio rates in Virginia, and up to the distance of 100 miles they are higher than the Georgia rate. The next item referred to by the gentleman from Fauquier is flour. He states that the rate for ten miles in Virginia is 4 cents and in Georgia 5 3-4 cents. The correct rate in Virginia — and mark you, I call your attention again to the fact that whenever I use that term it means the less than carload rates on the Chesapeake and Ohio rail- road — is 6 cents, while the Southern railway rate is 8 cents, and the rate in North Caro- lina G cents. Mr. Hunton: Do I understand the gentleman to say that the rate given here by the Chesapeake and Ohio of 4 cents on flour for 10 miles is not correct? Mr. Stebbins: I say that is the carload rate, and I am giving the less than carload rate. I have prepared this statement after reading his speech, in which there is a mis- take in the stenographic report. I have explicitly stated to the committee that I wanted them to understand that where I use the term " correct rate " I mean less than carload rates. Mr. Hunton: These are the carload rates on the Chesapeake and Ohio road in Georgia, South Carolina and North Carolina, as *I am informed. Mr. Stebbins: It is very hard for me to satisfy the gentleman. I had distinctly stated to him that, so far as my information goes, they have but one rate south of Vir- ginia, irrespective of quantity. When he gets his information, if it differs from mine, I said I would get up on this floor and disclaim everything I have said in that particu- lar. I have tried to be very plain and explicit in regard to this matter, but it seems very hard for us to understand each other. For 50 miles he states the rate in Virginia to be G cents, which is the carload rate, and in Georgia 8 3-4 cents; while the correct rate — and again I say by the "correct rate " I mean the less than carload rate on the Chesapeake and Ohio — is 10 cents in Virginia. The Southern railway rate in Virginia is 14 cents and in North Carolina 11 cents. For 100 miles he states the rate in Virginia to be 10 cents and in Georgia 11 1-2 cents, while the correct rate in Virginia — hj which I mean, gentlemen, the less than DEBATES OF THE COXSTITUTIOXAL COXVEXa.IOX OF VIRGIXnA. 2265 carload rate of the Chesapeake and Ohio — is 16 cents, and the Southern railway rate in Virginia 18 cents and in North Carolina 14 cents. For 140 miles he states the rate in Virginia to be 12 cents and in Georgia 13 cents. The correct rate — and I hope by this time the committee will understand what I mean when I use that term — is 17 cents, while the Southern railway rate in Virginia is 18 and in North Carolina 16 cents. For 200 miles he states the rate in Virginia to be 15 cents and in Georgia 16i cents; while the correct rate — and I hope the committee understands what I mean by that — in Virginia is 18 cents and in Georgia 16 cents, the Southern railway rate in Georgia being 19 cents and in North Carolina 19 cents. For 250 miles he states the rate in Virginia to be 15 cents and in Georgia 19 cents. The correct rate in Virginia is IS cents, and the Southern railway rate in Virginia is 21 cents and in North Carolina 22 cents. The gentleman from Fauquier next refers to the rates in grain. I wish to distinctly state to the committee that I shall use the same term, " the correct rate," which means less than carload rates on the Chesapeake and Ohio. For 10 miles he states the rate to be 4 cents and in Georgia 5 cents. The correct rate in Virginia is 6 cents, while the Southern railway rate in Virginia is 7 cents and in North Carolina 5 cents. For 50 miles he states the rate in Virginia to be 6 cents and in Georgia 8 cents. The correct rate in Virginia is 10 cents, while the Southern railway rate in Virginia is 12 cents and in North Carolina 9 cents. For 100 miles he states the rate in Virginia to be 10 cents and in Georgia 11 cents. The correct rate in Virginia is 16 cents, while the Southern railway rate in Georgia is 10 cents and in North Carolina 12 cents. For 140 miles he states the rate in Virginia to be 12 cents and in Georgia 13 cents. The correct rate in Virginia is 17 cents, while the Southern railway rate in Virginia is 15 cents and in North Carolina 14 cents. For 200 miles he states the rate in Virginia to be 15 cents and in Georgia 15i cents. The correct rate in Virginia is 18 cents, and the Southern railway rate in Virginia is 18 cents and in North Carolina 16 cents. For 250 miles he states the rate in Virginia to be 15 cents and in Georgia IS cents. The correct rate in Virginia is IS cents, while the Southern railway rate in Virginia is 19 cents and in North Carolina IS cents. Now, Mr. Chairman, something was said about the rates on lumber, which is a thing entering into the consumption of every man. I will make a brief comparison of the rates on lumber, taking only a few of the distances. The rate on the Chesapeake and Ohio for 10 miles is 3 cents, while the Southern railway rate — I mean the maximum rate on the roads from Norfolk to Danville and West Point to Danville — is 4J cents. In North Carolina the rate is 2.7 cents and in Georgia 2 1-12 cents. For 50 miles the rate on lumber by the Chesapeake and Ohio is 6 cents, while on the Southern railway in Virginia it is 6J cents, in North Carolina 5 cents and in Georgia 41 cents. For 100 miles the Chesapeake and Ohio is 9 cents, the Southern railway rate in Virginia is 10 cents, in North Carolina 6 2-3 cents and in Georgia 5.8 cents. For 150 miles the Chesapeake and Ohio rate is 12 cents, the Southern railway rate in Virginia is 10 3-4 cents, in North Carolina it is 7.9 cents and in Georgia 7 1-4 cents. For 200 miles the Chesapeake and Ohio rate is 13J cents, the Southern railway rate in Virginia is 11 3-4 cents, in North Carolina 8 3-4 and in Georgia 8 1-3. Novr, Mr. Chairman, I think I have demonstrated several things — that the tariff of rates which the gentleman from Fauquier used in his speech on yesterday is not com- parative, uniform tariff existing among the railroads of Virginia to-day. Mr. Meredith: Would you be so kind as to tell us where you got your figures, so as to let us feel they are authoritative? I do not mean to dispute them, of course. Mr. Stebbins: I have no hesitation in the world about it. These figures were com- 143— Const. Deb. 2266 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. piled for me by Mr. Goodman, who has charge of the traffic bureau of the Chamber of Commerce of Richmond. He states in a note attached to them the exact tariffs from which they are talten, so that there can be no trouble in definitely locating any errors and investigating by any one who sees proper to do so. Mr. Meredith: They are papers, then, that can be obtained by any one who desires to criticise them? Mr. Stebbins: Yes; they can be easily obtained; and, if necessary, I shall give this paper to the secretary as a document of the Convention. I have demonstrated that the proper comparison to make with States south of Vir- ginia is by the Southern railway rates, because it has the same classification and has roads running into those States. Now, what is the result? Do North Carolina and Georgia lose by the comparison? And where is the argument that, without any control of the railroads in Virginia, in their generosity and beneficence, they have given to Virginia lower rates than pertain in the States south of us, that have railroad commissions? Why sir, the gentleman became so enthusiastic that he felt we were vanquished, and in his magnanimity over his expected victory, he even felt sorry for the loss of the satchel of the gentleman from Danville (Mr. Withers). Mr. Chairman, railroad rates and classifications are sometimes things that laymen can handle to better advantage than astute attorneys. Mr. Chairman, I will now merely refer for a moment to some local rates on hay, which is a commodity in Vv^hich a great many people are interested, and I suppose there is hardly a way freight that goes out from Richmond or any other city of the Common- wealth that does not have some of this commodity on it. These are the local rates on the Chesapeake and Ohio railroad under a tariff issued July 15, 1901: For 10 miles, 10 cents. For 50 miles, 18 cents. For 100 miles, 27 cents. For 140 miles, 30 cents. I have them for all the distances, but I do not care to cumber the record with unnecessary figures. That is a fair average. Mr. Chairman, there is one other matter to which I wish to refer, and which had almost escaped my mind. I recall now that the gentleman, in introducing his table of rates, called attention to the fact that they showed the rates for 1891 and the rates for 1901, ana for fear I may misquote, I shall read his own language: I am going to deal with the rates now in effect in the State of Virginia, and under- take to demonstrate to this body that the people of Virginia have been fairly dealt with by these transportation companies. I ^am not going to confine it to the present, but I am going to confine it to the past, and show that v/ithout regulation, without legisla- tive interference, and without commissions to control and manage the roads, rates in Virginia to-day are lower than they were ten years ago. The inference I draw from that language — and if I am incorrect, I hope the gentle- man will correct me — is that a spirit of liberality has animated these railroads all the time, and that there has been a continual reduction of rates, as they were able to put them into effect, during the past ten years from 1891 to 1901. But, Mr. Chairman, what are the facts? The same rates obtained from 1891 to July 15, 1901, and the new tariff which is being quoted here as of 1901 was put into effect on July 15th of that year. Mr. James W. Gordon: A while ago a gentleman asked where you had gotten your information as to these rates, and I ask you to allow me to interrupt you now for the purpose of getting in the record what I believe to be the fact in regard to it. Is it not true that from time to time all the railroad companies issue pamphlets containing their classification of rates, together with the rates, and under the classification the articles DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OE VIRGIXIA. 2267 embraced in the various classes, and is it not a fact that your information was compiled by Mr. Goodman from that table furnished by the railroad companies? Mr. Stebbins: Official tables of the companies, on file in the traffic bureau of the Chamber of Commerce. Mr. Braxton: Did I understand you to say just now, before the gentleman from Richmond (Mr. Gordon) interrupted you, that the rates which were quoted by the gen- tleman from Fauquier the other day — that the rates obtaining in this Stare in 1901 — were rates which had gone into effect since this Convention has been in session? Mr. Stebbins: July 15, 1901. Mr. Braxton: And that the other rates had remained the same from 1891 dov/n to the time the session of this Convention began? Mr. Stebbins: Yes, sir; there might have been some slight modification, but the same tariff has been in existence from 1891 to 1901. Mr. Chairman, and gentlemen of the committee, I have stated that the demand for this commission came from the business interests of the State, that it largely grew out of the fact that the present commission is incompetent to deal with the present situa- tion. I now ask, is there not a demand higher than these appeals which come up from the people? We stand as sentinels on the watch tower to note the approach of danger and warn the people thereof. Aye, more — to prepare a defense for the people before the storm breaks upon their heads. We are supposed to be statesmen and patriots, able to discern the signs of the times and the trend of events. The National government realized some years ago that the railroads must be regulated in interstate commerce, and while the interstate commerce law is very imperfect, I have no doubt but that in the course of time such amendments vvill be made as will bring it up to the highest efficiency. The progressive States of the Union have determined that the rail- roads must be dealt with by commissioners in intrastate commerce, and nineteen States have commissioners with powers similar to those proposed by the committee. The argument that was formerly used by the railroads against these commissions was that competition would regulate rates. This argument is a thing of the past. It is a fallacy. Now there is no competition scarcely. We have seen what were once our local roads from city to city combined in great systems, and we know that these great systems, especially those that are paralled to each other, are largely operated now under what is known as the " community of interest " plan. The chairman of this committee, in his opening address stated that about 100,000 miles of the 180,000 niiles of railroad in the United States are controlled, I believe, by five capitalists. It is commonly stated, and I suppose it is a fact — it has never been denied, so far as I know — that the Penn- sylvania Railroad company owns a controlling interest in the Baltimore and Ohio, the Chesapeake and Ohio and the Norfolk and Western railways, and we have seen the effect of this in the coal situation, to which I have heretofore referred. This effect is also seen in the passenger rates, for I understand that before this arrangement round trip tickets fi'om Norfolk to Richmond were $3.50, and to-day they are $4.50. This possibly may not be any more than they should be, but we see how they can, by combining interests, arbitrarily make these rates what they please; and the gentleman from Man- chester TMr. Ingram) read a letter on this floor as a part of his remarks on day before yesterday from a prominent business man of the State in which he said the rates of freight had been increased 50 per cent, under the community of interest. Shall we, as wise master builders, prepare now to protect the people against these great combinations, or shall we wait until they have us fast in their coils and we are powerless to help ourselves? Unless we act now, I fear it will be too late. Each year they become stronger, and we become less able to oppose them. The gentleman from Fauquier has drawn upon his imagination for some of the most remarkable illustrations I have ever heard to show how this railroad commission might oppress the railroads. He says, for instance, that if the distinguished representative from Russell (Mr. Stuart) should think he had some mineral ore twenty miles from 2268 DEBATES or THE CONSTITUTIONAL CONVENTION OF VIRGINIA. a railroad, and he should want them to build a spur to it, and they should investigate and find the ore y^as not in paying quantities, and he should come before the commission, they would compel the railroad to build that twenty miles of track to his minerals. Then he says there are two roads from here to Petersburg, the Richmond and Petersburg and the Seaboard Air Line, and that the newspapers say there is going to be another, an electric road, and the commission could compel the Richmond and Petersburg to adopt such a schedule of trains as would make it unpopular and throw all that travel on the Seaboard Air Line; or they could compel the two steam railroads to make schedules that would be so unpopular with the people and so little suited to their convenience, that they could throw all the passenger traffic on the electric line. Why, gentlemen, is there anything more far-fetched and absurd than such propositions as these? If wo had commissioners who would do such things the people would repudiate them, and the railroads are protected by appeal from their regulations, and the Legislature can enact, by general laws, regulations for their government by the commission. Now, Mr. Chairman, I am going to revert to an incident that was mentioned by the distinguished attorney, Mr. Baxter, who appeared before the Committee on Corporations, in behalf of the railroads. He objected to that clause in the report which did not per- mit a railroad to make any special rate without first consulting the commission, and in support of that contention he mentioned an incident that had but recently been given to him by Mr. Davant, the general freight agent of the Norfolk and Western railway. I will read from Mr. Baxter's speech: The tendency of the long and short haul clause will be to drive Virginia lines out of a certairi amount of competitive business. It will have that effect to a certainty. Mr. Davant, of the Norfolk and Western railroad, told me the other day that this case occurred with him. A person desired to erect a building requiring a large amount of brick, at Bristol, on the line between Tennessee and Virginia. Brick, of a certain price, could be brought from a certain station on the Southern railway in Tennessee to Bris- tol at a certain rate. A man who manufactured brick at Pulaski, Va., desired the Nor- folk and Western railroad to make him a rate on brick from Pulaski to Bristol, that would enable him to move the bricks from Pulaski to Bristol, in competition with the Tennessee brick, that could be brought to Bristol by the Southern railway. Mr. Davant saw that the movement of those bricks would pay something more than it would actually cost him to move them — he would make something by it; it might be very little, but whatever it might be he wanted to make it — and accordingly he gave a rate which enabled the Virginia manufacturer to market his product in competition with the Ten- nessee manufacturer. In doing so, Mr. Davant hurt no one; and yet, if he had been told that he must not haul that brick from Pulsaki to Bristol to meet the Tennessee competi- tion at Bristol, unless he reduced all his intermediate rates between Pulaski and Bristol to the level of said competitive rate, he would have been compelled to say to the Virginia manufacturer. "I cannot give you a rate that will enable you to sell your bricks in Bristol, because I cannot afford to haul all my intermediate traffic at that rate. I can meet the competition at Bristol, if I am permitted to do so without reducing my inter- mediate rates, but I cannot meet it if I am compelled to reduce my intermediate rates." If your proposed ordinance had been in effect, the result would have been that Mr. Davant would have been compelled to say to the Virginia manufacturer, " I cannot carry your traffic " The Chairman: But does not the clause authorizing the commission to permit reduced rates in cases of competition meet that difficulty? Mr. Baxter: Theoretically it would, but practically it would not. The Chairman.: Why not practically? Mr. Baxter. Because by the time Mr. Davant could have communicated the situa- tion of affairs to the railroad commission, and gotten permission to take those bricks at the competitive rates, the traffic would have been secured by the Southern railway and the Tennessee manufacturer would have secured the contract. Mr. Chairman, I have only referred to this to show that if any one has ever ap- plied to a railroad for a special rate they will know that the railroad does not hurry to the telegraph key to give it lo him at once. They investigate, to know whether the facts stated by the applicant are true, and as a general thing they do not give the rate DEBATES OE THE COXSTITUTIOXAE COXVEXTIOX OE VIRGIXIA. 2269 he asks for, unless they liave made an effort to get a better rate out of him and cannot succeed. No^v, as to the time talien to refer this matter to the commission, it is absurd to say ihat in the majority of cases it would be so long as to prevent the railroad from securing that competitive business. I am a little familiar v^-ith the facts in this par- ticular case, and for that reason I mentioned it to prove my contention. The facts are that it took seven or eight days for the party to obtain that rate. He wrote tv,-o letters to Roanoke, and correspondence would not get it, and he got on the cars and went to Roanoke and had a personal interview with the general freight agent before he could secure it. That is the way they hurry to make special rates, and that argument by the distinguished Mr. Baxter, and the illustration which he innocently gave, because he was not fully informed of all the facts. I reckon, is on a par with many other arguments made against a railroad commission. :slv. Chairman, I am not going into all the discussion we have had on this floor on this subject. We have all heard the changes rung on the old stock arguments, that it will drive capital out of the State and not another mile of railroad will be built — things that might scare very timid men, nervous women and children, but would hardly affect a man with a brain and backbone; and I am not going into that. There is one more point I want to notice in the arguments of the gentlemen on the other side. They say that if this report is adopted it will confiscate and bankrupt the railroads. It is astonishing to me how some men continually look through blue goggles. Nineteen States have commissions with great powers, and the railroads have prospered. They have prospered equally as much as they have prospered in Virginia, where they have had everything their own way. The arguments of these gentlemen can only be reconciled on the ground that they are assuming that the commissioners will be either incompetent or corrupt, and to assume such a thing is a reflection upon the intelligence and honor of the people of Virginia. I believe that the great masses of the people are honest. I believe they want nothing but^'^act and equal justice meted out to the rail- roads. I do not believe that a man whom the people of Virgina would elect to the exalted position of governor would appoint to this high and responsible post, nor that the General Assembly would confirm, any but men fully qualified for the work, of unim- peachable character and judgment, who would administer the office without favor or partiality, but with a just regard to the rights of the people and of the railroads. It has been the glory of Virginia that her courts have been presided over by incorruptible judges. In my experience I cannot recall — layman though I may be — a single instance in which the integrity of purpose of a single one of her judges has been questioned. When this new court shall have been established to deal solely with the regulation and control of corporations, it will oe found to be as competent and above reproach as our present Court of Appeals. Mr. Chairman and gentlemen of the committee, I thank you for the patient hearing which you have given me. I am not going to detain yoti with any brilliant peroration.' I simply rose as a plain citizen, a business man, to state facts, and with those facts lodged in your minds I leave the case to you to judge whether or not the majority report should be adopted. (Great applause.) Mr. Withers: INIr. Chairman, the condition of my voice is such that I shall have to ask the members of the committee to patiently bear with me in what I shall have to say. It has been my misfortune, Mr. Chairman, and it has been the good fortune of this Convention, to have whatever speeches I have had the honor to deliver before it, spoken on Friday or Saturday, with one solitary exception, so that they were an inflic- tion and burden on but few of the members of this Convention. I would not speak to-day — I say it with the utmost frankness — to so small a membership of this body; not that I have the personal egotism to expect a large membership or anybody to hear me speak — were it not for the fact that I have. ^Ir. Chairman, some facts that I believe the members of this Virginia Constitutional Convention ought to know. 22,70 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. I believe that the people of Virginia ought to know these facts, and it is the first time in eight years that I have had the means and opportunity of getting these facts before the people of Virginia, because when the attempt has been made by me in the Senate of Virginia the newspapers of Virginia would not publish the facts that were given, and authoritatively given. Now, the press of Virginia is bound to know these facts, because, presumably, they will appear in the official record and report of this Convention. But for the fact, Mr. Chairman, that I shall discuss only the question as to the necessity of a corporation commission, which has been treated only by the mem- ber from Halifax, I will not speak at all, because the chairman of this committee (Mr. Braxton), the gentleman from Manchester (Mr. Ingram) and the gentleman from North- ampton (Mr. Kendall) have so ably, elaborately, fully, and, to my mind, satisfactorily, argued the general principles and the law and equity of the question. If I recollect aright, it has been asked on the floor of this Convention: '* What reason, what facts exist to justify the creation of a corporation commission?" The Richmond News, in a very temperate and very fair editoral. said that it was but just that the people of Virginia should know why this measure was asked for, that the con- ditions and circumstances that justify the Constitutional Convention in undertaking what is comparatively a new step in constitutional enactment, should be known, and that the people of Virginia might demand and have the right to know why such a step was taken by this body, and what facts there were, and what conditions there were to justify this body in taking that step. That, Mr. Chairman, I regard as a fair request. That I regard as but due to those who are doubtful about the wisdom and propriety of such a measure as this. They ought to know why those of us who advocate if, do ad- vocate it, and insist upon its enactment into the fundamental law of this State. There- fore, Mr. Chairman, I shall treat this question and discuss it only from the point of the necessity for the creation of such a tribunal. I shall not consider the general principles underlying this admirable report of the committee — of course I speak of the majority report. I shall not consider and discuss the legal and equitable principles that underlie and are the foundation upon which this report has been based by the gentlemen who have brought it into this Convention for discussion in Committee of the Whole; but I shall treat the discussion from the standpoint of necessity for the creation and existence of a body that shall have the right to say to the public service corporations of Virginia. " Thus far shalt thou go, and no farther," in the extortions and exactions that you may have chosen to put upon the people of Virginia. I hope, therefore, the line of what I have to say has been marked out. I shall cite but one law authority. I shall appeal to but one general principle; but I shall state facts to this Constitutional Convention duly proved in a court, and duly admitted by a corporation, which signed its answer through a gentleman who appeared in opposition to this bill before the Corporation Committee of this Convention, many of which facts are admitted in the sworn testimony of the general traffic manager of one of the leading railroad systems of this United States. Nobody knows of those facts except those who were interested, unless possibly it be merchants against whom the discriminations were made, and the dealers from whom they buy. You cannot, apparently, get these facts into the press. You cannot let the people of Virginia know what they are suffering from and what burdens are imposed upon them. Mr. Chairman, my distinguished and esteemed friend from Fauquier (Mr. Hunton), usually so happy in language, expression, diction and dialectics, as well as argument and reason, seemed to me to be felicitously unhappy in most of the things he said in arguing this question before this committee. My distinguished friend from Fauquier, although I had said not one word about this report, did me the honor to give me some attention in the course of his remarks. He spoke of me as " the gentleman from North Carolina." Mr. Chairman, it is true that I had the honor to be born in the State of North Caro- lina, and I can say, as one reasonably familiar with her history, that there is nothing DEBATES OF THE COXSTITUTIOis'AL CONYENTIOX OF VIRGINIA. 2271 in its record, from the time that the Regulators of Alamance made the British soldiers fly before them, before the tocsin of war had sounded for the Revolution, down to the time that five thousand of them surrendered with Robert E. Lee at Appomattox, to make me ashamed of the fact that God Almightj^ in his v/isdom, had allowed me to be born in North Carolina. (Applause.) So I shall pass that by. My distinguished friend from Fauquier I have known for eight years, and I could appeal to his illustrious father, who knov/s well the truth of what I say with reference to gallantry of the men of North Carolina in the State of Virginia during the Civil War. It is true, Mr. Chairman, that I have known the gentleman for eight years. I formed his acquaintance in the session of 1893-'94, when I had the honor of serving with him in the House of Delegates. I esteemed him for his personality and for his intellectuality. He speaks with truth, when he says in substance, that I stood nearly alone in that Leg- islature. I think possibly he puts it a little too strong when he says that I have com- plained of the Legislature and of the judiciary, and of the railroads and of everybody except some statistics that I happen to have compiled in North Carolina, the most of which I have not lost. But I v/ant to say he v/as felicitously unhappy in that regard, because, Mr. Chairman, wherein I stood alone in that General Assembly of Virginia, was on the employers' liability bill and one or two similar measures. I stood nearly alone in the session of 1895-'96 in the Senate of Virginia. I stood with five or six other gentlemen in the session of 1897-'98 in the Senate of Virginia, and saw the employers' liability bill go down for the fourth time, and yet, to-day, both of the great parties of Virginia have as a plank in their platforms, an imperative demand that a just and equit- able employers' liability bill shall be enacted into law. If I have complained of the courts, the party platforms condemn them. Who is alone now. The gentleman was felicitously unhappy in his allusions to other questions, in which I had the honor to be more or less interested. Before I came to the General Assembly of Virginia I heard of the great fight over the Kent bill, which was displaced by that eunuch bill, known as the Mason bill, above nothing and below nothing, so far as effec- tiveness and efficiency are concerned. As a member of the General Assembly of Virginia I have introduced two corporation commission bills for the purpose of having them enacted into law by the power that these gentlemen submit should enact them, and they sleep the sleep that knows no waking in the Senate Committee on Roads, from whence they never got to the light of day. That the employers' liability bill and the railway commission bill, copied almost literally in one instance from the North Carolina commission bill, v»'hich has been some- what extolled upon this floor as being ineflicient and ineffective, and indirectly as some- what drastic, in another sentence or clause possibly of another speech — those of us who might be called the Spartan band of the General Assembly, standing against the Persian hosts in that body, saw those bills drawn out amidst the scoffs and jeers of the gentle- men who now seem to have seen the light of day and recognize the infinite wisdom of the employers' liability bill and the railway corporations commission bill, but cannot see why they should be put into the organic law of the State. My friend's felicitous unhappiness continued. I really think the gaudiun cer- taminis, as I believe it was styled by the ancients, caused him to give utterance to the remarkable closing sentence of his speech, I read one or two sentences therefrom: "Think you not, should this instrument be submitted to the present, or a restricted electorate, with these radical and uncalled-for provisions in it, that these corporations would not furnish the money and the brains to marshall all the dissatisfied people of the State against this Constitution, to prevent its ratification by the people when sub- mitted to them?" Array the dissatisfied elements! What are they? These gentlemen argue for conservatism and tell us that these corporations ought not to be put into the mad vortex and whirlwind and tornado of populism. Why, Mr. Chairman, if I may be permitted to indulge in a little good-natured raillery, uttered in all respect, the report of the majority of this Committee on Corporations 2272 DEBATES OF THE CON STITUTIOi^AL CONVENTION OF VIRGINIA. seems to have caused certain papers and certain gentlemen on this floor to have an attack of intellectual jimjams. Certainly some distinguished members of this Conven- tion have been " seein' things at night," suffering not from mania a potu, but from mania a corporatione, and so acute has it been that the friends of anarchy, the devils of populism and the serpents of radicalism have been threatening these esteemed gentle- men until they seem to consider their very lives in danger. " Seein' things at night! " Eugene Field wrote the most remarkable little poem about the little boy who ate mince-pie, and he saw things at night that were "P'inting at him so." (Laughter.) I want to assure these distinguished gentlemen that those of us who advocate this bill have none of the horrors that they predict in store for them. I want to tell them something more, that the arguments they have used here on this floor against this bill are the arguments used in North Carolina, in Georgia and in Texas against the enact- ment of their corporation commissions into law. That is my information. I was not present to hear it. They have utterly fallen flat, and every one of those three States is more prosperous commercially, industrially, and advancing more along the tide of indus- trial and commercial growth than is old Virginia. Why, the idea of talking about a corporation commission that does not hurt anybody in Texas being injurious in Virginia. They have, in addition to their corporation commission law in that State, a stock and bond law which, if w^e were to propose it in the Legislature of Virginia, would cause wild cries of dismay and horror and righteous indignation; and yet I am informed by the last report of the Texas railway commission, of which John H. Reagan is chair- man, that it has worked with such eminent satisfaction as to prove not only beneficial to the people of the State, but to the railroads themselves, and the bitterest opponents of it have come to regard it as a blessing instead of a curse. So overwhelming, so terrifiic has become this impression, that similar arguments as to stopping the advances of business and commercial industry as have been used before this body are being used before the courts of the land, and they are urged to con- sider the consequences of a decision lest they force certain companies of a certain kind to be so trammeled as to quit business. Mr. Chairman, I want right here to say that I am not an anarchist, that I am a man who believes in law and order, that I never fol- lowed the fanciful banner of populism, that in my community as an humble citizen — and as I am an humble member of the Convention here, so I am an humble citizen there — I have some little interest other than as a lawyer. It has always been my desire and aim, and whenever and wherever I could, I gave what capacity I was capable of giving to that which v>^ould promote the progress and the advancement of my town and my community. I believe that on the question of character, as to populism and anarch- ism, and wild, crazy ideas about destroying corporations, and all that sort of thing, with the exception of possibly two or three citizens of my town who think this bill is just one wild concatenation of all deviltry, I can get as good a character by certificate and affidavit as my friend from Fauquier, or any other distinguished opponent of this measure. For ability, I gladly yield the palm, but for the desire to see my State and my city advance along the path of commercial and industrial development, I believe I am as sincere in desiring to see that as any man upon this floor. Now, what are the needs for this commission? Do the conditions of the people of Virginia need it? Do they require it? Or do they even justify it? It is a fair question. It is a direct challenge that we ought to accept, or not insist upon passing this measure until we can sustain our position; and in doing or attempting to do that, I will, I think, be able to show that my friend from Fauquier was again felicitously unhappy in select- ing the road he did select to compare rates, etc., of another State, and the reasons there- of. Mr. Chairman, weighing carefully the words I use, saying them without passion or prejudice or the excitement of controversy, or the heat, even, of a speaker, for my DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE VIEGIXIA. 2273 voice forbids even tliat manifesration, I stand here to charge that the railway, techni- cally known as the common carriers or transportation companies of this State, have committed high crimes and misdemeanors against its citizens. I stand here to charge, Mr. Chairman, that the railways of A^irginia levy upon and exact from its citizens, many of them, a burden excessive and unjust, that will exceed the amount of State taxa- tion paid hy those communities upon real and personal property, c-apitations and income. I stand here to say that the common carriers of Virginia have, and exercise a power as despotic as that of a Czar, and that I. for one, if despotism is to be lodged somewhere, prefer to lodge it in the duly accredited representatives of the people, and not in a reorganization committee in some office in Wall street. They have not the right to levy upon the industries and manufacturies and business of this Commonwealth a tribute to pay dividends upon bonds or stocks representing nothing but water. They have not the right, untrammeled and unrestrained to decide arbitrarily upon a system of classification and a system of freight and traffic rates that will unduly burden the industries of this State and will prejudice communities in favor of communities, localities in favor of localities, and citizens in favor of citizens. If I can sustain any one of those charges, I submit the necessity for a corporation commission bill is justified. Talk abotit putting it in the Constitution! A fundamental principle: Keep it out of the organic law! King John would have thundered at the barons to keep the right of the writ of habeas corpus out of the organic law. but it is In the organic law in England just as much as if it were written in the blood of its citi- zens on every page of the record of that country. A fundamental principle I The right of trial by jury, by a judgment of one's peers was esteemed by King John a wrong princi- ple to be put in the organic law. though the barons forced him to do it. Fundamental principle.' Freedom of the press, regarded here as one of the sacred rights of man. would be deemed by the Czar and his ministry in Russia to-day an unwise provision to be put in the fundamental law. Fundamental law: Every time you put these gentlemen in a hole they say: "That is all right, but it ought not to be in the fundamental law." Xow, let us see if it ought not. WTiy. Mr. Chairman, if, at Runnymede, or as late as 1776, or as late as 1S29-30. or even as late as 1S50-51. somebody had proposed this provision to go into the fundamental law of England, or of the United States, or of Vir- ginia. I would have agreed with them that it was absolutely improper to put that sort of thing in the fundamental law. There were practically no railroads to control, no common carriers to restrain. No reason existed for the putting into the organic law as a fundamental principle of government that the common carriers, the creatures and the children of the State, should not have despotic powers to levy upon and exact from the people unlimited tribute in the way of rates upon the business of the country. And if, under the' tremendous development of the railroad, canal, steamboat, telephone, tele- graph and express companies of this country; if, under the wonderful power they have acquired under broad franchises and privileges and charters, if, tinder the conditions that surround us now, it is not a fundamental principle that they should be controlled and kept from perpetrating wrongs and extortions upon the people of the community upon whom they lay tribute, and upon the citizens of a country that gives them the right to live, then I fail to know what a fundamental doctrine or a fundamental law is. Fundamental law! Corporations, existing in the State and exacting from the citi- zens of that State in excess of what a judicial tribunal has said to be a just and equit- able freight and traffic rate, exacting from the citizens of a community, a city of a State, a burden greater than the burden of State taxation, in excess of a just and equitable rate are not to be controlled! If it is not a fundamental principle that those people should be protected from exaction and injustice and oppression, then there is no funda- mentality in the right of property and the right of pursuit of happiness. Fundamental law! Is it not in other State constitutions. Vliy not? Because other State constitutions, like ours, in the main, have been made in the past when these evils had not grown so paramount and tremendous, and in addition to that, when other States had by their law. enacted into legislative enactment the relief that the people desired. 22,74 DEBATES OE THE CONSTITUTIONAL CONVENTION OF VIRGINIA. They say the people do not know anything about it. Let us see if they do not. They say the people do not want it. Let us see if they do not. I shall show as I pro- ceed in this speech that the citizens of Virginia have clamored at the door of the Gen- eral Assembly for the right to re-enact a certain section of the Code of Virginia in order that they might file a bill in equity for relief against certain wrongs, and that right was denied. I want to say, gentlemen, that it was not one or two men that did it, but a community. " Oh," they will say, " that is Danville." Yes, and I will say that the op- pressions that apply to Danville, so far as I am informed, apply to every part of Virginia that the " official classification " does not reach, and I will tell you why they adopted the " official classification " before I get through, and exactly why the Chesapeake and Ohio railroad allowed the citizens of Virginia such reductions as they have allowed them, and it was not out of any generosity to the citizens of Virginia, but it was a patriotic motive, spelt " paytriotic," because they had to meet certain conditions that confronted them in northern cities. I want to say to you, Mr. Chairman and gentlemen of the committee, that in pre- senting what I have to say upon this subject it will necessarily be tedious and tiresome, because it embraces the charges made and confessed and testified to by a deposition which I have with me, but I want them in the record, even if they tire you and are laborious to me. The rates that I am going to tell you about, Mr. Chairman, as being charged and admitted and proved, are interstate rates, but the table of the gentleman from Fauquier was largely composed of interstate rates. Now, why do I appeal to interstate rates? I have five good reasons for the appeal and I believe the committee will see the wisdom of my reasons when I state them. I do it, first, because railroads which will discriminate on interstate rates, and by that deliberately violate a law of the United States creating the interstate Commerce Commission, will discriminate on intrastate rates when they practically violate no law in doing so. Second, the figures I have are absolutely authentic. They are admitted in the answer of the Southern railway, signed by W. W. Finley, second vice-president, which I have here with me. Mr Thom: What is the title of the suit? Mr. Withers: The City of Danville vs." The Southern Railway, et als., before the Interstate Commerce Commission, which I will give at length, and they are largely admitted in the sworn deposition of J. M. Culp, general traffic manager of the same sys- tem, who is as great an 'expert upon traffic rates as is my distinguished friend from Fauquier. Now let me tell you why I am so emphatic about their authenticity. The gentle- man from Fauquier and the gentleman from Halifax, I know, will understand that about whatever rates we may get, there are very frequently questions, not in the sense that our honesty would be impugned, any more than we question the rates offered us by the gentleman from Fauquier, or the honesty of the road that furnished them. But the classification in railroads in such a difficult and abstruse matter that it is practically im.possible for an outsider to get a correct statement of rates that he can rely upon unless he has an expert to make the examination for him. Therefore, I fail to be fully armed with intrastate rates as I am with interstate rates and for the reasons just alleged. In addition to that, the city of Danville and its citizens, its Business Men's Association and its Tobacco Association, got the rates that they allege and charge to be facts in their petition, largely by writing to merchants out West from whom they bought goods, and asking for a statement of the rates that the railroads submitted to them. We had to go to all that trouble and all that expense before we could get facts upon which to base our petition. In addition to that, to show that it was a mere demand for justice at the hands of these gentlemen, we had conference after conference with them. We went to Washington city at our own expense to confer with them. We called upon the officials of these railroads and had DEBATES OF THE COXSTITUTIOXAL CONVENTION" OF VIRGINIA. consultations with them and asked for an adjustment, and a fair adjustment, of our freight and traffic conditions. We had conference after conference with them, and when at last we announced our determination to begin a suit before the Interstate Commerce Commission, Mr. Gulp and Mr. Finley and some other gentlemen came to Danville and met the Business Men's Association. The newspapers, the Richmond Times and I think possibly the Dispatch, quoted Mr. Finley as saying before the Corporation's committee that but for the long and short-haul clause of the Interstate Commerce Commission the conditions at Danville could have been remedied. Well they existed before the Interstate Commerce Com- mission w^as created, on February 14, 1887, and they were not remedied. When that delegation came to the city of Danville and had a consultation with the- leading business men of the city in the room of the Business Men's Association, the burden of Mr. Fin- * ley's speech w^as " You cannot have any remedy. You "will have to take what you have got, and if you are not willing to take that you can simply lump it," and we lumped it. I warn this Convention to know that the long and short-haul clause was not in exis- tence when these conditions first existed, and that instead of receiving any offers of conciliation or attempt to adjust we were practically told: "We do not care anything about your complaints. We have got tbe control of every common carrier in this town, and we are going to put upon you just exactly what you will bear," and they did. Now let us get to the proof. Mr. Thorn: On the point that w^hen this case of the city of Danville vs. the South- ren railway arose, the long and short-haul did not exist. Mr. Withers: Oh, no, sir; I said that the long and short-haul of the Interstate Commerce law, which was approved February 14, 1887, did not exist when these condi- tions existed in the beginning at Danville; in other words, that the conditions of which we complained existed in Danville before the long and short-haul clause of the Inter- state Commerce law was enacted into law. This complaint was made in 1899, but the conditions existed in 1886 and prior to that time, and we have been complaining ever since. We went to the Interstate Com- merce Commission in 1887 and 1888 and could not get relief because our petition and bill was improperlj^ framed, and because of some other technical matters; but I want to be understood as saying and reiterating that the conditions existed at Danville" of which it now complains prior to the enactment into law of the long and short-haul clause of the Interstate Commerce law, and. therefore, it could not have anything to do with remedying conditions or giving us relief. I want to read w^hat is a practical indictment of certain railroads here. I read from paragraph 3 of the petition of the City of Danville in that suit: That they have established certain basing or common points in the State of Vir- ginia to which they deliver property transported from the several States aforesaid — Eastern States and Western States — and from which they received property to be transported to the several States aforesaid, for less rates of transportation than they demand and receive for the transportation of similar property, under substantially similar conditions, to and from other points on their line in the State of Virginia. That is, the common or basing points have better rates than other points in the State of Virginia, to which similar commodities are hauled under substantially similar conditions, and that — which is not in the charge — it happens that the Chesapeake and Ohio Railway company has the basing points; hence its patriotic immolation on the altar of its country. After stating that they have less rates at the basing or common points than they have to other points, it goes on to say: The haul and distance to and from said other points being shorter than to the basing or common points, by which the defendants make and give undue and unreasonable preference and advantage to the persons and locality at such basing or common points. 23,76 DEBATES OF THE CONSTITUTIONAL CONVENTION 03? VIRGINIA. And charging at length that this subjects the persons at the other points to unjust discrimination. This section is not admitted by Mr. Pinley in his answer filed for the Southern railway; but now let us see what is said about it. It denies that the defendants have by agreement between them established in the State of Virginia certain basing or common points to which they deliver property trans- ported from the several States aforesaid, and from which they receive property to be transported to the several States aforesaid, for less rates of transportation than they demand and receive for the transportation of similar property under substantially ■similar conditions to and from other points on their lines in the State of Virginia. The denial is largely technical. It is almost entirely technical, from the fact that it was stated, or rather given in evidence by Mr. Gulp, that the Chesapeake and Ohio ' railway, some time in the eighties, established of its own volition certain rates along its lines to which the other rates had to conform; hence, there was lacking in it the element of " agreement " in the formation of a basing or common point. The fourth charge specifies that among these basing or common points are the cities of Lynchburg and Richmond, Virginia, the former located on the Alexandria branch of the Southern, of course, or Virginia Midland railway, and the city of Rich- mond, wherein this Convention holds its sittings. That is also denied. Fourth. That it denies that among the basing or common points established by the defendants, and to which they make and give the preference and advantage in trans- portation as aforesaid, are the cities of Lynchburg and Richmond, Virginia. Then it tells where they are located — And it denies that the Southern Railway company is or ever was known as the Richmond and Danville Railway company — Another technical denial, because I was a member of the Legislature that passed the charter of the Southern Railway company, which took over to itself the privileges and franchises of Uie Richmond and Danville, of the West Point Terminal company. It again makes a technical denial of what was charged by us in that fourth clause- that prior to the acquiring by the Richmond and Danville railway of the old Washing- ton City, Virginia Midland and Great Southern railroad, running from Washington to Alexandria to Danville, we had such rates as these common or basing points now have. I think it will be seen that that denial is largely technical, and it further denies that it had in its possession such documents or papers as would give it the information asked for, or rather, would give it information of what was charged; and yet Mr. Gulp, in order to break the force of that charge, produced certain freight rates prior to the acquisition of the Washington City, Virginia Midland and Great Southern railroad by the Richmond and Danville, in order to show that we did not have those rates. Tlie fifth charge is — and here I do not quote word for word, for abbreviation— that the Southern railway and certain other railways and steamship companies, the Merchants' and Miners', the Old Dominion, the Clyde, Philadelphia and Norfolk, the Baltimore, Chesapeake and Richmond Steamboat company, the Baltimore and Norfolk line, and the Baltimore Steam Packet company, common carriers, &c., engaged in the transportation of property under a common arrangement from New York, Pennsylvania, Maryland and other States, by way of Norfolk or Pinner's Point, Virginia, to the cities of Danville and Lynchburg, Virginia, and from those cities back again by the same route to the Northern cities, " have established and put in force rates of transportation by and under which property is transported by them from said northern and eastern points through the city of Danville to the city of Lynchburg, 66 miles further from the place of shipment than the city of Danville, and delivered for less rates of transporta- tion than similar property under similar conditions and circumstances is transported from said northern and eastern points over the same route and delivered to them by the complainants, the city of Danville and others." DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OE VIRGIXIA. 2277 Now, let us see why it is wise right here to finish the reasons given by me to use these interstate rates as examples of injustice and extortion. As I have already told you, a corporation of a common carrier that will extort, hy using unjust interstate rates in violation of a law will, of course, not hesitate to extort excessive and unjust intra- state rates when it practically violates no law that can be enforced. Lastly, the authenticity of the figures should appeal to the Convention as justifjang us in using them, as a reason to say that the intrastate rates from the scattered instances that 1 will be able to cite to you are just as unjust and excessive as the inter- state rates. Then the third reason. Such authentic data cannot be easily obtained by men in my position. The loss of statistics is indeed a serious thing to me, for common carriers do not stand ready to make out for me at my request long tables that will give me the means of showing that they have been unjust and oppressive in their freight and traffic rates upon the various citizens of the State of Virginia. Fourth, the control of the intrastate rates will be a potential factor in causing a reasonable consideration of complaints about the interstate rates, and no more conclu- sive proof could be adduced than the instance cited by the gentleman from Halifax of the action of the Georgia Railway Commission when coal was arbitrarily raised 25 cents a ton, and the Hon. L. :M. Trammel read his lecture to the common carriers of Georgia, and after it no more was heard about the unjust increase of the coal rate. And again I use the interstate rates, because they have been admitted, both in a formal answer and in a sworn deposition, by those authorized to speak for the corpora- tions, charged of being guilty of the high crimes and misdemeanors against the citizens of Virginia. They have been proved and admitted. The tribunal to which we appealed our case has twice rendered its decision. It first rendered it in our favor, and then, upon a petition from the railroad company for a rehearing, it granted it, and after long depositions by the representatives of the respective roads, confirmed its original judgment and decision and ordered a cessation of those unjust exactions; and yet so little is the power of that commission, so ineffective are its provisions, that though that order was issued more than one year ago. the citizens of Danville have received no relief from their victory, won in the proper forum to which the law referred them^ but they have to go through the long, tedious and costly process of appeal to the dis- trict court, the Circuit Court of Appeals and the Ignited States Supreme Court, before they can get relief. Now, gentlemen of the committee, with these facts before you, with this decision offered for your inspection under that law, I ask you if it is not an overwhelming and decisive reason for not receiving or even considering seriously this minority report which, as I understand it, if v/e had been before it, would leave us just where the Inter- state Commerce Commission has left us and we would have to depend upon the process of a circuit court and a Commonwealth's attorney, or the attorney-general, and then of the Supreme Court of Appeals, before the decision would be worth a baubee to us; and we have the only advantage under the minority report of having less appeals than the Interstate Commerce act gives us, and the disadvantage of not being able to make the Commonwealth, which ought to protect its citizens, bear the burden of seeing that prot0<>tion is afforded, though that power is left to the Legislature, by the minority report. Now, in the face of these facts, in the face of this decision by this tribunal— and its decision will disclose some facts most unhealthy for the paying of dividends on certain sorts of stocks— with these facts proved, with these discriminations admitted, with this burden greater than the burden of State taxation upon the citizens of the great Commonwealth of Virginia, with a verdict rendered and the victory won, we re- main in suspenso; and these gentlemmen of the minority seriously offer for the con- sideration of the Convention a report that will compel us to do what is now being done in that case, go into the very lowest court of the State judiciary, except the magistrate, and fight our way to the Supreme Court of Appeals of Virginia, in order that justice may be done and wrongs may be righted. 23,78 DEBATES OF THE CONSTITUTIOis'AL CONVENTION OE VIRGINIA. Seriously? Why, but for the arguments of my distinguished friends from Norfolk and Fauquier, I would thinly they were perpetrating upon this Convention a good-natured jolve. Seriously? I would infinitely rather have the bills and their chances of enact- ment now sleeping in the pigeon-holes of the Senate committee on Roads and Internal Navigation than to have the hope of relief under this marvellous, funny, opera bouffe minority report. It means nothing, and I am afraid would prevent the enactment of anything into law, even by the Legislature. But to the charge. I am sorry, gentlemen, both for you and myself that I have to burden you, but I want the people of Virginia to know the facts under which we got our verdict. I want them to know the facts that attend the injustice and oppression of common carriers upon them, even without their knowledge. Take a farmer in the county of Fauquier. He buys his fertilizer, and he goes to the depot two or three days afterward to get it. It has not come. He becomes discouraged. He waits three or four or five days and goes again. What does he find? If the conditions are like they are in my part of Virginia, he finds demurrage charges because he did not take it out the day it got there, though he expected it several days sooner, on information from the railroad, before it did come, and was there on the day that he expected it to come. Now, gentlemen, here is a table, admitted by Mr. J. M. Gulp, admitted by W. W. Finley, second vice-president of the Southern railway, as I shall read to you in a minute, that gives the rates from eastern cities — Boston, Providence, New York, Philadelphia and Baltimore — to Lynchburg and Danville on first, second, third, fourth, fifth, sixth and A, B, C, D, E, F, and H classes of goods, carload lots, less than carload lots, and so on. Now let us see. They haul those goods from Norfolk by the Atlantic and Danville, or by the Coast Line down to Rocky Mount and to Selma, until they take the North Carolina railroad, which the Southern rents or leases, on which it pays dividends (and the Southern has just paid the biggest dividends that have been paid in its history, so I saw stated in a paper just about a month ago), through Greensboro to Danville and then to Lynchburg; and they charge Lynchburg 54 cents for the haul that way from Boston and Providence, and Danville 71 cents, on goods that are first class, a difference in favor of Lynchburg of 17 cents — the long and short-haul clause defiantly and flagrantly violated. They charge on class F, flour per barrel, 36 cents to Lynchburg, 56 cents to Danville — 20 cents more to haul it through Danville than to take it off at Danville. They charge on goods of the fifth class 25 cents to Lynchburg, 38 cents to Danville — 13 cents increase. The charges from New York and Philadelphia to Lynchburg, for goods of the first class, are 54 cents, and to Danville 66 cents. For goods of the F class, 36 cents to Lynchburg, 46 cents to Danville — a difference of 10 cents. For boots and shoes, somewhat necessary to the comfort and welfare of people, they charge from New York to Lynchburg 45 cents, and to Danville 66 cents, or 21 cents more to take it off at Danville than to haul it 66 miles farther to Lynchburg. How about Baltimore? For goods of the first class, around all that route to Nor- folk, Pinner's Point, up the Atlantic and Danville, or down into North Carolina by Rocky Mount, Selma, Raleigh, Greensboro, and Danville, and then on to Lynchburg— let us see what they charge from Baltimore. They charge 49 cents to Lynchburg and 60 cents to Danville, first class; second class, 42 and 52 cents respectively; third class, 33 and 41 cents respectively. 19 and 29 cents respectively; F class, in which flour is always included, as I understand it, 32 and 38 cents respectively, and boots and shoes, 40 and 60 cents respectively. It would pay us to send everything we get on to Lynch- burg and then haul it back there, but for an " arbitrary " charge put upon the haul. Now, I do not want to take up any more time with that table, but I want to read Mr. Finley's admission: That it admits that the Southern Railway company, the Merchants' and Miners' DEBATES or THE C0X5TITUTI0XAL COXVEXTIOX OF VIEGIXIA. 2-2 79 Transportation company, the Old Dominion Steamship company, the Clyde, Philadelphia and Norfolk Steamship Line — &c., as I have already named them — are engaged in the transportation of property under a common arrangement by a con- tinuous carriage from points in the New England States, New York, Pennsylvania, Maryland and other States, by way of Norfolk or Pinner's Point, Virginia, to the cities of Danville and Lynchburg, Virginia. Since this was filed they have acquired the Atlantic and Danville, and presumably make the haul by that shorter route. It does not affect the discrepancy against Danville, because Danville is still 66 miles from Lynchburg, whether you come from North Carolina or stay in Virginia. And from said last mentioned cities back over the same route to said northern and eastern points; and it admits that the said defendants have established and put in force — I insert the word in " before force," as it was accidentally omitted here — rates of transportation by and under which property is transported by them from said northern and eastern points through the city of Danville to the city of Lynchburg, 66 miles further from the place of shipment than the city of Danville, which rates are less than the rates charged to the city of Danville for the transportation of property from said nothern and eastern points over the same route; but it denies that shipments from said northern and eastern points — Now, look at the technicality of this denial — but it denies that shipments from said northern and eastern points by the lines of the said defendants, consigned to the city of Danville and to the city of Lynchburg, are transported under substantially similar circumstances and conditions. Lynchburg is a basing point, and it did not regard the Atlantic and Danville at that time as enough of a rival to consider that it could make Danville a basing point. It admits that the comparison of rates so charged as shown upon the table printed on page 5 of the said petition is a correct comparison of the rates so charged by the defendants. It admits, Mr. Chairman and gentlemen of the committee, that that table, not one- third of which I have read to you, is absolutely correct, and is a fair and frank state- ment of the excess charges they impose on my city and the citizens thereof. I will tell you what that admission involves. It means that the citizens of Pittsylvania county, the citizens of Halifax county, and the citizens of every county — I am informed, but do not state it as absolutely authentic — ^between Danville and the Atlantic Coast Line in Virginia, labor under exactly the same discriminations, or worse; and that from Danville west they labor under practically the same discriminations, or worse. And yet, under that condition of affairs, with an order hanging over them for more than a year, they still definantly and flagrantly violate the law. We are asked, by the eminently able minority of this committee, to adopt a report that would leave us under substantially the same circumstances and conditions as to intrastate rates. Again we charge " That these defendants " — the same companies, common carriers by land and water — " have established and put in force over their several lines or routes from New Orleans, Louisiana, to Danville, Lynchburg, and Richmond, Virginia, the following rates or charges, per hundred pounds on molasses, sugar, rice and coffee." Remember, gentlemen, they haul it right through Danville to get to Lynchburg. 66 miles further, and they haul it right through Danville to get it to Richmond, 141 miles further. So careful and so accurate have these statisticians been that wEen we said Richmond was 140 miles northeast of Danville they correct us and say it is a mistake — that it is 141 miles northeast of Danville. 2280 DEBATES OP THE CONSTITUTIONAL CONVENTION OF VIRGINIA. We charge, gentlemen, in this petition, that the rate for hauling molasses, sugar, rice and coffee is: "On molasses from New Orleans to Richmond, 26 cents; sugar, 32 cents; rice, 32 cents; coffee, 40 cents. On the same commodities, from New Orleans to Lynchburg, Virginia, the same rate as to Richmond, Virginia. On the same commod- ities, from New Orleans to Danville, \^irginia, 37 cents, 43 cents, 43 cents and 51 cents respectively." They charge to Danville 37 cents for molasses, against 26 to Richmond, 43 cents for sugar, as against 32, 43 cents for rice, as against 32, and 51 cents for coffee, as against 40. In other words, for the privilege of shortening the haul and allowing us to unload our goods, without cost to the railroad, and saving them a 66 mile haul in one instance and 141 miles haul in the other, they charge us excess rates, varying all the way from 8 to 12 cents per hundred pounds on the commodities named. And yet they come with an answer, sv/orn to by W. W. Finley, second vice-president of the Southern railway, and signed by Edward Baxter and Fairfax Harrison, solici- tors — we have heard of Mr. Baxter before, and a more able, courteous and fair lawyer I never saw in any case — and they say, in the sixth paragraph of their answer: And it admits that the defendants, the Southern Railway company, the New Orleans and Northeastern Railway company, the Louisville and Nashville railway, the Western Railway of Alabama, the Atlanta and West Point Railway company and the Central of Georgia Railway company, have established and put in force over their several lines, or routes, from New Orleans, Louisana, to Danville, Lynchburg and Richmond, Virginia, the following rates or charges per hundred pounds on molasses, sugar, rice and coffee: On molasses, from New Orleans to Richmond, 25 cents; sugar, 32 cents; rice, 32 cents; coffee, 40 cents. On the same commodities from New Orleans to Lynchburg, Virginia, the same rates as to Richmond, Virginia. On the same commodities from New Orleans to Danville, Virginia, 37 cents, 43 cents, 43 cents and 51 cents respectively. And it admits that the transportation of said commodities to both Richmond and Lynchburg can be made and is made through Danville, and that the distance from New Orleans by such route is 141 miles (not 140 miles as alleged), and from New Orleans to Lynch- burg, 66 miles greater than the distance from New Orleans to Danville. But it denies that the circumstances and conditions surrounding the shipments made from New Orleans to Lynchburg and Richmond respectively, via Danville, are substantially similar to the circumstances and conditions surrounding shipments from New Orleans to Danville. And it admits that the difference in such rates against Danville and in favor of Lynchburg and Richmond, jshown above to be from 8 to 12 cents per hundred pounds on each of the ccmmodities mentioned in this, paragraph, is demanded and received by this defendant from consignees in the city of Danville for the transportation of said commodities from New Orleans to Danville. And yet v/ith that admission, sworn to by the second vice-president of the Southern Railway company, and admitted by its general manager in his deposition given in the same case, we are kept suspended in mid-air, although we have won our case and got- ten our verdict and decision, in order that the railroad companies, forsooth, by appeal, may wear us out, in money and patience, so that the law may never be enforced. And this opera-bouffe minority report wants to leave us, as to Virginia rates, practically just where we are now as to interstate rates. Again we charge that these defendants, the Southern Railway company, the Chicago, Indianapolis and Louisville Railway company, the Cleveland, Chicago and St. Louis Railway company, the Baltimore and Ohio Southwestern Railway company, the Cincinnati, Hamilton and Dayton Railway company, the Louisville, Evansville and St. Louis Railway company, the Cincinnati Southern Railway company, the Louisville and Nashville Railroad company, the Chicago and Eastern Illinois Railway company, the Evansville and Terre Haute and the Evansville and Indianapolis Railway company and the Nashville, Chattanooga and St. Louis Railway company, have done this remarkable thing — Have established and put in force over their several lines, or routes, from Chicago, Illinois; Kenosha, Wisconsin; Grand Rapids, Michigan, and Detroit, Michigan, to Dan- ville. Richmond and Lynchburg, Virginia, the following rates, or charges, per 100 pounds on flour, grain, meats and lard, potatoes, leather, furniture, and per ton of 2,000 pounds on fertilizers: DEBATES OF THE CON'STITUTIOIsTAL COXVEXTIOX OF VIRGINIA. 2281 Now, gentlemen of the Convention, do you not know what that means? With possibly two or three exceptions there is not a man on this floor who knows what it means. It means that these common carriers, since the Southern Railway company has acquired certain roads through North Carolina, Tennessee and Kentucky, take a car- load of stuff at Chicago or Lousiville and bring it us by Louisville or Cincinnati, and down through Nashville or Jellico to Knoxville, Tennessee, up through East Tennessee to Morristown, from Morristown to Paint Rock, then to Asheville, then to Hickory, then to Salisbury and Greensboro, North Carolina, then down to Danville, and on through to Richmond and Lynchburg, with these discriminations in rates in favor of the latter two cities. On flour, from Grand Rapids, Michigan, to Lynchburg and Richmond, "Virginia, cents per barrel; on flour, from Grand Rapids, Michigan, to Danville, Virginia, 56 cents per barrel. And excess charge of 24 cents per barrel for a haul G6 or 141 miles shorter than the other. On leather, from Kenosha, Wisconsin, 32 cents per 100 pounds in carload lots and 62 cents per 100 pounds in less than carload lots; to Lynchburg and Richmond, Virginia, and from the said point to Danville, Virginia, 50 cents per hundred pounds in carload lots and 74 cents per 100 pounds in less than carload lots. From Chicago to Lynchburg and Richmond, on meat and lard, 27 cents per 100' pounds in carload lots; from Chicago to Danville 39 cents per 100 pounds in carload lots. They haul it around nearly in a circle, and get back where they started, and incidentally they pass through my city as a point on the circle. But that is not the worst thing: On fertilizers, from Chicago, Illinois, to Lynchburg and Richmond, Virginia, $3.40 per ton; on fertilizers, from Chicago to Danville, ?4.80 per ton. One-third more. But that is not the worst. I will not bother with the rate ott. potatoes, but will next take grain. On grain, from Chicago to Lynchburg and Richmond, 17 cents per 100 pounds; on grain, from Chicago to Danville, 36 cents per 100 pounds. More than double; and yet we are 66 miles nearer than one and 141 miles nearer' than the other to the point of shipment. On furniture, from Detriot, Michigan, per 100 pounds, to Lynchburg and Richmond, bureaus and washstands, 551 cents; toilet frames and glass, 55i cents; bedsteads and' sides. 47i cents; bed-slats 36 cents. On similar furniture from Detroit, Michigan, to Danville, 83i cents, 91J cents, 75 cents and 64 cents respectively. On cane-seat chairs — Which some of us like to luxuriate in — From Grand Rapids, Michigan, to Richmond and Lynchburg, $1.72J per 100 pounds; on v/ood and leather chairs. $1.38 per 100 pounds; on similar furniture from the same place to Danville, .?2.G0i and $1.72^ per 100 pounds. I want to tell you, gentlemen, that the seventh clause of this answer admits that the defendants, including the Southern Railway company, the Nashville, Chattanooga" and St. Louis Railway company and other lines named, have established and put in force over their several routes, from Chicago and points named, the rates which I have mentioned per 100 pounds on flour, grain, meats, lards, potatoes, leather, furniture and fertilizers in tons of 2,000 pounds, and v/ithout taking the time of this committee to- read it again, I will say that they are exactly the same as charged in the bill of indict- ment — for that is what it amounts to — and will be submitted to any gentleman whc desires to inspect them. And it admits that each of the said commodities is transported by this defendant 144 — Const. Deb. 2282 DEBATES OE THE CONSTITUTIONAL CONVENTION OE VIRGINIA. over its line, or route, from the said cities aforesaid to the cities of Lynchburg and Richmond, through the city of Danville — the city of Danville being 66 miles nearer to the place of shipment than Lynchburg, and 140 miles nearer than Richmond — but it denies that the circumstances and conditions of transportation to Danville, on the one hand, and to Richmond and Lynchburg, on the other hand, are substantially similar. And it admits that the difference against Danville, and in favor of Lynchburg and Rich- mond, as alleged above, are demanded and received by this defendant from consignees in the city of Danville. Again we charge and forced them to admit in answer sv^^orn to by the second vice- president of the Southern railway that this same Southern Railway company trans- ported over its own and connecting lines from Louisville and Frankfort, Kentucky, and Chattanooga, Tennessee, to Danville, Virginia, certain goods for which the following rates and compensation were charged: On metallic paint, from Chattanooga, Tennessee, 24 cents per 100 pounds to Danville and to Lynchburg and Richmond, although carried directly through Danville, 15 cents per 100 pounds for the same thing. On flour, in barrels, from Louisville and Frankfort, Kentucky, 44 cents per barrel, and to Lynchburg and Richmond, going through Danville and the already-named dis- tances farther on to the north and northeast, 29 cents per barrel. On Hour in sacks, from Frankfort, Kentucky, to Danville, 22 cents per 100 pounds in carloads, and to Richmond and Lynchburg, 14J cents. On grain, from Louisville, Kentucky, to Danville, 19 cents per 100 pounds, and to Richmond and Lynchburg, through Danville, 10 cents, making the same hauls, down through Kentucky and Tennessee, the mountains of East Tennessee, the mountains of Western North Carolina and down that same route to Salisbury, up the main line of the Southern railway to the city of Danville and then on to Lynchburg and Richmond. That charge is specifically admitted in the eighth section of the answer, and that answer is sworn to. It (the answer) again specifies the charges as laid down in the petition, and it again admits that the distances are correct, but it says that it does not haul them under similar or substantially similar circumstances and conditions. I think I can show you what that means before I get through. The ninth section of the complaint, and the last one with which I shall burden your patience and attention, charges that these same railroads, or certain of them, " charge and receive from persons in the cities of Richmond and Lynchburg, Virginia, for the transportation of leaf tobacco," of which we manufacture and sell some quantities to the West, one of our great markets, at such rates in favor of Richmond and Lynch- burg and against Danville as to make it extortion and oppression. How do they trans- port that tobacco? If they hauled it from Danville to Lynchburg, thence west over the Norfolk and Western or Chesapeake and Ohio railroad or hauled it from Danville to Burkeville and there delivered it to the Norfolk and Western, or hauled it from Danville to Richmond and there delivered it to the Chesapeake and Ohio, or any other road going West, and charged us more for it, we could not say one word, provided it v/as a reasonable increase of charge for the extra haul. But what we charge here is that they take a hogshead, or a thousand hogshead, of tobacco, put them into the necessary number of cars, either at Lynchburg or at Richmond, G6 and 141 miles, respectively, further away, bring it from Richmond down the line of the Richmond and Danville branch of the Southern railway, through Danville, or if from Lynchburg down the Virginia Midland division, through Danville, and take that trainload of cars through Danville to Reidsville and Greensboro, Salisbury, Round Knob, Asheville, Morristown and Jellico, on up to Louisville, Kentucky, then to Chicago, Illinois, or St. Louis Missouri, and charge us, although we are much nearer the point of destination, the following extortionate rates: Through Danville to Louisville, Kentucky, 24 cents per 100; while they charge for hauling the same thing from Danville to the same points 40 cents per 100 pounds. I have heard it argued so plausibly, so speciously, so suavely and so smoothly, that I could imagine the gentleman making the ^argument had one hand on my shoulder, and with the other was rubbing me down, DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIEGIXIA. 2283 that there was a wonderful development in Danville in the tobacco industry, notwith- standing these discriminations. I said to him that God Almighty happened to make a place for a town in the geographical center of the tobacco belt, and happened to put people there who would fight against such discrimination, and who, in spite of them, had built up as progressive a town as there is in this State to-day. The man who has lost one arm, and develops the other to the highest degree, does it because he has to overcome the difficulty and impediment, and not because of that difficulty or impediment. They come to us and say: " You fellows have no right to complain. You sell more leaf tobacco than Lynchburg and Richmond combined." I say, " Yes, because you charge the farmer so much to get to the other points that he has got to unload the hogshead at the nearest one; and another reason is that we are in the geographical center, north, south, east and west, of the Virginia and North Carolina bright tobacco leaf belt, and they come to the center, just exactly as the whirlwind revolves around the vacuum that is in its midst. They come there in spite of you, and not because of your great kind- ness." Another plausible statement, which I hope to be able to explain with some satis- faction to the gentlemen of this committee, is: "You fellows ought not to complain. It is true we charge you more than we do Lynchburg; it is true we charge you more than we do Richmond; but we charge you less than we do Greensboro; we charge you less than we do Salisbury, and we charge you less than we do Charlotte, and Charlotte has done well." I said: " She has done well because she is in the midst of the great cotton belt, via the rich fields of South Carolina. She has done well because she is 140 miles from our competition. She is the metropolis of that surrounding country, and she has used wisely and well the advantages nature has given her, in spite of you, and not because of your exactions and oppressions." A highwayman meets me on the highway and takes $30 from me. If I complain that he does it under the v/hip and spur of a pistol pointed at my head, he v/ill say: "My good friend, you have gotten off dead easy. The gentleman from Craig (Mr. Marshall) had $G0 taken from him by me just now, and the gentleman from Richmond (Mr. Meredith) had $100 taken from him last night. I am treating you with great justice and partiality, as compared with them." Mr. Chairman, they have established, by means of what is known as the official classification, which corresponds, as I understand it in common parlance, to the Virginia cities' basis rate, a sliding scale, beginning at Lynchburg and rising, in ever increasing gradation, until, as some say, it strikes Charlotte, and, as others say, until it gets to Atlanta. Then, when we complain, they tell us tha<- High Point has got 21 furniture factories. Yes, we say, that is true. She has got the furniture right at her doors; but one of our concerns will ship more pounds of tobacco per annum over the road of the Southern railv^ay than all the 21 furniture factories in High Point com- bined. They say: Do not complain. It is true that the Chesapeake and Ohio — cited by the esteemed and eloquent gen- tleman from Fauquier as a model of good conduct and propriety, and in some respects, as compared with its compatriots, it is a model of good conduct and propriety — has got to go to Newport News and, in order to do so, has got to compete with Baltimore and Philadelphia, or it cannot put its coal and grain there upon the same terms that the Baltimore and Ohio delivers them to Baltimore and the Pennsylvania railroad to Philadelphia; has lowered its rates so as to compete with these roads, and as a result of that the So^^thern Railway company has established a sliding scale of rates from Lj-nchburg south. Where it ends, God alone knows, and what it results in, no man can tell. Section 9 of the answer deals pre-eminently with the product of tobacco. I want to tell you what that means to the people of that country, what it means to the people of Pittsylvania, what it means to the people of Patrick and of Henry, of Franklin, of Halifax, and of Mecklenburg counties, in Virginia; of Stokes and Surry, and to the people of Coswell, Person and Granville counties, in North Carolina. During the month of November leaf tobacco was sold on the floors of the warehouses of that city, that is 2284 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. SO unjustly oppressed, to the amount of $450,000, although it was a cold, dry month, and the tobacco could not be readily gotten in order, and that amount was paid out, through the banks, in that city, to the farmers of those counties for distribution, in order to bring the necessities and comforts of life to their wives and children. In section 9 of the answer the defendant admits: That it charges and receives from persons in the cities of Lynchburg and Richmond, Virginia, for the transportation of leaf tobacco over its lines to Louisville, Kentucky, 24 cents per 100 pounds, and from shippers, in Danville, Virginia, to Louisville, Ken- tucky, over the same line, in the same direction, 40 cents per 100 pounds, the distance from Richmond, via Danville, being 141 miles, and from Lynchburg, 66 miles greater than the distance from Danville to Louisville, by the lines of this defendant, the shorter distance from Danville being included in the longer distance from Richmond and Lynch- burg; but it denies that shipments so handled from Richmond and Lynchburg, on the one hand, are under substantially similar circumstances and conditions with the ship- ments so handled from Danville, on the other hand. They will say to us, probably: You have got a great cotton mill in Danville. Yes; we have, and we expect to put another great one just outside of Danville. We have it there because the w^aters of the river Dan afford fine water power, and we do not have to haul coal over the railways to feed the furnaces, in order to make the wheels turn. We have got it there, in spite of the disadvantages under which we labor, because we have the most intelligent, the wisest and the most effective labor for cotton mills in the world. We have got it there because nature put upon the banks of that river the temptation to develop this fine water power. We have got it there, not because of your discrimination, but in spite of it. This is the last specification I shall read to you, for which you are doubtless thank- ful. On motion of Mr. Wise the committee rose and the President resumed the chair. On motion of Mr. Meredith the Convention adjourned until Monday, February 10^ 1902, at 12 o'clock M. MONDAY, February 10, 1902. The Convention met at 12 o'clock M. Prayer by Rev. George Cooper, D. D. Mr. Thornton: Mr. President, I desire to make a motion that the Convention take a recess to-day from 2 o'clock until 4 o'clock this afternoon. There will be no confer- ence of members to-day, and I see no reason v/hy we cannot go on and discuss this matter this afternoon and save that much time. The motion was agreed to. PERSONAL EXPLANATION. Mr. Stebbins: Mr. President, in my remarks on Saturday, when asked the sources of my information, or rather of the tariff rates which I presented here, I gave the source as Mr. Goodman, Tariff Bureau of the Chamber of Commerce of Richmond. I wish to state that it was the joint work of Mr. Goodman and Mr. W. H. Lumsden, Com- missioner of the Norfolk Freight and Transportation Bureau. I do this as I wish to give honor where honor is due. CORPORATIONS. On motion of Mr. Braxton: The Convention resolved itself into Committee of the Whole for the purpose of further considering the report of the Committee on Corpora- tions, Mr. Eggleston in the chair. DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. 2285 Mr. Withers : Mr. Cliairman. I desire to correct an impression v,-hich was created by a simple error in, not the official but the unofficial,, report of the remarks I submitted here on Saturday. It was stated I had referred to the paper furnished by the gentleman from Fauquier (Mr. Hunton), or rather presented by him, and furnished, as I under- stood, by the president of the Chesapeake and Ohio Railway company, as misleading and cooked up. I think an inspection of my remarks as reported by the official reporters will show that is an error. I never refer in such terms to any statement submitted by any gentleman from any authoritative source, and I see no reason why the Chesa- peake and Ohio railway- or any of its officials should present a cooked up report to the Convention. What I did say, and I propose to substantiate that statement before I get through, was that the Chesapeake and Ohio railway, in furnishing it to this Convention or to the gentleman from Fauquier for the benefit and. information of the Convention, more than probably had a purpose for so doing; and I think I can show the reason and the method for that statement and for that particular road furnishing it. Now, Mr. Chairman, I must continue just where I left off on Saturday when this body adjourned for the day, in the midst of a great detail of figures and facts and data and statistics, all of which I will say for the benefit of the gentleman from Fau- quier, who is not in his seat, are from Virginia sources and pertain largely to Vir- ginia cities and Virginia people, and are not from the despised source of North Carolina. I shall continue giving to my distinguished friend from Fauquier further Virginia statistics and further Virginia facts and figures, and I promise this Committee of the Whole, as a sort of relief from the burden that I am inflicting upon them, that some at least of the figures which I shall have the honor to present to them this morning are to be not quite so dry, and some of them more conclusive and interesting than those I had the honor to present on Saturday last. Mr. Chairman, I had just concluded that part of my argument on Saturday last which showed that the Southern Railway company, in an ansvrer sworn to by its second vice-president, W. W. Finley, had admitted every charge made in a petition by the city of Danville, the Business IMen's Association of Danville, the Tobacco Association of Danville and many of the individual firms, corporations and citizens of that city, that that railroad, by its second vice-president, swearing to an answer filed in answer to that petition, had admitted the charges of discrimination and excessive rate exactions from the citizens of that city; and during the course of that argument I made the state- ment that I intended to show not only why the Chesapeake and Ohio Railway company furnished to this Convention a table of its rates, but the defense, as alleged by the Southern Railway company, for its extortions and exactions from certain of the citizens of Virginia. I shall proceed to make good both statements. We charged in that petition that prior to the 16th day of April, 1886, on which day (according to Poor's :\Ianual of Rail- roads, which I\Ir. Baxter, one of the counsel of the Southern Railway company, had Mr. Culp to refer to again and again as authentic authority), the old Richmond and Danville Railroad system had acquired what was then known as the Washington City, Virginia Midland and Great Southern railroad, its termini being in the cities of Alex- andria and Danville, Virginia; that prior to that acquisition of control of that particular road by the Richmond and Danville Railroad corporation, the citizens of Danville had bad the rates that they now demand; in other words, that the unjust discrimination did not exist against them prior to the acquisition of a competing line by the Richmond and Danville Railroad company. That was substantiated by the testimony and evi- dence of the most prominent, intelligent and progressive business men of the city of Danville. In the fourth section or clause of the answer filed by the Southern Rail- way company in that case and sworn to by W. W. Finley, its second vice-president, this is stated in answer to that cbarge: And it denies — That is, the Southern Railway Company denies — 2286 DEBATES OF THE CONSTITUTIOi^AL CONVENTIOIvr OF VIRGINIA. that it has any knowledge or information sufficient to form a belief as to whether or not the city of Danville and its merchants and inhabitants ever had and received simi- lar rates of transportation for property transported to and from the States aforesaid as were had and received by the alleged now favored cities of Lynchburg and Richmond and other basing or common points of defendant. It denies, by that particular clause of that particular section of that answer, sworn to, that the Southern Railway company which, by a charter issued by the State of Virginia during the General Assembly of 1893-'94, acquired the Virginia Midland road, had in its possession facts or information or data that would enable it to say whether or not Charge No. 4 in the petition was true, and that, too, in face of the fact that the Southern Railway company in that act succeeded to all the privileges, franchises, rights, &c., of the various and sundry companies known as the Richmond and Danville, West Point Terminal, or Vv'hatever name they may have been described by. That was an unfortunate admission. When a petition for a rehearsing was filed they saw it was an unfortunate admission, and so General Manager Gulp dances up to the scene loaded with information to show that we were mistaken in our assertion in that particular section of our petition, that we had had those rates prior to the ac- quisition of the Washington City, Virginia Midland and Great Southern railway by the Richmond and Danville railroad on the IGth day of April, 1886. So Mr. Gulp, in answer to Mr. Baxter's various and sundry questions, proceeded to explain and to extenuate and to file great volumes of exhibits with his deposition to show that we v/ere mistaken in asserting that we had those rates prior to the ac- quisition of the Virginia Midland road by the Richmond and Danville system. General Henderson represented the Southern Railway company at the original hearing, because Mr. Baxter was unable to be there, having, as I understood it, to rep- resent the Southern Railway company somewhere else, where it was charged with simi- lar high crimes and misdemeanors. If you will just be patient with me a moment I will get down to the facts. Mr. Baxter, after getting Mr. Gulp to tell who he is, asked Mr. Gulp to examine a paper styled " revised through freight tariff from Cincinnati to all points on the Ohio river, Huntington excepted, between Cincinnati and Pomeroy, inclusive, via Great Cen- tral Dispatch, G. &. O. railway and connections. No. 5, taking effect April 7, 1875," and state what rates of freight are quoted in said tariff on the said several classes of freight mentioned from Cincinnati, Charlottesville, Danville, Gordonsville, Lynchburg, Nor- folk, Petersburg, Portsmouth and Richmond. File a statement of those rates as ex- hibit No. 1, with your deposition, w^hich is done. That exhibit I have not with me. Mr. Baxter, a little lower down, says. " How much higher were the rates from Cincinnati to Danville than the rates from Cincinnati to Richmond and Lynchburg as shown in said tariff, and how much higher are the present rates from Cincinnati to Danville than the present rates from Cincinnati to Lynchburg and Richmond? Pile a statement showing that comparison as exhibit No. 2 to your deposition, which is done," and here it is. And right here Mr. Gulp let out a piece of very useful information for this Con- vention. He says that in 1883 Lynchburg was governed by the E. B. T. line classifica- tion, which means that it was governed by the E B. T. trunk line classification, appar- ently eastern bound, while Danville was governed by the S. Ry. S. S. classification, whatever that may be; but in 1899 and 1900 Lynchburg was governed by the official classification, which the road of my distinguished friend from Fauquier uses, and Dan- ville was governed by the southern classification, which the Southern railway uses at that point. The force of that will be seen a few minutes later. Now, he compares these as being favorable, or rather he gives them as being fav- orable to the railroads's case. First class rate to Lynchburg, $1.14; to Danville, $1.40— a difference of .26 in 1883. First class rate to Lynchburg in 1900, 72 cents; to Danville, $1.08 — ^36 cents being the difference in 1900 as against 26 cents in 1883, and the percentage enormously greater. DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 2287 because Lynchburg paid $1.14 in 1883 as against 72 cents in 1900, and Danville paid $1.40 in 1883 as against $1.08 in 1900. Second class, 96 cents to Lynchburg; $1.18 to Danville in 1883— a difference of 23 cents. Second class, G2 cents to Lynchburg in 1900; 90 cents to Danville— a difference of 28 cents— an enormous increase of percentage. That is, the difference between the rates in 1900 bears an unfortunately higher percentage to the rates to every point than it did in 1883. And so on down. Third class, to Lynchburg in 1SS3, 79 cents; to Danville, 97 cents — 18 cents difference. To Lynchburg in 1900, 47 cents, to Danville, 70 cents— 23 cents difference. They have clipped Lynchburg nearly in half and reduced Danville one-third, and they have increased the difference by 50 per cent. And so on down through, except one class, to Class 10, and in these latter days they do not go below this, but begin with A, B, C, D, E, H, F, &c.. lettered classes. On one class — and I w^ant to be perfectly frank with the railroads in this mat- ter — on the fourth class the difference in 1900 was the same as in 1883 but the total rate charges in 1900 were mighty near half as great as they were in 1883, the fourth class rates to Lynchburg being 65 cents as against 32 in 1900; the fourth class rates ta Danville in 1883 being 83 as against 50. That is Exhibit No. 2, to explain away the fact that the acquisition of the Washing- ton City, Virginia Midland and Great Southern railroad did not make any difference in Danville's rate in competing v/ith these other points. . Mr. Culp files nine exhibits of a similar nature, which, after great effort, he found among the musty tomes of the records of the Southern railway. Let us see what is the explanation of this thing. The Chesapeake and Ohio railroad comes careering into the arena and presents long tables of Virginia and North Carolina statistics. Even the gentlem.an from Fauquier had to go back to North Carolina for statistics before he got through. Why did he do it? It is a very simple proposition. The Chesapeake and Ohio railroad could not get to a seaport except at Newport News or Norfolk. It had immense coal beds to develop. It had a chance to haul the grain from the grain fields of the West to its unrivalled port at Newport News or Norfolk city and send it in ships to Europe, but it could not get into Baltimore or Philadelphia, because the Baltimore and Ohio hauled to Baltimore and the Pennsylvania hauled to Philadelphia. Therefore the Chesapeake and Ohio had to give what Vv^ere known as Baltimore rates to Norfolk and Newport News, and it did it away back in the eighties, and it did it for no other purpose than because, in order to make its port develop and haul its coal and grain from the West and from the mountains of West Virginia to the seaboard, it had to put them at the seaboard for export at exactly the same price at which the Baltimore and Ohio puts similar products at Baltimore city and the Pennsylvania put them into Phila- delphia. So independent of the other roads, without consulting them away back in the eighties — and I shall give you the exact date directly — the Chesapeake and Ohio issued what was called the Baltimore rate. It is now styled, if I understand it, the Virginia cities' basis rate, and the Virginia cities' basis rate m.eans that certain towns in Virginia get the benefit of the Baltimore and Philadelphia rate where it is necessary to get coal and grain to the seaboard, and the rest of Virginia does not get it. That is all it means. Now, as that developed, and as the coal business of the Chesapeake and Ohio in- creased and it got its western connections at Cincinnati and Louisville, it could get western grain and carry it to Newport News if it gave western grain Baltimore and Philadelphia rates. It would get western merchandise and products and bring them to the Southern at Charlottesville and ship them north to Washington, if. with the Southern's aid, it could give Baltimore and Philadelphia rates. Therefore it did, and in that way it entered into the lists as a competitor with the Baltimore and Ohio and the Pennsylvania, not merely as a carrier of coal and grain but as a carrier of merchan- 2288 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. dise and various and sundry sorts of products, not only from the West to the East, but from the eastern cities to the West; and that is why the Chesapeake and Ohio railroad presents its statistics and figures, in my opinion, to this Convention, whereby you may judge as to whether or not Virginia has such an elegant system of freight tratRc rates under no commission and the Southern States have a different classification and a differ- system under their commissions. Let us see if we cannot prove that by Mr. Cuip. I got some inkling of that before I heard Mr. Culp. In our conference with these railroad officials in order to get at the truth and try to get some relief, and privately, I would hear intimations that there was some mysterious, invisible, unknown, inaudible, w^onderful, supernatural power that had seized hold of the Chesapeake and Ohio railroad and caused it to reduce rates, but I never could exactly understand why until Mr. Culp went upon tlie stand. Let us see what he says. He was, as you know, or as I will tell you if you do not know, the witness for the Southern railroad in the hearing of this petition before the Interstate Commerce, and as he is the general traffic manager of the Southern railway system: Mr. Baxter: Mr. Culp, state your name, age, residence and occupation. Mr. Culp: J. M. Culp; Washington D. C. traffic manager of the Southern Railway company. Now, we know who Mr. Culp is, and presumably he speaks as one having authority and not as the Scribes and Pharisees, like the gentleman from Augusta (Ga.), the gentleman from Northampton, the gentleman from Manchester and the gentleman from North Carolina. We will see what Mr. Culp says. First, I want to tell you, and I may as well do it here, because it comes in in as good consecutive order as after I have explained the Virginia cities' basis rate, that Mr. Culp lets out some more very valuable information in regard to that very remarkable sliding scale from Lynchburg south, ever going higher until it gets to Charlotte, and we do not know how much higher. Mr. Prouty, one of the Interstate Commerce Commissioners, asked Mr. Culp: Did I understand you to say that those rates from New Orleans to Danville were lower than from New Orleans to any point south of Danville? Mr. Culp: Not any point; some points. Mr. Baxter: How far fcack towards Atlanta is that true? Mr. Culp: I cannot recall; but possibly as far back as Charlotte. Commissioner Prouty: What does the Danville road from New Orleans base on? Mr. Culp: On Lynchburg at the present time. So, you see, the sliding scale begins at Lynchburg, and they simply keep going up as they go south. As I progress, and I hope I will not overlook it, I will endeavor to show to this committee v/hy the sliding scale goes upward as it goes south, because of the simple fact that North Carolina has not an East and West trunk line controlled by the Southern railroad, and that is the only reason. Now, on page 231, after Mr. Prouty has asked Mr Culp what v/as the Danville rate based on, Mr. Baxter asked him: State what connection, if any, the Southern railway, or its predecessor, the Rich- mond and Danville railroad, had in the establishment in the State of Virginia of what are complained of in this case as Virginia basing or common points. Let us see what common point is right there. Mr. Culp has great difficulty in de- fining it— great diff-^uly. Mr. Baxter asked him, Judge Aiken asked Elm, and finally Mr. Prouty, a comm ssioner, said to him. Mr. Culp, is not a common point a point where two competing lines of railroad agree upon and establish the same rate? And he said: "Yes, sir." DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF VIRGINIA. 2289 But in all this deposition of railroad wisdom, and in all this deposition of railroad intricacy and legerdemain, there is not a solitary definition of basing points, though they deny in their answer, sworn to in this case, that they have common or basing points; but from a fair reading of the deposition a basing point is a common point on which not only do two competing railroads agree as to a freight rate, but upon which they base freight rates as to other points where they do not meet. For instance, Lynch- burg is both a basing and a common point because the Chesapeake and Ohio, the Norfolk and Western and the Southern agree on certain freight rates. It is a basing points because the Southern, with that as a base, starts a sliding scale up to Charlotte, and possibly further south. So, Mr. Baxter says to Mr. Culp, after he had said the Southern had nothing to do with the establishment of these basing of common points: Explain how these points came to be established? Mr. Culp: In the early eighties the Chesapeake and Ohio railroad, which had become a competitor for business from the West to Richmond and to Newport News, announced as its policy that it would make the rates from the Vv^est to Newport News the Baltimore rate as a maximum, or as a maxima; and it pursued that policy. Later on, in 1889, I believe, the Chesapeake and 'Ohio railroad acquired control of the Rich- mond and Alleghany Valley railroad, running from Clifton Forge easterly through Lynch- burg. Directly after acquiring rhat property it applied the same rates as to Lynchburg from the Yv'est, and it made that as a base before the Southern railway, or the Rich- mond and Danville railroad, ever undertook to compete for business from the West to the Virginia cities named. Then Mr. Baxter asked: Were not Charlottesville, Gordonsville, Norfolk, Petersburg, Portsmouth and Rich- mond all located on the line of the Chesapeake and Ohio railway? Not Petersburg and not Norfolk. I think all the other points which you named are. Mr. Baxter: In that connection, did not the Chesapeake and Ohio railway, after establishing the policy that its rates from Cincinnati to Newport News and' Richmond should not exceed the rates from Cincinnati to Baltimore, also establish as a part of its policy that it would not charge miore for a short haul to intermediate stations, such as Charlottesville and Gordonsville, than it charged to the farther distance point of Norfolk on traffic from the West? In other words, did not the Chesapeake and Ohio establish a rule that it would obey the law; and it is the only railroad in Virginia that did establish a rule that it would obey the law. That is all that question means — that after the interstate Com- merce Commission bill was enacted into a law, the Chesapeake and Ohio Railway, having to compete with Baltimore and Philadelphia rates, and having established that rate to Newport News and Norfolk, established a rule of conduct of its own which said: " We will obey the law and not charge more for short than for a long haul." Mr. Culp answered. It did certainly adopt that policy in 1887. and the Interstate Commerce Act was approved February 4, 1887 ; and my understanding is that, as to- certain points if not all on its line, it did adopt that policy prior to 1887, and its tariff shows that as to Charlottesville and Gordonsville and Staunton it did make the same rate. It also •shows it made the same rates to Petersburg and Portsmouth. Later on in this deposition Mr. Baxter says to Mr. Culp, by way of interrogatory: Tben the rule or policy adopted by the Chesapeake and Ohio is, as I understand it, on all trafnc from the West to such points as Lynchburg, &c., located upon its line, it does not charge more for the short than for the long haul, and that puts all these roads down to the Norfolk rate. Mr. Culp: That is its policy. Mr. -Baxter: And reversing, on traffic from the East, it does not charge to Rich- mond or Lynchburg or any other station on its line any higher rate for a short than 2390 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA, for a long haul, and consequently does not charge to any of those stations more than the rate from the East to Cincinnati. Mr. Gulp: Yes, sir; on the same line in the same direction. That explains why the Chesapeake and Ohio patriotically immolated itself on the altar of this commmission bill. In order to get its grain and coal to the seaboard it had to compete with Baltimore and Philadelphia rates, made by the Pennsylvania and the Baltimore and Ohio, and therefore it reduced its rate to that as a maximum or as a maxima. Mr. Baxter says: The result is, as I understand it, that the Chesapeake and Ohio has established itself a line of rates from the West to stations not only in Virginia, but wherever its line operates, and no rate from Cincinnati to any of its local stations between Cincin- nati and Norfolk is higher than the Norfolk rate, and from the East no rate to any local station is higher than the rate to Cincinnati: Mr. Culp answered: On the main line in the same direction, that is true. That explains, thereiore, what is meant by the Chesapeake and Ohio's particular table and compilation of statistics, that establish what is known to-day as the Virginia cities basis rate, that operates under the official classification, but south of the Norfolk and Western Railroad line, as far east as the Atlantic Coast Line, and possibly farther, my information in that neither the official classification nor the Virginia cities basis rate in any wise applies, and the southern classification, with the sliding scale of arbitrary increase rates from Lynchburg south, does apply on all portions of the Southern railway, which operates in both States. Now another thing. The gentleman presented statistics here nearly all of which were Interstate, as mine so far have been interstate. The Chesapeake and Ohio railway does not transact any common carrier business in North Carolina. The Southern railway does run its line into both States. Why not select the Southern railway as a criterion of what it does in both States in which it has operations, instead of selecting the Chesapeake and Ohio Railway company, which has no line in North Carolina, and was compelled, by reason of the fact that the Baltimore and Ohio and the Pennsylvania haul coal and grain and other western products to Philadelphia and Baltimore at a certain rate, to give that same rate to Newport News and Norfolk, in order that its seaports might be developed and its coal hauled to the seaboard for export to Europe and other countries? I read these things to you because they are the sworn testimony of a railroad expert. Objection was made by Judge Aiken, in the course of an examination, to an opinion by Mr. Culp and the objection was overruled, because it was shown that Mr. Culp was a railroad expert, and these figures cannot be contradicted, controverted, nor denied. Now, let us see what else this wonderful system does. In the 13th section of the answer Mr. Finley swears that at Lynchburg and Richmond the Southern railway was met with what is called trunk line conditions, and on page 249 Mr. Culp in his deposi- tion explains what trunk line conditions are. Mr. Baxter: You have explained heretofore the policy of the Chesapeake and Ohio railway in making rates to its intermediate stations from the East and West. I wish you would state whether their transportation to and from Lynchburg and Rich- mond, which are two of its intermediate stations, is subject to any extent to the influence of what are known as trunk line conditions and exnlain those conditions. Mr. Culp: The Chesapeake and Ohio railway is a competitor for business between the West and Baltimore, and the rates from the West to Baltimore and from the West to Philadelphia and New York are all interdependent — all made on a trunk line basis. The Chesapeake and Ohio competes for business west of Baltimore and other eastern cities. Its rates, therefore, to Baltimore are fixed on the trunk line basis; and in adopting the rule and making its rates to Newport News, Lynchburg and Richmond any higher, those roads may be said to be on the trunk line basis DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OP VinGIXIA. A trunk line "basis, ttierefore, is nothing in ttie v,'orld. -^"hen you reduce it to its ultimate meaning but the fact that the coal and grain rates of the Chesapeake and Ohio had to be lowered in order that it might put them to the seaboard at Newport News and Norfolk; and the Norfolk and Western necessarily meets those conditions by giving similar coal rates to Lambert's Point, but the Norfolk, and Western, so I am informed, has failed to liA-e up to the rule of the Chesapeake and Ohio railway, v.-hich required it to obey the law and not violate the fourth section of the Interstate Com- merce Act, by not charging more for a short haul than for a long haul, the short haul being included within the long haul; and the Chesapeake and Ohio is the only railroad in Virginia that does do it, according to Mr, Gulp. He may be mistaken how^ever. On page 239 Mr. Culp admits that the Chesapeake and Ohio fixes a rate independent of the Southern or the other roads, and it fixes it for the reasons alleged by me and proved by him, to-wit: Mr. Baxter: Nov.'. of all these competitors, which one of them is it which fixes the rate from the West to Lynchburg, Richmond and Norfolk, and from the East to Norfolk, Lynchburg and Richmond? Mr. Culp: Well, it is a settled rule; it is a well-known fact that the rates from the West to Baltimore being reduced, the rates from the West to the Chesapeake and Ohio road, for illustrations, will not be more than the Baltimore rates." Mr. Baxter: You mean by the Chesapeake and Ohio, vrhat point — Norfolk? Mr. Culp: Newport News. The Chesapeake and Ohio also reaches Norfolk now. When the rates to Baltimore are reduced, these rates follow as a matter of course, gro^-ing out of this fixed rule of the Chesapeake and Ohio that the rate shall not exceed the Baltimore rate? Mr. Baxter: Then, if I understand your testimony of all these competitors, it is the Chesapeake and Ohio railway, in the enforcement of iis policy, that fixes the rate from the West to Lynchburg, Richmond and Norfolk? Mr. Culp: That is what fixed the rule, and to-morrow if the rates from the West to Baltimore were reduced and the Southern railway would not reduce their rates to Lynchburg and Richmond. I have no hesitation in saying that I am certain the Chesa- peake and Ohio road would reduce the rates. So that the Chesapeake and Ohio road, because of its peculiar conditions, with refer- ence to its own seaboard and its own coal fields, or practically its own coal fields, has had to conform to the Baltimore and Philadelphia rates, which was a lowered rate and which has given what is known as the Virginia cities basis rate. I want to see, as a matter of curiosity and some more or less interest, if the papers who oppose so loudly this wonderful and dangerous and populistic and anarchistic commission bill, and were clamoring for the facts that might sustain a demand for it. will have the nerve and the fairness to publish a solitary fact except where tSe official record compels them to do it. Now, let us see a little further into this interesting deposition of Mr. Culp. I\Ir. Aiken: I would like to have you explain, as far as rates are concerned, what is the effect of being a common point in Virginia. Mr. Culp: The effect is to m.ake from the West rates not higher than to Baltimore, from the same point, and from the East rates not higher than the rates from the East to Cincinnati. In others words, to get stuff to Baltimore as a competitor with the B. & 0. railroad, the C. & 0. has got to charge a B. & 0. rate. To get stuff from the East to Cincinnati the C. & 0.. in order to haul it, has got to charge the B. & 0. and the Pennsylvania rate, in order to put it there; and the Southern meets that condition by giving the C. & 0. the Baltimore rate from Washington to Gordonsville and Charlottesville, one or the other or both points. Here, after much labor and great trial and tediousness Mr. Prouty gets Mr. Culp to agree to the fact, on page 262. that whenever two roads apply that rate — that is, the Baltimore rate — to the same point, it is a common point. So non- we understand basing points; xs'e understand comman points; I hope we 2292 DEBATES OF THE COIS-STITUTIOJ^AL CONVENTION OF VIRGINIA. understand the Virginia cities basis rates and the reason for the reduction of the original Virginia rate by the C. & O., which has given the official classification in Virginia to the C. & 0. and to the parts of the other railroads in Virginia; and we understand, or we will in a few moments, beginning with Lynchburg, why there is a sliding scale upward south to some undefined and indefinite and unknown point. Now, why? The conditions did not exist in North Carolina that required a com- petitive Baltimore and Philadelphia rate. Back in 1882, when the C. & 0. adopted this rate, there was no East and West trunk line in North Carolina. There was no railroad piercing the high mountains of that State and of East Tennessee. There was but one seaport to which it would have been advantageous to haul coal to North Carolina — that of Wilmington. Therefore there was but very little, if any, of East and West traffic going through North Carolina, because, in order to get through, it had to go -orked upon this article in the basement of the Capitol. The members frequently referred to him jocosely as being in the cata- combs, but T knew he would come up out of the catacombs. I knew he would shake the catacombs from his neck as the lion shakes the dewdrops from his mane. It is hard to keep a red-headed man down (Laughter) ; and another thing is, these red- lieaded men all stand together. We are told that this article shows hostility to corporations. I deny it. There is not a word cf truth in the assertion. I have been upon the Committee on Corpo- rations, and I know that no hostility has been manifested in that committee towards them. I like corporations myself. I like them better when they employ me. Why should the committee be hostile to corporations? Why should any member of the Convention be hostile to corporations? vre know the necessity of corporations. We are aware of their usefulness. We know they are the result of modern civiliza- aticn, and that there cannot be much progress without them. We are told we ought not pass this measure because corporations have been good to us. Well, that is true in some respects. They may have been. I want to say, however, that we have teen good to corporations. They say that corporations develop the resources of the State. I reply that the resources of the State develop corporations, and that corpo- rations therefore get as much out of the development as the people who own the resources. Members talk in the Convention as if it were but a one-sided question, and that corporations are constantly bestowing favors upon the people and the peo- ple no favors upon corporations. They put the corporations very much in the posi- tion of a man who loans money at twelve per cent. You never saw a man, and you never will, I reckon, who loans money at twelve per cent, who does not think he is putting the man who horrows the money under obligations to him. I think it is a iwo-sided question, and that the man who borrows the money and makes it useful and profitable to the man who owns it puts that man under as much obligation to Mm as the borrower is to the lender. The able gentleman from Norfolk told me on one occasion that we wanted to put corporations in strait-jackets. I replied, '-'Xo, we want to put a good suit of clothes upon them, so that they may be able to appear on all occasions in respectable society.-'' (Laughter.) Corporations are the children of the State, and it is the duty of the State to look after them and teach them in the way they should go. We have a provision liere in this article, for example, which provides that they shall not water their stock. Well, now, the purpose of that is to make them honest. Is it detrimental to corporations to make them honest? Is it not a part of the duty of the State to these, its creatures, its children in vrhich it has so much interest, to make them reasonably honest? The corporations themselves, I do not think, would have much objection to this measure. Thesfi objections are made all over the State by men who think they 2322 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. should constitute themselves the guardians of corporations. Why, this measure before it ever came before this body had been constantly misrepresented, so that the- corporations did not understand it. Men all over the State who had derived some- benefit from corporations, or expected to derive some benefit from them, were con- stantly misrepresenting the intentions of the Committee on Corporations and of the Convention. There is no use to argue to one of those men. Did you ever try it? There are none so blind as those who will not see, and none so deaf as those who will not hear. You talk to one of them, and he will look like a perfect blank if you talk to him on the subject of passing any law in regard to corporations at all. He cannot see it. He will not see it. Our present Constitution is a blank on that sub- ject, and he wants the new Constitution to have a blank on it. What is there in this article that shows any hostility to corporations? It is here; you have read it. Take it as to private corporations. It simply provides how they shall get their charters. It provides that they shall make certain reports to the commission. It enables the State to keep track of them, to know what property they have, and to impose proper taxes upon them. This article was at first misrepresented to private corporations. They sent agents and attorneys down here to argue before the Committee on Corporations,^ but as soon as they understood it they retired from the scene. Where is any pri- vate corporation now making any fight against this article? Where is there one in the State? Private corpora.tions, as I understand it, are satisfied with it. Mr. Thom: I should like to know if I am mistaken in thinking that after the argument before the committee on behalf of these private corporations, the article theretofore proposed was practically abandoned and something very different, and much less drastic, was brought in as the report of the committee? Mr. Wysor: The article, when the argument was made before the Committee on Corporations, was simply in a tentative shape. We were proposing to deal with this subject and we were willing and anxious to hear all parties interested in the matter. It v/as before the article had assumed definite shape that these misrepre- sentations took place. The article has been changed, and is now in its final shape; but while many changes have been made from the tentative form, I do not think the great changes have been made in it that the gentleman mentioned. It is perhaps less drastic in some respects than it was when the argument was made before the Committee on Corporations. I say private corporations are making no fight against it, so far as I know; so they are satisfied. This article is intended, and was intended from the beginning, to encourage the formation of private corporations, to foster their growth and to make them prosperous. That was one of the very first enunciations made by the committee of its intentions. Every one of them v^^as impressed by one idea of the great usefulness of private corporations to the Commonwealth, and we aZl were anxious to pass laws that would encourage their formation and promote their growth and prosperity. That is the kind of article we think we have framed, and these private corporations which were misled into a fight against it have abandoned that fight. It has a provision in it on the fellow-servants doctrine. The article is simply a modification of the doctrine of fellow-servants as now enunciated by the Supreme Court of Appeals. It restores the doctrine of separate departments, and of superior and inferior servants, and makes the employer in some instances liable even where men are fellow-servants. The doctrine of fellow-servants, as promul- gated by the Supreme Court of the State has by everybody, by the common consent of civilized mankind, been held to be too hard upon the servants. Our present Supreme Court realized that the doctrine as laid down by it ought to be modified, and has intimated that in several of its opinions. I am not here to criticize our present Supreme Court. I admire the court; and that is one body of men I should like to see hold of&ce as long as they are capable DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. 2323 and efBcient. They are conscientious in their opinions. It is true they overturned the decisions of our Supreme Court as constituted before the present court was elected, but they did it conscientiously, and the great current of authority through- out the Union supports their decisions. I have talked to some of the judges myself since this measure has been before the body, and they think the doctrine ought to be modified. We do not hear these gentlemen making any objections much in the Conven- tion to the fellow-servants bill. They squeal on that subject. They intimate that they are willing for that to go in the Constitution. Well, they see it is going in the Constitution. Both parties in the State have enunciated in their platform that such a doctrine shall be enacted into law. Some of the gentlemen say they do not have any particular objection to it, though it is hardly a constitutional measure. I say while it might be enacted by the Legislature, we think we have framed a proper modification of it, and that the Constitution is the place to put it, in order to make it very beneficial to the servants in the employment of these great corpora- tions. We will put it where it will stay, and where it will endure, where it will re- main fixed, and give them a benefit which cannot be taken away from them, which cannot be diminished, though it may be enlarged. Now, then to come to the subject of regulation and control of transportation and transmission companies. There is the rub; there is the fight; that is the thing which they say they do not want. One of their arguments is that there is no occa- sion for it. I submit to the committee that there is not a man in the Convention who does not know that there has been continually great complaint all over the Commonwealth against transportation and transmission companies. We all know that. It is a matter of common rumor, common report, and a matter that every man knows, that there is such complaint, whether it be founded or unfounded; and I think the gentleman from Halifax (Mr. Stebbins) and the gentleman from Dan- ville (Mr. Withers) in their speeches showed conclusively there was some founda- tion for that complaint. Transportation and transmission companies do make rates frequently in favor of certain individuals or certain localities. It is a matter of fact that they can build up one man and tear down another. It is a matter that must impress itself upon the most ordinary mind that they have it in their power to destroy one man and build another, to destroy one locality and build another, and even if there were no complaint against them, it would be proper to pass a proper article and put it in the Constitution to prevent them from doing these very things. The gentleman from Roanoke (Mr. Robertson) in his speech said there is no complaint. I say, whether true or false, a great complaint goes up from this Com- monweal A, and from all over the Union: "Take the horrid beak of corporate greed from out our hearts, and its black form from off our doors." I say such a complaint as that goes up all over the Union, and it is proper, therefore, to pass some measure to regulate and control them. We know they have superseded all other methods of transportation and trans- mission. Why, take the railroads of the country. They are the great arteries of commerce. Shall it be said we shall exercise no control, no supervision, over these great arteries of our commerce when they have superseded all other methods of transmission and transportation; that we cannot say to them, "Your rates shall be reasonable?-"' Take a telephone company, for instance. I do not like to speak of myself, but I am a stockholder and director in a telephone company, and a pretty big one, which runs from Roanoke to Bristol. We own every exchange from Roa- noke to Bristol along the line except Wytheville, and we have traffic arrangements with it. Now, we naturally would not want anbody to interfere with our rates. The men who manage it are honest and patriotic. But I say this, and I try to be honest as any man here, that we might give way to the temptation, if presented to 2324 DEBATES OF THE COi^STITUTIOJs^AL CONVENTION OF VIEGINIA. make ourselves rich at the expense of the great majority. That is human nature. That is what public service companies will be tempted to do unless restrained and restricted. Now, take a telephone company. Do you want to say you cannot regulate the rates of that concern? You might have two here in Richmond. One might be more wealthy and powerful than the other. It might lower its rates and destroy the other, and then put its rates up on you to suit itself. Is that right? Is there to be no control or regulation of such a thing as that? I say the State itself ought to control them. It ought not to let that big corporation destroy the small one. They ought to be protected against each other, and the people ought to be protected against both. We know that to be so. Every man in this hall knows that when a big tele- phone company destroys a little one, the temptation is to raise its prices just as much as the people will bear in order that the persons interested in that concern may grow speedily rich. Judge Baxter, in his argument, said that usually in making Constitutions we put provisions in Constitutions to protect the minority from the majority. That may be true as the usual rule. In this article we want to protect the majority from the minority. That is what you want it in the Constitution for. Transportation and transmission companies are in the minority. When they do wrong they perpetrate the wrong upon the great body of the people, and the provision is intended to pro- tect the majority against the minority. Have we power to do it? Well, now, I suppose that is hardly debatable. They have a part of the sovereignty of the State. They can condemn property. They put the creatures of the State, and it is admitted that the State has the power to regu- late and control them. Judge Baxter, who represents a large number of public ser- vice corporations before the Interstate Commerce Commission, admitted in his ar- gument before the Corporations Committee that we had a right to regulate and con- trol these corporations. He said in so many words that we had a right to authorize the commission to fix their rates, provided we did not do it to the extent of con- fiscation. No man will deny that the State has power to empower a commission to fix reasonable rates. So, then, we have the power to pass this article. We have shown that there are great complaints against these transportation and transmission companies. It, then, resolves itself into a mere question of public policy. The question is, Is this a good measure? Well, I have already argued the main provisions of the measure. Let us look at some of the objections to it. We are told it interferes with the pri- vate business of corporations. It does no such thing. It does not pretend to do any such thing. Its language limits it to the public duties of these corporations; to the duties which they owe the public. These objections are far-fetched, and I do not believe the gentlemen who make them believe in them. Why, Judge Baxter pre- tended that he believed that the article authorized the commission to order a rail- road company to go and build a branch road, or to engage in this kind of enterprise or that kind of enterprise. There is not a word, a syllable or a line in the article that justifies any such assertion, or conclusion. Yv^e are told by some that it violates the fundamental principles of our govern- ment, that the article gives the commission legislative, judicial and executive powers. It is true it does give the commission these powers. It is necessary to give them such powers to make the article efficient. It is proper to give them such powers, and it does not contravene in the slightest degree the general principle of our gov- ernment that the great departments, legislative, executive and judicial, shall be kept separate and distinct. Why, many officers have three powers — legislative, executive and judicial. The Senate of the United States has just such powers as that; and yet no man would say that because the Senate has such powers that it con- travenes the great doctrine of separate departments of the government of which I DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGINIA. 2325 have spoken. The Senate possesses the legislative power to make law, the judicial power to try and decide cases of impeachment, and the executive power to approve and ratify appointments. We are told that it should be left to the Legislature. The gentleman from Win- chester (Mr. Harrison), who just addressed us, said it should be left to the Legis- lature. Left to the Legislature, indeed! You cannot get the Legislature to fix the finger on Henry Clay's statute, at the foot of Capitol hill. The poor old man whose oratory inspired millions with patriotic impulses has been standing down there all v/inter in the rain and the wind and the snow with one of his fingers off. It is a shame. It is a measly shame. (Laughter.) Let the Legislature fix Clay's finger, and we v/ill attend to this article on corporations. We are told that the article should not go into . the Constitution! That is the point, and the only point, made by the gentleman from Roanoke in his very able and eloquent speech. It is the main point, and it is going to be relied upon by the able and eloquent gentleman from the city of Norfolk (Mr. Thom), who will close this debate for the opposition — that it is a legislative matter, that it is not proper to go into the Constituion, Now, I want to say that a Constitution itself is a species of legislation. It is simply the people legislating in a more enduring form through their representatives in Convention assembled. It is true you cannot change, re- peal, or change the provisions which are put in the Constitution as readily as you can an act of the Legislature. All modern Constitutions have more or less legisla- tion in them. Judge Baxter in his speech admitted it. He said he considered it the vice of modern constitutions. Now, if the article is a good one, a proper one, what objection is there to putting it in the Constitution? There is a grave question w^hether or not the Legislature can enact such an article as this. I do not assert it positively. The point was called to my attention by the gentleman from Westmoreland (Mr. Walker) just be- fore I got upon my feet. The Legislature is a separate department of the govern- ment; it may have no power to create another depa,rtment of the government hav- ing judicial powers such as this commission is given. The great departments of the government mu^ be made by the people in Convention assembled. They must be put in the Constitution. Now, if we are constituting a commission which has judicial powers, which has the functions of a court, to hear cases and decide them, and is to all intents and purposes a court, it is a grave question as to whether or not the Legislature can pass any such act as that, and whether, if we wish to pass it, we are not bound to put it in the Constitution. But if the act is good, if it Is plain, if its meaning is unmistakable, what objection can there be to putting it into the Constitution? Why, they tell us the language is imperfect. They tell us we have come in here, and we have even amended it ourselves? Well, has not that been done with every report that has been before the Convention? Have not the chairmen put amend- ments in them? Has not the Convention put amendment after amendment upon every article which has been submitted to the Convention, and which has been adopted and put into the new Constitution? Why do you wish to apply a different rule to the report of the Committee on Corporations? When the chairman of the committee got up and made a few minor amendments so as to make it conform to the opinions of some of the opposition on immaterial matters, they immediately said, "Now, look here. Don't you see? Will it do to put a thing like that in the Constitution, when you come here and admit it is a thing you have got to amend?" The committee has done everything it could to make it clear and proper, and it is submitted to the Convention for the Convention to act upon it and to amend it if it needs amendment, and to put it in final and proper shape to go into the Con^itu- tion. That is what we are serving here for, to examine one another's work, to in- spect it, to see if the language conveys our meaning, and to see if we have an article 2326 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. which ought to go into the Constitution; but we are told all the time and continu- ally that this is legislative matters. That will be the great argument of the gen- tleman from Norfolk city (Mr. Thom) ; and I want him to answer this question when he comes to make that argument: Is there not plenty of legislation in the suf- frage plan of the majority of the committee? It is nearly as long as this article on corporations. It has article after article that is a proper subject for the Legisla- ture, and not for the Constitution, and for six or seven months' the gentleman from Norfolk city has without intermission urged the adoption of that suffrage article, and the placing of it in the Constitution. Can he be heard to come here now and draw a hard and fast line between con- stitutional and legislative matters? Pick up that majority report and look at it. It fixes boards. It tells you what those boards shall do. It tells you what sort of reports shall be made to the auditor about the capitation tax, what the clerks shall do in regard to the capitation tax. Three-fourths of the articles prepared by him- self and others, and endorsed and advocated by them, is purely legislative in char- acter and legislative in form, and he has urged its adoption for six or seven months; and when he comes to speak to this Convention he will try to draw a hard and fast line between constitutional and legislative matters. He made that kind of a point when he voted against the appropriation in the Constitution of $50,000 to his Alma Mater, the University of Virginia. He said he regretted that he felt compelled to vote against it, and he believed the University would continue to get it by legislative appropriation, but he would not make it more useful and valuable to the University by making it permanent and certain by putting it into the Constitution. Why? Because he said, " Oh, it is not a constitutional meas- ure. I am going to draw that line hard and fast, and stand on it." Has he stood on it in his suffrage plan? Did he stand on it when he advocated on this floor the fixing of the salaries of the Supreme Court and of the circuit judges? That is purely a legislative matter. When gentlemen do not want anything in the Constitution, if they have no other argument to make against it, they say it is not a proper subject for the Con- stitution. What excuse will the gentleman from Norfolk city make when he comes to argue on the point I have made about his suffrage plan? Oh, he will say, this is a great question afflicting the State. We were sent here to remedy the evils of universal suffrage. We were sent here to disfranchise the negro, and therefore we must, in order to do it, put legislative matters in the Constitution." That is the way he will talk to you. I say to him that this thing is just as important to the people of our section as is the suffrage question. The great white sections are not bothered with negro suffrage. They are more interested in financial and economi- cal matters. They are more interested in those matters than they are in the suf- frage question. They say this is a great measure, demanding the attention of the Constitutional Convention, and it is a thing which should go in the Constitution. "Oh," they say, "you ought not to put it in the Constitution because things may change." Well, we know that. Things may change. What do they want put in the Constitution? They say you must put in it that a man is entitled to his life. That is a mere platitude. I know I am entitled to my life without its being in the Constitution, though I admit it is proper to put it there. They say you must put in it that a man is entitled to property. Certainly he is, if he is fortunate enough to get it and wise enough to keep it. They say you must put in it that a man is entitled to the pursuit of happiness. Now I am going to pursue happiness, whether you put it in the Constitution or not. (Laughter.) I want something in the Constitution other than platitudes. I want something in it that has life and vitality and power in it. That is what I want in the Consti- tution. What is there in this article that shows it should not go into the Constitu- tion? We are putting here in the Constitution a board of commissioners to control DEBATES or THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. 23.27 t -and regulate transportation and transmission companies. "Vv'e have a right to do it; it is to our interest to do it; and what change in the future can alter that principle? You may have wireless telegraphy; you may have flying machines. They may be, In the future, your transmission and transportation companies, but still that com- mission will regulate them: and vrhen the gentleman from Norfolk city (Mr. Thom) in the future, if he lives long enough to see it, mounts into a balloon to go from Hichmond down to his beautiful city by the sounding sea, this commission will regu- late the rate that is charged him for his trip. (Laughter.) The gentleman from Roanoke hangs and dwells upon that point, that it should net go into the Constitution. How does he know whether it ought to go in the Con- stitution or not? He said he read it three times and did not understand it. He has made the best argument that has ever been made in this Convention against putting the understanding clause in the Constitution. According to his own admission, if we put it there, he will be disfranchised. (Laughter.) I am opposed to disfranchis- ing as good a man as Judge Robertson, of Roanoke. He stated he read it three times, and he did not understand it. Well, the Committee on Corporations understands it. The majority of this body understands it. It is written by our chairman in fine old Anglo-Saxon English, equal to any that can be used by any man in this Convention. The idea in it are expressed so clearly and positively, and are made so plain, that no man can misunderstand if he wants to understand; but, as I said awhile ago. there is no man so blind as the man who will not see, and no man so deaf as the man who will not hear. The gentleman from Roanoke finally began to make an argument in favor of the people. Why, he said, if you put that commission in the Constitution these cor- porations may buy the commission. Well, now, I do not know whether he is speak- ing for the corporations he represents. I represent some, and I know they are not going to do any such reprehensible act as to try to buy the commission. That argu- ment could be made to any officer. You could say they might buy the Supreme Court; that they might buy the Governor. We hope to elect men that they cannot buy if they should feel so inclined. We have in this Convention one hundred men, not one of whom they can buy. Then if we have such a body of men as this assembled in the Commonwealth, independent in their character, free of all manner of corruption, is it to be said we cannot elect three commissioners, or have them appointed by the Governor, who will be of high character, and who are above price? All the points made by these gentlemen were made by Mr. Edward Baxter — I liave his speech here — before the Committee on Corporations. Every one of the points they make here in opposition were made by him. and their arguments here are simply a repetition in substance of the argument made by him. Just after he had nade his speech, you know, the Convention adjourned, and while I was home I had d peculiar dream. I dreamed I was in the city of Richmond, and I walked out at night over the Capitol Square. The snow was on the ground and the stars shone beautifully in the heavens. It was at midnight's solemn hour when grave-yards' yawn and ghosts come forth. It was as still as silence itself. All at once I heard a great noise up about the basement of the Capitol. I went up there to see what it was, and I looked in a window of the basement, and, in the blazing splendor of the electric light, there was Judge Baxter training the two gentlemen from Norfolk (Mr. Thom and Judge Brooke) and the gentleman from Fauquier (Mr. Hunton), and the gentleman from Roanoke (Judge Robertson) to make their speeches, (Laughter.) You know how dreams are. Each fellow would get up and put his hands down by his side, and make his little speech, and then Judge Baxter would pat him on the "head and say, "Well done." (Laughter.) The elderly gentleman from Norfolk (Mr. Thom) made the last speech, and his tones were measured and majestic and funereal. I thought he was preaching a funeral of the nabobs of the Transportation and Trans- mission Company. (Laughter.) I said to myself if he was not a good deal older 2328 DEBATES OF THE CONSTITUTIONAL CO?n^ENTION OF VIEGINIA.. than I am, I would put it in my will that he should deliver the eulogy on me after I die. (Laughter.) After he got through, it ceased, and I walked away for fear r would put myself in the position of an eavesdropper; and the thing tickled me, and I laughed, and my^ rollicksome laughter rolled away up on the blue pavement of the skies amidst the pure and beautiful stars, and it woke me up, and I was at home, sweet home, taking: an evening nap. I got up and looked out of my window, and there nestled the sweet gem city of the great Southwest in the shadows of the great mountains. Now, gentlemen, I do not believe in dreams, not at all (laughter); but the old women tell me that dreams sometimes come true. I see where Joseph dreamed in the Bible, and his dream came true. Now, three of those gentlemen have spoken. They made exactly the same speech that I heard them make before Judge Baxter in my dream. (Laughter.) If the next and last gentleman (Mr. Thom) makes the same speech he made before Judge Baxter, then from this day to the end of my life I will be a believer in dreams. (Laughter.) These are the objections they have made to the article on corporations. They say it ought not to go in the Constitution, and yet two of them (Mr. Hunton and Judge Brooke) come right along and offer a plan establishing a commission, pre- scribing the duties of the commission and asking you to put it in the Constitution. These two men certainly admit, and I suppose the others will agree with them — they have all doubtless had conferences — that such a thing as that ought to be put in the Constitution, because they are offering you a similar plan. Now, that does av/ay then with that argument, and it is a question between the two plans. It is true Judge Robertson said he did not believe in either plan. He "Saw the fix they had got themselves in Mr. Robertson: I distinctly deny that I had any conference with anybody on the subject, and I do not desire to be put in the position of having formed any plans- about this matter with any one. I spoke for myself, and myself alone^ and I am still opposed to both plans. Mr. Wysor: Your statement is evidently true, judging from the speech you- made on the subject. If you had had a conference you would have made a better- speech. (Laughter.) Mr. Robertson: Well, you take back what you said about Judge Baxter, then. I did not get it from him. (Laughter.) Mr. Wysor: Now, then, they come forward here, and they offer a plan, and say that it ought to go into the Constitution. Well, then, is it not a question of the merits- of the two plans? If they say their plan ought to go in the Constitution, then it Is a question which is better, ours or theirs. The gentlemen who signed the minority plan have been obstructionists of this measure all along. They do not want anything in the Constitution, and if they get their plan adopted, they will accomplish their wishes. They will have nothing in the Constitution. (Laughter.) They will have worse than nothing in the Constitution. They will have something in the Constitu- tion that does not do any good; that does not give the commission any power, but will be constantly bothering the Legislature in that matter, and hampering the courts in their decisions. Why, if the two gentlemen from Norfolk (Mr. Thom and Judge Brooke) and the gentleman from Fauquier (Mr. Hunton) were all in the seventh story of a big hotel on fire, and there was a fire escape as rickety as this minority plan, they had better stay in the room, and not attempt to go down on it. I believe those three gentlemen could stand fire, anyhow. It is said that Shadrach, Meshac, and Abednego could" stand fire; and Thom and Brooke and Hunton, I stand here to say, are just as good people as Shadrach, Meshac, and Abednego. (Laughter.) The gentleman from Norfolk city, when he comes to close the debate for the op- position, is going to tell you that we are going to bankrupt the corporations. I tol(£ DEBATES OE THE COXSTITUTIOXAL COXTEXTIOX OF VIRCTXIA. 2329 some of mv friends on one occasion that he was certain to drive a hearse through here with black horses to it and black plumes on their heads. He is the best director of a funeral that I ever saw, when he gets started. (Great laughter.) He says we are going to ruin the prosperity of the State, going to destroy all of its corporations, private corporations, and all its transportation and transmission companies. Now, the gentleman (Mr. Thcml, I think, will draw largely on his imagination. I want to get him out of that. We intend to make them prosper and grow and flour- ish, That is the object of this commission, and after it has been put in the Consti- tution and been in effect for a year or two, the gentleman from Norfolk (Mr. Thom) will just walk out cf his office down there in his beautiful city by the sea, and just look up the railroad, he will see a great big engine "Comin' round the curve. A puffin-' and a tcotin' And a strainin' every nerve." (Laughter.) I stand here to tell the opposition that the old State is going to flourish under this article, which I say will be an ornament to the Constitution. I expect we will get it through about the spring-time, in the sweet spring-time, when the squirrels make love to one another in the Capitol Square, when the honey bee sips the red clover, and the humming bird gracefully swings o'er swaying flowers : when " a brighter crimson comes upon the robin's breast."' vrhen the wanton lapwing gets himself another nest," when "a livelier iris changes on the burnish'd dove"; when •'■ a young man's fancy lightly turns to thoughts of love." when old A'irginia. like the budding, promising spring, will take on a new lease of life, and light and hope, and love. And I tell you what we are going to do vhen we get the article passed. We are going to get one of the handsomest and most beautiful vomen in Richmond, with long black eyelashes daughter) and golden tresses, and with an eye that gleams and sparkles and flashes and glows and scintillates, and shames the very stars with brightness, and we are going to array her in all the colors of the sun, and we intend to get a crown full of opals and pearls and all manner of precious stones, and we are going to write upon that crown, in front of it, '"'Virginia." Then we are going to have a throne wreathed in honeysuckles and every variety of sweet-scented flowers^ upon which we are going to crown her, and along her pathway to the throne will be garlands of flowers, and little children on either side with happy, smiling faces. In this representative way we are going to crown old Virginia ''Queen of the May, boys, Queen of the May." Thank you for your attention, (Great applause.) Mr. Hamilton: Mr. Chairman and gentlemen, I trust I may be permitted to stand away from my seat, contrary to the rules, as I am hoarse, and have been for some weeks. I regret that I cannot interest and amuse the members of the committee as the charming gentleman who has just taken his seat. To me the question is rather too serious and dangerous in its possible outcome to indulge in the humor which attracts us all., I do not propose. Mr. Chairman, to argue this matter upon fundamental prin- ciples further. I think that has been so fully done by the gentlemen opposed to the report of the majority that I shall have little to say on the subject. I feel that it is not proper to attempt to put in a Constitution, in detail, certainly, any provision of this kind. I feel that the attempt to do so is so full of danger that it is one from which the ablest and mcst reckless man should shrink; but after hearing the state- ment upon that point made by the gentleman from Roanoke (Mr. Robertson), so clear and forcible that I do net see how a word of clearness or strength could have been added to it, clear and forcible to a point which I have never known surpassed, and 147— Lonsr. L^eb. 2330 DEBATES OF THE CONSTITUTIOJTAL CONVENTION" OF VIRGINIA. rarely, if ever, equalled, I do not think it would be right or just in me to take any of the time of this body in going over that point. If these gentlemen who think differently are not influenced by what he said so clearly and so strongly, then they would not be influenced by even one who came from the dead. Now, Mr. Chairman, I think, and through all my life I have acted on that hypothesis, that when a man is addressing a body of people it is but fair that they should know his relations to the subject matter of discussion. No matter how high a man he is, he may unconsciously, and doubtless often is, biased somewhat by his relations to the subject matter with respect to which he is talking. I do not doubt for a moment that many of the gentlemen who preceded me on both sides of this question, unconsciously to themselves, have bias with respect to it. I do not doubt that the accomplished and able chairman of the committee is unconsciously strongly biased; and, judging by what I regret to feel called upon to call the bitterness of some of the speakers in favor of the majority report, it is obvious that they are biased. I am connected with a railroad. For some years I have been the counsel of a railroad, and for some years I have been one of its vice-presidents. To that extent you must know that I may be unconsciously biased. I do not think I am. That is, I am not conscious of it; and when my people sent me here without a pledge and without a voice in opposition, of either race, they nevertheless felt confidence in me, and felt that I would judge of questions fairly and right to the best of my ability. With that statement, showing you as far as I may without bad taste my relation to the subject, I propose to consider it somewhat upon its merits. If this Convention is going to put in the Constitution what is called a corpora- tion commission article — and I think it is probable it is going to do so, although I think it should not do so with any detail — I can see no objection whatever to some- thing going in the Constitution of Virginia like the provision in the Georgia Consti- tution, which is mandatory upon the Legislature, and which will cure and cover the alleged reasons for all this criticism of the Legislature which means and says that the Legislature will not do what some of you say the people want. I do not unite in that. I think the whole demand to put anything in this Constitution on the subject of a corporation commission is absolutely and undoubtedly based and founded upon an admitted distrust of the Legislature, based wholly upon the theory that popular government in Virginia is a failure. There can be no question about that. Gentlemen here of great ability and great sincerity openly say they are opposed to putting statutes in a Constitution, but in this respect they will do it because they say they cannot get the relief which they think they ought to have from the Legislature. No one denies it on the side of the gentlemen favoring the corporation report, because I have never heard questioned the power of the Legislature to put in the law a corporation commission with proper provisions as to its pov/ers, until questioned by the learned gentleman who has just taken his seat, and he merely made it as a suggestion. I say if you are not willing to trust your legislative body, if you have no faith in popular representative government, if you vote that to be a failure, and if you say that we who have come here practically, so far as the people are concerned, I think to do but one thing, to rearrange the suffrage matter of the State; if we, by a fluke, by a chance, an accident, have come here and have gotten into ourselves supreme power which we will never get again, I am sure, is it the idea, and I think it is, of the majority, that we should take advantage of this opportunity when the people have sent us here to do one thing, to do something which the people them- selves have declined to do, so far as we can judge by the action of their representa- tives, for many years. In other words, we are the people, we are the representatives of all sovereignty and all wisdom; and although the people have not considered this thing at all; DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 2331 although it is fraught with danger to the people, although their representatives have been unwilling to incur that danger, even under the form of a statute, which can be changed, we, forsooth, must take advantage of our position to put in the Constitution not only a principle that a proper corporation law shall be passed by the Legislature, not only the mandate that that shall be done, which we have a perfect right to do, as v>^as done in Georgia, but that we shall put in the Constitution an article twenty- six printed pages long, I believe it is — longer I believe than the whole of our present Constitution, full of details, full of danger, full of the necessities for change as Boon as experience demonstrates how it will not work. Now, feeling that there is danger of such a dangerous article going In this Con- stitution, I wish to address myself to the form of the article, and to endeavor to point out some dangers which I think are apparent upon its face, in the hope that if we do a wrong thing, if we do put in the Constitution a lengthy statute, full of detail, we will make it as nearly perfect as pos^ble when it goes there. I have heard all of the debate — I do not mean every word of it, but I have heard almost all of the debate — on this subject. I have heard scarcely anything urged, if anything at all — I do not think I recollect but two allusions by gentlemen favoring the majority report — to any need for a corporation commission, or for this article, except on the ground of cariff rates, of freight and passengers on railroads, and chiefly on freight, I do not think I have heard any complaint as to passengers. I most carefully listened to the exposition of this subject by the chairman and by all those who followed him. I heard the learned and able gentleman from Danville speak for something like four hours on this question, and he is presumed to be well informed and advised on the other side. I do not think I heard from him anything, except possibly a slight allusion without any illustration, as to the need of this thing except that a commission should exist to fix rates of charges for the trans- portation of goods and people. Indeed, I may say that the gentleman from North- ampton (Mr. Kendall), who is one of the most able and eloquent of the speakers for the majority report, stated in his argument, Mr. Chairman, the following, showing that my analysis of these argument and of the need for this action is correct. The gentleman from Northampton, in speaking in reply to some question, used this lan- guage: These gentlemen say we may put something in here that is wrong, that we can- not see into the future; but, gentlemen, the only thing we have really put in it, although we have elaborated it to a considerable extent in this Constitution, is that this commission shall have the power to fix rates. Is that a debatable question? And again: This power to fix rates is a great public necessity, and I say there is nothing in this provision of ours that these gentlemen can object to, or do object to, as I under- stand them, except the provision to fix rates. In other words, the whole tenor of the argument of the gentleman favoring the majority report is that there is a necessity for somebody to regulate and fix rates, but no necessity for anything else. If I am right about that, Mr. Chairman, then why all the residue of this report with what seems to me many dangerous powers? If that is all that is needed, if there is any cry even for that, which I do not believe— but I am taking that as the statement of the gentleman advocating the majority view— why then not confine this report and the powers of this commission to the fixing and making of rates and not risk the danger of other things? The gentleman from Northampton said he did not think anything else was objected to. For myself, and I speak only for myself, I object to the residue of it very much more than I do to the rate-making power. There may he some occasion for it, and I would not undertake to deny it. I do not think it should go in the Constitution in detail, but I believe that in some instances injustice has been done. I believe it is 2332 DEBATES OP THE CONSTITUTIONAL CONVENTION OF VIRGINIA. proper that there should be some fair and just and well constituted tribunal to over- look such matters, with its powers properly defined; but I do not believe that that tribunal should be a tribunal practically of arbitrary and undefined powers, and a tribunal with the powers of prosecutor, judge and legislator combined. I do not believe, Mr. Chairman and gentlemen of the committee, that there is any real complaint, anything approaching a reasonably general complaint, of anything even connected with the rates for freight, so far as the justice and reasonableness of those rates themselves are concerned. As I said, although I have been connected with one of the railway systems of Virginia for years, with some executive duties to perform as well as some duties of counsel, I have not heard in all of this discussion a single word of criticism with respect to rates or anything else of any railroad com- pany except the Chesapeake and Ohio, the Norfolk and Western and the Southern. With respect to those rates, so far as my recollection serves me, there were one or two sporadic charges of complaints made against the eastern and western lines of the Chesapeake and Ohio and the Southern, things which might happen most inno- cently, certainly not necessarily intentionally, in the management of any large piece of property, matters which, in my judgment, should have been corrected promptly when attention was called to them. With respect to the other road, the Southern. I have heard nothing in complaint of it except what we may call the Danville case. Now, gentlemen, I am not prepared to express a judgment on the Danville case. I do not think any of us can form a judgment on a particular case and on a particu- lar state of facts, especially one under litigation, one which is in the courts, one which has been bitterly contested and fought, when we have heard only one side of the question. I will say, very frankly, that my impression is that Danville has not been as well treated as she should have been. I may be wrong in that impression, but it seems to me she has not been as w^ell treated as she should have been, or that her situation is a very peculiarly unfortunate one. And, gentlemen, if you think about it, the complaint there is not that the rates that Danville has are not in themselves just and reasonable. I know from one of the representatives of the city of Danville, a man of the highest information and character, that they do not complain of the actual amounts of freight charges to and from their place. What they complain of is what they call the discrimination against Danville as compared with other rival cities seeking the same trade and busi- ness, and it is in that respect that I feel I have the impression that Danville has not had justice done to her. I may be wrong. I would not give a judgment, if I had the power to do so, without hearing the other side; but that is my impression. I mean to say, though, that there is practically no complaint in Virginia as to the justice and reasonableness of the actual amounts of rates charged for the service rendered; and the Interstate Commerce Commission say that is the case. Reading now from the speech of one of the gentlemen who has preceded me, and he quoted from the Interstate Commerce Commission, the Hon. Martin A. Knapp, chairman of the commission, said this: "In the first place, as Senator Elkins says, the question of excessive rates; that is to say, railroad charges, which, in and of themselves, are extortionate, is pretty nearly an obsolete question. I would not affirm that there are no such rates, yet, broadly speaking, there are not many such. Those are not the rates of which the public complain. The discriminating practices, which are accom- plished either by a compliance with the present law or in disregard of it, are things which really affect the public interest." And so it is here. There was not a word of complaint made by the learned gentleman who argued the Danville case before us, as I understood it, of the inherent unreasonableness of the rates charged there; but he said, and it seemed to me with great force and justice, hearing only one side, that he did not think it was right and fair that Lynchburg should have the advantage in rates over Danville when the stuff went to Lynchburg through Danville and Lynchburg was further; and, although DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. 2333 lie did not say it, I presume he meant the same thing as to South Boston. It is the discriminations that they object to. It is the putting one community in an unfair position, as to do business and as to making a living, compared with another com- munity, when the same transportation line serves both communities, and putting the one farthest and less advantageously located, so far as that transportation line is concerned, in the position of vantage. That is what is objected to. Now, gentle- men, on that point I think you will see, if you have not already seen — I think you must have seen — that almost the whole of that contention, the whole of it, I may say, is based upon matters and things with respect to which a corporation commis- sion in the State of Virginia would have absolutely no power growing out of inter- state conditions. The volume of business done in Virginia which .is purely intrastate, and with which only a railroad commission in Virginia could deal, a rate making commission, is very small. I do not know what it is on other roads, but on the Atlantic Coast Line it is only 3 1-2 per cent, of the total business of that line done in the State. I mean it is quite small with others. I do not mean business starting here and going elsewhere out of the State, or originating somewhere else and coming here, but busi- ness that starts in this State and stops in this State; and that is the only business about which you have the jurisdiction or authority to erect any court. , If I understood the gentleman from Danville, and I do not know clearly whether I do or not, I had the impression that he argued merely this interstate question to show that a road that would not do right, as he looked upon it, in interstate matters would do wrong in purely local matters. I do not think that argument was as strong as it should have been to carry conviction to an audience or to a court, but I think I understood the gentleman to say that there was actual discrimination in local rates in and around ' his town as compared with Lynchburg certainly, and possibly other places. If that is the case, certainly he should have some tribunal to which to go to correct such a trouble or difRculty. If he has not one. he ought to have one. The people, whenever such discrimination or injustice exists, ought to have a court to which they can resort to correct it. I have never had any question with respect to rates or tariff before any of these commissions, or before any of these boards. The road with which I have been con- nected has been so fortunate as never to have had, I believe, but one controversy of that nature, and that, amusingly in this connection, was when the city of Wilming- ton, North Carolina, bitterly complained that Greensboro, Salisbury, and Danville had the better of Wilmington in rates. Wilmington felt that she ought to be put on as good a basis as Danville and the cities of western Carolina, and that was before the Interstate Commerce Commission. The fact is, gentlemen, the question of rates and charges for transportation, if I understand it — I know I understand very little about it indeed — is one that is so complicated, so interwoven with conditions with respect to location, with respect to products to be handled, with respect to the points where the people trade, the kind of business done in this, that or the other city, and whether it has a rival some- where else that works in the same territory for that business, that I do not believe that any absolute hard and fast rule can be laid down which will not operate greatly to the trouble of somebody or community. For instance, I have received, and I suppose other members have received them, great numbers of resolutions passed by Chambers of Commerce in Virginia, asking me first to vote for what was called the Withers bill, which they had never read or seen, I am sure, and then successively asking me to vote for everything else that was put up by the Corporations Committee, including that first report, which is spoken of now as having been tentative, and the greater portion of which was abandoned after argument with respect to private corporations. Mr. Braxton: He has referred to the first report of the committee. There never 2334 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. was but one report. The paper he refers to was published by the newspapers, but it was not a report made by the committee. Mr. Hamilton: I understood its publication was authorized. Mr. Braxton: As a matter pending before the committee. It was authorized to be published as a matter pending before the committee. Mr. Thom: If the gentleman from Petersburg will permit me, I should like to ask the gentleman from Staunton (Mr. Braxton) if at that time the paper was not favored by the committee? Mr. Braxton: I cannot say it was. Mr. Thom: Was it not favored by the chairman and prepared by the chairman? Mr. Braxton: It was prepared by the chairman and considered by the chair- man, but it never was in such condition as that the chairman was ready to make it as a report; and even those gentlemen who voted for it, many of them, voted for it as a tentative article, and repeatedly stated at the time that they were not prepared to vote for it as a final article; and, although the chairman at the time did favor the general proposition, it was not then in a shape in which, so far as I know, any member was ready to vote on it as a final report. Mr. Hamilton: Mr. Chairman, I was referring to a paper published, and I understood the chairman in his opening remarks, in presenting this subject to us, to say it was not published as the adopted report of the committee, but that it had been tentatively adopted, if I may so express it, and that it was published for the purpose of eliciting the criticism and the comm.ents of the public with respect to it, and I presume with the proper view of aiding the committee in reaching a final just con- clusion. Mr. Kunton: I think my friend is in error there. I do not think there was ever any publication with a view to bringing about a hearing. The only way in v/hich the hearing was brought about was by a letter from certain business men in the city of Richmond asking to be heard. Mr. Braxton: My friend from Fauquier (Mr. Hunton) is certainly in error. I wish to say that on several occasions the chairman of the committee took occasion, when the committee was in session, to say that he hoped all corporations or men interested in any matter pending or likely to come before the corporation committee would present their views to the committee, and finally, when it was agreed that these matters, pending in the shape in which they then were, could be published, it was for the purpose of eliciting public criticism on them, and there has never been a time known to me when I have not, and the committee, as far as I know, have not, invited public criticism and been ready and anxious to accord hearings to any persons who desired to be heard before that committee. Mr. Hunton: My recollection is very different from that of the chairman of the committee. My recollection is that there was nothing ever said about a hearing until certain business men of Richmond addressed a communication to the gentleman from Manchester (Mr. Ingram) and requested that there might be a hearing. After that hearing was granted the position of the committee was in favor of giving hear- ings. Prior to that, my recollection is that the whole purpose of the committee was against giving hearings. Mr. Hamilton: Mr. Chairman, if I may be permitted to proceed, I think I may say there was a paper — I do not know whether it was published or not; I think I heard it was published, but I had a typewritten copy of it given to me, and I was told it was the report of the Committee on Corporations — and as to one section of it, or something of that kind, there were some reservations as to future consideration. At any rate, that was the paper, or a copy of what other people saw, Which aroused the very active feeling and strong antagonism of almost all the business people of Virginia with respect to all the corporations except what were called the railroad corporation. Those people came here and they had hearings. They had more than DZBATES OF THE COXSTIirilOXAL COXVZXTIOX OP TIEGIXIA. 2335 one hearing. They certainly had two; and after those hearings the most of that portion of the report disappeared. Wh.ether it was due to the hearings or not I do not know. I suppose so. It looked like it: hut.. Mr. Chairman, I think I was saying there is no demand in Virginia for anything connected with the control of railroads, because that is really what you are after here, as I understand it, on any point, except to have somebody to say what is a reasonable rate, and to prevent discrimi- nation. As to the first point, what is a reasonable rate, I ?ay there is really no demand for action, and that is shown by what I have read from the Interstate Commerce Commission's report. It is shown by the facts known to us all. There has not been a suggestion made by any gentleman of this body that the actual rate charged any- where in the State by any road was unjust or unreasonable. Tke whole complaints have been that there has been discrimination. Taking that view, Mr. Chairman, tliat there should be, if there does not exist nov%-, a tribunal in Virginia to correct such discrimination, I believe, and I have heard it stated by a man who had looked into the q.uestion, and who had troubles about discrimination in his section, and who is a lawyer of great ability, that the existing statute law is amply ^jfficient to give that relief, but if it is not, we ought to have it in the shape of a court or a statute or a commission, or something. But it does not follow from that we .should put it in the Constitution, and put the details of it in the Constitution; and there is no claim for anything else. Why on earth we should have in this article, under the existing conditions, anything with respect to regulating and controlling corporations, other than fixing and regulating and supervising their rates. I am at a loss to see. No argument and no statement of facts have been put in here to justify it. Mr. Chairman, if it is desired, if it is insisted upon, that something shall go in the Constitution about this matter, take the Georgia provision. I do not know that I am altogether favorable to the minority article. I think the reasons for the minority article given in the minority report are stronger than the article, but I think there is enough in the article to give the relief asked for. The chief difference between that and the present law, as I understand it, is first that it expresses in so many words that the rates shall be reasonable and just, and it expresses in so many words that there shall- not be dis- crimination, and it embraces, furthermore, what never existed in the law heretofore, the Mason bill, as it is called, or any other, the absolute right of a railroad commis- sion or commissioner to investigate these matters, to hear complaints, and to take those complaints into the courts with all the legal power and with all the money of the Commonwealth behind that complaint, to rectify the wrong if it exists, and not at the expense of the shipper. In my judgment, that is sufficient, and it is sufficient in the'judgment of one of the ablest lawyers I know of in this body, who has ex- amined this matter before, and whose interests were not towards the railroads at the- time. He thought there was law enough in the law as it exists now. But if that is not enough, do not put in your Constitution twenty-six or thirty" pages of detail, which all of us find it difficult to understand, even if the gentleman from Pulaski (Mr. Wysor) and the majority do understand it so thoroughly. I do not think they do understand it as thoroughly as they think. I have talked with the- learned chairman of this committee before this matter came before the Convention, and he. with a frankness which has always characterized him, has admitted that certain suggestions with respect to the meaning of the paper needed improvement, needed clearing. I do not think any man or any committee can draw a paper of that length which cannot be improved upon consideration. Now, Mr. Chairman, the Georgia Constitution, as I understand it— I have not it before me — in substance says that the Legislature shall make a corporation com- mission; that this corporation commission shall be granted the right to fix rates, and there shall be certain rights of appeal from them, and so on. It gives^ ail the- 233G DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. relief necessary. We have had Georgia referred to here as the most prosperous State of the South. It is the most prosperous of the Atlantic States of the South, more prosperous than any other State in the South except Texas. It has made more advance since the war than any other State in the South except Texas; and v/hy should we go beyond Georgia? I believe they call it the Empire State of the South. This is an attempt, in my judgment — laugh at it as much as you please — to practically put your hand upon the throat of enterprise and the investment of money in your State, and choke it to such an extent as to s-care it very badly, if you do not kill it. There is no occasion for it to accomplish your purpose. If you have no faith in your Legislature, if you do not think that without a positive mandate they will do what they ought to do, make the mandate in the Constitution, and tell them what they shall do, but do not let us put in the Constitution the details of twenty-six pages of matter with respect to the minutiae of managing corporations. My friend from Staunton seems to be sensitive even about a slight change, but I say that a man would be more than human who could draw such a report without its needing change €ven after six or eight or ten months' labor, and I know he has given to it the most unremitting labor, and learning. I do not think he should be sensitive on the point, for it is more than any human being can do, or than any dozen human beings can do. It is wrong to put it in the Constitution where we cannot alter it and change it with respect to minor details. But acting on the supposition of the pos'sibility of this thing, which I regard as bad, and which I believe will return to plague us all, not the railroads alone, but the great body of the people, and the business interests of the State, I want to take up the report itself and endeavor to point out some defects, even if it is a perfect instrument, Mr. Chairman, in the hope that if I can commend my reasons to this body we will get this paper in as good a shape as possible, if we are to take it in the Constitution. These, Mr. Chairman and gentlemen, are criticisms which I have to make of the article; criticisms intended honestly and in good faith to better the report, not made with a hostile eye or feeling to the report, but with the feeling that if I am to have this to go in the Constitution, I wish it to go in the Constitution in the shape to do as little harm as possible, consistent with carrying out the views of its authors, the majority. In the second section, on page 2, line 2, we read the following: The creation of corporations and the extension and amendment of charters (whether heretofore or hereafter granted) shall be provided for by general laws. Now, I may be very stupid, much more so than the average man, possibly even as stupid as the gentleman from Roanoke — and if I am, I would thank God — but I do not understand that. I do not understand that the creation of corporations heretofore granted are to be provided for hereafter by general law, unless the committee means to revoke all the existing charters in the State and start fresh under general laws. At any rate, it is doubtful to a mind as limited in capacity as mine, and I think if it is doubtful to me it ought to be made clearer, because I believe I have average intelligence and knowledge of law. Mr. Braxton: Does the gentleman think that any court would have, difBculty in applying the parenthetical clause to the word " charters " which immediately precedes it so that it would read, " The extension and amendment of charters, whether those charters had been heretofore granted or not?" Mr Hamilton: I do not know what a court would do. I had trouble about it, and it was an honest trouble and an honest difficulty, and not one raised up here to plague you or the committee. If it means what you say it means, it should be so expressed, it seems to me, so that we may know what it means — not an extra- ordinary man of extraordinary mind, but a man of fair mind ought to know what Jt means. DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF TIRGIXIA. 2337 Mr. Braxton: May I ask the gentleman how the word "granted" would apply to corporations? What would you mean by granting a corporation? Mr. Hamilton: Why, you grant a charter to a corporation. Mr. Braxton: And therefore it refers only to charters, and not to corpo- rations? I am merely making the suggestion to the gentleman in the hope I may relieve the difSculty he suggests, that the context and meaning of the words is such that it could not possibly apply to corporations, when you say "hereafter or heretofore granted." It would not mean whether the corporation was heretofore or hereafter granted, but the word ''granted" could apply only to the word "charter," ivhich immediately precedes it. Mr. Hamilton: To my mind the creation of every corporation is necessarily •connected with the concept of a grant. It cannot exist without a grant from some person authorized to grant its life, that is, its charter. Its existence depends upon ration in the same sentence, without language to show that it refers only to an ex- tension or amendment, I do not think it is clear that it does not refer to the creation 'Of a corporation. Now, the next line — and I read these few lines again to get the connection — The creation of corporations and the extension and amendment of charters (whether heretofore or hereafter granted) shall be provided for by general laws. It seems to me the clause or sentence ought to stop there. It is followed by the words "uniform as to the class of corporations to which they relate." Now, Mr. Chairman, I do not know whether we have hundreds, but I presume we have hundreds of existing corporations in Virginia not inimical to the public Interests, not complained of by the public, but with different powers, different charters, different sorts of authority granted them, none of those things objected to, as far as I know; corporations which have acted under those charters, their charters of life for a long time. Whenever an amendment is made in the future, that amendment is going to have the effect, in the creation of corporations and in these extensions, of making every charter of a corporation, of the same class, uniform. Now, gentlemen, there are a great many provisions, probably, in the con- solidated charter of the Southern Railroad Company that the Atlantic Coast Line does not want, and vice versa, probably. I have no doubt there are provisions under the charter of the Chesapeake and Ohio Railway Company that the other railroads do not want in Virginia. The conditions are different, the circumstances are different, their needs are different, their financial status probably is entirely different: and yet, with that last line in, no amendment, no matter how innocent, no matter how unobjectionable, no matter how much it is desired by all parties to grant it, can be given to any corporation of a certain class unless that thing is fastened upon every other corporation of the same class, whether it fits it or not. I say those words "uniform as to the class of corporations to which they relate" should be stricken out. They are of no value. The subject has already iDeen covered in the legislative report, and if enforced it simply means trouble and confusion. Mr. Meredith: Will the gentleman examine and see how far that differs from the legislative report on that subject? Mr. Hamilton: My impression is that the legislative report, as adopted, made some change that would have covered that point. I think there was a change made on the floor of the Convention or of the Committee of the Whole, I have forgotten which, which covered the difficulty of that subject to some extent. I have not examined it with care. Now, Mr, Chairman, as to the creation of this commission. The commission is to be permanent and to consist of three members. They are to be appointed by 2338 DEBATES OF THE COlsSTITUTIONAL CONVENTION OF VIRGINIA.. the Governor. Well, I say here I believe it is a better way of creating a commis- sion of this kind than to elect them by the people. I think the men are more apt to be selected with respect to their special fitness for the duties they have to discharge. I approve of the method referred to and approved by the committee- in that respect, as between it and the other methods. I do not believe that elections by the people would be best for the State, best for the people, or best for the railroads. I have known railroad commissioners in the South, when they had to be elected by the people, to go upon the stump and promise in advance what they v/ould do and what they would not do in the discharge of their official duties as judges if they were elected: I think it is a bad way to elect these judges,, as well as every other kind of judge. Of course, there are grounds to object to it. Some people say you are aggre- gating too much power in the hands of the Governor, that the Governor in future will have more power than he has ever had before in Virginia, that he will get to be such a great power that he will dominate the State of Virginia. Y/ell^ of course that is a danger. I must confess that under the present Executive of this State, from what I have seen of him, from what I know of his views about ap- pointments, I would look for good appointments, appointments made not only because it is right to make good appointments, but from a high, intelligent sense of policy on the part of the present Executive; but, gentlemen, we do not know what we may have in the future. You cannot tell whether you are always going to have a Governor like the one we have now; and whilst I am not objecting to his appointing them, I think that is a strong reason why you should define and limit the duties of these commissioners, just as you have defined and limited the duties of your other judges, and of your Legislature, and of your Governor, Another thing: The Governor is to appoint these men and they are to be subject to confirmation by the General Assembly in joint session. That seems to be about as good a way, in my judgment, as you can get at it. Their regular term of office is to be six years. In my opinion, gentlemen, it is too short. You elect your judges of the Court of Appeals for twelve years. You give the people- bigger and more arbitrary power than you give your Court of Appeals. You give these people the power of prosecutor, judge and legislator. If you are going to have the work well done, they ought to be put upon the basis of a long term, with a salary as high as you can afford to pay him. Remove him as far as possible from temptation. I do not mean, of course, foolishly high, but high enough cer- tainly to obtain a first-class man to occupy the position; and then, gentlemen, do not let him be eligible for re-election, provided what you have done heretofore in this line is well done with respect to eligibility. I have always been opposed to the ineligibility idea. I objected to it for commissioner of the revenue. I objected to it for treasurers; but if it was true there that you ought to put a man beyond" the reach of temptation with respect to a re-election in discharging his duties, it is still more true here where these people probably have to deal with a third of the values of Commonwealth and with powers undefined and of a very arbitrary nature. Make the term the same term as the Court of Appeals term, twelve years. Give^ them the same salary that you give the judges of your Court of Appeals, $4,000, and make them ineligible. Fix it so that they will not have a better chance to be re-elected by being unjust judges and being demagogues on the bench, and pan- dering to the passions of the passionate portion of the populace and at the same- time that they shall not, by improper leaning towards the corporations, get their influence for a re-election. Every reason which could have been given as to the ineligibility of these other officers applies in a stronger degree to these men, clothed with such extra- ordinary powers and jurisdiction, and dealing with subjects of such great value. DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF VIEGIXIA. 2339" In stating my vievrs with respect to the appointment of this commission, its salary and its term and ineligibility, I wish it to be most distinctly understood that I speak only for myself. I do not know what views other gentlemen take who are opposed to this majority report. I have not conferred with them in re- spect to the matter, and in no sense must you understand that I am speaking for them. I am merely saying what I think, because if we have this thing, if w& are to put in our Constitution a dangerous thing, I wish it put in such a shape that it will work out well and bring good results, and not that we will get in those positions a lot of broken down politicians and trashy people that run around seeking offices. I understand there is already springing up something of the kind, that they are beginning to come to Richmond already to seek the place of railroad commissioner. There are people who imagine they are great railroad people and experienced because, possibly, they have had some slight connection with promoting a bob-tail line somewhere, and they think they are especially fitted to be railroad commissioners. I think if we have it, we ought to have it under such conditions as almost to insure us an administration by high, honorable, intelligent men; as high, honorable and intelligent as we can get for salaries in the State of Virginia, according to our means and the ordinary methods and conditions. If this law were to be administered, even in the form in which it is presented by this committee, by the Court of Ap- peals, and I were sure it would always be administered by people of that sort, I would not care to detain you for one moment to argue the question, because even as dangerous a law, even as a bad law, unless the badne^ was mandatory in it, I am sure those men would so administer as to bring justice and equity out of it; but you do not know what sort of people you are going to get to administer it . You hope the Governor will always be a high, sensible man, and will appoint good people; but you do know, gentlemen, the influences which environ all of us, and especially governors and men high in power, and ambitious men. You know perfectly well that when a man gets to be Governor in Virginia, as a usual thing, he expects to be United States Senator in due course of time. I never saw one who did not expect it, or did not have a sort of an idea that way if he was encouraged at all. You know they are mighty good; they are very high, much better than we are, of course, but they are human, and the appointments that are made on this commission will probably be very fat plums, and probably it will make a good deal of difference if a man is a very Influential politicians in his section of the State. Put it high enough so that when a man goes on, it is worth having : let him be on for a good long term. Give him a salary that will enable him to live decently, to be reasonably above temptation, and then when he serves out his term, let him be forever ineligible again. Mr. Meredith: Does the gentleman make any suggestion in the way of amend- ment? Mr. Hamilton: No: in speaking now I cannot undertake to put in the amend- ments. I was endeavoring to go over the report suggesting, really with the view of trying to better the report, as to certain things which strike me as subject to just criticism in it. Whilst I am on that point, this is a provision which is put in in respect to the qualification of these men: No person employed by or holding any office in relation to any transportation or transmission company, or who is in anywise financially interested therein, shall hold office as such commissioner or perform any of the duties thereof. I think that is a usual provision in such statutory provisions, and I see no ob- jection to it except that it looks to me as if it is one-sided. I do not see any more reason why a shipper, interested in the business of transportation, should be eligible to serve on this commission than a man interested in or connected with a railroad 2340 DEBATES OF TIIE CONSTITUTIONAL CONVENTION OF VIRGINIA. company. I can see that a man might be put upon the commission who had great interests to subserve improperly as a shipper, I do not see why the railroad man should be the only man guarded against such influences. Everybody, I take it, Mr. Chairman, represents something in this Convention. I take it there is not a man here who does not represent property or interests or people or thoughts — something valuable. Are you to single out and segregate one thing and treat that, as the gentleman from Roanoke (Mr. Robertson) said, as a pariah? I think no man who serves upon this commission should have any financial interest of any sort In the results of the work of that commission, except as a citizen of the State. There should be an in- hibition against any man serving upon It who had any selfish personal interest to serve beyond earning his salary. The next qualification for a member of that commission is one which I cannot help commenting upon. I cannot say I object to it, and yet we have just seen It shown that nobody having anything to do with a railroad should be a commissioner, and the next clause is that at least one member of the commission shall be a lawyer, with the qualifications of a judge of the Court of Appeals. Well, I think a good deal of lawyers. I think a good lawyer is about the best man in the world, and a mean lawyer is probably about the meanest man in the world. I think there are very few committees and very few enterprises that can get along successfully and well with- out the advice and aid of a good lawyer. I think it is a very good thing to have one on the commission, but the chairman of the committee does not agree with me. As I understand his opening remarks, he says in some places that this is a court, and a court of great power, great responsibilities, great duties; and, of course, if it is a court it has judicial functions; and in other places he says the making of rates which is put upon this thing is a legislative function. I do not myself see why this body cannot exercise both the legislative and ju- dicial function, so far as the making of rates is concerned, but this is what he says in reference to that matter. I regret I am taking the time of the members, but I cannot help feeling that I have not trespassed greatly on you heretofore, and as this is important, I hope you will forgive me. The chairman of the committee, in opening this subject, and in arguing that the courts of the Commonwealth were not the proper places or tribunals to try questions connected with the fixing of rates, and the reasonableness of rates, in order to justify this commission, said the court was not fit to fix rates, and did not have the knowledge or the sense or the experience to do so. He says: "In the first place, as was held by the Supreme Court of the United States in the case of Munn vs. Illinois, 194 U. S., the fixing of rates is not a judicial question. The court is no more able, by reason of its being a court, to fix rates, than a doctor is. A man may be ever so learned as a lawyer, and whatever his individual capacity in rate fixing may be, his knowledge as a lawyer no more helps him in fixing rates than a preacher who depended upon his knowledge of theology would be assisted in fixing rates by that knowledge. It is not a question of law. It is a practical question; it is a business question. It is a question that any good merchant, manufacturer, banker or shipper of any sort is better able to deal with, so far as the experience of his business is concerned, than a lawyer is. Why, then, refer it to the courts?" Gentlemen, what is there about it that makes it not a court, so that a lawyer is peculiarily unfitted comparatively to discharge the duties of a member of that court? And yet, in saying who shall go on the court, the chairman (the committee) says that one lawyer, with the qualifications of a judge of the Court of Appeals shall be a member. It seems to me he is right, possibly in the article about the lawyer, and wrong in the reasoning with which he presented this matter to the com- mittee, and said that a court was not fit to fix rates or to consider rates. As a mat- ter of actual fact, he has not acted upon that supposition himself. He has granted a right of appeal from the commission to the Supreme Court of Appeals with respect DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF TIRGIXIA. 2341 Certainly a court without a lawyer on it would be somewhat extraordinary. I have seen them, though. I\Ir. Chairman: but I believe this will be far more than a court. It will be the Commonwealth's attorney and the court and the Legislature combined, as you will see later ' on. It has the power of initiating a prosecution, of working tin complaints for itself, and then it has the power of saying whether its own v>-ork was correct and justified or not; and then, under this article, it i^ given the sole power of permitting this despised body called the Legislature to make any changes even in the machinery of it. In other words, no legislation can take place with respect to this article unless these gentlemen, who are first prosecutors, com- plainants, themselves, then judges of their own complaints, come to the Legislature and say. "We recommend to you that you do so and so with respect to the machinery of this act. but not with respect to the substantial rights, and if you do not do what we recommend you to do, you shan't do anything."' This is the extraordinary body that is put up here with the powers, as I say, of a prosecutor, of a complainant, and a judge. Is there any man in this Conven- tion who vrould be willing to trust to a judge who is also the prosecutor? You may find some rare exception in life when a man's mind is so high and so well balanced, when his sense of justice is so keen, that even when he is a prosecutor he is a quasi jiTdge, and stands up to see justice done, and net to endeavor to punish people. I have known one such prosecuting attorney in my life, one man as prosecuting attor- ney to whom I would have been willing to trust the decision of my guilt or mnocence if I had been charged with crime in the court where he was an officer; but. gentle- men, they are so few that you cannot base your legislation upon having it executed by that character of man. Now, Mr. Chairman, some of these gentlemen say there is nothing in this report except the right to fix rates: that is, that the balance of it is nothing, and that the opponents of the report do not care for the balance of it. That is not the case with me. I object to the rest of it far more than I do to the rate power. I think the "state ought to retain the control to see that the rates are reasonable and proper, but not confiscatory. I do not give my assent to any such doctrine as that the State either has the right, morally or legally, to say that rates shall be such that property may be practically destroyed, provided you simply keep away from the actual break- ing of the camel's back. I believe the implied contract between the State and the corporation she creates is that the corporation shall fairly and in good faith dis- charge any public duty which it has undertaken to discharge, and that the State will protect it in that discharge, and that the corporation shall not go further than the proper and reasonable exercise of its powers, and that the State has no right to require it to go further than that. So we come to Section 4. By the way, before I come to that, it is provided on page 6, although these first commissioners must be appointed by the Governor and confirmed by the General Assembly, that after the 1st of January. 1909. when the longest term of the fir^ lot will end, the General Assembly may provide by law for the election of the commissioners by the people of the State at large, instead of by appointment by the Governor. If that is a correct proposition, if that should go into the Constitution, I do not see any reason why^ it should not go in now just as well as in 1909. If it is proper that these commissioners should be elected by the people, why should we defer the exercise of that power and that method of selection for eight years? It seems to me we should determine here, after mature judgment and deliberation, the best way to select these people in order to get high and efficient men to discharge these duties well, and then fix it in the Constitution as to how it shall be, if we put any statute in the Constitution. In Section 4, page 6, I will read so as to show you the point of my criticism: Subject to the provisions of this Constitution and to such requirements, rules, and regulations as may be prescribed by law, the State Corporation Commission shall 2342 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. to these rates, and, furthermore, he says this commission itself is a court, and there- fore we are simply going from one court, maybe, to another court, with new officers created, to whom we will submit these questions. be the department of government to which shall be issued all charters and amend- ments or extensions thereof for domestic corporations, and all licenses to do busi- ness in this State to foreign corporations. Now, therefore, gentlemen, you see that all sorts of corporations are embraced in this matter, all of our own corporations, however chartered in this State, and all corporations doing business in this State or other States or other countries and through which shall be carried out all of the provisions of this Constitution and the laws made in pursuance thereof for the visitation, supervision, regulation, and control of corporations chartered by or doing business in this State. These corporations, gentlem.en, that you are giving this commission the control and the regulation of are not solely transportation corporations. They are not solely transmission or public service corporations, but you give to these three men the right of visitation, supervision, regulation, and control of every corporation of this State and of every foreign corporation doing business in this State. Mr. Meredith: Is not that "subject to the laws made in pursuance hereof?" Mr. Hamilton: Of course it is, Dut the laws cannot be made contrary to "hereof," you know. Mr. Meredith: But they do not have any pov/er under this Constitution- Mr. Hamilton: You have said it in these lines: "It shall collect, receive, and preserve such reports, and annually tabulate and publish them in statistical form." In other words, Mr. Chairman, these three men are granted the power to visit; that is, to inspect, to look into the very inside of every domestic corporation of this State and every foreign corporation doing business in this State. Mr. Meredith: Do I understand you to contend that by the provisions of this article they are given that power? Mr. Hamilton: I do, most distinctly, because it says, "It shall collect, receive, and preserve such reports." There it is, "for the visitation" and "through which shall be carried out all the provisions of this Constitution." Now, Mr. Chairman, I mean to say this, that it is a very dangerous power to give to any set of people — to require an ordinary businessi corporation to exhibit private affairs and its business to the public. I mean to say that if two sets of people doing business under a corporate form, or if one is doing it that way and the other as an individual, and the individual can see what his rival is doing, can look into the results of his business and see what his work is, he will, and the corporate business will be at a great disadvantage, and people will quit that form very rapidly. I have always understood it was a fundamental principle of good business for a man or a company to keep to itself that portion of its business with which the public is not specially concerned, or which it is not its duty to exhibit to the pub- lic. If you are going to expose to public inspection the details of all the business carried on in the State — and this is positive, "it shall collect, receive, and preserve such reports, and annually tabulate and publish them in statistical form," and the reports are to be kept by the commission, and they will be open to the inspection of anybody in the world, just as much so as one of the records of the Court of Ap- peals Mr. Braxton: Will you point out where it is that this commission is given the power to prescribe the sort of reports private corporations shall make? Mr. Hamilton: I beg your pardon for .not being able to turn to it at once, but there are twenty-six pages of this report and ten sections, and I cannot recollect it all, or exactly where everything else is in it, but I know there is a section back liere which has some bearing upon this, and I think there is another section which DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 2343 requires visitation and requires reports. I think the gentleman himself a moment ago asked me if that was any more than the power given the Board of Public Works. Mr. Braxton: No; I asked you if the power of prescribing the form in which reports that are required by the Legislature shall be made is not a power which the auditor has now. I wish to call the gentleman's attention to the distinction between prescribing the form in which reports shall be made. The statute to-day says that the auditor shall prescribe the form in which such reports as are required by law shall be made, and that is all we intend that this commission shall do. I wish to say that if this article is susceptible of any such construction as you put upon it now, certainly it is far beyond the intention of the committee, and we have no idea that it is susceptible of such construction. I think the gentleman upon further inspec- tion will see that he is mistaken in thinking that this commission is authorized to prescribe any sort of report for any private corporation in this State, but merely to prescribe the form in which a report had been designated and required by law shall be made, Mr. Hamilton: Mr. Chairman, undoubtedly this commission is given the power somewhere here, and if it is not, the law will give it the power, to require some kind of a report, and the Constitution, of its own vigor, gives the power to the commis- sion to say what is the form of that report; and the commission may exercise that power certainly in a very imprudent manner. I think I have accomplished something in calling the attention of the learned chairman of the committee to the danger of this provision. He thinks it is not a danger, but I would much prefer, Mr. Chairman, to drive a little farther from the precipice which will expose all the corporate business of public and private corpo- rations in Virginia to the inspection of rivals and the public. It makes no difference to the railroads. Everything they do is now published to the fullest degree. No other corporations that I am aware of publish, as the railroads do, everything in detail connected with their affairs, but I do say that is a dangerous provision for the business and corporations of the State to have put upon them. It is an enor- mous power and an enormous danger to put in the hands of these commissioners. In Section 15 it is provided as follows: The General Assembly shall require annual reports to be made to the State Cor- poration Commission, of their affairs and conditions, by all corporations doing busi- ^^J^^^ State, the character or extent of whose business shall render publicity in their affairs essential or conductive to the public welfare. Now, who is to determine that? Is it the Legislature or the commission? The General Assembly shall require these reports to be made to the State Corporation Commission of all corporations doing business here, the character of whose business would not be injured by it, or would render publicity desirable. Who determines it, I da not know. If it is left to the Legislature, if they can determine whether it will do to publish the details of one corporation and not of another, I should think they could be trusted to attend to a few details connected with the operation of this scheme, but they are not permitted to do so. But that is not all there is in here about the visitation. It comes in at another place, and I will get to it in the course of my argument. _ Certain it is that there is a positive direction in Section 4 that these commis- sioners shall collect, receive, and preserve certain reports, and annually tabulate and publish them in statistical form. That is not dependent upon what the Legislature does or does not do. It is inconsistent with what is provided in Section 13, and, inasmuch as these commissioners are given the express power to prescribe the form of that report, it seems to me that the Constitution, of its own force, not only gives the commissioners the power to get this information and these statistics but com- pels them to publish them as well. 2344 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Mr. Braxton: If I understand my friend correctly, he believes the provision he refers to in Sub-section A of Section 4, leaves it in the power of the commission to* say what these reports shall be? Mr. Hamilton: Certainly it does. Mr. Braxton: But I desire to call my friend's attention to this: "The said com- mission shall prescribe the form of all reports" — those reports which may be re- quired of such corporations, not by the commission, but by the Constitution or by law; and it is only those reports that are required by law or by the Constitution which they have the right to prescribe the form or to collect or to publish. Mr. Hamilton: Do you not propose to require all of them to report? Mr. Braxton: I do not. None of them are required to report, except as may be prescribed by law. Mr. Hamilton: I think Section 4 says that the report shall show anything that the commission lays down or requires, and it certainly requires that it shall be something which has figures or statistics in it. Mr. Braxton: The present statute has for years provided that the auditor shall prescribe the form of the reports which the General Assembly shall require, and it has never been intended or construed that the auditor has a right to do more than to arrange the form in which the information called for by the General Assembly shall be stated. I have used almost the identical language of our present statute. Mr. Hamilton: As a matter of actual fact, have there ever been any such re- ports made to the auditor, except as to transportation companies? Mr. Braxton: Yes, sir; by insurance companies and banks. On motion of Mr. Robertson, the committee rose and the President resumed the chair. On motion of Mr. Lindsay, the chair was vacated until 4 o'clock this afternoon. AFTER RECESS. At the expiration of the recess the committee resumed its session, the President pro tempore (Mr. Anderson) in the chair. On motion of Mr. Braxton, the Convention resolved itself into Committee of the Whole for the further consideration of the report of the Committee on Corporations, Mr. Eggleston in the chair. Mr. Hamilton: Mr. Chairman and gentlemen of the committee, proceeding to point out to the members of the committee as best I can what I consider defects in the article reported by the majority of the Committee on Corporations, I now come to Sub-section b of Section 4 on page 7. This is the most important section, so far as transportation and transmission companies are concerned, in the article. It is the section which confers power, and I regret to say confers it in an indefinite way, so indefinitely that apparently the gentlemen who framed it are unable to define the powers which they have conferred The section is as follows: The said commission ^hall have the power, and be charged with the duty. The commission is not only given the power, but it is made its positive, affirma- tive duty to exercise that power — of supervising, regulating, and controlling all transportation and transmission com- panies doing business in this State, in all matters relating to the performance of their public duties and of their charges therefor. Now, I say, gentlemen, that when the power of control is given over these com- panies in all matters relating to their public duties and of their charges therefor, that there is no power omitted. I mean to say that with respect to a public or quasi-public transportation company, like a railroad company or a canal company DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 2345 with the duty of transportation, or a telegraph or telephone company, which are companies embraced in the definition of transmission companies, that every duty, more or less, directly or indirectly, is a public duty. It not only embraces the right to fix, and to change, and to modify tariff rates of freight and passengers, but extends to everything. It was entirely useless, if that language is to prevail, for the commit- tee to go on and lay lower down that the commission had the right to classify freight, that it had the right to make rules and regulations, that it had the right to require the railroads to establish and maintain such public service, facilities, and conveni- ences, as the said commission may deem reasonable and just. That is all embraced in the word "control." I say that unless these gentlemen mean to put these com- panies in all respects at the mercy of this commission that the word "control" should be defined. Now, they say they have defined it, and I will turn to an amendment which was put in here several days ago by the chairman of this committee, which holds out on its face the promise of a correction, but absolutely fails to carry out that promise. It is an amendment which is meaningless in the very language in which it is made. After going on to give many other powers which I have thought it best to go back to, it says this. However, I think I had better go through v/ith the others first, because it refers to rates, etc. Now, I mean to say that public duties ought to be defined. Suppose a strike arose, that I may illustrate, on the part of the employees of one of these companies — suppose that the company refused to accede to the demands of the strikers among its employees. Suppose there was a temporary cessation or a part carrying out only ot the work of the corporation in furnishing transportation or tra,nsmission facilities, it has been held by some inferior courts, I mean some courts of lower degree, pos- sibly by some supreme courts, that the duty upon the transportation company is im- perative, does not admit of any qualifications to furnish the service, and under this word "control" it might be the case that this commission would have the right to say what wages should be paid to these employees; and the instances generally in which the word "control" may be invoked to cover any and everything connected with such a company are numberless; and the reason that the gentlemen who pre- pared this report, I presume the reason why they have not defined more accurately the meaning of the word "control" in the discharge of its public duties, is that it is a hopeless task, for "control" embraces all. Now, is it your purpose, is it your desire, is it your wish? I have not so under- stood it from the gentlemen representing the majority, in all things to put these cor- porations absolutely under the control of the corporation commission? That is not what you say upon the floor. That is not what you maintain when you argue. But it is a fact you have left it here, and it looks to me that you have left it because you cannot help leaving it if you use the word "control." You cannot define the specific instances. That is one reason I say there should be nothing in this report except— if you propose to adopt a bad principle and put it in the Constitution— to properly guard the fixing of rates, etc., and this provision about the employers' liability bill properly guarded. The people are asking for nothing else, even if they are asking for that. I do not believe they are asking for that. I was going to say this morning, and my thought goes back to it now, that I have gotten a lot of these petitions or recommendations from the Chamber of Com- merce, first to approve the Withers' bill, which I believe was the first introduced, a-nd then to approve the Corporation Committee report, the one first published. 1 will not call it a report if it is offensive to the chairman of the committee, but it was so un- derstood by the people, and I venture to say that there is not a Chamber of Com- merce in Virginia that had ever read the report that we are considering to-day before they sent us those resolutions. They know not what they do when they ask us to en- dorse it. I know perfectly well— I have practiced law for nearly thirty years— and I know perfectly well that there are merchants in Richmond and Petersburg and Nor- 148— Const. Deb. 23^6 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. folk and Lynchburg who would be almost run mad by the strict enforcement of the provisions of this bill. They would feel that their business was destroyed and their livelihood gone. Take the cities that sell to the country south of us. They run along the line of the James river generally — the general line is along the river — including Lynch- burg, Richmond, Petersburg, and Norfolk. They all are competing for the trade of the country south of us. They are all in the same territory, and each one of the merchants of those cities, the wholesale people, and each one of the manufacturers, is almost absolutely dependent for a prosperous business upon getting his stuff to his place upon the same terms they do in the other cities. They now have the same rate, I believe, from all points North, and they are fighting for a living in the same territory. You let it be shown that a Richmond merchant can get a barrel of flour from Lexington or Staunton twenty cents cheaper than the merchant in Petersburg in the same line of business, and the latter will curse the day that he ever approved such a report. He v/ill be put to that disadvantage in selling. And they know not, I say, what they do. They have not read the report. Another thing I want to say from my knowledge of the proceedings of Cham- bers of Commerce. It is not one time in a hundred that they have over half a dozen men to attend a meeting unless it is a matter of great public interest. I have known in my city a half dozen men to meet, who were gotten together by some men who had some special interest in some bill that he wanted the Chamber of Comm.erce to ap- prove, and he would get a half dozen men there to approve it. It does not amount to a snap of your finger. I recollect once that they had a meeting of the Chamber of Commerce to con- sider the matter of the change in the location of a railway station. There was a meeting of forty-one or forty-two people, which was an unusually large meeting. One man had made one of these old-fashioned, fine spread-eagle speeches, and made them believe that the railroad was going to destroy the town, and they voted unani- mously that what was proposed to be done should not be done. And then one man amongst them got up and said that it was possible that they had better get Mr. So- and-So to explain this matter to them. The man was sent for. He went there. He was greatly surprised at the action of the Chamber of Commerce, and he explained the facts, and that chamber of commerce reversed itself in less than twenty minutes, and only two out of the forty-one voted as they originally voted. One was the man who made the spread-eagle speech, and the other was a man who was never known to change his position on a matter when once taken. They are not capable, with no information before them, generally, of knowing just what is best for them. I know perfectly well that an absolute enforcement of what you call the long and short-haul clause would put them all in the greatest trouble in the cities I speak of. So I say I beg that the learned chairman of this committee, a man who has been described by the gentleman v/ho spoke here this morning as having the best command of the English language of anybody in this Convention, or equally as good at least. I beg that with all his command of accurate and elegant English that he will at least define for the people what he means by control in the discharge of public duties. Let us know, when we are putting this thing in the Constitution, what this thing does mean. So that we people who cannot understand always what the committee does mean may be able at least to have a reasonable idea of what we have to meet. Again, now this commission is charged "with the duty of supervising, regulat- ing, and controlling all transportation and transmission companies, doing business in this State, in all matters relating to the performance of their public duties and of their charges therefor, and of correcting abuses therein by such companies; and to that end the said commission shall, from time to time, prescribe, and enforce against such companies in the manner hereinafter authorized, such rates of charges, classi- fication of freights, and rules and regulations, and shall require the companies to DEBATES OF THE COXSTITUTIOXAL COXVEXTIO^' OE VIRGIXIA. 2347 establish and maintain such public service, facilities, and conveniences as the said commission may, within the limitations of the Constitution of this State and of the United States," etc. Just one moment before we get away from '-'rules and regulations." Every rail- road company in Virginia is required to have rules and regulations. If they do not have them it is negligence, and they are held responsible for that by the courts. Suppose this commission makes rules and regulations and they have not the respon- sibility of their execution. Suppose you have a commission which is not competent, no matter hov^ honest in purpose, and they make rules and regulations for these companies, and they v/ork under them and people are hurt and killed. Is it right that the power and the responsibility should be separated? Mr. Meredith: You do not mean to say that the rules and regulations connected with public duties are rules and regulations of a personal nature? Mr. Hamilton: I do. Mr. Meredith: Those of a personal nature? As to how the conductor shall act toward the brakema^n or engineer to the fireman? Mr. Hamilton: I do, sir. I see no limitation upon it at all. If it is the duty of this great Constitutional Convention to pass a statute called the employers' liability bill, I cannot see why we cannot properly construe rules and regulations as used in this report, as rules and regulations which should be prescribed by the commission and laid down to such a transportation company for the government of its employees in the discharge of their duties. On the contrary, I have not the slightest doubt that that power would embrace the right to lay down such rules and regulations. I do not believe these gentlemen mean it, but it is only an illustration of the enormous quantity of stuff in this report which they do not mean, and with due deference to the gentleman from Pulaski, do not understand. Now, in addition to the rules and regulations, the report goes on, "and shall re- quire them to establish and maintain all such public service, facilities, and conveni- ences, as the said commission may, within the limitations of the Constitution of this State and of the United States, deem reasonable and just." In other words, they may say to a railroad company in Virginia, "You added a thousand freight cars to your equipment last year, but still you need tv/o thousand more. Get them in six months, and if you do not get them, then we will fine you $500 a day and count each day a separate offense." Well, it is not practicable and easy to buy any such amount of equipment as that or to pay for it. Often the financial condition of the company will not permit it. And there are certain seasons of the year when traffic is far more pressing and de- manding greater facilities than at other times in the year. Are you to have such an equipment as to enable you to keep sufficient cars always to furnish those facilities, ■and yet for three-quarters of the year have to have half of them idle? I do not think that has been contemplated by these gentlemen who have framed this report. That is not all. They are not to furnish such public service, facilities, ajid conveniences as may be just and reasonable, but it is what the COMMISSION "MAY DEEM just and reasonable. And then they say that they have furnished something that is a great safeguard in an appeal from the commission to the Court of Appeals. Pray, what is the criterion of duty there? What could the Court of Appeals do in a case of that kind? Sup- pose you went to the Court of Appeals and said. "This commission required me to furnish a thousand more freight cars in six months to do my business, but I could not get them in time," or "did not have the money to pay for them. My business would not justify it." Suppose the railroad took an appeal to the Supreme Court from such an order, and alleged that it is not reasonable, it is not just. The Court of Appeals would say, "Why, Mr. Railroad Company. I am very sorry for you. The thing is unjust. It is wrong. But the criterion of justness and reasonableness is not / 2348 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. for US. It is whether the commission deems it reasonable or just, not whether we deem it reasonable or just. They have said it is reasonable and just. It is true that the form of an appeal is given, but we have no earthly means of knowing how to overrule the decision of the commission when the criterion of the decision is what they think, and not what we think." I think that is of all things that I have ever seen in the nature of a requirement, with an alleged appeal to correct the defect, the most absurd thing, if I may use the term with respect and deference for the gentle- men who have approved the report. What is the sense of telling me that I may appeal from the decision of this gentleman here to that gentleman there, when what the gentleman appealed from thinks is to be the criterion of conduct and of action? Now, coming along as the report reads: The said commission shall also have the right at all times to inspect the books and papers of all transportation and transmission companies doing business in thos State, and to require from such companies, from time to time, special reports and statements under oath, concerning their business. That, gentlemen, I respectfully submit to you, is wrong. I do not mean to say that the commission should not have the power for public purposes, for the purposes of requiring these companies to perform their public duties, to inspect their books and papers and require these statements, but it is net limited to that. I have known, in my experience, and I have known of it oftentimes otherwise, when people for ulte- rior, and not public purposes, desire to know what was in the books, especially what was in the stock ledger of a railroad company or other corporations. I have known when they made a demand to see how the stock was\held. I have known when a man wanted to bring a suit against a company, and had no stock in the company, that he would make a demand and try to see what was the status in which the stock stood on the books of the company in order to bring a suit upon an alleged owner- ship of stock by him twenty or thirty years before, and there is a gentleman in this room who knows that fact. Do you mean to put in the hands of this commission the power to subserve the purposes of private individuals in connection with such a matter as that? I do not think you do. Therefore, there should be a correction there, that it shall be, "inso- far as it may be necessary to enable said commission to enforce the performance of the public duties of such corporation." Now, the next clause is one which I most cordially approve in this same section. It is a clause which is intended to prevent unjust or unreasonable discriminations of any transportation company against any person, locally, community, connecting line or kind of traffic, in the matter of car service, train or boat schedules, efficiency of transportation, or otherwise in connection with the public duties of such company. Particularly do I approve that with reference to traffic matters. I do not mean to say that if that is put in it will give all the relief that the localities ask. This country, unfortunately for us, is too large for us to legislate to correct all the errors and defects when we notice them in practice in respect to such matters. It is too large. If you were really to put in and enforce what might be called the long and short-haul clause, absolutely according to distance, it might be a great deal better for people nearest to the great markets of the world, and might mean ruin to the people far from the seaboard; the man in Minnesota or the Mississippi Valley, or even in Ohio, would have to burn his corn and wheat. He could not afford to pay the transportation upon it to the markets of the world. Now, we cannot sit down here in a little State like Virginia — I do not use the word little in any sense of depreciation — but it seems to me it is the heighth of folly for us to stand here and fight against the conditions of this great country, con- ditions which we cannot control by laws made within the limits of the State. We would have another civil war if we were to undertake to say to the man west of tha Alleghany mountains, or west of the Mississippi, or in the Mississippi Valley any- DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF YIRGIXIA. 2349 where, that he could not market his crops except by paying in proportion to distance to Newport News, or New York, or Baltimore, the cost of sending it from some nearer point east of the mountains. We need not try to do that. You may go on and destroy your own transpor- tation companies, you may greatly injure them, and hinder them hy unjust laws, but you will never accomplish any such purpose as that. I think that it is absolutely abominable and without excuse, and an unmitigated evil that any transportation company should, without some real reason and justifi- cation, make a difference in rates between one place and another under the same conditions and circumstances. And that is the defect of this bill to a large extent. They have dropped out of this bill what has been recognized as an essential thing in the commerce of the country, in the great commerce of the country. They leave out of this article the provision with respect to the matter being under practically simi- lar conditions and circumstances. And that is a necessity. You cannot help it. As I say, you may ruin and injure your agents of transportation, but you will never get any such relief as you expect or hope for unless you propose to destroy the people further from the markets of the world. We will take a case like the Danville case. I can readily see, although I know nothing about transportation rates, any more about rates than you do scarcely, yet 1 can readily see that to those people it seems an intolerable outrage for stuff shipped from the West and Northwest a long distance to be carried through Danville and delivered in Lynchburg at a lower rate than it is delivered in Danville for. I must confess it looks like an outrage to me. My prima facie feeling is of rebellion when I see anything of that kind, but when I hear the reasons for it, I must confess I do not know how to stop it in that particular interstate work. It is perfectly plain to me, from v/hat I have heard of that case — and I never heard of it until I came here, except seeing something in the newspapers about it — it is perfectly plain to me that if the Southern Railway Company ceased to do the business or to take part in that business from the west of Lynchburg, as it must do if it lowered the rates further down, it would simply lose Lynchburg's business, and Lynchburg's business would then go to the Chesapeake and Ohio and the Norfolk and Western, unless the South- ern Railway brought that business in from Washington, which I think would be a natural thing. But the whole trouble arises from this. It arises from the fact that the Southern Railway Company, rather than not get some of the Ljmchburg business at all, is willing to haul it a third further than the Norfolk and Western or the Chesapeake and Ohio and take it through Danville and carry it to Lynchburg, and it must carry it there at the same rate as the Chesapeake and Ohio and the Norfolk and Western carry it, or get out of the business. Suppose the Southern Railway gave up the Lynchburg business, would it aid Danville, so far as the actual payment of money is concerned? Not a particle. The Danville rate is not claimed to be unreasonable or unjust. It is merely claimed that there is an unjust discrimination in favor of Richmond and Lynchburg as against Danville, and it looks so at first blush, and I believe it is so in its effect, because it enables Richmond and Lynchburg to undersell Danville in the same territory thai they both seek their trade in. But it is an interstate question, and what we are discussing here has no earthly bearing upon it at all, unless you propose to put the sanction of your approval upon what looks to me like a regular blackmailing speech of that member of the commis- sion of Georgia that was cited here by the gentleman from Halifax, and the gentle- man from Danville, when he called up the Georgia railroads and told them that he could not interfere with their interstate rates about coal, but that if they did not do what the commission wanted about those coal rates, that the commission would cut them down below what the commission had said was a just rate for the local traffic. I do not take it that this Convention is deliberately going to put its approval upon any such proceeding or method of procedure as that. 2350 DEBATES OF THE COXSTITUTIOXAL CONYENTIOX OF YIRGIXIA. If it is true that there is a discrimination against the town of Danville — the city of Danville, I beg its pardon — in local rates within the State of Virginia, as com- pared with Lynchburg or Richmond, or South Boston, I think they are right in. fighting, and fighting bitterly, and I think such things ought to be corrected, and, as I understand, the law exists to-day whereby it can be corrected, and whereby it can be corrected in the future without putting our prosperity in jeopardy, I mean a& to Virginia, which depends for her prosperity and continuance of prosperity upon the building of transportation lines. I do not propose to go into the business here of undertaking to do v/hat gentle- men have described as trying to frighten the people. I do not believe in it. You are all grown men and you can think for yourselves, and you know perfectly well that unjust, unequal, arbitrary laws, not based upon what is right or what is just, and without the means of justly correcting them, tends inevitably to check the develop- ment, when development has to come through means of this kind. This is too great and too big a country for people to voluntarily go where injustice is habitual and is approved. Now, the first clause of that section — I read from line 61 of Section 4 — after saying that, "subject to review, on appeal, as hereinbefore provided"' — it is "herein- before," but it should be "hereinafter" — it says, "to prescribe rates of charges and classification of trafiic for transportation and transmission companies, shall be para- mount." That is, that the Legislature, the direct representatives of the people, shall never have any right to have a say on that point — it goes on to say But its authority, which is the commission's authority, to prescribe any other rules, regulations, and requirements for such companies shall be subject to the superior authority of the General Assembly to legislate thereon by general laws. And then there is something about street railways, etc. In other words, gentlemen, whenever it is possible to confer a power, either di- rectly by virtue of the Constitution upon this commission, in large words and in ma- terial matters, it is conferred. The absolute distrust of the Legislature is shown in saying that the authority of the commission as to charges and rates shall be para- mount, but in trifling, immaterial matters the Legislature may hereafter have a say. But I call your attention to the fact that in no material matter even of form or pro- cedure, is there any authority in this paper for the representatives of the people, elected to its legislative body, to have one word to say unless that word is recom- mended by this body, this com-bination of prosecutor, court, and legislator. I now read from the line 105 of Section 4: Any corporation failing or refusing to obey any valid order or requirement of the said commission, may be fined by said commission (proceeding by due process of law, as aforesaid, such sum, not exceeding $500, as the said commission may deem proper, or such sum. in excess of $500. as may be prescribed or authorized by law; and each day's continuance of such failure or refusal, after due service upon said corporation of the order or requirement of the said commission in question, shall be a separate offence. Now, let us see whether that is reasonable and properly drawn. If it is to carry out what I presume was the intention of the framers, we will say that an order may be entered by the Corporation Commission requiring some railroad to furnish some cars at some place, or, to take a better illustration, that a new rate is put into force. That rate may be put in force, and immediately after it is put in force — and remember it is not a wilfull failure that is thundered against here — for one day to change that rate is an offense for which the company may be fined five hundred dol- lars. If it is impracticable to put that rate into force and effect with all due dili- gence and good faith for four or five days, it is not that the commission "may" con- DEBATES OF THE COXSTITETIOXAL COXVEXTIOX OF YIEGIXIA. 2351 sider each dav a separate offense, but it '---shan.'' I say that is net a reasonable re- quiremeni. It is not properly drawn consistently with the facts which cannot be changed, the actual conditions of business. I say that it should read, '-'Any corpo- ration failing or refusing within a reasonable time to comply with or obey any valid order.- and instead of saying that each day's failure or refusal "shall be" a separate offense, it should read, ''''may be deeired by the commission a separate offense.-"' It is a small matter. It is a failure in draughtsmanship, and I mention it with great deference and fear, that I may give oSense in criticism of this perfect report. Now, in order to cure apparently this trouble here in thus controlling and man- aging the auairs of everything connected with thesre companies an amendment has been added, and I have been so fortunate as to get one. It is to come in at the end of Section c of paragraph 4— sub-division c of para^aph 4. Let us see what it is. It is made, apparently, to meet the criticism that has been made upon this bill that they have taken all power from the companies and yet left them with all the responsibilities. Let us read it. Nothing contained in Section 4 shall impair or abridge the full and absolute right of any corporation, without interference or restriction to manage and operate its own property and franchise. Now. here is the ?ting in the tail of the amendment, just as there is the sting in the tail of the amendments to the Federal Constitution when it was provided that Congress should have the power to enforce those amendments. "''Subject to the pro- visions of this Constitution, and such just and reasonable control rule, regulations, and requirements as may be prescribed by law in pursuance thereof."' in other words, the criticism is, that you have taken all control and all man- agement from the companies, if you choose to exercise it, because they say so, but feeling the force of that criticism, they say, ''Oh. no, that is not what we meant. It don't mean that you shall not manage your property and control it, and all that sort of thing, but it must be subject to the provisions of this Constitution."' In other words, gentlemen, it is a hone held out by words and turns to nothing when you come to it. It is meaningless. Strike out of it the words ''subject to the provisions of this Constitution." This is a part of the Constitution. Strike out of it "subject to the provisions of this Constitution,"' and then it will mean what most people would think it would mean upon a casual examination. If you put that in, it is utterly valueless and of no good whatever. It is utterly meaningless. It is an attempt, but it is not a satisfactory attempt, to denne what is meant by control, and it was put in for that purpose. It practically says, "Xo. we do not mean to con- trol you, but you can control yourself, except that you must do it subject to what we say about our control." That is about the substance of it. It is utterly valueless. Now, there was a criticism of the fact that when this ordinance was drawn and presented here there was no appeal allowed from the arbitrary action of these com- missioners except that relating to the rate-making question. That was criticised justly and properly, and the force and effect of those criticisms was felt. So. in order to correct that, we have on page 11 under the head of Appeals, etc.. the section dealing with certain amendments put in. I read now from the report: '"From any action of said commission prescribing charges or classifications of traffic" — that was all in there before the amendment was put in — •"an appeal may be taken," etc. Now. there has been added to that, after the word ''"traffic," '''or affecting the train schedule of any transportation company, or requiring any additional facilities, conveniences of public service of any transportation or transmission company." And that is carried through in the various provisions of the sub-section. But, gentlemen, that does not cover every subject by any means on which an appeal should be allowed. It does not begin to cover every one of them. TVhy, if it is really intended that there shall be a supervisory appeal and the power to pass upon the 2352 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. actions of this conglomerate body that is established here, why should it not be pro- vided that an appeal should be had in every case from the action of the commission? Why should it be that they should have the right to do things that might destroy the company, and have your appeal limited to a few things, and yet leave enough in them to ruin and destroy the railroad? That is not a part of civilized jurisprudence; that is not in accordance with the jurisprudence of any English-speaking race. We have been a people who have been accustomed in all our rights to have justice, to have the right of appeal, to have a chance to have our wrongs corrected in an or- derly manner, in the tribunals established for that purpose. But here you establish an arbitrary tribunal, not a judicial tribunal in any proper sense of the term, not a tribunal like the Court of Appeals, which is not interested in the initiation of the proceedings, not interested in anything that may come before it, but simply sitting there coolly and calmly to hear whatever may be brought up by one side or the other. But we have established a tribunal that has first to ferret out the case, the insti- gator of the proceeding, the prosecutor of the proceeding, and then it is to come before that tribunal that is to sit upon it as judge, and, great God, what a judgment it must be! And then, in many respects, no appeal shall be had from its judgment, and in one respect, the respect most important to the people of Virginia, and -the only re- spect in which they have the slightest interest in this subject, or wish to have, in re- spect to traffic rates, etc., and facilities, etc., the criterion of judgment in the commis- sion is what they deem just, not what is just, nor what is right, but v/hat they deem to be right and just, they who are the prosecutors and judges both. Is that the sort of jurisprudence, is that the sort of tribunal, this Convention proposes to put upon even the meanest creature or the meanest kind of property in our State? In Sub-division F of Section 4, page 13, it is provided: But the General Assembly shall provide by law for the certification by said com- mission to the appellate court of all the facts or evidence upon which the action appealed from was based, and which may be essential for the proper decision of the appeal therefrom. It seems to me, gentlemen of the committee, that when we are making a statute in a Constitution we should not make part of a statute and have part of it depen- dent upon the action of the General Assembly as to details. It is left to the General Assembly to require even that this commission shall give you the means of appeal- ing to the court, and yet, unless I am mistaken, the learned chairman of this com- mittee, in presenting this report, stated, in substance, that, while the railroads could prevent action by the General Assembly, they could not get affirmative action. You hold out the hope of an appeal. You say, "We will give you an appeal"; and yet, when it comes to the point of saying that you shall have the means of appealing, that you shall have the right to get your evidence before the upper court, you do not give that right. You say, "The General Assembly shall give it," and, at the same time, the chairman of this committee says that your railroads cannot get anything aflarmative done by the General Assembly, but that they can prevent some things being done. Why do you make this distinction? Why, when you are making a statute here to carry out something which you say the General Assembly will not do, contrary to its duty, as you say; why, when it comes to even getting a chance for a fair hear- ing before a fair tribunal, do you make the instrumentality by which you are to get tliat hearing, the certificate of facts or the evidence certified, dependent upon the affirmative action of the General Assembly hereafter to be had, if it can be had? Mr. Meredith: You have stated that this bill ought to be definite, and that we should not leave it to the Legislature to say what shall be the character of the appeal. Now, I call your attention to the fact that the same course is pursued as to all ap- peals. DEBATES OE THE COX ?TITUTIOXAE COXVEXTIOX OE VIRGINIA. 2353 Mr. Hamilicn: Well. now. Mr. Chairman. I respectfully differ from the gen- tleman. I say that there is no other case existing under our laws in which the power has been taken from the Legislature to deal in detail with a subject as has been done here, and then the right left to get any relief from that sort of treatment in the Constitution by being dependent upon the future action of the Legislature. I say that it is consistent and proper, if you are going to make a statute in your Constitution, that you should make it a complete and a just statute, and a r^atute which, will give the relief which nominally you give. That you should not leave that relief, which is an essential part of the whole, to be performed by a body which your chairman says cannot be gotten to give affirmative legislation for the railroads. Mr. Braxton: You evidently misapprehend what I said. I did not say that the railroads could get no affirmative legislation. I said . that they frequently defeated the will of the people by preventing legislation that the people wanted; that they could not defeat the will of the people by getting legislation that the people opposed, but that when the people do not oppose the legislation that the railroads want, I do not see that there would be any trouble about getting it. Mr. Hamilton: TMiy, when you undertake to give this relief, did you not put it in the shape of a positive statement in this paper which you have drawn. Mr. Braxton: I thought it was an unnecessary detail to put into a Constitution. Mr. Hamilton: In the same paragraph, on page 14. lines ISS and 1S9, it is pro- vided that in the hearing of this appeal in the Court of Appeals a statement of the reasons given by the Corporation Commission for its judgment, from which an ap- peal is taken, shall always be read and considered by the appellate court upon dis- posing of the appeal. '"And the action of the commission appealed from shall be re- garded as prima facie just, reasonable, and correct? In ether words, an appeal is taken, and they say that the reasons given for the appeal shall be prima facie deemed not only correct, not only that it shall stand until reversed, like any other judgment, but that it shall be deemed prima facie correct, just; and reasonable, and yet on the question of furnishing facilities and other in- strumentalities connected with the work of these transportation companies, the cri- terion laid down is that whatever the commission deems just and reasonable is to stand. "\^'as there ever such a farce on earth as an appeal under those conditions, that what the commission deems just is to prevail; that whatever they deem reasonable and just is to be the criterion, and that when they decide the matter that there is to be a prima facie presumption that the reason they give are reasonable and just and correct? I recognize, gentlemen, that it may be tiresome, and, indeed, I knov.- it is tire- some to hear these details, but we have to go over them. Mr. Meredith: Is not that the effect of the verdict of a jury? Mr. Hamilton: Yes, but it is not the effect of a judgment of a court. Mr. Meredith: Is not the decision of the lower court presumed to be correct? Mr. Hamilton: It stands until it is corrected, but there is no prima facie pre- sumption in favor of it. Sub-section G, on page 14, provides, when the Court of Appeals does reverse or enter an order on appeal from this commission, the following: Such substituted order shall have the same force and effect (and none other) as if it had been entered by the commission at the time the original order appealed from was entered. I mean to say the lines I read seem to me to be subject to the criticism that imme- diately after the Court of Appeals had said what was right and proper, if it ever gets that chance, that that order, which it enters, will be entered as of the date it should have entered by the commission, some time before, nunc pro tunc, and that 2354 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. the very next day the commission can undo and revoke that order by an immaterial and minute change. I do not think that is a proper provision. I think there should be something that would put into force and effect the decision of the Court of Appeals after it has entered a substitute order on an appeal. Now, in Section h, page 15, it is provided that '"The right of any person to in- stitute and prosecute in the ordinary courts of justice," etc., etc. It provides further, "In no such proceeding by any person against such corporation shall the reasonable- ness, justice or validity of any charge, classification of traffic, rule, regulation or re- quirement theretofore prescribed by said commission within the scope of its au- thority be questioned." Now, Mr. Chairman, when I first looked at that, I thought it was the old familiar rule that you could not in a proceeding between different parties attack collateraJly the validity of ordinances and laws, etc., but when I come to consider the effect of this in this particular case, we might find this to be the case: To-day a rule might be entered by this commission saying that certain things should or should not be done with respect to rates on traffic, with respect to employees, with respect to the method by which they should be governed with regard to their duties, whereby, pos- sibly, some one might be hurt. That might be an exceedingly wrong rule and re- quirement on the part of the commission, and there should be an opportunity at any rate of an appeal from that ruling^ to question its reasonableness and justice and validity. The next day there may be a case arising, under ^hat rule, and a suit brought against the transportation company, the whole foundation of which would be the requirement, or rule, yet you could not question the justice and reasonable- ness of that requirement, that you were taking an appeal from the upper court, if you had the right to take an appeal. I think it is very loosely drawn and will lead to trouble and injustice. As to Sub-section 1, page 16, I do not dwell. It is the section which says that upon the recommendation of this commission the General Assembly may change some of these sub-sections. It is the section which shows most strikingly what this commission is, namely, that it is the prosecutor, the initiator of the complaint, the judge of the justice of the complaint, and the legislator to change the method of get- ting at it if any change is ever made. The gentleman from Roanoke has so fully and strongly shown what I claim to be, with all due respect, the viciousness of that section, that I will consume no more time about it. Now, Mr. Chairman, I believe that section about finishes the particu- lar portions of this report which bear upon transportation and transmission com- panies. In the next provision. Section 5, we come to a general provision with respect to the management of corporations, and it affects all sorts of corporations, foreign and domestic, doing business in Virginia. It requires that general law shall be made for the payment of a fee to the Commonwealth by the domestic corporations upon the granting, amendment or extension of its charter, and by every foreign corporation upon obtaining a license to do business in this State, as specified in this section." Not as may be required by law. "And also for the payment, by every corporation hereafter doing business in this State of an annual fee of not less than five dollars upon its charter or license to do business, and for the making, by every such cor- poration (at the same time and in connection with the payment of such annual fee), of such report to the State Corporation Commission, of the status, business or con- dition of said corporation, as the General Assembly may prescribe. No foreign cor- poration shall have authority to do business in this State until it shall have first ob- tained from the State Corporation Commission a license to do business in this State upon such terms and conditions as may be prescribed by law." Now, let us see where we are with respect to ordinary daily transactions. DEBATES OF THE COXSTITUTIOXAL CONVENTION OF YIEGINIA. 2355 A bank in New York or a Trust Company in Baltimore is a foreign corporation as to Virginia. It could not do a particle of business in Virginia; it cannot loan a dollar of money in Virginia without first getting a license to do business in this State. Second, paying a fee for the same. Third, making a report to the State Cor- poration Commission of Virginia of its status and business. Now, how much money do you suppose business corporations out of Virginia will ever loan in Virginia under those terms and conditions? If we have plenty of money and do not need any from outside to develop our State, it is all right. That may be better for a bank in this State. But where is there a bank prudently managed anywhere in the v/orld or an individual — no, it w^ould not apply to an individual — but where is there a bank or corporation prudently managed in the world that would loan money in Virginia or have any transactions here if it should be subject to those conditions? It would run the risk of having its contract declared null and void, be- cause the Constitution says it cannot do business here unless it does all these things. They may say that the Legislature may never require the report to be made, but the corporation outside of the State don't know that it will not. People do not loan money in countries where they may be subjected to the annoyances and exactions of arbitrary laws. There are too many ways of using money in this country to do any- thing like that. I ask the attention of gentlemen not interested in railroad corpo- rations to that matter. Mr. Meredith: Do I understand you to say that a New York bank, under the provisions of this article, could not loan money to one of its correspondents here? Mr. Hamilton: Not unless it got a license to do so. Mr. Meredith: Suppose the Richmond bank borrov/s from the New York bank, do you mean to say that that transaction takes place in New York? Mr. Hamilton: I will answer my friend. You mean to say that instead of con- sidering this a Virginia contract, that it might be called a New York contract. In other words, you would have a bank dealing, maybe, in thousands and thousands of dollars, absolutely depend for its security, even of a mortgage on property in Vir- ginia, upon having that contract considered and held by the court under the doc- trine of the conflict of laws, a New York contract. Would any corporation or any- body advancing money take such a risk as that in loaning its money? If the money was secured by mortgage in Virginia the courts of Virginia would necessarily have to construe that contract because the real estate is here, the subject-matter of the litigation is here. If it was against an individual, the same would be true. A per- sonal judgment could not be gotten against an individual in a foreign jurisdiction unless by accident service of process upon him was held. So that the bank or the trust company that wanted to do business in Virginia would be taking an enormous and foolish and silly risk, if I am right about this mat- ter, in loaning its money in a State where first it has to take out a license; second, where it has to pay its fee for the privilege of loaning money here, and, third, has to make itself liable, at any rate, to render an account of its status and transactions in the foreign jurisdiction. Mr. Robertson: I would like to ask the gentleman if he does not think the words "to do business" are broader than the words "to make a contract"? Mr. Hamilton: I think they mean to do anything in the scope of its powers. To loan money is to do business. To make a contract is to do business. Mr. Meredith: Do you construe that section as being that those conditions would attach without an agency being established here? Mr. Hamilton: I certainly would. I may be obtuse and ignorant on this point, as probably I have been on other points as to which amendments have been put in here. I think there are others who think the same way. It is an illustration of the danger of putting in your organic law a great lot of details which are unneces- sary, and the evils and dangers of which you can never fully appreciate until you put it into actual practice. 2356 DEBATES OF THE CONSTITUTION" AL CONVENTION OF VIRGINIA. Mr, William A. Anderson: My friend doubtless recalls that a penalty is imposed by the present statute of Virginia upon the failure of a foreign corporation doing business in Virginia to comply with the requirements of the statute, and that all the officers of the corporation shall be personally liable. The language is "doing busi- ness," which I think the courts have construed to be carrying on a regular business, and not isolated transactions. Mr. Meredith: You think that this covers isolated transactions? Mr. William A. Anderson: No, sir. Mr. Hamilton: That may be so, but this is a very hurried way for us to con- Eider so important a question, and to' put it in our law where we cannot change it. Mr. William A. Anderson: Our present law does not vitiate the contract. Mr. Hamilton: But this one does. In Section 6, on page 18, there is a provision with respect to corporations here- after accepting amendments, and that provision is that if they accept any such amendment, that all special or exclusive rights enjoyed by them and not enjoyed by other corporations shall be given up. My understanding is that the chairman of the committee has expressed his will- ingness to strike out the words "special or," in order to correct the serious trouble there. May I ask the chairman if that is correct? Mr. Braxton: Yes, sir. Mr. Hamilton: I am merely trying to get this thing right. I am not trying to make any trouble, except to get it as nearly right as possible. Mr. Chairman, in Section 8, page 19, there appears. I will not say an old friend of mine, but an old acquaintance. It is really the Postal Telegraph and Cable Com- pany's bill to be allowed to use the rights of way of all railroad companies in this State, for no compensation at all, put in the Constitution. I recognize It is an old friend that Colonal Mcintosh had offered in the Legislature here two or three times, and why on earth it should be stuck into the Constitution of the State of Virginia I was before the Legislature. I have seen him about here, but I had not the slightest idea he would get such a thing in the Constitution. The sum and substance of it is that he wants to put in the Constitution the right to condemn through a county court, I will say at Bristol, the right to put his telephone and telegraph poles all the way along the Norfolk and Western Railroad to Norfolk from Bristol, and all the way up through the Shenandoah Valley to Maryland, and all the way from Lynchburg down to the North Carolina line on the Durham road, and on every other branch that it is possible. He bragged before the Legislative Committee that he had gotten as much as 500 miles of the railway right of way in length for the use of his tele- phone poles, and they did not make him pay but about $5 for it. Now, the whole thing is utterly and absolutely wrong. In the first place, it is impossible that the commissioners in the county court of any one county for any such distance can judge of that matter properly. In the next place, the statute law of Virginia, and it was all made under its Constitution, has no right to allow a railroad company to condemn any more land for its right of way than was necessary for its use. If it allowed any more than was necessary for its use, it was illegal and improper, it was taking the property of the private citizen not for a public but for a private use. The statute law of Virginia formerly allowed a railroad company to condemn eighty feet in width for a right of way under ordinary circumstances, and they permitted it to be v/ider where there were deep cuts and high fills. For some years it has allowed 100 feet to be condemned, extending it from 80 to 100 feet, because 80 feet was not enough. Now, it is inconsistent with the very terms of the title under which a rail- way company acquires its right of way to permit anybody upon it not sub- ordinate to the railway company because the railway company under our laws, as I understand it, justly, is held to a high degree of care for DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 2357 the condition of its right of way. If any trouble comes from its being in a bad condition, it is liable for damages in consequence of the injuries caused thereby. Yet here comes really the Postal Telegraph-Cable Company, for that is what it is, and nothing else, into this Constitution to obtain an act of the Assembly which has been turned down 'in more than one Legislature of Virginia. Why do they want to come here and do this? Why do they want necessarily to put their poles on the right of way of the railroad company, for the care of which the railroad company is liable in so high a degree of responsibility? It is because they want to get the right of way practically for nothing which has probably cost these companies large amounts of money. I have paid on an average of $67 a running mile for the poorest land in Dinwiddle county, that was not valued at $2 an acre, with nothing on it, and yet this company comes here before a Constitutional Convention and wants this matter put in to condemn this right all over the State of Virginia by a jury and a county court somewhere, in order that they may get something that other people have had to pay for, or charged with the responsibility for, and get it for a nominal, absolutely nomi- nal consideration. Now, there is a provision in the section that if at any time the railroad company shall need for its purpose the ground where the poles are put they must be moved to another place on the right of way. Putting the poles in is not the only thing you have to do in running thelegraph and telephone lines. You have to go in there and keep them in repair. You have to have wagons going along the right of way and repairing the poles and wires; and there is a danger, if it is not properly guarded, of having these poles and wires falling across the railroad tracks and causing death and desolation in consequence of the negligence of these parties who are made para- mount to the railroad company charged with the duty of the safe-keeping of that right of way. Further on the section provides that If, at any time, a railroad company shall need, for railroad purposes, any por^ tion of its right of way occupied by telegraph or telephone companies, such tele- graph or telephone company shall, upon reasonable notice, at its own expense, re- move its lines to such other points on the right of way as may be designated by the railroad company. Suppose there is no other point? Why cannot they . do as other people do? Is there any reason why they should not go along and pay the people who own the farms immediately outside of the right of way of the railroad company for the land they need? Is there any reason why they shall not go along the public road, paying the people for the privilege of erecting their poles? I think railroad companies are re- quired to keep telegraph stations every ten or fifteen miles, and it must have some telegraph line along its road, and if it has not one which it can use, it must maintain one of its own. There are many stations on every railroad in a sparsely settled country like ours where the total receipts of the telegraph station would not amount to one-tenth of the salary of an ordinary telegraph operator, but under the present conditions the telegraph company has a contract with the railroad company and is trying to get business all around. The railroad company wants somebody to do its telegraphing, and the station agent at these small places is ordinarily a man who can telegraph. Whatever he can get out of the telegraph company is in addition to his pay by the railroad company. You could not maintain him there as a telegraph operator alone. It would bankrupt any telegraph company on earth that tried it. The railroad company could not keep him to do its own business only, and so there is a combination of the duties of station agent and telegraph agent at one of these small places. This is an attempt to force the use of the right of way of the railroad com' pany for telegraph purposes for practically no consideration, as the counsel of the company stated before the committee, and he was very proud of his accomplishment. 2358 DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGINIA. Personally, if I may be permitted to express any personal view, I think the Postal Telegraph Company renders a better service than the Western Union, but to say that any telephone or telegraph company shall by paramount power and force be allowed to place itself upon the right of way of the railway is inconsistent with the very title under which the railway company holds its right of way, and inconsistent with its duties to the public, and I hope that that section will be stricken out. Mr. Chairman, the next clause here, Section 9, is what is called the long and short haul clause, etc., and I will not take up the time — I will not say waste the time — in talking on it, I may say this, that that portion of it which says "whether such longer distance be entirely within this State or not," is, in my judgment, absolutely unconstitutional, as is shown by the decisions of the United States Supreme Court, but I have not the time to comment upon that or go further into it. I now come to what was formerly called the employers' liability bill, in Section 11. I would be glad to have the opportunity to call the attention of the chairman to certain language in it which I do not myself quite understand, and I hope I may be enlightened in regard to it. In the first place, in line 17, the clause beginning Knowledge, by any employee injured, of the defective or unsafe character or condition of any machinery, ways, appliances, or structure, shall not of itself be a bar to recovery for an injury caused thereby. I do not think that a proper clause. I do not think there is any objection to the rest of it, provided the language of the next clause is changed. But I think the above clause may do away with the general principle of contributory negligence on the part of the employee. Certainly if a man knows of defective machinery, and it is obviously bad, dangerous, etc., and he wilfully, without being ordered, uses it (I do not think he ought to use it, even if ordered), but if he goes deliberately and uses it, and gets killed, I do not think that there is any excuse for his conduct. If he gets hurt under those circumstances, it seems to me that he is not the kind of a man that the Constitution should come in and take care of. I think it was stated that this provision was put in based on some decision of the Supreme Court of Mississippi. I would state that I have quoted many decisions of ether courts to the Supreme Court of Virginia which that court has not accepted as law, and I think rather than depend upon the decision of the Supreme Court of Mississippi, that we had better fix the language ourselves. The next clause is this — When death, instantaneous or otherwise, results from any injury to such an em- ployee, received as aforesaid, the personal representative, surviving consort, and rela- tives of the deceased shall have the same rights and remedies that they would have had if he had not been an employee of the company. I do not think those lines mean what is intended. I think his personal repre- sentatives are entitled to the same right that he would have had as an employee of the company. It seems to me that an injustice may be done to the people repre- senting the dead man if that is left there. A man as an employee might be entitled to recover in many a case when he would not be entitled to recover if he had not been an employee. A stranger would have no right to be in a dangerous place where it might be the duty of an employee to be. I do not think that language is apt. I think it ought to be changed. Now, in Section 12, Mr. Chairman, I will mention one matter. Section 12 reads, "No foreign corporation shall be authorized to carry on, in this State the business, nor to exercise any of the powers or functions of a public Service corporation." That language is plain and if it means what it says, I have nothing further to DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE YIEGIX'IA. 2359 c:av It is an absolute prohibition of a foreign corporation to exercise the powers or functions of a public service corporation in Virginia. I do not know an^^ particular reason vrhv thev should be put in that position. I imagine there is some typo- graphical trouble there, but I may be vrrong. It reads further, '-nor be permitted to do anything which domestic corporations are prohibited from doing." Mr. Braxton: If the railroad is entirely intra-State, it was intended to pro- vide that it shall not operate under foreign charter. As to the wisdom of that, is another question. Mr. Hamilton: If that is the view of the committee, of course I shall say nothing about it at present. I think it is unwise to say that a foreign corporation should not do anything in Virginia beneficial to us, especially as it cannot come in without obtaining a license and if it does come in it has to pay a franchise tax. Mr. Thom: I would like to call attention to the "fact in order to get it before the committee, under this provision a foreign corporation, like the Baltimore &. Ohio, could not acquire use of or operate a line in the State of Virginia. Mr. Hamilton: I understand that. At any rate, I think that is a matter which deserves serious consideration. I will say no more about it. Mr. Chairman and gentlemen of the committee, I thank you fo'r your attention. There are some further difiiculties, as I see them, which I desire to point out in the remaining sections, but I am entirelj' conscious that I have talked for a long time, and if I have not wearied you it is remarkable, as I have certainly wearied myself. I have not been speaking for fun or with any attempt at oratory. I think it a very serious matter that we are contemplating putting into the Con- ^itution this long provision of twenty-six pages. To my mind there are many serious defects in it even in carrying out the views of the gentleman who framed It, and I feel that if one-third or one-tenth of the defects which to me seem defects are de- fects, it emphasizes the unwisdom of putting into our Constitution any such docu- ments. We ought to have in the Constitution, I will be frank to say, something about like the Georgia provision, that the Legislature shall provide for a commission to look after transportation companies and see that they shall not discriminate and that they shall charge reasonable rates, and the Constitution should make it sufficiently definite and strong so that the Legislature cannot help obeying the Constitution and carrying out its intent. I think you are doing an exceedingly dangerous thing to put the rest of this provision in here except possibly the employers' liability clause. My information was that the platform of the Democratic party said that it should be passed by the Legisla- ture. I have no objection to it. I do not mean to say that as it is drawn I approve it fully. I think most of it is right. I do not think it should go into the Constitution; but we have violated the principle of putting into the Constitution only broad princi- ples so much that I have stopped fighting it or wasting breath over it. If we are going to put it in, let us put it in right, but do not put in the provision regarding corpora- tions in anything approximating its present shape. The danger is not only to the cor- porations, but there is danger to every kind of the business in the State, and in every phase of development, and I am sure it will come back to plague and curse all the people. I thank you for your attention. (Applause.) On motion of Mr. Braxton the committee rose and the President pro tempore re- sumed the chair. On motion the Convention adjourned until to-morrow, Wednesday, February 12, 1902, at 10 o'clock A. M. 2360 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. MONDAY, February 12, 1902. The Convention met at 10 o'clock A. M., the President pro tempore in the chair. Prayer by Rev. D. A. Solly, D. D., of Richmond. CORPORATIONS. On motion of Mr. Braxton the Convention resolved itself into Committee of the Whole for the further consideration of the report of the Committee on Corporations. Mr. Meredith: Mr. Chairman: One has no right to expect, rising at this late stage of the discussion, that he can offer any new arguments or any new lines of thought to a subject that has been so fully discussed and so ably presented on both sides. All he can hope to do is to add possible some slight reinforcement to the positions that have been maintained so ably by the majority of this committee in sustaining their report. I think, Mr. Chairman, you will agree with me, and possibly every one in this body will agree with me that there has been no report presented to this body which has been subjected to more violent and almost virulent attack by its opponents. Strongly and justly as we m.ay believe in the majority report of this committee, we cannot but recog- nize the intellectual ability that has been displayed by its opponents in their method of attack. It is hard to conceive of any other line of attack, which could have been made, that has not been made by the ingenious gentlemen who oppose this report. You will recall, Mr. Chairman, that their first line of attack was to throw, in opposition to this majority report, what they term the report of the minority; a mild and meek and inno- cuous paper, harmless, failing to present anything of a special nature of any strength, and recommiending it because of its weakness. Mr. Chairman, it did not take long for the gentleman from Manchester (Mr. In- gram), the gentlem-an from Northampton (Mr. Kendall) and the gentleman from Halifax (Mr. Stebbins) to so batter and bruise that weak foundling that even its friends abandoned it, and for days we have scarcely heard it mentioned, as worthy of one single word of praise. It has served its purpose, to divert your mind from the strong and able paper that had been presented by the majority of this committee. I say it served its purpose; and then has been cast aside, and we do not hear it now mentioned by any of its friends. It received its severest blow from one of the opponents of the majority report, from the gentleman from Roanoke. Without a moment's hesitation he kicked it aside, as unworthy to go into the Constitution. I do not know, Mr, Chairman, of any gentleman in this Convention who can do "kicking" better than my friend from Roanoke. But he soon saw that it would not do to press that line of attack, as it was so weak, so feeble, so discredited that his strong common sense told him, there must be something else done, if he wanted to prevent the passage of the report of the majority of this committee. So he announced to this Convention that his method of attack would be along what he called "general lines." Mr. Chair- man, I approve of his use of the word "general" for more general, indefinite comments and criticisms and statements in regard to a legal paper, I do not think I ever heard. He confined himself, as he said, not to discussing the merits of the paper which had been presented by the majority, but said that he would attack it and show that no paper of that kind ought to go into the Constitution. Mr. Chairman, we can well recall what fearful pictures he presented to us, how the gloom of financial disaster seemed to be settling upon this State, how the men of means seemed to be rushing away to protect themselves from this hydra-headed monster, as if they thought that not a moment must be lost, that they must escape beyond the borders of this State in order to protect their finances; how he said that discredit of every nature would be brought upon this State, the wheels of progress would be blocked, no enterprises would be indulged in, men would be scared, money would seek other States, and every impending disaster that a DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 23G1 dark and gloomy imagination could give forth was presented by the gentleman from Roanoke. I do not know any lines which describe the scene he pictured to us, more than those ef Campbell, when he describes the "Last Man; " "The sun's eye had a sickly glare. The earth with age was wan; And skeletons of nations were ' . Around that lonely man."' So, Mr. Chairman, that was what he called "general lines" of argument. First we would hear some little electric snap, , as he gave forth a sneer of sarcasm; then would come rumbling and grumbling the f'^phecy of financial disaster. But through it all, Mr. Chairman, while we might appl'eciate the imagination of the gentleman, we did not abandon what has been so beneficial to the human race — a little common sense. We hung to that anchor of our hope and that great safeguard in all the affairs of life, and began to enquire whether this was true. While our imaginations would be stirred and our fears would perhaps get momentarily the best of us, yet, presently there would come to our mind the question: Is this imagination or is it real, bona fide facts? And unfortunately for me I have rather 9.n inquisitive mind, and I could not help asking myself, "Why should this disaster come? Why should this great storm of destruction come from putting this into the Constitution?" Mr. Chairman, there has not been a man on this floor, and there will not be a man on this floor, who dares to say that these corporations should not be controlled. There has not beeii a man on this floor and there will not be a man on this floor, who will dare to say that the restrictions and the powers, which should be put in some State authority to restrict and to control these corporations, ought not to include the right to control rates and the classification of traflic. Now, I say no man has denied that. They have all admitted it. They have all gone so far as to say that those com- panies, which they represent in the daily walks of life, have violated the law; that they have violated the law many times and frequently, and that there must be some control upon them. Remembering those concessions and those admissions, Mr. Chair- man, while the gentleman from Roanoke w^as telling us of the great evils that would come upon us by putting this into the Constitution, my simple common sense made me ask: "Why should this ruin be so much greater when it is in a constitutional pro- vision, than it would be in a legislative enactment? Why should there be so much disaster come from a constitutional provision, when that disaster would not come from a legislative enactment, which all these gentlemen admit ought to be adopted by the Legislature. Can any man tell me? Do you not see that it is simple, wild imagina- tion; an attempt to arouse fear, and that no more harm can possibly come to the State by putting it into the Constitution than will come from putting it in a legislative enact- ment? Why, Mr. Chairman, I will go further; is it not beneficial to these railroads, that we should now and here put this provision into the Constitution? Mr. Chairman and gentlemen of the committee, the day has gone by when this question will not be a burn- ing and the living question until it is settled in favor of the people. The discussions which have taken place on this floor, the disseminations of those discussions broadcast through the State, will just as certainly arouse the people to the wrongs which they have suffered as that we are here assembled and utter those words. They now know, they now see, they will hereafter demand that this thing shall be done. Therefore, I say it has got to come. It is inevitable. It must come, and the simple question is, whether these railroads would not be wiser to say, "Put it into the Consti- tution now, and let us have an end of this trouble." Mr. Chairman, look and see what will follow. If this is not put into the Constitu- tion now, you will simply be throwing a firebrand into every political combat that is 149 — Const. Deb. 23G2' DEBATES OF THE COl^STITUTIOXAL CONVENTION" OF VIRGINIA. going to take place in this State, until this thing is settled and settled rightly. Can. the railroads be benefitted by that? If the evil which they say will come from this commission will come, will not that evil be magnified, the oppression greater, the sense of outrage greater, if they make us fight year in and year out until we finally crush them. Is it not better that now we should do it, calmly, free of excitement; do it when there is no popular outcry, no sense of outrage to be revenged, than that you should throw this firebrand, I say, into every political contest and combat, which will take place in this State in the coming years. Is it the part of prudence that you should have this thing to look forward to, to know that its demand will exist and grow. Then, when they put upon you the restrictions and the powers of State authority, mark my words, its strength will be in proportion to the outrage that they will feel, from not having obtained it before. Therefore, I say, that instead of this impending disaster, which the dark and gloomy mind of my friend from Roanoke so suffered under, you find that there can come no more evil as the result of a constitutional provision than there will be by a legislative enactment; but that wisdom and common sense and pru- dence ought to tell these railroads that it is to their interest, now and here, calmly, by this body, to settle this question, and not have it thrown, as I say into all the coming political contests to cause bitterness and trouble and a sense of outrage in this State hereafter. So I say to the friends of the railroads, I say it to the men who want to look upon this question calmly, not with any idea of hurting anybody, but with the idea of pro- tecting everybody, do this thing now, when it can be done fairly, calmly, properly, justly, and do not throw it into the political contests of this State to arouse anger and a sense of outrage in the people of the State so that when they come to put upon you these restrictions they will feel that they must punish you as well as get their rights. Mr. Chairman, I say that these opponents of this bill, and that the gentleman from Roanoke, loud as were his lamentations, fearful as were his prophesies, are simply fighting the air, because they know as well as we do that no more harm will be done by a constitutional provision than by a legislative enactment, Mr. Robertson: My speech was based on my honest convictions, just as yours is. I do think that there is a very broad difference between putting a provision into the Constitution, where it cannot be amended, and putting it into a legislative enactment, where it can be amended. Mr. Meredith: I will not do you any injustice intentionally; I may uninten- tionally. Mr. Chairman, it has been admitted on this floor there is virtually no difference between the two reports in the main as to the question of rates and the placing of that schedule of rates and the classification of tariff in the Constitution. It is agreed that the power of revision of tariff and of revision of classification ought to be given to some State authority. Everybody, including the gentleman from Roanoke, admitted that. Now, I say, if that be true, it will be difficult to establish the difference between a con- stitutional provision and a legislative enactment. Do not tell me about flie draft of it; I will come to that in a moment, but I am speaking as to the proposition concerning the danger that comes from it, and to the injury that will follow; as to whether it is not as dangerous to put it in a legislative enactment as to put it in a constitutional pro- vision. I want to stop here to say that several years ago I stood on this floor, not as a member of any legislative body, but simply as representing some workmen of this State in a friendly and charitable way, and urged the railroad authorities to allow some employers' liability bill to be passed by the Legislature; that it had to come; that wrong could not exist forever! and according to their usual conduct they simply held on to what they had, until now they find that the people of the State are willing to in- sert a Constitutional provision to protect the people of the State from the outrages DEBATES or THE C0^'5TITUTI0^'AL COXVEXTIOX OE TIEGIXIA. 2363 perpetrated by the employers' liability law of this State. I say again, it is to the in- terest of those people to have the question now at issue settled by a body which will try to deal with it calmly, which will tiw to deal with it intelligently, which will try to draw its prorisions in such a way as to give them fair protection. But the friends of the railroads must not demand such things as will destroy the protection which the people demand. That is all we ask of them: Come and put your shoulder to the wheel with us and we will give you all you are entitled to." But let us say now and here, "You will never have over the people of this State the extensive powers you have had, to harm them in the past." So I say, Mr. Chairman, that the line of attack made by the gentleman from Roanoke, which was the second line of attack, failed. Then, Mr. Chairman, there came forth that doughty warrior from Frederick (Mr. -Harrison). He came, as what? Marked upon his banner was praise of the Legislature. He poured forth paeans of praise for the Legislature. He painted that body as one that was worthy of all trust and confidence and love, and said that in all our efforts we could safely trust the Legislature. Ti,'hile my friend from Roanoke had used all the dark pigments, and every color he had was dark and gloomy, those of the gentleman from Frederick were "brilliant and beautiful, from yellow to red; and as he described how much we could get from the Legislature, we found at last that it came to what? That he had brought into the arena what had been kicked out of it virtually, the Mason bill if 1892, and then exclaimed, in the language of the blind bard, These are thy glorious works, Parent of Good." That is another line of attack, Mr. Chairman, that has been pursued. Sir, I stop to repeat, could the ingenuity or the wit of man devise more able or more ingenious lines of attack than have been pursued by the opponents of this bill? They have in- dulged in every method of fight; but they did not stop there. Last, but not least, came forth my friend from Petersburg (Mr. Hamilton). Mr. Chairman, he was to play another part. Mr. Harrison: I should like to ask the gentleman, before he leaves that subject, wherein the Mason bill has failed to do the vrork it vras intended to do when any use was made of it. Mr. Meredith: I have never denied that it has failed to do the work it was in- tended to do, but I deny that it was ever intended to do the good work it ought to do. Mr. Harrison: Xow, I understand the great complaint that the gentleman who favors the majority report, is that there have been discriminations in tariffs. I should like the gentleman to explain wherein the Mason bill is not effective in securing relief from any such discrimination. It certainly gives a remedy by application to the courts to have it corrected, and the courts have sustained that jurisdiction. Mr. Meredith: Mr. Chairman, I cannot stop now to discuss the matter, which the rest of us regard as a dead issue. It was found so defective that the minority had to amend it, and they brought in here a report, thinking they were giving something more; and now you want me to go back to what has been discredited by even the minority. I respectfully submit I cannot stop to argue upon lines of thought like that. But I say my friend from Petersburg was then brought in to make an attack upon us, and. Mr. Chairman, he was to follow another line. He was to be the skilled swords- main of a rapid rapier; and full well he did his part. After he got through, Mr. Chair- man, there was not a fly-speck on that majority report which he had not pierced with his murderous sword; and they were fly-specks. Vrithout taking the broad question we were discussing, my friend undertook to show minutely here and there an evil, and here and there an evil, not willing to wait until we came to consider those little details and offer amendments, but in order to crush us by the last effort he could devise. All other lines of attack having been pursued he was to overwhelm us by piling up the little errors in matters of detail. Mr. Hamilton: I think you said I was brought in to do a certain thing. I wish to 2364 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. assure you that, what I did, was without consultation ?^d without any arrangement with any one. Mr. Meredith: I will say to the gentleman from Petersburg that I would not be justified in saying to him what the gentleman from Pulaski (Mr. Wysor) said to the gentleman from Roanoke (Mr. Robertson) on yesterday, that if he had consulted some- body he would have made a better speech. I will not say that. I think the gentleman, along the lines of thought he was pursuing, made an able and ingenious presentation of his cause; but what I am objecting to is the pursuit of that line of thought at such an unfortunate moment. What will remain for my friend from Norfolk (Mr. Thom), Mr. Chairman, I do not know; but there must be some last gun. They have some new effort, some new line of attack, for I cannot conceive that men, who have been as ingenious as they have been, will ever fail to bring forth' some other device, by which they will attack the merits of this bill. Mr. Robertson: Do you think it is fair to charge your opponents here on this floor who represent different constituencies with having gotten together to get up devices to present their arguments here? I, for one, resent the use of that word. I, like the gentleman from Petersburg, made my argument here without consultation w^ith any man, whether it be good, gloomy, or what-not, and I desire to say to the gentleman that I represent no one except my constituents on this floor. Other people do not dictate to me how I shall make speeches. The whole line of your argument here, I respectfully submit, is to put the opponents of this measure in the position of having gotten together and made schemes as to how they shall defeat it, and I, for one, sir, resent it. Mr. Meredith: I think the gentleman from Roanoke is the last man in this body who has any right to resent anything on this floor, when he recalls the fact that he stood on this floor and stated that those of us who were opposing this measure were prompted by the fact, that we are sullen and dissatisfied, because we are not employed by railroads. Mr. Robertson: I said nothing of the kind. I leave it to the record if what I said was not that if there was prejudice on one side it was in favor of the railroad, there probably was prejudice on the other side, and I leave it to this Convention whether I made any attack on the motive or character of any man in this Convention. On the contrary, I distinctly denied that I intended to do so. Mr. Meredith: Oh, that general denial is like your line of argum.ent, along general lines. You make specific statements and then undertake to make general denials. Let us see what the gentleman said: I think any man is apt to have a kindly feeling towards the man who employs him; but you must recollect that the unkind feelings that some of these gentlemen manifest by their action, though they deny them, and I believe they deny them hon- estly, are probably induced by the fact that they have not a pass and do not draw a salary from a railroad. Mr. Robertson: I admit I said that. Mr. Meredith: I say it looks to me as if men who have passes in their pockets undertake to divert attention from that fact by charging that others who have not passes in their pockets are influenced by sullenness and dissatisfaction, and that they have no right to complain of my mild irony, without any intention of insult. Mr. Chairman, there has not been a man who has argued on the other side, who has not undertaken to claim that those of us who are fighting for this measure are in- fluenced by motives; and that we are so bitter and stirred by so much feeling and are so unwise that we cannot judge; but that the railroad attorneys are alone entitled in this body to be listened to as men of judgment, men of prudence, men of forethought. Mr. Chairman, I am the last man in the world who wants to draw any attention to the fact as to what may be a man's personal relations. I proposed to argue this question upon such lines as I thought v/ere legitimate, but I have a right, when I DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OF YIRGIXIA. 2365 see this line of attack made in this way, without any regard as to whether it was by consultation or not, to show that one after the other abandons his position, and some- body else comes to the attack upon a different line. Now, Mr. Chairman, let us get down to something that is important. In passing any measure of importance, we ought always, of course, to ask whether there is any need and any demand for it. Not only have the advocates of the majority report been represented on this floor as men who were influenced by unvv^se, injudicious feeling, ideas, and lack of knowledge, but even those men we represent have been described as m.en who did not know what they wanted, who are ignorant as to their needs, who could not see the effect of their prayers, and that they ought to be ignored, and that nobody ought to be regarded as being able to consider this thing properly except the railroads. I am told, Mr. Chairman, that in the city of Danville there met a body of business men last May, before this body convened. They were business men, men who pay these rates, and whose goods are classified according to the schedule of classification. These business men came from all the cities of the Commonwealth. They met there and de- termined that they would ask this Convention to adopt a constitutional provision to protect them from the railroads in matters of this kind. They even anticipated the meeting of this body, and they employed a professor of Washington and Lee University to draft the bill, which was first presented here. In the light of such facts, can it be possible that any man, who is fair-minded, can undertake to say these men do not want this thing, that there is no demand for it? When we find men, not wild men, not Populists, but prudent business men, men, if you choose, whose only nerve that affects them is the pocket nerve — I care not how you describe them — men of knowledge in matters of this kind, before this Convention met they determined that they would ask the Convention for the protection of the business interests of this State. They employed, not some lawyer for a fee, but they got a pro- fessor, Professor Willis, of Washington and Lee University, to draft the bill which was presented here, with slight amendment, by the gentleman from Danville. Sir, if you were trying a man upon his life, and the question was as to whether there had been any premeditation of the act, could j^ou produce stronger proof than I offer you here, as to what is the feeling and the demand of these business men upon this proposition? That is what they did, and they got this bill drafted and presented here to this body. Since the bringing in of the majority report, what do v/e find? We fi.nd pre- sented here to us the endorsement of a committee, v/hich was appointed by those busi- ness men, signed by them, asking that the majority report may be adopted. That com- mittee represents the Chambers of Commerce of Richmond, of Newport News, of Lynch- burg, of Danville, of Petersburg, and of Norfolk. I do not know whether these gentle- men are able, I do not know whether they are so ignorant, that they did not know what they were asking, as the gentleman frona. Petersburg seemed to think. The gentleman from Petersburg can tell us as to whether the men who signed this paper are intelli- gent citizens of his city. Their names are Bartlett Roper and R. D. Gilliam. I pre- sume they are men of intelligence. They were selected by the business men of Peters- burg to represent them upon this proposition; and they have signed this paper asking that this particular report should be adopted. The gentleman from Petersburg yester- in closing one of his remarks, said: "If you will not accept truth like this, you would not listen to one even though he rose from the dead." How about this evidence to prove that these men want this measure, this particu- lar measure? The voice comes from Petersburg, in opposition to the gentleman from Petersburg; the voice comes from Norfolk in opposition to the gentleman from Norfolk, and the voice comes from Lynchburg and from Danville and from Richmond. So I ask you to pause one moment and see whether there is any demand for this thing. The gentleman from Roanoke said what? Why, sir, that there has been no popu- 2366 DEBATES OE THE CONSTITUTIONAL CONVENTION OF VIRGINIA. lar clamor for this thing in a legislative contest. Would the gentleman from Roanoke prefer a great political clamor, aroused by some stump speakers, in preference to the resolutions of business men anticipatory of a meeting of, this Convention, and following it, after the Convention has produced its report, by earnest requests that the report be adopted? Would you prefer the clamor of a political fight to the calm consideration of business men, to the deliberate judgment of these men, formed before you met, and simply increased and strengthened by the fact that they have seen the bill now pre- sented. They come again and say, "We presented to you a bill, gentlemen, that was drawn by an able man. We find that you did not accept that in full. You have pre- sented us another. We will accept that." How could I offer you stronger proof that the business men of this State want this thing? I then have a right to say that I speak the voice of the cities of this Common- wealth, not only the city of Richmond, but the voice of the cities of this Common- wealth, when I say they have come here first, and asked you to give this relief, and now when you have offered to them the relief contained in this report, they thank you for it, and ask that you will carry it through and make it the law of the land. Mr. Chairman and gentlemen of the committee, so much for the cities: I have no right to speak for the counties of the Commonwealth, but I will ask any man v/ithin the hearing of my voice to rise on this floor now, or at any time during this discussion, and say that he does not believe and is not morally certain, that if this question were submitted to the people of any county in this State, they would demand it overwhelm- ingly. Now, let me hear any man deny it; you gentlemen who represent county con- stitutents, ought you to shrink from this duty. Mark you, I do not think that it is the duty of any man to follow blindly his constituents. There is nothing I have greater contempt for than the proposition that a man must sacrifice and surrender his intelli- gence and his sense of moral duty to the demands of anybody; but I ask any gentle- man on the floor of this Convention, who represents a county constituency, to rise and say here that he believes the people of his county do not want this thing. Nobody answers. Then, Mr. Chairman, are we not justified in drawing the conclusion, that all classes of this State, those that live in the cities and those that live in the counties, feel that they have a right to demand at your hands the passage of this law; that you feel confident, that if you would only give them an opportunity to vote upon it, they would endorse it heartily and fully, if not unanimously. Now, Mr. Chairman, I have said I do not believe in anybody following blindly the demands of his constituency, but I do believe this, that, coming here as representatives, it is always our duty to yield to the requests or demands of our people, unless we can give them full and satisfactory reasons to the contrary. I announce that as a proposi- tion that I would like to have denied, that it is the duty of a representative to yield to the wishes and demands of his constituency, unless he surrenders to a wrong, unless he surrenders to an injustice. Mr. Chairman, if there is no doubt about that proposition, we are face to face with this: We know our people want it. Many of them have demanded it. We must stand before them an^ say, "These are my reasons for not obeying your behest." What are they? What has been the main reason— and all the others have simply gathered around it — that has been offered to the Convention, why this report should not be passed? Because it ought not be in the Constitution. Can you satisfy your people with a reason of that kind. You cannot tell them in general terms that it ought not to be in the Constitution? Have you not got to back that up with some other reason to satisfy the intelligent men of your community or your county? Do you suppose they are going to say they recognize a Constitution to be of so holy a nature that nothing ought to be put in there except what everybody regards as necessary to go in there? Do you not know that they are going to demand that you give them some reason, be- sides the mere dictum that you have offered on this floor, that a certain paper ought not to be in the Constitution? DEBATES OF THE CONSTITUTIONAL COXYEXTION OF YIRGINIA. 2'367 What reason can you give ^-hen you find that not only the people demand it, the people of cities and of the counties of the Commonwealth, but when you find that the gentlemen who stand on this floor as opponents of this measure admit that the people are entitled to some redress, that it would be wise to put some restriction on these rail- roads, that some power ought to be given to some State authority to have control over the fixing of rates and the classification of goods; that, in addition to the demands of the people, you have the concession from the other side that this thing is necessary somewhere, at some time, in some place. Your people say that this is the place. And the only answer you give them is, "No, I approve of it; I think the thing is a good thing; I like the terms of the bill; there are some things about which I differ, but do not ask me put it in the Constitution." Mr. Robertson: When you w'ere running for the Convention, did you not sign a letter, in reply to some questions that were asked candidates here stating that there were some things you approved of, but that you did not think the Constitution was the place to put them? Mr. Meredith: I did, sir, and I changed my mind about it. In that paper I said also that I wahted every man who voted for me to distinctly understand that I was not to be bound by any answer in that paper, and that I proposed to exercise my judgment on all questions when I came here. I have always recognized my right to exercise my judgment, but I deny my right or your right to run counter to the wishes of your con- stituency, simply upon the dictum that a thing ought to be a legislative enactment instead of a constitutional provision. It is not a satisfactory reason, unless you can show by some principle that it ought not to be in the Constitution. Nov/, Mr. Chairman, the gentleman from R.oanoke has seen fit to interrupt me just at this time; and it recalls to my mind that, when he was on the floor discussing this question, as he said, along " general lines," I tried to interrupt him, to ask him a ques- tion. He declined to allow me to do so, saying he was arguing along "general lines"* and did not see how a question would be appropriate and when I told him I wanted to ask a question along "general lines," even that was not satisfactory to him. I wanted to ask the gentleman from Roanoke, when he was undertaking to tell us that thig measure was not to be in the Constitution, to give me some principle by which I could be guided. I shall not take his dictum, much as I admire his intelligence. Mr. Robertson: The principle I laid down was that when you are enacting a legislative enactment, no one can see how it will operate practically. All laws have to be amended from time to time to meet questions that come up under it that we cannot foresee, and for that reason we ought not to make it a permanent law that cannot be easily amended, in order to meet the construction of a court, or to meet some new case that arises under it where it needs an amendment. That was the principle I advocated, and if it is a false principle, of course the gentleman has the right to argue that it is. Mr. Meredith: The gentleman begs the question by saying that a legislative thing ought not be put in the Constitution. I want some clean-cut statement to me as to when a thing ought to be legislative and when it should be constitutional. I will give such a principle before I get through. I do not care how able these gentlemen are, and I recognize their ability; but when they come upon' this floor and tell me that and this and that ought not go into the Constitution, it is perfectly unsatisfactory. I must have some principle by which I can be guided in making up my mind. Because I can under- stand that this gentleman may have a bias this way, and this gentleman a bias that way, and his opinion as to whether a thing ought to go in the Constitution will be undoubtedly affected by his bias. I want some principle by w^hich a man can be guided in a matter of this kind. I was saying, Mr. Chairman, that not only has the demand come up from the cities of this Commonwealth, but it will come up from the counties, if you once let them have a voice in this matter. The gentlemen on the other side have admitted upon this floor that there is a necessity to protect the people. You go to the people and say. 2368 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. "Gentlemen, our opponents have said there was this necessity; that these railroads violate the laws in our State; that they refuse to recognize the rights of the people of the State; that they impose upon them burdens that are unjust, and in the fact of all that we determined it was not a thing to go in the Constitution." Do you expect them to accept any such statement as that, except with the indignation, if not the contempt it deserves? Let me see what have been the reasons offered by the gentlemen here, as to why this thing should not go in the Constitution. Do I ask you any un- reasonable thing when I say this? Believe me, gentlemen, if any reason could be given, it would have been given by the able attorneys, who have been so long connected with these railroad corporations that they know the workings of them. Do you not believe that if any reason could have been given why this thing should not go in the Constitu- tion, it would have been given by these able attorneys who are here so earnestly pro- testing against it? Have you any reason to believe they have held back any good reason? Do you not know that, pursuing the different lines of attack they have in- troduced, they have pressed forward, with all the earnestness and all the eloquence of which they are capable, every conceivable reason why it should not go into the Con- stitution? Now, if there is any man here who has another reason that has not been given, I should like to hear it. But I take it for granted that v/hen the gentleman from Fauquier (Mr. Hunton), the gentleman from Norfolk (Mr. Brooke), the gentleman from Roanoke (Mr. Robertson), the gentleman from Frederick (Mr. Harrison), and the gentleman from Petersburg (Mr. Hamilton) have discussed a question as fully as these gentlemen have discussed it, they have given every conceivable reason why this report should not go into the Constitution. Now, what are they? Mr. Chairman, some French cynic said that language had been given us to conceal our thoughts, and frequently, Mr. Chairman, it certainly hides the sense of a proposition. Lay aside now all the verbiage, lay aside all the earnest eloquence, lay aside all the rounded sentences, lay aside all the sneers and sarcasms, and come down to a plain common sense examination of the discussion which has taken place on this floor, and see whether I do any injustice when I say that there have been only three arguments offered here why this report should not go into the Constitution. One was as to the length of it, another was as to giving "paramount" powers to this board, and the other was the danger of drafting it, I know there has been a great deal said; I know there has been a good deal of repetition, I know there has been a great deal of eloquence and earnestness as to the evils that would come from this thing; but I ask you to recall any reason that has been given here, except the three little reasons I have enumerated. If the gentleman from Roanoke can think of any other, I should like to hear it. I ask the gentlemen of this Convention whether I have done the gentleman from Roanoke, or the gentleman from Fauquier, or the gentleman from Frederick, or the gentleman from Norfolk, or the gentleman from Petersburg any injustice when I have said that the grounds upon which they say a thing of this kind should not go in the Constitution are three, first the length of it, second the "paramount" powers given in it, and third the danger of drafting it. Now, let us hear any other. Now, gentlemen, let us take them in order. First, the length of it. Is a Consti- tution judged by the yard? Do you measure a Constitution like you do a bushel of potatoes? Is it always to be one size? Is it to contain so many paragraphs or so many lines or so many words. Why, the aesthetic sense of the gentleman from Roanoke was shocked with the idea of having any Constitution longer than five pages, because some- where back in the past a Convention in Virginia had adopted a Constitution of five pages. I ask again, is the length of a thing to be put in opposition to the merit of it? Why Mr. Chairman, if you tell one of these plain common sense farmers that you did not put a thing in the Constitution because it was too long, and somebody alongside of DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. 23G9 you said " But it was a good thing," what do you think he would think of it? He would say "I do not care if it was a mile long; if it remedies the evils under which I suffer, I want it. I do not care what my forefathers did." The idea of any gentleman as well acquainted with the history of this State as is the gentleman from Roanoke, undertak- ing to compare a Constitution at this day with one passed in 177G, when he knows that the State of Virginia had changed from the condition of a colony, with a House of Bur- gesses, a State Council, and a Governor, and that her power of passing laws was un- limited save that they had to be subject to the approval of the king. When our fore- fathers undertook to draw the first constitution they were influenced by those broad powers they had had, and they could not see into the future as to the dangers that would demand restrictions, provisions and limitations! Why is the gentleman guided by the fact that the Constitution of 1776 was only five pages? I will say to him that there has not been a Constitution adopted since then that has not violated his aesthetic sense as to the size of a Constitution. Every Constitution has been in the question of size a violation of the preceding Constitution. Bul, Mr. Chairman, am I not dwelling too long upon a thing that is not worthy of discussion, when I undertake to discuss the question of the length of a paper that should go in the Constitution? Am I not undertaking to discuss a proposition that none of you gentlemen are willing to accept, when presented to you in the naked shape in which I present it? When covered and dressed up with all the eloquence and the words of these gen- tlemen, it presents a very strong and forcible aspect; but when you strip it of its robes of verbiage and present it in the naked skeleton, you see it is simply whether you will keep a provision out of the Constitution because it is a few pages longer than usual. Now, Mr. Chairman, as to the second reason that has been given here, namely, that it gives "paramount" powers. AVhat do you propose to do with the proposed com- mission? If you put it in the Constitution, do you not propose to give it constitutional powers. Do you know any department of the State, which is worth putting in the Con- stitution, to vrhich you do not give constitutional powers, and constitutional protection? Do you not do it as to your Governor? Do you not do it as to your Judiciary, as to your counties, as to your cities, as to your school boards, as to your penitentiary boards, your agricultural boards, and as to every department of the State, that is worthy of being in the Constitution? It ought not to be in the Constitution if you do not give it constitutional protections and constitutional power. Nothing is worthy of being in the Constitution if it is to be the creature of the Legislature, if it is simply to be at the will and the power of the Legislature. It then becomes a legislative duty, and a thing fit for legislative enactment; but when we recognize that it ought to be in the Consti- tution, there ought to be thrown around it the power of the Constitution to protect it from legislative encroachment or judicial encroachment. Can any man deny a principle like that; that when anything is worthy of going into the Constitution, it ought to be given constitutional powers; and that if it is not worthy of being given constitutional powers, it should be kept out of the Constitution? I say this expression of "paramount" powers is simply the expression of the same idea that you convey when you say in the Constitution that the Judiciary shall have such powers, the Legislature shall have such powers, the school boards and the cities, &c., shall have such powers. They cannot be taken away by the Legislature or any other department. They are constitutional powers. They are "paramount;" to use the word which shocked the sense of the gentlemen from Roanoke. To every department of government that you recognize in the Constitution you give constitutional or "para- mount" powers, as well as constitutional protection. So I say there is nothing in that word: nothing in the fact that you give to this commission some powers and some duties by the Constitution, and hence make them "paramount." I shall endeavor presently, when I come to discuss this report, to show you how limited these powers are, how restricted and confined they are. But I am say- 2370 DEBATES OF THE CONSTITUTIONAL CONVENTION" OF VIRGINIA. ing now, that the more that they are given " paramount " powers ought not to shock the sense of anybody, unless he happens to be fighting the use of a word, because it has not been used in the Constitution before. The word paramount is not used as to the other departments, but the effect is the same, by giving them constitutional powers; therefore, do not let us be fighting any longer over the shadows of doubt, which seem to arise from the use of a word so easily understood. Now, Mr. Chairman, I come to what is called the danger of drafting this meas- ure. A great deal of discussion has been had here as to the inaccuracy in drafting this report. Can the gentleman who brought in the minority report brag that they tried to perfect the phraseology of this report? Will the gentlemen who signed the minority report, who tell us that the drafting of this report has been so evil and so mistaken and so erroneous, tefl us whether they bent their intellects to assist in correcting those evils, before it was brought in? I want to say, in justice to the gentleman from Peters- burg, that upon the Committee of Finance and Taxation, while he had different views from some of us as to certain matters, and while he proposed to maintain them, that when the principle was settled by the committee, he bent his able mind to assisting us in the draft of our report, and gave us great assistance in preparing it, so that there should be no verbal inaccuracies in it, and we are indebted to him for his wonderful accuracy of statement. Mr. Hunton: The gentleman is correct in saying that no effort was made by the minority to aid in correcting this phraseology, because they never had any opportunity to give such aid; the report never having been read to the committee or discussed in the committee after its final draft was made. Mr. Braxton: I desire to make a correction of the statement that the gentleman from Fauquier has made. He is in error, I think, in this, and I desire merely to re- fresh his memory. The report was presented to the committee formally in its final draft, three days before it was finally adopted, and a copy was furnished to each mem- ber. In substance the same report or the same document had been discussed before the committee and before the individual members of it, and discussed by the repre- sentatives of the railroad people before the committee in the court room of the Court of Appeals, for several weeks prior to that, and when the vote was taken the question was first asked whether anybody present desired to discuss it. Each man was called upon by name to say whether he desired to be heard upon it before the vote was taken, and the vote was not taken until each person present said he did not desire to discuss it. I am sure my friend will recall the circumstances since I refresh his memory in that respect. Mr. Hunton: I desire to say that the statement of the gentleman from Augusta, I think, is not at variance with mine. What I said was that the report of the majority of the committee upon the subject was never, in its final draft, presented to the com- mittee, read to the committee, nor was there ever any committee discussion of it. There were general discussions of the general principles. My friend is correct in say- ing that a copy of the report was furnished to the individual members of the com- mittee. There is no question of that; but what I say is that that report was adopted as a whole without ever having been read to this committee and without ever having in its final draft had committee consideration or discussion. Therefore, it was impos- sible to make any effort to amend or correct, or change the language when it was never read to the committee, and there never was any committee discussion of its lan- guage or of its details. I desire to say I should never have alluded to the subject except for what was said by the gentleman from Richmond (Mr. Meredith). I thought when he made that charge against the minority of the committee it was proper and right that the facts should be given with reference thereto. Mr. Meredith: Mr. Chairman, of course I did not intend to charge the gentleman from Fauquier with any neglect of duty. I do not know what took place in the com- DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. 2371 mittee, but I cannot conceive it possible tliat if the gentleman from Fauquier, or the gentleman from Norfolk, had desired to insist on correcting anything in the phrase- ology of that report, and had suggested anything of that kind, whether they had had an opportunity or not before, it would have been most readily granted to them, and their assistance would have been most heartily received. But whether that be true or not, do not let us undertake to listen to this cry of drafting, when we say to them now "You shall have the opportunity here on this floor; and every error of phraseology, every verl:al inconsistency, every mistake or doubtful expression of this report, you gentlemen shall have an opportunity to amend, so that you shall give to the people of this State something you will not be afraid of, because of its phraseology." So do not let us be driven off by shadows like that. If these gentlemen see, as the gentleman from Petersburg yesterday thought he saw in many instances errors in this report, when we come to consider the report in detail we will be glad to receive from the gentlemen who are opponents of this measure, all the assistance they can give. So do not put yourselves behind the idea that you fear the mere drafting. I want to say this, that I am sure the gentleman from Fauquier if he believed it to be a duty to put it in the Constitution, would not shrink from it because of a fear of its phrase- ology. Nothing v\'ill actuate the gentleman from Fauquier except a sense of duty, and if he once becomes impressed that it is his duty to put this thing in the Constitution, I will guarantee that he will bend his efforts to it. no matter what may be the dangers of phraseology. I ask for the same courage from the rest of you gentlemen. I ask for the same courage for my friend from. Nansemond (Mr. Barnes) that the gentleman from Fauquier I know possesses, that you will not let these gentlemen, by a criticism of this long report as to its verbiage, as to its expression, as to its inconsistencies, drive you from what you believe to be your duty to the people, but that when we come to con- sider these things, section by section, you will then bend your efforts to such cor- rections as are proper to be made. And I believe, that in the united effort of the men of this Convention, we can send to the people of the State a paper, that, as to its phrase- ology, we need not be afraid. I ask 3'ou gentlemen to exercise the same courage in per- forming what you believe to be a duty, that the gentleman from Fauquier would exer- cise if he should once become impressed with the idea that it was his duty to put such a provision into the Constitution. Now, Mr. Chairman, I have tried to go over all the three arguments which have been adduced here, as to why this report should not be put in the Constitution. I have tried to take them up seriatim. I have tried to present them to you fairly. I have tried to show you that they are mere shadows, that there is no force in them. The idea of being influenced by the length of a paper as to whether it shall go into the Constitution instead of by the merits that is contained in it, and the necessity that calls for it, is inconceivable to a man who is moved by common sense. The idea of one being driven away from this measure because of the use of the word "paramount," when the same idea, although not in the same words, is expressed as to all other departments, in the present Constitution, the coming Constitution and all past Constitutions, is to me devoid of all reason. The idea of shrinking from the performance of a duty to save the people of this State from injury and wrong and in- justice, which even the opponents of this measure admit to exist, because you fear your power of drafting, is to my mind so pitiable — I was about to use another word, but I will not — that I cannot conceive of any man on this floor, worthy to represent any con- stituency of this State shrinking for one moment for any such reason. Then, if these reasons fail, can you hope to have others? If these able gentlemen, these eminent gentlemen, men who are posted about matters of this kind, cannot offer you any other reasons than those I have cited to you, will you please tell me what reply you propose to make to your people when you go back and tell them that when the cities of the Commonwealth asked for protection you refused it. ^lien you remember 23,72' DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. that whenever you put a railroad burden upon a city, the counties have to pay it just as much as the city does, what reply will you give when you go hack to your people and tell them the cities asked for the protection of both cities and counties and you re- fused it? When your constituents shall know that the opponents of the bill recognized the necessity for some correction and some protection, are you going to still harp on that excuse that is now so worn, so threadbare, that hardly any man dare stand upon it; the excuse that it ought to be a legislative enactment, and not a Constitutional provision? Mr. Chairman, I said a little while ago that when the gentleman from Roanoke was making his argument here a few days ago, I interrupted him for the purpose of asking him to give me some principle by which I could be guided in a matter of this kind. I did not want to accept the dictum or the ipse dixit of the gentleman from Fauquier, however able he may be, nor would I accept that of the gentleman from Norfolk, strong man as I know him to be, intellectually; but I am willing to be guided by principles; and if he or any other man on this floor can offer me any principle by which I can be guided, that would show me I would be doing wrong in putting this measure into the Constitution, I would then bow and acknowledge his superior wisdom. I said I would give a principle by which we can be guided, and I propose to do it; and I ask the gentleman from. Roanoke, or the gentleman from Fauquier, or the gentle- man from Norfolk or any other gentleman on this floor, to deny the correctness of it. Mr. Chairman, in order that I may be accurate in the expression of it I propose to read it. I have taken the care to write it down; and I announce it as the principle which ought to guide us in this matter. I ask your careful consideration of it. I say that as a principle, "whenever there grows up in society a large class of people with special and extraordinary powers, the exercise of which affects the whole body of the people in their daily walks, in their daily bread, and is so powerful as even to affect the Legislature of the State, then it is the duty of the people to reform and alter their Constitution in such manner as shall be judged most conductive to the public weal, by putting all reasonable restrains on this power and making it forever subject to such restrictions." Is there any man who can deny the justice and the correctness of that principle? Is there a man who is a bitter or earnest opponent of this measure who will deny the wisdom of the principle I have just announced? Mr. Chairman, the idea is based upon the Bill of Rights. The gentleman from Roanoke has talked to us about the beautiful symmetry of the Constitution of 1775, because it had five pages. Previous to the adoption of the Constitution I think there was written a Bill of Rights, which went along as part of that Constitution. In that Bill of Rights, Mr. Chairman, you find an expression like this, that I submit justifies the principle I have announced, " That whenever a government shall be found to be inadequate or contrary to these purposes, a majority of the community hath an indubi- table, inalienable and indefeasible right to reform, alter or abolish it in such manner as shall be judged most conducive to the public weal." Therefore I say that instead of running contrary to the teachings of our forefathers, if we become satisfied that our present Constitution does not meet the necessities of the day, it is declared in the Bill of Rights to be our duty to alter, reform or abolish it in such manner as may be most conducive to the public weal. Now, I proceed, Mr. Chairman, to the application of the principle that I announced. I ask whether there has grown up in society a large class of people who exercise special and extraordinary powers which affect the large body of the people in their daily work, in their daily bread. Is there any such power existing in this State? Need I pause for an answer? Is it not the unanimous consent of all present, the admission of every member of this body that there does exist just that dangerous condition of special and extraordinary powers? If it exists, does it affect the people in their daily walk, in their daily work, DEBATES OF THE COXSTTTUTIOXAL COXVEXTIOX OF YIRGIXIA. 2373 in their daily bread? Tell me, Mr. Chairman, what is not affected by railroad tariffs? As has been said of the National tariff, it follows us from the cradle to the grave. There is nothing we buy that has not been affected by it. There is nothing we eat that is not affected by it. There is nothing we wear or use the price of which has not been affected by it. We cannot fail to recognize, Mr. Chairman, the existence of these great, special and extraordinary powers affecting the large body of the people, affecting them in their daily work and in every utensil they use in there daily work, affecting them even in their daily bread. So I submit that I have shown to you the application of the first part of the principle which I announced. I come now to the second part of that principle, and I ask whether I cannot show the application of that. It is this. This class is so pov/erful that it has affected the Legislature of the State in its enactments as to public needs and public weal. Do I need any proof in this body as to that? Do I need any proof from ajiy where as to that? Has not this body declared that so great, so injurious, so tyrannical, has been the exercise of these powers by the class owning them that it proposes to overturn what has been the system of this Government for 100 years, and declare that the Senate of Virginia shall no longer be divided into two classes. Need I ask for higher proof than that? It has been recognized by us in Convention assembled, and declared in the article upon the Legislative Department, that so great has been this evil, so pov/erful are these people and that the legislatures of this State have been so frequently throttled in the performance of their duties, that it has become necessary for us to overturn the system of government we have had for 100 years, and demand that the Senate of Vir- ginia shall no longer be constituted as it has been. Along that line of thought I followed the distinguished gentleman from Lynchburg (Mr. Glass), and the distinguished gentleman from Fairfax (Mr. Moore), and the dis- tinguished gentleman who now presides over us (Mr. Keezell), and the gentleman from Danville (Mr. Withers), each and all of whom had been members of that body, who knew whereof they spoke, who told us that it was necessary that this change should be made, that the people might have protection. Now when we come and ask you for protection upon the ground that they will throttle us in this also, will you tell us to trust to them? Mr. Chairman, you cannot satisfy your people by any such talk. They are willing to trust you, but if ever they think for one moment you are not performing that trust; that in one respect you see the path of danger and avoid it, but that when you come to it in another measure you refuse to recognize it, you cannot expect fhem to have the least confidence in your judgment. I say I have satisfied you, it seems to me, as to the application of the principle announced by me in both its divisions, as to the effect upon the people of the State in their every-day life, and also as to its powerful effect upon the Legislatures of the State. I say, having shown you the application of it, have I not a right to demand, if the principle I announce be correct, that you shall so alter and modify your Constitution in such manner as would be most conducive to the public weal, so that this great power shall be put under reasonable restraints, and that it shall forever remain subject to those reasonable restrictions? I ask every one of you to meet fairly the principle I announce, to see whether the circumstances of our situation do not justify the applica- tion of it I shall not press the point further. The men of this body are too intelligent to need constant repetition of a clean, clear idea. I submit to your consideration the simple question whether the principle I announce as a guide for putting the measure in the Constitution is correct; and, having answered' that, I ask you to answer one other question, and one only, and that is whether I have not shown you the application of the principle as to the question now under discussion. Mr. Chairman, I appreciate most highly the kind attention that has been accorded 23,74 DEBATES OF THE COI^STITUTIONAL CONVENTIOl^ OF VIRGINIA. me by the committee. I am glad to say that I am — I was about to say drawing to a close, but I do not know that I can say exactly that. But I have gotten through most of what I intended to say. I should like to have some answer to this proposition, that if the principle I have announced be correct, and the application I have shown you be true, pray tell me who is thinking of protecting the State when opposing in this measure? Does she not need protection? It is recognized that she does. Why should you throw all the safeguards around this powerful class of people that you say have controlled your Legislatures? Why do you not protect the people of the Commonwealth from that injustice, from that tyranny, from that wrong? Sir, these corporations have ample protection. Any man Who reads this measure will see, first, that before any rate is changed it is to be done by three men who are to be selected by the Governor of the State. It is but fair to presume that he will do his duty honestly and will try to make wise selections. Hence, before any rate is changed, you have, first, the protection of these three men, who, it is fair to presume, will act in a reasonable manner. The State has no protection unless you give it; but even if you give the State that protection, at the same time you give to the corporations the same protection by saying, " These men to whom I trust my for- tunes, these men whom I have selected as the men who will give me the protection I need, will give you the same." But, Mr. Chairman, that is not all. I do not propose to stop to discuss the question as to whether this commission is to be the horrible monster that it has been painted on this floor. It is a wild assumption, and an unjust presumption, to tliinlc the Governor of this State proposes to select rascals or robbers or thieves; and I will guarantee that the selection of the Governor will by no means be as bad as those men who have been denounced by the Interstate Commerce Commission for their willingness to lie, and to destroy the records of their rascality. So I say, Mr. Chairman, you first must discredit the Governor of the State before you think any wrong is to be done to these people, because he has the power to appoint them. You must then go one step further, and think these three men are going to do this great wrong to these people and destroy their existence. But then you have got to go still further. You have got to believe that the Supreme Court of the State will uphold them in their rascality. Great heavens, is there nothing in this State to which we can give our confidence but railroad presidents. Must the honor and integrity of all the authorities of this State go down in comparison to these men? Must the Gover- nor of the State be a shame and a disgrf^^e alongside of them? Must the judiciary of the State be infamous in comparison with them? We are asked to stamp them so by men who claim to love their old State. Mr. Chairman, I cannot believe that you will think for one moment of giving cre- dence to these wild statements that have been m.ade here as to the robbery that will be perpetuated upon these corporations, if you trust them to high authority to be created by this measure. But, Mr. Chairman, if that be so, even if all of us be rotten, even if our high judiciary are unworthy of being trusted, there stands yet a power to protect them— the Supreme Court of the United States. That court has time and time again recognized its right to protect corporations under the amendment of the Constitution declaring the equal protection of the law. So, ample protection is given them. In the first place, these fears are idle and imaginary and unfounded, but, even if the danger they fear exists, they have their pro- tection, first in the commission, second in the Supreme Court of the State, and then they go up higher to the highest court of the land, and knock there and ask for protection. Where is the danger of destruction which we have had presented to us here in such gloomy colors, when all the authorities of the entire nation. State and national, are open to these gentlemen for assistance and protection? Mr. Chairman, I cannot think we will for one moment allow ourselves to be misled by any such fear as has been portrayed here by these gentlemen who are opposing this measure. DEBATES OF THE COXSTITUTIOXAL COXYEXTIOisT OF VIRGINIA. 2375 Let us go now, Mr. Chairman, hurriedly over this report; because it has been gone over so often, and you have been so patient with me, that I shall not do more than dis- cuss in a hurried manner the provisions of this bill; not for the purpose of criticising its phraseology — I think that ought to be done when we come to consider it section by section — but to show you that no great power is given to this commission, considering the great power that they will have to control? Is it not true, as a principle, that the power given to the authority ought to be comm^ensurate with the necessity for it? Is it not true that it would be idle to give a power to this commission that would not reach the extreme of the necessity? Would you be doing your duty in giving a povv^er that cannot cure the evil? Is it not your duty, when you see that this evil exists, to throw over all the people of the State the aegis of this measure? So, I say, Mr. Chairman, when we come to deal with this matter, do not let us deal with it in a petty manner; do not let us trifle with it; let us recognize the extent of the evil; and let us give power commensurate with it. And I say that noth- ing more than that has been done in this measure. I believe, Mr. Chairman and gentlemen of the committee, that when this general discussion is over, and that when we get down to the particular sections of this bill, you will find that there is going to be but one attack, one earnest full effort to defeat this paper, and if that does not succeed, there will be no future trouble, but we will have the assistance of these gentlemen. A great deal has been said about the different pro- visions of this bill. A great deal has been said as to the phraseology of the different sections of it; but Mr. Chairman, the real fight, the real attack, that has been and is being made upon this bill is against sub-section B of section 4. On nothing else do I expect any great fight. There is where they propose to make the fight, because there is where they fear the power, and there lies the burden and the benefit of this measure. If you throttle that, then, in pity, cast out the whole measure, because it then becomes useless, emasculated, idle and ridiculous. Now, what is the power given there? I do not propose to go over the bill and read the sections minutely, but I want to call your attention to the fact that there is only given there the power of control of these transportation companies as to the perform- ance of their public duties and their charges therefor. That language is said to be excessively broad, extremely dangerous. Mr. Chairman is there any other creature in this State that has to perform a public duty that is higher than the law? What system of government was ever instituted that recognized that anybody could have the per- formance of, a public duty and not be responsible to public authority? What are the principles of government that these gentlemen are proclaiming here? That there must exist in a nation a power which is required to perform public duties and shall not be responsible to public authority to the fullest extent, to make it perform those public duties? Name me any other creature, natural or artificial, that is not subject to the restraint, the control, the punishment of the public authorities. Mr. Thom: I merely wanted to know for my own information, whether or not there is a State that the gentleman knows of where the powers are as broad as these? Mr. Meredith: I shall show you before I get through. I am going to read to you the Constitution of that State, and 1 hope w^hen I read it we will abandon this Virginia conceit that we have all the wisdom in our midst and that nobody can give any more to us, not even a North Carolinian. I will give the answer at the proper time. The gen- tleman, I know, does not insist upon it now? I was discussing this line of thought, Mr. Chairman, that there ought to be no creature, natural or artificial existing in any State government which has to perform public duties, that ought not to be subject to public authority, public restraint, public control; and I use the language that is used in this section with full approbation, "control." Do not let us shrink from it. Our first duty is to our State, and our State can never thrive by letting exist in her midst anything superior to her. The march of 2376 DEBATES OF THE COI^STITUTIONAL CONVENTION OF VIRGINIA. progress should never be assisted by wrong. Prosperity should never come from injustice. So, I say, Mr. Chairman, instead of thinking that word "control'! is wrong, it meets my fullest approbation upon every conceivable line of thought as to the true principles of government. As able and as honest as is the Attorney-General of this State, if ho fails to perform his duty is he not liable to be removed from office? Are not the highest officers in the State subject to impeachment for non-performance of public duties? Tell me a high officer of this State who is not subject to control, control, control. I do not shrink from the word. Then, why should not corporations as to the public duties be subject to State "control." So, I say, Mr. Chairman, instead of striking out that word, let us keep it in as a clean-cut announcement of our idea of duty to the State, that every person who has a public duty to perform shall be subject to the control of public authority. One more section, Mr. Chairman, and then I shall not proceed much further, be- cause I want to read to you an article of the Constitution of a State of this Union bearing on this proposition, in answer to the question of the gentleman from Norfolk. I will now read from page 8, line 58, of the report to show what paramount powers are given to the commission: I The authority of the said commission (subject to review on appeal as hereinbe- fore provided) to prescribe rates of charges and classification of traffic for trans- portation and transmission companies shall be paramount. What does that mean? It simply means that the Legislature shall not take away from this commission this right. Just as it cannot take away from the School Board the powers and duties given to it by the Constitution. Just as it cannot take away from the judges of this Commonwealth the rights and powers and duties that have been put there by the Constitution. So as to every department of the government. As to each department there are some duties and powers, to use the language of the report, v/hich are "paramount" to the Legislature. The language just read shows the extent that you would give this commission "paramount" power, which to sit like three judges, forming a great court, and to pass upon these matters. All the power which they are given over and above the power of the Legislature is to prescribe the rates and classifications of traffic for transportation and transmission companies; and not one single power outside of that has been given "paramount" to the power of the Legis- lature. That is true, not only because the report specifies as to what powers the commission has been given paramount to the Legislature; but, not satisfied with that, the committee, so desirous that there may be no mistake about it, has in ex- press terms said, "But its authority to prescribe any other rules, regulations, and requirements for such companies shall be subject to the superior authority of the General Assembly to legislate thereon by general laws." So gentlemen, there lies the question. You have got to decide the simple question whether or not this commission, subject to appeal to the Supreme Court of this State, subject to appeal to the Supreme Court of the United States, shall have paramount pov/er in this limited degree as to rates and classification of traffic. As to all others it is subordinate to the superior power of the General Assembly. But it may be said, Mr. Chairman, that the subsections in this report shall not be amended by the General Assembly except upon suggestion of this commission. I admit it. But, Mr. Chairman, do not let us be frightened by that. Do not let us throw up our hands in fear simply because we run, as the gentleman from Roanoke says, with his agreeable sneer, through half the letters of the alphabet in the Fourth Section. What if we do? What if we run through every letter of the alphabet and then go to the Chinese language to borrow more? If we can put in these wise restrictions ought not we to do so, even if we use all the numbers known to the mind of man? But, Mr. Chairman, when we come to notice those subsections we will see that some are protec- tions to the railway company, giving them appeals, etc.? Do you suppose these gentlemen who are crying aloud against these things object to that? Not at all. But theyare simply trying to throw upon us the great weight of their criticism as to the length of the Con- stitution, and some of you stand off in fear and trembling. DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 2377 I have a brief note of the subsections here. Let us take subsections A, which is the first letter used in Section 4. That gives the commission supervisory power over charters, to see that the charters are properly filed. To see that corporations simply perform the preliminary duties before they have got a right to come into existence. To see that they really become corporations, and do not remain partnerships with the liability connected therewith. For their benefit and for the benefit of the State it is provided that somebody shall see that the charters are properly framed and taken care of, and that the general laws are carried out in relation to them. Then it requires the payment of a license. Then it requires that the commission shall receive certain reports that the Legislature prescribes, and shall take them and keep them in proper form. Oh, what a wonderful power- that is! What danger lies to the corporations in giving these simple powers, which have virtually existed in the law of the State for a number of years, and been exercised by the several departments of the State. Some have been exercised by the Secretary of the Commonwealth, some by the Board of Public Works, and others by the courts of the Commonwealth. Then we come to subsection B. What is it? The power is given to it to supervise the rates and classifications and other public duties. There is the real power, the real question. There is the question over which these gentlemen propose to fight. They do not care much about the balance of the report. It is immaterial to them, these details. Subsection B is their real objection. They are simply using these other matters to show you the great danger of putting something of great length in the Constitution. When you come to subsection C, what does it do? It gives this wonderful power, this dangerous power, this power that is going to destroy the prosperity of the State and bring us into ruin and destruction. It gives the power to adminster oaths and summon witnesses. What a fearful power, what a great danger! Recall the lamenta- tions of the gentleman from Roanoke, who described the danger and sorrow which is coining upon this State if we decide to create this commission which is given the power to summon witnesses and administer oaths. That is one of the great bugaboos held up to you by these gentlemen. I call your attention now to subsection D. It provides as to the method of appeals. It simply shows how the appeal shall be taken, saying what rights the Commonwealth shall have under the appeal. What is the reason that should not be done? Do you not want this thing to go into immediate operation? You do not want to put this power into the Constitution and then leave the modus operandi to the Legislature, which can cut its throat. Do you propose to give to the people a promise to the ear and break it to the hope? Do you propose to give to this Commission something tliat will be certain and effective, or do you propose to give it in an uncertain and useless manner? Mr. Chairman, that has been the course that has been pursued by some of the Legislatures of this State as to other remedies against railroads. If you will take the trouble and have the curiosity, I would advise you to study the statute in regard to fencing. It prescribes it to be the duty of the railroad to build fences along the farms through which they pass, but it attaches at the end of the bill a provision that no court in this Commonwealth shall, by mandamus or other writ, enforce this duty. In the light of such a fact why do you propose to turn the people over to the Legislature — I do not mean to say they are corrupt, but I do mean to say, as the gentleman from Lynchburg has said, that they have been subject to influences from which they ought to be relieved. Now, I say, Mr. Chairman, you have an illustration as to what the Legislature can do, how it can cut the throat of a wise and just measure, and if you don't provide here so that this measure can go into instant operation, some reasonable method of carrying it into effect, you might as well refuse to pass it, because it will simply become waste paper. I might go on, Mr. Chairman, and show you the same thing as to Section E, which 150— Const. Deb. 23,78 DEBATES OF THE COISrSTITUTIONAL CONVENTION" OF VIRGINIA. simply tells you the effect of the appeal, of Section P, that no new evidence be intro- duced and how the record shall be made up. And Section G, which declares nothing but what shall be done upon reversal by the Supreme Court of the decision of the commission. Why, the gentleman from Roanoke stated here in his argument on this question that this report goes so far as to tell the Supreme Court what it shall do. It simply says to the Supreme Court that if in its wisdom it sees fit to reverse the judgment of the commission, it shall then enter a proper judgment as to what shall be the rate or the proper classification. What is wrong in that? Frequently in suits between individuals, the court will modify the decree and send it back confirmed subject to modification, and order it to be carried out as modified. Surely such a power is necessary. But in a matter like this the court might not have it, unless given expressly. After having gotten a decision of the commission in the people's favor, if an appeal be taken, and the court should hold that the commission erred, the people should not be required to be satisfied with a mere reversal. The court should be required to go on and declare what should be done by the corporation. Otherwise another fight would have to be made before the commission, with the possi- bility of another appeal. Surely that course ought to be avoided. Hence the wisdom of this statement as to what the court must do. Section H relates to the right of an individual to his action at common law; that it shall not be affected. That simply reserves a common law right to an individual. It simply says that notwithstanding these regulations and powers that are given here for the State, that you shall not take away from the individual the right of damages, if he has any; if they existed before, under common law rules. Is that a great evil? That is held up as one of the things that tend to lengthen this Constitution to such an ex- tent that it makes it a monstrosity. The next subsection is I, which simply says the Commission shall make reports, shall give information to the Legislature and the Governor, as to what is done for the benefit of the Commonwealth and v/hat has been done for its protection. This is another one of the great evils that gentlemen point out to, as one of the things that ought to be left out. Is it not wise and just and beneficial to the railroad and beneficial to the people? The next provision is as to the power of amendment of subsections B to K, inclu- sive. I want to say one word about that, then I shall take up the Constitution of the State that the gentleman from Norfolk has asked me about. You v/ill see as to subsections A, B, and C, the Legislature has no right to amend, and why? Because those are paramount and constitutional powers over and above the power of the Legislature. The first is as to the creation of this Commission — I mean as to seeing that the charters are properly drafted and enrolled. The other is as to the power to regulate rates and classifications of traffic. The third is the right to administer oaths and summon witnesses. Now those are the only three things as to which the power of the Legislature is subordinate. As to all other subsections, it has the power to amend upon the recom- mendation of the commission. But it is said it ought to have this power of itself, that it ought not to be required to ask this board as to what amendments should be made. Upon what theory is that? Do we not know that if this board is antagonistic to the Legislature that you might pass a dozen laws and they would simply treat them as annullities? Do you not know that you cannot enforce by this commission any of those laws except such as meets its approval? Do you not know it will be practically impos- sible? When this commission shall think that anything is necessary they are going to ask for it. But to think that the opponents of this bill should be holding up their hands in holy horror because we should tie the hands of the Legislature about this thing. Why, Mr. Chairman, what harm can be done to them? Surely they cannot suffer under Sections D, E, F, G, H, L, I and K. DEBATES OF THE CONSTITUTIOXAL COXVEXTIOX OF TIRGIXIA. 2'3,79 If these subsections will not do them any harm, and will be beneficial to the State, Instead of objecting to them, it seems to me our opponents ought to recognize the prin- ciple that in giving the commission the paramount power to classify freight and arrange the rates, we ought also to prescribe the method in which these powers can be put into operation. Now, Mr. Chairman, I have already said, I fear I have said it so often that you will not accept my declaration any longer as sincere, that I thank you for the kind attention you have given me in this matter. In closing I want to show that this measure is no novel idea. Of course there are details in this report which do not exist elsewhere. A man would be an unwise states- man who had before him the written experience of other people and was aware of cer- tain dangers and say the pitfalls, yet would not avoid those evils. And that has been done in this report. If you turn to the Constitution of Louisiana you will find the same powers and sometimes the same language as is given in the report. It was a mistake when it was stated on this floor the other day that the only Constitution that had such provisions in it, were the Constitutions of California and Kentucky. The Constitution of Louisiana has a provision of this character. I shall read it to you to show you that ih has been followed in the main, although there have been wise and prudent modifica- tions as to detail. Now, I ask you patience while I read an article of the Constitution of Louisiana. Upon page 107 — and the calling of that number reminds me that I see that the people of that wise State did not hesitate to adopt a Constitution of 127 pages. They did not fear length, provided they got merit and benefit. I shall read to you from page 107. It is headed on page 106, "Railroad, express, telephone, telegraph, steamboat and sleeping car company commission." Article 283. A railroad express, telephone, telegraph, steamboat, and other water craft, and sleeping car commission is hereby created; to be composed of three mem- bers, to be elected from the districts hereinafter named, at the time fixed for the Congressional election in 1898. Of the three commissioners Just the number we have- Elected in the year 1898, one shall serve two years, one shall serve four years, and one shall serve six years." — About the same line v/e are pursuing in our re- port The period each is to serve to be determined by lot. I think we have the same wise provision. Thereafter the commissioners from each district shall be elected for a term of «ix years. The term of oflice which I think is prescribed in this monstrosity, the majority report. They shall be known as the Railroad Commission of Louisiana The commission shall meet and open an office and have its' domicile at Baton Rouge, and shall elect one of their number chairman, and may appoint a secretary at a salary of $1,500 per annum, and may meet and hold regular or special hearings at other places as they may find it necessary. No member of this Convention shall be Inno"^ election or appointment as a member of said commission prior to the year 1908. Now, Mr. Chairman, here they allow them to hold sessions or hearings as they see tit. They may have special meetings. We require, as this is an important measure and the railroad interests and the corporation interests in this State are getting so large, and as we propose to give these men good salaries, because you cannot get suit- able men without good salaries, that the commission be in daily session so that the doors of justice may be always open to everybody. 2380 DEBATES OF THE COJS^STITUTIONAL CONVENTION OF VIRGINIA. Article 284. The power and authority is hereby vested in the commission, and it is hereby made its duty to adopt, change, or make reasonable and just rates, charges, and regulations, to govern and regulate We say "to control and regulate." They say: To govern and regulate. Railroads, steamboats, and other water craft, and sleeping car, freight, and passenger tariffs and service, express rates and telephone and telegraph charges, to correct abuses, and prevent unjust discrimination and extortion in the rates for the same, on the different railroads, steamboat, and other water craft, sleeping car, express, telephone, and telegraph lines of this State, and to prevent such companies from charging any greater compensation in the aggregate for the like kind of prop- erty or passengers, or messengers, for a shorter than a longer distance over the same line, unless authorized by the commission to do so in special cases; — Those are practically the same provisions contained in the report of the majority of the Committee on Corporations. It is practically the same language. To require all railroads to build and maintain suitable depots, switches, and; appurtenances^ wherever the same are reasonably necessary as stations. And if my friend from Warren (Mr. O'Flaherty) is in the hearing of my voice I want to call his attention to that, that the Louisiana Constitution does not require the railroads to build and maintain suitable depots, switches and appurtenances wherever the same are reasonable and necessary at stations, and to inspect railroads and require them to keep their tracks and bridges in a safe condition. All these are public duties. These things are not simply private rights, but all of these things are public duties, and the Convention of Louisiana was wise enough to see that any man who has the performance of a public duty shall be subordinate to the public power and public authority. And to inspect railroads and to require them to keep their track and bridges in a safe condition, and to fix and adjust rates between branch or short line and the great trunk lines with which they connect, and to enforce the same by having the penalties hereby prescribed inflicted through the proper courts having jurisdiction. The commission shall have power to adopt and enforce such reasonable rules, regulations, and modes of proceedure as it may deem proper for the discharge of its duties, and to hear and determine complaints that may be made against the classi- fication or rates it may establish, and to regulate the mode and manner of all in- vestigations and hearings of railroad companies and other parties before it, in the establishment of rates, orders, charges, and other acts required or authorized by these provisions. We leave some of this power to the control of the Legislature. Here the Constitu- tion of Louisiana puts it beyond danger of the Legislature. They shall have power to summon and compel the attendance of witnesses, to swear witnesses, and to compel the production of books and papers, to take testi- mony under commission, and to punish for contempt, as fully as is provided by law for the district courts. Article 285. If any railroad, express, telephone, telegraph, steamboat, and other water-craft or sleeping-car company or other party in interest be dissatisfied with the decision or fixing of any rate, classification, rules, charge, order, act or regulation, adopted by the commission, such party may file a petition setting forth the cause or causes of objection to such decision, act, rule, rate, charge, classification or order, or to either or to all of them, in a court of competent jurisdiction, at the domicile of the commission, against said commission as defendant, and either party to said action may appeal the case to the Supreme Court of the State without regard to the amount involved, and all such cases, both in the trial and appellate courts, shall be tried summarily and by prefer- ence over all other .cases. Such cases may be tried in the court of the first instance either in chambers, or at term time; provided, all such appeals shall be returned tOs DEBATES OF THE COXSTITUTIOXAL COXVENTIOX OF VIRGINIA. ^■381 the Supreme Court within ten days after the decision of the lower court; and where the commission appeals no bond shall be required. No bond shall be required of said commission in any case, nor shall advance costs, or security for costs, be re- quired of the commissioner. Article 286. If any railroad, express, telephone, telegraph, steamboat or other water-craft, or sleeping-car company, subject hereto, directly or indirectly, or by any special rate, rebate, or other device, shall intentionally charge, demand, collect, or receive from any person, firm, or corporation, a greater or less compensation for any service rendered by it, than it charges, demands, or receives from any other person, firm, or corporalion, for doing a like and contemptoraneous service, or shall violate any of the rates, charges, orders, or decisions of said commission, such rail- road, steamboat, or other water-craft, express, telegraph, telephone, or other com- pany, shall forfeit and pay to the State not less than one hundred dollars, nor more than five thousand dollars — Now, gentlemen have been holding up their hands in holy horror because the com- mission is in our report given authority to fine the railroad five liundred dollars. Louisiana sees fit, in order that its requirement shall be done, which it says shall be done, to permit the imposition of a fine to the extent of five thousand dollars. That is wise. That is the way to make people obey the law. The best way is to have a fine running from a small one to a large one, and then if any one persists in violating the law, the large fine may be imposed — to be recovered before any court of competent jurisdiction, at the suit of said com- mission, at the domicile of the commission or of the company, or at the place where the complaint arises, at the option of the commission: Provided, that whenever any rate, order, charge, rule, of regulation of the commission is contested in court, as provided for in Article 285 of this Constitution; no fine or penalty for disobedience thereto, or disregard thereof, shall be incurred until after said contestation shall have been finally decided by the court, and then only for acts subsequently com- mitted. The power of the commission shall affect only the transportation of passengers, freight, express matter, and telegraph and telephone messages between voints within this State, and the use of such instruments within this State. Here is what I want to call special attention to, which has been pointed out by the opponents as being a great evil in the majority report, in requiring that changes in certain sub-divisions shall be made by the Legislature only upon the recommendation of the commission. Article 288. Upon the recommendation of the commission, the Legislature may add to or enlarge the powers and duties of said commission, or confer other powers and duties on them. That is much more restrictive than I thought. That does not allow them to modify or decrease the powers, but seems only to allow them to add to their powers. They may also provide additional clerical, or other assistance, that may be deemed necessary for the discharge of the duties of said commission, and may add other penalties to make the work of said commission effective. It shall be the duty of the Attorney-General, and the various district attorneys, to aid said commission in all legal matters, for which they shall receive not exceed- ing 25 per cent, of all fines and forfeitures collected bv them: Provided, the com- mission may employ other attorneys in lieu of these officers on like terms. So it is the duty of the various district attorneys to aid the commission in all legal matters, and they shall receive as compensation not exceeding 25 per cent, of all fines and forfeitures collected by them. No person in the service of, or attorney for, any railway, express, telephone, telegraph, steamboat, or other water-craft, sleeping-car company, or corporation, or pecuniarily interested in such company or corporations, shall hold the oflBce of com- missioner. That is along the line of the majority report that was so bitterly commented upon by the gentleman from Petersburg. 2382 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. ^ The fines collected, after paying the attorney's fees and the costs in suit, in which the commission may be cast for costs, shall be paid into the State treasury. Now, Mr. Chairman, I have shown you the admission of the gentlemen who oppose this report. I have shown you that they recognize the existence of this evil, and that they recognize the necessity of creating some power to restrain these corporations and to restrict their powers. I have shown you that the demand has been, not that there shall be legislative enactment, but that there shall be a constitutional provision. In opposition to that, we have been told that these cries have come up from people ignorant of their wants. I have shown you that it has come up from the business men and business sections of this State. I have shown you, in addition to that, Mr. Chair- man, that these business men have, through their business associations, their traffic bureaus, which they have had to keep in existence in order to meet these issues; have, by their traffic bureaus, prayed to you that you give them constitutional protection. I have answered, so far as I have been able, all the arguments so far offered why there should be legislative enactment instead of a constitutional provision. I think I have been able to show you that, stripped of the language in which those arguments were so beautifully clothed, and viewing them simply as naked ideas, that they are not worthy of much consideration in the decision of this question. I have shown you, Mr. Chairman, as far as I was able, the principle by which we should be guided in this matter. I have stated the principle and have heard no dissent from it. I called your attention not only to the principle, but to the application of the facts to both branches of the principle so announced by me, and have shown you by the proceedings of this body that I was justified in saying this principle demanded, sa great was this power, so great had been this evil upon the Legislature of the State, that there should be a constitutional provision, I have attempted to show you that the evils to flow from this measure have been greatly magnified, and that the powers given the commission are very restricted, so far as they are "paramount." I attempted to show you how the separate sections were merely questions of detail that are necessary; that the details are necessary in order that this article may be put .in operation, which you deem to be wise, and that it was necessary that there should be constitutional provisions as to those details. Upon this floor you have been told that nineteen States of this Union have seen the necessity of this thing; that nineteen States of this Union, seeing that necessity,, have exercised the wisdom that was called for. I have shown you that the prayer for this measure comes not from ignorant people, who do not know their own wishes and who have never read this bill, but that this measure was commenced by business men, and the original draft of the bill was drawn by a gentlemamn employed by them. I have shown you, in addition, from the Constitution of a State like Louisiana, which we all recognize as containing some of the ablest men in this Union, that the people of that State have seen fit to say that they recognize the principle, that where there exists in society a large class of people with special and extraordinary powers, which effect the great body of the people in their daily walk and in their daily bread, and where the exercise of those powers has been such that the Legislatures of the State have been influenced to evil, that, if it becomes necessary, that the Constitution of the State shall be amended in such manner as to best conduce to the public weal by putting upon the class exercising that power some reasonable restrictions, and by put- ting it in the Constitution in order that the restrictions may be permanent, for the permanent weal of the people of their State. May we follow that wise example. (Applause.) Mr. Stebbins: On Monday afternoon the gentleman from Fauquier presented a letter from Mr. E. D. Hotchkiss, general freight agent of the Chesapeake and Ohio road in which there were some criticisms of the manner in which I used the table of rates which had been furnished to the gentleman from Fauquier. As I stated in my DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 2383 remarks on last Saturday, the table which I presented and which I relied upon for my data was prepared jointly by Mr. W. H. Lumsden, commissioner of the Norfolk Freight and Traffic Bureau, and Mr. E. S. Goodman, manager of the Traffic Bureau of the Rich- mond Chamber of Commerce. I referred this letter of Mr. Hotchkiss to these gentle- men for such reply as they might deem proper and I now present that reply: Richmond, Va., February 11, 1902. Hon. Joseph StehHris, Member Constitutional Convention, Richmond, Va.: Dear Sir, — Complying with your request for an examination of the statement submitted by the Hon. Eppa Hunton, Jr.. on February 10th in connection with the letter of that date to him from Mr. E. D. Hotchkiss, general freight agent, Chesa- peake and Ohio Railway, we hope to be able herein to establish the fact that not only was the comparison of rates submitted by Mr. Hunton on February 5th a mis- leading one, but also that the statement furnished on the 10th inst. and the expla- nation accompanying sam.e are also misleading. First as to branch lines. Those portions of the Southern Railway in Virginia which are designated ^by Mr. Hotchkiss as branch lines would not be treated as such by the North Carolina Corporation Commission if similarly situated in that State. Not only is this so, but portions of the Southern Railway in North Carolina which would have greater reason to be classed by Mr. Hotchkiss as branch lines are given the benefit of the standard tariff (presumably the lowest rates that the Corporation Commission of North Carolina fixes for the Southern Railway). Consequently the stress placed upon the main line rates is not borne out by facts, and it is evidently the idea of the North Carolina Corporation Commission to allow and establish by a system of equitable rates a free interchange of freight between all portions of the Southern Railway situated in North Carolina, including even a large number of branches, a higher rate from 10 to 25 per cent, being allowed on short, and in most cases moun- tainous branches. This being the case, a comparison between certain portions of the Southern Railway in Virginia and similar portions in North Carolina is the only proper method of comparison. For example: From Statesville, North Caro- lina, to Madison, North Carolina, transported over the Western North Carolina, Mooresville branch, the main line between G-reensboro and Charlotte and the Madi- son branch, a distance of one hundred and five miles, compared with rates from Burkeville, Virginia, to Edgerton, Virginia, transported over the Richmond divis- ion, Keysville branch and the Danville division, also a distance of one hundred and five miles, the Southern Railway rates are: 1st 2d 3d 4th 5th 6th Class. Class. Class. Class. Class. Class. In North Carolina — 50 40 33 25 20 16 In Virginia — 57 47 39 28 24 18 Hay. Fertilizer. Lumber, Bacon. Grain. Flour. cl. Icl. cl. Icl. cl. In North Carolina — 17 12 14 12 16 10 12 6 2-3 In Virginia — 21 15 18 15 24 13 15.6 10 1-4 Another example — From Statesville, North Carolina, to Wilkesboro, North Carolina, transported over the Western North Carolina, Mooresville branch and Wilkesboro branch, a distance of one hundred and twenty-eight miles, compared with rates from Burke- ville to Adams Grove, Virginia, transported over the Richmond division, Keysville branch and Danville divisions, a distance of one hundred and twenty-nine miles, the Southern Railway rates are: 2384 DEBATES or THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 1st 2d Class. Class. In North Carolina — 54 44 In Virginia — 59 49 Bacon. Grain. In North Carolina — 18 13 In Virginia — 21 15 3d Class. 35 40 Flour. 16 18 4 th Class. 26 29 Hay. cl. Icl. 13 17 15 24 5th Class. 21 24 Fertilizer, cl. icl. 11 13.2 13 15.6 6th Class. 17 18 Lumber, cl. 7 1-2 10 1-2 It is unnecessary to give further examples. The above routes are outlined in red ink on the accompanying map. With regard to the statement as to the first, second, and the third classes, which is a general sta,tement, nothing but a close and minute comparison of the official and the Southern classifications could disclose the actual facts, which comparison, it is fair to assume that Mr. Hotchkiss could not have made within the limited time allowed him for the preparation of his explanation. We do not hesitate to state, how- ever, without such an examination, and as a well-known and notorious fact, that the majority of articles largely used and consumed by the people are found in the fourth, fifth, and sixth, rather than in the first, second, and third classes. Mr. Hotchkiss sets out to prove, by comparing the lowest rates the Southern Rail- way use in Virginia with the Chesapeake and Ohio Railway rates, that even the South- ern Railway rates are lower than those of the Chesapeake and Ohio Railway on cer- tain commodities, resulting from differences in classification, but inasmuch as the low- est rates used by the Southern Railway over a very limited portion of their line in Virginia are no fairer for purposes of comparison than the low rates of the Chesapeake and Ohio Railv/ay nothing is proved. Referring to exhibit "B," and bearing in mind that the only practical comparisons for local rates are between less than car-loads, we find upon an examination of said exhibit, that on bacon, grain, flour, hay, lumber, cotton fabrics (constituting by far the largest percentage of dry goods), sugar in double sacks, coffee in double sacks (neither sugar nor coffee being shipped in single sacks to any appreciable extent), and molasses, the rates in the neighboring State of North Carolina are lower in almost every instance than on the C. & O. Railway in Virginia. We do find that the rates on dry goods (except as referred to above) and on boots and shoes are lower on the C. & O. Railway in Virginia than the rates in North Carolina. The remaining commodity, fertilizer, is lower in Virginia for shorter distances and in the other States for longer distances (over fifty miles). Mr. Hotchkiss reverts again to the question of using main line rates for compari- sons, but as we have already satisfactorily explained this, we deem further comment unnecessary. Steam coal, to which your statement made on February 8, 1902, referred, was sold in 1899 by the long ton, of 2,240 pounds, and, therefore, to show the advance in cost and transportation, the ton 2,240 pounds used as the basis for comparison, although it is now sold and transported by the short ton of 2,000 pounds (the cost de- livered at Richmond and the transportation charge for 2,000 pounds being converted into its equivalent for 2,240 pounds). By the attached memorandum of rates (Exhibit "A") for hauling coal over the C. & O. Railway, giving the date and number of tariffs from which they were taken, it will be seen: That from the New River District: The rate in 1899 was per ton of 2,240 pounds to Richmond $1.50 The rate in 1901 was per ton of 2,000 pounds in Richmond $1.50 Equivalent on 2,240 to 1.68 Showing in the rate an advance on 2,240 pounds of 18 That from the Kanawha District: The rate in 1899 was per ton of 2,240 pounds to Richmond $1.65 The rate in 1901 was per ton of 2,000 pounds to Richmond $1.60 Equivalent on 2,240 pounds to 1.79 Showing in the rate an advance on 2,240 pounds of 14 DEBATES OF THE COXSTITUTIOXAL COXVEXTIO^T OF VIRGIXIA. 2-385 This statenent did not go back of 1889 into the period of the panic or the suc- ceeding years of depression, during which the disturbing circumstances and condi- tions we^e such that the coal dealers, to quote a figure of speech used by one of them, had almost to give away coal; but during which, it seems, from Mr. Hotchkiss let- ter that the carriers made no corresponding reduction in their charges to suit the rate to "what the traffic could bear." But the rates were as given in your statement of the 8th inst. for 1899 and 1902; and the cost to dealers was as stated m each in- stance; so that the letter from Mr. Hotchkiss, which does not specifically quote the figures' for 1899. does not disprove your statement. _ _ _ He also fails to refer to that part of the statement in reference to the division of territorv between the C. & 0. and the N. & W. railways in the coal business, the gravamen of that charge being, that after destroying competition between the lines by the '-'Communitv of Interests" plan, by this division of territory, the remaining vestige of competition, upon which great stress has been laid by the carriers, namely, the competition of markets as a protective commercial force, is in turn entirely elimi- nated. Now, as to the reductions in the Chesapeake and Ohio Railway rates. It does not seem' to us, from documents in our possession, that that company has been gradu- ally reducing its rates. We find that on April 5, 1887, the date on which the Inter- state Commerce law went into effect, the C. & O. Railway operated by the Newport News and Mississippi Vallev Company issued a local freight tariff. No. 11 (see Ex- hibit "B"). This tariff was amended during May. 1887, as per letter marked Exhibit "C," from the Interstate Commerce Commission, dated February 10, 1902. When these rates were advanced (as they were instead of being reduced), we do not know; but from an inspection of their local tariff No. 14 (Exhibit "D"), which took effect January 15, 1900, the rates in which are higher than those in effect in 1887, there appears on page 2 the following words: Reprint of Local Tariff, No. 11, June 10, 1889." From this it would appear that, at some time between May. 1887, and June 10, 1889, the Chesapeake and Ohio advanced the rates in their local tariff. As the tariff of January 15, 1890, is a reprint of the 1889 tariff, and remained in ef- fect until July 15, 1901, when rates were reduced, it appears that, instead of a grad- ual reduction, the rates of 1887 were advanced and remained so until July 15, 1901. In fact, the rates in effect at the present time, for distances over one hundred and forty-five miles, are higher now than they were on April the 5th, 1887. If our analy- sis of the C. & 0. local tariffs is not correct, we shall be very glad to be so informed. Yours truly, W. H. Lumsdex, Commissioner Isorfonz Freight and Transpo7'tation Bureau. E. S. Goodman, Manager Traffic Bureau Richmond Chamljer of Commerce. Now, Mr, Chairman, 1 am not going into any extended remarks as the gentlemen who furnished this paper are much more expert in freight classification and rates than I am, and will let these gentlemen settle this matter among themseh^es. But the state- ment furnished by Mr. Hotchkiss and known as Exhibit B, bears out my contention that the rates of freight in the States south of here on bacon, grain and fiour, apply, irrespective of quantity whether in carloads or less than carloads, and, hence, that my comparison of these rates in the States south of Virginia with less than carload rates of the Chesapeake and Ohio railvs^ay were perfectly fair and justifiable. The exception to this statement on my part is in the matter of hay, for this article is shipped in carloads and in less than carloads at different rates in the States south of here, and Mr. Hotch- kiss admits in his letter that the rates on flour, hay, lumber and fertilizers are lower in Georgia than in any of the other States named. But they complain that I have not used the main line rates of the Southern railway in Virginia in this comparison and have made the comparison with main line rates in the States south of here. I distinctly stated to this committee that I found upon examination that the Southern railway had two sets of local rates, one applying between Alexandria and Danville and the other applying between West Point and t)anville and between Norfolk and Danville. In fact, they have such a complexity of rates that it is absolutely confusing as to what they are and as to how to apply them, and where a road has two tariffs and the higher tariff covers about 400 miles of its line in the State, I was perfectly justified in comparing it with the tariffs on its lines in States south of here. 2386 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. But the gentlemen say that the road from West Point to Danville and the road from Norfolk to Danville are not main lines but branch lines, and they contend that the rulings of the railroad commissions in North Carolina and in Georgia allow exceptions to standard tariffs on branch lines of from 10 to 25 per cent., and in isolated cases even up to 50 per cent. As has been stated in this communication from these gentlemen, and as is borne out from the report of the North Carolina Corporation Commission, I do not think that railroads of this length and roads similiarly situated to these would be classed by the Corporation Commission of North Carolina as branch lines. What are the conditions with regard to the road from West Point to Danville? West Point is the terminus of their line. There it connects with steamer for Balti- more. It receives and ships freight by those steamers for Baltimore. It receives freight at West Point from Baltimore and carries it as far south as Greensboro, North Carolina. The line from Norfolk to Danville ends at their grand terminal at Pinner's Point, their seaboard terminal in Virginia, and the most important one of the Southern Rail- way, if not the only one. I have no doubt it carries freight, although I am not advised of this, from Eastern points. New York, Norfolk, Providence, Philadelphia, via Norfolk, to Danville and beyond Danville to Lynchburg, and still they would contend that this is a branch line. By reference to the report of the North Carolina Corporation Commission I find that exceptions are allowed to the standard tariff on the following branch lines of that company in North Carolina: From Winston to Wilkesboro, 75 miles, an exception over the standard tariff of 25 per cent, is allowed. This is undoubtedly a branch line for the railroad terminates at Wilkesboro, and there is no railroad beyond Wilkesboro. The North Carolina Midland Railroad, a distance of 53 miles, is allowed an exception of 25 per cent. The Oxford and Clarksville Railroad, a distance of 49 miles, is allowed an exception of 20 per cent. The Oxford and Henderson Railroad, a distance of 13 miles, is allowed an exception of 20 per cent. The Yadkin Railroad, a distance of 41 miles, is allowed an exception of 25 per cent. And on that part of the road from Salisbury to Paint Rock, between Old Fort and Asheville, where there are those heavy grades going up Round Knob, a distance of about twenty or twenty-five miles, they are allowed an exception of 10 per cent, above the commission's standard tariff. The Western North Carolina Railroad from Asheville to Murphy, a distance of 122 miles, is allowed an exception of 25 per cent. The Atlantic, Tennessee and Ohio Railroad, a distance of 45 miles, is allowed an exception of 10 per cent. The Asheville and Spartansburg Railroad, a distance of 42 miles in North Carolina, is allowed an exception of 25 per cent. I know of this road because I have been over it myself. Where they go over Saluda mountains, there are three miles of track with a grade of 700 feet, making over 200 feet to the mile. The High Point and Randleman Railroad, a distance of 27 miles, they are allowed an exception of 10 per cent. Now here is a road from West Point to Danville, a distance of 179 miles, and from Norfolk to Danville, a distance of 205 miles, having deep water terminal at West Point and at Norfolk which they tell us are branch lines. But, Mr. Chairman, suppose we take the gentlemen on their own ground. Suppose that we say these are branch lines for the sake of argument, and that they are entitled to higher rates than the main line, and we have seen that this has been fixed by the rail- road commissioners of North Carolina and Georgia, by the statement of these gentlemen, at from 10 to 25 per cent., and in some isolated cases 50 per cent. DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 2387 ! Then how stands the case in the tariffs between the branch lines and the main line? From their statement, there is only one main line of the Southern Railway in Virginia, and that is from Alexandria to Danville, a distance of 231 miles, out of a total mileage in Virginia of 647. Now we will take the ten-mile distance in the classified tariff. For first class, on the main line, it is 16 cents. On the branch line 21 cents, a dif- ference of 31 per cent. Second class on the main line 13 cents. Branch line 17 cents. A difference of 31 per cent. The third class on the main line is 7 cents. On the branch line 15 cents. A differ- ence of 36 per cent. Fourth class on the main line, 9 cents. The branch line 12 cents. The difference 33 1-3 per cent. Fifth class on the main line, 7 cents. On the branch line 10 cents. A difference of 43 per cent. Sixth class on the main line 6 cents. On the branch line 8 cents, a difference of 33 1-3 per cent. Now I will take the 50 mile distance and we will find the precentage much greater. For first class on the main line 30 cents. On the branch line 42 cents. A difference of 40 per cent. On second class on the main line 24 cents. On the branch line 38 cents. A differ- ence of 58 per cent. For third class on the main line 19 cents. On the branch line 33 cents. A difference of 73 per cent. On fourth class on the main line 16 cents. On the branch line 24 cents. A differ- ence of 50 per cent. On fifth class, on the main line, 14 cents. On the branch line 21 cents. A difference of 50 per cent. On sixth class, on the main line, 10 cents. On the branch line 16 cents. A differ- ence of 60 per cent. I do not like to trouble you with reading these figures. I have got them all figured cut here with the percentages for 10, 50, 100, 150 and 200 miles, and if it could be done, I would be very glad to have the table printed in the record for the benefit of all. The table referred to, is as follows: » Comparison of rates on different portions of the Southern railway: Miles. Bacon. Grain. Flour. Hay (l.c.l.). Lumber ..... 6 6 6 7 3 10 9 7 8 10 41-2 50 16 2-3 33 1-3 45 50 10 8 10 11 5 50 Norfolk to Danville 16 12 14 21 Cl-3 60 50 40 90 30 15 10 12 16 7 1-2 100 ....21 15 18 23 10 50 50 44 33 1-3 Alexandria to Danville 17 12 14 17 9 150 West Point to Danville Norfolk to Danville . • . - 21 16 18 24 10 3-4 Percentage of increase. . . . .... 24 33 1-3 29 41 19 Alexandria to Danville ....19 14 16 23 10 200 West Point to Danville Norfolk to Danville .... 23 18 19 26 113-4 Percentage of increase . . . .21 29 19 13 171-2 2388 DEBATES OF THE COI^STITUTIOXAL COXVEXTIOX OF TIRGIXIA. Comparison of rates on different portions of the Southern railway : Firsn J^econd Third Fourtti Fifth Sixth Miles. Class. Class. Class. Class Alexandria to Danville 13 11 9 7 6 10 West Point to Danville Norfolk to Danville 21 17 lo 12 10 8 Percentage of increase. . . 31 31 36 33 1-3 43 33 1-8 Alexandria to Danville 30 24 19 16 14 10 50 West Point to Danville . 42 38 33 24 21 16 Percentage of increase 40 58 73 50 50 60 Alexandria to Danville 40 34 27 18 16 11 100 West Point to Danville .56 47 39 28 23 17 Percentage of increase 40 38 44 55 44 54 Al o / 19 17 14 150 Norfolk to Danville 60 50 40 29 24 18 36 35 34 58 40 28 53 45 35 25 23 17 200 Norfolk to Danville 64 54 42 32 26 19 20 20 20 25 13 11 When we come to the commodity rates we find the same conditions existing, that the difference between the main line (as they would term it) rates, and the branch line rates, run up as high, as sixty per cent. Now, I contend that if these are actually branch lines, and if they are entitled to the exception from the standard tariff, then they have made the exception too great, and that these two lines of railway, one 179 miles and the other 205 miles, having their terminals at tidewater, on the one hand, and one of the cities of the State on the other hand, are not isolated cases, and entitled to the greatest exception. There is another matter I wish to refer to. Mr. Hotchkiss in his letter seemed to imply that I had laid great stress upon the fact that the changes of the tariff rates of the Chesapeake and Ohio were made on July 15, 1901, and that they were influenced by the fact that this Convention was in session in this city at that time. I desire to say that I do not think that from my remarks such an inference can be drawn. The argument that had been made by the gentleman from Fauquier was that there had been a gradual reduction of rates from 1891 to 1901, and I said that the tariff of 1891 had remained in existence, with but slight modifications until July 15, 1901, and when I was interrupted by the gentleman from Augusta, w^ho asked if this tariff did not go into effect since this Convention had been in session, I simply gave the date of the tariff v/ithout any comment whatsoever, saying in reply to his question, " July 15th, 1901," and I did this advisedly because, I had in my own mind, that the revision of a tariff covering the local rates of a long line of railway would take months to be perfected. It is true, in discussing the change of tariffs on fertilizers, I did say that there w^as som-e significance in the fact that they had been changed since the Convention had been in session, and I thought I was warranted in this from the fact that for years, for short distances they had been charging higher rates than the maximum allowed by the law, and their tariffs were changed in the last six months, so that they conformed exactly to the maximum allowed by law; but in regard to the general tariff I had no Idea or intention, and expressly disclaim any intention of making any insinuation that they were Influenced by the fact that this Convention was in session. Comment has been made upon the tariff which I alluded to on cattle from Chicago and Southwest Virginia, and the gentleman, Mr. Hotchkiss, has sought to make a dis- tinction without a difference. DEBATES OP THE COXSTITUTIOXAL CONVENTIONS OE VIRGINIA. 2'389 I Stated that the freight on cattle from Chicago to Newport News v/as $50 per car. He states that the rate is 25 cents per 100, and the minimum is limited to 20,000 pounds and 20,000 at 25 cents per 100, make $50. I stated that the rate from Chicago to Norfolk via the Norfolk and Western rail- road was $54 per car. He states that the rate is the same as it is to Newport News. I have information this morning from a gentleman connected with the Norfolk and Western railway in an official capacity, to the effect that the rate is $54 per car, and it is limited to 20,000, and if there is any excess, the cattle are weighed at Norfolk, and if there is any excess over 20,000 pounds, the shipper is charged with such excess at that rate. Now, in the statement that I made that the rate from Southwest Virginia to Nor- folk was $54 per car, I made that statement from the" fact that I understood it was the same to those points that it was from Chicago. I am informed now that it is $54 a car to Norfolk, but that there is no limit as to weight, and if the shipper chooses to put in four or five thousand pounds more than the 20,000 pounds to a carload, that it would reduce the rate per hundred pounds to that extent. As to the other question as to whether there have been any cattle shipped from Southwest Virginia by way of Nev/port News for export, I wash to say that the in- formation upon which I made this entire statement about the cattle on last Saturday was derived from a member of this Convention, who is thoroughly familiar with the facts and thoroughly competent to take care of himself, and does not need aid from me, and who, I presume, will make some statement with regard to it. I am sorry, Mr. Chairman, that I have detained this committee so long in making this statement, but it was due to myself as well as to the gentleman who prepared the tables I used last Saturday to do so. I thank you for your attention. Mr. Stuart: Mr. Chairman, inasmuch as the gentleman from Halifax has alluded to the fact that he obtained certain information in regard to several matters which he has discussed from a member of this Convention, I feel it proper to say that I am the gentleman referred to, and feel it my duty to give the basis of the information which I have given him. And, in order to do so more clearly, I will read paragraph by para- graph a letter written by Mr. Hotchkiss, the general freight agent of the Chesapeake and Ohio railway, in undertaking to contradict the statement which had been given by me to the gentleman from Halifax. I regret, sir, with all due deference to Mr. Hotchkiss, whom I know by reputation to be an able, and presumably, being a railroad man, an accurate man to find that he manifests a strange lack of information with regard to a subject which it would seem might be of sufficient significance to engage his attention. I take it the letter which he has addressed here is in perfect good faith — in fact, I know it is — and I must assume that the statements therein contained are made in ignorance of the facts, and facts directly connected with the management of his own road. In the first place, he says: Another matter I notice in Mr. Stebbins' argument, commencing at the bottom of page 7, in the notes in regard to the comparison of rates on livestock, wherein the rates he uses are incorrect. He is referring to the rates on export cattle from Chicago lo New- port News and Norfolk, and I desire to state that the rates are the same via both lines. Now, either Mr. Hotchkiss does not know what his rates are or the Norfolk and Western Railroad Company do not know what their rates are — I am not proposing to say which, but one or the other does not know what their rates are. This is a question of very considerable importance to a good many people engaged in the live stock business, which is an important and highly honorable one, as it occurs to me, in this State. He says the rates are exactly the same from Chicago to Norfolk and from Chicago 2390 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIEGINIA. to Newport News — that is on both lines, the Chesapeake and Ohio and the Norfolk and Western. It was stated before this committee, the Committee on Corporations, by a represen- tative of that road, that the rate w^as 27 cents; whereas the rate stated here from Chicago to Newport News is 25 cents. Again, it was stated this morning by a representative of the Norfolk and Western railway that the rate is 27 cents. So I leave these gentlemen to settle between them- selves the facts as to rates of their own roads. I merely call attention to the dis- crepancy. Going further, Mr. Hotchkiss says "they are neither $50 per car from Chicago to Newport News and Norfolk, nor are they ?54 per car." That is true. They are $25 and $27 based on a minimum of 20,000 pounds, and it was given in that form because my whole statement was based upon a minimum of 20,000 pounds to the car except — and I wish to call definite attention to this because it was omitted from the statement of the gentleman from Halifax (Mr. Stebbins), and was due to my own oversight — it is true that the Norfolk and Western railroad conveys cattle from Southwest Virginia points to Lynchburg on their regular local rate of $41 per car, regardless of weight, so that if there should happen to be any excess in the car, such excess would be transported as far as Lynchburg free of charge. Now, I pro- pose to take these two basis of rate, and calculate them exactly consistently with the facts, embracing the fact that there is an arbitrary local rate from Southwest Virginia points to Lynchburg of $41 per car, regardless of weight, and let us see what is the conclusion. To Lynchburg, $41; from Lynchburg, via the C. & 0., 13 J cents per hundred on actual weight, at point of destination. Now, they contend that they are hauling something extra. Granting, for the sake of argument, that they do, and haul 2,000 pounds more than the 20,000 pound mini- mum; suppose we begin with a carload that actually weighs 22,000 pounds at its desti- nation, and proceed with that basis entirely through this comparison. Such a carload of cattle from Southwest Virginia points of 22,000 pounds, delivered at Lynchburg, $41, with the added rate from Lynchburg to Newport News of 13J cents per hundred on actual weights, making the freight from Lynchburg to Newport News $29.70, would make a total freight rate based upon their own figures of $70.70 from Southwest Virginia points to Newport News. Now, let us pursue their own figures further. They say the rate is 25 cents from Chicago, and deny that it is $50 per car, asking their own figures, and saying that each carload again consists of 22,000 pounds, the rate from Chicago to Newport News is $55, a difference of $15.70 per car against the citizens of this State in reaching their own seashore, and against the people from whom these corporations have derived their existence, and from whom they derive their constant protection. But again, Mr. Hotchkiss proceeds to say: Mr. Stebbins goes on to say that when these cattle are for export, when originating in Southwest Virginia, inasmuch as the steamers do not land at Norfolk, the cattle have to be delivered to the Chesapeake and Ohio Railway company at Lynchburg and thereby are subject to the local rates of both roads. The gentleman from Halifax did say that, and I am here to say it and prove it, as to the Norfolk and Western. Now, Mr. Hotchkiss adds — and I ask the attention of the Convention to this — The gentleman has not stated the facts in reference to this matter. There have been no shipments moved from Southwest Virginia via Lynchburg and the Chesapeake and Ohio Railway company in a long time. Let us see what Mr. Nelson Morris, of Chicago, says about that. It was he who DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OE VIRGIXIA. 2391 bougM a large proportion of the Southwest Virginia cattle last year and shipped them abroad via Newport News. Here is the freight agent of the Chesapeake and Ohio Railway company who denies that the cattle have been shipped via Lynchburg and C. & O. Now, let us see what Nelson Morris, of Chicago, perhaps the third largest cattle dealer in the world has to say about it. I will state that I wired Mr. Morris yesterday for information on this subject, ask- ing him at what point the Chesapeake and Ohio railroad received Southwest Virginia cattle routed to Newport News. Here is the answer: Answering message, cattle were shipped via Norfolk and Western and C. & C, transfer being made at Lynchburg; you have rate and should be able to arrive at the amount per car. There were, I will say, perhaps 5,000 export cattle shipped out of Southwest Vir- ginia by Mr. Morris by that route last year, continuing up to November, and yet the freight agent says it has been a long time since there was any such shipment, only showing you how deaf these gentlemen are to statements based upon existing and undeniable facts. Again he says that ships do sail from Norfolk and that there is no reason why these cattle should not go to Norfolk instead of New^port News. I am very much indebted to him for that information, I have been trying to get ships at Norfolk to carry cattle to Europe for twelve years, without success. It is a well known fact to those engaged in the cattle raising business in this country that the trans-Atlantic business is conducted by ships constructed especially for that pur- pose, or at least with a view to that business. The line of steamers that now plys between NeT^T)ort News and Liverpool and London, furnishes an example. Again, the slow-going, unreliable tramp steamers are uninsurable — the insurance companies will not insure cattle on them — and the cost of fitting them up to carry such a cargo necessarily cuts such a figure in the ocean freight rate as to make it absolutely prohibitory and impracticable to fit one up for a single cargo. I have been trying for years to find a ship to take cattle from Norfolk, without success, and yet Mr. Hotchkiss tells me that " ships do sail direct from Norfolk and from the terminals of the Norfolk and Western Railroad company and shipments either from Chicago or Southwest Virginia can be transported to Norfolk and unloaded on board ships for foreign shipments." This is certainly something new. Now, I think I have succeeded in sustaining my point as made by my friend from Halifax. I did not wish to have anything to say on this subject. I do not wish to appear here as an advocate of my own personal interests. However, I am a represen- tative of interests in that direction. My constituency is engaged very largely in this business, and I may say almost the entire southwestern portion of the State, and it is an interest which I feel it my duty to fully protect as far as in me lies; and for this reason I have felt called upon to substantiate the statements made by me to my friend from Halifax (Mr. Stebbins), and which are denied by Mr. Hotchkiss, the freight agent of the Chesapeake and Ohio Railway company. Here is another telegram from Mr. Morris, of Chicago: Replying to your message, rate from Chicago to Newport News is twenty-five cents; from Kentucky points twenty-one and one half to twenty-five. Kentucky, on the basis of 22.000 pounds, reaches Newport News at $47 to $55, and Virginia reaches there at $70.70. The telegram does not say just what Kentucky points he refers to. It merely says "twenty-one and one-half to twenty-five." Now, I am not here to lay down rules of conduct for railroads in the management of their business. I have never challenged the right of a railroad, nor have I chal- lenged the wisdom by which is established and adhered to the laws of competition in trade. I can see that the disregard or the entire disregard of that proposition would 2392 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. work ruin to the railroads and to the communities. For instance, in the coal fields, in the Flat Top coal fields, there may be 100 operators engaged in the same field, be- ginning on the extreme east with A, and running back north and west to Z, ail in the same field and mining the same coal at the same cost, and transporting it to the same market. Now, I am perfectly willing to admit that the railroad has a right to haul the coal of Z, representing 100 or 150 down the line, at the same price as he hauls the coal of A. I say that is a correct principle, because of the fact that A has no right to desire any advantage by reason of his situation when situated in the same field, and in the same business, working for the same markets. I think that the status of these opera- tors should be preserved, and I am glad to say, so far as I know in this State, it is preserved. Now, why should it be preserved? As I have stated, because they are all engaged in the same business, and producing an article in the same cost for the same market. Now, let us apply that principle to the case in hand. The man who produces cattle in Southwestern Virginia is engaged in the business in which his competitor who lives in Kentucky, Indiana, Illinois, and all through the central west are engaged. They are producing the same article at presumably the same cost — though it is a violent presumption to say that it can be done in Virginia as cheaply as in the west, but we will say, for the sake of argument, that they are producing the same article at the same cost— and for the sam.e market. Now, the railroads who lay down the prin- ciple of the preservation of the law of competition, or of the competitive relations of these people, could, it seems to me, with equal propriety say to the man who lives within this State that they will at least preserve him against discrimination in favor of the man who lives six or eight hundred miles west of him. No man, so far as I know, in my section is asking the railroads of Virginia to transport the Virginia raised commodity to our own seashore for less than they transport the same article from Chicago. As far as my section of the State is concerned, we stand here willing to incur the same cost for the transportation of our commodities as is incurred by the m^an who is shipping from Chicago. We are willing to v/aive our geographical advantages; we are willing to waive the fact that we are living in sight of the finest seaports in this country, and that we are citizens of a State which has generously looked after the interests and the development of our railroad enterprises. We ask no advantage by reason of our geographical situation; we simply ask that we be not discriminated against; that we be not made to pay a penalty for our citizenship in this State. If that be unreasonable, gentlemen, I am unable to conceive of any idea that I may advance to this body that would be reasonable. I did not intend to make any remarks at ail, except the sim^ple statement necessary to corroborate my friend from Halifax. I have been drawn into this unexpectedly. I wish to say before closing that there are other gentlemen in the Convention from the Southwest familiar with this subject, notably the gentleman from Tazewell (Mr. Gil- lespie), engaged in the same business; again, if I am mistaken as to the soundness of the principles here enunciated, I shall never again feel inclined to present another proposition to this body. Mr. William A. Anderson: Mr. Chairman, I make no apology for asking the atten- tion of the gentlemen of the comittee to the remarks which I deem it my duty to sub- mit up on a question of such magnitude as challenges the attention of every patriot, of every legislator, of every statesman in our land; a question which, in the field of dis- cussion traversed by the gentlemen who have treated it with so much ability, has taken a much wider reach than the confines of this Commonwealth, and it is a question, Mr. Chairman, as broad as the limits of these United States. Among all the economic Issues to which have been devoted the thought, the study, the conscientious investiga- tion of political economists, publicists, legislators and jurists, there is none to-day that is more important, more vital to the interests of the people than this problem. It is DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGINIA. 2393 not a new question in the State of Virginia nor is its consideration a recent matter of thought and of study to myself. More than eighteen years ago I had the honor — and it was an honor then — than'k God it is an honor yet — to represent the people of a portion of this Commonwealth in the House of Delegates. The representatives of Virginia then saw as plainly as do her representatives here to-day, the importance of legislation upon this subject. The House of Delegates which sat in this hall in 1884 passed a very mild, persuasive rail- road commission bill. It did not meet the approval of the representatives of the people of Virginia in the other chamber of the General Assembly. In 1888 again, along vfith five other gentlemen, distinguished members of this Convention, I had the honor to be a member of the House of Delegates, and to represent the same district which I represent to-day in this Convention, and the subject which received perhaps more attention and consideration than any other from the members of that body was the same problem of the just and proper regulation of interstate com- merce in the State of Virginia. A bill was passed by that House of Delegates, some- what fashioned after, but an improvement upon the national interstate commerce act, which it was then believed by its advocates, and I believe now, if it had been adopted, would have given the people of Virginia adequate redress and relief against any real evils of which they complain. But again that measure did not receive the sanction of the members of the Senate of this State. In the following General Assembly in lS89-'90, another bill, known as the Kent bill, somewhat more drastic in its provisions, was passed by the House of Delegates at the very end of the session. That bill did not receive the sanction of the Senate of Vir- ginia; and yet, I want to say, Mr. Chairman, that again and again and again the con- stituencies represented by the Senators who failed to vote for and pass those bills returned them to their seats in the other house. I said, Mr. Chairman, that the question which had been discussed here Vv^as not merely State wide, but was as broad as the country, as large as these United States. The evils complained of, almost every evil pointed out as yet in this discussion, are evils, the remedy of which can only come from the government of the United States. How do I explain, Mr. Chairman, the fact that Senate after Senate has failed to pass a measure of this sort? Is it because the representatives of the people of Virginia in that body have been false to their representative duty? No, Mr. Chairman, it is be- cause' — and there is no member on this floor, who knows that fact better than the able and distinguished legislator who now presides over our deliberations (Mr. Keezell) — there has been no such demand upon the part of the people of this Commonwealth for such legislation as gentlemen upon this floor now suppose to exist. Why, sir, what has been the history of the legislation of this Commonwealth in reference to its railroads? Have the representatives of the people of this State of either house been faithless to their duty as some gentleman upon this floor would seem to imply? What acts, some of them regarded as unfriendly to the interests of the railroad, have been passed by the General Assembly of Virginia? There is a long list of legislation, Mr. Chairman, upon that subject, which shows that when there has been any real demand upon the part of the people of Virginia for legislation for their pro- tection it has been enacted by their representatives. In the first place, years and years ago, before some of the gentlemen who are now members of this Convention had reached manhood, your General Assembly passed a law giving a right of action to the personal representative of any man who lost his life by the negligence of a railroad company, a common carrier, or any corporation or indi- vidual; and as a result of that just and proper law, the railroad companies of the State have been required to pay thousands and thousands and hundreds of thousands of dol- lars to the representatives and families of men who lost their lives while passengers, and in many cases while employes in the service of these railroad companies. Again, sir, your General Assembly subjected them to taxation not only by the State, 151— Const. Deb. 2394 DEBATES OE THE CONSTITUTIONAL CONVENTION OF VIRGINIA. as it existed before, but to municipal and county and magisterial district levies upon their property. In addition to that, your General Assembly has passed laws giving to the laborer and employe of a railroad a first lien upon its property as the security for the payment of his wages, and to the man who furnishes supplies to any railroad or corporation a similar lien upon the gross earnings and the personal property of these corporations. I have had the honor to be a member of the General Assembly of Virginia during eight years, and I do not believe that I was ever a member of a body in which, if there had been any such demand as exists to-day in this Commonwealth, an effective rail- road, or corporation commission bill, would not have been passed through both houses by a two-thirds vote. There is a demand for such legislation now, not only in Virginia, but throughout this land. There was a time when competition gave to shippers some protection against unreasonable exactions by common carriers; but when all the great railroad systems of this country, and not only all the great railroad systems, but more and more rapidly, more and more largely, all the great sources of supply of that first requisite of national wealth, the great coal mines and coal bearing lands of the country, are coming under the control of the same combinations, governed and owned in many instances to a great extent by the same individuals who control your railroads, the time has come for some remedy against a situation which may become a condition of serfdom; because when one set of men, however kindly disposed they may be as individuals, however fairminded they may be as individuals, come to control all the avenues of commerce, all the means of transportation, and all the supplies of fuel used by your manufacturers and for domestic purposes, the people become the tenants of such a combination and must pay them such rents as they may exact. So, Mr. Chairman, it is right and proper and necessary that some remedy shall be found for evils which concern us in Virginia, and which to-day stare in the face the people of this whole land. Only two remedies, and one of them almost and perhaps equally as bad as the disease can be suggested. One is government ownership of all public utilities, includ- ing railroads, telegraph lines, telephone lines and ultimate supply of fuel, and the other is government control and government regulation of public service companies. I say this, Mr. Chairman, because I am most earnestly in favor of the principle of the legislation now proposed to be embodied in your Constitution. I am in favor of embodying that principle in the Constitution and putting it there in a form, so manda- tory that no Legislature can fail to give the people the legislation to which they are entitled, and which will give them the just and proper relief they ought to have. The only question, in my judgment, that is now open for discussion before this Convention is, how shall this principle be engrafted in your Constitution? Will you put it there in the form of a statute law dealing with all the minutia of detail: a law in some of its provisions elastic and left to amendment or to control by the General Assembly, but a law in some of its most important particulars made cast iron and un- changeable by the will of the people as expressed by their General Assembly? Mr. Chairman, in my judgment, it is not only unwise to do that, but it is perilous to do it — perilous to do it from the standpoint of the most earnest advocate of such legislation. On motion of Mr. Braxton, the committee rose, and the President pro tempore re- sumed the chair. Mr. Barbour: Mr. President, I move that instead of adjourning to-day at 2 o'clock, the chair be vacated until 4 o'clock and the session be then resumed. The motion was agreed to. On motion of Mr. Braxton, the Convention took a recess until 4 o'clock P. M. DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF TIEGIXIA. 23 9 5 AFTER RECESS. The Convention reassembled at the expiration of the recess, the President pro tempore in the chair. CORPORATIONS. On motion of ]\Ir. Braxton the Convention resolved itself into Committee of the ^'hole for the further consideration of the report of the Committee on Corporations. Mr. Wiliam A. Anderson: Mr. Chairman, I shall not occupy any more of the time of the committee than is necessary to very concisely and briefly present my views upon what I consider to be the only practical question decided by the Convention in reference to the matter now under consideration. I have no prepared or elaborate argument with which to entertain the members of the committee. I have no time to prepare one, but I have earnestly considered this subject and I wish to present to the committee what seems to me to be some practical and controlling considerations which should govern our action in reference to this and kindred matters. I have regretted very much, Mr. Chairman, the acerbity, if I may so term it, indeed the bitterness, which has characterized, I am glad to say, to a limited extent, this dis- cussion. I am sure I feel absolutely confident, because of my respect and admiration for the gentlemen who have heretofore participated in this debate, that there is not one of them who is not actuated by the highest motives and by an earnest desire to pro- mote the public interests. Of one thing I am sure, Mr. Chairman, that I have no clients here except the people of Virginia, who have commissioned me to represent them upon this floor; and I believe the same is true of other gentlemen who have discussed this question, whether they may be so fortunate or unfortunate, some of them, as to be rail- road attorneys. The only interest I can consider. The only interest I believe I have considered, in coming to the conclusion to which I have come in regard to this matter is the interest of the people of Virginia, and of all the people of Virginia. No effort has been made by any one in the Convention or out of it, to influence my judgment in opposi- tion to engrafting this measure upon the Constitution. All the communications I have received in regard to it have been from those who are friendly to this measure and in favor of embodying it in the Constitution. I have the highest respect, the most sincere esteem for the gentlemen who are advocating this proposition. For the distinguished chairman of the Committee on Corporations, whose transcendentally able argument in its support removed many of the objections which I had to the scheme as a legislative provision, and who is actuated, I am sure, by an earnest purpose to advance the interests of all the people in the Com- monvrealth and to do injustice to none in his advocacy of this article (which I under- stand is largely the product of his brain and the result of his indefatigable investiga- tion and labor), I have not only the highest admiration, but I cherish the most sincere affection; and I regret most profoundly that after the most earnest consideration I can- not go with him and with the able and patriotic men who agree with him, in engrafting upon the Constitution the article which they have prepared. The principle of the article is right, nor has the able chairman of the Committee on Corporations exaggerated the importance of the subject to which it relates, nor the necessity for legislation in regard to it. It is those very circumstances, Mr. Chairman, which in my judgment make it more perilous to put into a Constitution an article which enters into all the minutiae of detail into all the particulars of legislative provisions, in regard to one of the most complex subjects which can engage the attention of a legislative body. The more important the subject, the greater the necessity that a cast-iron enactment should not be placed upon our statute books. The more complex the subject — and gentlemen will agree with me that there is no 2396 DEBATES OE THE COXSTITUTIOXAL CONVENTION OF VIRGINIA. more complex subject connected with the affairs of mankind, under the conditions of modern civilization, than those relations to the great interests affected by this article— the more dangerous it is to put in your Constitution in such immutable form the law which is to express the will of the people and provide for the protection of their interests and for the juSt administration and regulation of the affairs of these common carriers. Would any man think of embodying in the Constitution an article embracing the law of this Commonwealth in reference to the public school system of the State? The gentleman from Richmond (Mr. Meredith) to whose able argument I listened with profound interest to-day, formulated a proposition which, though it was prepared to fit this case, absolutely meets the approval of my judgment. His proposition is almost axiomatic. His proposition is, stating it from memory, that wherever there is a great interest in a Commonwealth controlled by a portion of the people of that Com- monwealth, but affecting the interests, the prosperity and the business of all the people of the Commonwealth, such provisions as are necessary for the protection of the interests of the people of the Commonwealth should be embodied in your Constitution. I agree with him that such provisions as are necessary for the protection of the people of the Commonwealth should be embodied in the Constitution; but how should they be put in the organic law? Should it be done, Mr. Chairman, by any act of legislation framed for the purpose of forestalling action of the legislative representatives of the people of the State; and framed for the purpose of anticipating all of the mutations and vicissitudes of modern civilized society in reference to these great agents of civilization and development? Mr. Chairman, it is. impossible for human wisdom to frame a law governing such a subject that w^ould be perfect. It is impossible for human wisdom to frame a law governing such a subject that would not require repeated amendments before it would operate in all important particulars satisfactorily. I recall but one statute of great and general importance enacted by the Legislature of this Commonwealth (the Virginia " Statutes of Desents ") that has not required frequent amendment, and that "was" the product of the brain and the mind of Thomas Jefferson. That was an achievement that has never been surpassed, never been equalled in human legislation. That statute, except in a particular in which subsequent legislation attempted to amend it, has stood for a hundred and twenty-five years or more without change or question, and the brief amendment which subsequent legislation placed upon it has been followed by litigation In regard to its effect and construction involving the expenditure of thousands of dol- lars. But that statute, important as it was, related to no such complex subject as this. When Thomas Jefferson came to frame it he had the benefit of the legislation, the pre- cedents, and the experience of the English speaking people for three hundred years, and he only expressed in concrete form what was practically already the law of Virginia. There w^as very little empyricism about it. But here, though this proposition is not a very new one, though it is one that has engaged the attention of the brighest intellects of this continent now for quite a generation, yet, Mr. Chairman, the principles which should govern in the details of their application are yet in a state of development, and — in this I am sure my friend, the distinguished chairman of the Committee on Corpora- tions, will agree with me — the very law governing this subject is in a formative condi- tion. Scarcely anything is absolutely in all particulars settled about it. I ask the attention of my brethern of the Convention to the aspects of this question I am now about to consider. I hope none of you are committed past recall upon this proposition. I think there is no proposition coming before this Convention affecting the rights, the interests and the welfare of the people of Virginia as to which I shall be committed past recall until the final vote is cast. We do not owe allegiance to any proposition nor fealty to any committee report. The only allegiance we owe and the only fealty is to the people of this Commonwealth; and if we find when the last vote is being taken upon some pro- DEBATES OE THE C0X5TITUTI0XAL COXVEXTIOX OE VIEGIXIA. 2397 position that it may be or protably is a mistake to embody such an article in the Con- stitution, vrhaterer our previous predilections may have been, the duty of each one of us will be to vote against putting that provision in the Constitution. I said, 2vlr. Chairman, the lavr governing this matter is in a formative state. This bill as originally drafted vas based, and intelligently based, upon the decisions of the Supreme Court of the United States in the case of Munn vs. the State of Illinois, and a number of other cases decided about the same time, known as the Railroad Commis- sion cases, reported in 94 V. S. Reports. In the great opinion of Chief Justice Waite, in the leading case upon this stibject, he applied, with great ability and great fidelity, but with great strictness, the old principles of the common law to the question of the governmental regulation of public service companies: and those cases seem to have established the principle that this regulation was a legislative function not reviewable by the courts; and to my comprehension the^' seem to have established another principle, that it was undoubtedly competent for a Legislature of a State, or a Constitutional Con- vention to delegate a sub-ordinate tribunal the necessary powers to regulate and con- trol, if you choose to use that word, all public service companies as to their rates of charge, and as to the discharge of their duties to the public. But there has been a long and far departure from those rulings of the Supreme Court of our country. I had intended, Mr. Chairman, if time sufficed, to review the long line of authorities upon this subject and to show hovr the Supreme Court of the United States was gradually departing from or qualifying its rulings as to those original primal principles established in the earlier decisions, but I content myself by reading a commentary of one of the ablest and most learned writers on corporation law that America has produced, upon that subject, showing the unsettled condition of the law upon the questions latent in, if not patent upon the face of, the bill recommended for our adoption by this very able Committee on Corporations. I read from volume 4 of Judge Thompson's Commentaries on the law of Private Corporations, section 5530. in reference to the power to regulate charges of employments affected with a public interest, water supply companies, grain elevators, gas light com- panies, railroad companies, telephone companies, telegraph companies, and other com- panies which are very properly denominated public service companies; and he lays down the general principle that: In the absence of special constitutional restraints, such as do not exist in the Con- stitution of the United States, nor in the Constitution of many of the States, it is compe- tent for the Legislature of a State, in the exercise of its police power, to enact laws limiting the rate of charges made by individuals or corporations carrying on business affected with a public interest. Section 5531 is entitled, "'Limitations upon this power: Rates mmst not be con- fiscatory." The section reads: The present doctrine of the Supreme Court of the United States, which was estab- lished and has always been maintained by a divided court, and which at the present time seems tottering in the balance, is that, although the Legislature of a State can, by a direct act of Legislation, fix the charges of any person or corporation engaged in a busi- ness affected with a public interest, yet it cannot create a commission and clothe it with power so to do, except upon notice and a hearing — in other words upon a judicial in- vestigation such as is necessary to fulfill the meaning of the expression in the fourteenth amendment to the Federal Constitution — " due process of law.-"' But it is the tmderstand- ing of the Federal judicatories that this power of the Legislature to regulate the charges of corporations or persons engaged in employments affected with a public interest, is not without limit; and that it cannot be so exercised as to compel them to carry on their employments without reward or even at a loss, but that such exercise of power would involve a deprivation of property without due process of law. and would also involve the taking of private property for public use without just compensation. As I understand the language of this great text writer and commentator upon this 2398 DEBATES OP THE CONSTITUTIOI^AL COXVENTIOi^ OF VIEGINIA. subject, as I understand the decision of the Supreme Court of the United States in the case of Covington and Lexington Turnpike Company vs. Sanders, 164 U. S., and in the case of Lake Shore and Michigan Railway Company vs. Smith, 173 U. S., the fixing of rates is no longer purely a legislative function by a commission, but must be done after a judicial investigation, after giving opportunity to the common carrier to be heard, ta introduce his evidence and to fairly present his case before a judicial tribunal with legislative powers. The case of the Covington and Lexington Turnpike Company vs. Sanders is one that may well challenge the attention of gentlemen upon this floor who propose to put this article into the Constitution. In that case the Supreme Court of the United States decided that it was not competent for a Legislature to pass a law fixing the tolls of a turnpike company at a rate which would not furnish enough revenue not only to keep the turnpike in repair, to pay the necessary expenses of the turnpike company, but to pay a reasonable dividend upon the capital invested. How different are those rulings from the rulings of that great court in the Rail- road Commission cases? How dangerous it would be for this Convention to adopt as a constitution enactment a statute which (without discussing its merits, because its merits do not enter into this argument), the United States courts may decide, in accordance with the claims of able and learned counsel here, vest arbitrary powers in this commission? If I understand this article, and it seems to be clearly expressed, it furnishes the evidence not only of the strong purpose but of the clear intellect which conceived it. If I understand this article, the power of the Legislature in reference to it is absolutely limited by the restrictions contained in sub-section 1, page 16: After the first day of January, 1905, the General Assembly, upon the recommenda- tion of the said commission, may from time to time, by law, amend sub-sections d, e, f, g, h and i of this section, or any of them, or any such amendment thereof. The General Assembly may do that upon the recommendation of the commission; but here is the restriction: Provided that no amendment made under authority of this sub-section shall be in- consistent with the provisions of any part of this Constitution other than the sub-sections last above named. i , t The General Assembly is thereby prohibited from changing any provision, from enacting any law, in addition to, or in conflict with, any of the other provisions of that section. Now, the other provisions of that section contain some of the most important directions of this bill. It is by the terms of the article thus expressly provided and intended that the General Assembly shall make no charge or modification in any provision of this law which relates to rates; and it may be that right there, in reference to the practical operation of some provision of this law controlling the proceedings of this commission in reference to the fixing of rates, the Supreme Court of the United States may find that the argument of the learned lawyers who have criticized the provisions of this law is well founded. And suppose, Mr. Chairman, that that court should hold that in any one of these vital particulars your law is unconstitutional, where would the people be in reference to the redress of grievances and the great reform which this bill is intended to accomplish? Your article prohibits the Legislature from amending it. The Supreme Courts which, after all, whatever we may say here, is the "paramount" authority upon thia question, has said that the article is unconstitutional in its operation, as it said in reference to the Minnesota law; and where would you be? You will have to go before the people with a constitutional amendment and change your Constitution, and then change your statistics, so as to conform to the rulings of the highest court in the land.. DEBATES OE THE CONSTITUTIONAL CONVENTION OF VIEGINIA. 2399 Mr. Chairman, it is impossible that I could indulge in any unfriendly criticism of the work of this committee, but I recognize the limitations and the falibility of finite minds, however able and however wise. It is said that the poet Gray spent seven years in writing the beautiful, immortal " Elegy in a Country Churchyard." To make a law intended to govern and regulate a vast and complicated subject like this perfect enough to go into a Constitution, would require a legislative genius equal to that of Thomas Jefferson, and would require, in the careful selection and adaptation of language to express the precise ideas to be formulated, as patient, persevering, indefatigable industry as the great poet devoted to the preparation of those immortal lines. Mr. Chairman, the considerations and principles which, in my judgment, should govern this Convention in framing the fundamental law of the State are not of recent birth. In answering a generous call from my fellow-citizens to become a representative in this body, in the month of April last, some wrecks before this Convention assembled, I laid down the propositions, which, by your indulgence, I will read, and which expressed my views then, and express my views now, as to the wise and conservative rule which should govern this Convention in dealing with this and other like subjects. I read now from my letter to the people of Rockbridge and Buena Vista: So far as I have been able to grasp the situation, there are two great objects which the Convention should seek to accomplish. First, and above everything else, " Suffrage and Election Reform." Second, the adoption of such constitutional provisions as will give simplicity and greater economy in the administration of the State and local govern- ments. Suffrage and election reform must go hand in hand together. By suffrage reform, I understand such constitutional regulation of suffrage as will, as far as practicable, under the limitations of the fifteenth amendment to the Con- stitution of the United States, eliminate the vicious and ignorant negro vote as a po- tential factor for evil, and place the control of your State, county and municipal govern- ments, everywhere in the Commonwealth, securely and permanently in the hands of the voters of the Caucasian race, that race which, by the traditions, training and experience of a thousand years, is best fitted for the exercise of the powers of government. This is the policy of wisdom, prompted not by hostility to the negro race, but alike by the best interests of both races. By election reform, I understand such constitutional regulation of suffrage as the commission of the crimes of bribery, false registration, false counting or other cor- rupt practices in connection with elections, so dangerous, that even daring criminals and wrong-doers will be deterred from their perpetration. These two reforms seem to me to be the imperative duty of the hour. To their accomplishment I would subject all other issues and questions and constitutional provisions, except those which are the hereditary muniments of liberty. With these reforms embodied in a fundamental law of the State, we can, I believe, trust the Legislatures chosen by the electorate as consti- tuted by the new Constitution, to adopt such other measures for good and economical government and to adopt such other reforms, as the demands of a free and progessive people may require. If not — And I ask the gentlemen who are insisting that this matter of statutory legislation and all these details shall be embodied in the Constitution, to answer this proposition, which I quote from that letter. If not, free institutions and popular government will prove a failure in this Common- wealth, which was the first among the nations of the earth to form a government for a free people by the terms of a written Constitution. In my judgment, therefore, the Constitution should not be loaded do^Ti with pro- visions which will more probably come within the domain of legislative enactment, for the sufficient reason that what shall be written in the Constitution cannot be changed except by an expensive and tedious procedure, and for the further reason that such pro- visions, however meritorious in themselves, will tend to strengthen the opposition to the adoption of any constitution which may be framed, and this upon issues of secondary importance. Now, Mr. Chairman, I wish to say that in my judgment there is no necessity for the enactment of such a law in your Constitution. Without violating those principles 2400 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. which should govern a Constitutional Convention, you can embody in your Constitution the principles which should control the Legislature in regard to this matter, but not tie their hands — not to frame in all of its details and minutiae a law to govern this great subject throughout the life of this Constitution. I believe there is no necessity for it, because I have confidence in the representatives of the people of Virginia, both in the House of Delegates and in the Senate, that they will not fail to carry out the wishes of the people. The arguments in favor of a necessity for the creation of a cor- poration commission with power, are a hundred-fold, yes, Mr. Chairman, a thousand- fold stronger now than they were in 1884 when the first railroad commission bill was defeated; than they were in 1888, when the second corporation commission bill was defeated by the representatives of the people in the Senate; yes, and defeated by the votes of the representatives of the cities of the State and not by the representatives of the counties of the State, and they are a hundred-fold stronger than they were in 1890 when the Kent bill was again defeated by the votes of the representatives of the people in the Senate. And why do I say that, sir? Competition existed at that time in Virginia. There were nine or ten independent railroad companies operating in the State. Now there is practically but one. I do not care whether you call it " combination," or community of ownership, a little coterie of capitalists; and I have nothing to say against them merely because they are capitalists. I have no sympathy with that spirit which would tear a man down simply because he has been successful, if his accumulations were honestly gained; but a little corterie in New York, or Philadelphia or Chicago, yes, and a still smaller coterie in the city of New York, practically and ultimately directs the policy and controls the operations of every railroad system in Virginia. So that the only remedy of the people is one of two things., either in the exercise of their soverign powers of eminent domain, to condemn the properties of these companies, to seize them, to own them, or else by wise measures of legislation, not by a constitutional enactment, to regulate them. I had omitted to say, Mr. Chairman, that there may be another danger lurking in this bill. I omitted to mention another qualification of the decision of the Supreme Court of the United States, in Munn vs. Illinois, and in the Railroad Commission cases, which seems to have met the approval of the majority of the members of the Supreme Court of the United States. The last decision in which this view is expressed is to the effect that it it not com- petent for a Legislature or a commission created by a Legislature, to interfere with a railroad company in the management of its own affairs. I do not know exactly how far the courts will carry that principle; but it is not safe to adopt a constitutional enactment which has not stood the test of judicial investigation, which is in large measure novel, experimental, empyrical in its provisions, v>^hich able and learned counsel, as fair-minded and as competent to express an opinion upon a question of this sort as any gentleman upon this floor, with as much knowledge, perhaps more knowl- edge, of railroad affairs than any of us, say would have the effect of vesting in this commission the right to interfere in the management of the property and affairs of a railroad company by its president and board of directors and its general manager and its other officers; and if such a ruling should obtain in the Federal courts, where will your corporation bill be in that regard? Whereas, if it is an ordinary legislative enact- ment, your General Assembly at its next session after such decision, can cure the defect and avoid the operation of the invalid provision. Mr. Wise: If the Supreme Court of the United States should decide that this act if placed in the Constitution, is unconstitutional, would not the Legislature have the same right then to legislate that it would have if we did not put it in? Mr. William A. Anderson: If the Supreme Court of the United States, Mr. Chair- man, were to decide the whole of that article was unconstitutional, it would be abso- lutely void, and as though it never existed. DEBATES OE THE CONSTITUTIOisTAL C0XVEXTI02T OF VIRGIN-IA. 2401 The Legislature would certainly then have the power to enact a corporation law which would not be unconstitutional; but, Mr. Chairman, the Supreme Court of the United States will never hold the whole of this act unconstitutional. No man who has spoken upon that question upon this floor has claimed, and no lawyer v/ill claim, that every provision of that act is unconstiturional. The danger is that that court may hold that some one vital provision of that act is unconstitutional in its operation, and by its terms you have taken from the General Assembly power of amending that act, as I understand it, and its most important and vital provisions, in reference to the fixing of rates. But the gentleman from Richmond (Mr. Meredith) told us there was such a popu- lar demand for the incorporation of this identical bill in the Constitution, that we vrould be delinquent in the discharge of our duty to "our constituents if we failed to respond to that demand. Mr. Chairman, I deny the proposition. I know there has come up to this Conven- tion from the most respectable sources, from various cities in the State, a request by gentlemen who I am sure have not had the opportunity to study and consider this article (as members of this Constitution have done), that we should give our adherence to that article without the crossing of a "t" or the dotting of an "i," an article Vv^hich I venture to say if the decision in 134 U. S. is to stand as the law of this country, if the law as laid down by Judge Thompson is the lav/ of this country upon that subject, could not, as it came into this Convention, from the committee and in the shape in which these Chambers of Commerce have asked us to adopt it, have stood the test of judicial inquiry and investigation in the Supreme Court of the United States for a day. Those objections have been removed by amendments, or will be removed, I under- stand by amendments. How can any man say that act even as amended is perfect? Do these gentlemen, even the intelligent members of the Chambers of Commerce, understand what the effect of this bill is? Why the grievance they complain, of the outrages, which, according to their case as presented here by the able gentleman from the city of Danville (Mr. Withers) and most forcibly and clearly presented too, by my friend, the able representative from the county of Halifax (Mr. Stebbins) is one which is beyond any remedy which we can give them. It is one against which relief can only come from national legislation. It is one which arises from interstate commerce, a,nd not intrastate commerce, from interstate rates, and not intrastate rates. I will say to my talented friend from Halifax (Mr. Stebbins), the gentleman of facts and figures, v\^ho has given us so much interest- ing information in detail in regard to these matters, that no relief can come to his community in the vital particulars to which he referred except from legislation by Congress, or the enforcement of the judgment of the Interstate Commerce Commission at Washington as has already been rendered in favor of the people of Danville. This bill will give little or no relief to them. At the most, not more than one- tenth — and I was greatly surprised to learn that this was the case — of the railroad traffic in Virginia is intrastate business. Nine-tenths of it is interstate; and shall we, in order to give relief, even if you were certain it would do it for a time, depart from a salutary principle to engraft into the Constitution as part of the fundamental law of this Commonwealth a complicated enactment which will only give a remedy for one- tenth of the injustice and inequality of which the people are complaining? Mr. Braxton: I think the proportion of traffic to which the gentleman refers as intrastate, is based on tonnage and not on revenue, taking it upon a revenue basis, be- tween 20 and 30 per cent, of it is intrastate; and the reason there is so little apparently on a tonnage basis is due to the fact that so large a proportion of the trade is coal, which reduces the tonnage proportion much lower, as coal is nearly all interstate. If you take it on the basis of the money that is paid for* freight, between 20 and 30 per cent, of the revenues of the railroads of the State is intrastate, only about 10 per cent, of the tonnage is. 2402 DEBATES OF THE CONSTITUTIONAL CONVENTION" OF VIRGINIA. Mr. William A. Anderson: Mr. Chairman, I am not prepared to question nor do I question the statement made by the chairman of the committee on this subject. The information I had, which, though I considered it authentic, was not from the most authoritative source, was that five per cent, only of the business, for instance of the Chesapeake and Ohio railway was intrastate and that at the outside not more than 10 per cent, of the business of all the railroads in Virginia was intrastate. Mr. Braxton: If the gentleman will permit me, I do not wish to make the state- ment I did make on my personal knowledge. I have been informed that is true from sources which I think are reliable; and I wish merely to call the gentleman's attention to it. If he wishes to investigate it further, he may do so; but I think upon investiga- tion he will find the facts as stated to be substantially true; that the figures from which he gets his statement that the Chesapeake and Ohio has only 5 per cent, of the intra- state work is based upon tonnage and not upon revenue. Mr. William A. Anderson: Mr. Chairman, I do not know at all what the facts are in regard to that, nor am I informed except by the remarks made by the gentleman from Augusta (Mr. Braxton). But the gentleman from Richmond (Mr. Meredith) says the people demand it. W^hen did they demand it? When did they demand that we should put such an article as this in their Constitution, to tie their hands and to tie the hands of their represen- tatives in such a way that they might be prevented from giving them the very sort of relief and the only kind of relief that would be efficient. Not before this Convention was elected. There was a little meeting, I understand, or perhaps a large meeting, up in the city of Danville, about the first of June or the last of May, arranged by some gentlemen who were invited to consider the subject. There has been a strong demand, nor am I surprised that there should be, on the part of the people of that enterprising, patriotic splendid young city of Danville. They ought to have relief. They ought to be protected against unjust discrimination which must be crippling their industries in a measure, paralyzing their enterprise. They have prospered in spite of these condi- tions, but how much more prosperous might they have been if these evils had been redressed, if relief had been given them by the United States tribunals or legislation of the United States which alone could give redress and relief. But where else has there been such a demand that this identical measure — and that is what gentleman claim — should be put in the Constitution in totidem verbis? I have not had an intimation from any constitutent of mine that they wanted any such legisla- tion in this Constitution — not from one. I doubt whether one man in a hundred in the State of Virginia had ever carefully read this bill before this discussion began. Why it was only printed in its present form a few days before it was taken up for consideration by the Committee of theWhole. I doubt whether one man in a thousand in the State of Virginia begins to understand its provisions, and I have no idea that the people of Vir- ginia are demanding that we should put such an act of legislation in their Constitution as part of their organic law. What they expected us to do, what they had the right to expect us to do, is to reform suffrage, to change the conditions which have been existing in this State now for more than a decade, yes, for at least twenty years, and which if not changed must result in the deterioration and degeneracy of our people. That great reform accomplished, Mr. Chairman, I feel we can safely trust Virginia people and their representatives to protect themselves and to embody in the laws of the State the principles which we should engraft in their Constitution upon this subject. I would make it obligatory upon the Legislature to establish a corporation commission, with powers to do all that was neces- sary to be done to regulate commerce in the State and to prevent discrimination and extortion and give to the people of the State a reasonable and proper service on the part of all public service companies. I say we can safely trust the General Assembly to carry into law any provision of that sort we put into this Constitution, and without any such provision the conditions in Virginia are such to-day that there is no General DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. 2403 Assembly that the people have elected or in my jiidgment that they will elect, that would now refuse to place such wholesome legislation upon the statutes of this Com- monwealth. How much safer, how much better it is to pursue that couse than to attempt to embody in your Constitution all the reforms in detail, all the reforms, however meritori- ous, which may occur to the active and sanguine minds of this Convention. However meritorious, each one of these propositions may be, they will each of them arouse hostility to your Constitution more or less formidable; and your Constitution defeated, not only do you fail in accomplishing corporation reform, but you fail in accomplishing that still more important desideratum, suffrage and election reform. I would not endan- ger either one of them to insure in this Constitution the most perfect corporation law that the mind of man could frame; and we may endanger the adoption of any instru- ment that you frame here by embodying in it too many reforms, although each one of them may be of the highest merit. Mr. Chairman, I am greatly obliged to the gentlemen of the committee for the care- ful and earnest attention they have given to the remarks I have deemed it my duty to submit and which I regret to say have been somewhat disconnected and desultory in their character. I value as highly as members of the Corporation Committee or any of the advocates of the corporation article the zeal, the indefatigable labor, the searching and tireless investigation which the chairman of that committee and his associates have^ through weeks and months, devoted to this work; and if I thought that this great w^ork which they have done, the great contributions which they have made to the literature the learning and the information of the people of Virginia upon this subject is to be thrown away, I would be still more loath to part company with them, or to vote nsainst the adoption of their handiwork; but that great work will not be lost, that great service will still be of inestimable value to the people of Virginia, and when your General Assembly comes to frame a law in accordance with the mandate of this Convention, carrying out and giving effect to the principles upon this subject which alone it is proper and right we should embody in the Constitution, they can use and they will use and adopt much of the wisdom and of tlTe well considered suggestions of the gentlemen who have thus blazed the way for legislation by the proper legislative body of the State upon this subject. I thank you, Mr. Chairman, and gentlemen of the Convention for your kind atten-. tion. (Applause.) Mr. Keezell: Mr. Chairman, this morning when I had the honor to be presiding over the Committee of the Whole, the gentleman from Rockbridge (Mr, Anderson), in making some allusion, referred to what the Chairman, who had some experience in leg- islative matters well knew. I do not know that I quote his language exactly, I undertook to get his language from the stenographer, but he was engaged at the time in reporting the proceedings of the Convention and I was unable to get it. If I understood the gen- tleman from Rockbridge correctly what the gentleman stated I did know is exactly what I do not know and that was that there had been no public demand for a corporation commission or a railroad commission in Virginia. The gentleman himself stated that through three of four successive Houses of Delegates a plan more or less effective had been passed, and it had failed to become a law because it was not approved by the Sen^^ ate. It appears to me that allusion ought to be a refutation of the statement which he made, because the House of Delegates would not have passed in three or four succes-. sive sessions a bill for which there was no public demand. I want to say now, Mr. Chairman, that I believe if he had been as familiar as I am with the fate of those measures in the Senate, he would not have made the statement he did make. Those measures, many of them, upon various occasions, went to the Com- mittee on Roads and Internal Navigation of the Senate and you could not prize them away from that committee with a crowbar. Mr. Chairman, it may be that the time will come when there will be such a popular 1 ... _ 2404 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. uprising as will demand at the hands of the General Assembly legislation of this nature, which the corporations of the State are not exactly willing to give, but it will be gotten at the point of the sword, in my judgment, like Magna Charta was gotten by the barons at Runnymede; and I do not wish to be put in the attitude of endorsing the statement of the gentleman from Rockbridge as of my knowledge believing the statement which he made to be a correct one with reference to the General Assembly of Virginia. On motion of Mr. Braxton the Committee rose and the President pro tempore resumed the chair. On motion the Convention adjourned until tomorrow, Thursday, February 13, 1902, at 10 o'clock A. M. THURSDAY, February 13, 1902. The Convention met at 10 o'clock A. M., the President pro tempore in the chair. Prayer by Rev. W. F. Dunaway, D. D. CORPORATIONS. On motion of Mr. Braxton the Convention resolved itself into Committee of the Whole for the further consideration of the report of the Committee on Corporations, Mr. Keezeil in the chair. Mr. Blair: Mr. Chairman and gentlemen of the committee, it is with hesitation that I take the floor this morning to endeavor to address a few remarks on a question v/hich has occupied the time and talent of so many of our most brilliant leaders; but as I was unable, gentlemen, to endorse the majority report of this Committee on Corpora- tions, and as I was also unable to agree with the minority, I think that, in justice to myself and the Committee of the Whole, I should endeavor to explain my position. I ask the attention and indulgence, therefore, of the committee while I briefly attempt to explain my position as a member of this committee. It was with reluctance that I was constrained to differ from the rather large majority of the committee, but I am compelled to do so. If unwavering zeal, gentlemen, and untiring energy were the criterion by which constitutional provisions are judged then I believe the result of the labors of my friend, the distinguished chairman of the Committee on Corporations (Mr. Braxton), would occupy a conspicuous place in txie Constitution which we are now about to frame. But such is not the case. I had come to regard a Constitution as the instrument which fixes the basic and fundamental prin- ciples which are to govern the body politic, and I therefore cannot help viewing with alarm any attempt to embark the old ship of State upon the dangerous and unknown seas of experimental legislation. As to the dissenting report of the two distinguished members of that committee, I agreed with most of their reasoning, but with very little of their conclusion. I do not believe the Constitution is the place to put this corporation commission. In fact, I do not believe in such a commission at all. If any crying evils exist, which I do not concede, then I do not believe this is a remedy which will effect a cure. It is a serious thing to put in the hands of two men — a majority of this commission — the corporate interests of the State of Virginia. The proposition to establish this commission contemplates the creation of three more salaried officers, varying from $3,000 to $5,000 per annum each. I came to this Convention in the interest of a constituency which believes that in Virginia there is a prolific field for economic legislation. I therefore cannot sanction this measure, which will, in my opinion, impose additional burdens upon an already overtaxed citizenship, without affording any relief for their real or imaginary wrongs. It has not been with any iconoclastic spirit that I have invariably voted for the abolition of all superfluous administrative offices in this State, whenever an opportunity offered either in the stand- ing committees, the Committee of the Whole, or the Convention itself. DEBATES OF THE COXSTITUTIOXAL CONYENTIOX OF VIRGINIA. S4D5 I, of course, recognize the fact that constitutional innovation is essential to keep pace with the march of progress and of mind, but when I recall that the most prosperous and progressive days of our Commonwealth have been passed under our present system of constitutional government, and when my own section of Southwest Virginia, that I have seen in my comparatively brief career transformed from the home of the moon- shiner into the home of a prosperous, happy and contended people — the garden spot of old Virginia — then, naturally, I pause before I sanction this piece of idealistic legisla- tion. Had it not been for corporations in Southwest Virginia, the farmers would to-day still be striving to eke out a scant sustenance by tilling the soil over mines of fabulous and inexhaustible wealth. Twenty-five years ago the land in the coal regions of Poca- hontas could have been brought for from $5 to $10 per acre. It has been argued that this commission should be placed in the Constitution because the General Assembly is always dominated by corporations. To my mind such argument is extremely fallacious. If a majority of the General Assembly, or of the upper branch thereof, can be dominated by corporations into passing or refraining from passing laws in their interest, how much easier it would be to dominate a majority — two members — of this corporation commission? We have had nothing before this Convention to convince us that such legislation is necessary. The mere fact that Danville has been discriminated against does not prove it. If she has been discriminated against, then, a fortiori, some other section of the State has been discriminated in favor of, and this is simply raising up one section by pulling down another, and it is certainly not a case of which a Constitutional Convention should take cognizance. Now, we have heard gentlemen argue that North Carolina had a commission and that Georgia had a commission, but we have had nothing to show, and there has been no contention that either one of those States is any better off thereby. Is there a mem- ber of this Convention who will contend that Georgia or North Carolina is more pros- perous with a railroad commission than Virginia is without it? I do not believe any- body will make such a contention . It is our proud boast that we lead all of our sister Southern States in the march of progress and prosperity. Then should not two things be demonstrated to this Convention, beyond the peradventure of a doubt: Namely, that legislation is necessary, and secondly that the Constitution is the place to put it. We live in a busy age. The conditions that confront us to-day may be entirely different to- morrow. The kaleidoscope of modern civilization is ever shifting. We should therefore consider long and well before we put into our organic law detail legislation which may cripple the arm of labor and crush the foot of progress. I voted for the employers' liability act, but I had my doubts, even then, as to the wisdom of such a course, but after I remembered that the two great political parties of this State had put such a measure in their platform, then I deferred to such overwhelm- ing endorsation. Now, gentlemen, in my section of the State we have a vast expanse of undeveloped territory, awaiting corporate capital to expose its latent possibilities. It is a new coun- try. Had it not been for the corporations we would be now where some of the more rural sections are. With one railroad, and no competing line that country has taken the front of our prosperity and our advancement. And another thing, that very few of us consider is the fact that that corporation, the Norfolk and Western Railroad, which has developed that section of country, is a permanent industry, and that the money and revenue they are receiving from that section of country is being largely put back into developing that road into what is to-day one of the best, if not the best, in Virginia. When I listen to the speeches in favor of this Corporation Commission, I concede that it has its possibilities, but I am at the same time reminded of a little anecdote that I heard once about a farmer and his son. They sold their farm which they had cultivated, and went back further in the mountains and went to cultivating what is 2406 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. known as new ground. Now both the farmer and his son were very profane. They would go out in the morning and plough up some of this new ground, and you could hear them swearing at their mules as they ploughed. Time went on, until a revival was started in the community by one of these exhorters, and he preached a pretty good sermon and prayed a powerful prayer, and so worked on the old man that at last he " came through," as the expression is. He went back home, and the next morning he started in to plough. He spoke very mildly to his mules, but they would not budge. Then he tried to lead them, but still they would not move. Finally he called to his son, who had not gotten religion, and was not having any trouble v/ith his mules. His son came over to him, and ripped out an oath or two, and the mules lifted up their heads and walked right off. A night or two after this occurrence, the revival v/as still in progress, and everybody was there, the old man sitting down in a front seat, shouting " amen." Presently he looked up and saw his son coming down the aisle, and he went to him and he said: " Sit down, my son; I want to talk to you a little. You are going to the mourner's bench?" The son said, "Yes father," and the old man said, "Well, my son, I want you to remember that religion is a pretty good thing; but you must remember also that we have got a great deal more of that new ground to plough yet." So, gentlemen, while this corporation commission may be a pretty good thing, I cannot give it my sanction because we have a good deal .more new ground to plough in my country yet. Now, I believe we have already made some mistakes. I believe we will make others. I will summarize a few mistakes that in my opinion we have made. The first and greatest mistake, in my opinion, was to have ever come here at all. The next was when the Convention refused to take the oath of office to discharge their duties. The next was when the Convention denied to the people the right to select the judges who should preside over their courts. The next was when the Convention turned over to the tender mercies of the Uni- versity and colleges the common schools of the poor people of this Commonwealth. I could name other mistakes of lesser importance we have made; but now I am going to advert to a few that I believe we can yet make. I believe we will make a mistake by establishing an educational or property qualifi- cation. I believe we will make a mistake by not submitting the new Constitution to the people, as we promised, and as they have reason to expect. But, gentlemen, I believe there are two other mistakes that we can make, that will cap the climax. The first is the adoption by this Convention of this ecclesiastical bastard that the gentleman from Culpeper (Mr. Barbour) is seeking to father, commonly klnown as the Barbour-Quarles resolution, but which the gentleman from Augusta expressly dis- owns and repudiates. The second is the adoption of the majority report of the Com- mittee on Corporations, relating to this Corporation Commission. Gentleman, I thank you for your attention. Mr. Thorn: Mr. Chairman, I shall not detain the committee long. My condition of health, if nothing else, would prevent. In fact, it is with extreme reluctance that I trespass at all upon its attention. I have seriously questioned with myself whether I should participate in this debate. I have feared that my identification with some of the larger business interests of Virginia might, in the minds of some upon this floor, make me an unwelcome contributor to this discussion. But when I consider the great issues which are here involved, the large bearing that the decision we shall here reach will have upon the destinies of my people, I feel my duty will be best done if I ask at the hands of this committee calm consideration of those views which address themselves with so much force to me. It will be remembered, Mr. Chairman, that I am one of the representatives upon this DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF YIRGIXIA. 2407 floor of a community largely interested in commercial instrumentalities. I have lived in that community for a little over twenty years. In that time I have seen it more than double in population. I have seen its property more than treble in value. I have watched the spirit of its people awake into new life, and have seen a large conservative and cosmopolitan sentiment dominate their thought and their action. I have studied the cause of this difference and its. growth. VvTien I first went to the city of Norfolk there were two short railroads making their terminal at that port — one the Atlantic, Miss- issippi and Ohio, extending 405 miles to Bristol, the other the Seaboard and Roanoke, extending a little over 300 miles into North Carolina — making less than 800 miles of road with the termini at that point. I have seen added to its transportation facilities the Atlantic and Danville, the Southern, the Atlantic Coast Line, the Norfolk and South- em, the Virginia Beach, the Chesapeake and Ohio and the Pennsylvania system of rail- roads. I have seen its mileage grow from less than SCO miles to about 15,000 miles with termini on that harbor, and I have seen the growth, the prosperity and the power which has been brought to us by that great movement. It will be understood then, Mr. Chairman, that my people — and I speak, I hope, not alone for those in my own city, but for all the people around that harbor, where now one line of electric lights starts in the city of Norfolk on the one hand and runs down Hampton Roads and returns via Portsmouth and Berkeley on the other — where there is now congregated a population not of a few thousand, but probably of 250,000 people, whose prosperity is largely made, and who are there creating taxable values for the whole State of Virginia — I say speaking especially for that people, it will be realized that I represent upon this floor no sentiment which is in any sense hostile to railroads. But more than that, Mr. Chairman, I think I may speak for the whole State of Virginia. Within the time I have mentioned in my own city there has been added to the taxable values upon which this State is living at least $17,000,000 out of the $26,000,000 that are now there. I have seen the city of Richmond grow and add its quota of values to the taxation basis of the State. I have watched the same growth in every portion of this Commonwealth and more especially have I seen the railroads of this State create the taxable values of two whole cities, the cities of Roanoke and Newport News, and add them to the basis of the life of this Commonwealth. But, notwithstanding this friendly sentiment which we have, and which I think this State should have to railroads, I realize that this discussion cannot properly assume upon this floor the form of a discussion from the standpoint of the railroad companies of Virginia. I realize that our highest allegiance, as we stand here in our representative capacity, is to the Commonwealth of Virginia, and I realize more than that, that if the soundness of the position which gentlemen assume upon this floor cannot be upheld and demonstrated from the standpoint of the State, it has no right to find favor in the hands of these representatives. I shall attempt, Mr. Chairman, to discuss this question not from the standpoint of any private interest, no matter how great or far-reaching, but to discuss it from the standpoint of the interest of our whole people, and to ask you, in the name of Virginia, whether or not the views which I shall lay before you are entitled to your favorable consideration, and to ask you to apply that test, and that test alone. It is proposed here, in the interest of this State, Mr. Chairman, to put an unusual article into the Constitution. Let me invite 3-our attention to what this proposition is. I say it is unusual, and I shall attempt to show you that it is not only unusual, but that it is unprecedented in the constitutional history of this country, and, so far as I know, unprecedented even in the statutory history of this country. VTiat is this proposition? Is it a proposition merely to control the rates of railroads? Is it a proposition merely to establish a State bureau which shall determine the justice or the injustice of the charges of these common carriers, or is the proposition to go far beyond that position, and, in addition, to take from the men who are responsible for the management of these properties the absolute control of them in every essential respect? DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. For the purposes of my argument, Mr. Chairman, I shall not challenge the power of the State of Virginia to do this thing. While, as presented in this bill, I seriously doubt the constitutionality of the proposition in some matters, in large and essential matters, and while in another respect I know that the bill is unconstitutional, I shall not, for the purpose of the argument to which I am now inviting yonr attention, discuss it from the standpoint of that unconstitutionality, but shall, for the purpose of my argu- ment, admit the power of the State of Virginia to do what is^ here attempted. But while for that purpose admitting the power, I challenge the wisdom of the policy. * It is likewise within the power of the State of Virginia to own the railroads of the State, and yet, as I challenge the policy of the State ownership, so I challenge the policy of an assertion of unlimited State control. Let us see, Mr. Chairman, the extent to which this State control is asserted: The said commission shall have the power and be charged with the duty of super- vising, regulating and controlling all transportation and transmission companies doing business in this State in all matters relating to the performance of their public duties and of their charges therefor. Broad and comprehensive as that language is, and frought with the possibilities for destruction and confiscation, our friends are not prepared to stop at that point. They are not willing to leave it to general language to carry out their purpose, but they go further and state: That the said commission shall from time to time prescribe and enforce such rates of charges, classification of traffic, rules and regulations, and shall require them to estab° lish and maintain all such public service, facilities and conveniences as the said com- mission may " within constitutional limits " deem just and reasonable. Not only has this railroad commission the power to control the rates of charges., but it has the power to control the number of trains, the constituent elementsi of the trains, the character of the cars, the number of the cars, the schedules upon which they shall run, and everything by which a cent of revenue may be earned, and everything by which losses may be incurred. I say, gentlemen, there never has been a power so extensive, so far as I know, asserted in any Constitution; and I will go further and say that, so far as I know (although I have not had access to the statutes, of all the States), there never has been such a power asserted in any statute law of this country. Now, gentlemen, that is the power that is asserted here. That is the thing that a Constitutional Convention is invited to do — not to put this matter into a shape where it may be fairly tested, and, if necessary, changed, but to absolutely take it up and crystallize it into your unchangeable law. W^iat has been done by others when they were attempting to deal with the vital interests of their people? What has been done by other governments when they were attempting to deal with this all important subject? Commissions have been appointed, evidence has been taken, consideration of the question has been deliberately gone into, years upon years have been spent in study of the conditions which were to be legis- lated about; and it was only after great care of that character that statutes have been made dealing with these questions. And yet we are asked, gentlemen, in a condition of disputed fact, under the heat of this thrust and counter-thrust of acrimonious debate, in the passion of political charge and counter-charge, and of neighborhood complaint, to take the vital interests of our people and deal with them as if we were wise enough to know, what no nation on earth has yet been able to discover, a final and complete and satisfactory and safe method of dealing with the things that are making the proSf perity of our people. We have been invited upon this floor to listen to the most heated charges against the companies with which we are invited to deal in this provision. We have heard from my lifelong friend from Northampton (Mr. Kendall) a declaration that there is 'DEBATES OF THE COXSTITUTIOXAL CONYEXTIOX OF VIRGINIA. 2409 an irrepressible war between capital and the people. We have been invited to partici- pate in this legislation as a part of the method of dealing with this question, and, I suppose, as a part of that war. We have been told by him that he would as soon go and reason with a highway robber as with one of these transportation companies. We have heard from the gentleman from Danville (Mr. Withers) the charge that these com- panies are guilty of high crimes and misdemeanors. We have been told by him that the eagle on every dollar should be a vulture. We have heard a bitter arraignment from my friend from Richmond (Mr. Meredith) against these important interests. We have been stirred by those considerations which we would expect to listen to upon the cross- roads hustings; and, in the atmosphere thus created, in the midst of passions thus stirred, banished from the calm statesmanlike consideration which we ought to have about us vrhen we consider this question, we are asked, gentlemen, to find a method of dealing for all time with these interests which can do so much and have done so much to make the prosperity of Virginia. Gentlemen, I want to ask you if we are in a Constitution-making frame of mind in the midst of all those charges? I want to ask you if you are certain we have that calmness of view upon these important matters which we ought to haA^e in dealing with these transcendent interests. I want to appeal to you calmly and dispassionately to consider the functions which you are here to perform, and to know that whatever you do is done not in passion, but in the calmness of statesmanlike consideration. WTiat is it, then, that we are asked to do? We are asked to take the conclusion of eight estimable and able members of this Convention, involving as it does, in im- portant and essential aspects, the destinies of our people, and to put it in the enduring form of organic law. Without disrespect to them, without disrespect to this Conven- tion, I ask you whether it will not be an arrogation of wisdom on our part that is alto- gether unjustifiable. Are we ready to admit that these eight gentlemen, or that this Convention, is wise enough to deal now finally and permanently with problems which the wise men of the earth are everywhere admitting have not reached their final solution. There is not an announcement from the thoughtful press of this country; there is not an announcement from any great statesman-like source in this country, that the matter of control of railroads has passed beyond the experimental stage. Why should w^e undertake to deal with it in final form? What arrogation of wisdom is it, on our part, to attempt that task? Is there any calm and dispassionate-minded man within the hearing of my voice, who would be willing now to make a contract for thirty years controling unknown conditions and unknown circumstances? Is there a dispassionate and calm-minded man, within the hearing of my voice, w^ho is able to conceive that he w^ould be -filling to take matters intimately affecting the destinies and the pros- perity of his people, and to put them to-day in some final and enduring form? Gentlemen, for many years, as a practicing attorney, I have been brought in con- tact with large corporate interests. For many years I have dealt with them in every shape, from organization and reorganization up. For many years I have studied their destinies and tendencies, and have fixed views as to their conditions; but if this Con- vention would rise up as one man and confide to my hands the power to write into this Constitution an enduring law which should govern their destinies, I should decline it at the hands of the Convention. I believe myself absolutely unfitted to assume that responsibility; and, gentlemen, with all deference and due respect to the other mem- bers of this Convention, I cannot conceive that there is in it a wisdom so complete and so supreme, that it can forecast the future in these great matters and can safely make the suit of clothes which they are to wear. My friend yonder from Pulaski (Mr. Wysor) tells us they do not want to put these great organizations into strait-jackets, they merely want to put upon them a suit of clothes, as he expresses it, so that they may go into decent society. But let me call the attention of my friend to the fact that the suit of clothes which he wants to make 152 — Const. Deb. 2'410 DEBATES or THE CONSTITUTIOXAL C02vrVENTI0>s" OF YIRGIXIA. for them is to lasit for thirty years. It is not a spring time or a winter suit; it is a suit which it is proposed to put upon them and make them wear for thirty years. Strip- ling, youth, growing as the form is upon which that suit is to be placed, he proposes now to make the suit and expects that it will fit when these great instrumentalities have grown greater and stronger and into different form. If my friend were here making a spring suit for these instrumentalities, I could not, to the same extent, criticise his position; but he loses sight of the fact, gentle- men, which I want to bring to the minds of this Convention, that what we are doing now is not dealing with this proposition on its merits. We are not considering it from the standpoint of passing necessities, but we are dealing with it with the assertion of the wisdom to be able to make that suit of clothes fit and change, no matter what the growth, no matter what the change of form that these things may assume in the next twenty-five or thirty years. ' Is it wise, gentlemen, to attempt that? I appeal to the calm statesmanship of this body. I appeal to the considerate thought of you men here to tell me whether what we are attempting to do is wise or safe in the interests of our people. Gentlemen, the assumption of a man who gets up on this floor and asserts his wis- dom to do this, with all due deference and kindliness to him, is something that I cannot contemplate, except with a feeling of awe. Let me invite your attention to the character of these institutions. Let me ask you to consider some of the particulars in which changes in regard to this matter have taken place in public sentiment in the memory of every man within this body. Under the old ideas of competition, when it was thought the safety and the life of the people depended upon having railroads run in competition with each other, after eleven years of taking evidence and of consideration, it was asserted, as a fundamental principle governing the transportation interests of this country, that there should be no possibility of pooling between two competitive lines; in other words, that no two competitive lines could make an agreement to maintain rates and to divide earnings. That was accepted as a proposition from which there could be no dissent. That was accepted as a proposition so fundamental that there could never be any uncertainty about it or any change in it; and yet what is its history? WTien the railroads adjusted themselves to that condition, the very people who v/ere once its advocates, are intro- ducing into the Congress of the United States to-day propositions to absolutely permit pooling in the interests of the people. Suppose that when it was accepted as a sound principle of economics, it had been put into constitutional form; suppose that it should now turn out that the men who approve of pooling are right. "What remedy would there be in the interests of the people, and what a great mistake would have been made! I will give another illustration. The wisdom of the United States had planted itself at one time upon the long and short haul clause, upon the proposition that no lailroad should be allowed to charge except under exceptional conditions, a smaller price for a longer haul than for a shorter haul; and yet, as the commercial problem before the people is being studied, and the workings of this principle are becoming mani- fest, the trend of thought in the country to-day is that it will be necessary to abrogate that principle in the interests of the people and of the various localities in the United States. Now, suppose that proposition had been put into constitutional form; suppose, after its adoption into the Virginia Constitution, it should become necessary, in order to save the life of some community in the State, that there should be permission to charge more for a shorter distance than for a longer distance; and suppose that this railroad commission should not permit it. No change could be made in the law by the Legislature, because the commission would not suggest it and approve it; and yet some struggling community of human beings, some people entitled to life and prosperity and happiness, as much as you and I, some people in less favored location than the city of Norfolk or the city of Richmond, might be struggling down to their death in DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. 2^11 the grasp of this long and short haul clause, and there would be no power in all the people of Virginia to change it. I call your attention to another matter as an illustration. In one of the clauses here suggested for your adoption, it is provided that there shall be a free railroad law al- lowing, without exception as to the Richmond, Fredericksburg and Potomac, the par- alleling of railroads in this State; in other words, the proposition is that it is the re- sult of the thought and wisdom of this Constitutional Convention, that paralleling of railroads must be permitted as a fundamental principle, that there can be no doubt whatever about the principle, and that there never can come a time in the history of Virginia when that will not be in the interests of its people. Let us look at it, gentlemen. Do you know that "on the continent of Europe to-day there is a law which absolutely prohibits the paralleling of railroads? Do you know that the interests of the people there forbid it? Do you knovs' that the experience of that older civilization, is that it is ruinous to the best interests of the travelling and shipping public? And why? Because it is recognized there that the efficiency of rail- road service depends upon its success: that if a railroad is to give proper service to its patrons, it must have the business to support it, and that if the indiscriminate par- alleling of railroads is allowed, you thereby take away from an established line its power to properly maintain itself and the consequent power to provide proper facilities for the people. They say, " VvTio must bear at last the consequences of disaster? " Is it the railroads only? Are their interests the only ones affected? Or is it the people who are thereby deprived of the possibility of good facilities? The conclusion reached is that, at last, the great mass of the people have to bear the consequences of the lack of prosperity and the consequent lack of power of the railroads to give proper facilities; and acting upon, that principle in Europe, consider- ing that to be a sound proposition, they have declared by law that there shall be no paralleling of railroads. And yet we as a result of a few months' session, as a result of only partial experience, with no deep and strong and complete mastery of this great subject, declare that it shall be forever, as long as this Constitution lasts, a funda- mental principle in Virginia that there shall be, without limit, the power to parallel any railroad in this State, I confess, gentlemen, when I first looked at that proposition I was in favor of it; "but the least study, the least examination of the conditions which have surrounded these great interests in other ci\ilizations, showed the fallacy of attempting to follow m-y limited knowledge and my limited power of foreseeing the future in dealing with the great interests and the changing interests to which I have alluded. Gentlemen, let me ask this committee and let me ask this Convention, each mem- ber, to look into his own heart and tell him-self — not tell me, but tell himself — where he got the experience to deal finallj' and permanently with this great subject. Can you get it, gentlemen, in your counting houses? Can you get it in your professions? Can you get it in your villages? Can you get it in your countr^^ homes? If you can, and when the spot where it is discovered is once found, in the name of humanity make it known, so that the wise men of the earth may seek there for what they have sought in vain upon a broader sphere, and find in the interest of humanity and in the interest of labor, and in the interest of all the people, a solution of a problem which no broad, strong, well informed man has ever said was yet beyond its experimental stages. I confess myself powerless in the presence of the problem. I confess I am unwilling to deal with it except in a way that might be changed if occasion should arise. There -?^ay be gentlem-en here who have the confidence in their own ability, the confidence in their own experience, the confidence in their own wisdom, to enable them to do it; but, gentlemen, let me ask you whether such a man as that is a safe and conserva- tive leader. Remember what you are dealing with. Remember that you are dealing with that force which is making the taxable values of your people. Remember you are dealing DEBATES OF THE CONSTITUTIONAL CONVENTION" OF VIRGINIA. with that force which will make your home a proper place for the energies and am- bitions of your sons. Remember you are dealing with the very vital interests of your people; and answer me, as you stand before your Maker, have you the wisdom, have you the experience to deal permanently and finally with the problem? Now, gentlemen, those propositions are entirely satisfactory to my own mind. I would regard them as axiomatic truths, except that I have lost all confidence in axioms since I have been a member of this Convention. I know of no proposition that has not been challenged here. I know of nothing so certain in mathematics that it has not found its critics upon this floor; and while I am sure in my own mind of the truth of the proposition that it is not wise to arrogate to ourselves the wisdom and foresight to deal permanently with a changing condition, I say that it only has the force at last of an axiom in my mind, and I cannot expect its universal acceptation. It was my privilege to listen a few years ago to a magnificent address delivered at the White Sulphur Springs, just across the border in West Virginia, from one of the most eminent men that America has living within its borders, a lawyer of great power, a citizen of great patriotism, a statesman of great experience, so far as a man in private life and a student can have it. He was telling of the impossibility of put- ting into the form of a written, a statute law, those principles of the common law which are universally recognized by the courts. He was pointing out to us that th© great glory of the common law was that it could be moulded and changed to fit the different conditions and necessities of the people, and that it did not have an iron form to crush growth and to defy expansion. He v/as telling us that the future of our race was an unknown thing, that it was as yet unmeasured and as vet unmeasurable. He was telling us it had assumed no definite and final form and that the necessities of the human race change as the cycles and the ages come, and he was telling us how impossible it is for any seer to look so far in the future as to be able to fortell its neces- sities and requirements and to put them in the shape of a written law. He used thi^ illustration: "You might as well ask the naturalist to classify the fauna and the ferna of an unknown world." I invite, gentlemen, the attention of this commitee to the logic of that illustration. I invite you to say whether the conditions of the future, in reference to the transporta- tion interests of this country, are known and certain and measurable. I invite you to tell me what is going to be the condition of ownership of these great facilities in the future. Are they going to split again into small companies, or is the work of con* solidation to continue? Is it going to be private ownership or State ownership? Are chey always going to be confronted v/lih dependent patrons, or may the processes of combinations go on among their patrons until some great steel trust, some great coal trust, or some great agricultural trust, or some of the great combinations of the influ- ences and forces of the age, are to confront them with a power greater than their own? Is it always to be true that their shall not be discrimination among patrons? Is it always to be true that the safety of the individual, when confronted by the combi- nation of the powers of larger patrons, will not lie in the absolute requirement that these transportation companies shall give discriminations in favor of individuals? What has the future in store for us all in these matters? How is this great problem to work itself out? What is to be the ultimate form in which it will confront the civilization of the world? Is there any man wise enough to fortell it? Can he do better than the naturalist? Can he classify the fauna and the ferna of an unknown world? Gentlemen, I have not undertaken to question the fact that the power of controlling these great instrumentalities should exist in the State. I am an adherent of that view. I believe it is necessary in the interest of the people that that power should exist. I think it should be sparingly exercised, and exercised only when the plain necessity for it has arisen. Let me ask you to consider with me for one moment whether that condition has arisen in the State of Virginia. I have heard one of the members of this Convention DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF TIRGIXIA. 2413 admit that it was a reasonable question to ask whether such a condition as this has arisen. I have been listening throughout this debate to hear an answer to that ques.- tion. I have heard gentlement arise upon this floor and attempt to give the answer. I have heard nothing which seems to me to be a satisfactory reply. I have heard him utter the suspicion upon arise here and arraign the fertilizer rates existing in Virginia, as they existed prior to last October, and within distances not exceeding thirty miles. I have heard him admit that his criticism failed after the distance of thirty miles was passed; and I have heard him admit that now, under the existing conditions, his criti- cism even within thirty miles no longer applied. I have heard him utter the suspicion upon this floor that the change in rates within thirty miles was made because of the assembling of this Convention. But I have heard no proof offered to support the sus- picion, and I am informed by a gentleman, who has control of the matter of rates, that the assembling of this Convention had nothing whatever to do with the change. Now, ISlr. Chairman, grant it all; grant that the discrimination within thirty miles does exist, or rather that it did exist prior to last October; grant that a change was made in the fertilizer rates of the State because of the assembling of this Convention. Granting all these things, will the considerate minds around me accept the proposition that because there is, or was, or might be, some discrimination in fertilizer rates, it is sufficient reason to require this Convention to lay violent hands upon the transporta- tion interests of the State and to take from their owners the absolute management and control of these great companies; and not only to take this control, :Mr. Chairman, but to deal with it in a permanent and unchangeable form; and if it throttles them, if it hurts the State, if it destroys her interests, still it must be done because there was, prior to the first daj* of last October, some discrimination within distances of thirty miles, on the fertilizer rates within the State of Virginia. Without an3" proof that complaint had been made; without any proof that the powers of the railroad commissioner had been invoked to deal with the problem; with- out any proof that there had been a failure to change and alter these conditions; with the fact staring you in the face that they have been changed and that complaint no longer exists — we are asked to accept as the logical consequence of that old con- dition that the railroad management of this State is inherently so bad that this Con- vention must wrest it from its owners, must take it and put it into the unchangeable form of constitutional law, and no longer permit the people of Virginia and their rep- resentatives to deal with this great and changing problem. I have heard the same gentleman say that, while he admitted the limitations upon this Convention restricting its powers to intra-State traffic, that he wanted to point out to this Convention how the commission of Georgia dealt with the interstate problems. He invited attention to the fact that the commission of Georgia had established cer- tain rates within that State as just and reasonable; that there was then complaint of the interstate rates over which they had no legal or moral power; and that afterwards, when complaint was made to them of interstate rates over which they had no power, they called these roads together and said to them, " If you do not change your inter- state rates, we will exercise our power and change your rates within the State." I am sure my friend did not realize the moral principle underlying that proposition. I am sure he would not appear upon this floor as the advocate of a blaclanailing propo- sition pure and simple. And I am sure when he sees the essence of it, he would not for one moment contend that a State commission, having no jurisdiction over interstate rates, should threaten one of these transportation companies, or all of them, with deal- ing differently with their internal rates from the wa3^ they had already dealt with them, as a method of maldng the companies give up something that this commission had no right whatever to exact. If there is any feature of blackmail lacking from that proposition, I should like t(.) Imow what it is. Then, I have heard as the only other effort to bolster up the proposition that the 2414 DEBATES OF THE COXSTITUTIOXAL COXYENTION OF VIRGINIA. railroads required this drastic treatment, the argument of the gentleman from Danville (Mr Withers). I shall not attempt to follow him in the argument in the Danville case. I invite the attention of this body, however, to the position in which that argument stands here before you. A case has been brought in here and argued only as to the one side of it, which is still pending and is as yet undetermined in the courts of your country. The case has been decided only by the Interstate Commerce Commission, and because a railroad company would not accept that decision as final and conclusive, but as the laws of the country permit, asserts, their right to question the soundness of this decision, and to go or be carried to the tribunal which the laws of our country estab- lish for them to go to, or be carried in, we are told in the calm s.pirit of statesman- ship that presides over the determination of this question that the fact that that com- pany has gone into the courts, where the law says they may go, is flipping its fingers in the face of the authorities and defying the people. Now, I am told, Mr. Chairman, that this appeal is a substantial appeal. In fact, it is no appeal at all. It is a case instituted in the United States Circuit Court at Har- risonburg, Va., by the Interstate Commerce Commission itself against this railroad company, for the purpose of enforcing the decision of the Interstate Commerce Com- mission. It is there pending without ever having been heard; it is there pending to decide questions which have been brought into debate upon this floor. And because this railroad company has questioned the soundness of that decision of the Interstate Commerce Commission, and has permitted itself to be carried into court to have the matter investigated there, we are told it is flipping its finger in the face of the people of the State; that it is acting in a way that calls for the intervention of this Convention, and that the Convention should take the case up and try it on a day or two days' debate and settle it in constitutional form, giving to the decision of the Interstate Commerce Commission, not yet endorsed by the courts, and to the views of the dissatisfied people of one of the cities of this State, the force of constitutional law. Let me ask you this question, gentlemen. Suppose that court — as I am told this company expects it to do — decides in this case of the city of Danville that the decision of the Interstate Commerce Commission is erroneous. Suppose it decides that the rail- road company has been in the right from the beginning. And suppose meanwhile this Convention has accepted the argument made by the gentleman from Danville, and has considered that argument as sufficient ground for placing this matter in the Consti- tution of the State of Virginia. Then, in what sort of a position will the calmness, the deliberation and the statesmanship of this body be? Now, as I have said, I shall not attempt to argue that case. I shall attempt to give you merely an outline of the question that is involved, and we will see whether it is such a one-sided question. You gentlemen have been told that the rates into Lynchburg, Va., on traffic from the East and from the West are established by the Chesapeake and Ohio trunk line. You have been told here that nothing that the Southern Railway has done or can do can affect those rates; that these rates will stand even if the Southern railway were to withdraw itself from that traffic; that the Lynchburg merchants would get their low rates by virtue of another line of transportation, and that there is nothing that can be done by the Southern railway to alter or affect them in any way. In other words, if it were to increase its Lynchburg ratesi, the result would not be that the Lynchburg merchants would be deprived of their rates; it would simply mean that the Southern railway would go out of the Lynchburg business. How would that affect the city of Danville? How would that advance any one of its interests? It would still have the rates it now hasi, and of which it makes complaint only because the Southern railway hauls the freight through Danville to Lynchburg at a lower rate. The freight to Lynch- burg would then come by the Chesapeake and Ohio and the Norfolk and Western at the same rate at which it now comes. Now, let me ask you this question? Taking as a basis the Lynchburg rate, how DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. , * 2415 is the Danville rate made? The Danville rate is made by adding to the Lynchburg rate the local rate from Lynchburg to Danville. What is the logical consequence of that? As the distance from Lj'nchburg increases, going south, the cities south of Danville have a higher rate than Danville has; and if Danville has this cause of complaint, then the other cities south of Danville and west of it have the same, and a greater, cause of complaint. I vill now ask your attention for a m^oment — and for a moment only — while I read to you some of the comparative rates for these various cities: The city of Danville has a distance from Cincinnati of 676 m^iles, and from Louis- ville oi 656 miles. I read only from one of the classification classes, so as not to VN-eary the commit- tee, but the same facts apply to all the classes, so far as I have been able to ascertain. Now, for the the distance of 676 miles to Danville from Cincinnati, the rate on arti- cles of the first-class is 68 cents per hundred pounds. Take the city of Atlanta, which is distant from Cincinnati 474 miles, one-third less than to Danville, and on that same class the rate is $1.07 as against 68 cents to Danville. Take Chattanooga, Tennessee, distant from Cincinnati about 336 miles, or about one-half the distance to Danville. Its rate is 76 cents as against 68 cents to Danville. Take the city of Knoxville, Tennessee, a distance from Cincinnati of 292 miles as against nearly 700 miles to Danville, and it has a rate of 76 cents as against Danville's 6S cents. Take the city of Macon, Georgia, a distance of 561 miles from Cincinnati, as against nearly 700 miles from Danville, and its rate is SI. 07 as against 68 cents to Danville. Take the city of Charleston, South Carolina, a distance of 714 miles, as against 676 miles to Danville, and the rate is 95 cents to Charleston as against 68 cents to Danville. Take the city of Savannah, Georgia, a distance of 752 miles, as against 67G miles to Danville, and the rate is 95 cents as against 68 cents to Danville. And so I might go on. I merely present these facts to show you that this is a ques- tion within the region of legitimate debate. I am not concerned, for the purposes of my argument, as to how it should be determined. I am not concerned, for the purposes of my argument, as to whether Danville is right or wrong. But there is no man who can deny that it is a question within the region of legitimate debate. There is no man who can deny that that case is now pending in the courts, and there is no man who can deny that it is there pending under the authorit}' of the laws of this country. If it is then within the region of legitimate debate; if it is a matter that may be decided one way or the other, then, in the name of all that is calm and deliberate and statesmanlike, tell me how it should have any influence upon the action of a Constitu- tional Convention in determining its permanent law. Now, gentlemen, I have nearly finished. I wish, however, to call your attention to the fact that amid the dangers of making a Constitution in such manner as is here proposed is the danger, not only as regards the matter of policy, but in addition, as regards the questions of law. There may be some uncertainty, even in that respect. I take it for granted that not even the draftsman of the bill himself, will attempt to sustain the constitutionality of the long and short haul clause which is put in here. If he will, I should like to have him say so now, because it will shorten my argument if he states that he does not attempt to sustain it. Mr. Braxton: If the gentleman refers to the clause which says whether the long haul is in the State or out of it, I agree with him. The supreme Court has rendered a decision since that clause was written in there, in which by a divided court it is held that both the long and short hauls must be entirely within the State; and when we get to that provision we propose to have those words stricken out. Is that what you refer to? Mr. Thom: That is what I refer to, and that finishes me with the illustration I 2-J-16 DEBATES OF THE CO^fSTITUTIONAL CONVENTION OF VIRGINIA. want, that here is a provision brought before this Convention after seven months incu- bation, sound enough as these gentlemen say, to be put into the organic law of this Commonwealth, that, while they were making it, has been declared unconstitutional by the highest court in this land. In other words, there is such uncertainty in these propositions not only as to matters of policy, but as to matters of law, that before the ink gets dry upon a proposition which you are asked to put into permanent form, it is wiped off the face of the earth by the decision of the highest court in the country. Now, gentlemen, does that illustrate the prudence or the imprudence of such legis- lation in the Constitution? I am told m.ore than that by the chairman of the committee upon this floor. I am told that he cannot remember, but that there were five or s.ix drafts of this very proposition put by him before his committee, tentatively he tells us. Why tentatively? Why not finally? Why should it be necessary to deal with a great fundamental question like this where the principles must be tentative and run through five different drafts, instead of being readily put into final and permanent form. It was tentative because in the nature of things it ought not to be final. It was tentative because these gentlemen three months ago did not have the wisdom to say what should be final. Suppose that to-day, when the spirit of criticism is dominant in this Convention, suppose that now we are unable, with our short sight, to point out any individual defects in this constitutional article. Suppose we all rise up here now, and say "This is the final triumph of human wisdom." Is there, in that event, any considerate mind in this Convention that will be able to assure me that, with three months of operation, difliculties which we never anticipated will not appear, and defects which we cannot foresee will not come up and curse us in the practical operation of this great organic law. Gentlemen, I assume for myself no greater wisdom than is possessed by these gen- tlemen of the committee. I find that for seven months they have been uncertain as to the solution of this problem. I find that they have made at least five tentative efforts to solve it. I find that on this floor one proposition has to be abandoned as uncon- stitutional. I find that there is now no agreement upon this floor as to the wisdom of many of the suggested provisions and great divergence of opinion as to the wisdom of any such provision at all. It is certain that the condition of change and uncertainty which has marked the deliberations of this committee will not hereafter be found to be inherently incident to the unknown and unknowable form of the problem and that disappointment and disaster will follow the adoption of this article as the necessary and inevitable consequences of the practical working of this untried experiment? Gentlemen, I adjure you to pause and think upon what you are doing, as calm- mJnded, deliberate, thinking statesmen. I adjure you to remember the function with which you have been clothed by your constituents. I adjure you to remember that you are here to put into constitutional form great principles of government about which there can be no legislative mistake. Do not be guilty of the moral usurpation of taking the very vitals of your people and dealing with them in the crude and insufficient condition of your experience on this great subject. I say it is moral usurpation to attempt to solve this problem in constitutional form. I say that we were not sent here for the purpose of invading this great and important domain and of depriving the people themselves of the power to adjust their conditions to the changing necessities of their social and commercial life. When we attempt to do that — when we attempt to take up this matter upon which there is this great divergence of opinion as to what is the wisest course to pursue — we are guilty, gentlemen, as against our people, at least of a piece of moral usurpation. One more idea, and I have done. In my opinion this legislation is against the interests of the people of Virginia. I fear it is conceived in a spirit of hostility to companies which one gentleman upon this floor has denominated as the owners of one-third of the property in the State. I appeal first, to the utterances of the advo- DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE VIRGIXIA. cates of this measure upon this floor to substantiate my proposition as to this hostility. T repeat again what fell from the lips of my friend from Northampton, when he declared that it is a part of the war of capital against the people. I appeal to his denunciation of these great instrumentalities, when he draws a similitude between them and highway robbers. I appeal to the denunciation of my friend from Danville, when he rose and denounced upon the floor of a constitutional convention these instrumentalities as guilty of high crimes and misdemeanors. I appeal to his further denunciation of the great power of capital, when he says that every eagle upon every dollar ought to be a vulture, and I ask you gentlemen to consider this — you men who are young, you men who have destinies before you, you men who have sons whom you want to live within your midst, you men who are hopeful for the future, and of the prosperity of 3'our State — I ask you if you are willing to have it go out to the mighty world that that is the spirit against capital that animates the people of Virginia? But we are not confined to the utterances of these gentlemen. I take the article itself. I find written upon its face a declaration of hostility, such as it is impossible to controvert or deny. V^Tiat is it? In the first place there is the proposition that the State of Virginia must rise here in its might and take from the hands of these people who ov>m these roads their control, not only in the matter of rates, but in the matter of facilities, and everj^thing that will make or mar the future of their properties. We find in addition to that, that these matters are to be determined by a commission which is at first made the prosecuting officer before it assumes the robes of the Judge. We find that the article also contains the proposition that there is to be a different rule of liability upon the corporations of the State from that applying to the individ- uals; and we find in addition to that, that after this commission controls the rate, after it has said how much these people shall charge, and what trains shall be run and on what schedules, it is proposed to further strike do^Ti the values of these prop- erties by providing that anj'body in the State of Virginia may run a road exactly parallel to the existing roads, and within touch of their right of way. Now, that is the article. That is the proposition which you are asked to endorse. Will that be taken by any sensible man as an act of friendship, or as an act of hos- tility, to the owners of these properties? Who are the owners? Who are the men who own these properties? Generally and roughly speaking, they are the men who control the capital that is to come or refuse to come into the State. They are the men that are to sslj whether or not investments of that capital shall be made in the development of the resources of your State. They are the men who control the tide of influence which is to make or mar the destinies of your people from a commercial standpoint. Will these men take these utterances upon this floor kindly? Will they take these denunciations of them in this bill; will they take these cruel words and destructive conditions as a declaration of friendship or of hostility to their interests? I ask you, gentlemen, who are interested in the destinies of your State, will these men take that as friendly or unfriendly? Will they regard themselves as held in friendly or unfriendly regard in the minds of the people of Virginia? When a consti- tutional convention, representing the highest wisdom, the best, the calmest statesman- ship of the State, declares it will take from these men the absolute management of their own property, and that anybody who comes within the influence of the State's sentiment must be prepared to be treated in the same way, will it be any encourage- ment for them to come and invest in the resources of the State of Virginia? Some of us are engaged in an effort to increase your taxable values. Some of us live in communities where development is essential to the prosperity and happiness of our people. Some of us — if I may be allowed to make a personal allusion— have already increased by our own efforts the taxable values of the State of Virginia from one to four millions of dollars. If you take this action which you are asked to take will you be strengthening our 2418 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. hands? Rather will you not be crushing us with a mighty death when you proclaim to the men to whom we have to go to lay our coal fields, our agricultural interests, our fields, our ports, our cities and our forests before them as investments or develop- ment? Are you helping of hurting us in our effort to bring here the forces which are to give employment to our "people and bring prosperity to our State? Gentlemen you heard from this forum on the first day of this current year, uttered by the man who now sits as governor of your State, with the solemnity of an oath trembling on his lips, with his heart pledged to the prosperity of his people, the fact that thirty-eight per cent, of Virginia-born people are now living in other States. Has that fact no force in the minds of this Convention? Is that no indication of the fact that our State does not present such overwhelming attractions to our young men as to be able to prevail with tliem over the attractions of other States? More than one- third of all your people have even sought homes in other places; even now they are seeking opportunities which you do not offer them. Will you increase that centrifugal force in the future? Will you create conditions by which the aspirations of our youth, the power and the hope of your young men, will have to find in other fields in which to exercise their talents, and to make for themselves names and wealth and prosperity? Gentlemen, it does not do to say that these conditions have not existed in other States. It will not do to point to prosperity in some other community. It will not do to call attention to Georgia or to Texas, because every thoughtful man must realize that the conditions in those States are different from the conditions existing in the State of Virginia. As I say, the condition of our resources is not such as to have prevented hereto- fore 38 per cent, of our population from leaving the home of their birth. The attrac- tions here are not so great that we can even now keep at home our young men, but •we have sent them abroad to make the fame and to guide the destinies of other States of this Union. Will you be adding to the centripetal force of your people by erecting another barrier in the way of the inflow of capital? I have often thought that all this contention is but the outgrowth of a weak, old and effete civilization. Is that the kind of civilization upon v/hich the prosperity, hope and happiness of our people must depend in the future? I have thought that it is the echo of that terrible struggle in which the greatness of Virginia went down in war amid the privation and distress of our people. Yet here it is proposed to erect this barrier of criticism, this feeling of hostility towards us of all the great forces of this world that may make for our renewed opportunity. Gentlemen, we men of this Convention must stand for the future prosperity of our people. \ve must not let that past, great and glorious as it was, which should be to us only a blessing, rise up and force us into mistakes as to our future. Let us face to the future. Let us put our State where she belongs in this great family of States. Let us make the same opportunities for our young men at home that they find when they go abroad. Let us not take from them the hope that, amid their own kin, and in their own homes, and on their own soil, they can find the same hope and the same prosperity, the same opportunity and the same destiny that they can find among other people. Gentlemen, I feel that I have already too long trespassed upon your kind atten- tion. I had intended to show you that in none of the constitutions of other States, not even in the Constitution of Louisiana, was it attempted to take hold of the question of the facilities that are to be granted, given and furnished by these corporations, that in none of the constitutions of other States was it attempted to go to the extent that is suggested in this proposed article. You will find that in the Constitution of Louisiana, which is the most radical of all of these constitutions, that, as to the facilities fur- nished, it limits the power of the commission to requiring switches at stations and to safeguarding the safety of the traveling public. There is no objection to that, in its proper place; but in these other matters, in which this proposition goes far beyond any- DEBATES OF THE CONSTITUTIONAL COXVEXTIOX OF VIRGINIA. 24:19 thing that has ever been attempted, let us pause, gentlemen, and not put our State in the position of the most radical, the most intolerant, and the most pronounced opposi- tion to the great forces of modern civilization of any State in this Union. (Great ap- plause.) Mr. Wysor: Mr. Chairman, I do not rise to express any change of conviction on the subject. No man has been more highly entertained by the able and eloquent argu- ment of the gentlemen from Norfolk city than myself, but I hope the Convention will not doubt my veracity when I say that, verbatim et literatim, he has made the same speech which, in my dream, I heard him make in the basement of the capitol before Judge Baxter, and henceforth I will be a believer in dreams. (Laughter.) Mr. Thom: Mr. Chairman, referring to this dream that my friend had in the base- ment of the capitol, I am informed that it had more foundation than the baseless fabric of a dream. The name of Baxter sounds very much like the name of Braxton, and while my friend had his eyes shut he evidently was alluding to the court which my friend Mr. Braxton was holding in the catacombs, at which I understand he was a constant and delighted attendant. I am sure that my friend is not given to dreams. I am sure, too, that he made a great mistake the other day when he imagined that his own head was red, and he said that all red-headed men must stand together. I am sure the vision he had of the crowning of the Queen in May next out here on the Capitol square was also a great mistake, and I am equally confident that he Vv^ill find that, instead of the festal occasion which he pictures in such beautiful colors to you, gentlemen of this Convention, of the crowning of Virginia, that around his May-pole in the coming spring there will be dancing a bevy of sprites who will be singing, in the place of the corona- tion ceremonies, a song that will go something like this: There was an old man from Pulaski, Who was great, if anj'body should ask ye, He came also from Giles, But Mr. Braxton's sweet wiles, Seduced that great man from Pulaski. (Laughter and applause.) Now, that very great man from Pulaski, "Who could think, if anybody should ask ye, Stopped thinking and dreamed dreams, To advance Braxton's schemes; That gray-haired old man from Pulaski. (Great laughter and applause.) Mr. Braxton: Mr. Chairman, I am glad to see that my friend from Norfolk (Mr. Thom) could find it in his heart to have a little hilarity and get up a smile after con- templating the terrible doom which seems, in his opinion, to be overhanging the State. I must congratulate the committee upon the fact that I am about now to close this long debate, which has held them here nearly two weeks. I must ask their sympathy, however, for me that, owing not only to my natural inability but to the really enfeebled condition, physically, in which I find myself, my efforts in discussing this great question are to be brought into such strong contrast with the speech of the great and eloquent orator who has just preceded me. Mr. Chairman, my friend started out by promising us, if I understood him correctly, that he would give a calm and unimpassioned review of the principles involved in the measures which w^e have now under consideration, but I think he so far strayed away from that that he delivered to us one of the most impassioned addresses, dealing only in brilliant generalities and sweeping the cobwebs from the sky, that I have ever heard. The sum and substance of what my friend says to us is that, inasmuch as it is possible that we might make a mistake, inasmuch as it is a fact that the politics of other govern- ments and other legislation, although fundamental and administrative, have from time 2420 DEBATES OF THE CONSTITUTIONAL CONVEXTIOX OF VIRGINIA. to time changed, inasmuch as it is a fact that the conditions in this country which now confront us may, in the course of time, change, therefore we should not merely recog- nize the danger and proceed with care and caution, hut that we should not do anything whatever with reference to the railroad companies and their interests. If my friend will carry out to its logical conclusion the argument which he makes, T submit, sir, it would he the height of folly to make a Constitution at all and upon any subject whatsoever. We should say nothing about the Governor. Why? Because the experience of other States has shown that their Governors may be elected different from the way in which our Governor is elected. "At one time the Governor was elected by the Legislature. Therefore pause and consider that possibly you are doing a great evil when you say he shall be elected by the people, because the time may come w^hen he may not be elected by the people; " and so with the Legislature, and so with the judiciary, and so with the subject of taxation, and so with the subject of education, and every subject of which we treat. My friend will not go that far, but he will say, " No ; those are things for ordinary men to deal with. Those are things about v/hich we can and ought to legislate. Those are things which are of the earth, earthly; but when you come to invade that holy sanctuary where sit enshrined the mighty railroad kings of this land, speak low, my friends, put off your shoes from off your feet, for the very ground upon which you stand is holy, and you should not touch this celestial thing." Leave it all to them, these mighty guardians of the people's lives, their liberties, their property and their government. Legislate for ordinary men legislate for ordinary business and ordinary property, but do not dare to put any restricting hands upon these people, these mighty Caesars who have lived upon some peculiar flesh that has made them so great that they have got beyond the control of government and of law. Bow down before these mighty mammon. Hum- ble yourself in the dust and say, as used to be said by the kings of old. " The king can do no wrong. We will take the crumbs which you are pleased to let fall from your table and be thankful.' We will see that no law shall reach you. We will entrust you with absolute power and control to tax us as long as you think it proper to lay the burden upon our backs. We will put into your uncontrolled hands the very powers that make my friend tremble when he thinks of putting them in the hands of govern- m.ent, and he will say to the people that as to these great men there shall be no law. We will throw down the gates, we will cry havoc and let slip these dogs of war upon you, to prey at their will and at their pleasure. Mr. Chairman and gentlemen of the committee, I hate to approach a subject of this sort under any mental excitement or agitation, but I cannot but feel indignant when I hear distinguished and eloquent gentlemen upon the floor preaching such doctrines to us; and if we are to make any sort of restraint, if we dare to even say that they shall be subject to the control of law, we are said to be hostile to them. It is said we are actuated by prejudice, that we are making war on them. I say gentlemen of the com- mittee, that that criticism is not deserved, and cannot be sustained by the facts. As I stated the other day, you might as v/ell say that we are enemies of the human race because we want to provide rules, regulations and laws for the government and control of the people, and of all of them. Mr. Chairman, I think it cannot be success- fully controverted that there should be in no State, whatever the form of government, any individual or any collection of individuals of any other power that is over and be- yond the power and the control of the State. Mr. Chairman, the right of the State to prescribe and fix rates for the railroad and to prescribe and enforce reasonable rules and regulations for the regulation and control of those roads in their public duties, is a proposition which has been thoroughly elabo- rated, and I leave it to this committee to say whether or not there is lingering in their minds the shadow of any doubt as to the right of a State to do that. If I caught them correctly, I believe our distinguished friends who took the other side of this case concede that it is true and that power does reside in the State. " But," says my distinguished DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OE VIRGINIA. 2421 friend, " that power should always be kept in inocuous desuetude." It should never be exercised under the most extraordinary circumstances, which my friend thinks do not exist and never have existed. I say, Mr. Chairman, the time has come and is now at hand when this power, which was put here for some purpose, must be exercised, not ruthlessly, destructively or unwisely, but calmly, prudently and considerately, but exer- cised effectively. Why do I say the time has come when that power must be exercised? There are a number of reasons. The distinguished railroad commissioner of this State has again and again called attention to the necessity of having some effectual means of exercis- ing this power. The people of the State , as stated by my distinguished and dear friend from the country of Rockbridge (Mr. Anderson) have on three particular occasions, through their representative, attempted to enact legislation of that sort, and have carried it through the House of Delegates, which is larger and more immediately in close touch with the people of the country, and probably reflects their views better than any other branch of the government; and their efforts have been frustrated. Nearly every board of trade in Virginia, the only organized means of public expression of opinion by busi- ness men, has, I may say with practical unanimity, and without exception as far as I can recall urged upon and besought this body to enact legislation that would enable this power to be put into effective operation. My worthy friend from Rockbridge himself admits, to use his own language, that if there was any reason for such legislation as this in 1890 it exists to-day a thousand fold more than it did then, because the little protection the people had then in the way of competition has now passed away and become like an evanescent dream. The overwhelming evidence, which I will not enter into detail to repeat but which was read to you by my friend from Halifax (Mr. Stebbins), by my friend from Russell (Mr. Stuart) and my friend from Danville (Mr. Withers), showed to you the discriminations and the abuses of their power by the railroad companies, which are calling aloud for redress at the hands of this Convention. Evidence has been before 3'our committee, and it is a matter of notorious knowledge amongst everybody in the State, that these great benefactors, the railroad companies, so far from building up the State are here like dogs in the manger fighting off all others and doing as much as anj'-thing could be done to defeat and prevent the development of the State except so far as they can take in and assimilate that development in their own maws. I take the Norfolk and Western Railway company, owned and controlled by the same men who own and con- trol a large part of the coal fields of West Virginia, and I ask any delegate from that part of the country if it is possible to-day to develop, to mine or to ship one pound of coal from there unless they get it from the owners of the Norfolk & Western Rail- road company. I do not wish to go too much into detail, but I have here as illustrative of the methods which these railroad companies use to build up the waste places of this State, a letter from a gentleman — I will not read his name, but I will be very glad to show it to any member of the Convention who wishes to see it — in which he informs me that he and his associates, owning a large and valuable tract of several thousand acres of coal land along the line of the Norfolk & Western railroad, communicated with the manager of that road and asked for the same facilities that they were giving to those who were mining coal on the lands of the people who own that railroad, no more and no less. WTiat was the reply of the railroad when asked to furnish transportation facilities, for people who wished and who were ready and anxious and willing to develop the country, who owned the land and were prepared to develop the mines, and all they wanted was transportation facilities? The reply was: The conditions of the coal market do not at the present time warrant this company in opening up any further operations, and for the present, and until such time as the demand for coal materially increases, and we see our way clear to add to our equipment to meet further demands, we are not prepared to make an arrangement for further opera- 2423 DEBATES OF THE CONSTITUTIONAL COXVEXTIOX OF TIRGIXIA. tions. At the same time, it is not possible for me to make you a positive statement until I am more fully advised as to where the land lies and where you expect to find a market, and in what manner you are anticipating handling your output. I should like to know what the railroad company has to do with those things. I do not desire to delay your decision or action in the matter v/hatever, and I say to you frankly that under existing conditions it would not be to the interest of the Nor- folk & Western railroad to open up the property you refer to. Now, gentlemen, I ask you what condition of affairs we have confronting us; and yet these people come here and tell you that they must be allowed to go Sicot free of law, so that they can develop the State. If, sir, you wanted to ship a bullock from your farm to the market, and the railroad should tell you that, in their opinion, the beef market did not justify your shipping your steers, and you would have to wait until such time as they could make it convenient to haul them for you, what would you think, sir? Their duty is to haul the freight that is given to them, and what the market justifies is none of their business. If these men lost by their coal operations, it was their business and not the business of the railroad; and yet they come and tell you they are engaged in the business of developing the country. Developing it? Saying to that country out there, " I care not how much mineral you have, not one dollar of it shall reach the market until it pays toll into our pocket, not for transporting it, but until it has passed through our hands and has been squeezed as dry as it can possibly be squeezed. Not one pound of coal shall be raised and shipped except off our land; and we will not even go to the ordinary and old fashio'ned method of buying up the coal lands and holding them and getting up what they call a corner, but we will simply buy such amount of them as we wish to operate now and we will say to the owners of the residue, you hold them yourselves and you wait here until it suits us to buy them and buy them at the price we choose to give you; and if you don't want that price, you let your mineral stay in the ground until I and all of us are dead." And that, sir, they are enabled to say because of the franchises*'which have been given them and in the exercise of which they are protected by the govern- ment that you and I and all of us have established and are being taxed to support and maintain. And yet those men come here and say, " Oh, we are such public benefactors. You are indebted to us almost for the very air you breathe. It is through us and through us only that your State can be developed. Therefore give us an absolute free hand." I go further. There are certain large corporations in this country, so large that they monopolize, I will not say many, but all the necessities of life, and they are enabled to do so more by their control over the railroad facilities than in any other manner. The very backbone of the trust, as it is called, is their control over railroads, control over rates and control over transportation facilities. For what boots it, gentlemen of the committee, that the railroad company will say " Our rate for hauling is this or that," if they refuse to give you the cars to haul at that rate? How can you men in the Southwest, interested in the raising of cattle, compete upon the market with the cattle kings of Chicago, who can put their cattle in the markets always cheaper than you can put yours, and who, further than that, can say to you, " Even if we stop at the con- trolling of the rates, we are very sorry, Mr. Jones, but the car equipment of the com- pany is so much taxed that we cannot furnish you cars to haul your cattle to market." Mr. Blair: Is it not a fact that they do compete with the western markets; now? Mr. Braxton: To what extent I do not know, sir. Mr. Blair: And is it not a fact that before the railroads were built they could not compete at all, that they did not have any market for their cattle? Mr. Braxton: I do not think that is a fact, sir. My impression is that they raised cattle there before the railroads were there, just as well as they do now; and my further information is that these people out west can control them and let their cattle go on DEBATES OF THE C0X5TITUTI0XAL COXVEXTIOX OP VIEGIXIA. 2123 the market just to the extent they desire, and control every dollar of profit they make out of them as absolutely as if they were their slaves. Is it not a notorious fact that the great Standard Oil company was built up almost entirely by reason of its control of railroad rates and of railroads, so that no com- petitor could, by hook or by crook, come upon the market except to the extent that they chose to let them come there? When the market was so big that after they had sold all they had and there was some of it left, they vvould say to their competitors, as they do to-day, " You can come in like a poor jackal at the lion's feast and pick up the bones and get what we choose to leave you." I say, gentlemen of the committee, that it is an unhealthy state of affairs, that is an abnormal condition of things; that is a thing which cannot continue without the ruin of this country. That is a thing which men" of independent minds, capable of governing themselves have only themselves to thank for, if they allow it to continue until they all become economic slaves and bondmen. Mr. Chairman, they say "Do not this thing: it will ruin the railroad." And in order to show that it will ruin the railroad, they point you to the Southern States, where such commissions exist, and show you, as they claim — I do not think they suc- ceeded in doing it, but taking them on their ovrn word — that the railroads thrive better there and get more money than they do here. If that be true, vrhy is it the railroads are fighting it to the extent they are? If it be true that the railroads really in their hearts fear this thing, if it be true that they do not recognize in it legitimate and proper legislation, if they fear one-half of the evils which have been portrayed here, is it conceivable that the stocks of these roads — that thing which trembles as delicately in the balance as the scales of a gold refiner — in view of this discussion, in viev/ of the possibility of the passing of this fearfully drastic measure, which is to ruin them all, have never dropped in the market one shade or shadow of an inch, but many of them have gone up in the verj^ presence of what my friend calls this terrible economic test. Does it not show they are trying to scare us with ghosts and goblins? Does it not show that when they are put to the test you will not find one of them, although he says he thinks we are going to ruin him, who will sell his stock for one fraction of a cent lower than the market is and has been for months and months past? I say, gentlemen, therefore, let us not be scared off by these things. Now, Mr. Chairman, I shall try to hasten on. The State has the right and the power to regulate the public service of these corporations. The time has come when that right should be put into effect and utilized, and the question is how shall we do so? This power has existed all along. There is not a power — and I appeal to any lawyer in this body as to the soundness of this proposition — there is not a single power that it is possible for us to clothe this commission or a,iiy other body with that does not exist to-day in the State somewhere. We cannot create them; but it exists without the means of exercising it. The State has never yet provided efficient and proper instrumental- ities and machinery for the efficient exercise of this power. That has been the great need that we have lacked. The Mason bill, like the report of the minority of this committee, was filled with platitudes, that the railroad companies must be just and reasonable, that they must not discriminate, in short, that they must not do anything wrong; but it was absolutely ineffectual in providing any means for carrying out these announcements. Now, the question is for us not to create any new power, not to give the State one iota of control over the railroads that it has not to-day, but to provide suitable machinery and instrumentalities whereby the State and the government can utilize the weapons it has. The Legislature, as has been shown and pointed out in detail, and as has been conceded by my friends on the other side, is utterly incapable of making rates by reason of the nature of its, organization. The courts, as was shown at length by my distinguished friend from Northampton (Mr. Kendall) are also in- 2'424 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. capable of prescribing rates and acting in this matter of fixing rates in advance as an original proposition. It has been conceded, Mr. Chairman, by the public generally, and, as far as I know, it is the almost unanimous consensus of opinion of all reflect- ing men, that the only sort of instrumentality which the wit of man has yet devised for the effective prescribing and fixing of railroad rates is a railroad commission or a corporation commission of some kind. The necessity for such an arm of government did not exist in years gone by, or you would have found provision for it in the Consti- tution of 1776, just as you found provision for the courts, for the Legislature, and for the Executive. If, then, Mr. Chairman, we must have a commission of some sort, two questions present themselves to us: Shall that commission be established by the Constitution or by the Legislature; and, second, if it must be established by the Constitution, which one of the two kinds of commissions, set forth in the report of the minority and the report of the majority of this committee, is the one we will accept? Mr. Chairman, I will address myself to this question: Shall the commission be established by the Constitution or by the Legislature? There are various consider- ations which control us in our decision that it should be established by the Consti- tution. In the first place, in order to make this commission efficient, in order that it may prescribe and fix the rates of railroads, its powers^ as has been held by the United States Supreme Court very frequently, must be legislative. I concede that that court has held in construing the laws of different States establishing commissions, that the Legislature could confer this legislative power upon a commission; but as far as I know, that power to delegate its legislative function has never been passed upon and IS not a settled question in this State, and therefore it is possible that the question might arise as to the power of the Legislature to delegate to the full extent this legislative power, just as was done in Delaware on the question of the local option law. Mr. R. Walton Moore: Has he any doubt whatever, as a lawyer, of the compe- tency of the General Assembly, if the Constitution authorizes it to do so, to delegate full legislative and also full judicial powers to a commission, in spite of the fact that there has not been a direct deliverance on that subject in Virginia? Mr. Braxton: Not the slightest, I think I must have made myself obscure in what I stated. If the Constitution confers power to delegate this there can be no question of their right to do it. I merely suggest that one of the reasons — not the only one, but that one — and possibly the least one of the reasons that we should provide for this in the Constitution is to prevent the possibility of a question being raised hereafter of the right of the Legislature to delegate legislative power in the absence of a Con- stitutional provision to that effect. Mr. R. Walton Moore: Then the gentleman admits that we could remove that reason and that difficulty, by a line or two in the Constitution authorizing the General Assembly to confer powers upon a commission? Mr. Braxton: Yes, sir; I admit that; but I will call my friend's attention to the fact that one swallow does not make a summer, and I hope my friend will not take one admission as a surrender of our entire proposition. If that were all, I say that is true to that extent. Furthermore, gentlemen of the committee — and I know this is a tiresome and dry subject, but I beg you to bear with me, and I will encourage you by telling you this is the last speech, I think, you will hear on this subject from me or any one else — if we wish to make this commission effective, we must give it power to enforce its own rules and regulations under proper supervision and proper check, by way of appeal, and so on. We must clothe it with judicial power; and I say again that for the same reason I mentioned to my friend, it is desirable we should give that power in the Constitution, otherwise we may have the same trouble that was had in Illinois, as my distinguished friend knows, over the Torrens system, that it could not be clothed with judicial power in the absence of a constitutional provision. DEBATES OE THE CONSTITUTIOXAL COXVEXTIOX OF VIKGIXIA. 2425 In the next place, I say we should put it in the Constitution because it is one of the most important branches of our government, if it is to be established. I say it is just as important a thing, as far-reaching in its effect, as essential for the well being of the State, and is therefore just as much entitled to a provision in the Constitution as many of the things that are in the Constitution of Virginia. Wie could have left the establishment of an educational department, of an agricul- tural department, of the creation of the office of Secretary of the Commonwealth and of the Board of Public Works and the prescribing of a homestead exemption, all to the Legislature; but the men who framed our former Constitutions regarded them as of sufficient importance to place them, in the fundamental construction of our govern- 'mejnt; and I say that a corporation commission, if we are going to make it at all, is just as important as any of those, and infinitely more important than mxany of them. Which affects the welfare of the people of the State the most, the establishment of an efficient corporation commission, or the establishment of the office of Secretary of the Commonwealth? And yet the establishment of that office w^as regarded as suf- ficiently important to put it in the Constitution. I saj', therefore, that the importance of the subject entitles it to a position in the Constitution. I say, if w^e are to make it a court, we should provide for it just like we provide for every other court in the Constitution, from that of justice of the peace up to that of the Supreme Court of the State. We have to-day the justice of the peace, the county courts, the city courts, the circuit courts and the court of appeals, all provided for in the Constitution; and yet when we come to establish a court greatlr in dignity, more far-reaching in its powers, more important to the welfare of the State, than any of those courts, w^ith the sole exception of the Court of Appeals, we need no apology for establishing that also in the Constitution of the State. I say that the mere establishment of this is, strictly speaking, along the closest and narrowest lines of Constitution making, absolutely fundamental. It is a part of the outline of govern- ment. We say this government shall have asi its principal officers the Governor, the Lieutenant-Governor, the Secretary of the Commonwealth, the Board of Public Works, which we have had, the Legislature and the courts, and a corporation commission charged with that most important, most vital function of the State, the control of the railroads, whose power and infiuence is more far-reaching upon the people than anything there. So the establishment of it, if we went no farther than my disting-uished friend indicates, to say that there shall be a commission and that it shall have judicial and legislative powers, I say that is fully accounted for by reason of its importance and its nature and character as an essential branch of the government. If we do not put it in the Constitution we will never get an effective one. We cannot get it from the Legislature ; and I warn you, gentlemen of the committee, against the attempt to misconstrue the position which gentlemen on this floor take when they undertake to say that such a thing cannot be effectively done in the Legislature. It is no attack upon the personnel of the Legislature. I submit v^e have as good a Legis- lature in Virginia as exists in any State. It is the institution, it is the way in which it is constructed, its methods of doing business, which makes it a field upon which the people cannot meet the corporations in fair battle arrayed, which makes it a field upon which the railroad corporation has every advantage in preventing legislation, and the people have none in carrying it through. Three times have the people en- deavored to get an effective bill through the Legislature, and three times has it gone down in the Senate, and gone as my friend from Rockingham (Mr. Keezell) says, to that last cradle of death where it is rocked to sleep forever, the Committee on Roads. There is a fact. We have tried it three times and we have failed. The same trouble exists in the Congress of the United States, as pointed out by the Interstate Commerce Commission, that they have again and again attempted it, and there they have met their defeat and their Waterloo every time. Why is that? Why is it we failed three times? Why is it they have never responded to the repeated recommendations 153— Const. Deb. ^'436 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. of the Commission? Wljiy is it when, as was said by the distinguished gentleman from Rockbridge (Mr. Anderson), to-day the necessity for this thing is one thousand times greater than it was ten years ago, still we cannot get any relief? And I ask this com- mittee if there is anything in prospect that would lead us to think there is any more chance of getting an effective one through it hereafter than there has been heretofore? I will tell you some of the reasons w^hy I think it is more difficult to get through the Legislature a provision for an effective corporation commission than in this body. Here is one body of one hundred men. It will take fifty men out of this body of one hundred for the railroad to prevent anything being done that the rest of us want done. The Legislature has one hundred and forty men. Twenty-one out of the one hundred and forty can absolutely block any legislation you want. So that, in or'der to resist the demand for legislation in this body, they have to get one-half of them. In order to resist the demand for legislation in the Legislature, they have to get one-seventh of them, and therefore they are put at over three times the advantage in the Legislature that they have here. That is not all, Mr. Chairman, I will state another reason why I think it is very much more difficult to get this sort of legislation in the Legislature; and mark you this is utterly irrespective of the personnel of the Legislature. It is because of its construction, of its manner of work, and not because of anything else. When you go to the Senate, every bill of this sort is referred to the Committee on Roads, consisting of fifteen men. Eight men control that, and up to four years ago, it would take a vote of two-thirds to get it away from them. The result was that out of these 140 men, eight could absolutely block the legislation. To- day I understand the rule has been changed so that a majority not of those voting but a majority of all those elected to the Senate can get it away from the Committee on Roads. There is another breastwork behind which the railroads not only can fight, but have fought and have fought as successfully as ever men did from an impregnable fortress. I will give you another reason why these railroads, very naturally, wish to take this battleground from this tribunal into the Legislature. We are here for an indefi- nite season. We are enlisted for the war. We are here until we have finished our work, and if you want to discuss it, you can discuss it and discuss it until doomsday, and when it comes you will find us here discussing it, too; but the Legislature has a short session of 90 days; and all you have to do is to hold on and fight for time and delay, and discuss it and discuss it and discuss it and discuss it and wait until to- morrow and to-morrow, and to-morrow! And then when the ninety days comes, you have always got the goal in sight, and say, " If we can hold on until then, we have got them." You will find that the fate of similar measures has been that when they were introduced, there was that same policy of delay and wait and wait and wait, until the last moment and then they offer something new, and bring it in and say: "You have not had time to consider it; it is a new proposition, and you should consider it still further." The Legislature adjourns and there is the end of it, and you kick up your heels for two years more, and have the fight all over again. That is another reason, gentlemen, I say, why the people look to this body, that is organized on a different basis, and which will say to the railroad companies, "We will give you all the hearing you want. We will listen to all your arguments; but you must know that you are not going to run us out here by speaking against time. You must know that you have got to convince our minds and our reasons, and not wear out our bodies." Now, I say, Mr. Chairman, those are some of the reasons, and there are others. Those are the reasons why the hope of all the people of the Commonwealth who want economic reform, all those who have still coursing in their veins that old love of liberty that revolts at the idea of absolute power in the hands of anybody, be he the rail- road king or anybody else, those people whose natural Anglo-Saxon instinct teaches DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE VIPtGIXIA. them to love the rule of law and not of arbitrary- wilL are looking to us for salvation and for the only hope they have to get out of the hands of this utterly economic death. Those are the people who look to us to change that condition of affairs referred to "by my eloquent friend from Norfolk (Mr. Thorn) as the thing which he wishes to per- l)etuate, and under which, as he tells us, ..thirty-eight per cent, of the young men of this Commonwealth have had to flee from their homes and go somewhere else. That is the condition under which we have stood here and seen other States north and south and west of us, vcith not half of our natural resources, grow up and hloom and blossom like the rose, while we are here withering and drying up like a sandy desert. I say the people who want to change that thing, the people who do not want this aondition to remain, are looking to us because they know that here alone is their only chance for relief. They know that if we fail here — and let there be no mistake about this thing — the battle is lost. It is worse, gentlemen, that we had never tried this matter than, having joined in the fight, we should be defeated. Let this matter go down here, let this house turn its back upon it, let the members show they have not the courage of their convictions to write down a law that they think Is right, and the chance of getting it through the Legislature, if slim before, will have vanished from the face of the earth. There you will hear eloquent men talking about the great wisdom of the great Constitutional Con- vention of Virginia, that in its wisdom, after long discussion, decided that a commission should not be established; and our failure to establish it will be taken as a precedent to the Legislature that they ought not to do the thing which this body was afraid to GO, upon which it put the seal of its disapprobation. Xow, gentlemen, furthermore, I ask you if the very same arguments which have been used against the measure here would not apply with just as much force against it in the Legislature? TMiat do they say? They say, in the first place, that there is no occasion for any such commission. If there is no occasion for it, then the Legislature should not adopt it, and they will make that same play to the Legislature. They say say that commercial rates should control. The^* say it will drive away capital. They say it is populistic. They say it is unconstitutional, gentlemen of the committee, if those arguments prevail with us, how much more will they prevail with the Legisla- ture. And we must recognize the fact that if we reject this measure, these gentlemen will say, and they will be largely justified in saying that the very reasons which I have read to you, and which they have used as arguments, were the reasons why we did re- ject it. They will say that we rejected it because we thought it would drive a-^ay capital, because we thought it was populistic, because we thought it was unconstitu- tional, because we thought the time was not ripe for it, and so forth, and so on. It will be almost equivalent to an instruction to the Legislature not to adopt any such measure that will amount to a row of pins. Do not let us deceive ourselves, gentlemen. Xo half-way measures go here. In the slang of the day, this is a " fight to the finish " between the people on one side and the railroads on the other. There is no time for compromising and for postponing the issue. The question has been brought up and is now before 3'ou. Are :rou going to make an effective railroad commission in this State or are you going to lie down to these roads and let them do with you as they please? Listen not to my friends who, with the best motives and best intentions, would say. •'• Let us relieve ourselves of the responsi- bility and put it off on somebody else." We cannot do it. We have either to be whipped out and out. or we have got to whip them out and out, and we may as well know it and know it absolutely. The question before us — and I beg of you to remember this — is not, shall we make it or shall the L-egislature make it, but the question is, shall we make it or shall nobody make it? For I feel a prediction here, and I will call upon every man to witness the fulfillment of it, that if we fail to establish an effective corpora- tion commission here, neither you nor I nor our children after us will live to see the day when such an institution is established in Virginia. 2428 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Now, Mr. Chairman, if we have to put this in the Constitution— and if I am at all acquainted with the sentiment of this body, I believe an overwhelming majority of you agree with me that we ought to put it in the Constitution — ^no half-way bread-and-milk measure, to say that the Legislature must do it will be sufficient. Why, the Legislature knows it must do it. It has known it for years. We have no means of compelling the Legislature to do it, and I do not care how many good men are in there, the smallest leaven of those who differ from them can absolutely defeat their will. If we must put in the Constitution, an effective measure, which one of the two which have been pre- sented to you for your consideration must you adopt, the commission that is established by the report of the majority or that of the minority? I do not know whether my friends who signed the report of the minority have abandoned it. I do not think any- body else has ever advocated it in the two weeks' debate that has taken place on this floor but the two gentlemen who have signed that report. My friend from Wythe (Mr. Blair) said this morning that he did not approve of IL You cannot saddle it on him. and I think my distinguished friend from Fauquier (Mr. Hunton) and my friend from Norfolk (Mr. Brooke), are the only two gentlemen who so far have advocated the adoption of that. They all recognize, as was stated by the dis- tinguished gentlemen from Manchester (Mr. Ingram) that it amounts to nothing more or less than the perpetuation in this State, without hope of remedy, of the system which has proven itself, both in the Interstate Commerce Commission and in our Rail- road commission, to be absolutely sounding brass and tinkling cymbal, and that we had better let the whole thing alone and not mention the subject than to take up these ineffective, insufficient and useless things which have proven to be useless, and estab- lish them in our Constitution. Now, Mr. Chairman, and gentlemen of the committee, I will ask your attention while I go a little more into detail, as my friend from Petersburg (Mr. Hamilton) did, in the discussion of the report of the majority. In order that the committee may be able to follow me better, I should like those who have copies of the bill to keep it be- fore them, so that they can understand and follow my comments. Gentlemen of the committee, you have often heard it said that we go into immense detail. My distinguished friend from Petersburg the other day again and again re- ferred to the 26 pages on this subject. Now, gentlemen, I ask you in all fairness to look at the report and see that it is just as unfair a criticism to say that 26 pages are de- voted to the subject of the railroad commission as to say that the entire Constitution is devoted to that subject. As to the powers of this Corporation Commission, so far as they affect railroad companies, you will find them in subsections B, and C, a little over three pages, under Section 4. I ask you, gentlemen, in considering this matter, to do it analytically, to try not to consider the whole report at one glance of the eye. Let us take it up piece by piece, so that we do not get our minds confused by having different things in our thought that have no connection with each other. In the first place, you will find that the only section in the entire report devoted to the powers and duties and method of procedure of the commission is Section 4, and I ask you that in considering this matter you will dismiss from your minds everything for the present but Section 4. I call your attention to the fact that Section 4, which prescribes the duties and powers and procedure of this commission deals with private corporations and public corporations; but I call your attention to the fact that it deals with them in an essentially different manner. If you will look at sub-section A, you will find that all of the powers and duties which affect private corporations are prescribed in sub-section A. All the balance of it has nothing under heaven to do with private corporations. They are no more concerned in it than private individuals are. All the residue of Section 4, sub-sections C, D, E, and so on, have reference to public corporations. Let us see how it affects private corporations. My distinguished friend from Peters- burg says as he reads it, it gives arbitrary power to this commission to require any DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF TIRGIXIA. 2429 kind of a report it chooses of private corporations, and to exercise inquisitorial powers in spying into their business and exposing it to the public. With all due respect to my friend, I submit that there is absolutely nothing in this report, from beginning to end, that will justify or tend to justify that construction, and that he is absolutely mis- taken in thinking that it does that. Mr. Hamilton: I beg to call your attention to Section 5, and the power there given to the commission to require these reports. Mr. Braxton: My friend misunderstood me. I said the only part of Section 4 which refers to private corporations is subsection A. Now I will read that subsection to you, and I ask the particular attention of the committee to this, as it is a matter of great particularity. Subject to the provisions of this Constitution, and to such requirements, rules and regulations as may te prescribed by law — Now, you see that at the very start it is put entirely subject to the rules, regula- tions and requirements of the law. It is m.ade absolutely in that respect subject to the control of the Legislature — The State Corporation Commission shall be the department of government through which shall be issued all charters and amendments or extensions thereof, for domestic corporations, and all license to do business in this State, to foreign corporations — You will observe, if you turn back to Section 2, that it is provided particularly that the creation of corporations shall be by general law, and out of abundance of cau- tion it says that no authority in such matters shall be conferred upon any tribunal or officer authorized to grant, amend or extend charters, further than to ascertain that the applicants have, by complying with the requirements of the law, entitled themselves to the charter, amendment, or extension applied for. Its powers are absolutely ministerial. It does nothing in that respect except what is done in other States, some times by the secretary of the commonwealth and some- times by a similar commission. When you have a general lav\^ for the issuance of a charter, all they can do is, when an application is made, to see whether the applicants liave complied with the law, whether they have made the proper affidavits, paid the proper tax, or whatever the Legislature may require. Then they issue a certificate to the euect that A, B, C, D, and E, having complied with, the requirements of the law" in such case provided are entitled to a charter for such and such a purpose — not as they see fit but as the law requires; and they have absolutely no discretion in the matter, and their proceedings can be controlled absolutely by mandamus from the courts. I go on: And through which shall be carried out all (he provisions of this Constitution and of the laws m.ade in pursuance thereof, for the visitation, supervision, regulation and control of corporations chartered by, or doing business in this State. In other words, the idea is that all of the dealing of the State with corporations — we do not say v/hat those provisions are; they may be great or they m.ay be less — but whatever they are they must be carried out through some instrumentality, and we say this is the instrumentality through which they shall be carried out. At present the Auditor carries out some, the Board of Public Works carries out some, the Railroad Commissioner carries out some. We merely collect them altogether and say that the Corporation Commission shall do exactly the same thing that other departments of government are doing to-day, no more and no less, except v/here the Legislature may liereafter provide. The said Commission shall prescribe the form.s of all reports which may be required of such corporations by this Constitution or by law. 2430 DEBATES OF THE COKSTITUTIONAL CONVENTION" OF VIRGINIA. Tlie statute to -day is, and the statute has been for years, that the Auditor fixes the* form in which the report shall be made. He had absolutely nothing to do with the substance of it, but when the Legislature says " You must report such and such things," the Auditor to-day says in what form you shall make that report, and the commission, says the same thing, no more and no less. Every report that is made to that commission by a private corporation must be one which is authorized and required by the Legislature, and the only thing the commis- sion can do — this does not prescribe the form in which that appearance must be made— is to see that the report is made, and when it has done that, to file the report and take care of it, and that is the only thing on earth it has to do. I turn to Section 5 again, about reports; and this, as far as I recall, is the only other thing about reports of private corporations: Provision shall be made by general laws for the payment of a fee to the Common- wealth by every domestic corporation upon the granting, amendment, or extension of its charter, and by every foreign corporation upon obtaining a license to do business in this State, as s^lfcified in this section; and also for the payment by every corporation hereafter doing business in this State of an annual fee of not less than $5 upon its charter or license to do business, and for the making — Provision shall be made by the general laws, by the Legislature — For the making, by every such corporation (at the same time, and in connection with the payment of such annual fee), of such report to the State Corporation Com- mission, of the status, business or condition of such corporation — As the commission thinks proper? You will see, on page 15, line 13, it says: As the General Assembly may prescribe. And yet my friend says he thinks that means such report as the commission may prescribe. I ask any man present to look through this thing, to rake through it, to look at it with a microscope, and to put his finger on a thing which gives this commis- sion any power over a private corporation except to issue charters under the general law, to prescribe the form of such reports as the Legislature requires, to see that the reports are made, and to file them when they are made. I pass on now to section 4, and I come to sub-section b. Now, gentlemen, bear in mind this whole commission deals with two classes of corporations, private and public. I have shown you what the extent of its powers over private corporations is. Now, dismiss from your minds the subject of private corporations; and everything I say from this on bears on public corporations, railroads, transmission and transportation com- panies. Sub-section b which is the principal point, prescribes the powers and duties of this commission so far as railroads are concerned. I use the word "railroad" rather than^ the long expression "transportation and transmission companies," and you will knov/ I m^ean that when I say "railroads." Let us look at it again analytically. You will find that, in dealing with railroads, it has power to do two things, which are essentially different; and I ask you to bear this difference in mind. It has power to fix and pre- scribe rates of charges, and it has power to fix and prescribe other rules and regula- tions that do not affect their rates of charge. Now, in order that you may avoid any confusion, I will ask you to separate these two things in your mind, and I will first discuss with you that part of it which author- izes it to fix charges without reference to its power to make other rules and regulations. I will contrast the two so that you may see them. Its right to fix charges is para- mount. It is taken away from the Legislature absolutely. Its right to make any other kind of regulation is ancillary and subject to the paramount authority of the Legisla- ture. DEBATES OF THE COIs'STITUTIOIsTAL CONYENTIOX OF VIRGINIA. 2431 In reference to its powers to make charges, it is the supreme legislative body of the State. In fixing charges and in making any other kind of rules and regulations or re- quirements that you can think of, outside of charges, it is a subordinate legislative body. Mr. Meredith: Do you include classification in "charges?" Mr. Braxton. Yes; I include classification of traffic in the word "charges." In all these other rules and regulations it occupies a position very analagous to the power that is conferred upon the municipal councils of cities and towns. They have the right to pass ordinances, but the right to do it is subject to the paramount right of the Legislature to legislate thereon, and those ordinances must not conflict with the general laws passed by the Legislature. The Legislature can curtail and prescribe what kind of ordinances they shall pass and what kind they shall not pass. Just to that extent the power of this commission to prescribe rules and regulations is subject and ancillary to the power of the Legislature to legislate thereon; and such rules and regulations as it may prescribe, just like the ordinances of a city, must not be in conflict with the laws, rules and regulations that the Legislature may pass. Now, why do I discriminate in that respect? I do so for this reason: The right of the Legislature to fix rates and charges is a right which exists only in theory. As I attempted to point out to you the other day, it is physically impossible for a Legisla- ture to fix rates. It is a matter of too much detail. It is a matter too constantly changing. No Legislature ever did fix rates; no Legislature ever can fix rates or ever will attempt it. Therefore, when we take from them the power to fix rates, we are taking away from, them merely a theoretical power which they are incapable of exer- cising and placing the identical same povv'er in the hands of another body so organized that it can exercise the power. Suppose I say to a man, to use a very homely and crude illustration, "I will arm 3-oti with a sword, but you m^ust tie it to your foot." Yvell, you will say. "I have got the sword; I have the right to use it; it is a valuable weapon; but as long as I can only use it with my foot it is of no use to me. It is true I have it and am armed v/ith it, but I have it so that I can use it only through that limb, and it is impossible, physically, for me to use it." I say to the State: "You have this right to fix rates, but it is tied to your foot. It is restricted, as the law stands now, to the Legislature, and you cannot exercise it. I will take it off your foot, and I will put it in your hand. I will make an arm for you that you can use this weapon yoti have had all along, but which you have had in such a v.^ay that you could not exercise it." I say, therefore, when we are doing a thing which my worthy friend from Winchester says is robbing the great tribunal of the people of their right, taking from them the powers to fix rates — I ask him, when and where a Legislature ever did fix a rate in the world, except a maximum rate, which amounts to nothing, and which my distinguished friend from Fauquier said is the veriest humbug on the face of the earth. I take that pov^er from them absolutely, because they can- not use it; but when I come to the question of prescribing rules and regulations for the railroads other than rates, that condition of affairs does not exist. The Legislature can prescribe and does prescribe any rules and regulations for the railroads which are effective or can be made effective, but there still remain numerous detail, evanescent, shifting, minute rules and regulations, absolutely essential for the protection of the public welfare, but which the Legislature cannot enact because of the rarity of its session. Just like the laws of a town. The Legislature makes many laws that control the people of a town, and they are laws which are effective; but, owing to the conditions there, there are many other minute matters of legislation which the Legislature cannot deal with, and, therefore, without taking the town out of the control of the Legislature, but leaving them paramount, we establish a smaller subordinate and ancillary tribunal to fill up these little places, and enact this minute, this small, this detailed legislation to make a complete and efficient system of laws for the city. 2'432 DEBATES OF THE COXSTITUTIOJ^AL CONVENTION OE VIRGINIA. We therefore here do not take from the Legislature the entire power of making rules and regulations, but we say we will provide in that respect an ancillary, subordi- nate legislative power that, leaving you the paramount control of the whole, can yet make this small and detailed legislation necessary to make more effective the broader rules which may be enacted by the Legislature itself, but in doing so it is left absolutely under the control of the Legislature, just as much as the ordinances of a city are under the control of the general laws of the land. In this respect the powers of this commission to fix rates and to fix other rules and regulations differ. It is the supreme legislative authority in fixing rates. It is a subordinate and ancillary authority in fixing any other rule and regulation; but in both cases, both as to rates and as to rules and regulations, out of abundance ot caution, we have behind it and over it, in review of it, the Supreme Court of Appeals, to which appeals must be taken in every case from it; and I say now therefore in dealing with these railroads we establish a tribunal so constituted as to insure as much as possible efficiency, reliability, integrity and competency. Vv^e put over it as far as it is possible for them to exercise their powers, the Legislature, and we put back of it the Supreme Court of Appeals, and I ask you gentlemen to say what other things have ever been devised in government by the wit of man for the protection of property in any civilized country? And yet it is said we have provided a wild, anarchistic, drastic, destructive, arbitrary tribunal, to do as they choose. Now, I call the attention of the Committee to a further distinction, a distinction with a material difference; and I ask my worthy and distinguished friends who have heretofore differed with me in this matter, for whose judgment and integrity and sin- cerity of purpose I entertain the highest opinion, to patiently bear with me and to see if, after I point out these distinctions, after I call their attention to the relations which the various parts of this section 4 bear to the other parts, they will be able to see it in a light which will convince them that it is built on the most conservative lines upon which it is possible to build it. Subsections B, C, D, E, F, G and H deal with public corporations only, but sub- sections B and C, the first tv'o, are alone fundamental. The residue of them are admin- istrative. Sections B and C prescribe the powers and duties of the commissioner, but the other subsections prescribe merely the method of conducting appeals on the ques- tion of rates. Recognizing that difference between the fundamental section and the administra- tive sections, it is provided that only the two fundamental sections shall be perpetual and that all the administrative sections shall be subject to correction by the joint action of the Legislature and the commission, as I will explain to you further on. When, therefore, you feel inclined to think that all this detail in here is dangerous, bear in mind that that detail is not in the two fundamental sub-sections B and C, but is in the remaining sections, which are purely administrative, which apply solely to the question of appeals to the courts and which, if they should turn out to be unwise, inefficient, un- constitutional, undesirable, can be remedied just as readily as any statute upon the book to-day. Therefore, gentlemen of the committee, when you are trying to consider this report to see if we have put anything in it that is dangerous, that we could not risk as a fundamental thing, limit your investigations to sections B and C. Let us read them now and see if there' is anything dangerous in them. I ask you to observe as I read them, that it has nothing on earth to do with the long and short haul clause, with the polling of freight rates, with the paralleling of railroads. All of those matters are in separate sections, and we can consider them when we come to them; and whether you adopt them or reject them, whether consti- tutional or unconstitutional has nothing to do with the corporation commission. These two fundamental provisions merely establish a tribunal just like we establish the Supreme Court. We do not undertake to say how it shall decide cases. We establish DEBATES OF THE C0X5TITUTI0XAL COXVEXTIOX OF YIEGIXIA. 2433 a tribunal with broad scope of powers, elastic, that are under the control of the Legis- lature and of the Court of Appeals, as I have tried to explain to 3'ou. Now let us see if there are in these subsections B and C anything dangerous to put in there. It is all very well, gentlemen, to go around and deal in generalities and say the report is 26 pages long: without saying what is in the 26 pages, to say it is dan- gerous to put detail in the Constitution. All those platitudes anj^body will agree with. Take the particular paper and put your hand on the particular thing that you say you want stricken out. and let us see if we can agree to strike it out or not. That is the way to discuss it. If you will turn to page 7, line 21, you ^-ill see that subsection B reads: The said commission shall have the power and be charged with the duty of super- vising, regulating and controlling all transportation and transmission companies doing business in this State — In what? In all matters relating to the performance of their public duties and of their charges therefor. I will come to discuss the question as to whether it is dangerous to give them the right to control; but, concerning that, is there anything in detail there, "that it shall have the duty of supervising, regulating and controlling them in the performance of their public duties and of their charges therefor, and of correcting abuses therein." That is in the broadest and most general terms in v/hich you can state it. It proceeds: And to that end — That is, to the end that they may efficiently supervise, regulate and control these companies in the performance of their public duties — the said commission shall, from time to time, preserve and enforce against such com- panies, in the manner hereinafter authorized, such rates of charges, classification of traffic and rules and regulations, and shall require them to establish and maintain all such public service facilities and conveniences as said commission may, within the limita- tions of the constitutions of this State and the United States — And we propose to insert these words there: "And subject to review by the com- mission itself and also on appeal as hereinafter provided" — Deem reasonable and just, which said rates, classifications, rules, regulations and requirements the said commission may. from time to time, alter or amend, and all rates, classifications, rules and regulations adopted or acted upon by any such company, and which are inconsistent with those prescribed by said commission, within the scope of its authority, shall be unlawful and void. I ask you, gentlemen, in all fairness, if that is not dealt with in the most general language. If we are tied down to anything, if the State has the right to prescribe rates, rules and regulations, have we not the right to fix a certain body in the State which shall exercise that right and power? And we simply say that those rights and those powers shall be exercised by the corporation commission, which is organized and constructed with a view of performing that service. The said com.mission shall have a right at all times to inspect the books and papers of all transportation and commission companies doing business in this State, and to require from such companies, from time to time, special reports and statements under oath, concerning their business — I think every corporation commission in the United States, with powers and with- out, have that authority — 2434 DEBATES OE THE CONSTITUTIONAL CONVEXTION OF VIRGINIA. it shall keep itself fully informed of the physical condition of all the railroads of the State as to the manner in which they are operated, with reference to the security and accommodation of the public and shall, from time to time, make and enforce such requirements, rules and regulations as may be necessary to prevent unjust or unreason- able discriminations by any transportation company against any person, locality, com- munity, connecting line or kind of traffic, in the matter of car service, train or boat schedule, or efficiency of transportation, or otherwise in connection with the public duties of such company. Now, I wish to show you how we have thrown around this every provision for the protection of the railroads from the abuse of these powers. This is the amendment which I gave notice of the other day: But before prescribing any rate, charge or classification of traffic for, or making any rule, order, regulation or requirement directed against any one or more companies by name, such company or companies shall first be duly summoned by the commission and afforded reasonable opportunity to be heard thereon. And no such rate, charge, classifi- cation, rule, regulation or requirement shall go into effect against any company or com- panies to be affected thereby until at least ten days after due service thereof upon such company or companies. Mr. Hamilton: What is the necessity of saying "by name," if yo-u propose to give them all an opportunity by citation to be heard. Mr. Braxton: I am very glad to answer the question. It was thought probable, in the opinion of the committee, that certain general rules and regulations affect all rail- road companies; for instance, to illustrate, that every railroad company should open its passenger station twenty minutes before the train comes. That is now a statute; but suppose it had not been a statute, it would have been, under this, competent for the commission to have made such a rule or regulation, and, inasmuch as it applied to all railroad companies now existing or hereafter to exist, it would have been unjust and impracticable to require them to come and show cause against it, as it would be for the Legislature, when it undertakes to enact a statute, to summon everybody who could possibly be affected by the statute to be heard against it. But even in that case — Mr. Hunton: Can they not fix rates in the same way under your amendment? Mr. Braxton: I will endeavor to explain that to the gentleman before I get through, if you will pardon me for not answering just at this moment. If they had made such a general rule and regulation as I mention, without sum- moning the company before they did it, there is still a safeguard, because it is provided in section C that before any company can be punished for its failure to obey any such rule and regulation it shall be first summoned before the commission and shall be given an opportunity to be heard by due process of law as well against the reasonableness and justice of the rule as against the liability or the fact of having violated it; so that, even in that case, they would have their hearing, and back of it all, whether it is a general regulation or a specific regulation, there would still be the appeal in every case to the Supreme Court of Appeals, who w^ould review the reasonableness and the justice of the rule or regulation, as well as the liability of the particular company for violating it. Mr. Hamilton: Do I understand you to say that in the latter part of section C when a company is sum.moned and given an opportunity to be heard by due process of lav/, the reasonableness of the rule violated can be considered under that citation? It certainly is not provided here, and that would not be ordinary practice. Mr. Braxton: Let me read to the gentleman from the bottom of page 9. If you will look at line 84, at the bottom of page 9, you will see it provides that the commission shall have the powers of a court — And to enforce compliance with any of its orders or requirements, entered by it within the scope of its authority, by adjudging and enforcing, by appropriate executive process, against the delinquent or offending company (after it shall have been first duly cited, proceeded against by due process of law before the said commission, sitting DEBATES OE TEIE COXSTITUTIOXAL COXVEXTIOX OE VIPtGIXIA. 2435 as a court, and afforded opportunity to be heard, as well as against the validity, just^ ness or reasonableness of the order of requirement alleged to have been violated as against the liability of the company for the alleged violation). It is pur down ipsissima verba. Mr. Chairman, I hate, after imposing on the committee so long, to ask any further indulgence; but I am very unwell to-day, and I feel very much exhausted by my speech. If it would be convenient for the committee to rise at this time, and let me continue this afternoon, I should be very grateful for the indulgence. On motion of ^Iv. Y\'illiam A. Anderson, the committee rose, and the President pro tempore resumed the chair. AFTER RECESS. The Convention reassembled at the expiration of the recess, the President pro tempore in the Chair. Mr. Stuart: ]Mr. President, I am the bearer of a message from the gentleman fiom Augusta ( Mr. Braxton j to this body to the effect that his physical condition is such as to prevent him from appearing to complete his argument before the Committee of the Whole on the report of the Committee on Corporations. I have just left him, and I am requested to express his regret that the body should have been called together with the expectation of proceeding with the business of the Convention. I therefore move, sir, that the Convention adjourn. The motion was agreed to, and the Convention adjourned until to-morrow, Friday, February 14, 1802, at 10 o'clock A. M. FRIDAY, February 14, 1902. " " The Convention met at 10 o'clock A. M. Prayer by Rev. E. V. Baldy of Manchester, Va. CO RPO RATIO MS. On motion of ?,Ir. Braxton the Convention resolved itself into Committee of the Whole for the further consideration of the report of the Committee on Corporations, Mr. Keezell in the chair. Mr. Harrison: Mr. Chairman, before the gentleman from Augusta begins his re- marks, I should like to make a slight correction of the record in a statement with re- lation to these railroad commission bills in the Legislature. I said on yesterday that one of these bills had passed the House of Delegates at the close of a session after the. Mason bill had been passed and had gone over to the Senate, too late to be acted on. The fact about that is that it was before the Mason bill was passed. Xo railroad com- mission bill has ever passed either the Senate or the House of Delegates since the Mason bill was enacted into law. Some sessions prior to that a bill had been passed by- the House of Delegates and had gone over to the Senate, too late to be acted on by the Senate. In session of lS91-"92 Mr. Kent introduced a railroad commission bill with very large powers. ]Mr. Mason also introduced a bill which is virtually what is now known as the Mason bill. In the House of Delegates at that session the Mason bill was sub- stituted for the Kent bill and sent over to the Senate and promptly passed in the closing days of the session. Since that time no bill has ever passed either house, and the only record in regard to any railroad commission bill at all is with relation to one that was introduced by Mr. Withers in the Senate, where it was referred to a committee, and no effort was ever made to take it away from that committee. That was in 1S95-9G, 2136 DEBATES OE THE CONSTITUTIONAL CONVENTIOX OF VIRGINIA. Ano'ther bill was introduced by Mr. Saunders in the House of Delegates in 1897-98. It also went to a committee in the House of Delegates and was never called up and never brought back to the House of Delegates. That is the history of railroad commission legislation. The statement was made and insisted on here that the House of Delegates had passed three bills since the Mason Bill was enacted into law, that they had been sent over to the Senate and had been turned down by the Senate. Mr. Braxton: I think the gentleman is mistaken;' I did not say that three bills had been passed since the Mason Bill. I was relying on what I had understood the gentle- man from Rockbridge (Mr. Anderson) to say, which was to the effect that there had been three bills introduced in the General Assembly, and my recollection was that he said three had passed the House of Delegates and had not passed the Senate. I did not understand him to say, and I did not intend to say myself that that action had been taken since the Mason Bill. On the contrary, I understood him to say that it was back in the eighties. Mr. Harrison: I understood that that was the course of argument here, and the reason I m_ake this statement is that I said the Kent Bill had passed the House since the passage of the Mason Bill, which is incorrect. Mr. Braxton: Mr. Chairman, much to my regret, I had to close my remarks yes- terday before I had gotten through with what I desired to say to the Committee, and I shall endeavor to bring them to a final conclusion this morning as soon as I can. When I ceased speaking yesterday I was endeavoring to explain to the Committee the general scope of the provisions in the report of the majority of the Committee for the establishment of a corporation commission. I called the attention of the committee to the fact that a very large portion, by far the largest portion of the report had no connection whatsoever with the establishment of the corporation commission, or with the prescribing of its powers or duties, and that a mistake would be made if gentlemen, in thinking that the report had gone too much into detail, would consider that all of the twenty-six pages of the report were detailed with relation to the establishment of a corporation commission. Out of the nineteen sections of that report there are but two sections devoted to this subject, the third and fourth sections. The third section sim- ply prescribes that there shall be such a commission and how it shall be elected or appointed. The fourth section, and the fourth section alone, of all the nineteen sec- tions, undertakes to deal with the powers and duties of the commission, and its methods of procedure. That fourth section is divided up into some six or seven subsections, and of those subsections the first is devoted to the powers and duties of the commission as they affect private corporations. It is only subsections B, C, and the next four sub- sections lettered in consecutive order, which undertake to deal with the powers and duties of the commission as a railroad commission. I wish, in the analysis of this matter, to call your attention further to the fact that of those six subsections — I think there are six — devoted to the powers and duties and procedure of the commission as a railroad commission, only two of them are funda- mental in their character, and undertake to prescribe the duties and powers of the commission. The remaining four have reference to the method of procedure when an appeal is taken from the commission to the Court of Appeals. I wish to call your attention to the fact that those two fundamental subsections B and C, establishing powers and duties, are given more stability and more perm.anency than the remaining four subsections, which are administrative in their character. All of the sections, just as is the case with all parts of the Constitution, may be amended from time to time — by the regular method of amendment, which will be pre- scribed at the end of the Constitution. When gentlemen speak of the immutability of the Constitution you would think that such a thing as an amendment of it was prac- tically impossible and hopeless. As a m^atter of fact there has never been a Constitution in this couatry that has not been amended again and again, that is not susceptible of DEBATES OF THE COXSTITUTIOXAL COXYENTIOX OF YIKGIXIA. 243.7 amendment without any trouble or difficulty. The greatest written Constitution in the world, the Federal Constitution, was amended ten times before it was ten years old. The Constitution we are living under now has been amended again and again, and was amended in two particulars within the past six months. So that it is true that while you cannot amend a Constittion as readily as you can a statute, it is a mistake to imagine that it is utterly hopeless and impossible to amend it; and every single provision of this article, and of every other article in the Constitu- tion is susceptible of amendment by the regular Constitutional method. But, in addition to that, gentlemen — not exclusive of it, but in addition to it — in order to make more easily susceptible the amendment of these four subsections, which are administrative in their character, Ave say that without waiting for the regular, ordi- nary, method of amendment, those four administrative subsections can be readily amended by the concurrent action of the commission and the Legislature. Observe, that when yoti tmdertake to amend the Constittition in any other particu- lar, you not only have the action of the existing Legislature, but it must be supple- mented by the action of the next Legislature, and by the direct vote of the people. Now^ subsection L provides that in addition to that amendment these four administra- tive subsections can be amended b3' the action of the present Legislature, and in lieu of the concurrent action of the next Legislature and of the people, you have the concurrent action of the commission, so as to save time and to say that whenever the commission and the Legislature agree they can immediately, without delay, and 'as readily as you can amend a statute, amend any part of those fotir administrative stibsections. There- fore when we undertake to consider that portion of this report which prescribes the powers and duties of this commission, do not let us take any general and hazy and mixed-up view of this matter and think that because it is a large article it is all on that subject. But let us view it with discriminating eye, and let us see that there are only two subsections, B and C. which undertake to do this thing; and let us see if they eon- tain anything which is dangerous, anything which is unwise, to put into a Constitution. Let me see if I cannot point out to you that these subsections are drawn on the most conservative lines, that they are most elastic, dealing with the most general terms, and subject to adjustment to suit any condition of affairs that, within the range of human probability, will ever occur. Subsection B, which is the most important of them all, in undertaking to give the powers of this commission as a railroad commission, discriminates, as I undertook to point out to you yesterdaj^ between its power to fix rates and its power to make any other regulations. The power to fix rates is exclusively a legislative power. All control of tliat matter is taken from the Legislature because it is a mere nominal thing after all. It amounts to nothing. It is there only a theory. But this power to make other rules and regulations is ancillary and subservient and subordinate to the superior authority of the Legislature, and is very similar by analogy, to the power of the ordinary municipal council to enact ordinances, and over, above, beyond and controlling the whole of it. whether it be fixing rates or otherwise, presides the Supreme Court of Appeals of this State, xAth power not only to review the regularity of the proceeding, but to look into the merits of it, and to decide in each case whether the rate fixed or the rule or regulation made, is a just and reasonable one. In fixing the rates we give this commission not only the legislative power to fix the rates, but also the judicial power to enforce the rates; a matter which I will come to in a moment. There has been some confusion in the decisions of the Supreme Court of the United States as to this question, as to whether it is necessary for the railroad to be summoned and given a hearing before a commission when it fixes its rates, or whether the fixing of the rates by a commission is so purely and strictly a legislative proceeding that they can fix it without giving the railroad a hearing, just as the Legislature does. Judge Thompson, in his well known work on corporations, seems to think that those opinions ^438 DEBATES OF THE COIsTSTITUTIOXAL COXVENTIOIST OF VIRGINIA. of the Supreme Court which have held that the railroad is entitled to a hearing before the commission fixes the rate, are about to be abandoned, and to be overruled, and that the tendency of the court's decision is to say that the railroad, as a matter of right, has no more right to be heard before the commission when its rates are being fixed than it has to be heard before the Legislature. But out of the abundance of caution, gentlemen of the committee, out of an ex- cessive desire to do absolute justice to the railroads, it is provided that they shall have the privilege of a preliminary hearing. I do not care which view the Supreme Court takes, whether they say that the railroads are entitled to it, or that they are not en- titled to it, we give it to them. We say that before the rate is fixed, before any rule or regulation, however trivial, can be made for any railroad company, that company shall first be summoned by the commission and given its opportunity to be heard. Not satisfied with that, gentlemen, we go further, and we say that if, after having so fixed the rate, or the rule or the regulation, and after having so given the company the right to be heard upon it, if the company fails to recognize it and to abide by it, and the commission undertakes to punish them for their failure to do so, the company must be again s.ummoned and again given an opportunity to be heard, as well against the reasonableness and justice or the rate or rule fixed, as on their liability for breaking it. So that they are given two opportunities to be heard on the same question before the commission. Not satisfied with that, v/e say further, that if after these two oppor- tunities to be heard before the commission, you fail in both of them, you can then go to the Supreme Court of Appeals and have the whole matter reviewed again, and have them say whether the commission has been unjust or unreasonable, or has proceeded illegally or irregularly in doing anything which it has done; and we think it is not un- reasonable for us to assume that when the commission, composed as it will be, has said that the rate or rule is a just and reasonable one, and when the Supreme Court has said it is a just and reasonable one, it is fair to assume it is a just and reasonable one, although the railroad company may not think so. As to what is just and what is reasonable, is a matter of opinion after all, and like all other matters of opinion the opinion of the highest tribunals in the land, after the parties affected have been given their opportunity to be heard and proceeded against by due process of law, is the final arbiter to say what is right and what is wrong. We thought, gentlemen of the committee, that it was anomalous, that it was un- reasonable and that it is improper to say that, in these controversies between shippers and the railroad company as to the justice and reasonableness of their rules and rates, one of the parties to that controversy, to-wit: the railroad company should be allowed to pass upon the justice and reasonableness of its own acts, but that that controversy, like every other controversy that can arise between human beings, is susceptible to decision by the courts of the land, and should be decided by them, and that the method and machinery of getting that decision should be arranged in such a way that it can be availed of as a practical thing, and not to represent a mere theory that will do no practical good to any man. Gentlemen, in order to show to you that your committee, instead of being actuated by motives of hostility to the railroads, or by an anarchistic desire to pull down and destroy capital and set up the rule of the proletariat, that we have swept the field of available means to give to the railroad .companies every possible safeguard that the wit of man has as yet devised for the protection of property rights. I wish to show you, re- stricting our consideration now to the question of rates, that when the rate is first fixed this tribunal constituted as we have shown you, first gives them their oppor- tunity to be heard; that after the rate is fixed and when it is attempted to enforce it, the companies have a second opportunity to be heard; that if they are not satisfied they then have a third opportunity to be heard before the highest court in this land, and, furthermore, gentlemen, we say to them that "in order to prevent the possibility of any injury being done, in order to say that we will not touch a hair of your head until DEBATES OF THE COXSTITUTIOXAL COXTEXTIOX OF TIEGIXIA. 2139 you hare the opportunitj- of exhausting every legal remedy that the law ever con- ceived of," v,-e say, "You can continue charging your own present rate without let or hindrance until the final judgment of the matter hefore the Court of Appeals, if you will only do the thing which every other man will have to do, and give a refunding bond to pay back the excess if the Court of Appeals does not sustain your pretension."' So that if the decision of this commission should be unjust and unwise, if it should be populistic and destructive, it cannot hurt the railroad for one minute; it does not interfere with the charging of their rates one iota, until it has been ratified by the Court of Appeals, provided only that the railroad company has enough confidence in the merits of its own appeal to give a reasonable bond to restore and refund to the people any overcharge which it may make, in case its appeal is not sustained. The only difference betw'een us and those who oppose this view, is, when you trace it down to its last analysis, neither more nor less than this: Those who do not wish to give this commission the power of a court to enforce its own rulings, substantially say in effect that, having established a legal tribunal here, for fixing rates, and having afforded you ever^' opportunity to be heard before it, when that tribunal in the discharge of its duties under the sanction of a solemn oath to God to do so without fear, favor or affection, a tribunal that has no interest in the controversy when it has performed its solemn function, and has fixed the rate, they say the law must presume that that rate so fixed by them is unjust, unreasonable and illegal until a court is resorted to to put its approval upon it and say it is just and reasonable; but to say when it has acted in that manner it is but a fair presumption to say that the rates so fixed are just, reason- able and fair until the court has said they are not so; that the presumption is in favor of the justice of the decision of the commission, and not against it. We say it would be just as unreasonable to require the commission to go to the court to enforce its orders as it would be to say that when A and B brought their litigation before a circuit court, and that circuit court, in the performance of its solemn duties, has decided in favor of A and against B that judgment is presumed to be wrong on its face, and to remain an absolute nullity until A, in whose favor its decision had been made, has taken it to a higher court and had it ratified. Was ever such an idea promulgated? We SSLY that decision must be presumed to be fair and just, and if B, against whom it is rendered, is not satisfied, the burden is on him to take it to the court and have ic reversed. Applying that same principle here, we say that after the railroad has been pro- ceeded against, and after the decision of the commission has been rendered, the burden must be upon the person who is not satisfied with that decision to take it to the court and have it reversed, and not upon the man who is satisfied with it, to take it to the court and have it affirmed. We say, in effect, to the railroad, " Having had your rate fi-xed in this way, having given you your time to be heard, you must do one of two things. We have given you every opportunity to take it up and have it re- viewed; you must either avail yourself of that opportunity, 3-ou must either have it re- versed, or you must obey it. You shall not stand here and shake your fingers in the face of the majesty of the State of Virginia, and say T will treat as a nullity a decision, by as high and august a tribunal as this. I will not take the trouble to have it re- viewed by the court, but I will defy it and disregard it until you take it to the court and have it affirmed.' " I say, therefore, gentlemen, it is not only just and reasonable, but it is entirely in line with every analagous principle of the administration of justice that this tribunal's decisions should be, from the date they are rendered, absolutely valid and effectual until they are reversed, and not remain nullities until they are affirmed. Passing on now, gentlemen, to the second thing, the right of the tribunal to fix rules and regulations to regulate and control the railroad companies. I ask you, in the consideration of this matter, to avoid any confusion in your 2-440 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. minds, to dismiss from your minds the question of fixing rates. I have tried to point out to you wherein that is different from this. ~ My friends object very much to the use of the word "control." I listened faith- fully to every word I could hear on that subject, for as God is my judge, I have no desire to do anything that is unjust or unreasonable or unwise in this report. I do not think my mind is biasicd by the pride of opinion. I cannot help but think, if I know myself and my own heart, that I too greatly appreciate the vast importance of the work upon which we are engaged to jeopardize or risk any part of it in order to get any temporary gratification or to carry out some pet idea or theory of my own. I am not only willing but anxious for all the light on this subject I can get'. I have studied, and I listened with the utmost care to everything that was said on this subject to see if it were possible that we were going too far when we used the word "control," and, although it may be the result of my denseness, I am free to say that I have never yet heard anything in the argument to support that proposition. My friends say they are perfectly willing that the commission should be given power to supervise and regulate, but not to control. What the distinction between regulating and controlling is has never been clearly pointed out. How can you regulate a thing you cannot control? But, in addition to that, gentlemen of the committee, this word "control," I may say, is a term ot art. It is, the very word and language that is used by nearly every authority on the subject. Does not the State control everybody in the State? But it does not carry on their business. Is there not a distinction between having authority to control a thing, and undertaking to carry the business out and to manage and ope- rate it yourself. Let us see what some of the authorities on this question say. I will not take up the time of the committee long in a technical discussion, but just to show you that this word is not such a terrible thing as my friends seem to think. It is an old friend. It is a word that is familiar to students of this matter. It is the word used by all writers on the subject. I refer to the last edition of Elliott on Railroads, volume 2, section 674: The system of governing and regulating railroads by commissions is, in most of the States, borrowed ii; the main from the English statutes. The statutes enacted by the State are essentially different in matters of detail, but all are directed to the attain- ment of the £ame general object, namely, the regulation of the duties of railroads as common carriers, and the regulation, management and control of railroads, so far as they are affected by public interests. The. pov/er to establish such commissions is rested upon the general principle that the State has control over property and pursuits of a public nature. It has been said that the statutes create no new or additional duties; but this state- ment as applied to some of the statutes, requires qualification. The principal and lead- ing purpose of most of the statutes is to control and regulate the charges for the trans- portation of freight and passengers, but the provisions of the statutes generally go far beyond the regulation of charges for transportation, and confer comprehensive powers over the maintenance, management and operation of the railroads. Governmental con- trol of railroads in many of the States is exercised through the instrumentality of ofiicers, generally called railroad commissioners. Reading from Second Morawetz on Private Corporations, sections 1073 and 1074: Over the railroad as a highway, and in all its public relations, the State, by vir- tue of its general legislative power, has supervision and control. The Supreme Court of the United States, in Munn vs. Illinois — Held that the fourteenth amendment was not designed to deprive the State of the power of enacting laws in relation to any subject, before the adoption of the amend- ment, was regarded as a proper and customary subject of legislative control; and it was laid down as a general rule that " when one devotes his property to a use in which the public has an interest, he in affect grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use; but so long as he maintains the use, he must submit to the control." DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OF VIRGINIA. 2441 That is the very language of Chief Justice Waite in that celebrated case of Munn vs. Illinois, which has been again and again reiterated as an authority. Taking a case as late as 1896, the Interstate Commerce Commission vs. the Cin- cinnati, &c., Railroad, 167 U. S., Mr. Justice Brewer, who is justly regarded as one of the ablest men on the Supreme Court, again referring to this subject, used this lan- guage: Administrative control over railroads through boards or commissioners was no new thing. It had been resorted to in England and in many of the States of the Union. In England, while control had been given in respect to discrimination and undue pre- ferences, no power had been given to prescribe the tariff of rates. In this country the practice has been varying. I will go no further, gentlemen, to show you that this very identical word " con- trol" is the word that is always used in this connection, that it is not essentially differ- ent from regulating, but that "control," "supervise and control," "regulate and con- tror' are stereotyped phrases used and recognized by all authorities, and the exact Bcope and meaning of them fully and absolutely established. I will go further, gentlemen, and say that, as v\'as said in a case in 173 U. S., the States have no right to take charge of the management and operation of the railroads; that the word '"control" cannot be stretched to include any such meaning as that. So that I take it to be an established proposition that even in this, literal interpretation, if the word "control" could be stretched to mean taking charge and management of the road the court would limit that, because it says it is impossible for us to give any such power, and we could not confer upon them any such povv-er. If we did so by express language, it would be absolutely a nullity. It is a well-known canon of construction that when a word in its literal interpreta- tion can be stretched so far in its meaning as to include things which are" prohibited by the Constitution, the court vv^ill not so far extend it, but will restrict it in its meaning to those things as to which it has a right to have force. Now, therefore, when we undertake to say in so many words that this commission shall have the power of a board of directors to take charge and manage and operate these roads, it would not be worth the paper it is written on, because the Federal Con- stitution says it shall not do it, and that no courts in any country in the world would attribute to us an intention to do a thing which we must be presumed to know we could not do; and the use of this word control" will be limited to what the courts and the text writers have heretofore limited it to, and that is that kind of control which the State has a right to exercise in the nature of supervision and regulation and the pre- scribing of requirements for the road in the performance of its public duties, to see that they are so performed that the public interests which they undertake to serve are not abused thereby. I again call the attention of the committee to the fact that we cannot confer upon this commission any power that does not exist in the State to-day. All power that it is possible for government to have, our State has, except as it is curtailed by the Fed- eral Constitution, and we cannot enlarge it. The most we can do is to take powers that already exist and transpose them from one department of government to another. I care not what language we use, we cannot give this commission one iota of power over the railroads that some department in the State has not to-day; and if these powers which must exist have not been abused heretofore, why do we think they are going to be abused hereafter? Mr. Chairman and gentlemen of the committee, I call your attention to the nature and character of the arguments that have been used along this line. They say that the power is so great that the possibility of its abuse is fraught with such serious conse- quences that the very government of the State should not be entrusted with it. Now, I know my friends do not mean their argument in the way I state it, but I 154 — Const. Deb. 24:4,2 DEBATES OE THE CO^fSTITUTIONAL CONVENTION OF VIRGINIA. contend this is the real meaning of it, this is the only logical conclusion from it, that these powers to operate their roads as they choos.e, to extend or curtail their facilifies for transportation as they choose, to refuse to carry freight when they want to hy simply saying they have not cars enough, to charge whatever they choose, to use all the possible abuses that we know it is possible to use with the great powers the rail- road companies have, to pull down whom they choose and to build up whom they choose, to destroy whole communities whenever they see fit to do so — that all of that vast power controlled and unlimited by any practical mealis of controlling it or limit- ing it should be left to the arbitrary discretion and caprice and avarice of the men who manage the railroad companies, and that we should trust ourselves to the vain hope that they will not abuse them, that it is not to their interests to abuse these powers, and that they will use them justly and reasonably. And yet they say that they will take the chance that a railroad will not abuse these powers that they are not willing to leave to the government but they are not willing to take the chance that govern- ment will not abuse them. I say if they are abused they had better be abused against the railroad'? and m favor of the great mass of people rather than against the people, and in favor of the railroads. If arbitrary power is to be lodged anywhere, it should be lodged in government, and not in any corporation or private individual or collection of individuals. But I say further, gentlemen, it is absolutely absurd fo talk about the government undertaking to destroy the railroads. Everybody recognizes that the railroads are far and away the greatest physical handmaidens of civilization that has ever existed, but as I stated the other day, like fire and water, though most valuable servants, they are absolutely ruthless and destructive masters. In the case of Reagan vs. the Farmers' Loan ,& Trust Company, in which the validity of the Texas Railroad Commission was being questioned, these same things were said, that these powers should not be trusted to any branch of government unless that branch was so organized that it v/as practically impossible to exercise them. That same argument met with a stern rebuke at the hands of the Supreme Court of the United States when the judge said it was wrong, ahsurd to assume that the govern- ment was going to abuse its powers in that way; that that could be applied to the establishment of everything in government, government itself implies force and power of coercion, and that force and that power implies and carries with it necessarily the power of destruction, if it is absurd. The great Chief Justice Marshall said that the v/ell-known power of taxation was the povv^er of destruction. You might say that the government shall not be allowed to tax because they might tax you out of existence. Shall you say the Court of Appeals and no other tribunal shall have the right to pass on life and death because forsooth they might hang any man whetherte was innocent or guilty? Are you to abolish the whole system of jury trial because' possibly a jury may be actuated by ignorance, fraud or caprice? If we are to have a government, gentlemen, that government must be administered by human beings like ourselves. We must suppose they will govern themselves by the same motives. We must not assume that whenever we put power in their hands., with every check upon that power, that the wit of man can devise, they are going to band themselves together for the destruction of their own country and of every interest therein. In this case to which I refer, the same Justice Brewer, uses this language: The argument is in substance — This was an argument against conferring any of these powers upon the railroad commission of Texas. The argument is, in substance, that railroad companies are bound to submit to the rates prescribed until in a direct proceeding there has been a final adjudication that the rates are unreasonable v;hich final adjudication, in the nature of things, cannot be DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE VIEGIXIA. 214:3 reached for a length of time; but meanwhile a failure to obey those regulations exposes the company, for each separate fare or freight exacted in excess of the prescribed rate, to a penalty so enormous as in a few days to roll up a sum far above the entire value of the property; that even if in a direct proceeding the rates should be adjudged unreasonable, there is nothing to prevent the commission from re-establishing rates but slightly changed, but still unreasonable, to set aside which requires a new suit, with its length of delay; and thus, as is claimed, the railroad companies are tied hand and foot and bound to submit to whatever illegal, unreasonable and oppressive regula- tions prescribed by the commission. That was the argument against it; but, says the learned Justice: It is enough to say in respect to these matters, at least so far as this case is con- cerned, that it is not to be supposed that the Legislature of any State or a commission appointed under the authority of any State, will ever engage in a deliberate attempt to cripple or destroy institutions of such great value to the community as the railroad, but will always act with the sincere purpose of doing justice to the owners of railroad property as well as other Individuals. I make that same answer here; but I do not ask my friends on the other side to rest satisfied with that answer. In Texas it appears that the railroads have no means of suspending the regulation of charges prescribed by that tribunal, the conunission, but when the commission fixes a rate, the railroad must adopt it until they have it re- versed. We prescribe here that when the railroad appeals, it can give a suspending fund and go on charging its own rate and cannot be hurt until the Court of Appeals has acted upon it, provided that they have to refund if they fail. I call your attention, gentlemen, to the fact that the railroads were complaining of the very identical thing that ihey have themselves so sucessfully worked through the instrumentality of the Interstate Commerce Commission. That Commission has no power to fix a rate, but merely to denounce it; and although 20 cents might he a reasonable rate, and the railroad was/«iiarging 50 cents, after years of litigation and piles of money being spent in having the oO-cent rate declared unreasonable, the rail- road would turn around and charge a 49-cent rate, and you would have to begin at the bottom and go all over it again; and they are failing and refusing and protesting against the possibility under the most improbable circumstances, of having to take one single drop of that medicine that they have been thrusting in large handfuls down the throats of the suffering people of this country for years gone by. Now, gentlemen, as to these rates. I wish to call attention to a distinction which it seems several of my friends failed to observe. As I pointed out to you, all the rules and regulations except the fixing of rates that can be made by this commission are subject to the general supervision and paramount power of the Legislature. Some of my friends got the provisions of subsection L mixed up with that, and thought the Legislature could not enact any of the rules, regulations and provisions unless the commission joined in with them; but if you will read it you will see that subsection L has no reference in any way, shape or form to the power of the Legislature to pre- scribe the rules or regulations for the government of railroad companies. Subsection" L has only reference to the power of the Legislature to amend the admlnstfative sections of this Constitution; and I say if you never amend this Constitu- tion, if you are never called upon to put section L into effect, under the very language of the Constitution as we make it now, without any amendment b}' virtue of subsection L, the absolute power, the paramount and supreme control of the. Legislature over all rules, regulations and requirements of railroads, except in the matter of rates, is left as it is to-day, and they can legislate on that subject without any consent or inter- ference of the commission in any way, shape or form. In making these rules and regu- lations they are no more required to get the consent of the commission than they have to get the consent of the town council of a town before they can pass any general law to affect them. They are absolutely untrammelled in the smallest particular in that 4 2444 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. respect, and therein we have trusted them with the power of absolutely tying up the hands of this commission, as to rules and regulations of the railroad, except in the matter of charges and classification of traffic. Mr. William A. Anderson: I wish to ask you to explain the effect of that limita- tion as to whether it does not tie the hands of the General Assembly so that it cannot pass any act inconsistent with any other provision of this Constitution except those in the sections designated in the subsection. Mr. Braxton: If the gentleman will indulge me I will endeavor to explain that point. Gentlemen, suppose we strike out subsection L absolutely. Let us see what the effect will be, and then we can see more clearly what the effect is when we put it in. Omit subsection L in your minds just for the present. Assume that, and v/hat would be the effect? The effect would be that no part of this Constitution could be amended even in the administrative sections except by the regular method of amending a Con- stitution, but that the Constitution, even in all those administrative sections, as well as in the fundamental ones, would have to remain the law of the land until they were amended by regular constitutional provisions of two consecutive Legislatures and a vote of the people. Now, suppose they never amended it, and we take it just as we have it here. If you will turn to page 8, towards the latter part of subsection B, you will see this lan- guage : The authority of the said commission, subject to review on appeal, as hereinafter provided, to prescribe rates, charges and classification of rates for transportation and transmission companies shall be paramount, but — Mark you — But if authority to prescribe any other rutes, regulations or requirements for such companies shall be subject to the superior authority of the General Assembly to legislate thereon by general lav/s — Now, assume that subsection L is not in there at all, can there be any question — • and if there is, I will be glad to change the expression of the language — that that means exactly what it says; that the entire power of the commission to make any rule, regulation or requirement other than that fixing charges is subject to the superior authority of the General Assembly to legislate thereon. What is that superior author- ity? It is what it is to-day. You look in vain through here to find anything showing that the Legislature has not and will not continue to have the same authority which exists in it to-day to legislate by general laws as it chooses. Mr. Robertson: .-Following up the question that the gentleman from Rockbridge asked you, I should like to know how the Legislature could control this commission in some special case. As I understand, they can make the general laws? Mr. Braxton: Yes, sir. Mr. Robertson: Prescribing general regulations. Suppose this commission, in the exercise of those powers of regulation outside of the rate-making power, should require the Southern Railway company, for instance, to furnish greater facilities in the way of freight cars, which did not apply to anything except the Southern Railway; how could the Legislature, even though that were an unwise and an unjust exercise of power, control this commission in respect to a particular matter of this kind? Mr. Braxton: I am sure of that, and in answering I will endeavor, as far as I can, to give my friend the information, if I can do so, because I am sure he is only actuated by a sincere desire to understand this matter. The power of this commission — I may repeat myself a little, but I do so in order to get a consecutive line of thought — to make any of these rules and regulations is very much like the power of a town council to enact ordinances. It is possible for the DEBATES OE THE C OXSTITUTIOXAL COXVEXTIOX OE YIRGIXIA. .2445 Legislature to intervene at any moment at any time that a town council undertakes to enact unreasonable and an unwise ordinance and say, '-You shan't enact this particular ordinance." It is presumed from time to time, as experience may demonstrate, gene- ral laws will be enacted which will so hedge about the power that it cannot be greatly abused, and so I assume from time to time, if there should be any danger — and I think there will not be — the power of this commission to enact rules and regulations of the kind which my friend indicates will be hedged about by general statute. But suppose before that thing is done, before it can be done, the commission goes to work and passes an unreasonable or an unjust or an unwise regulation for the regulation of the company, then I say the company has for its protection the Supreme Court of this land, to say whether that rule or regulation is reasonable, just and legal. If it is not, it falls to the ground, because the action of the commission will be reversed by the Supreme Court: but if the commission itself thinks in its wisdom that rule is just and reasonable, and if the Supreme Court of the land in its wisdom thinks it is just and reasonable, I say that is all the criterion we can apply to it to say that as a matter of fact it is just and reasonable, and that the railroads will have to comply with it be- cause they concede they must comply with it if it is just and if it is reasonable. But beyond and above all that I will say to my friend you have the Supreme Court of the United States. If we invade either through our courts, through our commission or through our Legislature, or all of them combined, any of the rights of this company which we have not the power to invade or the right to invade, the Supreme Court of the United States will protect them in it. Therefore, in answer to my friend's question, I say to him that if this commission should undertake to enact any such rule or regulation as he suggests, the question arises at once, is it a just and reasonable one, or it it not? If it is not, the Supreme Court sets it aside, and it is a nullity. If it is, the railroads themselves admit that they ought to follow it. Mr. Robertson: I understand that the amendment you offered the other day pro- vided for an appeal. Mr. Braxton: Yes, sir. Strictly speaking, the Legislature cannot remedy a par- ticular and specific abuse. They can pass a law which will say they shall not repeat it, or a law which will rescind it, but of course they cannot remedy the thing after it is done; but like everything else, the action of the court is retroactive, the action of the Legislature is prospective. The Legislature acts to prevent injury in the future. The court acts to correct the injuries in the past; and therefore I shall say in the specific case the Legislature cannot offer the remedy; the remedy would be in the court. But to prevent a repetition of that injury the Legislature could pass general laws that would prevent the repetition of it. Mr. Robertson: To that extent it is not like a city council, which passes an ordi- nance applicable to all people within the same class. What I want to get at is how the injustice that might occur under that can be corrected by these general laws. You tie the Legislature down to general laws, but you allow this body, that you say you propose to give legislative power to, in place of the Legislature, to pass the most specific kind of laws in reference to the operation of some particular railroad. Mr. Braxton: I will endeavor to answer that in this way: Suppose the specific powers which my friend spoke of just now existed in the commission, requiring a specific number of trains to be run. I myself think they ought to have the power not of saying exactly how many trains shall be run, but of requiring the road to render efficient service to the people along the line of it. But suppose I am wrong about that. The Legislature would pass a law saying that hereafter the corporation commission shall not have power to prescribe the number of trains that any road shall run. Sup- pose it consisted in an act of this sort, and in order to make myself a little clearer, I will have to state a somewhat absurd proposition, btit merely to accentuate my view: The Chesapeake and Ohio Railway Company some years ago adopted the color of 2446 DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIEGIXIA. orange to paint all of their property— their section houses, depots, cars, etc. Suppose this railroad commission would be so absurd as to pass a rule saying the Chesapeake and Ohio Railway Company is required to at once paint all of its property olive in- stead of orange, what would be the remedy for that. In the first place, they could not pass that ordinance until they had first summoned the railroad company to show cause against it. In the second place if a railroad refuse to obey it they would have to summon the railroad company again, and it would be again given an opportunity to show cause against it. If the commission persisted in the order, the railroad company could go to the courts and could make this defense in the court, "This rule and regulation is an unjust and an unreasonable one. It undertakes to affect us in a duty in which the public has no interest. It cannot pos- sibly affect the public, whether our cars are painted orange or olive, and therefore the commission in passing this regulation passed one that was unjust and unreason- able, and did not affect us in the performance of our public duties." The court would set it aside. Now we come to the Legislature. If the Legislature thought there was any danger of that absurdity being repeated, they could not make a particular act to remedy that particular case, because the court must furnish a remedy for what has already been done. The Legislature can furnish a preventive for what may be done. The Legislature would pass a general law. "Be it enacted, that hereafter the railroad commission shall have no power to pass any ordinance or rule or regulation of any railroad company prescribing the color that it must paint its cars; " and, not only would the railroad company get the specific relief, but the Legis- lature would prevent the possibility of that trouble ever arising again. Mr. Robertson: Would not that defeat the object of this law, if the Legislature passed a general law which prohibited them from exercising the power? Mr. Braxton: No, sir. My friend will remember that I stated that while v>^e put them over and above and beyond the Legislatvire in the matter of fixing rates, we left them absolutely at the mercy of the Legislature in the fixing of any other rule or regulation except that, in the hope and belief that the Legislature would not abuse that; and we took from the Legislature the power to fix rates simply because it was a power v\'hich it was impossible for them to exercise. I will concede, as I have said again and again, that if the Legislature chose to do so, it could absolutely tie up the hands of this commission as to its power to make any rule or regulation about a railroad company except its rates or charges. I felt we could risk it, for the reason, as I stated before, that the power of the railroads to de- feat affirmative legislation in the interests of the people, was very much greater than their power to enact legislation against the interest of the people, and that when we have once established this and put it into effect, I did not believe the Legislature could ever be so manipulated, imposed upon, tampered with or befooled by the railroads as to under- take to tie up their hands and affirmatively take from the commission a power which experience may show it was wise to give them; but if they abuse that power in any respect, the Legislature is left entirely supreme, and with all the power it has to-day. So I say it is a mistake to imagine that the railroads are in any danger from this power to regulate and control them; that we have the courts behind them to correct any evil that may be done; and we have the Legislature behind them to prevent any evil that may be done in the future. Mr. Parks: If the gentleman will permit me, I desire to call his attention to the fact that the section in the legislative report prohibiting special legislation in refer- ence to wharves, ferries, bridges, roads and turnpikes was stricken out and is not the law now. ]\Ir. Braxton: I say the Legislature would correct it if in the nature of things it was possible to correct it. Mr. Kendall: I would suggest to my friend that the decision in the case from which he quoted, in 153, U. S., shows that the Supreme Court would set its hand upon any possible abuse by the commission of the power granted to it. LZEATE5 or THE COZN'STIirTIO^'AL C02^"TZ^"TI0^' OP VIHGIXIA, 2^47 Mr. O'FIaheriy: I Tvish to ask the chairman of the coi:inii"ee this c-iestion: If this provision should be adopted, as it is now reported on page 7, in case the com- mission in its discretion should see fit to say that a certain nmnoer of trains should he run from the city of Staunton to the city of Alexandria, passing through the to^m of Front Royal over the Southern railroad, &c., a route with which you are acouainted, and they should say that the facilities and conTeniences of the peopie of the Shenan- doah Valley reouire that a certain number of trains -htu:-: he run, and that com- mission should say that that number of trains shouii ::~ run, could the Legisla- ture turn around and say that this commission could not regulate the number of trains; and whether, that being tr-ie in a specific case, it would be true in any other case. Mr. Braxton: I —ill answer my friend by saying that in the first place I think the authorities are absolutely orerwhelming that the power is in the State to recuire any railroad to operate enough trains along it to properly ser~e the public that is tributary t.o that road. That power -^hich is in the State we place in the hands of this commission as an efficient arm of the State to exercise that power, subject to all the restrictions and provisions and safeguards I have attempted to point out. Because we have the right to make reasonable rjles and regulations for the number of trains run, it does not follow that we have the right arbitrarily to make unreasonable or unjust rales for it. K in the case my friend suggests the commission sho'uLd say that a given road should run a certain number of trains, the question would arise at once, hi that a reasonable exercise of that power, or is it an unjust and unreasonable exer- cise of it? If, after two hearings before the commission, that railroad could not pre- vail on the commission to think it was an abuse and an ^unreasonable reg^jLlation, it could go to the court, and if it is not satisfied with the courts here, it can go to the Supreme Court of the ITnited States, and if the commission and the Supreme Court of our State and the Supreme Court of the United States unite in saying that the requirement as to the number of trains is reasonable and just for all practical pur- poses, it would be considered reasona:' . yist, whatever it may be in the abstract. The remedy there would be throuin inr courts, not through the Legislature, but as I attempted to show just now, if the Legislature, from experience, thought this power of prescribing the number of trains was a dangerous one to leave to the com- mission, and should be retained for themselves. It would be perfectly in the nower of the Legislature to enact a law that hereafter and from this time forth the commis- sion shall not have power to prescribe the number of trains that any railroad shall run, but so far as that is concerned, and the regulation of the number of trains is concerned, we, the Legislature, will retain that to ourselves: and if the commission did abuse its powers, the particular abuse could be corrected by the court, and the repetition of it could be prevented by the Legislature. Mr. O'Tlaherty: I wish to say to my friend that while I understand his answer, I cannot agree that it is true ijnder the language here; and if that is what the com- mittee intended, I should like very much to make it so plain that there can be no doubt about it. The language on page 7. subsection b, is "and shall require them to establish and maintain all such public service facilities and conveniences.'" That gives them absolute power, it seems to me, and the Legislature could not interfere with it. Mr. Braxton: I will say to my friend that in construing this instrument, just as in construing every other instrument, you must read the whole of it and construe it altogether, one part of it regulating, limiting, expounding and explaining the other part, and that you cannot pick out an isolated sentence and undertake to constme the eSect of the instrument by the language used there, and ignore subsequent language which is put there to limit and restrain. If we stopped at the part that my friend refers to, his criticism might be trie, but if he will turn over one single page, he will find that this power, which cn page 7 is given to them to make ail these regulations and rules, is said on page S to be subject to the paramount power of the Legislature to legislate thereon by general laws. ^'448 DEBATES OF THE CONSTITUTIONAL CONVENTION" OF VIRGINIA. Mr. Thorn: I wi&h to ask whether your argument as to the reasonableness of these requirements applies under the language of your provision where the test is not made the reasonableness of the requirement, but what the commission may deem to be reasonable. Mr. Braxton: I have treated it in an interlineation. Mr. Thom: I hope you will call attention to it when you reach it. Mr. Braxton: Mr. Chairman, as they say in France, let us return to our mutton. I do not mean to say I could call the gentleman from Rockbridge (Mr. Anderson) my mutton; but let us go back to the question he asks as to subsection L. I have endeavored to point out to you that if subsection L were not in there, this unlimited power of the Legislature to legislate on these subjects remains. I hope I have been able to make myself clear. I will not go over that. If that be true, with subsection L eliminated, how far does the insertion of subsection L change it? Look at subsection L and you will find that it has no reference in the world to the making or rules or regulations for railroad companies. It is nothing m.ore nor less than an ad- ditional method of amending a certain part of the Constitution. Making rules and regulations for the railroad companies does not involve an amendment of the Consti- tution because the Constitution on its face says they can do it; but if any part of these four subsections which are administrative in their character, and which apply to ap- peals to the Court of Appeals, should be found to be inefficient or unsatisfactory, they can be amended by the provisions of subsection L, and that requires a concurrence of the Corporation Commission in lieu of the concurrence of a second Legislature and a vote of the people. Instead of curtailing the power of the Legislature, it enlarges the power of the Legislature. It provides a means whereby the Legislature can amend that por- tion of the Constitution, which but for that they did not have before. If I did not put in the clauses which my friend refers to at the end of subsection L, they might, in amending these sections, put in something which would operate as an amendment of the other parts of the Constitution, which I do not propose they shall be allowed to amend. Therefore I say in amending these four sections, they shall so amend them that the amendments shall not conflict with any permanent part of the Constitution which they have no right to amend. I trust I m.ake myself clear to my friend. Mr. William A. Anderson: I understood the section to mean exactly what the chair- man of the committee states is his construction of it, I think it has that effect, and that this article, if adopted, cannot be amended by the General Assembly or changed toy the General Ass.embly in any other way or as to any other extent than is prescribed in that section. Mr. Braxton: Now, Mr. Chairman, my friend from Norfolk (Mr. Thom) referred to the fact that a recent decision of the Supreme Court had had the effect to curtail the effectiveness of certain words in the long and short haul clause, as we have it in this connection. I beg again that you will not confuse in your mind the long and short haul clause, nor the paralleling of railroads clause, nor any other clause, with the clause establishing the corporation commission. It has no more to do with the establishment of that commission than any substantive statute that the Legislature may pass has to do with the constitution of the Court of Appeals. This is a tribunal we are establish- ing for the enforcement of these substantive provisions; and whether those substantive provisions are modified, added to or subtracted from, the tribunal which is established for the enforcement of them remains unimpaired. But, as my friend has referred to it, I will call your attention to the effect of it. The long and short haul clause as we had provided it, says in effect that, without the consent of the commission, no greater sum or charge should be made for hauling over a shorter than over a longer distance along the same line and in the same direction, the shorter being included in the longer, whether the longer distance was entirely within the State or not. It was the opinion of many gentlemen that that provision was com- DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. 2U9 petent; that we did not undertake to say what their charge should be over the interstate haul, but leaving them to fix that charge for themselves, we simply said that the charge on their shorter haul, that was entirely within the State, should not be greater than on the longer haul, that was without the State; just as I would say to my friend from Hichmond, if I wished to employ him as my counsel, " You may charge my friend from Rockbridge what you choose. I do not care what you charge him. I simply stipulate that you shall not charge me any more." That is not controlling the charge he puts on the gentleman from Rockbridge. It simply says, " Be that charge greater or less, you shall not charge me any more." We say in this report that we cannot control your interstate charge; we leave it to you to make it what you choose, but when you have made it, you shall not charge more for hauling in the State than you shall charge for hauling on the lines both in and outside the State. I will state to the committee that, at the time that provision w^as put in there, the question arose and was discussed us as to whether it was com- petent to do it. At that time it was res Integra; it was a question which had never been determined before. Some thought it could be done, and some thought it could not be done. All agreed that if you put it in there it miight do good and could not do harm; that if the court should hold that both long and short haul should be in the State, the insertion of this provision whereby we had attempted to include an interstate line in the long haul would not affect the efficiency of the provision, but would simply have the effect of saying that, so far as it applied to an interstate haul, it was unconstitutional, but so far as it applied to intra-State hauls, it would remain constitutional. Since that report has been filed, the case of the Louisville and Nashville Railway Company vs. Eubank has been decided by the Supreme Court, on the 27th of January, a few days ago, and that court, by a divided court, held that both the long haul and the short haul should be in the same State: but at the same time it reiterated an opinion it had rendered just a week before, that the Kentticltv' Constitution, which it was then construing, remained as good, a va,lid and an effective provision as to hauls, both of which were in the State, and was invalid only as to the part which extended beyond the State. By adopting the provision v\'e did adopt, we put ourselves in the position to get the advantage of the decision if it had been otherwise, and we ran no risk of losing any- thing it should be decided as it turned out to be. No less distinguished men than Jus- tice Brewer and Justice Gray, of the Supreme Court, dissented, in a most vigorous opinion, and held, as I myself and many others on our committee thought ought to have been held, that the long haul might be an interstate haul as well as an intra-State haul; but that did not invalidate this provision at all. It merely curtailed the effect of its operation, and left it just as valid and just as effective as if vre had not put it in there; but, in view of the fact that the matter is now settled, is no longer an open question, it would be useless to leave in an expression as to whether the long haul was entirely in the State or not, and as mere surplusage your committee will recommend that it be stricken out. Now, Mr. Chairman, one thing more. My friend from Norfolk, in pomtfng out the dangers of undertaking to do anything in this line, because, forsooth, you might make a slip, says that there were no less than five drafts of this measure made before it was finally agreed upon. I have never known an accurate calculation of it made, but I will say in general that, as to the suffrage plan which was finally agreed upon by the Com- mittee on the Elective Franchise, there were probably five hundred drafts made before it was finally agreed upon. My friend from Norfolk turned entirely around from the position he first took upon it, and, having at the origin of it made a most urgent appeal, such as we all know he can make, for one doctrine, ultimately, upon maturer consider- ation and further thought, he concluded he was wrong and made one of the most power- ful appeals I ever heard in my life in support of exactly the opposite doctrine. Now, is there a man on this floor who would get up and say that because of that he is incapable of legislating, that that bespeaks a mind so uncertain, that he knows so 2450 DEBATES OF THE C0>^STITUTI01^AL CONVENTION OE VIRGINIA. little of his own mind, that the whole subject of suffrage should be left to the Legisla- ture because it is a dangerous thing to deal with? I think not. I say, sir, there never was a paper made that was worth perpetuation, either as a Constitutional enactment, or as a statute, that was given birth to, as my friend says this should have been, like Minerva, springing full-armed and full-fledged and ready for war, right from the mind which first conceived it. ,Who ever heard of anybody sitting down and writing off a Constitution and its being adopted on the first draft of it? Have we not been here for eighf or nine months studying, debating, modifying our views— a living illustration of the fact that we must work out all of these provisions with study, with thought, with reflection, and that we must modify them as our views are modified. But does that mean that, because we cannot immediately, in five minutes, dictate a Constitution to the typewriter, that we should therefore give up the whole thing in despair? It is useless, gentlemen, for us to argue on that. They talk about the legislative detail. What is more important than suffrage, the proper settlement of which constitutes the basic foundation of our government? What could be more disastrous to any State than a mistake in the basic law which fixes its suffrage, and yet on that all-important, that overwhelmingly important feature, my friend not only puts in a constitutional provision, but he goes into the very infinitude of detail as to how it shall be carried out and as to how it shall be enacted. But when it eomes to prescribe powers in general terms for a railroad commission, they say we can- not risk making the slightest possible mistake in it; that we should not do anything more than, with bowed head and bated breath, to venture to suggest that in some future time the Legislature might, with fear and trembling, approach this holy object and en- deavor to "bell the cat." Gentlemen of the committee, it has been said that we are multiplying officers and increasing the burdens of the State. If you will look at section 5, you will see that the work of the commission will not only pay its own expenses, but will in all probability create an additional revenue over that which we now have. It provides that every corporation doing business in the State of Virginia, whether it be domestic or whether it be foreign, shall, once a year, pay the small fee of $5 for the privilege of renewing its license to do business. I am told by the late Secretary of the Commonv/ealth, that while there can be no accurate figures on the subject, to the best of his belief, and he thinks he is substantially correct, there are from seven to ten thousand corporations in the State of Virginia, domestic and foreign, either actively engaged in business or who, for some purpose of their own, are keeping alive their charters. Five dollars a year per corporation cannot hurt the weakest of them; it is no burden upon them, and yet, if the figures of the Secretary of the Commonwealth are approxi- mately correct, it will yield to this State, without interference with its general scheme of finance, from a source from which the State never heretofore has gotten a cent, from thirty-five to fifty thousand dollars, which will be the direct result of the work of this commission; and at the same time this commission will be engaged in collecting and keeping valuable statistics and information as to the corporate status of this State, of which we are now absolutely in need, and which the Committee on Finance and Taxa- tion will tell you was the greatest obstruction they had in providing any measures look- ing to legislation affecting corporations. They were absolutely in the dark, and they did not know what the corporate status was. While it is getting out such statistics which every State ought to have, while doing the v/ork which this commission is intended to do, it will be earning its living, it will be paying and supporting itself entirely without the cost of a cent to the people of this Commonwealth, and in all probability laying up an additional revenue of from fifteen to twenty thousand dollars a year from sources from which revenue was never gotten before. Now, one more thing, and I am through. It is said, or broadly intimated, that we DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OE VIE&IXIA. 2451 dare not do this thing, that we dare not put anything in the Constitution that the rail- roads will oppose, because, forsooth, the railroads will come here and defeat the Con- stitution. Has the time come, gentlemen of this committee, when Virginia men will fail to legislate and make laws for their own government for fear the railroads will come down and defeat those laws? I say, gentlemen of this committee, to take a more practical view of it, this State, as you all know, is divided by the Blue Ridge Mountains into two great divisions which are exceedinly different one from another in their material interests and in their con- ditions. But few negroes live west of the Blue Ridge mountains, and while you and I may know that the negro question affects the State at large, the mass of the people who do not see the negroes around them do not appreciate the fact; and I tell you now, and I believe the great majority of my associates from west of the Blue Ridge mountains will sustain me in this, that the people west of the Blue Ridge mountains are not par- ticularly interested in the negro question. You want them to agree to submit to or adopt a Constitution which will necessarily restrict the manhood suffrage of that part of the State as well as this part, in order tc? relieve the great incubus of negro domina- tion in the East, and I heartily concur with you in this. But I tell you, gentlemen, that those people are not going to make a sacrifice to cure an evil which they do not appre- ciate, unless you give them the thing they are in need of, that is economic reform. That is a thing that interests them more than suffrage. They want their taxes limited and reduced. They vrant some restraining hand put upon the railroads that will keep the railroads from throttling the development of our country by saying it shall develop just so far and just to the extent we choose to permit it to develop." They want some re- straining law put upon the railroads that will limit to some extent their power of taxing the people; that will enable branch lines to be built, if the people want to build them, with the assurance that the trunk lines will have to give them justice in their rates and their connections; that will enable the men who have coal and iron on their land to sell ii to others and to get their products to market, whether, in the opinion of the railroad magnates, the markets justify it or not. Those are the reliefs which the people west of the Blue Ridge want. That is where the shoe pinches them. They have the most beautiful garden spot of the world, and they do not wish to be controlled by those railroad magnates. They want those shackles struck off that they may go ahead like the young giants that they are. And I say you will find they will submit to a curtailment of manhood suffrage only if you will give them relief along the lines they wish, and they demand it, and instead of this provision being a weight upon the Constitution, it will be a buoy, it will be a cork, to save it. It will be a recommendation to the people to adopt it. It will enable us to go to the people west of the Blue Ridge mountains and say to them, "We ask you to adopt this Constitution to relieve us of negro suffrage, but, at the same time, to relieve both you and us from railroad domination and tyranny." That will be something to recommend it to them. That is something that will make them come out and vote for it. You will find that if you do not do this thing, the very taxes which you now think you are going to raise out of the railroads, will be raised out of your own people. A year or two ago, in order to raise funds to conduct the Spanish war, the Federal Govern- ment laid internal revenue taxes on various subjects, and among others it put a tax upon express companies, and I ask you, gentlemen, how much of that tax did the express companies ever pay? They deliberately went to work and passed it over to their cus- tomers, and made every man who shipped an express package pay the tax on it, by mak- ing him furnish the stamp for it, and just as surely as that was done, just so surely will il be done again if you raise the taxes on the railroads, as you think they ought to be raised, in this State, unless you have some restraining power over their charges on local traffic — just so surely will they pass it on to the heads of the people who deal with them in their local business, and we v,-ill be paying those taxes ourselves. It is said, however, that the local traffic is but a small percentage of the entire 2-152 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. traffic of the roads, that the great bulk of it is interstate business. While it is true that the great bulk of the business of the railroads is interstate, the very large percentage of the business of the people of this State is intrastate. The percentage of our business that is interstate is very much greater than the railroads would make out, because a great part of the interstate business of the railroad comes from out the State and passes through the State and does not affect us in any way, shape or the other. The coal that comes from West Virginia which is shipped abroad through Newport News, and the business that comes from the South and goes through Virginia to the North, does not concern us, but that constitutes the great bulk of the railroad business. The busi- ness that we can control is the business of the State of Virginia, the intrastate business, and that is a large percentage of the business of the people of Virginia. Mr. Chairman, I thank this committee most sincerely and most cordially for the patience with which they have given me their attention, and before leaving this subject, I must commend to your favorable consideration the long, faithful and laborious work of my associates on the subcommittee on Corporations, under the most adverse and dis- couraging circumstances, while the local press was ridiculing them and making fun of them, and predicting sure and dire defeat, being held up to public scorn and ridicule, and being called anarchists and theorists, they have worked on and on and they have not spared themselves, but they have labored, and they have given their time, and they have laid before you an instrument which they think worthy of your consideration, an instrum-ent which we verily believe will proclaim the dawn of a new era in this State, which will strike off the shackles which have kept us in the rear of the procession of prosperity, and which, if adopted, will enable this State once again to assume its high position in the vanguard of modern life, which is its birthright. Mr. Chairman, let us not be scared off by the threats of attacks by plutocracy upon us. I am not a pessimist. I do not believe the time has come that, like dumb, driven cattle, we must bow our head to the yoke. I do not believe that the manhood of old Virginia can be so scared off by the threats of railroad interference as to prevent our adopting laws which we believe to be for our good. But: if it were true, sir, that God, in His providence, has made us fall upon such evil days let us not survive it, but, like good men and true, worthy of the traditions we have inherited, if we must surrender our in- dependence let us die like good men, with our faces to the foe. Let us never, without a struggle to prevent it submit to the effort of the strong power of the railroad or any other set of men to deprive us of our liberty. Mr. Chairman, I believe if the good people of this State know — and they will know; they will be told — of this threat to come here and corrupt us and prohibit us and prevent us from adopting a good Constitution unless it suits the railroad companies, they will rise in their might and it will be utterly impossible for any such nefarious attempt to be put into effect here. Mr. Chairman, for myself I will say that I have no feeling of hostility towards rail- roads, or anybody else, as long as they act properly and within the rules of propriety and justice and of law. It is true that I am not a railroad attorney, but in the course of my life I have never had much occasion to litigate against them. Nothing that I know of has ever occurred in my own life to make me particulary love or hate them. God knows I am not appealing to any damagogic sentiment, for, as God is my Judge, I ask no more reward for my labors in this Convention if they are thought to be worthy of reward , than to be permitted to return to those cool, sequestered paths of life for which I feel Nature intended me, and along which I hope I may spend the residue of my days. We have endeavored, without fear, favor, or affection, with a full appreciation of the work we have had to do, to frame such a provision that right and justice and equity and law shall be permitted hereafter to rule in this State, where unbridled financial and economic license, where arbitrary will and caprice have held undisputed sway, and if the fruit of our labors will permit us to see the fruition of that hope I can, with a heart full DEBATES OF THE COXSTITUIIOXAL COXVEXTIOX OF VIEGIXIA. 2453 of thanks to God for His mighty goodness in enabling us to effect this welfare for our State, say to my old Committee on Corporations who have worked and labored with me from fourteen to eighteen hours a day for days and weeks and months gone by, "Go home and rest; the long day"s work is done." (Great applause.) CORRECTION OF RECORD. Mr. Stuart: Mr. Chairman, I rise to a question of personal privilege. I submitted some figures on Wednesday going to show a discrimination against the producers ol live stock in Virginia and in favor of Western producers of live stock. I used figures which I obtained at the office of the railroad commissioner of this State, which were handed to me and which were in the handwriting of the clerk of that office, Mr. Akers. My argument and deductions were based upon those figures which were submitted to me, and which I had a right to believe were authentic. Just at that point, I desire to say that Z\Ir. Akers claims to have misunderstood my inquiry. My only comment on that is that Mr. Akers' recollection and mine are wholly and irreconcilably at variance, but I think it but proper to state that he claims to have misunderstood me. Now, from those facts and figures ^ased on those rates obtained from the railroad commissioner's office, I showed those discriminations amounted to $15.70 per car on live stock against the producer in Southwest Virginia and in favor of the producer in the West. I have Deen since informed by some gentlemen representing both the Norfolk and Western Kailway and the Chesapeake and Ohio Railway that on the 13th day of October, 1900, after the cattle shipping of the year 1900 was over, a joint rate was agreed upon between the Norfolk and Western Railway and the Chesapeake and Ohio Railway of $>55 per car, which was a through rate from Southwestern Virginia points to Newport News on export cattle. I wish further to state, in all fairness and in perfect fairness, the exact facts, and all the facts, in this connection. I must say that this rate w^as one which the people of my section of the State had not been apprized of, so far as I know. The fact is the people down there have been selling their entire product for export to the large dealers of Chicago and New York. The time was when they shipped their own product, and it was then that the producer was brought face to face with the rail- road authorities, and it was then that this discrimination that I complained of did exist, and, I am prepared to say continued to exist until the 13th of October, 1900. Now^ about this time the large shippers of Chicago engaged, for a series of years or a term of years, all the cattle carrying trans-Atlantic steamers plying between Newport News and Liverpool and London, and it was almost contemporaneous with that transac- tion that this rate was reduced; and I say it was reduced without any public knowledge, so far as I am informed, and I try to keep posted on things affecting my own business and the business of my constituents. I do not charge it was secret; but I do say it was not generally known. It was not known to me, and I would say further, if I may be allowed to be somewhat personal, that my own products were sold last year in igno- rance of that change, and on the old freight rate basis. To whatever extent I shonld be held responsible for my own ignorance on that point, it is still a fact that I did sell in ignorance of the change. The new^ rate was put in force and in effect simultaneously almost with the taking of the trans-Atlantic steamers, by the large Western shippers. That rate was presumably obtained by the influence of Western shippers, who have many means of leverage on railroad companies which the people themselves, unor- ganized and disorganized, have not the advantage of. I am sure that the change of rate was made almost simultaneously with the taking over of these trans-Atlantic steamers. If was reduced from $70.70 a car to $55 per car, or I should say, to be perfectly accurate, 27J. cents per hundred on actual weight, which would be $55 per carload of 20,000 pounds. That is the present rate, as I have been informed, since I made my state- 245i DEBATES OF THE COXSTITUTIOIs^AL COXVENTIOI^ OE VIEGIXIA. ment on this floor. So that the railroad companies instead of discriminating against Southwestern Virginia to the extent of $15.70 per car, are now discriminating against those products to the extent of $5 a car, instead of $15.70 per car. I have stated the circumstances as fully as I have the information at hand to state them. I trust I have done fairness to the railroad companies, and that in stating all these facts that I have presented to the Convention, such a view of the question as will give an intelligent understanding of it. Mr. Thom: Before the gentleman takes his seat I would like to ask him a question Do I understand that his remarks apply to the joint rates between the Chesapeake and Ohio and the Norfolk and Western. Is it not true that the Norfolk and Western Rail- way has rates to Lambert's Point from Southwestern Virginia of $50 per car, irrespective of weight, and that ordinary cars carry about 26,000 pounds, and that that makes the rate 19 cents and a fraction, instead of 27 cents and a fraction? Mr. Stuart: I was under the impression that that was the case until yesterday. Mr. Thomi: I have been informed that was the rate. Mr. Stuart: 1 understood that they have put in a rate of 25 cents, which is the exact duplicate of the Chicago rate. I do not understand that as to export cattle there is any such advantage -as you mention. I understand it to be the exact duplicate of the Chicago rate, so far as the Norfolk and Western and their terminals are concerned. If i am mistaken I would say that the information was given to me by a gentleman very familiar with the subject. At any rate, I do not complain of any discrimination now being exercised by the Norfolk and Western railway toward the cattle shippers of South- western Virginia. I think that is ample to express my views. However, while I am on my feet, and some what responsible for this question, I will say that the Norfolk port' has never been of any value to us for the purpose of shipping cattle abroad. It has been brought to my attention that very lately two or three car- goes of cattle have been taken from Norfolk, and that they intend to make a shipping point there for export cattle, and have trans-Atlantic steamers call there and if that is done the shippers from Southwest Virginia will be placed on an equality with the ship- pers in the West. Mr. Braxton: I move that we proceed v/ith the report of the committee, and that we take up Section 4 first, as that is the one we have been discussing and dispose of that by subsections. The motion was agreed to. The Chairman: The Secretary v/ill read subsection A of Section 4. Sec. 4. A. Subject to the provisions of this Constitution and to such requirements, rules and regulations as may be prescribed by law, the State Corporation Commission shall be the Department of Government through which shall be issued all charters and amendments or extensions thereof, for domestic corporations, and all licenses to do busi- ness in this State, to foreign corporations; and through which shall be carried out all the provisions of this Constitution and of the laws made in pursuance thereof, for the visitation, Siupervision, regulation and control of corporations chartered by, or doing business in, this State, The said commission shall prescribe the forms of all reports which may be required of such corporations by this Constitution or by law; it shall col- lect, receive and preserve such reports, and annually tabulate and publish them in statistical form; it shall have all the rights and powers of, and perform all the duties now devolving upon, the Railroad Commissioner and the Board of Public Worksi, except so far as they are inconsistent with this Constitution or may be hereafter abolished or changed by law. The Chairman: If there are no amendments to offer to subsection A, of Section 4, the Secretary will read subsection B. B. The said commission shall have the power, and be charged with the duty, ol! supervising, regulating and controlling all transportation and transmission companies DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE VIEGIXIA. 2455 doing business in this State, in all matters relating to the performance of their public duties and of their charges therefor, and of correcting abuses therein by such companies; and to that end the said commission shall, from time to time, prescribe, and enforce against such companies, in the manner hereinafter authorized, such rates of charges, classification of traffic and rules and regulations, and shall require them to establish and maintain ail such public service, facilities and con»reniences, as the said commission may. vrithin the limitations of the Constitutions of this State and of the United States, deem reasonable and just, which said rates, classifications, rules, regulations and require- ments the said commission may, from time to time, alter or amend, and all rates, classi- fication, rules and regulations adopted or acted upon by any such company, and which are inconsistent with those prescribed by said commission, within the scope of its authority, shall be unlawful and void. The said commission shall also have the right at all times to inspect the books and papers of all transportation and transmission com- panies doing business in this State, and to require from such companies, from time to time, special reports and statements under oath concerning their business; it shall keep itself fully infoiTned of the physical condition of all the railroads of the State, as to the manner in which they are operated, with reference to the security and accomodation of the public, and shall, from time to time, make and enforce such requirements, rules and regulations as may be necessary to prevent unjust or unreasonable discriminations by any transportation company against any person, locality, community, connecting line, or kind of traffic in the matter of c-ar service, train or boat schedule, or efficiency of transportation or otherwise in connection with the public duties of such company. The authority of the said commission (subject to review on appeal as hereinbefore provided) to prescribe rates of charges and classification of traffic for transportation and trans- mission companies, shall be paramount; but its authority to prescribe any other rules, regulations and requirements for such companies shall be subject to the superior authority of the General Assembly to legislate thereon by general laws; provided how- ever, that nothing in this section shall impair the right of any city or town, by its municipal authorities to prescribe the rates of charges to be observed by any public service corporation for all services performed by it, under a municipal franchise granted by such city or town, and within the limits of the city or tov>-n granting the franchise. Upon the request of the parties interested, it shall be the duty of the said commission, as far as possible to effect by mediation the adjustment of claims and the settlement of controversies, between transportation or transmission companies and their patrons. 'Mr. Thorn: I move to strike out the first 41 lines of that subsection, down to the \^'ord the," and to insert in lieu thereof the language I have prepared. I will tempo- rarily suspend making this motion to allow the Chairman to make some amendments which he desires to make. Mr. Braxton: By the kind permission cf my friend from Norfolk, I desire, on behalf of the Committee on Corporations, to offer some interlineations here, which we think will make a little clearer some of the provisions. The first is in line 34, after the words '■'United States" to insert these words: And subject to review by the commission itself and also on appeal, as hereinafter provided. And that a parenthesis be placed, beginning in line 33, after the word "may." and ending in line 34, just before the word "'deem," so that the parenthetical clause will then read as follows: (Tv'ithin the limitations of the Constitutions of this State and of the United States, and subject to the review by the commission itself and also an appeal, as hereinafter provided.) There the parentnesis will close. I move that that insertion be made at that point. The amendment was agreed to. Mr. Braxton: Now, in line 35, after the word "rates" insert the wor^ "charges," and also in line 37, after the word "rates" insert the word "charges." I move those insertions be made. The am.endment was agreed to. Mr. Braxton: Now, Mr. Chairman, in line 59, by misprint, the word "hereinafter" 2456 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. was printed "hereinbefore." I desire to have that correction made. It should be- " hereinafter." If necessary, I move that that correction be made. The amendment was agreed to. Mr. Braxton: In line 66, at the top of page 9, strike out the word "of" between the word "right" and the word "any," and insert the word "which." Also insert the words "might otherwise have" after the word "town" at the end of line 66. So that, as amended, it will read: "Provided, however, that nothing in this section shall impair the right which any city or town might otherwise have by its municipal authorities," and so on. The amendment was agreed to. Mr. Braxton: Then I will offer that amendment that has been read by the Secre- tary, to be placed between lines 57 and 58, which is as follows: But before prescribing any rate, charge or classification of traffic for, or making any order, rule, regulation or requirement, directed against any one or more companies by name, such company or companies shall first be duly summoned by the commission, and afforded reasonable opportunity to be heard thereon. And no such rate, charge, classification, rule, regulation or requirement shall go into effect against any company or companies to be effected thereby until at least ten days after due notice thereof upon such company or companies. I offer that as an amendment at that point. Mr. Hunton: Is an amendment to that amendment now in order? The Chairman: I think it is in order. Mr. Hunton: Then there is one amendment which I desire to offer to that amend- ment. You will observe that that takes away from the commission the right to enter any order against any particular railroad company, without giving it an opportunity to be heard, but leaves it, at the same time, within the power of the commission to enter any general regulation as to rates that will bind these companies, if it does not apply to them by name. Now, my amendment is to strike out the words "by name." It is in the third line. Otherwise, the whole effect of the amendment is done away with, and it gives the commission power to make and enforce these regulations as general rules and regulations so long as you do not apply them to any one company by name, but the instant you apply them by name, you have to give them notice. Now, it seems to me that that destroys the whole effect of the amendment, and that it is nothing but reason- able and fair and right, that when you undertake to pass regulations that apply to these common carriers, whether it is by name or by a general order, that they ought at least to have the right and the privilege to be heard as to the reasonableness or unreasonable- ness of that order before it is entered. Therefore I move to strike out the words "by name." Mr. Braxton: 1 regret that I can not agree with my friend from Fauquier in the propriety of this amendment. There are some rules and regulations which It will be desirable for this commission to make which are of a general character, and it will be utterly impossible to summon every railroad that can be affected by it, before the com- mission before such regulation can go into effect. Then, again, suppose you give notice to all the railroads in existence, how are you going to apply that regulation to the rail- roads that may thereafter come into existence. For instance, suppose a rule and regula- tion of this character were made: That it shall be the duty of all railroad companies to post up on a board notice of the fact that any train was late, whether that train Is on time, or notice of the time of arrival and leaving of trains, or that every railroad com- pany should keep its depot office open twenty minutes before the train leaves, for the selling of tickets, or any one of numerous general regulations of that sort; how would it be possible, as a practical thing, to summon all the railroad companies now in exis- tence, or which may hereafter come into existence, and give them a hearing before that could be enacted. It might be practicable to summon aAl of those now in existence, but DEBATES OF TPIE CONSTITUTIONAL CONVENTION OF VIRGINIA. 2457 if you did that, then you could never enforce it against any new railroad without giving it notice and a hearing. I think it as impracticable as I illustrated, awhile ago, it would be for the Legisla- ture before enacfmg a statute of a general nature to summon everybody as they come into being, to show cause against the enactment of it. Before any general ordinance can be put in force as to any company, under the provisions of subsection C, they v/ill have to be summoned and given a day in court to show cause against the reasonableness of it. That is all the protection I think they need. But to say you must summon every company in the State before you can origin- ally make such a general regulation I think would be impracticable and would go far to make the power to enact such regulation nugatory. Every rule and regulation v^^hich they can make that would particularly affect any company or a limited number of com- panies by name, sucn as rules and regulations about where they shall put in sidings, where they shah put up depots, whether their supply of cars is adequate for general purposes or not, w^ould be directed necessarily against particular companies, and they will be summoned and heard, but where the regulation is a general one I say it is im- practicable to summon them. Mr. Hunton: Can they not fix rates under this general provision? Mr. Braxton: If they fix rates, they must fix them as to specific roads with refer- ence to special features and so on, and you cannot prescribe any rate except in a very vague, general way, such as by prescribing maximum rates. Before a rate can be en- forced against them they must be summoned and given a hearing. It seems to me that these provisions ought not to be so limited that as to general provisions such as I have indicated, such as opening the ticket ofiice before trains leave, for instance, that they must summon all railroads, and that then when a new corporation is organized they must summon that one, hold a hearing and re-enact the old regulation. I hope therefore that the amendment offered by the gentleman from Fauquier will not be adopted. Mr. Hunton: Mr. Chairman, I think the proposition of the gentleman from Augusta (Mr. Braxton) is not tenable. I think his suggestion, that if you strike out the words " by name " you would have to give nam^es before passing and making these rules and regulations as to railroads that were not then in existence cannot be maintained. It seems to me there is nothing clearer than that by striking out the v/ords. "by name" you would be compelled to give notice to the railroads then in existence, and to no others, and that when others came into being, they would come into being subject to the rules and regulations that had then been adopted. My objection to the words "by name" are that you will give to the commission the absolute power to fix the rates, as well as all other rules and regulations govern- ing and controlling these transportation companies, without giving the companies an opportunity of knowing that this is being done, and without giving them the oppor- tunity to be heard. It is true that you subsequently give them the right to complain of the rule or regulation, but it seems to me that v/hen you are going into these regula- tions to determine whether they are just or not, the companiesi should be summoned prior to the commission having fixed its mind and having adopted a rule or regulation. It is a very diflicult matter to get a court to change its opinion when it has once decided a question, and I say it is unjust and unfair. The gentleman says it would be impracticable to fix the rates. Why, suppose this commission in its wisdom or unwisdom should determine that all the rates of all the railroads should be 10 per cent, lower than their schedule rates and their published rates, at that date; would there be any practical difficulty in summoning the roads of the State of Virginia, either by actual service of process or by publication, so that they may come here and have a fair hearing before these general rules, and regulations are adopted; and whenever there is to be a change that is to apply to all the roads in the State, they should be given the same right to a hearing as to the reasonableness or 155 — Const. Deb. 2458 DEBATES OF THE CONSTITUTIONAL CONYEXTIOX OF VIRGINIA. unreasonableness of these rules and regulations. I say it seems to me pre-eminently unjust and unfair to permit this commission to fix the rates, and all the rules and regu- lations governing these corporations, without at least giving them the right and the privilege to be heard prior to any act by this commission fixing these general rules and regulations. Mr. Thorn: Mr. Chairman, while my attitude towards this general article is of course, fully understood, I feel it to be my duty to make the suggestion which I am about now to make. I think that with the amendment in its present form there is great doubt about the constitutionality of that whole subsection. There is no requirement under the terms of this law or notice. It is not sufiicient that notice may be given, but to make a provision of law constitutional which affects the private right of others, the law must absolutely provide notice. Now no notice is provided, when the commission may evade it by simply omitting the name of the company to be affected; and I throw that matter out for the consideration of the committee. Mr. Braxton: Mr. Chairman, I should be very glad to meet the views of my friends from Fauquier and Norfolk if I could possibly see my way clear to do it, but it seems to me, Mr. Chairman, if we strike out those words "by name," we make it practically im- possible for this commission to adopt any general regulation or make any general re- quirement of corporations whatsoever. I will try to explain. If the rule or regulation is limited to transportation com- panies, then before any general regulation, it matters not how simple it may be, can be carried into effect, you will havd to serve notice on every "company, trustee or other person owning, leasing or operating for hire a railroad, street railway, canal, steamboat or steamship line, and also any sleeping or parlor car company, freight car company, car association or car trust, express company, or company trustee or person in any way engaged in business as a comm.on carrier." Every one in the State would have to be notified, and if you did not notify them, the entire regulation might be illegal and void, if there was a single one you had overlooked. If it was a simple requirement — because this applies to requirements of all sorts — pre- scribing the form of the report, you would have to summon every corporation in the State of Virginia that could possibly be affected by it, of all sorts, kinds and descriptions and serve process on them before the simplest requirement could be made by this commis- sion in the simplest matter, otherwise the entire requirement might be illegal. It seems to me if the requirement is of a general nature, it is also impossible to serve a notice on people to be affected by any requirement of a general nature, because it is beyond the possibility of man to ascertain every human being and every company in the State of Virginia, who can possibly be affected by it. I feel that none of those require- ments will be such as to injure the companies. It is only those which are directed to the companies specifically that they can be specifically summoned to answer. Where the requirement is general, in view of the fact that it is impossible to serve a general notice on everybody, before that requirement can be enforced against them, they have their day in court, as it were, to object to it; but if you say that in all those general cases you cannot make any requirem.ent until you have served it upon everybody, you practically cut off from the commission the power of making the simplest general re- quirement as to these corporations, even as to the making of the annual report or any- thing else ; and I cannot help but think that the difficulties which my worthy -friends seem to think exist, do not in fact exist. Mr. Thornton: Would the committee be willing to let the words suggested by the gentleman from Fauquier be stricken out in so far as they refer to the first line? That is to say, let it read. "But before prescribing any rate, charge or classification, &c., and then come back and have it read, "and make order, rule or requirement against any one or more companies by name," so as to let the rates, classifications and charges be made in a general way, while permitting it to make all rules, orders or requirements, without requiring the notice, unless they shall be applied by name. It seems to me that DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIEGIXIA. 2459 would cover the suggestion made by the gentleman from Norfolk. Mr. Braxton: There would be no objection to that, and I suggest that the object would be accomplished by inserting the words "for any company," after the word "traffic" in the second line, so it will read this way: "But before prescribing any rate, change or classification of traffic, for any company or before making any order, rule or requirement, directed against any one or m.ore companies by name," &c. Mr. Chairman, I offer that in the form in which it now appears. The Secretary: The member from Augusta (Mr. Braxton) proposes to add after the word "company," in line 57, the following: But before prescribing any rate, change or classification of traffic for any company, or before making any order, rule or requirement, directed against any one or more com- panies by name, such company or companies shall be first duly summoned by the com- mission and shall be afforded reasonable opportunity to be heard thereon, and no such rate, classification, rule or requirement shall go into effect against any company or companies to be affected thereby until at least ten days after due notice thereof upon such company or companies. The member from Fauquier (Mr. Hunton) proposes to strike out of the third line of the amendment the words "by name." The Chairman: The question is upon the amendment to the amendment offered by the gentleman from Augusta. The amendment was agreed to. The question now occurs upon the amendment of the gentleman from Augusta as modified. Mr. Thom: I now offer the amendment suggested a moment ago, to strike out from sub-section B of section 4, from the beginning of it, commencing at line 21 and end- ing in the middle of line 41, and to insert in lieu thereof the follov\^ing'. The said commission shall, in addition to such powers and dutes as may be con- ferred by law, have the power and be charged with the duty of prescribing, supervising, regulating and enforcing, in the manner hereinafter authorized, reasonable rates of charges and classification of traffic of all transportation and transmission companies doing business in this State, which said rates and classifications the said commission may, from time to time alter or amend, and all rates and classifications adopted or acted upon by any such company which are inconsistent with those prescribed by said commission, within the scope of its authority, shall be unlawful and void: Provided, however, that any such company, in the absence of any rate or classification prescribed by the commission, in respect to any matter, may itself fix a reasonable rate or classifi- cation a^ipiicable thereto, subject to the future action of the commission thereon: And provided further, that the said commission, before prescribing, fixing, altering or amend- ing any rate, charge or classification for, or making any order affecting, any such com- pany, shall first duly summon such company, and afford it a reasonable opportunity of being heard thereon; and no such rate, charge, classiffication or order shall go into effect against any company to be effected thereby, until a reasonable time after due ser- vice of notice thereof on such company. The object of that amendment is to confine the constitutional duties of this com- mission to the matter of fixing rates, charges and classification of traffic, and to the following. The said commission shall also have the right at all times to inspect the books and papers of all transportation and transmission companies doing business in this State, and to require from such companies, from time to time, special reports and state- ments under oath, concerning their business; it shall keep itself fully informed of the physical condition of all the railroads of the State, as to the manner in which they are operated, with reference to the security and accommodation of the public, and shall, from time to time, make and enforce such requirements, rules and regulations as may be necessary to prevent unjust and unreasonable discriminations by any transportation company against any person, locality, community, connecting line, or kind of traffic in the matter of car service, train or boat schedule, or efficiency of transportation or other- wise in connection with the public duties of such company. 2460 DEBATES OF THE COXSTITUTIOXAL COXVENTION OF VIEGINIA. Cutting out the power conferred by the article as it stands upon the commission to require transportation companies to establish and maintain all such public service facilities and conveniences as the said commission may within constitutional limits deem reasonable and just. The power which it is the purpose of this amendment to exclude from this commis- sion is one that has been conferred upon no commission anywhere, so far as I am advised. I have before me the Constitutions of several States. The Constitution of California in that regard gives the following powers to its commission: Said commissioners shall have the power, and it shall be their duly, to establish rates of charges for the transportation of passengers and freight by railroad or other transportation companies and publish the same, from time to time, with such charges as they make; to examine the books, records and papers of all railroad and other trans- portation companies; and for this purpose they have pov/er to issue subpoenas and all other necessary processes to hear and determine complaints against railroad and other transportation companies; to send for persons and papers; to administer oaths, take testi- mony, and punish for contempt of their orders and processes, in the same manner and to the same extent as courts of record, and enforce their decisions and correct abuses through the medium of the courts. In other words, there is a constitutional power in the commission appointed by the State of California to deal with the question of rates, but not to deal with the question of the number of trains, the number of cars in the train, the schedules thereon, the physical facilities to be provided, including side tracks, spurs, and any other matter that comes within the general definition of "public facility." So that the State of California, by its Constitution, confers no such power. The State o'f Georgia has this provision in its Constitution: The power and authority of regulating railroad freight and passenger tariffs, pre- venting unjust discriminations, and requiring reasonable and just rates of freight and passenger tariffs are hereby conferred upon the General Assembly, whose duty it shall be to pass laws, from time to time, to regulate freight and passenger tariffs, to prohibit unjust discriminations on the various railroads of this State, and prohibit said roads from charging other than just and reasonable rates, and enforce the same by adequate penalties. The State of Georgia has no such power as is hereby proposed to be stricken out. The constitutional provision of the State of Kentucky is as follows: The powers and duties of the railroad commissioners shall be regulated by law, and until otherwise provided by law the commission so created shall have the same powers and jurisdiction, perform the same duties, be subject to the same regulations, and receive the same compensation as now conferred, prescribed and allowed by law to the existing railroad commissioners. So that the State of Kentucky has no such provision. In the State of Virginia the Legislature can make changes upon the recommendation of the board. The State of Louisiana has in its Constitution the most drastic provision which has come under my notice. It is as follows: The power and authority is hereby vested in the commission, and it is hereby made its duty, to adopt, change or make reasonable and just rates, charges and regulations to govern and regulate railroad, steamboat and other water craft, and sleeping car, freight and passenger tariffs and service, express rates, and telephone and telegraph charges, to correct abuses ***** And then, after some immaterial m. after — I mean immaterial for the purposes of my point — it continues — To require all railroads to build and maintain suitable depots, switches and appur- DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OE TIEGIMA. 2161 tenances v.-herever the same are reasonatily necessary at stations, and to inspect rail- roads and to require them to keep their tracks and bridges in a safe condition, and to fix and adjust rates befv;-een branch or short lines and the great trunk lines v;-ith which they connect, and to enforce the same by having the penalties hereby prescribed inflicted through the proper courts having jurisdiction. So that in the State of Louisiana there is no such provision as giving unlimited power over all the facilities of every sort that a transportation company shall furnish in the interests of the public. In the State of Mississippi the provision is as follows: The Legislature shall pass laws to prevent abuses, unjust discrimination and extor- tion in all charges of express, telephone, sleeping car, telegraph and railroad companies, and other common carriers in this State, by commission or otherwise and shall provide adequate penalties, to the extent, if necessary for that purpose, of forfeiture of their franchises. That is the provision of the State of Mississippi, and it contains no such power. I will next call attention to the provision in the Constitution of South Carolina: A commission is hereby established, to be known as " The Railroad Commission," which shall be composed of not less than three members, whose powers over all trans- porting and transmitting corporations, and duties, manner of election and term of office shall be regulated by law. So that in the State of South Carolina there is no such power. I next call attention to the provision in the Constitution of the State of Texas: Railroads heretofore constructed, or which may be hereafter constructed in this State, are htreby declared public highways and railroad companies co mm on carriers. The Legislature shall pass laws to regulate railroad freight and passenger tariffs, to correct abuses, and prevent unjust discrimination and extortion in the rates of freight and passenger tariffs on the different railroads in this State, and enforce the same by adequate penalties, and to the further accomplishment of these objects and purposes may provide and establish all requisite means and agencies invested with such powers as may be deemed adequate and advisable. So that ia the Constitution of nearly every one of the States which we have been considering here, the limit of what the Constitution has done is to confer the power and to impose the mandate upon the Legislature to deal with these subjects of freight charges. In the Constitutions of none of the other States is there a provision as broad as that which is contained here. Mr. Chairman I shall be brief but I am trying to give to this committee such inform- ation on this subject as I have been able to gather. I next desire to call the attention of the committee to the powers conferred on the railroad or corporation commission by the State of Xorth Carolina in its statute: That said commission is hereby empowered and directed: (1.) To make reasonable and just rates of freight, passenger and express tariffs for railroads, steamboats, canal and express companies or corporations, and all other transportation companies or corporations engaged in the carriage of freight, express or passengers. I now pass over the various powers which are not pertinent to the inquiry I am now making, and come to the point where it requires physical facilities of these railroads. (12) To require, where the public necessities demand and it is demonstrated that the revenue received will be sufficient to justify it, the establishment of stations by any company or corporation engaged in the transportation of freight or passengers in this State, and to require the erection of depot accommodations commensurate with such business and revenue. Provided, the commissioner shall not require any company or 2462 DEBATES OF THE COXSTITUTIOXAL CONVENTIOO^^ OF VIRGINIA. corporation to establish any station nearer to another station than five miles. (13) To require a change of any station or the repairs, addition to or change of any station house by any railroad, or other transportation company in order to promote the security, convenience and accommodation of the public and to require the raising or lowering of the track at any crossing when deemed necessary. (14) To require the establishment of separate waiting room.s at all stations for the white and colored races. (15) To require the construction of side tracks by any railroad company to indus- tries already established or to be established. Provided, it is shown that the proportion of such revenue accuring to such side track is sufficient within five years to pay the ex- penses of its construction. This shall not be construed to give the commissions authority to require railroad companies to construct side tracks more than five hundred feet. I have read these provisions to the committee for the purpose of showing that wher- ever this matter of the physical facilities has been gone into in Constitutions, and so far a? I know, in statutes, it is so guarded as not to give an unlimited power, but on the con- trary, a most limited power to this commission. Now, in the provision which I offer, I propose to give the Legislature of the State the power to confer all such jurisdiction upon the board as they may see fit in the future, ill addition to such as the Constitution itself confers, and the Constitution itself, if this amendment I propose is adopted, confers complete power of the regulation of the freight and passenger tariffs of these companies. I shall not go further into discussion of it, but I ask at the hands of the committee a calm and deliberate consideration of the merits of the proposition I have presented. Mr. Kendall: Mr. Chairman, the clause to which my friend objects is "and shall require them to establish and maintain all such public service facilities and conven- iences as the said commission may, within the limitations of the Constitutions of this State and of the United States, deem reasonable and just; " and if I understand him, his desire is to leave it to the Legislature to say what specific powers the commission shall have in the execution of this general language as here embodied in this article. So that the chief difference between him and myself and the language of this report is that he would have the Legislature go on and undertake to enumerate the different powers which this commission should have in reference to these public service matters of convenience, whereas we, in a general way, give them those powers within the limi- tations of the Constitutions of the State and of the United States, in advance, leaving, however, to the Legislature the express authority to limit the powers of the commis- sion in that regard. Now, gentlemen, we know there are an infinite number of petty annoyances to which the railroads can subject the public, that need and should have supervision and even control of this commission. AVe are but carried back to the old argument, the old idea that it is the purpose of this commission to oppress and outrage the railroads in these matters. We are asked to believe that the commission is to take this tyranni- cal course towards these roads, as if it were their desire to annoy and pursue them in every possible way. It is difiicult for us here to undertake to enumerate by legisla- tive enactment these various provisions which are spread out in various enactments of these States of which the gentleman has read the Constitutional provisions. We have here but given them that general power of supervision, leaving it to the Legislature, if it finds any reason to do so, to step in and limit the action of the commission. I think the general supervision provided for in this general language is especially needed with this commission, and that no harm or injury can come from it. I hope the committee will adopt the provision as it is now embodied. (" Question. Question.") The Chairman: The question is upon the amendment offered by the gentleman from Norfolk (Mr. Thdin). The amendment was rejected; there being on a division, ayes, 15; noes, 47. DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF TIEGIXIA. 2163 Mr. R. Walton Moore: Mr. Chairman, I offer the follo^'ing substitute for the lan- guage in lines 5S to Go of section 4: The authority of the said commission shall be subject to the superior authority_of the General Assembly, which shall have the right to alter or amend any provision hereof. Mr. Chairman, I need not promise that I will be very brief since we are working under the rule that limits remarks to ten minutes. Frankly, I wish to say that if there were any hope whatever of such a proposition being accepted, I should propose that the Constitution create and provide for the organization of this commission, but that the authority be vested in the General Assembly to confer upon it such powers as it should possess; in other words, that its powers shall be built up by statute rather than by detailed constitutional provisions. Mr. Chairman, that has been practically determined not to be the proper course; and, wherefore, I speak not as a pro-railroad man, or an anti-railroad man, but as one who believes himself capable of fair and considerate action so far as concerns all the interests that are involved, and I speak as one v>-ho, as a member of the Legislature, has given some attention to- this subject in times past. The gentleman from Pulaski (Mr. Wysor) said that we define the powers of the executive in the Constitution. He is mistaken. We do not go far beyond declaring that the executive shall faithfully enforce the laws. It is charged that the General Assembly cannot be trusted; and yet we are told, upon the other hand, that there are nineteen commissions of this character in the countiw and sixteen of them get their powers by legislative action against three of them that derive their powers consti- tutionally. Have vv'e reached the point that we are ready to declare that there inheres in the people of, for instance. North Carolina, or the people of Georgia a virtue and an integrity which the people of Virginia do not possess and which they cannot express through their General A.ssembly? Mr. Braxton: May I call the gentleman's attention to the fact that none of those States have had a Constitutional Convention to put this provision in the Constitution smce it was enacted. Mr. R. Walton Moore: Yes, sir, but you point me to the fact as a beacon light, that in Georgia they have a satisfactory commission established by the General Assembly of that State, and yet you assert, and in doing so you present an Indictment against the General Assembly of Virginia that such a result is not possible here. Mr. Barbour: Have we a satisfactory commission in Virginia under the laws of the General Assembly? Mr. R. Walton Moore: Xo, sir: and there are other evils in Virginia besides those of discriminations and excessive charges that we should correct if we are to engage in the business of making the Constitution cover the whole field of legislative action. How about the inequality of assessments in the State? How about the remarkably unequal distribution of pension funds? We do not design to deal with those matters. How about the trusts? It is a prevalent sentiment that trusts present a grave problem, and here in this report the committee is content to stop with this provision: "The General Assembly shall enact laws preventing all trusts, combination and monopolies inimical to the public welfare. Mr. Meredith: What was your object in asking this body to abolish the old sys- tem of having the Senate divided into two bodies? Mr. R. Walton Moore: I will answer the gentleman. I have stated here, and I will reiterate, that popular measures have often failed in the Senate; and I have ad- vocated from the beginning a change which will enable the people to elect their Senate and their House of Delegates at the same time. My desire is to make the General As- sembly more responsive to the will of the people. 2464: DEBATES OF THE CONSTITUTIOJsTAL COJs^VENTIOX OE VIRGIIilA. Mr. Meredith: Let us get down a little more to specific facts. Was it not upon the ground of the influence of the railroads in the Senate? Was not that what moved you? Mr. R. Walton Moore: I do not hesitate to admit that that influence has operated. But have we no hope for the future? Are we to accomplish nothing by improving the suffrage, insuring fair elections and choosing the entire membership of the General Assembly at the same time? Mr. Claggett B. Jones: I should like to ask the gentleman why he advocated quad- rennial sessions of the Legislature if he thought they were such good things; and further- more, if he wanted quadrennial sessions and wanted this matter relegated to the Legis- lature, if he would postpone it for four years? Mr. R. Walton Moore: The question presents no difflculty. I stated in answer to an interrogation of the gentleman from Portsmouth (Mr. Hafton) when the matter of quadrennial sessions was under discussion here, that the very heart of the whole controversy with me was to abolish the hold-over feature of the Senate. But even under the present system it has always been possible for an energetic and ardent popular demand to obtain the desired legislation. Take the employers' liability measure as an illustration. It has become a certainty because the people who were interested in it agitated for it, and the Norfolk Convention of the Democratic party wrote it in its plat- form. One reason, along with others, why a railroad commission bill has not been passed heretofore by the General Assembly of Virginia is that the people have not shown a sufficient interest in its passage. That in addition to adverse viev/s in the General Assembly. Mr. Wescott: Do you not think if that infant had been born in the General As- sembly under that pressure it would have been a cripple? Mr. R. Walton Moore: I cannot say so. I want to say, my friend, that it seems to me the logic of his question and his position drives him to government by commis- sion, instead of government by a General Assembly. Mr. Wescott: That is the way we propose to govern railroads. Mr. R. Walton Moore: Why do you not, then, take other matters out of the hands of the General Assembly and turn them over to absolute and uncontrolled commissions? Now, Mr. Chairman, I was diverted from the very simple statement I proposed to make. I was not proposing to discuss the question as to whether the General Assembly should be left to build up the powers of this commission, because I think that question is settled. I desired to say a word or two in favor of reserving to that body the right to amend. Mr. Braxton: Mr. Chairman, I will not detain the committee longer than to say simply that, with all due respect to my friend, I trust the committee will not adopt the amendment he proposes. Mr. R. Walton Moore: I wish to say one word further, with the permission of the gentleman from Augusta. The amendment I have offered simply suggests that the General Assembly be given the right of control, to the extent of altering or amending any provision of this section in the future if it is thought desirable to do so. The Chairman: The question is on the amendment offered by the gentleman from Fairfax (Mr. Moore). The amendment was rejected, there being on a division, ayes 19, noes 43. On motion of Mr. Braxton the committee rose and the President resumed the chair. The hour of 2 o'clock having arrived, the Convention adjourned until to-morrow, February 15, 1902, at 10 o'clock A. M. DEBATES OE THE COXSTITUTIOXAL COXTEXTIOX OE VIEGIXIA. 2±Qd SATURDAY, February 15, 1902. The Convenfion met at 10 o'clock A. M. Prayer by Rev. C. S. Gardner, D. D. RECESS OF CONVENTION. 2Jr. Blair: ^Ir. President, I desire to offer the follov,-ing resolution; Resolved. That v.-hen the Convention adjourns on Tuesday next it be to meet again on Monday, IMarch 10, 1902. Mr. Tiirnbull: Mr. President, I move the following as a substitute for the reso lution offered by the gentleman from Wythe: Resolved. That v>-hen the Convention adjourns on Tuesday, the ISth instant, it be to meet on Tuesday, the 18th of March, 1902, at 10, o'clock A. ;M.; the members and employes of the Convention to receive no pay during the recess, but that mileage be allowed the members. The President: The ciuestion is on agreeing to the amendment. The question having been taken by the yeas and nays, the result vras announced — yeas, 21; nays, 42. The amendment in the nature of a substitute Vv'as rejected. Mr. Thom: Mr. President, I move the following as a stibstitute for the resolution offered by the gentleman from Wythe (Mr. Blair). Resolved. That the committee heretofore appointed to consider the matter of obtain- ing a hall for the use of the Convention be authorized to secure a hall for the purpose of continuing the sessions of this Convention without any intermission on account of the session of the General Assembly, such action on the part of the committee to be sub- ject to the approval of the Convention. The resolution was agreed to. CORPORATIONS. On motion of ^Ir. Braxton: The Convention resolved itself into Committee of the ^Tiole for the further consideration of the report of the Committee on Corporations. Mr. Ayers in the chair. Mr. Braxton: Mr. Chairman, there is a typographical error on page 8 at the end of line 59. The word '"of" should be stricken out. Instead of "rate of charges" it should be " rates, charges and classifications."' I am authorized by the signers of the majority report to offer this change of language in the end of Section 8, beginning at line 6-5 and ending in line 71. The pur- pose for making the change is to include counties with cities and towns in the matter of municipal franchises. I move, therefore, that the words beginning in line 65 with the word "provided" and ending in line 71 with the word "franchise" be stricken out, and in lieu thereof this language be inserted: Provided, however, that nothing in this section shall impair the right which has Tieretofore been or may hereafter be conferred by law upon any city, town or county to limit by its municipal or county authority the rate of charges to be observed by any public service corporation for all services performed by it tinder a municipal or county franchise granted by such city, town or county and wholly within the limits of the city, town or county granting the franchise. The amendment was agreed to. The Chairman: Are there any further amendments to be proposed to subsection b? If not, the Secretary will read the next subsection. DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. C. In all matters pertaining to the public visitation, regulation or control of cor- porations, and within the jurisdiction of the said commission, it shall have the powers and authority of a court of record, to administer oaths, compel the attendance of v/itnesses and the production of papers, to punish for contempt any person guilty of disrespectful or disorderly conduct in the presence of the said commission while in session; and to enforce compliance v/ith any of its orders or requirements, entered by It within the scope of its authority, by adjudging and enforcing, by appropriate execu- tive process, against the delinquent or offending company (after it shall have been first duly cited, proceeded against by due process of lav/ before the said commission sitting as a court, and afforded opportunity to be heard, as well against the validity, justness or reasonableness of the order or requirement alleged to have been violated, as against the liability of the company for the alleged violation), such fines or other penalties as may be prescribed or authorized by this Constitution or by law. And the said commis- sion shall be vested with such additional pov/ers, and charged with such other duties, in connection with the visitation, regulation or control of corporations, or with the assessment of their property or the appraisement of their franchises for taxation, or with the investigation of the subject of taxation generally, and not inconsistent with any of the provisions of this Constitution, as may be prescribed by law. Any corpora- tion failing or refusing to obey any valid order or requirement of the said commission, may be fined by said commission (proceeding by due process of law as aforesaid) such sum, not exceeding five hundred dollars, as the said commission may deem proper, or such sum, in excess of five hundred dollars, as may be prescribed or authorized by law; and each day's continuance of such failure or refusal, after due service upon said corpora- tion of the order or requirement of the said commission in question, shall be a separate offence. f' Mr. Braxton: Mr. Chairman, in order to make the powers of the commission more elastic, so far as the powers of the Legislature is concerned, to extend its powers and duties, I am authorized by the committee to offer this amendment: Insert in line 99, after the word " corporation " these words, " or with the prescribing and enforcing of rates, charges or classification of traffic for any public or quasi-public corporation," so that the entire section would then read as follows: And the said commission shall be vested with such additional power, and charged v/ith such other duties, in connection with the visitation, regulation or control of cor- porations, or with the prescribing and enforcing of rates, charges, or classification of traffic for any public or quasi-public corporation, and so on, as may be prescribed by law. The amendments were agreed to. The Chairman: Are there any further amendments to subsection c? Mr. Thom: Mr. Chairman, I call the attention of the chairman of the committee to line 104 on that same page, and I move that the article be amended by inserting the words "within a reasonable time," after the word "obey," so that it will read: Any corporation faifmg or refusing to obey, within a reasonable time, any valid order." Mr. Braxton: I will accept that amendment, Mr. Chairman. Mr. Meredith: I submit it ought to be made a little more definite than that. It seems to me we had better say " reasonable time fixed by the commission." We should not say " a reasonable time " without allowing anybody to pass upon the question of reasonableness. Mr. Thom: I do not know how much difference there is between the two sugges- tions. My object is that whatever is a reasonable time should be allowed, and that the reasonableness of that should not be passed on by the commission that makes the order finally. Mr. Meredith: I submit to the gentleman from Norfolk that there is no reason for that, because the courts frequently fix a reasonable time within which an order must be obeyed; but if you do not give specific power to some one person, then it i& a ques- tion of litigation; and if they undertake to enforce it, they can go into court and say, " I have not had a reasonable time," Therefore, I think the reasonableness of the time ought to be fixed by somebody, and I do not know anybody who ought to be trusted with that more than the commission. DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF YIEGIXIA. 2467 Mr. Braxton: I call the attention of my friend from Norfolk to the amendment that -was adopted yesterday to subsection A, which provides that none of these rates cr regulations shall go into effect until ten days after they are made. Mr. Thorn: I understand that. The point I am making is that in a great business like that of transportation, the putting into effect of additional facilities may not be possible within a ten-day limit, nor is it possible to foresee now what the limit would be; nor is. it right to leave that matter to be fixed arbitrarily by a commission, when the scheme of this article is to give appeals from that commission. I think a reasonable time is all that the law should require within which this should be done, and the tribunals of the country determine what is a reasonable time. I do not think it reasonable to say that in any arbitrary way the commission shall fix what that reasonable time is. Mr. Braxton: I will suggest to my friend, if I am not interrupting him, that the matter might be reached in this way, by saying " within such reasonable time as shall be named in the order." Then if the time named in the order is not reasonable, it would be the subject of appeal like any other thing named in the order. Mr. Thom: I do not thmk an appeal is given from all orders. I want to bring that up at the proper point, but I think there are various orders that may be entered by the commission from which there will be no appeal under the phraseology of the article. Therefore when you just put in " within a reasonable time " that puts the whole case on the question of whether the time is reasonable. Mr. Meredith: Here is a commission to which you give large povv^ers- to fix rates, and yet you will not permit them to say what is a reasonable time. Mr. Thom: I will not. I do not mean to say the Convention will not. Mr. Meredith: If it is necessary, Mr. Chairman, I ask to amend the amendment, if it is in proper order, along the line of the language of the chairman of the committee. Mr. Thom: I have no doubt the amendments will carry, and that my amendment will be amended. At the same time I want to say to the Convention that I consider the proposition I have presented as an entirely reasonable one. I think no body ought to have the arbitrary powder of making an order, and, beyond review, fixing a time within which that shall be carried out and complied with, because arbitrariness of the body Itself is the thing that in justice ought to be provided against. As has been sug- gested to me, the present language would permit this commission to fix a time within which this should be done. The idea I have in offering the amendment is to say that what the commission does shall be reasonable on that subject. I therefore move, Mr. Chairman, that after the word " obey " in line 104 the words " within a reasonable time " be inserted. Mr. Braxton: Mr. Chairman, I desire to offer as a subtitute for the amendment offered by my friend from Norfolk, to insert in line 105, after the word "commission" these words: "within such reasonable time, not less than ten days, as shall be fixed in the order or requirement." Mr. Chairman, this provision as it stands now, gives an appeal from any order fixr ing rates and also from any order affecting the schedule of any transportation company, or requiring any additional facilities, conveniences, or public service of any transporta- tion or transmission company, and it leaves it to the Legislature to grant appeals in any other case, however trivial, without limit. It seem.s to me my friend is mistaken in re- ferring, in the way in which I take his language to mean, to the arbitrary power of this commission to do everything. Every court has an arbitrary pov/er, in that sense, to do something, even a justice of the peace has arbitrary power, if you may so call it, of returning a judgment for less than ten dollars, against a man. This commission is in one sense a court and even if there be an appeal in some trivial matters from it, it has no more power in that regard than any other court, that is not appealable. We have provided that no other order can go into effect in less than ten days, and the effect of the amendment now is, to say that no order shall go into effect in less 2468 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. time than the time fixed in the order, which time shall be in no event less than ten days and from which if the order be one affecting charges or any of those other essential particulars there can be no appeal, as I have explained. It does seem to me, sir, that would make it very much better. The objection I have to it in the form in which my friend offered it, and v/hich I did not at first observe until my attention was called to it by the gentleman from Rich- mond (Mr. Meredith) is that if you merely say if shall go into effect in a reasonable time, you throw the whole matter into the court right at once as to what is a reason- able time; and the commission could never act except s.ubject to the review of the courts on every matter of that sort, however small or trivial it might be. Our idea is that while the railroad should have access to the court, it should always be by way of appeal and not by way of original jurisdiction. Mr. Thom: Does my friend mean to say that under the article as it would stand if amended as I suggest it it would be beyond the jurisdiction of this commission to fix in its order a time which it said was reasonable, and if it should turn out on appeal that that was reasonable, the carrier would be governed by it? Mr. Braxton: That may be, sir, but I wish the carrier, when he goes into court to go in by way of appeal and not by any original process. If the statement of the case, as I understand from my friend is in accordance with his view, I do not see what ob- jection he could have to the language I propose, which is that any corporation failing to obey any valid order or requirement of the said commission v/ithin such reasonable time, not less than ten days., as shall be fixed in the order of requirement, may be fined by the commission, etc. Mr. Thom: In that connection I desire to ask my friend if he will, at a later stage, accept an amendment on this question of appeal, as follov/s: On all appeals taken under this article, the Appellate Court shall have jurisdiction to consider and determine the reasonableness and justice of the action of the Corpora- tion Commission complained of, as well as any other matter arising on such an appeal. The object of that is to carry into the appellate court the question of the reason- ableness of the rate fixed, and not merely the question of whether the commission deems it reasonable. If that is accepted, or the equivalent of that idea is accepted I would have no objection to the amendment at this point suggested by the chairman. Mr. Braxton: I will state to my friend that as he reads that to me now I do not think there is any objection to it. I do not like to commit myself absolutely on it until I have had a little further time to consider the language; but I tell him frankly that at present advised, I think I will agree to it as it carries out in effect, if I understand it correctly, what we think we have already provided, and if that is true, there can be no objection to making still clearer what is already clear. Mr. Thom: With that understanding, Mr. Chairman, and with the privilege of raising this question again by my friend's consent, I will accept the amendment he has suggested here. The Chairman: The question is on agreeing to the amendment offered by the gen- tleman from Augusta. The amendment was agreed to. Mr. Stuart: I move to strike out, in line 100, subsection C, the words "or with the investigation of the subject of taxation generally." My object in moving that those words be stricken out is that the purposes for which I understand this commission to be formed may be carried out and that it may be limited to the legitimate and proper purposes of a corporate commission. I find in section 3, which undertakes to create this commission, the following language: There is hereby created a permanent commission composed of three members, which shall be known as the State Corporation Commission. DEBATES OF THE COXSTITrTIOXAL COXTEXTIOX OF VIEGIXIA. 2469 That very clearly defines to my mind the object of this commission, that it shall deal -^-ith corporations, whereas, under the language which I have moved to strike out, it would at least give a very broad intimation that it was to deal with other subjects than corporations. It occurs to me that the powers given to thi& commission in dealing with corporations are broad and ample, and I am in hearty accord with the spirit of the entire measure, I may say. I may have some amendments to offer, or there may be amendments offered by others that I will agree to just as the chairman of the committee agrees to them but as to the spirit of this report, I am heartily in favor of it. I do think, however, we are unnecessarily enlarging its powers at this point. Again, if we say that they shall investigate, and we provide no power for them to formulate the results of these investigations, it seems to me it would be idle. Any man has the power already to investigate. There is certainly no prohibition on this commission or any other commission or upon any individual to investigate anything as much as he pleases, so that the mere power of investigation, with that power of aflBrma- tive action in the way of putting into force the results of the investigation, seems to me to be almost nugatory. But that is not its principle objection. It seems to me it very broadly intimates a power which a corporation commission should not be invested with, that is, dealing with the subject of taxation generally as to individuals. To what extent it might in- vade the taxing power which we have created in other reports which have been sub- mitted to the Convention, it would be hard to say. So that I think, in the first place, the language is harmful in the intimation that it gives; and if not harmful, certainly I consider it is altogether nugatory. I. therefore, move that the language as already given be stricken out. Mr. Braxton: Mr. Chairman, I think my friend from Russell (Mr. Stuart), if I understood his remarks, has somewhat misconceived the effect of the language which he objects to. The question of taxation, as we all know, is one of the most difficult ques- tions that the law has to deal with. It is a practice which has been'indulged in for years past, and the Legislatures from time to time appoint commissions to investigate this sub- ject of taxation, a technical matter which, during the limited time of the session of the Legislature, the}* frequently do not have an opportunity to go into. Many States have established permanent standing taxation commissioners, not for the purpose of laying taxes at all, but for the purpose of investigating the subject of taxation, how it has been done in other States, what is the latest and most advanced thought on the subject, and presenting its report to the Legislature, bringing together and compiling information on the subject, with suggestions and so on, all of which is absolutely without effect as law until the Legislature acts upon it. It is a mere com- mittee of investigation as it were. Mr. Stuart: Do you consider there is any necessary connection between a corpora- tion commission and a taxation commission? Do you want to invest this commission v/ith the double power of corporations and taxation? I did not know that was in contem- plation. Mr. Braxton: I will endeavor to show that to my friend in a moment. I wish to impress upon the committee not only do we not give this commission any power of taxation, but we do not authorize the Legislature to give them any power of taxation. We authorize the Legislature to require of them such additional duties in the line of investigation. There is no objection, as I understand, to their being required to investi- gate and report upon the question of corporate taxation how the property of corpora- tions had better be taxed: and there is no question about the fact that in investigating that subject you must necessarily take into consideration how other property must be taxed. Now, as a matter of fact, corporation commissions, in a number of other States, have been required by the Legislature to perform this duty because it is a cognate duty with the investigation of the taxation of corporations that they should also investigate 2470 DEBATES OF THE CONSTITUTIOiiAL COJ^VEXTIOJsT OF VIRGimA. the question of taxing individual pfoperty. We draw this distinction, however, that just as the board of public works to-day assesses the property of certain corporations, it may be possible that some of these times what is known as the Connecticut plan of taxing corporations may be adopted in this State, whereby the property of all cor- porations based upon their stock and bonds is taxed from som-e central source. We provide that if that is ever done, that central source shall be the corporation commis- sion; but so far as the taxation of individual property is concerned, you observe we do not say the Legislature can confer upon them any powers in connection with the taxation of individual property, but simply powers in connection with the investiga- tion of the subject. In North Carolina the corporation commission is required by lav/ to investigate the entire subject of taxation and to report it to the Legislature merely as a means of getting together all the information and facts there may be on the s-ubject. There cannot be any reason on earth, that I can conceive, why this commission cannot do that work just as well as any other commission. It is entirely in the power of the Legis- lature, if the lines that my friend refers to are stricken out, to appoint another com- mission or to nam.e these identical men as individuals, as a commission to do this identi- cal thing. Now, in order not to require them to do it — they may never do it all — we merely say that hereafter if the Legislature in its wis.dom chooses to impose this duty upon this commission, they may do so, but if they do not want to do it, if they want to appoint another commission to investigate this matter, they are at perfect liberty to do so. Therefore, I call the attention of the committee to the fact that the language does not say that this, commission shall be charged with the duty of investigating the sub- ject of taxation, it does not say the Legislature, if it ever appoints any commission on the subject may appoint this one. It merely enables the Legislature to impose that ad- ditional duty upon the commission if they choose to do it. It does not require anything, ii is merely an enabling act to enlarge the powers of the Legislature not to enable them to appoint a commission on the subject, because they can do that anyhow, but to enable them to impose that burden upon this particular body, which is probably the very best they can find to charge with the subject, but if not, they can appoint another body. Mr. Stuart: Would the Legislature confer this authority on the commission with- out the language you use? Mr. Braxton: No, sir, but it could confer the authority on another commission or on the individuals of this commission. The Chairman: The question is on agreeing to the amendment offered by the gentleman from Russell (Mr. Stuart). The amendment was rejected. Mr. Thorn: Mr. Chairman, I do not know that the chairman of the committee will have any objection to the amendment I now propose, to strike out, in line 112, the word " shall " and insert in lieu thereof the word " m.ay," and after the word " be " in- sert the word "deemed," so that it w^ill read: "And each day's continuance of such failure or refusal, after due service upon said corporation of the order or requirement of the said commission in question may be deemed a separate offense," in- stead of the imperative requirement, no matter what the surrounding circumstances, that it will be deemed a separate offense, giving the commission power to deem it so, but not absolutely requiring it to deem it so. Mr. Meredith: I desire to ask the gentleman whether he thinks it is possible for a commission to say whether a thing shall be a crime or not. A thing must be declared bj the law to be a crime. When you say it is to be " deemed," deemed by whom? Is it to be declared at one time a crime by the commission, and at another time not a crime? I submit that it is a violation of well settled principles of law. You must de- clare in the law whether a thing is a crime or not. DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE YIRGIXIA. .2 in Mr. Thorn: V^^e are unsettling some of the principles of law by this Constitution. Mr. Meredith: Vv^ell, do not let us unsettle any more. Mr. Thorn: V^Tien we unsettle them up to the point of imposing a penalty, we at least ought to put it in the power of the punishihg body to consider the circumstances surrounding the case, and to deem or not to deem it a separate offense, merely for the purpose of ascertaining the amount of the penalty. Mr. Meredith: That is all right as to the imposition of the fine, but you cannot leave it to them to say whether a thing shall be an offense or not. You must specifically state that in the law. Mr. Thom: I do not see any difficulty in the world in saying that. It is merely for the purpose if ascertaining the amount of the penalty that shall be enforced. Mr. Braxton: Mr. Chairman, it seems to me this matter had better be allowed to stand as it is. As stated by the gentleman from Richmond (Mr. Meredith), we are stating what shall be an offense punishable by fine, and it does seem to me that it would be better to leave it as it is, to say emphatically that such and such a thing shall be an offense. The danger my friend has in mind, I suppose, is that under certain miti- gating circumstances it would be a hardship on them; but observe that, although the law says it shall be an offense, it says the commission may fine them for it anything from one cent to $500. If it is a mere technical offense, it is an offense which really amounts to nothing, the commission need not put a fine of over one cent on them. So that that part of it which leaves it entirely to the discretion of the commission to make the fine nominal, it seems to me, is sufficient latitude and leaves the matter wide enough open' to aft'ord all the protection my friend would desire, because even if you put in the language " may be deemed an offense," it is still left with the commission as to vrhether they deem it an offense, and if the commission can be trusted to say whether it is an offense, it certainly can be trusted to say whether it is a substantive offense that should be punished by a substanial fine or a mere nominal offense that should be punished by a nominal fine. I think the language should be left as it is. I regret I cannot agree with my friend on that subject. I would be glad to accept any suggestion from him as we go on, and I do accept any vv-hich it is consistent to accept. Mr. Thom: I do not agree with the legal position assumed by the gentleman from Richmond (Mr. Meredith). I do not, however, desire to raise any diffictilty about a difference between us on a legal qtiestion. I therefore suggest that instead of the amend- ment that I at first proposed, the amendment shall be, in stead of the word "shall" the words " may, for the purpose of determining of the penalty," and then, after the word "be," the word "deemed," so as to read: "After due service upon said corpora- tion of the order or requirement of the said commission in question, and each day's continuance of such failure or refusal, after due service upon stich corporation of the order or requirement of the said commission in question, may, for the purpose of de- termining the amount of the penalty, be deemed a separate offense." It means that whatever the punishment for one day is, they may or may not multiply it by the number of days that the failure or refusal to comply with the order continues. It leaves it to the commission to say whether or not under the circumstances of the case they will multiply the penalty* they denounce against one omission by the number of days that the ommission has continued. The Chairman: The question is on agreeing to the amendment offered by the gentleman from Norfolk. The amendment was rejected; there being, on a division, ayes 15, noes 36. The Chairman: The Secretary will read subsection D. D. From any action of said commission prescribing charges or classifications of traffic, an appeal, subject to such reasonable limitations as to time, regulations as to procedure, and provisions as to cost as may be prescribed by law — may be taken by the corporation whose charges, or classifications of traffic, are affected, or by any person deeming himself aggrieved by such action, or ijf allowed by law) by the Commonwealth. 247,^ DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. If such appeal be taken by the corporation v/hose charges, or classifications of traffic, are affected the Commonwealth shall be made the appellee, but, in either of the other two cases mentioned, the corporations whose charges or classifications of traffic are affected shall be made the appellee. The General Assembly may also, by general laws, provide for appeals from any other action of said commission, by the Commonwealth or by any person interested. Ail appeals from the said commission shall be to the Supreme Court of Appeals only, and in all appeals to which the Commonwealth shall be a party, it shall be represented in the appellate court by the Attorney-General or his legally appointed representative. The Chairman: Are there any amendments to be offered to sub-section D? Mr. Braxton: Mr. Chairman, I am instructed by the committee to offer the fol- lowing amendments to section D: ( Insert the word "rates" after the word "Prescribing," in line 114; in line 115, after the word "traffic," insert this language: "Or affecting the train schedule of any transportation company or requiring any additional facilities, conveniences or public service of any transportation or transmission company;" then, in order to make the proper grammatical connection, that would result from that change, the words "schedule, facilities, conveniences or service " should be inserted in line 119, after the word " traffi^c," in line 123 after the word " traffic," and in line 125 after the word " traffic." Mr. Thorn: Before a vote is taken on that I desire to ask the chairman of the committee why he puts the word " rates " after the word " prescribing " in the first line and leaves it out in lines 114, 118, 122, and 125. Mr. Braxton: I will state to my friend that it is an inadvertence. The word " rates " should be inserted in thos.e places, and I offer that as a further amendment. The Chairman: The question is on agreeing to the amendments proposed by the chairman of the committee. The amendments were agreed to. At this point Mr. Eggleston took the chair. Mr. Thorn: After the word " cost," in line 117, which I suppose ought to be " costs," in the plural — Mr. Braxton: Yes, sir, it should be "costs." Mr. Thorn: After that word I should lilve to move to insert the words "if any." I suppose it is the purpose of my friends on the committee to grant an appeal in all these matters covered by this subsection. The article has so far created a jurisdiction in the commission itself adequate to the establishment of all the rates and dealing with all the facilities that must be afforded by the railroad companies and by the transmission companies. Now, when we come to the matter of appeal, as the article now reads, there is no appeal until affirmative legislation by the General Assembly is provided. My friend has referred to the difficulty in securing affirmative legislation by the General Assembly, and has said that while it may be very easy to prevent legislation it is exceedingly difficult for these inter- ests to secure affirmative legislation. Until such legislation as that has been obtained, then there is no appeal. This article will go into operation only to the extent of creat- ing in the commission the power to prescribe rates, the power to deal with all these facilities that must be afforded, and creates in itself no appeal. The object of these words I propose to insert is that there shall be an appeal at the very moment that the jurisdiction is created in the commission to deal with these subjects, but that the General Assembly shall have the right at any time it sees fit to pres.cribe reasonable limitations as to time, regulation as to procedure, and provisions as to costs, but in the absence of any such provision, the appeal may still be heard. Mr. Braxton: I at first thought when you said "if any," you meant it to apply to costs; but you mean it to apply to reasonable limitations? Mr. Thorn: Yes, sir; "if any be so prescribed," and that will leave the matter of an appeal to apply at the same time the jurisdiction of the commission applies, but DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 2473 that appeal may be hereafter limited by the General Assembly in the manner mentioned here, of limitations as to time, regulations as to procedure and provisions as to cost. Mr. Braxton: I am authorized to say for the committee, or for the majority of the committee such as I have been able to confer with here, that in their opinion the pur- pose the gentleman desires to accomplish is accomplished by the language as it is now, which says that it is subject to such reasonable limitations, etc., as may be prescribed. It does not require that there shall be any prescribed before there shall be an appeal, but it says, there shall be an appeal and that appeal shall be subject to any limitation^, they may prescribe. If they prescribe no limitations it is subject to no limitation, but if they do prescribe them then it is subject to them. Mr. Green: There is a provision here for an appeal, and that appeal is subject to such regulations about the time, etc., as the Legislature may prescribe. Suppose the Legislature does not prescribe any, it does not take away the right of appeal? Mr. Wysor: Not at all. The provision is not self-executing. Of course it is pre- sumed the Legislature will pass proper acts providing for the appeal. The language of the article does give an appeal. Now I want to refer to the words inserted by the gentleman from Norfolk. I say they do not mean anything. I am opposed to amending our language, which is good, by putting an expression in it that does not add to it or take from it. The section pro- vides that: Prom any action of said commission prescribing charges or classifications of traffic, etc., an appeal may be taken, subject to such reasonable limitations as to time, regula- tions as to procedure, and provisions, as to cost, as may be prescribed by law. The gentleman from Norfolk (Mr. Thorn) wishes to insert these words, " if any may be so prescribed." The article says exactly the same thing without as it would with these words in- serted. Their insertion woiikl make the diction very bad. We have not only written a good article, but it is written in good diction, and we do not want the diction spoiled. I hope the amendment offered by the gentleman from Norfolk will be voted down. Mr. Thorn: Mr. Chairman, by asking to insert a few words, I was desiring to avoid v/ounding the sensibilities of my friends to as great an extent as possible in refer- ence to their diction. I knew there was doubtless some pride of ownership about the matter, and I did not want to disturb that any more than was necessary. I believed then and I believe now that the v/ords which I have suggested to be put in v/ould ac- complish the same purpose. I believe my friends here have suddenly discovered a method of doing something which their article, as prepared, never contemplated. That is, that an appeal should be had prior to action by the General Assembly, because when I get to subsection F, I find it is expressly provided that " the General Assembly shall provide by law for the certification by said commission to the appellate court, of all the facts or evidence." How does it go up without the General Assembly acting? I do not believe my friends had properly considered this matter; but to make it plain — Mr. Green: In lines 126, 127 and 128 there is further provision that "the General Assembly may also, by general laws, provide for appeals from any ofner action of the said commission." That authorizes appeals operating proprio vigore, under this Con- stitution, but the General Assembly cannot take away that right of appeal. It can direct the mode of procedure. Then they direct further that in other cases the General Assembly may provide for appeals. Mr. Thom: The distinction is not* such, to my mind, as is suggested to the mind of my friend from Danville (Mr. Green). In the first place there is an appeal, subject to certain rules and regulations to be prescribed by the General Assembly. That ap- plies to certain cases. There are additional cases in which an appeal may be allowed by the General Assembly. The appeal in the first case is allowed, but subject to action by the General Assembly on matters not referring to the appeal, but referring to the 1.56 — Const. Deb. 2474: DEBATES OF THE CONSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. procedure. In the second case, not only the procedure is left to the General Assembly, but the right of appeal as well.. Now, if this is the purpose of my friends, why not put in tliis language; and I am obliged to interfere somewhat with the workmanship of this article in order to do that: Strike out the words " subject to such reasonable limitations as to time, regulations and procedure, and provisions as to costs, as may be prescribed by law," and ins«rt in line 121, after the word "Commonwealth," a semi-colon and these words: "but the General Assembly may, at any time, precribe such limitations as to time, regulations as to procedure, and provisions as to costs, as the public interests may require, and until such action by the General Assembly, the Supreme Court of Appeals shall pre- scribe rules for such appeal." As that seems to be preferred by some m^embers of the committee, I will move, In place of the motion I have already made, to strike out the words beginning in line 115, and ending in line 118, as follows: "subject to such reasonable limitations as tc time, regulations as to procedure, and provisions as to cost, as may be prescribed by law," that a semi-colon be placed after the word " Commonwealth " in line 121, and to follow that by these words: "but the General Assembly may at any time prescribe such limitations as to time, regulations as to procedure, and provisions as to costs, in such appeals, as the public interest may require, and until such action by the General Assembly, the Supreme Court of Appeals shall prescribe rules governing such appeal." Mr. Wysor: I wish to say, Mr. Chairman, that that article gives an appeal in un- mistakable language, and leaves it to the Legislature to provide for that appeal. It is the most violent presumption in the world to suppose the Legislature will not do it. It is their duty to do it as one of the departments of the government. Now, take other appeals. They are provided for in the Constitution, but the Legislature makes pro- vision for taking those appeals and he wants to offer this article simply because there are no provisions for taking the appeal immediately. It is on the assumption that the Legislature will not do its duty in the premises. I say that is a violent presump- tion, and I shall oppose any change at all myself in the article. I do not know what the other members of the committee are going to do. The language offered by the gentleman is no better than we use. We give an ap- peal in express terms. It is left for the Legislature to provide for that appeal, and I say the Legislature will do it. I hope it will be the pleasure of the committee to vote for the article just as we have brought it in here in our report. Mr. William A. Anderson: Mr. Chairman, my friend from Pulaski (Mr. Wysor) seems to forget the fact that this provision, when incorporated in the Cons.titution, goes immediately into effect, proprio vigore, and where is the right of appeal until the Legis- lature does that. This commission may be, and probably will be, in operation for twelve months before any General Assembly m^ay act upon the subject. Where, then, would be the remedy given of appeal, in plain and distinct terms, such as the courts may de- cide should have been given? Now, my distinguished friend, whom I think I may fairly denominate the poet laureate of this Convention, the gentleman from Pulaski, seems to be oblivious of the fact that this article, which is so familiar to us, goes immediately into effect, and that cas.e after case may arise under it before the Legislature does provide how an appeal shall be taken. It goes with great particularity into all the other matters of detail in reference tc this legislation. Why should it not go also with the necessary particularity into the question of giving an ample remedy to either party aggrieved by any ruling of this com_mission? That is all this proposed amendment contemplates, that an ample remedy shall be given, from the time this commission is established, to every suitor, whether it be a citizen of the Commonwealth or a common carrier, in order that an appeal may be taken to the Supreme Court without any question, and the matter finally settled by the adjudication of that tribunal. DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. Mr. Braxton: Mr. Chairman, I think this language will meet the views of my friend from Norfolk (Mr. Thom), as well as the views of the committee — to allow the language to remain as it is, hut to add, after the word " Commonwealth," in line 121, this new sentence: Unless and until otherwise provided by law, such appeals shall be taken according to the same method of procedure in which appeals are now taken to the Supreme Court of Appeals from the inferior courts, except that such an appeal shall be an appeal of right, and the Supreme court of Appeals may provide by rule for the proceedings in the matter of appeals in any particulars in which the existing rules of law are inappli- cable. I am authorized hy the committee to oifer that as an additional sentence to go in after the word " Commonwealth," in line 121. The Chairman: Does the gentleman from Norfolk withdraw his amendment? Mr. Thom: Yes, sir. Mr. Green: Mr. Chairman, I shall vote for that amendment, at the request of the chairman of the committee, but I wish to reiterate that every word that is in that amend- ment is right here now in this article as it stands, and it is utterly idle to put it on. Mr. Braxton: I thought the same thing, hut out of the abundance of caution, I do not see how any harm could come of it, and it would certainly make it safer. My own view was just as the gentleman has indicated, that that would he the effect of the article ae it is. I hope, however, the amendment will be adopted, so as to put it beyond all peradventure. We do not want, if possible, to have any question of constitutionality affect this statute. The Chairman: The question is on the adoption of the amendment offered by the gentleman from Augusta. The amendment was agreed to. The Chairman: The Secretary will read sub-section B. E, No action of the said commission prescribing or affecting the charges, or classi- fications of traffic, of any transportation or transmission company shall be delayed or suspended in its operation by reason of any appeal by such corporation, or of any pro- ceedings resulting from such appeal, prior to the final reversal of such order by the appellate court, unless and until a suspending bond, payable to the common- wealth, sufficient in amount and security to ensure the prompt refunding by the appealing corporation, to the parties entitled thereto, of all over- charges on the rate of charges or classification of traffic, appealed from, that such company may collect or receive pending said appeal, shall first have been executed, filed with, and approved by the said commission, which shall forthwith require the appealing company (under penalty of the immediate enforcement, pending the appeal, of the order or requirement appealed from) to keep such accounts, and make to the commission, from time to tim^e, such reports, verified by oath, as m.ay, in the judg- ment of said commission, suffice to show the amount being charged or received by the company, pending the appeal, in excess of the charge allow^ed by the action of the com- mission appealed from, together with the names and addresses of the persons to whom such overcharges will be refundable in case such action be not reversed; and said com- mission shall also, from time to time, require such company, under like penalty, to give additional security in, or increase the said suspending bond, whenever, in the opinion of the commission," the same may be necessary to insure the prompt refunding of the overcharge aforesaid. Upon the final decision of such appeal, all money which the appealing company may have collected, pending the appeal, in excess of that authorized by such final decision, shall be promptly refunded to the parties entitled thereto, in such manner as may be prescribed by the commission, or by law. All such appeals affecting rates of charges or classifications of traffic shall have precedence upon the docket of the appellate court, and shall be heard and disposed of prom-ptly by the court, irrespective of its place of session, next after the habeas corpus, and Common- wealth's cases already on the docket of the court. Mr. Braxton: In line 145, the word "rate" should be plural, and the word "of," Immediately after it, should be erased. It should read "rates, charges, or classifications." In line 165, the word "money" ought to be "amounts." 24T6 DEBATES OF THE COXSTITrTIOXAL CONVENTION OE VIRGINIA. The Chairman: In the absence of objection, the amendments indicated will be adopted. Are there any further amendments to sub-section F. The Secretary read as follows: P. In no case of appeal from the said commission shall any new or additional evidence be introduced in the appellate court, but the General assembly shall provide by law for the certification by said commission to the appellate court, of all the facts or evidence upon which the action appealed from was based, and which may be essential for the proper decision of the appeal therefrom. The said commission shall, whenever an appeal is taken therefrom, file with the record of the case, and as a part thereof,, a written statement of the reasons upon which the action appealed from was based, and such statement shall always be read and considered by the appellate court upon disposing of the appeal, and the action of the commission appealed from shall be regarded as prima facie just, reasonable and correct; but the court may, when it deems necessary, in the interest of justice, remand to the said commission any case pending on appeal, and require the same to be further investigated by the commission, and reported upon to the court, before the appeal is finally decided. Mr. Thorn: I should like to ask the chairman of the committee if he will not make, in reference to that matter, the same general provision, or some substantially similar provision, as he made in reference to sub-section D. There is a requirement of an affirm- ative action by the General Assembly before any record can be gotten up to the Court of Appeals, and that matter ought to be reconciled with the theory which has been con- ceded here by the convention to be just that prior to the assembling of the General Assembly some method or rule of certification of record should be had, not dependent upon prior action by the General Assembly. If this is allowed to stand as it is, there could be no appeal until affirmative action by the General Assembly. Mr. Braxton: It seems to me the same reason applies there as to sub-section D, and I see no objection to providing that the method now followed of certifying a record to the court shall prevail. I offer this amendment, to be inserted in line 182, after the word "therefrom," to be separated by a semi-colon: '"But until provision shall be other- wise made therefor by law, such facts or evidence shall be certified to the appellate court by the chairman of the commission under the seal of the commission.'"' That meets the view, as I understand, of the gentleman from Norfolk. Mr. Thorn: Yes, sir. The Chairman: The question is on the adoption of the amendment offered by the gentleman from Augusta. The amendment was agreed to. Mr. Thom: Mr. Chairman, in lines 188 and 189, on page 14, I call attention to the language : "And the action of the commission appealed from shall be regarded as prima facie just, reasonable and correct." So far as I know, the only thing that approaches a precedent for a provision of that sort is to be found in the Interstate Commerce Commis- sion act. I do not know whether there is a copy of it here or not. If any one has it, I can read that provision; but I can quote it substantially from memory. The provision of the Interstate Commerce act is that findings of fact by the commission shall be con- sidered as prime facie correct. That is as far as I think this ought to go, and it is as far as I hope my friends intend it to go. The language as it now stands is entirely new, and what effect it will have when construed, it is impossible to forecast. I cannot even say whether the effect will not be tc put the case in the Appellate Court as. if on demurrer to evidence. I hope my friend will see fit to accept an amendment providing that, in place of what they have there, there will be a provision, "and the findings of fact by said commission shall on appeal, be regarded as prima facie correct." Mr. Braxton: Mr. Chairman, I just sent out to get a book that I thought had some authorities on it, but I regret to say I cannot agree with my friend on this matter. It seems to me, sir, that the decision of the commission, not only on a question ol fact, but as to the justice and reasonableness of the regulation of the rate ought to be,. DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF A^IEGIXIA. 2^77 and should certainly be, prima facie correct. It seems to me it is a decision of a body of experts on a matter upon which they are called upon particularly to pass, and about which they are supposed to have peculiarly good judgment. I think that there should be given great weight to their decision and that the court ought not to set it aside unless it is manifestly unjust or unreasonable. When we say the railroad company has a right to go into court to have the court review this m.atter I think we have given them all the protection that, in justice, they could ask, or that the law or the Constitution of the United States requires. I think it is not unreasonable to say that when this. Constitution has established a body for the pur- pose of fixing the rates, it should say that when that body has performed the function for which it was created, its action and its judgment shall at least prima facie be right and not prima facie wrong. I think that every legitimate weight that can be given to the sentence and the justice and the reasonableness of their opinion should be given to it by the court, short of saying that the court is absolutely bound by it. In referring to this matter, the United States Supreme Court, in the case of Reagan vs. Farmers' Loan & Trust Company, 154 U. S., page 395, referring to the rates estab- lished by commission, uses this language: And if the rates established by the commission are not conclusive, they are at least prima facie evidence of what is reasonable and just. I think, therefore, that so far as mere authority, without weight of reason behind it, goes, we have the authority of the Supreme Court that the decisions of the commission are at least reasonable and just, but not absolutely conclusive; and to put that matter at rest, to show that the court in reviewing this matter must not disregard the opinion of the commission, but must attach great weight to it, and must only set it aside when it is manifestly wrong, we say they must regard it as. prima facie just, the burden of proof being on those who attack it to say it is not so ; and that while they have the right to set it aside they must give it that weight to which it is entitled by being prima facie just and reasonable. I am, therefore, unable to agree with my excellent and learned friend in reference to this matter; and I shall have to ask that the committee do not accept this amendment which he proposes "to offer on this subject, but will adhere to the language of the report. In all this matter, I wish to state to the committee that I try to receive all these suggestions without any pride of opinion, and to accept every one of them that seems to us to be meritorious. Those we are rejecting we reject not merely because they inter- fere with us, not on any idea that our report is perfect and cannot be improved upon, but merely when we believe they are substantially erroneous. I think this amendment is substantially in error and I hope it will be the pleasure of the committee not to accept it, but let the report stand as it is in that respect. Mr. O'Flaherty: Mr. Chairman, I wish to call the attention of the gentleman to the fact that the decision that he quotes does not go as far as the language of this report. If you will notice what you read, it says that the decision shall be evidence of what is reasonable, &c. I think that is quite different from saying that the decision itself, the action of the commission appealed from, shall be regarded as prima facie just, reason- able and correct. As to the question of fact, I believe the finding of the commission ought, to be evidence of the fact that it is prima facie right, and that is. as far as the decision you have quoted from goes. It says it shall be evidence of the reasonableness; but you say the finding of the commission shall be prima facie correct. Now, I wish to call attention, if I am right in this matter, to the further fact that the finding of this commission is prima facie correct as to the matter of law. A matter of fact is a rebutable conclusion, but a presumption of law is an irrebutable conclusion; and when you say its justness and its reasonableness shall be prima facie correct, you go into the realm of law and equity, and you raise a barrier that has never been raised, as I understand, in appeals. 2478 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. I am simply calling the attention of the committee to that fact, which I suppose in its wisdom it has considered. I do not wish to put upon anybody who is appealing any greater burden than they ought to have; and while I do not know exactly what the lan- guage of the gentleman from Norfolk (Mr. Thom) is, I thought of moving to strike this out for that reason. I do not know the exact language of the motion of the gentleman, but I simply call attention to the fact that here you are going further than our Supreme Court has gone. You are going further than the decision which you have read has gone,, because as I remember the decision of Chapman vs. Somebody, the present Supreme Court of Appeals decided that the report of a commissioner in chancery was not even prima facie correct as to the finding of fact. Now, you go further than that and say that the reasonableness of what has been done, the justice, the equity and the finding of the fact and all, shall be prima facie correct, and the man goes to the Court of Appeals handicapped to that extent. I only wish to call attention to it. Mr. Braxton: Mr. Chairman, I can only say that the committee has considered aa well as they are capable of doing the suggestions my friend has made, and without under- taking to discuss the matter longer, we came to the conclusion we reached in the light of the suggestions that the gentleman makes. They did not seem to the committee to be sound. Mr. Thorn: Mr. Chairman, as I understand the decision in 154 United States, from which my friend read, that was a proceeding arising under the Interstate Commerce act, and is a construction as to the effect of that act. Now the language of the Interstate Commerce act is what I shall now read — Mr. Braxton: I should like to correct my friend. The decision referred to was in the Texas railroad commision act, and not in the Interstate Commerce act. If I said "Interstate" I did so through inadvertence. Mr. Thorn: However that may be, the language of the Interstate Commerce act contained twice in that act is as follows: In section 14 it is provided: Such finding, so made, shall thereafter in all judi- cial proceedings be deemed prima facie evidence as to each and every fact found. And in section 16 is the following: And on such hearing, the findings of fact in the report of said commission shall be prima facie evidence of the matters therein stated. It does seem to me, Mr. Chairman, that that is as far as we ought to go. I quite agree with the gentleman from Warren (Mr. O'Plaherty) that the language of the pro- posed article is something entirely new in judicial procedure. It has no relation except merely as to the findings of fact on which the Supreme Court of Virginia shall consider the action of the court below. Now, how that will be developed by judicial interpretation, there is no one of us wise enough now to forcast, and it seems to me that all that any reasonable man can ask in this regard in that the findings of fact on which the conclusions of the Coporation Com- mission which are under review shall be considered, are the only things that shall be taken as prima facie correct. I therefore ask that instead of the language contained in the report this language be inserted: And on the hearing in the appellate court the findings of fact of the said corpora- tion commission shall be prima facie evidence of the matters therein stated. Mr. Braxton: Mr. Chairman, the Interstate Commerce Commission has no right to fix rates. It can only denounce rates, and it seems to me the case is not exactly anala- gous to this one. The Chairman: The question is upon the adoption of the amendment proposed by the gentleman from Norfolk (Mr. Thom.) The amendment was rejected. DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF YIEGIXIA. 24T9 Mr. Thorn: Mr. Chairman, going back now to line 180, on the previous page, I wish to call the attention of the chairman of the committee to the language there which seems to me, upon consideration, to require some change. I do not know from the language which I am now alluding to whether it would he within the power of the commission or of the General Assembly to certify or require the certification of either the facts of the evidence, as that tribunal might determine. I do not know the views of the chairman on that subject, but I would suggest that the words "the facts or" be stricken out, and that the words "witn the findings of fact" be inserted after the word "evidence" in the same line, so that the clause will read: But the General Assembly shall provide by law for the certification by said com- mission to the appellate court, of all the evidence with the findings of fact upon which the action appealed from was based? &c. So that we will have both the findings of fact and the evidence carried up to the Court of Appeals. Mr. William A. Anderson: Do I understand that the effect of the amendment offered by the gentleman from Norfolk (Mr. Thorn) is to require that all the facts, and all the evidence also shall be certified to tne court? Mr. Thom: Its effect is to provide for the certification of the evidence with the findings of fact on that evidence made by the commission. Mr. William A. Anderson: Under the procedure now obtaining in reference to an appeal either the facts proved, as certified by an inferior court, or the evidence is certi- fied. If the evidence is certified, as a rule the appellant stands in the position of a demurrent to the evidence. If the facts proved are certified, of course ail question as to fact is removed, but if the lower tribunal fails to certify all of the facts, he may intro- duce bystanders for the purpose of showing what was proved. Mr. Thom: I understand that is the present rule, but I also understand the Court of Appeals is to take the findings of fact and conclusions of this commission and regard them as prima facie correct. In order that they may say at last whether they are cor- rect or not, you are obliged to have the evidence there. Suppose you have only the facts. Then it is practically doing away with the efficacy of an appeal, and I think there ought to be before the court not only the findings of fact, which the article requires the Court of Appeals to regard as prima facie correct, but the evidence, so that the Court of Appeals can say whether at last those facts are correct. The Chairman: The question is on the adoption of the amendment offered by the gentleman from Norfolk. Mr. Thom: At the request of the chairman of the committee, I withdraw that amendment for the present, reserving the privilege of renewing the motion at a later period. The Chairman: If there are no further amendments to be offered to sub-section F. the Secretary will read the next sub-section. G. Whenever the court, upon appeal, shall reverse an order of said commission affecting the rates of charges, or the classification of traffic, of any transportation or transmission company, it shall, at the same time, substitute for the reversed order, the order which in its opinion the commission should have entered at the time of entering, and in lieu of, the order appealed from, otherwise the reversal order shall not be valid. Such substituted order shall have the same force and effect (and none other) as if it had been entered by the com.mission at the time the original order appealed from was entered. The right of the commission to prescribe and enforce rates, charges, classifica- tions, rules and regulations affecting any and all actions of the- commission theretofore entered by it and appealed from, but based upon circumstances of conditions different from those existing at the time the order appealed from was made, shall not be sus- pended or impaired by reason of the pendency of such appeal; but no order of said com- mission prescribing or altering such rates, classifications, rules or regulation shall be retroactive. ^480 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. The Chairman: Are there any amendments to be offered to sub-section G? Mr. Braxton: In sub-section G, in line 197, the word "of" between the words "rates" and "charges," should be stricken out; and in line 214, of the same sub-section, after the word "rates" the word "charges" should be inserted. The Chairman: Those changes will be made, without objection. Mr. Hunton: Mr. Chairman, I move that the following words be stricken out of sub- section G, beginning in' line 203: Such substituted order shall have the same force and effect (and none other) as if it had been entered by the commission at the time the original order appealed from was entered. The section is there dealing with the order to be entered by the Court of Appeals in the event that the order of the commission is reversed. It makes the order of the Court of Appeals retroactive, and to have its effect as of the same day the order appealed from v/ould have had effect. That is certainly dangerous, it seems to me. Mr. Green: Is not that the case in every decree of the Court of Appeals affirming or reversing the decision of the court below? Mr. Hunton: Mr. Chairman, I want to say that this clause provides that the new order entered by the Court of Appeals shall have the same effect as if it had been origin- ally entered by the commission. In other words, it makes the order of the Court ofi Appeals retroactive. We know, too, that there is a previous provision of this section which provides that the company failing to obey the order of the commission may be fined $500 a day, and that each day of such failure shall constitute a separate offence. Now, if you make this order of the court retroactive, and make it take its effect as of the date of the order appealed from had its effect, certainly there is danger that you would expose this successful appellant from the order of the commission to the imposition of these additional fines. Mr. Brooke: You mean the unsuccessful appellant, do you not? Mr. Hunton: No, the successful appellant. Because, if the railroad company appeals from the order of the commission and wins its suit, this new order may enter, although the decision of the commission was. reversed, and take its effect as of the date of the order appealed from. That is, the new order of the court dates back to the date of the order of the commission, and it might be that this company, which has only availed itself of the right of appeal, would be hauled up to recover against it a fine of $500 a day which is prescribed for any violation of the order of the commission. It seems to me that this provision is distinctly open to that danger. Let me illustrate. Suppose the commission were to decide some matter and an appeal was taken; and suppose the court should say by virtue of this provision here, that it was not a proper decision, but that thus and so was proper. Then, according to the provisions of this article there would certainly be danger that the railroad company, because it had not obeyed the terms of the order just entered by the Court of Appeals, would be fined for its failure to obey and this law would be retroactive, and in that event probably uncon- stitutional, as ex poste facto. In addition to that this appeal bond, which is given to cover the costs and to restore any excessive charges, although the company m.ay have appealed, won its case and re- versed the order of the court below, this provision that the order m-ust have the same effect as if entered upon the very day the order appealed from was entered might make them refund to those parties litigant in pursuance of the order entered, when it had appealed from the prior order and had won its case in court. If this committee thinks that is right and proper, of course they will retain that provision, but it does seem to me that it is not a proper provision to insure reasonable and fair dealing with an appellant. Not only is it unprecedented, but it is absolutely unnecessary and in violation of their victory which they won. it would minimize it and take it from them. I would say to the gentleman from Danville that if his suggestion is right, why put this sentence in here DEBATES OF THE C0X5TITUTI0XAL COXVEXTIOX OF VIRGIXIA. 2^81 at all? It is absolutely unnecessary if his idea of the construction of the la^ is correct. Mr. Braxton: I am unable to agree with the suggestion of my friend from Fauquier. li seems to me and to the other members of the Committee on Corporations, that the provision is not subject to the vievv-s the gentleman from Fauquier thinks it is, and we think it is a very important and essential provision to go in here. I can illustrate my views perhaps better by giving you a supposed than an actual case. Before proceeding witn that I will call attention to. the fact that it does not apply in terms to any sort of rule or regulation or action of the commission except one affect- ing the rates and charges of a road. The other rules and regulations for which they may be fined and probably would be fined for failure to observe them, are not covered by this sub-section. We will take a case of this sort: A railroad company is charging on a given amount of freight over a given distance, 50 cents. It may be that the reasonable and just rate, and the rate which it ought to charge, is 20 cents. The commission fixes the rate of 20 cents, and the railroad company appeals from it. Under the former provisions that rail- road company can give a bond and suspend the operation of that requirement of the commission that they shall charge 20 cents until their appeal is determined; and in the meantime the company can continue to charge 50 cents. Now it is possible that in spife of all arrangements we have made for a speedy trial, it may be that three months or even six months vrill elapse before that appeal is settled. In the meantime the railroad company goes on charging 50 cents where it ought to charge 20 cents. Now. if when the Court of Appeals afhims — in case it should affirm — the decision of the commission, and says that its decision that the rate shall be 20 cents is a proper decision and should stand, unless that decision takes effect as of the time when the commission entered its order, you vvill see that the refunding bond is of no service, be- cause if it only takes effect from the time the court enters its order, there has been no overcharge. Mr. Hunton: Does my friend mean that in case the decision of the commission is affirmed, tne supersedeas bond would be of no effect witnout this provision? Mr. Braxton: Let me see if 1 can state the proposition again. Unless the action of the court affirming the 20-cent rate shall take effect from the time that rate was first ordered by the commission, and in case it should take effect only from the time it is affirmed by the court, there would have been no overcharge except from the day of the affirmation by the court. Mr, Hunton: Is it not a condition of the appeal bond that in the event the appellant fails to succeed in his appeal he shall repay and refund all excess? Mr. Braxton: Certainly. Mr. Hunton: Then how could any difficulty arise in a case where the commission was affirmed in its judgment? Mr. Braxton: The point I make is this: That unless the action of the court was retroative and did make the 20-cent rate take effect from the time the commission entered it, it would be utterly inconsistent with the other provision Ihat they must refund the overcharge pending the appeal. Mr. Hunton: Let us see a moment. The commission decides the matter, and an appeal is taken from that decision by the carrier. The decision is suspended through the giving way by the company of a supersedeas bond, one of the conditions of which is that if the company does not succeed in its appeal it shall refund all overcharges. Does my friend mean that without this provision to which I have referred that under the cir- cumstances I have described that bond would not be effectice? Mr. Braxton: I will answer that, but I prefer not to answer it categorically, be- cause I cannot state my position correctly without explanation. I think if this provision were taken out, and nothing said on that subject, it is very probable that the effect of the other provision requiring the companies to refund would be that the decision of the court would be retroactive in that respect. 2482 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. The point Of my argument was to show you that inasmuch as it probably would be, and necessarily would be, retroactive, unless we destroy the effect of the bond, you are not hurt by our saying absolutely that it must be. That is the point. Mr. Hunton: What I wanted to say is this: If the order of the commission is affirmed, then there is no question that its order from which the appeal was taken takes effect from the time it was entered by the commission, and that the supersedeas bond carries all the effects provided here. But suppose that instead of being affirmed the order is reversed-^now, is it right that the successful appellant who has won his suit should have imposed upon him the penalties incident to an order which has just been entered as if it had been entered four or five months prior? That is the point of diffi- culty. Mr. Braxton: I will address myself to that. There are three conditions of affairs that can occur. One is in the supposed case that the court might affirm the order of the commission out and out, and say that 20 cents is proper, and I think my friend will agree that in that case it would take effect as of the time the order was entered. The second condition of affairs which might exist is that the court might sustain the appellant out and out, and say that the 50-cent rate it had been charging all along was the correct rate. Now, notwithstanding the fact that the commission had rendered such a decision let us look at that point. The court in that supposed case, says that the commission is abso- lutely wrong, and that the rate of 50 cents which the company was charging was a proper rate. Suppose that order had been entered by the commission at the time it did enter it. How cou^a the railroad company be subjecting itself to penalty for continuing to charge the rate which the commission said it had a right to charge? Mark you, here is. a railroad charging 50 cents. The commission says, as the court decided it ought lo have said, that 50 cents is the proper rate, and it continues to charge the proper rate. How could it make itself liable to any penalty? The only penalty it could be liable for would be for violating a requirement of the commission, which the court said the commission had no right to enter, and that would carry with it absolute immunity from liability, because its liability for failure to perform an order of the com- mission, you will observe, is a liability for its failure to perform any valid requirement of it; and if the court said by its decision on the appeal that the decision of the com- mission fixing the rate at 20 cents was not valid, and that the commission ought to have fixed it at 50 cents, and that was the rate the road had been charging, the road would not be under any liability for penalty, notv/ithstanding the fact that the decision of the court took effect as of the time the commission entered it. It would have been exactly in the status as if the commission had said, "You are to charge 50 cents, and you may continue to charge 5u cents." Mr. Hunton: The question I desire to ask is this: Take the illustration of the gen- tleman from Augusta that the railroad had been charging a rate of 50 cents, and on the first of January, we will say, the commission requires it to reduce that price to 20 cents; the railroad takes an appeal; and the Court of Appeals decides that neither the railroad nor the commission was right, that it ought to have been a 30-cent rate. Would not the language of that provision, making that order speak as of the first day of January, in- stead of at the time at which the appeal was decided, which we will say was in Novem- ber? Would not that expose that company, which had conducted its appeal successfully, to the penalties that would have accrued against it from the first day of January, while the matter was pending in the Court of Appeals? Mr. Braxton: That was the third case I desired to address myself to. My friend will recall that I stated there were three conditions of affairs which might exist, and that I wished to refer to them separately. First, that the commission might be sustained out and out, which we agree, would work no hardship; second, the railroad might be sus- tained out and out, and in that case there would be no hardship; third, suppose that where the just and reasonable rate would be 30 cents, the railroad has been charging 50 cents. The commission says it must charge 20 cents. Yet t"he court, when it entered DEBATES OF THE COXSTITUTIOXAL COXVEXTIOJsT OF VIRGIXIA. 2483 the order, reversed the commission and said "Your order fixing the rate at 20 cents is wrong, and in accordance with the provisions of sub-section G we will not proceed to say what you should have done. You should have fixed the rate at 30 cents." Now why do I say that shall take effect as of the time the commission should have entered it? Be- cause unless we do so the railroad would not have to pa>: a cent on this refunding bond, notwithstanding the fact that it had been charging' 50 cents all that time when it should have been charging 30 cents. The only penalty which as a matter of fact the road would be subjected to, would be that when it came to make its refund, it would refund the difference between 30 cents, which it ought to have charged, and 50 cents, rather than the difference between 20 cents and 50 cents. Otherwise, as I say, if the commission were reversed by the shadow of a fraction of a cent, it would let the railroad off from the duty of refunding anything, although it may have been charging ten times as much as it should have charged. Now, if I catch my friend's point correctly, it is this: That he does not object to having the railroad refund the difference between 30 cents and 50 cents, but that he fears in addition to that the railroad might be charged a penalty for its failure to obey what would have been the order of the commission if it had entered as at the time. Do I catch your meaning correctly? Mr. Hunton: Not absolutely correctly. That is my main objection to it. You do not understand me correctly when you say I have no objection to the other; because I think when a party lakes an appeal from an order of the commission and is successful in the Court of Appeals, he ought to get the full effect of the appeal, but I do maintain in addition to that, that the effect of the provisions of this article, expose that carrier to a fine of $500 a day from the time the commission's order was entered until the order of the Court of Appeals was rendered. Mr. Braxton: Here is a road, we will say, which is charging — to state an extreme case — $1.00 where it ought to charge 20 centSi. The commission puts the charge at 19 cents, and inasmuch as the commission has failed by one cent to put the charge at the proper amount in the opinion of the court, that railroad, which has been charging $1.00 where it ought to have been charging 20 cents., because the court says the commission should have made it 20 cents instead of 19 cents, couid be excused from refunding that other 80 cents. The opinion of the Committee on Corporations is that the railroad in any case should be required to refund the difference between what it is charging and what the court say is a fair and just charge from the time the commission entered the order. Furthermore, in regard to the fine and penalty that can be put upon it. We thought it was fair to assume that the commission would never put any fine or penalty upon them further than the refunding of their claim, and that if it did so, it should be a matter of appeal to the court to say whether it was just and reasonable that, in addition to refunding the overcharge, they should be fined so much per diem. We relied upon what the court said in the case I read from the other day, when it as- sumed that because you arm a commission with powder, it is going to abuse it. The court said, " It is enough to say in respect to these matters, at least so far as this case is concerned, that it is not to be supposed that the Legislature of any State or any com- mission appointed under the authority of the State will ever engage in a deliberate attempt to cripple or destroy institutions of great value, as railroads." And if they do it from any such fine they can impose upon them, they can again go to the Court of Appeals to inquire into the justice and reasonableness of it. So I think my friend's fear is a danger that will never exist as a matter of fact, and unless you do say this shall have the same force, and none other, as if it had been entered by the commission, you leave the door open to another great danger. You make it a hard and fast rule, if it is one affirmed by the court, so that the commission can never change it again, although the circumstances under v-hich the court entered it may have changed. In the supposed case the court may say that, according to the case as made out before them, 30 cents is a reasonable rate. Unless that is given the effect and none DEBATES OF THE COJs^STITUTIOA^AL CONVENTIOIvr OF VIRGINIA. other that a decision of the commission would have, although the circumstances and conditions might afterwards change, so that a reasonable rate would be 15 cents, still there would be no possible way under this law of ever changing it. But we provide that having the same force and effect that it has if the commission had entered it, the commission may change it like it can change any other rate, if the conditions under which it is entered should afterwards change. It is also essential to do so in order to make the railroads refund the difference between what it is actually charging and what the Court of Appeals said it ought to charge, whether that is exactly what the com- mission said or not. If it affirms the commission in full, the railroad shall return the difference between what it charges and what the commission says, but if it reverses the commission and fixes another rate, it shall refund the difference between what it is charging and the rate which the court on its own motion says is fair and just. Otherwise you would have a railroad saying " We have charged you fifty cents. The court, on its own motion, says we ought not to have charged but 30 cents; so we will not refund a single, solitary cent to you, and the refunding is an absolute nullity if we can get the court to change the order of the commission by the shade of a shadow of an inch." So if you are going to have the court change the order of the commission the only effect will be merely to change the amount that the railroad is to refund. I trust the committee will sustain the report in that respect, as we regard it as a very important and essential one, and think that the danger referred to by my friend is purely imaginary. Mr. Barbour: Before the gentleman from Fauquier replies to the gentleman from Augusta, I want to call his attention to the further fact that a railroad company would under this provision be liable to no uenalty at all until after service of a valid order from the commission, and the first order of the commission having been declared in- valid there cannot be this penalty imposed until ten days after a valid order has been served, which would be the substituted rate by the court. Mr. Hunton: Mr. Chairman, as I understand the gentleman from Augusta, he seems to admit that this fine may be imposed, but whether it will be imposed or not is another matter, and he doubts whether it ever would be, and if imposed,- that it might be cor- rected on appeal. Well, now, we remember that his preceding section makes it a con- stitutional offense, and makes the fine a constitutional fine; and the question is whether upon appeal you could correct that matter in the Court of Appeals., and if his article is subject to this criticism, whether you would not expose this appellant, without power of correction by appeal, because this very article provides for it, to the imposition of this fine day by day from the time the original order was entered until the appeal was decided in the appellate court. The Chairman: The question is on the adoption of the amendment offered by the gentleman from Fauquier (Mr. Hunton). The amendment was rejected. The Chairman: If there are no further amendments to be offered to sub-section G, the Secretary will read sub-section H. H. The right of any person to institute and prosecute in the ordinary courts of justice, any action, suit or motion against any transportation or transmission company, for any claim or cause of action against such company, shall not be extinguished or impaired, by reason of any fine or other penalty which the said commission may inflict, . or be authorized to inflict upon such company because of its breach of any public duty, or its failure to comply with any order or requirement of said commission; but, m no such proceeding by any person against such corporation, shall the reasonableness, just- ness or validity of any charge, classification of traffic, rule, regulation or requirement theretofore prescribed by said commission, within the scope of its authority, be ques- tioned. Mr. Robertson: Will the gentleman allow me to occupy the floor a moment? If the committee will allow me to do so. I will be very much obliged to them. I will move to strike out the sub-section. I will just state, if the gentlemen from Pulaski will DEBATES OE THE COXSTITUTIOXAL COXYEXTIOX OE TIEGIXIA. 2485 not insist on his point of order, that the effect of the amendment I wish to offer is this. I do not think a private citizen ought to sue, for instance, in a magistrate's court, and collect a penalty from one of these carriers on account of the commission fixing rates, when that matter is pending in the Court of Appeals. He may proceed to judgment and execution and collect money, and the Court of Appeals may afterwards reverse what the commission has done, and the railroad company would have no redress against the individual who got it. ^ly idea was to require him to give a bond with sufficient se- curity to refund the money that he collects, in case the commission should he reversed when there is an appeal pending. IMr. Braxton: Would not a motion for a new trial there cover the case? Mr. Robertson: No, sir. Suppose it is in the circuit court, and the circuit court' gives a judgment. Mr. Braxton: Would not that same thing exist in any case where the Court of Appeals might change a law and reverse a decision? Mr. Robertson: No, sir; it does not exist anywhere else on the face of God's earth, because this is the only place I ever knew where a court was also a legislative body. It. cannot exist in a court. Here is a body that fixes rates that bind everybody in the Commonwealth. It is a legislative act, as these gentlemen say. The commission also acts as a court. An appeal is allowed from their action, though they are acting as a Legislature. Now, I say you cannot find a parallel case in the courts. Here a private individual can take advantage of the rate having been fixed by this commission as a legislative act. He can sue the railroad company for not complying with it. He can get his money and put it in his pocket while the appeal is pending between the Com- monwealth of Virginia and the railroad company, because the Commonwealth is made a party. Mr. Braxton: May I ask my friend if that thing cotild not be done exactly if that rate had been fixed by the Legislature? Could not the man do exactly the same thing? Mr. Robertson: Yes, sir; but I say it is unfair to allow a private citizen to get the benefit of a temporary order which would be in force so long as the appeal was pend- ing, but as soon as the Court of Appeals acted on it it would not be in force. Mr. Meredith: Do you believe it possible for a suit to be based upon a decree of this-, commission which has been appealed from? Mr. Robertson: Not entirely, perhaps. Mr. Meredith: How could it? If it is appealed from, it will stay all proceedings. It does not make any difference whether it is suspended between the Commonwealth and any particular railroad, as between any liability arising from it. Mr. Robertson: I do not see any use of having a provision here at all. Mr. Meredith: It says that the fact that a penalty has been imposed shall not de- stroy a common law right. Mr. Hunton: Does not sub-section h apply to any order of the commission, al- though an appeal is pending from that? Is not the language so broad as to make it apply to any order of the commission, although an appeal is pending from it? Mr Meredith: But it says nothing except that the fact that an appeal has been imposed shall not destroy a common law right. So far as I can construe this section, it means nothing more than that the mere imposition of a fine or penalty shall not destroy a common law right; but when you are suing on that common law right, you shall not attack the judgment of this com- mission collaterally. Now. if there is an appeal taken upon which you have undertaken to institute your right of action, the pleading of the pendency of the appeal stops the enforcement of the judgment. You have no right to sue, because the judgment has not become a finality upon which you base your cause of action. Mr. Thorn: I should like to know if he and the friends with whom he is co-operat- ing will accept such addition to that language as will exclude cases pending on appeal? Would you say that cases pending on appeal are not included within the last clausa of that provision? 2486 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Mr. Meredith: I would not say it, for this simple reason, that it does seem to me it is useless to incumber a very lengthy paper— we all admit it is lengthy— with expressions that are utterly useless it seems to me. On motion of Mr. Braxton the committee rose and Mr. Ayers took the chair as presiding ofRcer. On motion of Mr. Thom the Convention adjourned until Monday, February 17, 1902, at 12 o'clock M. MONDAY, February 17, 1902. The Convention met at 10 o'clock A. M. The committee appointed to secure a hall for the use of the Convention during the session of the Legislature recommended renting the Mechanics' Institute. The recommendation was agreed to. CORPORATIONS. On motion of Mr. Braxton the Convention resolved itself into a Committee of the Whole for the further consideration of the report of the Committee on Corporations, Mr. Ayers in the chair. The chairman: The motion before the Committee is the motion to strike out sub- section H. The gentleman from Fauquier has the floor. Mr. Hunton: Mr. Chairman, it was contended by the gentleman from Richmond (Mr. Meredith) just before the Committee rose on Saturday last, that in the event a suit was brought by a shipper to recover a rate that was larger than that fixed by the commission, in the event there was an appeal pending from that order, if it had not been suspended, he could not recover judgment under the language of sub-section H. It seems to me it is only necessary to read the language of the sub-section itself to answer the proposition of the gentleman from Richmond. The latter part of it be- ginning in line 224, is in the following language: But, in no such proceeding by any person against such corporation, shall the reason- ableness, justness or validity of any charge, classification of traffic, rule, regulation or requirement theretofore prescribed by said commission, within the scope of its authority, be questioned. It says very clearly that no regulation or classification or fixing of rate thereto- fore prescribed by said commission. There is nothing to limit that to a rate of classi- fication that has been prescribed by the commission, which is not then pending in the Court of Appeals. It is probably true that when a suspending bond has been given, the position of the gentleman from Richmond would be correct; but when no suspending bond is given, while his would be the general proposition, this language would clearly control and give the right of action in every such case. It says: Therefore prescribed by said commission. That is the language of it. Now, if there is no suspending order it seems to me that it would clearly permit a recovery of any such amount in a justice's court, which I believe is admitted by the advocates of this measure not to be right or proper; and they claim that it is so clear that it is unnecessary to make any such amendment. If this body chooses to leave the language in that shape when certainly it is subject to that construction, and when in my opinion that is the only construction that can be placed upon it, it is for them to decide; but it seems to me that when the language DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF YIRGIXIA. 2^87 says any regulation heretofore prescribed by said commission, that is broad enough to cover it, whether there is an appeal pending or not, in the event there is no sus- pending bond. Mr, Braxton: Mr. Chairman, out of an abundance of caution, I suggest that after the word "authority," in line 229, the words "and not therefore reversed on appeal, or rescinded " be inserted. I feel reasonably certain that it is the effect of the language as it now is, but il will certainly put it beyond all peradventure. I move to insert in line 229, after the word " authority,'' the words " and not therefore reversed on appeal or rescinded," so that it would read in this way: But, in no such proceeding by any person against such corporation, shall the reasonableness, justness or validity of any charge, classification of traffic, rule, regula- tion or requirement theretofore prescribed by said commission, within the scope of its authority, and not theretofore reeversed on appeal or rescinded, be questioned. Mr. Hunton: May I ask the gentleman from Augusta whether that language is broad enough to exclude it? Mr, Braxton: No, sir; it is intentionally not broad enough. Mr. Chairman, I suppose it would be better for me to state what I wish to state now. If I understand my friends on the opposite view of this case, their position is that if the order or regulation of the commission which is involved collaterally in any private litigation has been appealed from and the appeal is still pending, that decision of the commission should not be regarded as final in the court in which the private litigation exists, I must earnestly object to that. The effect of that would be that if the appeal were taken, pending the appeal the same matter could be reopened and investigated by every subordinate court in the land in which that matter could be collaterally considered. It has been the purpose, and it runs through the whole report, that there is but one way to review the action of this commission, and that is on appeal, and it seems to us that such a review should not be made by any other court than the Court of Appeals, and that on appeal; but if what my friend suggests were done, when a commission, upon considering a case in which a railroad is charging a 50 cent rate, had reduced that rate to 20 cents, the railroad could take an appeal, refuse to give any suspending bond, and yet in any litigation that would arise between it and any indl* vidual, any subordinate court, pending that appeal, could go into the consideration of the very thing that was before the Court of Appeals, that is, as to w^hether the decision of the commission was right or not. The effect of the amendment which I present here is that the decision of the com- mission on the rate or the rule or the regulation is absolutely binding upon every sub- ordinate court in this land, unless it has been rescinded by the commission itself, or the Legislature, or unless it has been reversed by the Court of Appeals. It seems to me, Mr. Chairman, that the difficulty spoken of here is the same difficulty that exists in every case where a question goes to the Court of Appeals. If a statute is passed by the Legislature, is it possible that no man can avail himself of that statute because some other man has a case involving the constitutionality of it pending in the Court of Appeals? Is it not the rule that until the Court of Appeals declares it uncon- stitutional, the statute remains in force absolutely? Now, when a question which is pending before the Court of Appeals is involved In some other litigation in a subordinate court, it is left to the sound discretion of the court, whether upon the representation of such a condition of things, it will suspend its action until the Court of Appeals has spoken on it, and that can be done here; but to say that that court can of its own motion go to work and inquire into the justness and reasonableness of a rule made by the commission, which the Supreme Court alone has the right to inquire into, I say would upset the entire position and the entire theory upon which we are acting. 2488 DEBATES OF TPIE CONSTITUTIONAL CONVENTION OF VIRGINIA. A few years ago a question of this nature was involved in a case in the Court of Appeals, as to whether the right of subrogation existed between partners. It was de- cided in a certain way, and after that decision was rendered a rehearing was granted, and the case was in the breasts of the Supreme Court for from six to twelve months before it was finally decided. Could it be possible that pending that condition of things every subordinate court in the land would have the right of reviewing the decision of the Court of Appeals, and passing on that question which the Court of Appeals alone could pass on? The practice, as I understand it, as a matter of fact, was, that in every case brought to the attention of a court in which that matter was involved, when that question was then pending before the Supreme Court, the court in its sound discretion granted a con- tinuance until the matter was settled by the Supreme Court. Now, in the case as we propose it here, if in a litigation between any individual or corporation and the railroad company, the question of the validity, justness and reasonableness of a rate which had been fixed by the commission, should come into question, and it should be shown that the commission, in the case supposed had fixed a 20 cent rate upon the representation by the railroad that the justness and validity of that action was. then pending before the Supreme Court on appeal, it would be en- tirely competent for the lower court to grant a continuance on that ground until the Supreme Court of Appeals had acted on it; and should the court refuse to do it and should it hold that the justness and reasonableness of it was a settled matter, and fore© the parties into trial, they could appeal from it again and carry it to the Court of Appeals which would be governed by its own decision in the matter. The whole purport and effect of this is to prevent a practical review of the action of this commission by the subordinate courts of this land. If such a thing be made possible, you have taken out that brick which will cause the whole edifice here to fall, if the action of this commission can be interrupted, reviewed and reversed by every subordinate tribunal in this land, from the justice of the peace up. Therefore, we provide that when the decision has been reached by the commission, It shall be regarded as a valid decision, that its justness and its reasonableness shall not be questioned by any court of this land, except upon an appeal to the Supreme Court, unless it can be shown that it has already been reversed by the Supreme Court or been rescinded by the commission or the Legislature, as the case may be. Mr. Thom: Reverting to the position of the gentleman that if an appeal was taken from the lower court to the Court of Appeals in this case by the individual, then the Court of Appeals could determine the question in a way that would question the reason- ableness., justness or validity of the charge established by the commission, do you think that position is sound in law? Mr. Braxton: My position, if the gentleman will permit me, v/as this, that when the parties in a private litigation should rely upon a rate or a regulation that had been established by this commission as a legal and valid one, and the railroad company should make the suggestion that that m.atter was pending in the Court of Appeals, as to its reasonableness and justness., and would ask for a continuance on that ground, and the court would refuse the continua^nce, that would in my judgment be a valid ground for reversing the decision of the court below. If the court should hold that that was the m.atter which controlled the litigation and that substantial justice had not been done, and I think that when that case went up on a writ of error, objecting to the decision of the court refusing to give the continuance, the Court of Appeals having in the mean- time reversed the decision of the commission, there would be no question about it also reversing the decision of the lower court refusing to give the continuance. But if, on the other hand, the court had in the meantime affirmed the decision of the commission, they would refuse to grant an appeal on the ground that it was damnum absque injuria. I read from the concurring opinion of Justice Miller in the case of Chicago Rail- road Company vs. Minnesota, 134 U. S., 460. In laying down some principles that DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 2489 control such a case as this, and the fact that the decision of the commission must be subject to appeal, the judge says: But until the judiciary has been appealed to to declare the regulations made, whether by the Legislature or the commission, voidable for the reasons mentioned, the tariff of rates so fixed is the law of the land, and must be submitted to both by the carrier and the parties with whom he deals. That the proper, if not the only, mode of judicial relief against the tariff of rates established by the Legislature or by its commissioner, is by a bill in chancery, asserting its unreasonable character, and its conflict with the Constitution of the United States, and asking a decree of the court, forbidding the corporation from exacting such fare as excessive, or establishing its right to collect the rates as being within the limits for a just compensation for the service rendered. That until this is done — That is, until the action of the commission has been corrected in the way provided by law — It is not competent for each individual having dealings with the carrying corporation, or for the corporation with regard to each individual who demands its services, to raise a contest in the courts over the questions which ought to be settled in the general and conclusive method. As my friend from Richmond (Mr. Meredith) said the other day, the whole question is whether the action of this commission can be attacked collaterally or whether it must be attacked only in the direct method provided for by law; and aside from the reasoning of the case, I think the authority I have just read here will be conclusive. Mr. Thorn: I cannot conceive that the authority just read has any bearing on the question we are now discussing, nor can I conceive that the amendment proposed by the gentleman from Augusta (Mr. Braxton) in any way touches the difficulty we are now trying to obviate. If at the time the private case in the lower court is being tried, the decision of the commission has been reversed of course it would have no binding effect upon the proceeding in the lower court, but suppose either of two cases: Suppose ther© is an appeal pending, or suppose an injunction has been awarded by some court against the action of the commission, questioning its jurisdiction and questioning its validity. Now, notwithstanding that, an appeal may be taken which might result in an en- tire reversal of the commission, and notwithstanding the pendency of an injunction pro- ceeding, the effect of which might be to wipe out the finding of the commission as contrary to this authority, or for some other reason, still an individual would have a right to go into a court of this Commonwealth, sue the carrier and have his case tried upon the assumption that this action of the commission, which thereafter turns out to be absolutely invalid, and is subsequently reversed or annulled, must, for the law of this individual case, be held to be absolutely unquestionable. Is that right? It will not do for m.y friend to point out an objection on the other side which any proposed language will result in. We must try to find out what the difficulty is, and to find language to remedy it. As I understand it, his difficulty is that the mere pendency of an appeal will absolutely enable any court, no matter how low, to question the reasonableness, justness or validity of the charge. I can conceive there is some justice in that criticism, but that is not the only language that will meet it. My friend says that it would be error in the lower court not to continue a case under these circumstances. I do not agree with him as to its error. I agree with him it would be unjust, but under the language of his article, as written, I believe the legal right would exist there almost by the mandate of the Constitution to go on and determine the case without waiting for action on appeal or the action of the court in the injunction pro- ceeding. A gentleman here has called my attention to the fact that the language is that the rights of the individual shall neither be extinguished nor impaired. A continuance might be considered an impairment of the promptness of his remedy. 157 — Const. Deb. 2490 DEBATES OF THE CONSTITUTIOISTAL CONVEJ^TIOiq" OF VIRGI^flA. Mr. Carter: Would not a large number of those eases come before the magistrates? Mr. Thom: I think they would, and I do not think you will ever have any contin- uances before magistrates. Mr. Meredith: Do you think the magistrate ought to set aside the decision of the commission? Mr. Thorn: No; I do not ask that. I will ask if gentlemen will meet us on this: To add at the end of that clause these words: "But in no such case shall the case be heard against the objection of either party while there is an appeal or other legal pro- ceedings to question the action of the commission pending and undetermined." Mr. Braxton: If there is no further debate, I should be glad to have the amendment put as I offered it, that is, in line 229, after the word "authority," insert the words "and not theretofore reversed on appeal, or rescinded." I cannot help but think, and such of my associates as I have been able to confer with agree with me, that would afford all the protection that could possibly be asked for. Mr. Thom: Mr. Chairman, I want to say, so far as that goes, that I have no objec- tion to that. I am going to make my amendment subsequently. The Chairman: The Secretary will read the amendment. At the end of line 229, on page 15, add these words: And not theretofore reversed on appeal or rescinded, Mr. Wysor: Mr. Chairman, I object to the am.endment offered by the chairman of the committee (Mr. Braxton). The committee will observe that that language does not mean anything at all. It says a decision not theretofore reversed and rescinded shall not be binding. Of course, if it is reversed and rescinded, it is wiped out, and there is no necessity to say that will be binding. The Committee on Revision will cut those words out when it comes to them. There is no need of such words as that in the provision. I hope the amendment will be voted dov/n, and that the section will be adopted as it v/as originally reported. The amendment was rejected. Mr. Thom: Mr. Chairman, I move to add to the end of sub-section H, after a semi- colon, these words: "But in no such case shall the case be heard against the objection of either party while there is an appeal or other legal proceeding to question the action of the commission, which is relied on, pending and undetermined." Gentlemen, I trust the minds of this committee will deal fairly with this question. I trust the minds of the committee will be open to listen to reason about it. If it is determined beforehand that no matter what reason and no matter what justice there may be in a proposition, it is not to be considered unless it comes from certain sources in this Convention, then the balance of us might just as well get up and go home. Now, I shall appeal for nothing at the hands of the Convention except a consideration of the reason that is underlying the proposition. These gentlemen have brought in a re- port here which means this, and they will admit it means this: that after the finding of this commission, the very next morning, any individual complaining of one of these carriers can go into court, institute his proceeding, and take that finding of the commis- sion as conclusively just, reasonable and right, no matter if an appeal be at once taken or an injunction be at once granted against it, and the ultimate decision be against the fmding of the commission. Now, are you gentlemen of the Convention ready to say that that shall be the law of this Commonwealth? Is it right that Mr. A, who slips, into court next morning after the finding of a commission and brings a suit based upon the finding of that commission, which is subsequently reversed on appeal, or which is set aside by the injunction power of a court, shall succeed upon the assumption that that which is subsequently reversed or set aside is unassailable in that case before the lower court? That matter cannot be reached on appeal in the case by the individual, because the DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIEGIXIA. 2491 mere question to the Court of Appeals in the individual case will be whether there was error or not, and the argument will be unanswerable that the lov/er court regarded the finding of this commission as conclusively right by reason of a constitutional mandate. Will the Court of Appeals say it was error for it to do so? Is it not right, if there is to be a principle inserted in this Constitution that the action of the commission shall be considered as conclusively reasonable and just, that the case in which that position is taken shall be heard while there is an appeal pending or an injunction proceeding pend- ing to Question that very proceeding. Xow, if that be not right. I should like to know why; and I appeal to the gentlemen of the Convention to act in their individual capacity in this matter, and to be guided by their own intelligence and not to turn down propositions simply because they do not emanate from certain sources. If my proposition is not inherently right and just, vote it down; but if it is inherently right and just, then I appeal to you to stand up to it like men, and let us have it in this Constitution; and if it is not right, I should like to know the reason, and for the language to be framed so that it will be made right. What I am trying to accomplish is that the decision of the commission shall not be considered conclusively right, just and reasonable, in a case between indi- viduals, when( thereafter, it may be set aside either on appeal or by the injunction power of the court. I ask you whether that is not right. It has just been suggested to me that ever3' man who has made a complaint before the commission, in whose favor the com- mission may have decided, may be taken up on appeal in that case, and meanwhile he may have sued the carrier, basing his suit upon the action of the commission, and have it determined in his favor before you can question the reasonableness of the ruling of the commission, and yet on appeal the action of the commission may be set aside and re- versed. Mr. Waddill: In case an appeal is taken and the action is affirmed, is not the citizen protected by the supersedeas? Mr. Thom: Yes; if a supersedeas is given; and if not, his suit is lying there ready to go on with. Mr. Meredith: I do not suppose I need reply to so much of the speech of the gen- tleman who has just taken his seat, as appeals to you to act as men. That seems to me to have been a suggestion that need not have been made to a body of men like this. Nor do I suppose I need reply to so much of it as has intimated that you are following blindly any particular lead. Now, let us see what is asked by the gentleman from Norfolk. Let us see whether he is asking a right thing, before we make up our minds to support it. This report gives him an appeal as of right, a power and right that no other citizen of this Com- monwealth has. except in one or two cases — you or I may have our property involved, and we have no right of appeal, as of right. The court has got to pass upon the question whether it is a meritorous request, and whether there has been any error committed. But these corporations are given an appeal as of right. So you cannot destroy their right of appeal. In addition to that, if they will give a bond they suspend the action of the commission. They get ample protection if they will take the sam^ course that you and I have to take if we want to suspend a judgment. In the first place, you put them above the balance of us by saying that they shall have the right of appeal, and then you give them the same protection in another manner, by sa^'ing that if they will give a suspending bond the decision of the commission is suspended. Mr. Brooke: Do I understand you to mean that if a suspending bond is given in a matter which is pending before the commission, the ruling which has been made by the commission is not to be considered as just, and reasonable in any collateral proceeding? Mr. Meredith: I will reply to the gentleman by asking him if he ever knew a judg- ment of any court to be binding when an appeal is granted? [Mr. Brooke: I have never known a Constitution to say so. yiT. Meredith: The Constitution never has said so, and it does not say so here. It 2492 DEBATES OF THE COXSTITUTIOXAL CONVENTIOIsT OF VIRGINIA. simply says that you shall not attack the reasonableness of the ruling. There is no decision of the commission as long as it is suspended? How can a decision be an active decision when that decision has been suspended? Does not the suspension order itself destroy, temporarily, the effect of the decision? Mr. Brooke: It does in that particular case in which the suspension order is given. Mr. Meredith: It does it as to that particular thing as to which you want to raise a controversy. It suspends the decision as to that principle, and the validity and reason- ableness thereof. I say the entire decision of the commission is suspended in mid-air until the Supreme Court shall say what is right. This gives them a chance to defend themselves. But they want to say: If you render a decision against me, and I take an appeal, I will not give any suspending bond, and if you undertake to enforce your rights against me, I will turn to this provision the gentleman from Norfolk has asked to be put into this report, providing that if during the pendency of my appeal, the decision of the commission is suspended. That is virtually the effect of it. The effect is to get the effect of a suspension order without giving a suspending bond, and without giving to any man the protection he would have in the event of a favorable decision, if there had been a suspending bond. In other words, it simply relieves them from all responsibility and liability that would acrue to them if they were required to give a suspending bond, be- cause you suspend the effect of the decision by the very fact of an appeal. I respectfully submit that, no matter how biased we may be, we should not allow our minds to be swayed from what we have determined upon here, that this ruling shall only be reversed by a decision of the Supreme Court, that these gentlemen shall have the right to test that matter by going to the Supreme Court, that if they do not want the decision of the commission to be enforced, they must give a suspending bond. Mr. Hamilton: Are you willing to make the language there clear enough to show just what you think it does mean, namely, that if a suspending bond is given it stops all proceedings? Mr. Meredith: No, sir; to insert a half dozen lines into this report simply destroys the symmetry of it. No man can tell where we are going to land, when gentlemen rise on this floor and desire to insert half a dozen lines here and half a dozen lines there, into this report. The appeal of the gentleman from Norfolk looked very fair on the face of it, when he asked if he should be compelled to go on and submit to a decision against him by individuals when the whole merit of the question was pending on appeal in the Court of Appeals; but when we turn to the report we find that the fact is that if he had given a suspending bond, he would have been protected, and at the same time the other side would be protected. When we are asked that these lines be inserted here, are we to do it to satisfy the gentleman's feelings of fear, or are we to decide these matters according to justice and the well-recognized principles of law and practice? I am asked why I would not put into the report language which would make it plain that if a suspending bond is given then the reasonableness of the decision may be attacked. My reply to that is very easy. If a suspending bond is given it necessarily suspends the decision of the commission. Let us recognize well-settled principles of law. What is the use of our saying that if a suspending bond is given the effect of it is to sus- pend the decision of the commission, when we know that by all rules of law that is the effect of it without stating it in express terms. There can be no need for inserting such a provision that the decision shall be suspended if a suspending bond is given, we are simply repeating what is the law of the land, and has been for ages. If we allow these gentlemen to have an appeal without giving a suspending bond, we give them a right which no other man has, and which no other man ought to have: it enables these cor- porations to take an appeal with the knowledge that if they can keep the matter in courts for twelve months they can keep on charging their excessive rates, and the mer- chants and men who are shipping grain from their farms are liable to these over-charges. But if they do what it is proper for them to do for the protection of these people, by giving a s.uspending bond, they can go on and charge their rates, and when the decision DEBATES OE THE COXSTITUTIO^" AL COXVEXTIOX OE VIEGIXIA. 2^93 is against them they -^ill do justice and no it speedily by reason of the fact that they have to make the returns provided for in this report. I earnestly urge that you gentlemen will not vote for the amendment of the gentle- man from Norfolk (Mr. Thom), for the effect of it will be to grant a protection they are not entitled to, except when they give a suspending bond. Mr. Brooke: Is it your understanding that a suspending bond given by a carrier, after a decision against it by the commission, does any more than suspend the action of the commission upon that decision? Does it have any effect whatever upon collateral proceedings? Of course it suspends any judgment that might be rendered in the pro- ceeding in which the suspending bond is given. Tv'e all understand that, and ordinarily We know that a suspending bond has no other effect than to suspend the execution of the judgment in a particular case. Do you think, in the case just given, that it sus- pends the proceeding in the civil cause? That is the trouble in my mind. Mr. Meredith: If the gentleman will turn to the section prescribing how that appeal bond may be given, he will see that it allows the company to go on making their charges, but requires it to keep an account of the excessive charges, and when the decision is finally rendered, if it is a decision in favor of the company, the bond is a nullity, and it does not have to pay anything. It has been justified in charging the rate. If the decision is against the corporation, and in favor of the individual, it prescribe what shall be done. In this case you have set out exactly- what is the effect of the appeal, that it suspends entirely the decision of the commission as to what the rate shall be and as to the propriety of the previous rate. Mr. Brooke; That applies to rates only. In that section you say: No action of the said commission prescribing or affecting the charges, or classifica- tion of traffic, of any transportation or transmission company shall be delayed or sus- pended — ISIark you, no action of the commissioner "shall be delayed or suspended in its opera- tion," "by reason of any appeal by such corporation. — Unless suspending bond is given. If the suspending bond is given, it is the action of the commission which is suspended; not the action of an individual in a collateral proceeding. Mr. Meredith: You have asked me a question. Are yoti willing to stand here and say that, in your belief, if a suspending bond is given, any man could go on and sue for damages or for overcharges pending that appeal? Mr. Brooke: I will answer that question. I may differ with you about it, and I may differ with you unfortunately; but I think that, under the language of this article, if a suspending bond is given in a matter between the commission and an individual, it does not at all suspend the right of an individual to bring his collaterial suit against the rail- road company to recover damages based upon the decision which has been suspended. Mr. Meredith: But does not the suspending bond suspend the decision of the com- mission on all these matters? Does it not provide that they may go on and make these charges, but shall keep an account of them and shall refund them, ultimately, if the decision of the court is against them? Does not that show, not that further proceedings of the commission are suspended, but that what has been done in the past is suspended? It is provided here what they miay go on and do, by way of charges, what the result is if the decision is in their favor, and -what the result is K it is against them. It is specifi- cally set forth here what shall be the effect of the suspending bond. I submit there is no earthly danger to these gentlemen if they will simply follow the course which is pre- scribed for them, and which is the course prescribed for individuals if they desire to suspend a judgment. In this case it is not a judgment as to what is right at any partic- ular time, but a judgment as to what shall be the course of performance of a public duty; but I say that, in effect, it is the same in principle. If a suspending bond is given, the act provides that you raay go on and do this thing. DEBATES OF THE COXSTITUTIOXAL CONYEXTION OF VIEGIXIA. provided you give the bond, keep an account of your overcharges, etc., so that if this matter is decided in favor of the merchant or the farmer, he shall have a chance of speedily recovering his. loss, and not be subjected to a long and expensive litigation. I respectfully submit that it is fair to both sides. But if you say to them: You may take an appeal, and if another man undertakes to enforce this article against you, pending appeal, nothing shall be done, you are destroying what has been put into this article for the benefit of the citizen, which also gives ample protection to the corporation. I earnestly ask that the amendment of the gentleman from Norfolk shall not be adopted, because it destroys very much of the beneficial effect of this provision. Mr. William A, Anderson: I should like to ask the gentleman from Norfolk whether the purpose of his amendment is. to give to an appeal and supersedeas in any case where the appeal is taken from the judgment of the commission, the effect of stopping all further litigation in the State between other parties and other railroad companies in- volving the same question. If that is the effect, it does seem to me the amendment goes, too far. It would place litigants under this act in a very different situation from general litigants in the State. For instance, there may be a suit between the gentleman from Pulaski as plaintiff on the one side, and the gentleman from Roanoke as defendant on the other. The judgment may be in favor of the gentleman from Pulaski, as I sup- pose it would be, because I think the gentleman from Pulaski, in his own judgment, is infallible on questions of this kind. Suppose the judgment is in his favor, and an appeal is taken by the gentleman from Roanoke to the Court of Appeals. I am speaking now of the ordinary controversy between man and man. Suppose that a supersedeas is granted, or a writ of error and supersedeas, if it is a case at law, to the gentleman from Roanoke: That would not have the effect of stopping litigation involving the same question between other litigants, until the Court of Appeals had decided the case. As I understand it, the object of this amendmxent is to make that appeal operate as a super- sedeas throughout the Commonwealth, stopping all possible claims that might arise under this act, of the same kind. Mr. Robertson: The judgment of a court at law or in chancery, only binds the par- ties litigant, but the action of this remarkable body we are creating here is legislative, judicial and executive, and whenever this commission makes a decision, it binds every- body in this Commonwealth, whether he is a party to the proceeding or not. If they say the rates of the Southern Railway Company shall be thus, and so, it settles the matter, and everybody in the Commonwealth is bound by its decision. An appeal may be taken by the railroad company in an action between A and the company, and the supersedeas will only cover the grievances of A. The bond would not protect the company at all with reference to other people, who rely on this decision. It is not simply the judgment of a court at lav/; but is. an enactment, by a legislative body, that binds everybody in this Commonwealth. An irresponsible party, suing under that law, could recover his money, put it in his pocket, and afterwards the Court of Appeals might decide that the action of the commission was unreasonable and unjust, and set the decision aside. All of these gentlemen talk about this commission as if it were a court. It is a court in the sense that an appeal can be taken from it, but it is. a legislature in the sense that it can make laws for the people of the Commonwealth to bind everyone, whether they are a party to the proceedings before it or not. Mr. Braxton: Inasmuch as this commission in fixing rates, and making rules and regulations acts as a Legislature, would not the difliculties which he has pointed out apply to any act of the Legislature, the constitutionality of which was being questioned in the Court of Appeals? Would the questioning of the constitutionality of any statute have the effect of suspending the operation of that statute throughout the Commonwealth? Mr. Robertson: But if the Legislature passes a law, we can go to the next one, if it in unjust, and get it repealed. This body you are creating is paramount. Its action is legislative and you give a nominal appeal to a court that acts only judicially. They do DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OE YIEGIXIA. 2495 act as a Legislature in promulgating these rates, and then to give the appearance oi fairness, an appeal is given to a court that is bound to act judicially. You say, by that legislative action, which cannot be repealed in the future, that everybody in this Com- monwealth can sue that carrier, although an appeal is pending at the time. Mr. Meredith: If an action is brought and you undertake to offer the decision of the commission in evidence, which you have to do, would it not be a complete reply tO' show how that the decision had been appealed from and a suspending order passed; and would not the testimony then become incompetent? Mr. Robertson: Xo, sir: for the reason that the suspending order would have been given in a case between A and the railroad company, while here would be a suit brought by B against the railroad company, which the suspending order does not affect in any particular. You have assumed that this suspending order would protect everybody in the Commonwealth. Mr. Meredith: Take it in this way: A proceeding is started by John Smith against the railroad company for overcharges. The decision of the commission is in favor of John Smith, that the rates are improper and that they should be amended. An appeal is taken by the railroad company to the Court of Appeals. Now, Dick "Brown feels that he is aggrieved. The company has continued to charge the same rate. He brings suit against the company, and undertakes to offer the decision of the commission in evidence as to the unreasonableness and injustice of the rates. He offers in evidence the judg- ment of this commission as the basis of his action. You offer proof that the decision of that commission has been appealed from and suspended. Would not that case have to go cut of court? Mr. Robertson: Xo, sir; and I tell you that under the language of this report, that is not the true construction. You gentlemen, every one of you, have contended that this commission in acting in this matter, acts as a legislative body. If that be true if makes it a law for everybody. But you then make it a judicial body for the purpose of an appeal. V\Tiile that appeal is pending I say that a third party can sue. unless you make it plain in your provision, that such is not a proper construction of the law, Mr. Meredith: Do you contend that the decision would be invalid as between the parties, and binding upon third parties? Mr. Robertson: I do not say that, as a matter of justice, such should be the case. I am arguing about the effect of this statute that you are attempting to put into this Constitution and that you doubtless will put into it. It does seem to me that if you are going to provide lor a suspending. bond you ought to be willing to say what the effect of that suspending bond is and not leave it as a matter for construction, vrhen you see that the lawyers on this floor, who are just as honest and who probably know almost as much law as you do, differ from you about the construction of it. Mr. William A. Anderson: I agree with the gentleman from Roanoke that every proper remedy must be given to litigants in cases arising under this act, to enable them to have a judicial adjudication of their rights.; but I differ from my friend from Roanoke as to the cnaracter of the functions to be discharged by this commission. It is a legisla- tive commission, exercising legislative powers; but the courts have decided that, when it comes to fixing rates, although it is the act of a legislative body, it is exercising a judi- cial function. :Mr. Robertson: I understood the chairman of this committee to cite a case from the Supreme Court of the United States holding that the fixing of rates was in its nature and necessarily a legislative act, and he argued that the Legislature should delegate this power to a commission because the Legislature itself could not fix rates. Mr. William A Anderson: The Supreme Court has held that this was a legislative power; but they have also held that while this was a power to be exercised by the Legis- lature, it must be exercised judicially, and that the parties to be afe'ected must be cited and given an opportunity to introduce evidence and be fairly heard before the commis- sion made their final decision. That has been held by the Supreme Court of the United 2496 DEBATES OF TPIE COXSTITUTIOXAL CONVENTIOi^ OF VIRGINIA. States and I think my friend will find that such is the conclusion of Judge Thompson, in his review of these cases. The court has gone further in that direction since the decisions cited by Judge Thompson than they had gone before. I want to ask my friend from Roanoke if, in his judgment, the M^rit of supersedeas to be given to every litigant taking an appeal will not be as far-reaching as the order appealed from. Mr. Robertson: That is what I do not know, and I cannot for my life, understand why these gentlemen object to making it so plain that every man although he be a fool, can understand it. For some reason they want to leave it in this condition of doubt, and they say they are not willing to put in language which will make it mean what you say it does mean. Mr. William A. Anderson: It seems to me that any writ of supersedeas would be as far-reaching as the order appealed from. It would suspend the order appealed from and if it has that effect I do not see why they would need any other relief. Of course cases involving the same principle might arise between other parties and the parties to those cases, until the principle was adjudicated by the Supreme Court of the State, would have the same remedy and appeal in each case; but I hardly suppose that any citizens of the State would be willing, at their own cost, to litigate questions of this sort when they were pending in the Suprem.e Court of the State. I also doubt very much whether any court would decide even in collateral suits, a question which the court was informed was pending in the Supreme Court of Virginia and awaiting adjudication there. It seems to me that the act as written gives to this writ of supersedeas the same effect that it has in all other cases and that it is as wide as the judgment appealed from. Mr. Gillespie: The question involved is as to v/hat is the effect of the suspending bond. If the suspending bond, which is to be executed would have the effect claimed for it by the gentleman from Richmond it seems to me that would be sufRcient; but if there is any question about it, then to my mind, in order to deal fairly we ought to put that question at rest. Therefore I offer a substitute. Mr. Meredith: Can there be any classes of cases as to which this could apply except two, one in which the suit is based upon the decision of the commission, and the other where the suit is a common law right and the man has brought this action for damages. Where the suit is based upon the decision of the commission, if the decision has been suspended, that suspension would be pleaded in bar. Nobody will doubt that. Where the action is brought for damages the plaintiff would offer in evidence the decision of the commission. "^Vhen that is offered the other side is not allowed to dispute the reason- ableness of it, but simply offers to prove the suspension, and the evidence then becomes incompetent. I respectfully submit that these are the only two classes of cases in which this question can arise. Mr. Pettitt: Suppose that no suspending bond is given. Suppose there is simply an appeal. Shall all the parties who feel themselves aggrieved, pending the appeal, be permitted to institute suit, thus multiplying costs without any reason, until there has been a decision in the case involving the validity of the very act involved in all these numerous cases? Mr. Meredith: My answer to that is this: You must recognize the fact that these people are contending against a very large, very wealthy and very powerful class of people. They can give a suspending bond. They are also able to give the bond, they can protect themselves and they can give m.e protection. Why should they be allowed to say: Although I have the ability to give a suspending bond, although the law allows me to give it, I will not do it. I am going to take advantage of the fact that you have said that, pending an appeal, you shall not go against me. In other wwds, it would defeat the very object of this act, which is to give the people protection by requiring a suspenaing bond. Mr. Pettitt: But I understand it is stated that the appeal will, of itself, have the effect of suspending the operation of that general law fixing rates. Mr. Meredith: No; the appeal, by itself, would not necessarily do so. It would DEBATES OE THE COXSTITUTIOXAL COXYEXTIOX OE VIRGIXIA. 249 X depend upon the decision of the court as to whether it vras a proper or an improper case. It would be almost impossible for us to conceive of all the questions that might arise. There might be an appeal taken as to one thing, whereas the question at issue in the suit tried in the lower court might be another. Mr. Gillespie: I desire to state that, in my view, the effect of the suspending bond is to stop the operation of the judgment or order of the commission. But there are other gentlemen here who seem to differ from me, for whose opinions I have very great respect. Therefore I suggest this as a substitute for the amendment proposed by the gentleman from Norfolk (Mr. Thom:) "That no such cases shall be heard while the order of the commission is suspended by a suspending bond executed for the purpose of appealing from an order of the commission." Mr. Thom: Mr. Chairman, it seems my motion has been misinterpreted. I was asked a question in reference to its scope by the gentleman from Rockbridge (Mr. Anderson;, which, I fear, he regarded as an oratorical question, as he did not wait for an answer. I have drawn it in such shape, it seems to me, as to make it absolutely un- objectionable. I want it to read as follows: But in no such case in which the action of the commission is relied on as con- clusively reasonable, just or valid, shall the case be heard against the objection of either party while there is pending and undetermined an appeal or other legal proceeding to question the action of the commission so relied on. My friend from Fluvanna (Mr. Pettit) asked a question a moment ago that seems to me to strike at the very root of this matter. Suppose there is no appeal bond given. Whatever may be our difference of opinion — and I am inclined to agree with the gentle- man from Roanoke (Mr. Robertson) as to the effect of this bond — but whatever may be our dift'erence of opinion as to the eff^ect of a supersedeas bond, we have at least this: "ViTiat is the condition of affairs where no appeal bond is given? The carrier would find itself in the condition, if no appeal bond is given, that it has to go on and do business in accordance with the action of the commission as to the future. There would be no danger in the future of a wrong to anyone except to the carrier. If the appeal is decided in his favor, he would have gone on and done business in accordance with the finding of the commission against it. Mr. Pettit: Suppose the company though, refuses to abide by the action of the commission? Mr. Thom: Then there is no way for it to do except by giving this appeal bond, by the very terms of the article. The language of sub-section E of this article is: But no action of the said commission prescribing or affecting the charges of classi- fication or control of any transportation or transmission company shall be delayed or suspended in its operation by reason of any appeal or of any proceedings resulting from such appeal prior to the final reversal of such order unless a suspending bond be given. :\ir. Pettitt: But that very section contemplates the continuance by the railroad company of its original charges. Mr. Thom: On the contrary, it says the railroad company shall at once adjust its charges to the finding of the commission unless it gives an appeal bond. Mr. Pettitt: The appeal bond is to refund the difference between the charges they make and the charges they heretofore made. The implications is that the company will go on with its original charges. Mr. Thom: But it cannot go on unless it gives that appeal bond to refund. There iK no doubt about the construction that the carrier must adjust its rates to the finding of the commission unless it gives this appeal bond. So that there is no danger in the future to anybody. There can be no suit after the finding of the commission, because the carrier must adapt itself to the finding of the commission as to its future action; but 2498 DEBATES OF THE COIsTSTITUTIONAL CONVENTION OF VIEGINIA. how will the case stand as to anybody who has a complaint prior to the finding of the commission, and where no appeal bond is given? Now, you have given the right to this company to appeal without a bond if it adjusts its future conduct to the finding of the commission. If it does s.o adjust itself to the finding of the commission, and takes an appeal without a bond, and parties theretofore complaining undertake at once to go into court and try their cases on the basis of the finding of the commission as conclusively reasonable and just, what will the situation be? Notwithstanding that on appeal the finding of the commission shall be reversed, this litigant can come into court, have his case tried, get a judgment, collect his money, and no power on earth to make him refund it. Mr. Pettitt: There will be no necessity for going into court if the company does what you say it will do. Mr. Thorn: I am talking about the complaint as to what the company has done prior to the finding of the commission. It has, according to the concessum of the case been charging what is complained of as an unreasonable rate, and what is an illegal and a void rate, for five years, within all the time of the period of limitations. There may be suits brought against this company to collect on the basis of a rate which has now been declared to be an illegal rate. All the courts of this Commonwealth will be filled, perhaps, with suits brought upon the finding of this commission that the rate is illegal. Now, when that is on appeal, when it is thereafter reversed on appeal, these five years of accumulated suits may be brought into the courts of this Commonwealth and decided against this carrier on the basis that what is afterwards determined to be an unjust decision of the commission must be considered for the purposes of his litiga- tion conclusively reasonable, just and valid. Now, is that right? My provision only requires that where a decision of that court is relied on as con- clusively just, there shall be a continuance, not where they are willing to go into the matter, but where they come and say, "Here is. a decision conclusively reasonable and just. Now, before you shall say it is concluded, you shall have a continuance if an appeal is pending or if an injunction proceeding is pending." Mr. Meredith: How can a man come into court and say he relies on a judgment or decision except conclusively? Mr. Thorn: The very minute he does rely on it conclusively he can have a contin- uance if there is a proceeding pending to question it. My friend here says if an appeal bond is given, then the finding of the com^mission stands for no purpose whatever. Then I say where there is no appeal bond given why should there not be a contin- uance until, under the quick processes of a hearing in the appellate court, which have been established by this, proposed article? Why should not that matter be left open until it is finally and ultimately determined by the tribunals which this Convention has given to these people to inquire into and pass upon that question? If not, you will enable every man who has been doing business for five years, under this complaint to come in and com^plain of the carrier, although the carrier may, in the appellate court, succeed in reversing the judgment which is relied on, as the basis of this great number of suits. On motion of Mr. Braxton the committee rose and the President resumed the chair. AFTERNOON SESSION. Mr. Braxton moved that when the chair is vacated it be until 4 o'clock this after- noon. The motion was agreed to. Mr. Thom: I offer the following resolution: Resolved, That the Sergeant-at-Arms, under the direction of the President of the Convention, be' and is hereby authorized to make all necessary and suitable arrange- ments for the occupancy of the Mechanics' Institute building by the Convention on Wednesday, the 19th instant. DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIEGIXIA. 2^99 The resolution was agreed to. The Convention took a recess until 4 o'clock P. M. AFTER RECESS. The Convention reassembled after the expiration of the recess. CORPORATIONS. On motion of Mr. Braxton the Convention resolved itself into Committee of the Whole for further consideration of the report of the Committee on Corporations, Mr, Ayers in the chair. The Chairman: The question is on the substitute offered by the gentleman from Tazewell (Mr. Gillespie) to the amendment offered by the gentleman from Norfolk (Mr, Thorn.) Mr. Braxton: Mr. Chairman, if the gentleman from Tazewell will permit me, I should like to read an amendment which I wish to offer in lieu of the one he has offered, and which I think covers the ground he desires, to cover. It is as follows: Strike out all of Section H, beginning with the words "^but in no such proceeding," in line 224, and insert in lieu thereof the following — it is almost the same language that is there now, but I put it in this form so as to get it straight: But in no such proceeding by any person against such corporation, nor in any collateral proceeding, shall the reasonalDleness, justness or validity of any rate, charge, classification of traffic, rule, regulation or requirement heretofore prescribed by said commission, within the scope of its authority, and then in force, be questioned: provided, however, that no case based upon or involving any action of said commission shall be heard or disposed of against the objection of either party so long as such action of the commission is suspended in its operation by any order of the Suprem^e Court of Appeals, as provided for in this Constitution, or by any lav/ passed in pursuance thereof. Mr. Gillespie: Mr. Chairman, I ask then to withdraw the substitute offered by my- self. I think the one just offered covers the idea. The Chairman: Does the gentleman from August offer that as a substitute for the amiendment offered by the gentleman from Norfolk (Mr. Thom)? Mr. Braxton: Yes, sir. I hope it will meet the views of the gentleman from Norfolk. I think it goes as far as we can safely go in that direction. It provides that as long as this action of the commission is suspended by any order of the Court of Appeals no case shall be heard against the objection of either party. The only difference between me and my friend from Norfolk as I understand, is that he thinks it ought to provide for a suspension by an injunction issued by an inferior court; but it is the opinion of the Committee on Corporations that no inferior court should have the right to interfere by injunction or otherwise with the action of this commission. We have provided an appeal directly to the Supreme Court of Appeals., that can be taken promptly and heard immediately, and the action of the commission suspended on it; and we think that is all the remedy that can be asked or ought to be asked or permitted. Otherwise we w^ould have endless confusion resulting from the interference with the action of this commis- sion by possibly every subordinate court in the country. If the comimission undertakes to take any action that is ultra vires, that is irregular, that is unjust or unreasonable, the remedy is immediately by appeal to the Supreme Court of Appeals. Now, if the railroad chooses to take such an appeal and not obtain a supersedeas in the manner provided by law, they must abide by the decision until the appeal is decided, like every one else does., but if they obtain a suspension in the manner authorized or pro- vided by this Constitution, then so long as it is suspended, no action between individual parties based upon that shall be disposed of pending that s.uspension. Now, I call the attention of my friend from Tazewell (Mr. Gillespie) to the fact that 2500 DEBATES OF THE CONSTITUTIOAtal CONVENTION OF VIRGINIA. some of those suspensions require a suspending bond, such as is provided for in hearing others that require a suspending bond. If they wish to suspend any action of the com- mission fixing rates of charges or classification of trafiic involving the payment of money, there must be a refunding bond; but if it is just from an ordinary regulation which does not involve the payment of money, I imagine there would be no suspending bond. The only bond required would be an appeal bond to pay the costs, because there would be nothing to refund. It would not involve the payment of money. Therefore I do not use the expression "suspending bond" but I merely say if the action is suspended, then any collateral action based thereon shall also be suspended. I fully agree with the views expressed by the gentleman from Richmond (Mr. Mere- dith) and the gentleman from Rockbridge (Mr. Anderson) that that would be the effect of the provision as it stands now; but out of abundant caution, and to put it beyond all peradventure and prevent any injury being done to anybody, your committee is per- fectly willing to recommend and do recommend, that this amendment be adopted in the form in which we have just read it. I trust it may be the pleasure of the Convention to adopt it in that form. Mr. Thom: Mr. Chairman, I want to take advantage of this opportunity to say a few words of a personal nature. I am doing the best I can to perfect into an instrument of justice, as far as it may be so perfected, the report of this committee. I am not attempting to destroy the prin- ciple which I believe, as I read the sentiment of this Convention, they have or will soon establish. Every member of this Convention realizes that I am opposed to the justice of that principle; but I believe I know at what time it is proper to cease factious ob- jection. In none of the amendments which I am proposing here am I prompted by any factious opposition to the principle which I now believe to be now uncontroverted, so far as the prevailing opinion of this Convention goes. My effort is to try and make that unjust principle, as I consider it, work with as little injustice as possible in its prac- tical operation. To do that I am after practical results. I shall not adhere to any preconceived views, and I shall accept the best that I can get, with the idea of doing that much good for the people of Virginia, whom I in part, represent, according to my idea of what is best for the people. While I am confident that this amendment does not go to the extent it ought to go, I do not believe, in the present temper of this body, I can get more than is suggested by the chairman of the committee, and with that as the moving principle upon which I am acting I shall with- draw my amendment and accept what the committee now offer. The Chairman: The question is on agreeing to the amendment offered by the gen- tleman from Augusta (Mr. Braxton). The amendment was agreed to. The Chairman: There is a motion to strike out by the gentleman from Roanoke. Mr. Robertson: I withdraw any m.otions that I have made before this body. Mr. Braxton: In sub-section E, line 136, I observe that the word "rates" has been omitted. I ask that it be inserted after the word " the " and before the word " charges," so that it will read: "affecting the rates,, charges, or classifications of traffic." The Chairman: That will be taken as the sense of the committee unless there is objection. Mr. Barbour: Mr. Chairman, before we proceed to the consideration of the next section I would like to ask the chairman of the committee if the word " rates " should not be inserted in line 226 of sub-section H. Mr. Braxton: It was inserted in a previous amendment. The Chairman: The Secretary will read sub-section I. I. The said commission shall annually make reports to the Governor of its pro- ceedings, in which reports it shall recommend from time to time such new or additional legislation in reference to its own powers or duties or to the creation, supervision, regu- lation or control of corporations, or to the subject of taxation, as the commission may deem wise or expedient or which may be required by law. DEBATES OE THE COXSTITUTIOXAT COXVEXTIOX OE VIEGIXIA. 2501 The Chairman: Are there any amendments to sub-section I? If not the Secretary will read sub-section K. K. The Board of Public Works and the office of Railroad Commissioner, as they now exist, are hereby abolished: and all books, papers and documents pertaining thereto shall be forthwith transferred to, and hereafter become a part of the records of, the office of the said State Corporation Commission. The Chairman: Are there any amendments to sub-section K? If not the Secretary will read sub-section L. L. After the first day of January,, 1905, the General Assembly, upon the recom- mendation of the said commission, may from time to time, by law, amend sub-sections D, E, F, G, H and I of this section, of any of them, or any such amendment thereof: Provided, that no amendment made under authority of this sub-section shall be incon- sistent with the provisions of any part of this Constitution other than the sub-sections last above named. Mr. Thorn: I move to strike out in line 244 the words "upon the recommendation of the said commission," so that it will read: "After the first day of January, 1905, the General Assembly may, from time to time, amend sub-sections, fee. As the sub-section now stands it ties the hands of the General Assembly as to the amendment of any of these matters relating to procedure unless the commission agrees to it. Here we have the representatives of the people, in General Assembly convened, absolutely dependent upon the recommendation of the commission before they can take a step in the direction of amending the method of procedure before that commission. I think that is an injudicious limitation upon the power of the people through their General Assembly. It is putting the power of the State too much in the hands of this commission, even tmder the theory underlying this article. I therefore move to stril^e out these words. Mr. Braxton: I trust this amendment will not be adopted. It is more important, as we think, than, at first blush, it might appear. As I tried to explain to the com- mittee the other day, this sub-section L does not curtail the powers of the General As- sembly at all. It enlarges the power of the General Assembly. It enables it to amend the Constitution in a way which, but for this sub-section, it could not amend it. The only way in which the Constitution can ordinarily be amended is by a vote of two con- secutive Legislatures, supplemented by the vote of the people. The effect of sub-sec- tion L is to substitute for the vote of the second Legislature and the vote of the people the recommendation of the commission, so that instead of having the first vote of the Legislature substituted by the vote of the second Legislature and the vote of the people, we have it simply supplemented by the recommendation of the commission. Your com- mittee thought it unwise to permit the Legislature, hy a simple vote, without the con- currence either of the commission or of any subsequent Legislature or the vote of the people, to amend this Constitution. The reason we thought so was this: As the com- mittee must have seen, there are numerous provisions in these purely administrative sections which are of vital importance to the efficient existence of this commission. There are almost an indefinite number of these modifications that could be made to these provisions which are perfectly innocent and harmless on their face, but which would have the effect of completely and absolutely emasculating the commission. If the Legislature, through ignoranc of the practical and technical character of the pro- ceedings, through thoughtlessness, through negligence, or through carelessness could by hook or by crook, without any check upon them, modify these administrative sec- tions in ways which would seem on their face to be not only innocent, but absolutely commendatory, the entire fabric might fall. Suppose it was provided that appeals cotild be taken to the Supreme Court of Appeals from decisions affecting rates and that the ap- peal should operate as a supersedeas without giving a bond. What would be the effect? You would have a commission that would practically not be worth a cent, because 2502 DEBATES OF THE CONSTITUTIO^^'AL CONVENTIOJT OF VIRGINIA. every single decision that was rendered would be appealed from, and the railroad would go on charging its own rates and making money thereby, although it might be certain that the appeal would be decided adversely. I might mention half a dozen other pro- visions that would enable the work of this commission to be interfered with and para- lyzed by the interference of the inferior courts throughout the Commonwealth. A great many modifications which the Legislature might be induced to pass, under these ad- ministrative sections would as completely em^asculate and destroy this commission as if the whole thing had been wiped out of existence. We would not provide any special method of ameding the Constitution other than the general method of amending by two votes of the Legislature and the vote of the people, but for the fact that these ad- ministrative sections entering, necessarily into detail, might prove, in practice, to be inefficient in some one or more particulars; therefore we wish such things to be remedied, so far as it makes the commission a more efficient body. We do not wish to put into the hands of the Legislature the power to amend it in such a way as to make the commission a less efficient body or absolutely destroy it. The commission cannot increase its own power because it does not make any difference what recommendations it makes, if the Legislature does not endorse them they will not be adopted; nor can the Legislature emasculate the power of the commission, because if modifications of that character were proposed, the commission would not recommend them. The com- mission and the Legislature are checks upon each other, so far as the correction of any inequalities or any undesirable parts of these administrative sections are concerned. In the course of practical experience, at the end of two years, which is just as soon as any statute could be amended, if the commission finds that any of these administra- tive provisions are unwise and inefficient it can then recommend proper amendments. Ir is infinitely better acquainted, by reason of its experience, with the practical work- ing than any Legislature could possibly be. It will certainly recommend every provision that can make it more efficient. If it undertakes to make recommendations that would aggrandize its power too far, the Legislature checks it. If the Legislature wants to make provisions that would curtail and render it inefficient, the commission checks it. If it is a really mertitorious amendment you can depend upon it that both the commission and the Legislature will unite in recommending it, and when they do so unite, it can be amended without waiting for the slow process of ordinary amendment. This how- ever, does not prevent the method of ordinary amendment, but supplements it. If it should turn out that there is a provision v/hich the people think should be amended which the commission refuses to recommend, there still remains the regular method of amendment. Why not say that, in matters of appeal, and in matters of detail of administration, we will trust the people whose servants we are; we will permit them through their Legislature, to amend or change these mere administrative matters? There may be, perhaps, some underlying fallacy in the proposition which I am presenting; but to my mind if it is based on sound principles., this means as the gentlemen of this Convention have heard from time to time — the failure of representative government, if the people of Virginia, in a mere matter of statute law in their Constitution, cannot be trusted to perfect the various details of its administration. The Chairman: The question is upon agreeing to the amendment offered by the gentleman from Norfolk (Mr. Thorn). Mr. Braxton : Mr. Chairman, the other day an amendment to sub-section D, between lines 57 and 58, was suggested by the gentleman from Prince William (Mr. Thornton). The substance of it was adopted, but the language we did not have time to put in as good shape as we desire to put it in; and your committee offer the following as the proper language in which to embody it. What we now propose does not change in substance what we proposed before, but it puts it in better language, I think. I offer in lieu of that the following: i Before the said commission shall prescribe or fix any rate, charge or classification ! DEBATES OF TEIE COXSTITUTIOXAL COXYEXTIOX OF VIRGIXIA. 2-503 of traffic, and before it shall make any order, rule, reflation or requirement directed against any one or more companies by name, the company or companies to be affected by such rate, charge, classification, order, rule, regulation or requirement shall first be given by the said commission at least ten days' notice of the time and place ^-hen and where the contemplated action of the commission in the premises will be considered and disposed of b3' the said commission, and shall be afforded reasonable opportunity to introduce evidence and to be heard thereon, to the end that justice may be done, and shall have process to enforce the attendance of witnesses; and before the said commis- sion shall adopt or prescribe SlUv general order, rule, regulation or requirement, not directed against any specific company or companies by name, the contemplated general order, rule, regulation or requirement shall first be published at length not less than once a week for four consecutive weeks in one or more of the newspapers of general circulation published in the citj^ of Richmond, Va., together with notice of time and place, when and where the commission will hear any objections vrhich may be urged by any persons interested against the adoption of the proposed order, rule, regulation or requirement; and after the adoption by the commission of any such general order, rule, regulation or requirement, the same shall be published for the time and in the manner above specified before it shall go into effect, and shall also, as long as it remains in force, be published in each subsequent annual report of the commission. Mr. Barbour: Before that amendment is voted on, I wish to ask the chairman this question; Suppose as a result of this hearing the commission thinks there should be some modification in the order as originally proposed by him; would that necessitate another sixty daj's delay? Mr. Braxton: I imagine it would, sir. I do not think it would amount to a prac- tical difficulty, for the reason that I conceive there would be very few general rules or regulations adopted by the commission. Almost every general rule and regulation ib of such a character that it could and probably would be adopted by the Legislature, and it would be very rarely that such a thing would occur. A delay of sixty days, I think, would not be a matter of any moment. If it was anything fixing rates that would have to be directed against the company, whether it is a general rate or a special rate. If it was an order directed against any particular company, it would have to be served upon the company, and it would not need to be published. It is only these general regu- lations that have to be published and which would occasion the delay. I think, however, it would be of such rare occurrence that a delay of sixty days, as compared with a delay of two years if they had to wait for the Legislature, would not be very material. Mr. Withers: Suppose an order should be issued referring to a certain class of rates, would not that be a general regulation? :^Jr. Braxton: Xo, sir: as to all rates and classifications, as I understand, the com- pany must be summoned by name. Mr. Withers: Suppose a certain freight rate were to be put into effect for a cer- tain time as to all railroads; would not that be a general regulation? Mr. Braxton: It would be a general regulation, but the language of it is this: " Be- fore the said commission shall prescribe or fix a rate, charge or classification." "^Tiether general or special, the company must be summoned. I do not conceive that the com- mission would prescribe any general rate. Rates, as I understand, must be^adopted and suited to the company. Mr. Withers: That is exactly the reverse of my understanding. Mr. Braxton: Unless you are going to fix maximum rates, which amount to nothing. If the commission should say that the rate on freight from Richmond to Hanover Court- house shall be so much per hundred, how could that possibly apply to any other road but the road which ran from Richmond to Hanover Courthouse? We cannot make it general. You must make it specific, unless you want to make some general maximum rate, which I conceive the commission will never make, because it is utterly useless and worthless to make it. Mr. Withers: Suppose the commission issued a general regulation as to all rail- roads with reference to cotton rates, to take effect by a certain time; is that such regu- lation as v.-QuId come under the amendment? 2504 DEBATES OE THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Mr. Braxton: In that event it would have to summon every road which hauls cotton — a thing which I think would not be at all difficult to do. Mr. Wiithers: I take cotton because it is not a difficult thing in Virginia. There are some things that are difficult. A sixty day delay on cotton and cotton seed would practically destroy its value. Mr. Braxton: I wish to call attention to the fact that cotton seed or anything that concerns rates, would not come under the head of the sixty day provision, but anything which affects rates, charges or classification of traffic would be served upon the com- pany personally; and the publication for sixty days does not apply to it, but applies only to those general rules and regulations not addressed to any company. The com- mission could get over it immediately by simply directing it against these roads that haul cotton, and summoning them to be heard. Ten days would suffice for it. It is only when the regulation is of such a character that in the opinion of the commission it cannot be traced to any particular road that, in lieu of summoning the road, they will have to make the sixty-day publication; but if, in the opinion of the commission, the purpose can be accomplished by naming in the order any one or more roads, they can do so, and summon the road or roads and in ten days the whole matter can be accomplished. I understand there are but seven roads, in Virginia and if it were desirable in any question of rates, they could name all seven of them, if it were possible for all of them to haul cotton, even the Chesapeake and Ohio, which I understand does not haul cotton, or certainly not to any extent. I do not know whether it hauls it at all; but the com- mission could, out of abundance of caution, name all of them in the order and give them ten days' notice to be heard against it, and it would go into immediate effect. The Chairman: The question is upon agreeing to the amendment offered by the gentleman from Augusta (Mr. Braxton). The amendment was agreed to. Mr. Braxton: In line 91 of Section 4 I move that after the word "to" the words " introduce evidence, and to " be inserted, so that it will read " and afford an oppor- tunity to introduce evidence, and to be heard." The amendment was agreed to. Mr. Braxton: Mr. Chairman, In line 105, there was an amendment introduced the other day, beginning with the words " within such reasonable time, not less than ten days as shall be fixed." In view of the fact that some of these orders, if they are general orders, cannot go into effect until they have been published for thirty days, I think it is proper to in- sert, before the beginning of the amendment offered the other day, these words, " after it goes into effect, and," so it would read: Any corporation failing or refusing to obey any valid order or requirement of the said commission, after it goes into effect, and within such reasonable time, not less than ten days, as may be fixed by the order or requirement. Mr. Thorn: Ought not that to be "within such reasonable time after it goes into effect? Mr. Braxton: After it goes into effect, and within such reasonable time. The Chairman: The question is on agreeing to the amendment offered by the gen- tleman from Augusta (Mr. Braxton). The amendment was agreed to. Mr. Braxton: Mr. Chairman, at the end of line 113, page 10, I ask that these words be inserted: Provided, that should the operation of such order or requirement be suspended pending an appeal therefrom, the period of such suspension shall not be computed against the company in the matter of its liability to fines or penalties. That is to meet the view that was discussed yesterday that, if an order is made DEBATES OE THE COXSTITUTTOXAL COXVEXTIOX OE VIEGIXIA. 2505 by the commission and is appealed from and suspended, possibly the company might remain liable to a penalty for failing to obey the suspended order. Your committee does not think there is any danger in that, but out of abundance of caution to set it entirely at rest we offer this amendment so that the section would then read: And each day's continuance of such failure or refusal after due service upon said corporation of the order or requirement of the said commission in question shall be a separate offense; provided, that should the operation of such order or requirement be suspended pending an appeal therefor, the period of such suspension shall be computed against the company in the matter of its liability to fines or penalties. I take it nohody should differ with us as to the fact that that ought to be the rule. The amendment was agreed to. Mr. Braxton: In line 147, after the word "appeal," the committee thought it would make the matter a little plainer to insert there these words: "In excess of that fixed by the decision of the court on appeal," so that it will read: That, in case of a suspending bond, it shall be in sufficient amount and security to Insure the prompt refunding by the appealing corporation to the parties entitled thereto of all over-charges on the rates, charges or classification of traffic appealed from that such company may collect or receive pending said appeal in excess of that fixed by the decision of the court on appeal. I The amendment was agreed to. Mr. Braxton: Mr. Chairman, in line 1S8, page 14, after the word "appeal" we pro- pose to put a semi-colon, strike out the word "'and," and insert these words: "On all appeals taken from said commission the Appellate Court shall have jurisdiction to con- sider and determine the reasonableness and justness of the action of the commission appealed from, as well as any other matters arising under such appeal; provided, how- ever, that." Then it goes on: "The action of the commission appealed from shall be regarded as prima facie just, reasonable and correct," etc. The amendment was agreed to. Mr. Braxton: Mr. Chairman, just a few lines lower than that, in line 194, after the word "court," I suggest we insert these words: "'Together with such additional evidence as may be tendered before the commission by any party in interest." That has reference to the remanding of a cause back for further proceeding, so that it will read: But the court may, when it deems necessary in the interest of justice, remand to the said commission any case pending on appeal and require the same to be further investigated by the commission and reported upon to the court, together with such addi- tional evidence as may be tendered before the commission by any party in interest before the appeal is finally decided. The amendment was agreed to. ' Mr. Braxton: In sub-section F the committee has under advisement an amendment in the shape of an insertion of a few words there with reference to the certification of the facts for the evidence; but the committee would like to take a little further time for consideration. They ask that that be passed by for the present, but they will have the matter before the Committee of the T\Tiole to-morrow. The Chairman: That will be taken as a sense of the committee, without obiectloa. The chair hears none. Mr. Braxton I move that the committee proceed to the consideration of Section 5 of the report. The Chairman: That will be taken as the sense of the committee unless there he objection. The Secretary will read Section 5. Sec. 5. Provision shall be made by general laws for the payment of a fee to the 15S — Const. Deb. 2506 DEBATES or THE COXSTITUTIOXAL COXVEXTIOX OE VIRGIJ^IA. Commonwealth by every domestic corporation, upon the granting, amendment, or extension of its charter, and by every foreign corporation upon obtaining a license to do business in this State, as specified in this section; and also for the payment, by every corporation hereafter doing business in this State, of an annual fee of not less than $5 upon its charter or license to do business, and for the making by every such corpora- tion (at the same time, and in connection with the payment of such annual fee) of such report to the State corporation commission of the status, business, or condition of such corporation as the General Assembly may prescribe. No foreign corporation shall have authority to do business in this State, unless and until it shall have first obtained from the State corporation commission a license to do business in this State, upon such terms and conditions as may be prescribed by law. The failure by any cor- poration for two successive years to pay its said annual franchise or license fee, or to make its said annual reports in connection therewith, shall, when such failure shall have continued for ninety days after the expiration of the said two years, ipso facto forfeit the charter, or license, of such corporation, as the case may be, and the General Assembly shall provide additional and suitable penalties for the failure of any corpora- tion to promptly comply with the requirements of this section, or of any laws passed in pursuance thereof. The State corporation commission shall require all corporations to comply promptly with the requirements of this section, and of the laws passed in pursuance thereof, by enforcing in the manner hereinbefore authorized, such fines and penalties against the delinquent company as may be provided for or authorized by this article. The Chairman: Are there any amendments to be offered to Section lo? Mr. O'Flaherty: I desire to offer a little amendment here, with fear and trembling. I hope it will be considered and made unanimous: After the word" State," in line 7, page 16, insert the following: " Except educational, religious, or charitable institutions." Mr. Chairman, my object in offering that is to exempt these institutions from the payment of the annual fee of five dollars. It is unnecessary for me to discuss it at any length. I do not think educational institutions ought to be required to pay an annual fee of five dollars. The gentleman from Alleghany (Mr. Anderson) calls my attention to a section in the beginning of the report. Of course, if these institutions are excepted, I do not want to say any more about it. I will ask the Chairman if I am wrong about that. Mr. Braxton: In Section 1 the term "corporation," or "company," is defined in this way: "Shall be construed to include all trusts, associations and joint stock com- panies, etc., but to exclude all municipal corporations or public eleemosynary institu- tions, asylums or prisons owned or controlled by the State." If it is a public institution, it is excluded, but if it is private institution it is included. Mr. O'Flaherty: I do not think any educational institution that is run for the pur- pose of educating the youth of this land ought to be so taxed. I do not think charitable institutions ought to be so taxed, nor do I think a religious institution, such as a mission- ary society, or any corporation of that character ought to be so taxed. For instance, we have in our town a' school that is a chartered company. There are a hundred and fifty young men and women being educated there. Under the law as it now is, that institution is not subject to any tax on the charter. I suppose the law is meant to be continued in regard to the granting of charters of that character. Now, if we are go- ing to put an annual tax of five dollars upon an institution of that kind, it is that much detriment and that much of a hindrance to education, and I hope we will not do it. The government of the United States, under its postal laws, encourages educational institutions by permitting those people to send out through the mails papers" that are run exclusively for the benefit of regularly incorporated institutions. This is done to encourage the educational interests of the country. It does seem to me we ought to be as magnanimous as the United States Government. If the educational conditions of the State of Virginia are as they are portrayed by some of the educators of Virginia at this time, it would seem to me we ought not to put a premium on ignorance and tax on educational institutions. This is a matter that must address itself, it seems to me to every mrmber of this committee, and I do hope it will be the will of the committee to make an exception in DEBATES OE TKE COXSTITUTIOXAL COXVEXTIOX OE VIEGIXIA. this case. I know it is almost treason to offer any amendments to this corporation bill, and, as I said, I do it vrith fear and trembling. I almost come and beg you, in the inter- ests of education, religion and charity, the highest reasons of vrhich I knovr, to vote lor this amendment. Mr. Summers: I hope, Mr. Chairman, that the chairman of the committee vrill at least accept the portion of the amendment offered by my friend from vrarren (Mr. O'Flaherty) as regards charity. "We on this side of the house have stuck to him like a. brother, and we want to do so right through this matter. I hope he will accept of this amendment, and if he does not accept it, and you gentlemen over there who are ^fighting him so hard will join with us, we will beat him anyhow. Mr. Braxton: Mr. Chairman, it seems to me the maxim " de minimus non curat 'lex " should apply here. The utmost that can be done is to save these corporations five dollars a year. There are a very few of them, and inasmuch as it was, in the opin- ion of the committee, the duty of the State, when it has granted a charter to a corpora- tion, to look after it to see whether the charter is being kept up, whether it is abandoned or not, to ask it to pay So, to see whether it makes its report, showing whether it has ^continued in existence or not, it is a very small thing to ask it of them: that it would not be a burden on the biggest of them, and would introduce an exception here which we think would mar the report. We do not see any occasion for it, because the damage that might be done by it is very small. There are very fevr of them, and it is a very small tax. Mr. Meredith: I shall vote for the amendment, Mr. Chairman. It is a small matter, li: is true, but I do not see the necessity of submitting to this expense these educational institutions and charitable institutions that have no stock, that receive no dividends, that are not interested in any financial way in the running of the corporation, but do it simply for matters of public benefit. It is a small expense, it is true, but I think the3- should not "be" subjected to it, and that they should not be subjected to maldng annual reports. I iiope the chairman of the committee will see fit to accept the amendment. I cannot see the necessity of subjecting these people to the irouble of making these reports, much less to the paying of the small license fee. Xo benefit can come to the State by it. The State does not propose to supervise them, and it is not for the purpose of protecting any- body. Mr. James W. Gordon: Is it not true that the report of the Committee on Taxation and Finance contemplates that this very kind of institution may have considerable property which would not be exempt from taxation under the provisions of that report; and do you not think it would be a wise thing for the State to keep track of the property of these corporations for the purpose of placing its hands upon any of their property that might be lawfully subject to taxation? I\Ir. Meredith: I do not remember now exactly the language of the report of the Committee on Finance and Taxation, but my recollection is that it exempts all endow- ments of religious and educational institutions except such as may be invested in real estate. I am speaking now simply from recollection. I do not see any advantage to come from putting these institutions to the trotiT^le and expense proposed. It is a slight expense, it is true, but still no burden ought to be put upon them. ]Mr. Braxton; I think my friend from Richmond is probably not aware of the fact that these so-called educational institutions and so-called charitable institutions, without capital stock, are not infrequently made a cloak for the operations of people who wish to operate under and by virtue of them, and save taxation. A case of this sort has been brought to our attention, where a man wished to run a boys' school. He got out a charter for an institution which had no capital stock, bought property, and the money they wanted to put in was put in in the shape of bonds issued by this company. Then these people were employed as the principal and teachers of the school and all of the profits went into their own pockets, in the shape of interest on their loans and salaries as teachers. It seems to me that in order to keep track of such things, with a view of 2508 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. taxing just such corporations, the light should be turned on them, so that the State can know, in some way, whether they are deserving institutions that ought not to be taxed, and some sort of annual report, the nature of which is left to the Legislature, should be required of them, and that, at the time they make the report, this small annual fee of $5 should be paid. It was the opinion of the committee that this would be such a light burden on these institutions that none of them would feel it, and yet it enables the State to get the in- formation which my excellent friend from Richmond knows, from his service on the Com- mittee on Taxation, is the greatest stumbling block and difficulty the State has to meet in dealing intelligently with the matter of taxation and the regulation of these corpora- tions. This is the reason the committee ftiought it would be well to put in this pro- vision, especially in view of the very light burden imposed upon the institutions by the payment of this amount. Mr. O'Flaherty: I want to be excused from paying this tax. Mr. Braxton: Does, the gentleman think that $5 is an unreasonable fee to pay for the clerical services and work incident to seeing that the report is made? Mr. O'Flaherty: I think anything is unreasonable that is a tax upon these insti- tutions. Take the example the gentleman gives in regard to an educational institution run on the plan he has mentioned. Suppose it was run by an individual. They would pay the same taxes that an individual would pay. They would pay on their buildings and mortgages the same taxes that an individual would pay. I see no reason why we should tax them in order to keep track of them. I am perfectly willing that they should make a report but I do not think we ought to descend into this small matter of taxing these people. The gentleman has invoked the maxim of law "de minimis non curat lex." This is a small matter which the law ought not to take cognizance of. It looks to me like it is a picayunish thing to tax these people for the clerical work incident to seeing that the report is made. I think we can get money enough to run these offices and pay all these clerks without taxing the eleemosynary and educational institutions. There- fore I hope it will be the pleasure of this committee to accept this amendment. Mr. Meredith: With the gentleman's permission i would like to add to the amend- ment the words "not run for private profit." "Will you accept that amendment? Mr. O'Flaherty: Yes, sir; I will accept that. The Chairman: The question is upon agreeing to the amendment offered by the gentleman from Warren (Mr. O'Flaherty). On a division the amendment was rejected; there being, ayes 24, noes 27. Mr. Braxton: In line 22 of Section 5, the committee thinks it would be more accu- rate to strike out the words: "ipso facto forfeit" and to insert the words "operate as a revocation and annulment of." The amendment was agreed to. The President: The Secretary will read Section 6. Sec. 6, Any corporation heretofore chartered in this State which shall hereafter accept or effect any amendment or extension of its charter, shall be conclusively presumed to have thereby surrendered any exemption Irom. taxation, and any non-repealable feature of its charter, or of any amendment thereof, and all other special or exclusive rights or privileges theretofore granted to it by the General Assembly, and not enjoyed by other corporations of a similar general character, and to have thereby agreed to there- after hold its charter and franchises, and all amendments thereof, under the provisions and subject to all the requirements, terms, and conditions of this Constitution, and of laws hereafter passed in pursuance thereof, so far as the same may be made applicable to such corporation. Mr. Braxton: In line 6 of Section 6, I move to strike out the words: "special or'* so that it will read: "All other exclusive rights or privileges." Our attention has been called to the fact that several of the principal railroads of DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF VIRGIXIA. 2509 this State have been reorganized, and their pr'esent existence, so far as the issuance of their stock and their internal organization is concerned, is based upon special acts pro- viding some special method of organization, and of issuing stock, the special features of it being no interest at all to the public. We thought there would be no occasion to re- quire that they should surrender these special features, provided that they did not amount to an exemption from taxation or to a non-repealable feature, and did not contain any exclusive rights. For that reason we ask that the words "special or" should be omitted, so that whenever a company heretofore organized desires to obtain an amend- ment to its charter it shall only be required to surrender any exemption from taxation and any non-repealable feature of its charter or any amendment thereof, and all ex- clusive rights or privileges theretofore granted. The amendment was agreed to. Mr. Braxton: I move to amend line 12 of Section 6 by inserting after the word "of" and before the word "laws" the word "any," so that it will read "and of any laws." The word "any" was omitted by a typographical error. The Chairman: That will be taken as the sense of the committee unless there is objection. If there are no further amendments to Section 6 the Secretary will" read Section 7. Sec. 7. The exercise of the right of eminent domain shall never be abridged or so constructed as to prevent the General Assembly from taking the property and franchises of corporations and subjecting them to public use the same as the property of indi- viduals; and the exercise of the police power of the State shall never be abridged or so construed as to permit corporations to conduct their business in such a manner as to infringe the equal rights of individuals or the general well-being of the State. The Chairman: If there are no amendments to Section 7 the Secretary will read Section 8. Mr. Braxton: Mr. Chairman I am requested to ask that Section 8 be temporarily passed until the gentleman from Petersburg (Mr. Hamilton) who is interested in it re- turns. I ask the committee to kindly pass that section for the present. The Chairman: If there is no objection that course will be taken and the Secretary will read Section 9. Sec. 9. No transportation or transmission company shall charge or receive any greater compensation in the aggregate, for transporting the same class of passengers or property, or for transmitting the same class of messages, over a shorter than over a longer distance, along the same line and in the same direction (the shorter being includ- ed in the longer distance), whether such longer distance be entirely within this State or not; but this section shall not be construed as authorizing any such company to charge or receive as great compensation for a shorter as for a longer distance. The State Corporation Commission may, from time to time, authorize any such company to dis- regard the foregoing provisions of this section by charging such rates as the said com- mission may prescribe as just and equitable between such company and the public, to or from any junctional or competitive points or localities, or where the competition of points located without this State may make necessary the prescribing of special rates for the protection of the commerce of this State; but this section shall not apply to any special excursion, or commutation rates, or special rates for services rendered to the government of this State or of the United States, or in the interest of some public object, when the same shall nave been prescribed or authorized by the State Corporation Commission. Mr. Braxton: I move that Section 9 be amended by striking out, in lines 7 and 8, the words "whether such longer distance be entirely within this State or not." I do that in view of a decision rendered within the last few days by the Supreme Court of the United States in the case of the Louisville and Nashville Railway vs. Eubank, in which, by a divided court, it was held that it was necessary the longer haul should be entirely within the State, as well as the shorter haul. These words, there- fore, w^ould be of no use. The amendment was agreed to. 2510 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Mr. Thorn: I move to insert, after the word "messages," in line 5, the words "under substantially similar circumstances and conditions. The purpose of the insertion of these words is to permit the carrier to issue a less rate for a longer distance than for the shorter distance, if the conditions and circumstances are such as to permit it, sub- ject to having its action reviewed and overruled by the commission. It is frequently necessary, in the transaction and management of transportation business to give a rate^ quickly, and before it can be authorized by the commission. If circumstances exist under which that would be permitted, then no harm is done to the public by permitting the carrier to give it in the first instance, subject, however, to being subsequently overruled by the commission. The article as it stands at present would require the carrier and the patron to go first to the commission before they could get the rate from the carrier. That might disappoint the whole commercial transaction. Of course, it will be apparent to the gentlemen present that the border cities and border localities of the State will be' the ones that will suffer from the long and short haul clause, considered merely with reference to intra-State traffic. Long hauls must always be to border towns, and there- fore it is a question whether or not it is judicious for these gentlemen in border towns to support the long and short haul clause. There should certainly be, however, some elasticity in the law, so as to permit a carrier to give a rate under conditions and cir-^ cumstances which would be approved by the commission, without having first to go to the commission to get authority to do it. Mr. Meredith: You say that if the commission does not afterwards approve of it, it will be overruled. What is the effect of overruling it? Mr. Thom: The overruling of it v/ould be to prevent it in the future, and also per- mit anybody who was injured by it to obtain damages. Mr. Meredith: That would apply only to individual cases. Mr. Thom: That would apply to individual cases. It would be within the power of. the commission, unaer the authority here given, to control the w^hole question. Mr. Braxton: Mr. Chairman, I regret to say that I cannot agree with my friend: from Norfolk as to the advisability of the amendment he offers. It seems to me the effect of it would be to practically kill the long and short haul clause. If we insert the words which are now in the interstate Commerce act, "under substantially similar cir- cumstances and conditions," we are inserting words of so vague an import, so broad" and elastic, that it would practically and actually destroy the long and short haul clause as it exists now. It is impossible to get any two cases exactly alike in every particular,, and the particulars that would make a substantial difference are so vague and so indefi- nite that, in every case, litigation would be required to decide the matter. Your committee considered, and it was conceded by Mr. 'Baxter, who addressed your committee in behalf of the railroad interests in this matter, that the rule is almost invariable that it is wrong to charge m^ore for a short haul than for a long haul, on the same line, in the same direction, the shorter being included in the longer haul; and that it is the exception, and a rare exception, that the road is justified in charging more for the shorter haul than for the longer haul. Inasmuch as that is true, your committee thought that the rule should be stated as a rule; that we should recognize that there might be an exception to it, but that we ought to leave it to the commission to say when that exception exists, and not to the railroads. We recognize the fact that an exception can exist at competitive points, junctional points, or points where competition of towns outside the State makes it necessary to adopt a different rule for the protection of the commerce of this State. In the hearings before your committee, the gentlemen who appeared on behalf of the railroads were asked whether they conjure up or suggest any conceivable state of circumstances under which a railroad would be justified in charging more for a shorter than for a longer haul, unless it was where there was a competitive point, junctional point, or points where competition of towns outside the State would render it necessary for the protection of the commerce of the State; and each and every one of them admitted that as far as they could recall, no such case could exist. They DEBATES OE THE COXSTITUTIOIn AL COXTEXTIOX OF YIEGIXIA. 2511 could not conceive of any case T\-here that was not true. This language is almost identical T^'ith the language contained in the Constitution of South Carolina to-day. The effect of it is to declare that the rule must be that the railroads shall not charge more for a shorter than for a longer haul, except in instances of junctional points, competitive points, and those points "^'here the competition of outside towns makes it justifiable, and then that the commission should be the judge as to whether the exception exists, and not the railroad. Just so sure as you permit the railroad company to be the judge, just so surely do you completely emasculate and annihilate the long and short haul clause. If you do that the provision is not worth the paper it is written on. You had better leave it out of your Constitution, because then the difficulty may possibly be remedied by the Legislature, All of this talk about not having time to communicate with the commission is an imaginary thing. The Bristol case was considered before your committee, and it was stated that the rate had to be given so quickly that they could not even wait for the mail. But. as stated by Mr. Stebbins, upon investigation it was found that it took eight days to get that rate, and the man had to get on the cars and come to Roanoke before he got it. My information is that in adjoining States there is practically no difficulty in obtaining special rates from the commission^ wherever the circumstances justify it. The commission is "au fiat" in this matter. They do not have to begin at the beginning and search up all this information about rates. They are just as well posted on the rates that obtain in the State as the railroad men are, and they can tell just as quickly as the railroad men can whether a change is a justi- fiable one or not. They can be telegraphed to or written to, or communicated with just as quickly as the head officer of the railroad company can be. I think that, if it is the purpose of this committee to put a long and short haul clause in this Constitution, they certainly should not insert the words "under substantially similar circumstances and con- ditions." They certainly should not leave it to the railroads to say when they can violate the rule. 'Then we will, by corrective justice, have to correct the evil after it has been done, a thing which experience has shown is practically impossible. We give them the right to go to the commission whenever certain circumstances exist, and the com- mission, and the commission alone, has the power to give them the right to charge more for a shorter tnan for a longer haul. Mr. Thorn: In connection with the Bristol case, to which you have referred, I want to say that I have a letter at my room from one of the members of the firm who obtained that rate, and he was very much surprised at the statement made upon this floor upon information which, of course, Mr. Stebbins derived from someone else, about the rate and the time that was taken in getting that rate. I do not want such an impression to be made here. I can bring the letter here at some other time, but it seems to me it is an immaterial matter to discuss the merits of that individual case. Whether in that particular case it took eight days to get the rate, or not, the case affords a very good illustration of the necessity for the power on the part of the carrier to give the rate at once. Here was a building going up at Bristol. The Southern Railway Company in Tennessee offered to bring bricks from some place there to Bristol at a certain rate. There was a man at Pulaski who had a brick yard, and who could furnish some of the brick; but whether or not he could get the contract depended upon whether he could get his brick to Bristol over the Norfolk and Western at a rate cheap enough to enable him to compete with the man in Tennessee. T\Tiether, in that individual case, there were eight days in which to make that inquiry, or only eight hours, is immaterial to the merits of the question. It might very well be that it was necessary to make that investi- gation in telegraphic time. If that were so, then under the article as reported here by the committee, the Virginia trader would be cut off, and the Tennessee man would get the contract. The simple question before us is whether or not such a thing is desirable. 1 do not think my friend can make a strong case in favor of the long and short haul clause in this article, for the reason that he has created a commission and given it power ■2512 DEBATES OF THE CONSTITUTIOi^AL CONVENTION OF VIRGINIA. over all rates, and if they can control all rates they can control the rates which apply to long and short hauls. I do not believe it is judicious to handicap the Virginia man. whose business is controlled by this article, and prevent him from entering into compet- tition with men who can deliver articles intrastate by intrastate roads. Mr. Braxton: I think it is a mistake to think that these rates have to be gotten by telegraph. My information is that nine times out of ten where a telegraphic rate is given it is nothing more nor less than an inquiry from some local depot agent who has forgotten what the real rate is, or who has lost his rate book, and simply telegraphs to know what the rate is. My information is that special rates cannot be gotten, and I think they ought not to be given by the railroads until they have fully investigated and inquired into the matter. As this commission is at the headquarters of the State, every railroad company will have its representative here. I am assured by business men with whom I have talked and by the president of the North Carolina Railroad Commission that this supposed delay is imaginary, and that there is no difficulty on the ground of delay about getting special rates where they are required or desirable. Mr. R. Walton Moore: Is it not a fact that the long and short haul principle is applied by the railroad companies now almost universally, except in what they call the Southern territory? Mr. Braxton: That is true beyond question; but they do it of their own volition, because they recognize it as a reasonable rule, and not because the Interstate Commerce Commission has compelled them to do so. Mr. R. Walton Moore: While 1 am not able to quote the language of the testimony, I recollect, from my reading of the report of the industrial commission, that Colonel Talcott, one of the officers of the Seaboard Air Line Company, sanctions the application of the short and long haul principle as stated in this section now under consideration. Mr. Braxton: I thank my friend for the information he has given me. It but cor- roborates what our information was before, that even if what my friend from Norfolk thinks is true were true, and there v/ould be exceptional instances where some man would fail to get a rate that was desirable, still the damage to the people of this State which would result from such a possible occasional occurence is infinitesimal as com- pared with the great damage that would result unless some check like this long and short haul clause, is put in for the protection of the great mass of people all over the State. I trust, therefore, it will be the pleasure of the committee to vote down the amendment of the gentleman from Norfolk. The Chairman: The question is on agreeing to the amendment offered by the gen- tleman from Norfolk. The amendment was rejected. On motion of Mr. James W. Gordon the committee rose and the President resumed the chair. On motion of Mr. Lindsay the Convention adjourned until to-morrow, Tuesday, February 18, 1902, at 10 o'clock A. M. TUESDAY, February 18, 1902. The Convention met at 10 o'clock A. M. Prayer by Rev. W. F. Dunaway, D. D. CORPORATIONS. On motion of Mr. Braxton the Convention resolved itself into Committee of the Whole, for the purpose of further considering the report of the Committee on Corpora- tions, Mr. Ayers in the chair. DEBATES OF THE C0X5TITUTI0XAL COXVEXTIOX OF VIEGIXIA. 2513 Mr. Braxton: Mr. Chairman, we passed by Section 8 yesterday evening because it was understood that the gentleman from Petersburg city (Mr. Hamilton) desired to sub- mit some remarKS on it. I move that we now take up and dispose of Section 8. The Secretary will read Section 8. Sec. 8. The General Assembly shall, by general laws, of uniform operation, provide reasonable and economical regulations for the ascertainment of just compensation to all railroads a part of whose right of way may be condemned for the use of telegraph or telephone lines, and provide for the condemnation, in one proceeding, of the whole of such part of the right of way of any railroad in this State, and that telegraph and tele- phone companies, by such proceedings, shall, by such proceedings, acquire only an ease- ment in, and to the right of way of the railroads in this State, for the purpose of con- structing, maintaining and operating their lines, which must be done so as not to inter- fere with the operation of the railroad trains; and if, at any time, a railroad company shall need for railroad purposes any portion of its right of way occupied by a telegraph or telephone company, such telegraph or telephone company shall, upon reasonable notice, at its own expense, remove its lines to such other points on the right of way as may be designated by the railroad company. The railroad company shall have the prior right to their entire right of way for railroad purposes. Mr. Braxton: Mr. Chairman, this section was based upon a resolution introduced in the Convention by the gentleman from Page (Mr. Parks). It is the desire of the com- mittee that he take charge of this matter in replying to any arguments which may be made against it. At the same time I can say that the majority of the committee fully endorse me provision as there stated, but as he is more familiar with the matter than any member of the committee, I shall ask him to take charge of the debate on this section. Mr. Hamilton: Mr. Chairman, and gentlemen of the committee, I regret that my absence yesterday caused any delay in considering this section, and I do not know that if I had been here I would have said anything more on the subject. I have noticed this section once before, and had hoped that the objectionable features in it v/ould have been removed by the committee. As the basis, merely, of what I shall have to say, sir, I move that the section be stricken out. The real object of my remarks is to endeavor to get the committee to amend the section, if possible, so as to do away with its most objectionable features, if they do not approve of striking it out. As I said some days ago, in considering this matter, I was familiar with this subject because it came up as a separate bill of the Postal Telegraph Company in the Legislature several years ago, and the purpose and object of it then was as I understood, to provide simply for that company and for no other company. There was an amendment added to it finally that it should apply to telephone as well as to telegraph lines. The objection which I have to it is, sir, that it seems to me the principle is wrong. No public corporation, no corporation authorized to exercise the right of eminent domain, ought to be allowed to exercise that right to a greater extent than it has need of the property to be condemned for the purposes of the corporation. That is fundamental. That is the statute; and any statute which went beyond that and which authorized any corporation to condemn private property beyond the needs of the corporation for public or quasi-public purposes, would be unconstitutional. Now, originally in Virginia rights of way were eighty feet wide. I say originally. That is my recollection of the oldest statutes on the subject, and of the old charters. Twenty, thirty or forty years ago, the width of a right of way was extended to one hun- dred feet, indicating that eighty feet was not enough. Now, upon this right of way, it is proposed to allow telephaph and telephone companies to condemn a portion of it for the erection of poles for the use of such companies. There is a law already which permits that. An act passed by the General Assembly permits it, and the only difference in substance between that act and this is, as I understand, that this permits the condem- nation in one tribunal to extend over the full length of any railroad in the State. That is practically the only difference. Now I know of no other case in which condemnation 2514 DEBATES OF THE CONSTITUTIO^^AL CONVENTION OF VIRGINIA. proceedings to obtain the use of real estate or to obtain the real estate itself ex- tends beyond the limits of the county or city where the proceeding takes place. This seems to be an absolutely new departure, in allowing one proceeding in one court of this Commonwealth to extend all over the Commonwealth. The objection to it, in my mind, is that you do not have commissioners of the vicinage, people who know the values in the immediate locality, as you do in all other cases. Even if you assume that it is proper to allow these telephone or telegraph companies, by a right higher and above the railroad company, to use a part of its right of way, it is objectionable, Mr. Chairman, from a practical standpoint. It is frequently the case that telephone and telegraph poles are improperly put up, and negligently maintained. They may be placed in a position too near to the railway tracks; they may render the running of trains very dangerous. When telegraph poles are put upon railway rights of way now, they are put there under a contract by which the telegraph company is absolutely subordinate to the rail- way company. The railway company is charged with the proper care of the right of way; they are charged with the duty of keeping it in condition, of keeping ft safe, pre- venting its obstruction, and so on. That right will be entirely taken away by this pro- ceeding. Then, I say, it is not desirable; it seems to me it is very undesirable that five com- missioners, we will say, appointed in one portion of the State, shall act with respect to this matter all over the State, wherever the railway line runs. They cannot know the local conditions; they cannot know the local troubles, and if they undertake to view the property, as all commissioners should do who condemn property, it would be a task in- volving great time, moment and waste. The gentlemen who were urging this bill before the Legislature did not want them to be required to view the property. As I stated the other day, he said that, with one proceeding, he could practically get the use of this right of way for nothing for many, many miles. I do not take it that it is the purpose of this house to take from the railway com- panies anything which belongs to them, without giving them proper compensation. I take it they do not mean to be unfair and unjust to the railway companies, and 1 hope they will think about this matter. It is not a matter which is at all embraced in your general plan for the regulation and control of railroad companies. It is a piece, really, of special legislation, Mr. Chairman, if I ever saw such a place, far more so than anything else I have seen put in this Constitution, and it is put in for the purpose of meeting a particular case, as I understand it. The Postal Company and the Western Union Com- pany quarreled. The railroads have no earthly interest in either of them, and care nothing about either of them, except as useful adjuncts in running railways. The law requires railway companies to have telegraph stations a certain number of miles apart, and the railway company is absolutely indifferent to what telegraph com- pany performs the service, if it performs it subordinate to the control of the road itself. It was charged by the gentlemen representing the Postal Company that some of the rail- way companies had a contract with the Western Union Company which would prevent the railway companies giving any facilities to other telegraph companies. I think that was true in some cases. It was not true in other cases, as was proved by the exhibition of the contracts. But even if that were so, there was nothing wrong in it. It was the best contract the railway company could make to discharge their own duties, with the one company which for many years had been the most reliable and the most substantial of the telegraph companies. Most of these new telegraph companies have, from time to time, been bought out by the Western Union. You might make a contract with one of them, and in a little while you find that company gone. It is the duty of the railroad companies to maintain telegraph lines of their own unless they can get the service properly performed by other companies. The real objection to this section is that the con- demnation proceedings should not take place for the whole State in one court in the DEBATES or THE COXSTITrTIOXAL COXVEXTIOX OE TIEGIXIA. 2515 State. It stLOuld take place as it does in every oiher cause, before a proper tribunal having charge of each city and county where the case may properly come up. The next fundamental objection is that no concern should be placed in a position of paramount authority on the right of way of a railroad company if the railroad company is responsible for the condition of that right of way, and for its use. The two things are inconsistent and it is inconsistent with the principle of our law of condemnation. In the third place, this says this shall not be done where the construction, maintenance, and operating of these telephone or telegraph lines will interfere with the operating of railroad trains. That is not all that may be seriously interfered with. In these latter days it is be- coming very necessary at some places to make side-tracks and spurs, and all sorts of things, to enable the railroad to reach business concerns, warehouses, etc. Yet there is no inhibition here with respect to that. It is just said that its trains are not to be inter- fered with by these people when they condemn the right of way and put a pole dovm. Before going on with this branch of my remarks. I wish to say that it is impossible to maintain or to construct a telephone or telegraph line on a right of way merely by getting the right to put a pole in a hole. Those things need repair, they need attention, and that means that the use, lengthwise, or the right of way for the purpose of con- struction and repair, would be granted away from the railway company, which is charged with the responsibility for the condition of its right of way, to somebody else, whom the railway company cannot govern and control. I say it is net a sumcient gtiard or pro- tection merely to say that it shall not interfere with trains. You need the right of way at times for depot purposes, you need the right of way for station purposes: and for sidings, for spurs, and for all sorts of things; and the railway company ought to be para- mount within the limits c-i that right of wa.y which the law has said was necessary for the proper discharge of its duty. But there is another trouble — Mr. Braxton: !May I ask the gentleman how far the last clause of the section, in his opinion, meets tne objection? Mr. Hamilton: I have considered that, sir. and I do not think it meets it entirely. I will give my reason for that opinion in a few moments. And if. at any time, a railroad company shall need for railroad purposes any portion of its right of way occupied by a telepraph or telephone such telegraph or telephone company shall, unpon reasonable notice, at its own expense, remove its lines to such other points on the right of way as may be designated by the railroad company. Xow. Mr. Chairman, suppose there is no other point which can be designated. There are places in which the rights of way of the railroad companies are so narrow and restricted that there is no place in which to put telegraph or telephone poles, to my cer- tain Ivnowledge. In the city of Richmond, in the city of Manchester, and in the city of Petersburg, there are points where the railroad company has no room to allow anybody to put telephone poles. There is another thing which I will call to your attention in this connection, and that is that if we pass this ordinance in this shape, you may be putting into the cities unintentionally this very telephone company that there has been so much trouble and objection to coming into the cities against their will. Every cit3% almost, is intersected by railway companies, and if there is room on the rights of way of the railway com- panies to take enough of it to put these poles up. and you give that right to them, where is the authority of that city to say these telephone companies shall not come in there and operate? They could not do it? I do not know much of anything about the merits of that question, and I care very little about it. I voted against it. I thought the city should have some power of regulation in such matters. But you do open the door here, provided there is room for these very companies, that there seems to be considerable feeling about, to get into the cities and doing the very work contrary to the city's consent. 2516 DEBATES OF THE CONSTITUTION' AL CONVENTION OF VIRGINIA. And, as I said a moment ago, there are various places upon every railway right of way where there is room for no pole of any kind, except probably in a dangerous position to those operating the trains. I know there are such points in Manchester, on the Coast Line; I know there are such points in the city of Rich- mond; I know there are such points in the city of Petersburg. Suppose there is a location, however, which was gotten and suppose then the railroad company said, "I need that land." The telegraph or telephone company may dispute the fact whether the rail- road company needs it or not. Who is to decide that? The courts? Is the railroad company to waif before it can get sufficient possession of its right of way to use it for railroad purposes, upon the litigation in court as to whether the railroad company really needs it or not? I take it that is not desirable nor is that right. But, suppose a tele- phone or telegraph company says, "I will move these poles, but you must tell me where else to put them on your right of way;" and the railroad company says, "Nowhere else; I have no room." Then, I take it, the Chairman's view of the last clause comes in, that the railroad company shall have the prior right to its entire right of way for railroad purposes. It seems to me, Mr, Chairman, that is necessary by the existing statutes of Vir- ginia and by the underlying principles upon which the condemnation of all property rests, namely, that you cannot condemn a particle of it that is not necessary to the use for which it is to be condemned. I regretted to hear the chairman of the committee say, as I understood him, that this section met with the approval of the committee and I take it for granted that if that is the case, what I have said will have no influence, and vnll not be listened to or re- garded. But I do believe you are doing a dangerous, unnecessary and unwise thing, a thing which will hurt the railroads, and will not help you — a thing which is wholly in the nature of special legislation, for the benefit of special people, contrary to general right and general justice. I hope very much that some gentlemen here will consider this matter with care and see if it is right and proper before they give their approval to it. Mr. Parks: Mr. Chairman and gentlemen of the committee, I shall occupy your time very briefly in explaining, as I understand it it, Section 8 of this report. By an examination of that section you will see that the purpose, and the entire pur- pose of it, is to provide that the Legislature shall provide reasonable and economical regulations for the ascertainment of .iust compensation to all railroads, a part of whose right of way may be condemned for the use of the telegraph and telephone companies, and for the condemnation in one proceeding of the whole or such part of the right of way of any railroad in this State. Now, gentlemen, this is no new law. In 1879-'80 the Legislature took hold of this matter and passed three statutes, which I will read: Every telegraph and every telephone company incorporated by this or any other State, or by the United States, may construct, maintain and operate its line along any of the State or county roads or works and over the waters of the State, and along and parallel to any of the railroads of the State, provided the ordinary use of such roads, works, railroads, and waters be not thereby obstructed; and along or over the streets of any city or town, with the consent of the council thereof. Now, you will notice the language of that statute. It provides that every telegraph and every telephone company incorporated in the State or by the United States could maintain, construct and operate its line along any of the State or county roads or works, and over the waters of the State,and along and parallel to any of the railroads of the State. A telegraph company undertook to condemn a part of the right of way of a railroad company for its use for the construction of a telegraph line upon the right of way. The case was fought by the railroad company and by the Western Union Telegraph Com- pany, and finally it got into the Court of Appeals. The Supreme Court of the State decided that the words " along and parallel to " meant just off of the right of way, but DEBATES OF IHE COXSIIirilOXAL COXTEXIIOX OE TIEGIXIA. •2517 that the telegraph company could not condemn any part of the right of ^'ay of the rail- road and could not put a pole or any part of its applances upon the right of way of the railroad company. Efforts were made in two or three instances to get other cases into the court, but as soon as proceedings were instituted, the attorneys would take the case into the United States court. Finally a case was instituted which got again to the present Supreme Court, and they reversed the decision of the former court, and decided that under the statute the telegraph company by a proper proceeding could condemn part of the right of way of a railroad, and construct its line upon the right of way. Judge Keith, in rendering the decision in that case, used this language, to which I call the attention of the committee: The right which a telegraph company is authorized to acquire would be a matter of indifference to the railroad companies if the construction heretofore given by this court vrere correct, and the mention of them in the statute would be utterly irrelevant. Again Judge Keith says: We have here a single judgment followed in no other case rendered by a bare majority of the court, two of the judges dissenting and placing a construction upon the statute law involved in it, which we think palpably erroneous and contrary to public policy, as tending to foster and promote a monopoly. That decision settled the question embraced in Section 1287, which I have read, and held that the telegraph company might, by proper proceeding, condemn a part of the right of way of a railroad company, and construct a line of telegraph upon that right of way. Section 12SS is as follows: Such company may contract with any person or corporation, the owner of lands, or of any interest, franchise, privilege or easement therein or in respect thereto over which such line is proposed to be constructed for the right of way for erecting, repairing and preserving its poles and other structures necessary for operating its lines, and the right of way for the erection and occupation of offices at suitable distances along its line for the public accommodation. Now, we come to Section 1299. which provides the manner in which the telegraph company can get possession of any part of the right of way of the railroad: If the company and such owner cannot agree on the terms of such contracts the company shall be entitled to such right of way, upon making just compensation therefor to such owner. Such compensation shall be ascertained and made, as provided in Chap- ter 46, for the ac-quisition of lands by a company incorporated for a work of internal improvement company* cannot agree upon the terms of the purchase with those entitled to the lands wanted for the purpose of the company. So you see that the statute requires any telegraph company seeking to get any part of the right of vray of a railroad company condemned for the construction of a telegraph line to proceed under Chapter 46. If you turn to Chapter 46 you will find that one section of that Chapter provides that unless the telegraph company can come to an agi'eement with the railroad company they must file their petition in the county court of the county wherein the land, or the greater part thereof, lies. Hence a telegraph company, seeking to condemn any part of the right of way of a railroad company would have to go into every town and have commissioners appointed, under Chapter 46, to condemn the right of way of a railroad company in that county. In the first place, it is a tedious proceeding to force a telegraph company to go into each county, and in the next place, It is oppressive. A telegraph company has made the experiment, in one instance. They started a case in one county in 1SS9 and it was never concluded until 1S92, when it was concluded in the Court of Appeals of the State. What position do the railroad companies and the Western Union Telegraph Com- 2518 DEBATES OF THE COXSTITUTIOXAL COXVENTIOX OE VIRGINIA. pany take upon this matter? They say that, under Chapter 46, a telegraph company cannot condemn the right of way of a railroad. Why? Because the right of way of a railroad, no matter how many counties it runs through, is an entirety. You cannot sell a part of it. You cannot assess a part of it. You cannot tax a part of it; but you must tax it as an entirety. That is the position of the railroad company. In the case of the Telegraph Company vs. The Farmviile and Powhatan Railroad Company, counsel for the railroad company and counsel for the telegraph company both used this language: "A railroad from one end to the other is one entire thing, includ- ing its narrow strip of land, excavations, embankments, tunnels, bridges, roadbed, ties and rails, sidings, depots, tanks, &c; and this strip of land is necessary, continuous and unbroken. It is a single tract of land belonging to a single owner. In the case at bar it is ninety miles long and extends through the counties of Chesterfield, Powhatan and Cumberland into Prince Edward. Only thirty-eight miles of this narrow strip of land are in Chesterfield." I say, Mr. Chairman, that when a telegraph company goes into court under Chapter 46 they can only get the land condemned in each county by proceedings instituted and prosecuted in each county. I want to call your attention to the decisions which are relied upon by the railroad company and the Vl^estern Union Telegraph Company in combating the right of a telegraph company to condemn the right of v/ay over any part of their right of v/ay. In the case of the St. Louis and Cairo Illinois Railroad Company vs. The Postal Telegraph Cable Company, reported in 173d Illinois, at page 508, the court said: "If a special condemnation proceeding should be instituted in each one of the counties through which the right of way runs, there would be in all such suits the same petitioner, the same defendant, and the same right of way. Under such cir- cumstances it hardly seems necessary to file seven different petitions in seven different county courts, in seven different counties, to condemn the same right of way in all seven counties. Such a course would be to subject the people of the State, without any good reason, to the costs and annoyance of seven different law suits, and the petitioner to the delay consequent upon bringing so many proceedings." In the case of the Postal Telegraph Cable Company vs. the Oregon Short Line Rail- way company, decided in May, the courts says: The damages to which the defendant is entitled is for the whole property, and the cause of action arises in all five counties as a suit. The county lines crossing the right of way of appellants do not destroy the singleness of its use. Neither does it negative the fact that all the land constitutes but one right of v/ay, as is said in Lewis on Emi- nent Domain, Section 475, in defining what constitutes an entire tract: In general it is so much as belongs to the same proprietor as that taken, and is contiguous to it, or used together for a common purpose, I submit, Mr. Chairman, that under chapter 46 it is absolutely impossible for a telegraph company, by application and proceedings under that chapter, to secure the condemnation of any part of the right of way of a railroad company, because the court holds that you cannot condemn any part; that you cannot condemn the portion lying in this county by one proceeding, and then go into another county and condemn the land lying in that county by another proceeding; but that the right of way of a railroad is an entirety and you must condemn it as an entirety. Now, gentlemen, what is the necessity for that? As Judge Keith has said, here is a matter that is tending to foster and promote a monopoly. Mr. Hamilton: Was it not admitted by Colonel Mcintosh that he had a written agreement with the Western Union Telegraph Company to charge the same rates? Mr. Parks: I do not know it, sir. Mr. Hamilton: I thought you were the chairman of the committee when the matter came up before it. Mr. Parks: I was chairman when Colonel Mcintosh appeared before the committee in regard to the bill; but I do not remember what he said about it. DEBATES OE IKE COXillTUIIOXAL COXVEXIIOX OE YIEGIXIA. 2519 Bui -u-heilier ihat be true or noi, iliere is the Western Union Teleg-rapli Company using its line with the consent, I believe, of about 99 per cent, of the railroad companies in the State of Virginia, and as to one, at least, of the railroad companies the contract provides, and the railroad company binds itself in terms in the contract, that it will not permit or aliovr. if ii can prevent it. any other telegraph company to construct its line upon its right of way: but that it will reserve to the Western Union Telegraph Com- pany entire right and control of the right of way, so far as the construction of telegraph lines is concerned. It is said that this provision does not protect the railroad company; that it does not provide that they shall have the use of their right of way for spurs, switches and sidings. Why gentlemen, listen to the language: Telegraph and telephone companies shall, by such proceedings, acauire only an easement in and to the right of way of the railroads in this State, for the purpose of constructing, maintaining and operating their lines, which must be done so as not to interfere with the operation of the railroad trains. "What do they want with sidings, what do they want with spurs, what do they want with switches if it is not proposed to operate trains upon those spurs, switches and sid- ings? If it is not for that purpose, it is for no purpose. This provision says that the line must be so constructed as not to interfere with the operation of trains. Again, it is said that the railroad company shall have the prior right to their entire right of way for railroad purposes. If they need any part of their right of way at any time to be used for railroad purposes the law says that the telegi'aph company shall remove its lines at its own expense to such other points on the right of way as may be designated by the railroad company. -vir. Thorn: Suppose the whole right of way is necessary for railroad purposes, where does it move? Mr. Parks: Then the telegraph company must put its poles somewhere else. It does not say so in so many v.-ords; but it says they shall put them on the right of way wherever the railroad company shall designate and it says, further, that the rail- road company shall have tlie exclusive control of its entire right of way for railroad purposes. Then, if its entire right of way is necessary, the telegraph company cannot use the right of way or any part of it. Mr. Thorn: Are not these two clauses in the report inconsistent? One provides that the railroad company shall designate some other point on its right of way to be occupied by the telegraph line, in case the railroad company needs a part of the right of way where the line is then located; and the other clause provides that the railroad company shall have control of its entire right of way. How do you reconcile these two provisions? Mr. Parks: They are very easily reconciled. If you provide that the railroad com- panies can say to the telegraph lines: I need this for the operation of my trains and railroad and you must remove from it," then no matter how much room they may have they will say " I want all this and you might just as well strike out the entire pro- vision because the railroad company, in carrying out their contract with the Western Union Telegraph Company, would never have any place upon its right of way for the construction of a telegraph line and the erection of telegraph poles. That has been their conduct in the past and it will be their conduct in the future. A bill similar to this was introduced in 1S9T-9S by the late lamented Mr. Redding. It was reported upon and put upon the calendar, but too late to be acted on. At the last regular session I introduced a similar bill. It was reported and passed by the House by a large majority and went to the Senate. There it was turned down. Certain objections were made to the bill, and I prepared another bill correcting, as far as I could, those objections. It was passed through the House almost unanimously and went to the Senate and there was again lost. 2520 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Is there not a demand for this? The railroad company recognized that demand years ago. Now, mark you, the Legislature said that these condemnation proceedings should be in accordance with Chapter 46. Bear in mind that Chapter 46 was enacted before the telegraph was invented. The man who 'prepared that bill for proceedings for condemnation of the right of way of a railroad did not know anything about a telegraph line. The proceedings there provided for are entirely unsuited to the condemnation of the right of way of a railroad for the construction of a telegraph line. It is further stated that it will interfere with the cities and towns. The section, as placed in this report, is not in the language in which I drew it. I want to say that if there is any danger that this bill will interfere with the the rights of cities to the con- trol of their streets and alleys in the erection of telegraph and telephone lines, then I want to protect the cities and towns. I have this language in the resolution which I in- troduced: Nothing herein shall be construed to interfere with the rights of cities and towns to arrange and control their streets and alleys, and to designate the places and in the manner in which the wires of such company shall be erected or laid within the limits of such city or town. If it is thought that the provision, as introduced by the committee, will interfere with the rights of cities and towns to control these matters I am willing that it shall be amended. Mr. Pollard: I think the point you have mentioned is covered in Section 10 of the report of the Committee on Cities and Towns, already adopted. Mr. Parks: I think so myself; but if it is not, I want it protected. I have no de- sire to undo the matter as it now stands or to interfere with the right of cities and towns to control their streets and alleys. We are asked if there is any demand for this provision, if the people want it, is there any clamor for it? My view may be v/rong upon that matter, but I hold that if I am in this Convention in a representative capacity or in the Legislature as a represen- tative of the people and I see that the rights of the people are being interfered with and that there is a wrong likely to result, or if I see that the people can be benefited along any line, no matter whether it has ever been discussed before the people or whether they know anything about it. I consider it my sworn duty, as their representative, whether there is a popular demand and clamor for it or not to try to get such legislation, if legis- lation is sought, and if legislation is sought which, in my judgment would be prejudicial to their interests, it is my duty to defeat that legislation if I can without waiting for popular clamor or popular demand. It is my duty to represent the people and to look out for their interests with what ability I possess and not to wait for popular clamor or demand to compel me to do what I believe is right and what my judgment approves. Mr. Ingram: I desire to offer the following amendment which, I think, makes the matter clearer and tends to the protection of the right of the railroad company. Amend, in line 19, after the word "company" by inserting the words "provided there is such place not needed for railroad purposes, and shall have the right to pre- scribe reasonable regulations as to the manner of construction and maintenance of said lines." And by striking out the words "The railroad company shall have the power and right to their entire right of way for railroad purposes." Mr. Fairfax: The wording of that amendment does not cover many of the instances whereas great hardship might be worked on the railroad company. We will take, for where great hardship might be worked on the railroad company. We will take, for example, a cut 50 or 60 feet deep, whose slopes go beyond the right of way of the com- pany. Would not this amendment, if the telegraph company felt so inclined, allow it to put its poles upon the slopes of that cut. Where the entire right of way of the rail- road company is taken up by the slopes, you cannot interfere with the slopes without endangering the property of the company because it is apt to produce land slides. I DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 2521 know of one case where the Western Union Company is paying for an additional right of way for two or three thousand feet, because there is no room on the right of way of the railroad company for its telegraph poles. Mr. Ingram: I would like to state to the gentleman that I think my amendment does cure the case he mentions. It says "provided there is such place not needed for railroad purposes." It seems to me that the slopes you speak of were necessary to the railroad and the case to which you refer, where the Western Union Telegraph Company has to pay a large price for the purpose of placing its poles outside o'f the right of way would be another case in which it would be absolutely needed for railroad purposes, and would be covered by my amendment. In addition, the railroad company would have the right to prescribe rules and reasonable regulations as to the manner of construction and maintenance of the lin.es so as to make its own right of way safe and keep it intact. So far as Section 8 is concerned, I wish to state that this is no new right we are conferring. It is a right which already belongs to the people under the statute law and the decisions of our Court of Appeals in the cases quoted by the gentleman from Page. It simply gives an effective remedy. It does away with the necessity of going into every county in the State and getting out separate condemnation proceedings when this matter might be done without injury to the railroad companies, in one general pro- ceeding. Mr. Robertson: Do you not think it would be within the power of the Legislature to grant the relief, if there be any necessity for relief in this matter? Mr. Ingram: Yes, sir. Mr. Robertson: Then why is it you gentlemen are not willing to leave this matter to the Legislature? Mr. Ingram: We do leave it to the Legislature. We say that the Legislature shall pass laws carrying into effect the provisions of Section 8; that the Legislature shall provide reasonable and economical regulations for the ascertainment of just compen- sation to all railroads, Mr. Robertson: I understand that, but why is it not perfectly possible for you to leave this clause out entirely, and that the Legislature should do the thing which you say the Court of Appeals indicated? Mr. Ingram: Because we prefer to settle this matter as we have settled other matters in the Constitution. We believe it is to the interest of the public that it should be settled here. We do not take away the rights from the Legislature. We say to the Legislature, "You shall provide in some reasonable and proper way a just compen- sation." If the gentleman from Roanoke will excuse me, he will have the right to reply to me. This is a matter upon which we disagree again as to the propriety of such enact- ments along this line. We have endeavored as best we could to safeguard the rights of the railroads in every way, but at the same time we do want an efficient remedy for the important agencies, transmission companies, telephone and telegraph companies, so that they can, by proper compensation, in a proper and orderly proceeding, condemn the right of way of these companies so far as it does not interfere with their own use of the right of way of the railroad companies of the State; and it is intended to bring about an effective remedy where the remedy up to this time is not effective. Mr. Hancock: Mr. Chairman, this report of the Committee on Corporations, taken in the main, meets my hearty approval. I believe the transportation and the trans- mission companies of the Commonwealth should be controlled, and I am in favor of giving to this commission all the power that is necessary to accomplish the object and purpose of this report; but at the same time, while I believe that the railroad com- panies should be controlled, I do not think they should be oppressed. I do not think there should be placed in this Constitution a provision that infringes upon the rights of the railroads and places them at a disadvantage. I believe that they should be con- trolled, but I do not believe, as I have said, that any injustice should be done them. Now, take this question of eminent domain. What is the principle of eminent 159— Const. Deb. 2522 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. domain. What is the principle of eminent domain as applied to corporations. It is that the power of the State is given to a corporation to condemn as much property of the individual citizen as is necessary for the use of that corporation. If that is the object and purpose of the right of eminent domain, then no railroad company in the Commonwealth has any more right of way than it is entitled to have for its own pur- pose; or, if it has condemned any more than it needs, it has improperly condemned it. If it has followed the statute and condemned only such as the law says it is entitled to, then no man has a right to place his hand upon it or to interfere with it. It is the private property of that corporation to be used for its own purposes. If that be true, then these railroads have their right of way; and what did you give it to them for? You gave it to them for a public purpose. You did not give them any more than what they needed, and that is laid off for them, and they have it as firmly and as securely as a private individual has the title to his property. But now comes in a statute and says that this right of way may be condemned for the telephone and telegraph companies. I believe any such statute as that is uncon- stitutional, because it is contrary to common right and to common sense, and to the principles that should control in all of these matters where condemnation proceedings are had and the right of eminent domain is invoked. I had the honor to preside at the trial of both of the cases cited by the gentleman from Page (Mr. Parks). For several weeks one of the cases was on trial. Commis- sioners were appointed to assess the damages and to determine what was the value of that portion of the road proposed to be condemned, to say where the poles ought to be located, and when and how they should be removed; how near they should come to the station, and how close they should be placed to the right of way at certain locations. The whole matter was in such confusion that when the case came before the Circuit Court of Petersburg for trial, I decided that the law did not allow telegraph companies to go upon the railroad company's right of way at all; that it was inconsistent with the idea that they had it for a public purpose and could not be taken for any other. The case went to the Supreme Court of Appeals, and the court sustained that de- cision. Then, years afterwards, one of the smallest, weakest and poorest railroads in the Commonwealth of Virginia was selected, and another effort was made to place tele- graph poles on the right of way of this railroad. When the case was presented to me I reaffirmed the decision I rendered in the other case. The case then went to the Supreme Court, and was reversed. I do not believe the case was fully and properly argued before that court. If it had been, I believe no such judgment would have been rendered. (Laughter.) Yes, sir, when I have the Court of Appeals affirming my decision in one case, and in another case, upon the same facts, reversing my decision, I have the right to say that they would have stood by their former decision if the case had been properly presented to them. (Laughter.) But this is the proposition that I wish to maintain, far beyond courts of appeals or statutes, that when a right of way is condemned and said to be absolutely necessary for one purpose, then to take it and use it for an entirely different and opposite purpose is so inconsistent with common right and justice that no man, it seems to me, will be in favor of any such construction. Of course, the State may con- demn for its own purpose all of the right of way of the railroad if it so desires by pay- ing proper compensation therefor. If you will excuse a personal allusion, I will state that one of these railroads passes through my farm, in the county of Chesterfield, and that the Long Distance Telephone came along, running its line parallel to, but not upon, the right of way of the railroad. The poles were placed on my land five feet outside of the railroad right of way, and I was paid for the land. There was no difficulty in get- ting everybody on the line to sell the right of way to the telephone company. The peo- ple were glad to have the poles erected there and to have the service of the telephone all along the line, and there was no objection. The company had no trouble about con- demnation proceedings, I have been informed from the city of Washington to the DEBATES 01 THE COXSIIIUIIOXAL COXVEXTIOX OE VIRGINIA. 2. 5 -2 3 border of the State of .Virginia on the North Carolina line. There was no necessity for condemnation, because the people ^\-ere too anxious to give or to sell the right of way. Now. when yoti have thousands of acres of land on both sides of the railroad, and all you have to do is to step five feet outside of this right of way of the railroad and get the right to place these poles there,, by purchase or condemnation, from persons re- siding along the railroad, why place this restriction and this burden upon the railroads? Why make it so that if one of these telegraph or telephone companies should im- properly place one of its poles in the earth and during a storm this pole should fall across the track of the railroad, and one of the fast trains comes along and runs over this pole, and an accident occurs and a number of passengers are injured, how could the railroad company have prevented it? Yet the railroad company must pay damages. The railroad right of way ought to be sacred for its own purposes. -Jr. Kendall: .vlr. Chairman, this is not a matter about which I feel any special interest. It seems to me the arguments of the gentleman from Page (Mr. Parks) and the gentleman from Manchester (,Mr. Ingram) have fully shown to the Convention the propriety of this provision as embodied in this report, especialh' with the amendment oSered by the gentleman from Manchester. I reckon at least that the law is settled, as it has been determined by our Supreme Court in its last decision, and I must admit that I do not appreciate the argument of the gentlemen from Chesterfield Olv. Han- cock), who seems to think that when land is condemned by a railroad company it be- comes Invested with some sac-redness which does not pertain to the land owned by a private individual, so th8.t it cannot be taken for public uses under any terms or cir- cumstances. That is a necessity which is often resorted to. I believe in the past it has been a disputed point, and it occtirs to me I have seen somewhere that the Standard Oil Company, making use of some decisions of that kind, for years blocked the way of a competing line, preventing them from reaching water points. But it is now a settled matter in the law everywhere that where lands which have been condemned by railroads or other public service corporations for their purposes are necessary for other purposes, they may be condemned for those other purposes, provided they do not interfere with the public rights of the company which first con- demned them. That is all that is attempted here by this provision, and it is not in the contempla- tion of any one who is advocating that provision that the railway should be in any way interfered with in the enjoyment of this privilege. That is safeguarded against in every manner in which it is possible to guard it by the report; and I think I may say for the committee that if gentlemen are able to offer any amendments which will make that more safe-guarded than it is. the committee is ready and willing to accept them. It was said to you by the gentleman from Petersburg (Mr. Hamilton) that this was not a measure to prevent monopolies, because the Western Union had a contract with the Postal Company that the rates should be the same; but he should remember that this is not only a measure in the Interest of other telegraph companies. It is in the interest of the telephone companies that are springing up in every section of the State. It is in the interest of every other telegraph company that may find it is necessary for public uses to be able to run its lines along these railroad tracks by one combination, without entering into a proceeding of that kind In each county through which it may run. It seems to me that a railway company enjoys its right of way as everybody and every other public corporation enjoys its privileges, subject to the public use, provided its own rights are not impaired. That cannot be done, and that it is not proposed to be done seems clear 'to me and that this will be for a great ptiblic advantage, I think is beyond dispute. I think the report as amended ought to be adopted: :\Ir. Thom: Mr. Chairman, I merely wish to say a few words in connection with this matter. I hold in my hand the laws of Virginia just alluded to by the gentleman from Chesterfield ( ^Ir. Hancock i v-hich requires that railroad companies shall main- tain at depots and stations not more than ten miles apart telegraph oflBces. 2524 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. This contract with the Western Union Telegraph Company which has been alluded to here is utilized for the purpose of performing that duty. The public having interest in the performance of that duty. These telegraph offices ten miles apart throughout the sparsely settled country are not self-supporting, and the citizens of those communities are dependent upon this railroad contract to have communication with the outside world. In other words, the railroad company is using this right of way in establishing a telegraph office by contract for the purpose of performing a public duty. Now, sup- pose you put another telegraph line right alongside of that, and you take away from the telegraph company having this contract the opportunity of gleaning what it can glean from the poorly paying business of these communities; you destroy the oppor- tunity on the part of the railroad company to make this contract and to perform this public duty without itself establishing its own line of telegraph. Is it necessary, in the public interest, that that should be done? Here is a very inexpensive strip of land lying just outside of the right of way, for which the owners would be glad to receive some compensation, and yet the telegraph company if required to go upon the right of way, will not pay the private owners what they could get for the use of their strip of land, and will take from the railroad company something that will impair its own opportunity for performing its public duties. Why do they do that? They do it and they want to do it because they can get this strip of right of way cheaper than they tan get the property of individuals, and why can they get it cheaper? They can get it cheaper because they propose to utilize work of the railroad companies and the money they have spent in preparing their right of way. It seems to me that is unfair. There is nothing here to prevent the telegraph company from condemning any land along the right of way. It is merely an effort made to enable them to come and take a part of the railroad's property and thereby impair the opportunities that a railroad company has, at moderate expense, to perform its public duties in reference to the establishment and maintenance of these telegraph offices. I desire to ask the gentleman from Manchester (Mr. Ingram) if he will now accept this amendment in place of his: After the word "company" in line 19, insert the words "if any such other point be available for that purpose, but the railroad company shall have the prior right to their entire right of way for railroad purposes," and then add, as a separate sentence what I have added to your amendment. Mr. William A. Anderson: Mr. Chairman, there is a question of far more impor- tance involved here, in my judgment, than the interest of any railroad company or any telegraph or telephone company, and that is the safety of the lives and persons of travellers upon these railroads. Under the law of this Commonwealth as now unamended the railroad companies are held, very properly, to the strictest accountability and the strictest responsibility for keeping the right of way in such condition of absolute safety that human life shall not be endangered, I want to ask the gentlemen of this committee whether the section as it now stands, or even as amended, if the amendments proposed by the gentleman from Norfolk (Mr. Thom) and the gentleman from Manchester (Mr. Ingram) are adopted, will give adequate protection to human life. We propose to give any little telephone company that may be organized in this State or to any telegraph company the right to acquire by condemnation the ownership and control of a part of a right of way which has been dedicated to purposes of transportation of the goods and of the people of the State. Now, just suppose, and the supposition is not a violent one, that a telephone com- pany with $5,000 or $10,000 or $20,000 capital has, by condemnation acquired a right to erect its poles and to construct its line along one of the railways of this State, and by reason of the negligent construction of its line, by reason of some imperfection in one of its poles, or the negligent and careless way in which that pole has been placed in the ground, that pole in some storm is blown over upon one of the railroad tracks, and a few minutes afterward, before the railroad company, with the utmost diligence, could have DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE VIRGIXIA. 25-25 discovered that its track was obstructed a passenger train carrying hundreds of people is precipitated into an abyss, and ten, fifteen, twenty or fifty lives are lost, could you hold the railroad company liable when the State has given the railroad company the right to do this thing? And where would be the redress of the people and where their protection against a danger of this kind, which is not a phantom of the imagination — which will menace them if this section is adopted in this shape? I am not here, sir, to speak for the railroad companies or the telephone companies, ■or the telegraph companies, but for the security and safety to life and limb and to the property of the people of this State. Mr. Wysor: I will answer the question very promptly. The Supreme Court has held that you can condemn a right of way and put these telephone poles upon it. Suppose one of them blows over on the railroad and they have a wreck, does not the very same state of things take place? \ou are arguing against the decision of the Supreme Court. :\Ir. William A. Anderson: ]\Ir. Chairman I do not want to increase the facilities for that sort of thing. If I had the opportunity I should like to amend the existing law. I do not want to put it in this Constitution so it cannot be changed by the Legislature and protection given to people of the State; and that is what you will do if you will adopt this amendment in this shape. You place the lives and the limbs of the people in this State in peril by giving a power to telephone companies to occupy these great highways and erect their poles upon them in such manner as they may see proper. I have this amendment to offer for the consideration of the committee, and I hope they will consider it. The railroad company over whose right of way the right to construct and operate a telegraph or telephone line shall be condemned, shall have the right, at the expense of the telephone company or telegraph company constructing such line, to cause the poles or other structures erected by such company to be so safely and securely constructed and erected upon its right of way as not to endanger the safe passage of its trains over such railway. It seems to me, sir. that is a reasonable restriction upon the power of any tele- graph or telephone company that may acquire a right of way over the right of way of a railroad company. ]vlr. Turnbull: Do you offer that as an amendment to the amendment of the gen- tleman from Manchester r:\Ir. Ingram)? Mr. William A. Anderson: Yes, sir. or to come in at the end of his amendment. T do not think it is inconsistent with the amendment of the gentleman from Manchester. ]Mr. Parks: I offer this as a substitute: Every telegraph and telephone company that has erected its line upon the right of way of any railroad company shall keep its poles and fixtures in such condition as not to endanger the safe passage of trains over any such roads, and if such railroad com- pany shall notify such telegraph or telephone company to repair or replace any of its poles or fijxtures, and such telegraph or telephone company fails to make such repairs in a reasonable time, the railroad company shall make such repairs at the cost of the telephone or telegraph company. :\Ir. Wiliam A. Anderson: I wish to say that if that was the only remedy given, and there should be a telegraph or telephone pole in such condition as to imminently endanger a railroad by being likely to fall at any instant, the railroad company would have to first give notice, probably one day or ten days' notice, to the telephone com- pany, and in the meantime trains might be wrecked. The railroad company should have all the power it now has in reference to the poles erected by the Western Union Telegraph Company, and the right to remove them at any time and put strong and secure poles in their place. :Mr. Wescott: Mr. Chairman and gentlemen of the committee, I wish very briefly to assign some reasons why I shall vote to strike out this section, in accord with the motion of the gentleman from Petersburg (Mr. Hamilton). 2526 DEBATES OF THE COJ^STITUTIOJs^AL CONVENTIOIn OF VIRGINIA. It seems, gentlemen, that there is no question about the fact that the existence of this section in the committee's report is the outgrowth of the unsuccessful fight made in a recent session of the General Assembly between the Postal Telegraph Company and the Western Union Telegraph Company. I am profoundly impressed with the propriety, Mr. Chairman and gentlemen of the committee, if any such legislation as this is called for at any time, of leaving the detail of such legislation, the safeguarding of such legislation, to the General Assem- bly, which, by its appropriate committee, it seems to me, can very much more fittingly and effectively investigate all questions of propriety and all safeguards to be thrown around such legislation than can a body of this sort. It seems to me, further, gentle- men, that this provision is obnoxious to an objection which I have heretofore felt called upon to make, that it is in the nature of special legislation in our Constitution. I do object most vehemently to incorporating in our fundamental law any provision what- ever that is susceptible to that kind of construction. If it were urged, as it was before the General Assembly, as a reason for incor- porating this provision in our Constitution, that it would give some relief to the people of the State against this great octopus, as it was characterized in the discussion of this measure before the General Assembly, the Western Union Telegraph Company, I might yield my adherence to the provision contained in this section; but, Mr. Chairman and gentlemen, as. has been said upon this floor in that controversy, this question was directed to the representative of the Postal Telegraph Company, Colonel Mcintosh, and this disclosure was made: "Is it not a fact that wheresoever you have paralleled the Western Union lines, your rates of toll have not diminished one whit, but are exactly the same as those of the Western Union?" and the answer had to be in the affirmative. That question was followed up by another that disclosed this state of facts: "Colonel Mcintosh, is it not a fact that there is a written agreement between the Postal Tele- graph and the Western Union Telegraph Company that, wheresoever you shall parallel them, under the provision which it is sought to have passed by the General Assembly, your tolls shall prevail exactly on a par with those of the Western Union already pre- vailing?" and an affirmative answer was given to that. So that, Mr. Chairman and gentlemen of the committee, it seems to me if this measure will grant us no measure of relief, if there is any justice in the demand for relief, and as to that I do not express to speak advisedly, as against the rates of charges of the Western Union, I can see no reason why this matter should be treated in our fundamental law. For those reasons I shall vote, when the question comes up, in favor of the propo- sition of the gentleman from Petersburg (Mr. Hamilton) to strike this provision from our fundamental law. Mr. James W. Gordon: Mr. Chairman, the right of eminent domain is one of the most drastic and tyrannical that the government can possibly exercise. When a rail- road runs its right of way through any section of country, it is presumed to condemn only so much land of the individual citizens as is necesary for that purpose. I shall vote for this provision for the reason that it can never be made operative except under those circumstances which prove that the railroad company has taken from the citizens more property than is necessary for its purposes. By the very terms of this article and of the amendments which have been offered to it, this telephone or telegraph company cannot invade that right of way until it is shown that the railroad company does not need the right of way for its own railroad purposes. I say, why should the property of individuals all the way along the line of this railroad company be con- demned for the purposes of telegraph and telephone lines, if there is room upon the right of way of the railroad company, not necessary for railroad purposes, which is sufficient to accommodate those lines. I think it is a principle which we will admit that it is not a wise thing that this right of eminent domain shall be exercised any further than is necessary to carry out public purposes. If that is true, then these railroad DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OE VIEGIXIA. 2527 companies, when they have no present use for their right of way which they have con- demned, ought to be required to allow other public service corporations to run their wires along that right of way ; but the very minute the railroad comes in and shows that it needs its entire right of way, at that moment the telephone or telegraph company must remove its wires and its poles. I shall vote for it on that broad principle. The Chairman: The question is on agreeing to the substitute offered by the gen- tleman from Page (Mr. Parks) to the amendment offered by the gentleman from Rock- bridge (Mr. Anderson) and the amendment offered by the gentleman from Manchester Olv. Ingram). The substitute was rejected. The Chairman: The question now is on agreeing to the amendment offered by the gentleman from Rockbridge (Mr. Anderson) to the amendment offered by the gentle- man from Manchester (Mr. Ingram). The amendment was rejected; there being on a division, ayes 19, noes 36. The Chaimian: The question now recurs on the amendment offered by the gentle- man from Manchester. :\Ir. Wysor: Mr. Chairman, the gentleman from Manchester says he will accept an amendment which I now offer in lieu of his. I wish to insert in line IS, after the word '"lines," these words: "As the case may be, off of the right of way, or at such other point;" and in line 15, after the word "purposes" the two words "all are;" so that it will read in this way: And if. at any time, a railroad company shall need for railroad purposes all or any portion of its right of way occupied by a telegraph or telephone company, such telegraph or telephone company shall, upon reasonable notice at its own expense, remove its lines as the case may be, off of the right of way or to such other points on the right of way as may be designated by the railroad company. T\'hen it needs all of its right of way, of course the telephone line must be moved entirely off of the right of way. T\Tien it does not need it all, 3-ou remove it to such point on the right of way as the railroad company may designate. Mr. Pettlt: Who is to determine whether the railroad company needs all the land that is condemned for it or not? Mr. Wysor: That is a question that would be in the judgment of the railroad, but it could not exercise that judgment unreasonably*. It could not saj' simply that it needed all of its right of way. That would be a question that the telephone company might be able to litigate with it; but where it does need all of the right of way, and there are no dotibt instances where it would, then the telephone line must be moved off the right of way. I v,ush to say in regard to this measure that it is immaterial to me whether it is stricken out or kept in. I think myself it is really beneficial for the railway companies for it to stay in there. The Supreme Court has already held that you can condemn rail- way land for telephone and telegraph purposes; and the principle is well settled that it is perfectly right to do so. Gentlemen make the point here that the railroad com- pany has bought these lands for railroad purposes. Well, I own my farm for farm pur- poses, and 3'ou can condemn a right of way through my farm. A railroad company simply owns and when it buys it or condemns it, and it is perfectly right to condemn it for another easement if it can be done. I say the gentleman's criticisms of the decisions of the Supreme Court are not sound. It is perfectly right and proper to do it. They bring up the proposition here that poles may fall on the road. Well, the Western Union poles may fall on the road too. You may .condemn a right of way for poles just outside of the railway land, and they will fall on it. This provision does not hurt the railroad, in my judgment, unless it interferes with the contract between the railroads and the Western Union Telegraph Company. If you want to give the Western Union a monoply of railway lines for its 2528 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. telegraph lines, then perhaps you might pass some such provision. That is all it means. This provision is doing no more than the Supreme Court has already held you can do. It simply says the Legislature shall pass reasonable provisions for the condemnation of corporate property. The gentleman from Accomac (Mr. Wescott) says it is a piece of legislation. It is not at all. It simply says the Legislature shall act in these cases and pass proper legislation to meet the particular case. That is not a very injurious provision at all unless it interferes with tlie right of contract between the railroad companies and the Western Union Telegraph Company. The gentleman from Norfolk (Mr. Thorn) made the point that railroad companies had a right to make a contract with the Western Union Telegraph Company. Well, they have, but they have no right to limit the exer- cise of eminent domain on the part of the State to condemn their rights of way for other companies. Mr. Thorn: This does not limit it. Mr. Wysor: I know it does not. I say it is immaterial to me what you do with it. I would just as soon have it stay in as to have it go out; but I offer that amendment. Mr. Ingram: I accept the amendment of the gentleman from Pulaski (Mr. Wysor). Mr. R. Walton Moore: I understand the gentleman from Pulaski, who is an able and influential member of this body, to say that it is immaterial to him whether this section remains in the article or disappears from it. It strikes me that if it is import- ant to such an extent as to justify such a remark by the gentleman from Pulaski, it is hardly a proper provision to put into the Constitution of the State. It does seem to me that the argument presented by my friend from Accomac is very convincing, and that by adopting this provision we may be taking up a controversy that belongs to the legisla- tive branch of the government, and we may be accumulating doubts, diflSculties, an- tagonisms and controversy in the courts which will lead to great trouble, and which should not be produced by any constitutional provision. Mr. Parks: I want to say, sir, that I do not represent the Postal Telegraph Com- pany or any other telegraph company, or any telephone company. I am not acting in this matter as the cudgel of the Postal Telegraph, or any other telegraph or telephone company. I am acting in my representative capacity on a question that I believe is right and proper. I am trying to secure to the people of the State of Virginia what, in my judgment, they ought to have, under the ruling of the Supreme Court of the State of Virginia. The court has said that the right of way of a railroad company may be condemned for the use of telegrap'h and telephone companies; but under the law as we have it, there is no way by which that condemnation can be had, because the court holds that the right of way is a unity, an entire thing, and you cannot condemn it by piece- meal. It is not legislation, it is simply putting into the Constitution, in response to the decision of the Court of Appeals, an instruction to the Legislature, that the Legislature shall, by general law, of uniform operation provide for and economically regulate these matters. It seems to me it is perfectly right It is perfectly legitimate and it will not do to whistle this thing down the wind, because the gentleman from Pulaski says he does not care whether it stays in or goes out. The question is, is it right, is it just, is it proper, is it in the interest of the people of the State. They say the Postal Telegraph Company will contract with the Western Union Company to have the same rates. Then this corporation commission, under this Con- stitution, can regulate that, and regulate the charges of the telegraph and telephone companies, just as well as they can regulate the charges of a railroad company. I sub- mit that this provision is a fundamental principle, based upon the decision of the Supreme Court of the State of Virginia, establishing a right; and that there is no way under the law at present by which that right can be enforced. Mr. Thorn: If it be true that this commission can control the rates, what benefit will the people of Virginia derive Vv^hen the element of competition as to rates taken away? DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIEGIXIA. 2529 Mr. Parks: We will take both. We will get it in one way or the other. We will be like the nigger's coon dog — we will catch the coon coming and going. Mr. Pettit: I agree with the declaration of the gentleman from Manchester, that we would he doing the railroad companies a great injustice under this provision. The Legislature of the State has required, as I understand it, that the railroad company shall have telegraph lines along their railroad lines. They have been compelled by the action of the Legislature to erect or have erected and established, telegraph lines along their railroads. It is just as much their duty to maintain those telegraph lines, and to require them to be established, as it is their duty to maintain the railroads in good con- dition. Will any gentleman here contend that this Convention or any Legislature could permit another railroad company to take a part of the right of way of a railroad com- pany condemned for the purpose of running another railroad along the line of road already established? What is the difference in principle? You have required them to establish and maintain a railroad line, and land has been condemned for their purposes as a railroad corporation. Will anybody contend that the Constitution or any ordinary Legislature can give to another railroad company the power to establish a railroad line along and by the side of the road already established, and upon the land condemned for the purposes of the railroad already established? I suppose not; and yet does not the same principle apply to a telegraph company? You have required the railroad companies to erect and maintain a telegraph line along the line of their railroad, just as you have required them to keep their railroad in order and to maintain it. I think you have no more right, in justice, to do one than you have to do the other. I think it is ultra vires and unjust for you to grant a power which might require one company to give to another company the right to build a road of the same character along and by the side of it. I think it would be unjust, and I hope this provision will be stricken out of this report. The Chairman: The question is on agreeing to the amendment offered by the gen- tleman from Manchester, as amended by the gentleman from Pulaski, which amend- ment has been accepted. The amendment was agreed to. Mr. Eggleston: I would like to offer an amendment to insert in line 5, after the words " telegraph lines " the words " chartered by this State." It seems to me, Mr. Chairman, that this section, as reported by the committee un- doubtedly gives to foreign corporations the right to acquire property by condemnation in the State of Virginia. I do not suppose it was ever contemplated that that should be done. I cannot conceive that this Convention, or this committee acting for the Con- vention, could give their consent to a provision which would confer upon a foreign cor- poration any such power. As far as the Western Union Telegraph Company and the Postal Telegraph Company are concerned, they get their charters from Congress. If, under those charters, they have that right, we cannot interfere with them; but I do not think that we should throw down the bars and say to any foreign corporation whatever: You can come into the State of Virginia and have the right to acquire property by con- demnation. I do not think we ought to throw open to them this right of eminent domain, under a general provision in our Constitution. If, in a particular case, the General Assembly sees fit to confer it, with necessary restrictions on the method in which it shall be executed, it may be done, but I can never vote for a provision which will confer upon any foreign corporation the right to acquire property in the State of Virginia by condemnation. For that reason I move to amend by inserting the words " chartered by this State " after the words " telephone companies." The amendment was agreed to. Mr. Thom: I move to add, at the end of the section, the following: "No railroad company whose right of way has been condemned, as herein provided, shall be liable for accident or injury caused by the telephone or telegraph company, or the establishment or existence of its works on the right of way of the railroad company." 2530 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. The amendment was agreed to; there being on a division, ayes 28, noes 27. Mr. Hamilton: I hope now that it will be the pleasure of this committee to strike out the entire section. The amendments that have been made have bettered it a great deal, and take away some of the dangers; but there is nothing in the section that ought to be in this Constitution, and I hope the members of this body will take that view. Mr. Meredith: I move to reconsider the vote by which the amendment of the gen- tleman from Norfolk (Mr. Thorn) was adopted. I submit that we would defeat the whole object of this provision if we say that the railroad company shall not be liable, no matter how much negligence it may have been guilty of, or how much it may have helped the telephone or telegraph company in the careless and negligent way in which it has erected, constructed and maintained its poles. Under this amendment the railroad company is declared to be free. It is simply offering to them an incentive to negligent, careless and reckless disregard of life. In regard to this measure I suppose I may be permitted to say a word. I believe that, if this amendment is adopted it ought to defeat the measure. Those of us who are in favor of the measure should undoubtedly vote against the proposition of the gen- tleman from Norfolk. The simple proposition is that there now exists the right to con- demn this land for the purposes of the telephone or telegraph company, and the purpose of this provision is to make that right easy of execution. The whole proposition is to add to the facility with which a right now recognized may be exercised, so that instead of going into forty counties in the State and beginning condemnation proceedings in each county, the entire matter may be settled in one proceeding. In some of these counties, perhaps the proceedings might be completed a couple of weeks, and in another county, where a fight might be made, it might take five or six months. The capital of the company invested is tied up in the other county, where the proceedings have been concluded. We say this can be done as a unit, by instituting proceedings in one county. If there is anything well recognized in the law it is that a railroad company must be treated as a unit. It demands that in regard to the system of taxation imposed on it. It is treated in that way in regard to their reasonable rules and regulations. You never undertake to apply a reasonable rule or regulation to a company that you do not treat it as an entirety. When you come to condemning its property you want to treat it as a unit, and recognize that it has property running, perhaps, through twenty-five oi* fifty counties in this State. Our simple proposition is that instead of going into twenty- five or fifty counties, and instituting proceedings in each, you may start the proceeding in one county, and the commissions appointed may condemn throughout the entire State. The question here is whether we shall require the Legislature to do what it has not done in this matter; whether we shall say that we desire these facilities to be given. I respectfully submit that we ought to reconsider the amendment of the gentleman from Norfolk. Mr. Wescott: Mr. Chairman and gentlemen of the committee, it is with unfeigned difiidence that I rise to dissent from the view just expressed by the gentleman from Richmond, as to the propriety of the amendment of the gentleman from Norfolk, and the motion to reconsider which has now been made by him. It seems to me there is no question whatever of the railroad's negligence injected into this amendment. I must think that, in the confusion of the body, the gentleman did not attentively hear or listen to the reading of this amendment: "No railroad company whose right of way has been condemned, as herein provided, shall be liable for accident or injury caused by the tele- graph or telephone company " — not by the negligence of the common carrier, but " caused by the telegraph or telephone company," or the establishment or existence of its works on the right of way of the railroad company. Mr. Meredith: Suppose the railroad company is also guilty of negligence? Mr. Thom: Then it would be liable for its own negligence. Mr. Meredith: Not at all; if the act of the telegraph or telephone company caused the injury, although the railroad company may have participated in the negligence, DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF YIRGIXIA. 2531 and may have seen the pole falling that caused the injury, for example. You relieve the railroad company from any responsibility, under that amendment. Mr. Wescott: I submit that is not a fair construction of the law. Their negligence would not be the proximate cause of the injury. The test as to whether or not the rail- road company would he relieved from its liability depends upon whether or not the negligence of the railroad company was the proximate cause of the injury. Mr. Barbour: May I interrupt the gentleman? I want to ask you if, under a num- ber of circumstances, the railroad companies are not liable as insurers. Mr. Wescott: I am coming to that very question. I submit that if the railroad company is liable as an insurer, no additional liability should be added by putting this provision in our 'Constitution, because it is incompatible with the principles of abstract right and eternal justice. We are seeking to force upon them another instrumentality along their right of vray, which, it is recognized may result in increased liability and increased risk. I am glad the gentleman asked me that question, because it seems to me to expose, as nothing else could, the impropriety and questionable character of this provision. What is the principle underlying this section of the majority report of this com- mittee? Do the people derive any benefit from it? Not at all. Are the people of the great State of Virginia concerned in the question of the facility with which one of these gigantic corporations can grapple with another and force that other into a submission to the erection of its line along a right of way which has been condemned for its uses? What is the additional right that is granted and how can it be considered from any standpoint, to be fundamental? The only benefit said to be conferred is the right, where the railroad's right of way runs throughout the State, to begin its condemnation pro- ceedings in one county and project that proceeding throughout the entire land. There exists to-day the very right which is created under this provision, under the decision of our Court of Appeals already adverted to. These companies have the right now to institute condemnation proceedings in each county — it is true. I have grave doubt as to the propriety of enacting any legislation which will take away from the citizens of a county the right to pass upon this question of condemnation and give that right to commissioners of a single county appointed by the court conducting the proceeding. The only object attained is the saving, to some extent, of costs between one of these gigantic corporations in its contest with another. What benefit accrues to the people of the State, to lead us to inject this provision into our fundamental law, for the relief of a gigantic corporation, so that it may have a greater facility in the conduct of its condemnation proceedings against another corporation. No benefit whatever will come to the people. Is there any gentleman upon this floor who believes that any other telephone company or any local company would have been represented in this controversy, if it had not been for the struggle between these two competing telegraph lines. If it is a foregone conclusion, if it is a definite and well ascertained fact that no benefits are to accrue to the people, if there is a contract in writing between these two companies that the rates now charged by the Western Union Telegraph Company shall be maintained, where is the inducement for us to act? WTiat measure or character of relief can possibh- ensue to the people? It seems to me that the gentlemen from Page has answered very fully his own argu- ment. He says that this commission has power to control these rates. If it has, is there any reason why, from the standpoint of the people, the reduction which is supposed to come from competition should be annulled by this provision? This is not a matter in which the people are interested. I submit that this amendment is proper, just and right, and if this provision goes into the Constitution, it ought to go in with the amendment offered by the gentleman from Norfolk. I think, however, that it shows conclusively the great impropriety of the insertion of any such provision in our Constitution at all. The Chairman: The question is upon the motion of the gentleman from Richmond 2532 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. (Mr, Meredith) to reconsider the vote by which the amendment of the gentleman from Norfolk was adopted. The motion to reconsider was rejected, there being, on a division, ayes 27, noes 35. Mr. Pollard: Mr. Chairman, I desire to offer an amendment to the amendment offered by the gentleman from Norfolk, by inserting the words " without negligence on its part," so as to meet the objection that has been urged by my colleague from Rich- mond. I should like to have the Secretary read it as it will appear. No railroad company whose right of way has been condemned as herein provided, shall be liable for accident or injury caused, without negligence on its part, by the tele- phone or telegraph company, etc. The Chairman: The question is upon agreeing to the amendment offered by the gentleman from the city of Richmond. The amendment was agreed to. The Chairman: The question now is upon the motion of the gentleman from Peters- burg (Mr. Hamilton) to strike out Section 8. The motion to strike out was agreed to. The Chairman: The Secretary will read Section 10. Sec. 10. No transportation or transmission company doing business in this State shall grant to any member of the General Assembly, nor to any State, county, district or municipal officer (except to the members and officers of the State corporation com- mission for their personal use during their terms of office) any free pass, free transpor- tation, or any rebate or reduction in the rates charged by such company to the general public for like service. For violation of the provisions of this section the offending company shall be liable to such penalities as may be prescribed by law; and any such officer or member of the General Assembly who shall, during his term of office, accept the benefit of any such rebate or reduction, or the use of any such free pass or free transportation, as is prohibited by this section, shall thereby forfeit his office, and be subject to such further penalities as may be prescribed by law. The Chairman: Are there any amendments to Section 10? Mr. Braxton: In line 4 there is a typographical error. In the word "except" the " e " is left out. In line 6 I move to insert the word " frank," which applies to free ser- vice of transmission companies. The same reason which exists for our prohibiting free service of transportation would apply to the free service of transmission companies. It was a mere inadvertence that the word "frank" was left out in line 6, after the word " any." At the end of the section I move to insert these words: "This section shall not prevent any street railway company from transporting free of charge any member of the police force or fire department while in the discharge of his official duties." I presume there will be no objection to that. Mr. Meredith: The only objection to that is that the section renders these parties liable to punishment for giving free passes, and it will be impossible to tell whether the members of the police and fire departments were in the discharge of their duties or not. Mr. Braxton: There is no penalty except such as may be prescribed by law. It says that "For violations of the provisions of this section the offending company shall be liable to such penalties as may be prescribed by law." The Chairman: The question is on agreeing to the amendments offered by the gentleman from Augusta. The amendments were agreed to. Mr. Petitt: I move to strike out the phrase, commencing in line 4 and ending in line 6, "except to members and officers of the State corporation commission for their personal use during their terms of office," the effect of which will be to put these mem- bers and officers of the State corporation commission upon the same footing exactly DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 2533 as Section 10 puts all other officers of the State. I suppose, and of course that is the argument upon which this section proceeds, that the object of the provision is to prevent public officers from being seduced from the proper discharge of their duties by the gracious favors of the railroad companies extended to them by granting free passes. That is the underlying motive, as I understand, of this section, or at least of this pro- vision of it. It strikes me that of all the officers of the State, it is most objectionable that they should be permitted to extend these favors to this commission, -which is erected and constructed for the purpose of controlling them in the discharge of their duties. A judge of a court may have to pass upon the action of these railroad companies, but how can the sheriff of the county, or any other of the minor officers of the county have any- thing to do with respect to the railroad companies that would make it improper for the company to grant passes to those minor officers. I say that the motive of this pro- vision applies with stronger force to the railroad commissioners than to any other offi- cers of the State. I move, therefore, to strike out the exception made m favor of the railroad commission. Mr. Braxton: I am unable to accept the amendment offered by the gentleman from Fluvanna, and I think perhaps the amendment was offered under a misapprehension on his part. The duties of the railroad commission require one or more of them to be constantly traveling around the State. One of their duties, and one of their most im- portant duties, is to keep themselves constantly informed as to the physical condition of the various roads in the State, with a view to ascertaining whether they are in such a condition as conduce to the safety and welfare of the public. That is the law to-day, and that is the law also under another section. If the State had to pay for keeping one, two or three of these gentlemen, and possibly some of their assistants, constantly traveling, the cost to the State would be tremendous. It is therefore provided that it shall be the duty of the railroad company to transport them free of charge, when they are in performance of their official duties, because a part of that duty is to ride about on the rail- roads. It would cost thousands of dollars every year if they had to pay their traveling ex- penses, and this exception is made in order to avoid that. The railroad companies are re- quired to transport them free of charge, not as a favor, but as a part of their public duty. The passes they will give them will not be given as they are given to other officers, but giving of them will be made obligatory by law. It is a part of their public duty to do It; they are not given of their own volition. I hope, in view of this explanation, that my friend will withdraw his amendment. If I have not been fortunate enough to satisfy his mind, I trust the committee will not adopt the amendment. This is a matter that was carefully considered by your committee, and these words were put in after mature consideration on their part. The Chairman: The question is upon agreeing to the amendment offered by the gentleman from Fluvanna. The amendment was rejected. The Chairman: Are there any other amendments in Section 10? If not, the Secre- tary will read Section 11. Mr. Braxton: Before Section 11 is read, I would like to ask the committee to in- dulge me by passing it temporarily. There are some gentlemen who wish to discuss it who are not prepared to go into the matter now. It will not delay matters at all, and I ask that we proceed to the consideration of Section 12. The Chairman: If there is no objection, that will be taken as the sense of the com- mittee. The Secretary will read Section 12. Sec. 12. No foreign corporation shall be authorized to carry on, in this State, the business, nor to exercise any of the powers or functions of a public service corporation, nor be permitted to do anything which domestic corporations are prohibited from doing, nor be relieved from compliance with any of the requirements made of domestic cor- porations by the Constitution and laws of this State, where the same can be made appli- cable to such corporation. But this section shall not effect any public service corpora- 2534 DEBATES OF THE COJ^STITUTIONAL CONVENTION OF VIRGINIA. tion whose line or route extends across the boundary of this Commonwealth, nor pre- vent any foreign corporation from continuing in such business as it may be actually engaged in, within this State, when this Constitution goes into effect; but any such foreign public service corporation, so engaged, shall not be authorized to hereafter acquire, lease, use or operate, within this State, any public or municipal franchise in addition to such as it may own, lease, use or operate when this Constitution goes into effect. The property, within the State, of foreign corporations shall always be subject to attach- ment, the same as that of non-resident individuals. Sec. 13. The right of the Commonv/ealth, through such instrumentalities as it may select, to prescribe and define the public duties of all common carriers and public service corporations, to regulate and control such carriers and corporations in the performance of their public duties, and to iix and limit their charges therefor, shall never be sur- renedered nor abridged. Sec. 14. The credit of the State shall not be granted to, or in aid of, any corpora- tion, nor shall the State hereafter subscribe to or become interested in the stock of any corporation. Sec. 15. The General Assembly shall require annual reports to be made to the State corporation commission, of their affairs and condition, by all corporations doing busi- ness in this State, the character or extent of whose business shall render publicity in their affairs essential or conducive to the public welfare. Sec. 16. The General Assembly shall enact laws preventing all trusts, combinations and monopolies, inimical to the public welfare. Sec. 17. The free right to build and operate railroads, parallel to any other railroads previously established, shall never be abridged nor denied to any railroad company hereafter chartered by this State; but this section shall not deprive the General As- sembly of the right to prevent (by statute, repealable at the pleasure of the General Assembly) any railroad from being built parallel to the present line of the Richmond Fredericksburg and Potomac Railroad. Mr. Braxton: I will ask also that Section 18 be passed for the present. The Chairman: If there is no objection, that will be taken as the sense of the committee. The Secretary will read Section 19. Sec. 19. All existing charters or grants of corporate powers, under which an organi- zation has in good faith taken place before this Constitution goes into effect, and the corporate powers of all corporations heretofore existing, but which have had no bona fide organized existence since the first day of January, 1902, are hereby revoked. Are there any other amendments to the section? Mr. Braxton: If there are no amendments to the section, I mave that Section 2 now be taken up. The Chairman: The Secretary will read Section 2. Sec. 2. The creation of corporations and the extension and amendments of charters (whether heretofore or hereafter granted) shall be provided for by general laws, uni- form as to the class of corporations to which they relate, and no charter shall be granted, amended or extended by special act, nor shall authority in such matters be conferred upon any tribunal or officer, authorized to grant, amend or extend charters, further than to ascertain that the applicants have, by complying with the requirements of the law, entitled themselves to the charter, amendment or extension applied for. Such general laws may be, from time to time, amended or repealed by the General Assembly; and all charters or amendments of charters now existing and revocable or hereafter granted be extended, shall be repealable at any time by special act at the pleasure of the General Assembly. Provision shall be made by general laws for the voluntary surrender of its chrter by any corporation, and for the forfeiture of charters for non-user of miss-uses. The General Assembly shall not, by special act, regulate the affairs of any corporation, nor give it any special rights or privileges. Mr. Braxton: I move that in line 20, after the word "nor," the words "by such act" be inserted. The language of the provision will then read: "The General As- sembly shall not by special act, regulate the affairs of any corporation nor, by such act, give it any special rights or privileges." The amendment was agreed to. DEBATES OE THE COXSIITUIIOXAL COXVE^:TIO^' OE VIEGIXIA. •2535 Mr. Thorn: I would like the chairman of ihe committee and the members of the committee to strike oiit the syllable of the last word in line 3 and the whole of line 4, Section 2; in other words, to strike out the words "'■'uniform as to class of corporations to vrhich they relate,"' so that the act would read: '' The creation of corporations and the extension and amendment of charters whether heretofore or hereafter granted shall he provided for by general laws, and no charter shall be granted, etc. 3Iy reasons for offering that amendment are these: This article provides not only for the creation of corporations, but for the extension and amendment of their charters. Every important corporation in the State of Virginia has now a special charter contain- ing special provisions, provisions not common to other corporations of the same class. To require that when any amendmeni: shall be made or any extension of the charter shall be granted, it shall be done under laws which shall be uniform as to the class of cor- porations to which they relate, wotild be introducing into the amendment and exten- sion of charters an element which might hereafter be found to be exceedingly dangerous and inconvenient. What I desire to accomplish by striking out these words is that there may be amendments and extensions of charters by general law, but that the provisions shall not necessarily be uniform as to all corporations of that class. Nearly every large railroad corporation existing in Virginia to-day is organized, after a sale and foreclosure proceeding, under a special charter granted by the Legislature, with difcerent classes of stock, on a different basis of financial organization, and with different powers. To make every one of these railroad companies, in order to obtain an extension or amend ment of its charter, to come upon the same basis with other corporations of that class might in the future be found exceedingly hurtful; and I know of no good that could be accomplished by requiring these laws to be uniform as to the class of corporations. The lavr might be general and yet permit special amendments to the charter of one com- pany without requiring those amendments to be put upon the charters of all other com- panies in the same class. I trust the committee will see its way clear to accept the sug- gestion and strike out these words. I think there will be very great danger, and that there are very serious difficulties in the way of the amendment and the extension of the charters of organizations which are now exceedingly useful to the State of Virginia. :Mr. Braxton: I cannot agree with my friend as to the effect of these words. The main purpose and object of this section is to do away with and prevent special legis- lation and the granting of special privileges to special companies. That is what we had in view when we provided that there should be general legislation, and that the general legislation must be uniform as to the class of corporations which it affects. TVe leave it to the Legislature to define those classes. I think the error into which my friend has fallen is in assuming that because the general legislation is to be uniform, that therefore there can be but one amendment. It does not say that the amendments" must be the same, but that the law under which the amendments are adopted must be imiform. There may be a large number of different amendments which, under a uni- form law, can be adopted. There can be an indefinite variety of amendments, but the law under which they are adopted must be uniform. I will say to my friend, in this connection, that the State of this L'nion which is more liberal in granting charters, and which is a State that granted more charters than any other State except New Jersey — I refer to the State of West Virginia — ^has this identical language in its consti- tution, and this very phrase was taken verbatim et literatim from the constitution of that State. I also think it will be found either in this exact language, or in substan- tially this language, in a large number of other constitutions. I think it is in line with the whole spirit and purpose of this entire section, which is to prevent any special legislation in favor of any particular company. I must, therefore, oppose my friend's amendment, and ask that the committee do not adopt it. Mr. Thom: I would like to ask the chairman of the committee whether there could be special legislation, if it was required to be done by general law. The requirement 2536 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. would still remain that it should be done by general law, but it would not require that these laws must, necessarily, be uniform as to all classes of corporations to which they relate. I want that elasticity left in the law to meet conditions which may arise in the future. Mr. Braxton: If they were not uniform as to the classes to which they relate, how could they be general? Would they not be special? It seems to me that this provision is entirely consistent, and that it is essential. The only ground on which I could omit the words would be on the ground that they were surplusage. But if it is surplusage it can do no harm. My own opinion, and the opinion of your committee, was that they were not surplusage, and that it. was desirable and important that they should be in the section to accentuate this provision. The fact that this provision has been for twenty years in the constitution of our sister State, which has been most liberal in these matters, confirmed our decision that it was a safe provision, and one which ought to go in. The Chairman: The question is on agreeing to the amendment offered by the gentleman from Norfolk. The amendment was rejected. Mr. Braxton: I move that we now proceed to the consideration of Section 3. The Chairman: The Secretary will read Section 3. Sec. 3. There is hereby created a permanent commission, to consist of three mem- bers, which shall be known as the State corporation commission. The said commission shall be appointed by the Governor, subject to confirmation by the General Assembly in joint session, and their regular terms of office shall be six years, respectively, except to those first appointed under this Constitution. Of whom one shall hold office until the first day of February, 1905, one till the first day of February, 1907, and one till the first day of February, 1909. The said commissioners first appointed shall, immediately after their appointment, forthwith enter upon the duties of their office, and shall elect one of their members chairman of the commission, which position they shall annually refill by similar election. No person appointed on said commission, either for a regular term, or to fill a vacancy, shall continue in office after the General Assembly shall have refused to confirm his appointment, nor after the General Assembly shall have adjourned sine die, subsequent to his appointment without confirming the same, nor shall he be eligible for reappointment to fill the vacancy caused by such failure or refusual to confirm. Whenever a vacancy shall occur on the said commission, the Governor shall forthwith appoint a qualified person to fill the same for the unexpired term, subject to confirma- tion by the General Assembly as aforesaid. No person employed by, or holding any office in relation to, any transportation or transmission company, or who is in any wise financially interested therein, shall hold office as such commissioner, or perform any of the duties thereof. At least one member of said commission shall have the same qualifications pre- scribed for members of the Supreme Court of Appeals, and any of the members of the said commission may be impeached or removed in the same manner provided for the impeachment or removal of members of the said court. The said commission shall have one clerk and one bailiff, and such other clerks, officers, assistants, and subordinates as may be provided by law, all of whom shall be appointed, and subject to removal, by the said commission, and said commission shall prescribe its own rules of order and pro- cedure. All sessions of said commission shall be public, and a permanent record shall be kept of all of its judgments, rules, orders, findings, and decisions, and of all reports made to. or by it. Any two of said commissioners shall constitute a quorum for the transaction of business, whether the office of the other commissioner be at the time vacant or not. The office of the commission shall be open for business on every^ day except Sundays and legal holidays. Transportation companies hereafter doing business in this State shall at all times transport, free of charge, the members of said commission and their officers, or any of them, when engaged on their official duties. The General Assembly shall provide suitable quarters for the said commission, funds for its incidental expenses (including pay of witnesses summoned, and costs of executing processes issued by the commission of its own motion), and salaries for its members, clerks, assistants, and subordinates; provided, that the salary of each commissioner shall not be less than three thousand dollars per annum. After the first day of January, 1909, the General Assembly may provide by law for the election of the said commissioners by the people of the State at large, instead of their appointment by the Governor as hereinbefore required. DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 3537 Mr. Braxton: I would like to amend Section 3, in line 40, by inserting after the word "procedure" the words "except so far as specified in this Constitution or any amendment thereof." The reason for inserting those words is that the Constitution does provide some methods of procedure, and when we say here that the commission shall prescribe its own rules of procedure, we mean that they may prescribe those rules, except so far as the Constitution has already prescribed them. Mr. Robertson: Is it the idea that the Legislature shall be deprived of the right to provide rules of procedure? Mr. Braxton: Yes, sir. The Chairman: The question is on agreeing to the amendment offered by the gentleman from Augusta. The amendment was agreed to. Mr. Braxton: I move to amend by inserting after the amendment just adopted, after the word "thereof" the following: As the business of the State corporation commission may justify it, the General Assembly may, from time to time, establish in that department, and subject to the supervision and control of the said commission, such subordinate bureaus of insurance, banking, or other special branches of the business of the department, as, in the judg- ment of the General Assembly, may be desirable and expedient. Mr. Chairman, it has been the earnest desire of the gentlemen engaged in the insurance business, both fire and life, for a number of years past, that there should be an insurance commission in this State. I understand that most of the States have an insurance commission. It is not merely for the benefit of the insurance companies, but it is to the benefit of the public at large to keep watch on these insurance com- panies, and see that they comply with the laws, in order to protect the general public against insolvent, speculative and unreliable companies. Your committee thought that an insurance commission was not an officer of sufficient importance and stability to make it wise to make him a constitutional officer, but they did think that it should be put beyond peradventure that the Legislature was to retain the power of establishing such an insurance commissioner at any time hereafter, when, in the wisdom of the Legislature, such an officer should be deemed desirable. For the present, it is believed that this corporation commission itself can act as the insurance commissioner and will be probably all the insurance commissioner we will need. But as the business of the State increases, from time to time, it may be found desirable to sub-divide the work of the commission into subordinate bureaus, under the general supervision and control of the commission. Whether such a condition of affairs will ever come or not is a question; but the pur- pose of this amendment is to enable the Legislature to deal with it with a free hand, should the occasion ever arise. I will state that several members of your committee have conferred at length with the gentlemen representing the insurance interests of this State and this provision meets with their full approval. In the opinion of your committee it is a very desirable thing from the standpoint of the public. I trust, therefore, that as this amendment does nothing but leave the Legislature free to deal with this matter as circumstances may arise, you will be pleased to adopt the amendment. The Chairman: The question is on agreeing to the amendment offered by the gen- tleman from Augusta. The amendment was agreed to. Mr. Withers: I desire to offer two amendments. Insert the words " three members of the said " in line 4, Section 3, after the word " said." 160— Const. Deb. 2538 DEBATES OF THE CO^TSTITUTIOXAL COXVE^fTION" OF VIRGINIA. Strike out in Section 3, lines 4 and 5, the words beginning with " appointed," in line 4 and ending with the word " session," in line 5; and insert the words "elected by the qualified voters of the State." Mr. Withers: Mr. Chairman, I shall not tax the temper, patience and good nature of this committee by any argument on this question. The whole question of whether or not the officers of this nature and of a judicial nature should be elected by the people or appointed by the Governor or elected by the General Assembly has been treated exhaust- ively and exhaustingly in other reports, when they were before this committee for con- sideration. I simply want to state this as my reason for offering these amendments. My opinion is that the ineffective railway corporation commissions of this Union are those that are elected by the Legislature or appointed by the Governor with some exceptions, and that the most effective railroad corporation commissions of this Union are those that are elected by the people. I believe that arises from, the fact that no matter how wise and how good the members of any particular General Assembly may be, they are subjected to some influences that are otherwise than those that seek to attain merit, efficiency and competency in the selection of officers. In the hands of the Governor this will afford a most powerful and effective means, should it be corruptly used, of building up not merely a political machine in the exercise of the appointing power, but will also permit favoritism towards corporations. It will inevitably lead, in my humble opinion, not merely to build- ing up an immense appointing power — which we are making too large under this Con- stitution already — but it will enable the Governor, if he desires in any way to further his own political ambition to obtain the support of the very people we seek to control, by appointing the men they may select upon this commission. Now, that is a general principle and is not applicable to any particular man or time or place; but in addition to the reasons that have already been urged upon this floor, as to why the people should have the selection of their own officers, for these two other reasons, effectiveness in the commission and the destruction of increased appointing power, with the danger that invariably adheres to it, I offer this amendment. Mr. R. Walton Moore: It has been stated that there are some nineteen commis- sions of this character in the United States. How many of those commissions are elected by the people? Mr. Withers: I have not investigated, sir, I know that the more effective com- missions are elected by the people. I understand the commission of Massachusetts, so far as its power goes, is effective and does good work, but that its power is very limited. I do know that the Interstate Commerce Commission, which is an appointive body; is the most effective body of that sort I ever saw for the power it has. It gets at the facts and draws out the meat and gist from the intricacies and details of railroad management in a manner that I have never seen equalled or excelled. Mr. Braxton: Mr. Chairman, this matter was considered with the greatest care by the Committee on Corporations. It is a matter about which we recognize there could be and was a difference of opinion among the friends of the measure for the establishment of a corporation commission, and notwithstanding the fact that several members of that committee had voted for the election of the judges by the people, and that their general trend of thought was in that direction, I think I am correct in saying that that com- mittee v/as unanimous in favor of the method which we have provided here. I call the attention of the committee to the fact that the men who compose this com- mission will be men who will require some technical knowledge of the subject with which they will have to deal. It is a new tribunal. It is different in this respect from the election of judges by the people. The judicial office is an old one. It is one with which all the people are familiar. It is one which is exercised in every city and county in the Commonwealth. It is one for the filling of which there are from six to a dozen men in almost every county who are competent to perform its duties, but the office of corpora- tion commissioner, clothed with the duties and functions with which they have been clothed, will not only be a new office, the necessary qualities for the incumbents of which DEBATES OF THE COXSIIIUIIOX AL, COXVEXTIOX OE VIEGIXIA. 2539 are not generally kno^n to ilie people, but ii is one for which I douht whether there are a. dozen men in the State of Virginia who are both competent and willing to serve upon it. Now, this thing of election by the people is a very beautiful thing, but it is frequently a misleading thing. The people, Mr. Chairman, have the capacity to elect, but they rarely have the capacity to select. Their election and their choice must be taken from the candidates that the political parties choose to put up, and if this State v.-ere full of competent men, and the Democratic party should nominate a knave and the Republican party should nominate a fool, the people would be compelled to make their selection be- tween the knave and the fool who stood before them as candidates, notwithstanding the fact that the State might be full of other men who would be competent. It is not the lack of knowledge, it is not the lack of ability on the part of the people; it is the result of the physical fact that a million people cannot select. They can only act in a few ways, in the simplest ways. It matters not if every one of them individually were the greatest states- men the world ever produced, the mere physical size of them prevents them doing any- thing except the simplest action, that is, to select between one or more candidates that some political party has put up. Therefore, this thing of the people going out and. un- trammelled, casting their eyes over the State and picking out the man who is fitted for this place is an irridescent dream. These men will be nominated by the political parties, and the people will be reduced to the necessity of having to decide between those men that the political forces put up for them to choose between. The office of Governor is a political office. It is an office that no man can expect to be elected to unless he has been in public life for a greater or less length of time. The people know him. The people have the opportunity of judging of his capacity for political matters. The office pro- vided for here is a matter that has no more to do with politics than the cashier of a bank has. It ought to be filled by men who are not politicians. It ought to be filled by men whose past experience has been in the line of practical business, and not in the lines of political matters. The people are much better able to judge of the capacity of a man to serve as Governor than one to serve as corporation commissioner under such a provision as this, because the functions which the Governor has to perform are functions that every man is familiar with. Xow, Mr. Chairman, your committee, wishing to proceed with the utmost care in this matter, with the utmost conservatism, recognize the fact that when men are appointed by the Governor and not elected by the people, they sometimes may stray away from that close interest, touch, affiliation with the public welfare that is necessary In public officers; in other words, they abuse the independence which is given them by their method of appointment. On the contrary, if they are elected by the people, the tendency is to be- come time-servers and demagogues, to commit themselves along all lines of action as they go out to canvass over the State. If they are elected by the people, one-half of the time they ought to be working to earn their salaries, will be spent in canvassing the State, and it is no small matter to canvass the State of Virginia from one end to the other. In other words, we recognized that there were both advantages and disadvantages in the method of appointment we have recommended, and in the election by the people, and it was our endeavor to strike upon some method that would give us the better features of each metnod and would save us from the most undesirable ones. Therefore, inasmuch as it seems to be conceded, or certainly it is so as our informa- tion has been, that there is a general concensus of opinion elsewhere, as well as here, that the first incumbents of this office had better be appointed, we say that they shall be appointed and confirmed by the Legislature, not by one house, not by separate votes, but by a majority of the two houses in joint session, so that the Governor cannot abuse that power unless he has the endorsement of seventy-one members. Ve provide that in order to prevent these gentlemen from straying away from public interests, from losing sympathy with the public, from abusing the independence we give them, there shall be held over their heads always this possibility, that at any time they can be elected by the people. 2540 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Mr. Wysor: Mr. Chairman, I wish to say that 1 will vote for the report in the hope that when we take up the executive report again we will put a provision in that report making the Governor ineligible to election to the United States Senate. (Laughter). If you will do that, I think we will have a good provision. I want the committee to think that over in the meantime. I hope a great many men here do not want to make such a provision, but I think it ought to be done. Then the Governor will have no inducement to make other than proper appointments. It seems to me that is a very important pro- vision to go in the executive report. I am in earnest about it. I do not think a Gover- nor, when he is elected Governor, should be looking after other offices. Mr. Kendall: Mr. Chairman, the point that has been made by my friend from Pulaski (Mr. Wysor), it seems to me, indicates that there is in the minds of many mem- bers of this committee an idea that the corporations would have great influence with the Governor in making these appointments. I am inclined to think the gentleman has very much magnified that possibility, and that on the contrary the Governor would find there were two sides to that question. He would find, if he was seeking popular favor, that when he was seeking to please the corporations, the people would know all about it and would be calling him to account, and that certainly the best course he could pursue would be the middle course — considering merely what was best for the pubRc interest, regardless altogether of the factional fight. In other words, I think he would find that it would put him on his best behavior and would inure to the very best appointments that could possibly be made. I simply add this by way of supplement to what has been so well said by the Chair- man of the committee. Mr. Wysor: What objection is there to making the Governor ineligible to the United States Senate and relieving him of all temptation? Mr. Kendall: I do not believe there is any necessity for that; but that is a matter for future debate. That is a matter which may be considered in due time, I only wish to meet what I believe is in the minds of a large number of gentlemen here, the idea that this power will be abused by the Governor who is an applicant for some other position. I believe the contrary, that he will find the only possible course by which he can please, the people will be a proper course and that he will for that purpose exercise the preroga- tive given him in the very best interests of the people. Mr. Brown: Mr. Chairman, it seems to me this point we are discussing now is one that is vital not only to the interests of the people, but to the interests of the corpora- tions. I do not rise to advocate placing the permanent appointment in the hands of the Governor, but I think in starting this new system which we propose to start in this State, it is necessary and proper that the most careful consideration should be given to the peculiar fitness of the men who are to fill this position. It seems to me the Governor of tne State, being charged with the high duty of mak- ing such appointments, would also feel a heavy responsibility in seeing that equal justice was done in this matter. It seems to me the first commission appointed under the new Constitution, or which goes into office under the new Constitution, will be a commission charged with the duty of setting a pace, and that there ought not to be the excitement of a political campaign in this matter. It does seem to me the position of the committee is very carefully guarded in leaving the power in the Legislafure, after the first appoint- ment, to change it to an election by the people. I think that in the interests of all con- cerned, that in the interests of the selection of a commission that will be conservative, composed of men of judicial character, the safeguard is provided here by this committee, and I do hope the Committee of tne V^Hiole in voting upon this matter will preserve the report of the committee as it now stands. Mr. O'Flaherty: Mr. Chairman, the very fact that this committee is willing to change the method of election at the end of the first term, indicates to my mind that they are in doubt as to whether that is the proper thing to do or not. DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE VIKGIXIA. 2541 Whenever there is any doubt in my mind as between a matter in favor of the people and deciding it in some other way, I resolve it immediately in favor of the people. It seems to me, you began at the wrong end of it. You say that if it shall turn out not to be the best method, then you will not pursue that course. If it should turn out that the people of Virginia have been turned over bag and baggage to the railroads of Virginia, it may be too late. I am in favor, in the first instance, of letting the power remain where it belongs, in the people; and if they wish to give it up, they can do it. That immortal instrument that made this country great, said that all the power that was not given to the United States Government was retained or held back. Let' us hold back the power that belongs to the people, and not surrender it, and then say w^e will take it back after the power has been lost to the people. I do not think this great power should be given to any one man, however great or exalted personally he may be. I wish to call the attention of the committee to the fact that you have combined in this commission legislative, executive and judicial functions. It cannot be said that hereafter Virginia has a Constitution made up of three departments. You will have a Constitution made up of four departments, the Legislative, the executive, the judicial, and this mongrel or mixed one that has all three in it. That being the case, I should like to treat this as the other co-ordinate branches are treated. The executive is co- ordinate with the legislative. ±iow does the executive get its power? It gets it direct from the people. The governor is elected by the people. The legislative is co-ordinate. Where does it get its power? It gets it direct from the people, because the people elect the representatives and send them to this hall. WTiere does the judiciary get its power? I was in favor of giving it directly, but it gets it now indirectly from the people. But here you make a judicial body, an executive commission, a legislative department, and put all these powers in the hands of the commission, and yet you take away from the people the right to say whether it shall be done or not. I want to say on this floor as the representative of a people who express their wishes through the ballot, without fear or favor or without being purchased, that you are creating a commission here that the people of Virginia have never demanded. In the counties from which I come I have never heard a man say he wanted a corporation com- mission. The great Shenandoah Valley, the greatest agricultural part of this State I say has never demanded that we have this commission; but if it is a good thing, and the superior wisdom of these gentlemen on the committee who know better what we want than we know ourselves, would seem to indicate that it is, and they are going to give it to us whether we wish it or not, whether our people have expressed any opinion about it or not, we should like to have some way, at least, as to who is to exercise that great power. Is that unreasonable? Gentlemen, I may be an humble member of this body and it may be treason, as I said yesterday, to speak in opposition to the report of this committee, but I want to exercise the right I have as a representative of the people and say to you that you could not do a worse thing than to take away from the people any further the power that you have taken away. You have transferred the educational interests of this State into the hands of a board. You have augmented the power of the Governor from day to day. You have deprived the Legislature from day to day of power. You have done it in your wisdom, and I am going to endeavor, when I leave the halls of the Convention, with all the strength and power I have, be it small or great, to have this Constitution adopted, for we can not all get what we want, and must make concessions to each other, but I ask you to beware that you do not concentrate too much power in the hands of the Governor of the State. It is not a personal matter. I do nof mean the present Governor, any past one, or any prospective Governor. I wish to call your attention to the fact that this is in contradistinction to the American form of Gov- ernment, and I call the distinguished chairm.an's attention to the fact that I do not be- lieve the majority of the commissions that have been appointed in the United States by constitutional provision are appointed in this way. If I remember rightly, under the 2542 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Louisiana Constitution, the commission is elected by the people, and it is provided in that Constitution that no member of the Convention that created the corporation com- mission should ever be a member of that commission, and that is what we ought to do. T do not charge anybody here with any such desire, but if there are any Caesars who have ambition along this line, let us cut away from them that glimmering and glittering attraction, so that they look at this from an impersonal standpoint. The Chairman: The gentlemen's time has expired. Mr. Summers: Mr. Chairman and gentlemen of the committee, as soon as you get quiet I want to offer a few remarks. I conceive that I am talking to 100 honest, pro- found, thinking men. Gentlemen, I differ somewhat from my friend who has just taken his seat (Mr. O'Flaherty). My people, the grandest upon earth, demanded this com- mission, and I, as their humble servant, thank God that the monster of corporations has been gotten down and that the people of Virginia once more triumph. To save their triumph, I now speak. Gentlemen, this Convention has done what the Legislatures of seventy-five years have failed to do. It has done what all the political caucuses of Virginia for the last half century have failed to do. It has grappled the serpent by its throat, and the people are its masters. That is the Vv^ay I stand on it. Now, to preserve that, let us hold the monster. How shall we do it? Friends who cherish this movement and this great victory of ours, remember there is an isle in the Mediterranean sea that all good men should look at upon the map, the Island of Elba. Louis XVIII., flushed with his victory, and the abdication of Napoleon, lost sight of his people. Napoleon returned and again sat upon his throne. You gentlemen who with myself have fought for this measure and for the people of this country, mark this : Un- less you carry the people along with you you will not succeed. Oh, Red Star of the Valley, never will you lead any enterprise unless the noble people of the country fol- low you. Now. gentlemen, and particularly the friends of this measure, I want to recall to you an incident in history. When Hannibal, on his elephant, was starting to cross the Alps there was a young soldier riding upon a golden colored horse. "When he got to the foot of the mountain he remarked to Hannibal, "We are going to cross the Alps." That crafty old soldier, Hannibal, remarked, "Young man, beware, we are not yet upon the foot of the Alps," This commission is not upon the foot of the Alps, and whenever you desert the people I am done with it and so are the people. Now, let us notice the practical effects, gentlemen. Here is this agricultural report. What do we see? In every little newspaper of the whole country we see "God bless Fair- fax and Stuart and their commission. They were willing to trust the people," If that committee is as noble and patriotic as that in the eyes of the people, we ought to accept their verdict and throw the gauntlet down and say the people are with us. Now, gentlemen, I am like Hannibal in one respect. I have seen a number of years; and I wish to God some of my friends had some of the traits of Hannibal. But now let us see where your danger is, I have been fighting corporations for thirty-two years. I can always win before a jury, but when I come to a corporation judge I always lose. (Laughter.) That is the experience of every criminal lawyer here and every other law- yer of practice. Now, let m.e tell you something about corporations; and gentlemen I do not intend this for any disrespect. A corporation has more lives than a cat. You can kill it and it is back and it is back and back again. If this corporation commission is not elected by the people, it will become offensive to the people and the people will begin to sympathize with the corporation. Now, what will you find? The corporation men can take the 128,000 negroes in Eastern Virginia, they can take the gold bugs, or they can take the Bryan men and they can elect the Governor, and then Governor, commission and all is gone. These corporations, unless the morale of Virginia is changed, can sweep all coun- DEBATES OF THE COXSTITUTIOXAL COXVEXTION OE VIRGINIA. 2543 tries save mine, and the morale is so high-toned there that money cannot reach them. (Laughter.) Gentlemen, let me tell you what I have seen in my life. I have seen a man who was a candidate for the United States Senate, the tread of whose feet made all Cuba tremble. These corporations took up another candidate, and the Legislature let the hero fall, and the nugget is to-day the shining light of the Old Dominion. I am not saying anything disrespectful, gentlemen to the Legislature, because there are some fighting, heavy- shouldered men among them, but I am not bound to compliment them. (Laughter.) Now, my friends, you see that the Red Star of the Valley has done in real life what Jason did in mythology. He has found the Golden Fleece and once more brought it back to the Old Dominion, stretching from the Cumberlands to the salt water, and I to- day pronounce him the living Jason of the 20th century. For the sake of the great victory we have won, where is the man who can look me ill the face and say he is afraid to trust his people to vote? None of us in Southwest Virginia are made that way. They are not made that way in the Valley. The Red Star would lose his glory if he would say it. Gentlemen, if you respect your constituency, as I know you do — The Chairman: The gentleman's time has expired. Mr. Summers: I am much obliged to you, sir. (Laughter.) Mr. Meredith: Mr. Chairman, I want to say a word or two in support of the com- mittee's report. I think all of us have pretty v»'ell given to our constituents our views a& to this matter. There is no question amongst us as to shrinking from doing a-jftiblic duty. We have all expressed ourselves, and we have been guided, I believe, so^far as^ we have been able, by what was right and proper. But I do think that in taking up a subject like this, which we must all recognize as extremely important and very unusual, we ought to take it up with some care and some caution. I think we all recognize not that we should shrink from doing it, but that we should do it in such a way that we will get t^"-^ best benefit from it, and produce the least harm to any class that exists in our State. " call y^our attention to this fact, which I think is worthy of consideration in the Question of a popular election, that the men of this commission will be different from any class of officers whom you elect. You elect your judiciary to represent all classes. You elect other officers to carry out the laws a? to all classes of the people ; but you must recollect, and it is a fact that we need not undertake to discuss, that we are appointing this commission for the purpose of controlling a particular class in our community. The object of this commission is to restrain what we deem the illegal acts and ex- cessive power of a certain class of our community. It therefore becomes evident that in any election you have, yOu will necessarily, in a matter of this kind, have class interest arrayed against class interests. It will not be simply the election of an officer for the benefit of the entire people, but it will be the election of an officer for the purpose of governing a particular class of that people. Recognizing that fact, you must see that in every political campaign there would enter that bitterness that is apt to be engendered where class interests are concerned; and, as that is true, we should avoid it and get the benefit and the good that we hope to get from this measure, if possible, without stirring that ill-feeling. If we can get it with- out any of the political rancor, any of the feeling of bitterness that vvill be engendered by having this question of the railroad commission thrown into every political campaign, would it not be desirable that we should have it as free from excitement and as free from this class interest as possible? Therefore, in undertaking to pass upon the question as to whether we shall elect these particular officers, we ought to recognize that as to them there are circumstances and reasons that apply that do not apply to any others, that should induce us not to elect them by popular vote. On motion of Mr. Braxton the committee rose and the President resumed the chair. Mr. Lindsay moved that when the Convention adjourn to-day at 2 o'clock, it be to meet to-morrow at 12 o'clock in the Mechanics Institute Hall. The motion was agreed to. 2544 DEBATES OF THE CONSTITUTIOJTAL CONVEISTTION' OF VIRGINIA. The hour of 2 o'clock having arrived, the Convention adjourned to meet at the hall of the Mechanics' Institute, Richmond, Va., to-morrow, Wednesday, February 19, 1902, at 12 o'clock M. WEDNESDAY, February 19, 1902. The Convention met at 12 o'clock M. Prayer hy Rev. James Nelson. CORPORATIONS. On motion of Mr. Braxton the Convention resolved itself into Committee of the Whole for the further consideration of the report of the Committee on Corporations, Mr. Ayers in the chair. The Chairman: The question is upon agreeing to the amendment offered by the gentleman from Danville to Section 3. The gentleman from Richmond city (Mr. Meredith) has the floor. Mr. Meredith: Mr. Chairman and gentlemen of the committee, at the close of last evening's session we were discussing the question as to whether these railroad com- missioners should be elected by the people or be appointed by the Governor as set forth in the report of the committee, with the power reserved that if at any future time the ■people of the State should deem it desirable that these commissioners should be elected by the people or be appointed by the Governor as set forth in the report of the com- mittee, with the power reserved that if at any future time the people of the State should deem it desirable that these commissioners should be elected by the people the General Assembly would have the power to so order. I called your attention on yesterday to a fact of which you are evidently aware, that this class of officers is intended to restrain and control a particular class in the State, that they are not like the judiciary and other officers, intended to administer justice to everybody; but that they are created rather as a restraint upon a class of artificial per- sons, that are regarded as dangerous to the State. Under those circumstances we must admit that any popular election is very apt to produce a clash of class interests. I did not propose to elaborate that idea any further, because it seems to me it must be self- evident to you that when you elect a railroad commissioner you are very apt to throw into a political campaign a very warm and, perhaps, undesirable discussion as to what shall be done by any railroad commissioner; and there is apt to be considerable feeling injected into every one of our political contests. Under those circumstances I think that we ought to avoid that danger, and ought not to elect them by vote of the people unless it becomes absolutely and manifestly necessary. I do not think there is any doubt that we can get justice by having these commissioners appointed by the Governor. I am as heartily in favor of the Committee's report as anybody else; but I do not de- sire that we should start this thing under conditions of undue excitement. I am one of those who believe that the people have been done as much harm and as much injury by their unwise friends as they have by their enemies. I think the extremes to which some of the friends of the people go are frequently as injurious to their interests as are the acts done by those who do not sympathize with them; and to avoid that, I think wisdom has been shown by the committee in requiring that the installment of this new depart- ment should be done in a wise, in a prudent and conservative manner. All that is asked is that the beginning of this proceeding shall be done in such a way that we will have some hope there will be no undue excitement attached to it. I frankly say to you that if the committee's report did not reserve to the people the right hereafter to elect these officers if they desired, I should be heartily for their election now by the people: but having reserved the right, if this commission becomes too much DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE VIRGIXIA. 2545 controlled by the class of Individuals whom we propose to control, if they manage the commission too much to the injury of the people, the General Assembly then, through the people have the right to declare that they shall be elected by the people. Mr. Chairman, it does seem to me this provision gives us sufficient control over the commission. It allows the people to say, if it becomes necessary, that there shall be this popular election, and all that is asked now is that the new system shall be stai'ted in a conservative manner. I heard it intimated on yesterda}* that we had these corpora- tions where we want them, I hope no such feeling as that will be engendered in this State. I fear it will be if we undertake to have political discussions about this matter too soon. Vre at least ought to be able to trust the present Governor of the State enough to believe that he will appoint men who are fair minded, who are prtident, and who desire to be just to all. Reserving the right, as you do in this report, that if yott find this system of creating the commission by appointment is not a wise one. to the people hereafter to say that they shall elect them if they see fit. why should Ave not try it? AVhat is the objection to giving it a fair trial, if you feel that by this trial you will get a conservative begin- ning in this new departure? I wish to call your attention to one other thing, and then I shall stibmit the matter, so far as I am concerned. You will recall the fact that yoti have now abolished the division of the Senate. There is, therefore, no longer any fear that there will be a hold-over ntimber of members of the State Senate, who will prevent any such legislation as you provide for in this report, requiring the General Assembly to require these com- missioners shall be elected by the people. You therefore have an additional reason now why it is not necessary, because the members of both Senate and the House are to be elected at the same time and are all to be new members. The desire of the people that these officers should be elected by the people could not be blocked for four years. All that is necessary is for the people to demand this thing, and to make it an issue in any single campaign, and the next succeeding General Assembly will overturn this require- ment, and the commission will be elected by the people. Xov-. gentlemen, it seems to me that having reserved that power, having giA-en the opporttmity by one single election to determine that thing, if there is any demand for it, the people will undoubtedly express their wishes in a proper way. I could see some objection to it if there was a hold-OA'er Senate, becattse they cotild A'ery readily block the legislation desired by the people. We all know that it is very hard to keep popular feeling and popular wishes up to such an extent as to last four, fixe or six years, as is sometimes necessary. But that state of affairs will no longer exist under this Constitution. Under this Constitution it will only be necessary to make this an issue in one single campaign, and you will be able to have the matter settled at one election as to whether we shall ha^'e these commissioners elected by the people or not. We all desire to start this thing in a conserA'atiA'e manner, not so as to shock the business sense of this State, and so that the people will feel that they will get jtistice. If at any time we should believe this commission was too much under the control of the class it was expected to control, the people of this State can say, in one election, " This method shall be changed and it shall be by election instead of appointment." I\Ir. Ingram: 'Mr. Chairman and gentlemen of the committee. I should not say anything totiching this matter btit for the fact that as a member of the committee my silence might be construed as not approving the action of the committee in putting the appointment of the members of this commission in the hands of the Governor subject to the confirmation by the joint act of the General Assembly of Virginia. I desire to say gentlemen of the committee, in the outset, that the committee in bringing to the attention of this body the railroad commission bill was actuated by one purpose and by one purpose alone. That was to enact into our organic law a provision for a conser^-a- tive and efficient commission to see that the rights of the people of Virginia were pro- 2546 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. tected as to the making of rates and schedules and the classification of rates and all rules and regulations governing transportation and transmission companies. When this bill was first drafted it contained in it a provision for the election of these commissioners by the people, but upon reflection the committee was of the opinion that better service and better officials could be obtained to carry out the purposes and objects of the law by placing this power in the hands of our chief executive, safeguard- ing it by taking the appointment subject to the confirmation of both houses of the General Assembly. I would state to the committee that your committee was actuated by no personal predilections for the honorable gentleman who now fills the position of Governor of Virginia. They recognize in him a most distinguished and competent official. To bor- row a term of the gentleman from Danville the personal equation did not enter into the mode of selection agreed upon by the Committee on Corporations. If there is one thing that this Committee and this Convention should seek to do it is to get upon this com- mission conservative, efficient men, men of information and knowledge touching the affairs about which they are to deal. It is by opinion, and it is the opinion of members of the committee, that these men can best be obtained by putting the appointment in the hands of the Governor subject, I repeat, to the confirmation of both houses of the General Assembly. Of course, gentlemen of the committee, this is a matter about which we can differ, and honestly differ. I desire to state here that the purposes and objects of this bill haa no sturdier champion than the distinguished gentleman who represents on this floor the city of Danville, as evidenced by his speech in this committee in its support, and who advocates the selection of these commissioners by the people. It is but just to say that he introduced one of the commission bills before the Convention. At the same time, I submit, with the profoundest respect for his judgment, that in this matter he is in error and instead of getting men peculiarly fitted and adapted to the performance of the duties required by this corporation commission, possibly in the heat of a political campaign, some man who plays to the galleries, some man who is not competent to fill this important position, some one Vv^ho is unable to be Governor,, and who is unable to be Attorney-General will be placed upon this commission. We v/ant those who are to fill these positions to be of equal ability with the head of any of the State departments, and we believe that in this way we will bring about this much desired result. Do not understand us as having less confidence in the people than these gentle- men who advocate the selection of these officers by the people; but we believe that the people as a whole will not be so well qualified to select, because they will not know the peculiar qualifications required as well as the Governor, with the check of both houses of the General Assembly upon him. I hope it may be the pleasure of this committee to sustain the Committee on Corporations in this regard. Their action has been in the interest of conservatism, and in the interest of bringing about efficiency. Mr. Bouldin: Mr. Chairman, I am unable to see how the interests of conservatism will be better subserved by the nomination of this important commission by the Gover- nor than by election by the people. We have already concentrated in the hands of the Governor an ample amount of power. The people are fully able to elect as able and efficient a commission as can be created by appointment of the Governor or by any other method that can be adopted. They elect the Governor, Lieutenant-Governor, Attorney-General, Superintendent of Public Instruction, Commissioner of Agriculture, and Secretary of the Commonwealth. Why is it that they cannot be trusted to elect this commission which is said to be created in order to protect their rights from the aggres- sions of corporations? It is said that the appointive method will secure a more con- servative commission and will keep the corporations out of politics by simply changing the mode of creating the commission. If the corporations are brought into politics it 3? by reason of the plan submJtted by the Corporation Committee and adopted by this DEBATES OE THE COXSTITUTIOXAL COXTEXTIOX OF YIEGIXIA. 2547 tod}-; and the mere fact that the people are called upon to make the election cannot drive the corporations more into politics nor withdraw them less from politics. If they are not now fully in politics I can conceive of nothing else that will have a tendency to carry them further in that direction. The people are able to elect their Governor, their General Assembly, and many other officers and there are no sufficient reasons, and I have heard none alleged here, why they cannot elect these commissioners. If these commis- sioners are intended, as my distinguished friend has said, for the protection of the peo- ple against the corporations, let the people have a voice in their selection. I do^not believe that there is any more sure mode of selecting able and efficient men than to have them voted for by the people. I have not yet lost my faith in their capacity to govern themselves and to select their officers. They are as keenly and intelligently alive to their interests as their representatives can be. I believe that if the election of this commission is referred to the people it will be impossible to have a weak or inefficient commission put upon us. The whole range of the State will be thrown open for the selection and no man without ability and without capacity wilh in my judgment, ever receive the endorsation of the people of the State, in order, therefore, Mr. Chairman that we may secure an able commission and one that will protect the rights of the people against corporations and in order that conservatism may control in the inauguration of this commission I beg this body to give the power of election to the people. "Why is it, I ask, that this able committee, for it is an able one— and I desire to offer the tribute of my unqualified admiration for the ability and fidelity with which its distinguished chairman and members have devoted themselves to the subject before them — why is it, I ask, that this committee has provided ;for the election of the commission by the peo- ple in 1909, if the people should then demand it? Is it not, sir, because the committee recognizes that the body of the people is fully able to deal with this subject and that it can safely be entrusted to their hands? If the people will be able to elect the commis- sioners in 1909 why are they not able to elect them now? There can be no reasons whatever applicable to the election in 1909 that do not apply with equal force to an election now. In my judgment, we should concentrate no more power in the hands of the executive. We have already invested that officer with ample powers. I refer to no special Governor. For the distinguished occupant of the executive chair at this time I entertain the highest respect and admiration and I would as soon see him intrusted with this high power as any man within the limits of the Common- wealth: but it is a power that should be given to no Governor; we have already invested the executive with powers enough. Let us not forget the people, the source of all power. Let us en-deavor to retain something of the people's government in the people's hands. Let us remember that our work may be submitted to the people and let us recognize the great interest they have in their government. Not all the provisions adopted by the Convention up to this time have met with the cordial support of the people nor even with that degree of favor throughotit the State that would warrant us in ignoring their interests and wishes in a matter of such importance as the creation of this commission with its large and important powers. Mr. Chairman, while I am not one of those who give a blind adhesion to all demands made in the name of the people, yet I earnestly believe that we should observe a conservative regard to their wishes in the election of this important commission. The further extension of power to repre- sentatives, bureaus and commissions, should be exercised with the utmost care and we may well pause and consider before we pronounce the people incapable of electing the members of this commission created for their special protection. I trust, gentlemen, that it will be your pleasure, in order that we may have an able and conservative commission, not to take the power from the people, but to leave It with them as contemplated by the amendment offered by the gentleman from Danville. At this point Mr. Parks took the chair. Mr. Ayers: Mr. Chairman, " w'hen the doctors disagree the disciples then are free." 2548 DEBATES OF THE CONSTITUTIOJ^AL CONVENTION OF VIRGINIA. The members of this committee seem to be divided to some extent upon this question. Whilst I have no objection to conferring upon the executive the power to appoint a great many of the boards and officers which we have provided for, and have had the the honor to report provisions which have been adopted as articles in this Constitution by which he appoints boards to select officers for some of the most important institutions of this State; yet I think that in this instance, considering the importance of the office of corporation commissioners that they ought to be elected by the people. My friend from the city of Richmond advocated, and I believe I seconded him, the election of the judges of the Supreme Court of Appeals by the people. One, at least, of this commission, is required to possess the qualifications of a judge of the Supreme Court of Appeals. If the people are qualified to elect the judges of that court, they certainly ought to be qualified to elect this one member, at least, of this commission. I believe, Mr. Chair- man, in trusting as. many matters to the people as possible. I believe that, in the main, although when swayed by popular prejudice and excitement, at times, they may do things that will not be approved of, even by themselves, soon afterwards, yet they will turn as the needle to the pole and can be relied upon and 'more often relied upon to be right on all subjects than any other tribunal or body to whom you can entrust power.* Mr. Braxton: So far as my information goes, and I think I am correct, the Com- mittee on Corporations is unanimous in recommending this method of appointment. Mr. Blair: I will state that I was not in favor of it. Mr. Braxton: I was not aware of that. Mr. Ayers: I believe that we will have better methods of submitting questions to the people than we have had for the last few years. I believe that there has been aroused in this State a determination to give a fair expression of popular sentiment on questions that are brought before them. I believe that the opportunities, which have existed for the last few years, of cliques, rings and combinations to thwart the will of the people will not exist to the extent that they have existed in the past. I believe that when we have got a number of important officers to be elected by th-e people you vnll fi.nd in every community an interest being taken in sending delegates to nominating conventions of the different counties such as has never been manifested be- fore; and you vv^ill thereby bring about an interest all over the State which will redound in the selection of men qualified to fill these positions. I would like to ask how the Gov- ernor would select a man to fill one of these offices — by reason of his qualifications. It is well known that to get a competent traffic man you have to go to one of the railroad com- panies. You could not command his services for the minimum salary you have pro- vided for in the Constitution and therefore the Governor would have to select the man. He would have to run the risk of appointing a man v/ho would not represent the interests of the people or he would have to do as the people will, select a man of intelligence and capacity and depend upon his solving these questions and learning the rules and regula- tions of transportation and transmission companies and thus become qualifi-ed. That is all the Governor can do. Certainly the people can do it as well. I believe that now, at the outset and commencing with the adoption of this article, the power to elect these commissioners should be left in the hands of the people, Mr. Barbour: Mr. Chairman, I do not think there is any member of this Convention who has been more deeply interested than I have been in the success of the matter which is now engaging our attention; nor do I believe that there is any member of this Con- vention who has a more profound respect for the judgment and capacity of the people of Virginia for self government. I have deemed it my duty to vote for the election of every State officer, including the judges of our courts, by the people, whenever an opportunity has been presented to me upon the floor of this Convention. I did it because I thought it was safe to do it and that we could safely trust that power to the people. In this respect, however, I believe that our Committee on Corporations has pursued the wise, safe and conservative course of action. They have preserved to the people every right that they can justly ask, and at the same time they have arranged a mode and manner of appoint- DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF YIRGIXIA. 2549 ment by which this commission may be put into operation under circumstances most favorable for its wise and conservative operation. All we want, Mr. Chairman, is that justice shall be done to the people of Virginia. All we want is a conservative body of men who will deal out equal and exact justice between these corporations and the people. In view of the liability of the people to be biased in their own interest and in their own behalf, I do not think it would be wise to start out with this commission by throwing these offices out as something to be scrambled for in the field of politics. It was safe, in my opinion Mr. Chairman, to entrust the election of the judges of the Supreme Court to the people, though some of the gentlemen who now favor the election of these officers by the people were unwilling to trust the people of Virginia with the election of their judges. It seems to me the danger of not getting conservative men by electing these officers by the people is ten times as great as would be the danger of electing judges of our courts by the people, because this is a new institution and it has not the traditions of the bench and the traditions of the bar back of it to act as a conservative influence, as they w^ould operate, I believe, in the election of judges. For that reason I think this commission should be started out under conservative influences. I believe that the action taken by this committee has thrown around it every safeguard that could be safely thrown around it. In the first place, the nominations of the Governor have to be ratifi_ed by the General Assembly in joint session. That is one safeguard. Another safeguard is the fact that these very corporations themselves know that if they undertake to dictate the appoint- ment of these commissioners or undertake to infltience their action unduly, a demand will arise from the people of Virginia that these officers shall be elected by the people. That will be another conserving influence. Again, the Governor himself will be jealous of this power. He will not want it taken away from him, and naturally so. He will know, at all times, that the Legislature is standing there, jealous of his power, always willing and always ready to take povrer from him if he abuses it. They stand there all the time ready to turn him down and to rebuke any abuse of power, not only hy refusing to confirm his nominations, but by passing a law that he shall have no further power to make the nominations at all. If there is any abuse of this power, can there be a.ny doubt that this Legislature, elected, as has been pointed out by the gentleman from Richmond, fresh from the people every two years, will always be ready and always be willing to carry out the wishes of the people, if this experiment which we are trying in the way of appointment by the Governor does not operate properly? There is always wisdom, Mr. Chairman, in having two courses of action open to you. Suppose that, in the outset, we elect these officers by the people, and it should turn out not to be wise. T\Tiat remedy will you have? It would be impossible to correct it? VvTiereas, if the plan adopted by the committee turns out to be unwise and unsatisfactory, you have recourse to this other mode of procedure. I think the plan which they have adopted of putting this power in the hands of the Executive, subject to confirmation by the General Assembly, is much waser than to put the power of appointment in the Legis- lature itself, with a similar provision for election by the people after six years, and for this reason: The Legislature will always be jealous of the power of the Executive, and will resent any abuse of that power; whereas, they would be slow to strip themselves of the power of electing these commissioners. It does seem to me that, in view of all the difficulties and doubts that surround this matter, the action of this committee has been eminently wise and conservative, and should be ratified by the Committee of the Whole. Mr. Keezell: I was trying to prepare an amendment to offer in lieu of the amend- ment of the gentleman from Danville; but I have not yet got it quite prepared. I will say, however, that the object of it is this. I, for one, favor the election of these commis- sioners by the people. However, I recognize the difficulties surrounding that proposition now. We have no general election in the State for almost four years. If this Constitu- tion goes into effect, I take it that much would depend upon the schedule that would be submitted by this Convention. I do not know what that will be. The idea v/hich I have always had vrith reference to this matter is, that there should be a temporary appoint- 3550 DEBATES OF THE COJS'STITUTIONAL CONVENTIOIN^ OF VIRGINIA, ment of these commissioners by the Governor, confirmed by the General Assembly as provided for in this article of the Corporations Committee report, and that, commencing with the first general election, these commissioners should be elected by the people. The amendment which I propose to offer is to the effect that upon the adoption of this Constitution the Governor shall nominate or appoint these commissioners, subject to con- firmation by the General Assembly as provided in this article, and that at the general election which is to be held in this State in November, 1905, there shall be elected three corporation commissioners, the terms of their office to be as provided for in this article; that is, one for two years, one for four years, and one for six years; and that at each re- curring election, two years apart, there should be elected one of these commissioners by the people. I believe that would be a proper solution of this problem, for the reason that Vv^e would in this way be able to put this ordinance into operation at an earlier day than we will under any other provision, and that this will have had, possibly, the advantage, if there is any advantage to be gained by that, as is claimed by the advocates of the report of the committee, of having men selected to hold these positions who will at least be puf upon trial for that length of time, and if they prove to be wise appointments, the people no doubt will confirm them. On the contrary, if the unwisdom of the appointment has been demonstrated, the people will have an opportunity then to rectify the whole matter and take charge of it. It seems to me that would be a provision that would be conservative. It would put this provision into operation at a very early day, and yet leave in the hands of the people the absolute control of this commission for all time to come, by the selec- tion of the commissioners. That is the idea I wish to incorporate in the amendment I propose to offer. The gentleman from Louisa (Mr. Gordon) has prepared an amendment that I believe will m.eet the object I wish to attain. I am sure there will be no trouble about amending the report, if, in the judgment of the committee, it ought to be done. Mr. Braxton: The suggestion I wish to make is that the purpose might be accom- plished — I do not wish to be understood as favoring your amendment — but it might be accomplished by amending the last clause of Section 3 by changing 1909 to 190i5, striking out the word "may" and inserting the word "shall." Mr. Keezell: I think that is proper, except that to carry out my idea in full there would be required some amendment in line 7, and also in line 8, because the idea I had was that these men should not be appointed for a six-year term, but that the whole of them should be merely temporary appointments, and that they should go out on the 1st of January, 1906, those elected by the people in the fall of 1905 to be eltcted for four years and six years. I v/ish LO send to the desk now the amendment suggested by the gentleman from Louisa (Mr. Gordon), which I think will accord with the sense of this body. The Chairman: Does the gentleman offer that as a substitute for the amendment offered by the gentlem^an from Danville (Mr. Withers) ? Mr. Keezell: Yes, sir. The Chairman: The Secretary will read the proposed amendment. The Secretary read as follows: In line 59 of Section 3, strike out all after the figures "1909" to the end of the section, and insert the words "the said commissioners shall be elected by the qualified voters of the State at large." The section as amended would read: After the first day of .January, 1909, the said commiissioners shall be elected by the qualified voters of the State at large. Mr. R. L. Gordon: Mr. Chairman, I desire to withdraw that amendment until after the amendment of the gentleman from Danville (Mr. Withers) has been voted on. Mr. Claggett B. Jones: Now, Mr. Chairm.an, it seems to me it is very necessary that there should be a conservative commission in the outset of this work. In other words, if DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF YIRGIXIA. 2551 the corporations of the State of Virginia find out that no injustice is to be done them, that equal and even-handed justice is to be meted out both to the railroads and to the other corporations of the State, as well as to the people, they will be satisfied that this matter shall stand as it is, that the commissioners shall be appointed by the Governor; but if there is an apprehension on the part of the corporations of the State, it is but natural that they should wish to control this commission. What will be the conditions? As I conceive them, no mortal man knows who is to <3onstitute the electorate of the State. Nobody knows who are* to be the voters of the State after his Constitution is adopted. It is utterly impossible to saj who is to be elimi- nated and who hereafter are to elect the officers of the State. Now, you put the rail- roads in the position of wishing to control this commission and they have the oppor- tunity, and in my judgment will say to either political party which may be out of power, "We will permit you to nominate every other officer to be elected by the people, pro- vided we may nominate this railroad commission." "\^Tiat then? "You permit us to name the commission, and we v>'ill provide all the necessary sinews of war." It seems to me, Mr. Chairman, we will have a condition in politics the like of which has never been seen in this State. There will be trading and countertrading, and the corporations of the State will make every officer to be elected by the people subservient to the election of the members of this commission. Therefore, Mr. Chairman, it seems to be if we could first constitute a commission, conservative in its character, which would show to these corporations that no injustice would be done them, then they would be satisfied that the matter should forever remain out of politics, certainly so long as no injustice was done them. Mr. R. L. Gordon: Mr. Chairman, it is with the utmost diffidence that I disagree with this distinguished committee. I think, sir, the work they have done is perhaps the most important work that has been done by any committee of this body, and it is well done. But, Mr. Chairman, the very importance of this work constrains me to respond to such arguments as my friend from King and Queen (Mr. Jones) has made here, to show that these people should not be elected by the qualified voters of the State. He says he wants a conservative commission. Why, sir, I believe the m.ost conservative commis- sion we could get would be a commission elected by the qualified voters of the State of Virginia. I do not believe all the wisdom of the Sta.te is centered in this body. I do not believe all the wisdom of the State is represented in this Committee on Corporations, though I have the utmost respect for the intelligence and virtue of those gentlemen; but I want to call the attention of this body to the principle of electing officers by the people at large. It seems to me, Mr. Chairman, we have forgotten some of the democratic teachings of our forefathers, and that the suffrage conditions in this State have so frightened us that we are unwilling to trust to the people of the State the selection of their most important officers. Mr. Pettit: Have not those principles of our forefathers that you refer to fallen into innocuous desuetude? Mr. R. L. Gordon: I trust not. sir. At any rate, if they have fallen into innocuous desuetude, it is time we revived them. I want to say, Mr. Chairman, that the principle upon which the people elect their officers is that every man is interested in the general welfare, and that the ordinary citi- zen will always vote to promote the general welfare. I do not believe this commission is to be an enemy to the railroad people. I do not believe we have to elect it as an enemy to the railroad people. I believe the time will come when these distinguished lawyers who have fought this proposition will welcome it as a protection to the railroads of the State, and I do not believe the people of Virginia want to elect men who will not do fair and even-handed justice between them and the railroad corporations. Some of these gentlemen who advocated the election of the Supreme Court of Appeals by the people are now taking the ground that they are opposed to electing this commis- 2552 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. sion by the people. I want to ask these gentlemen if the Court of Appeals is not the final arbiter over these very questions which the commission may settle. The Court of Appeals is the court of final resort that will determine at last every question passed upon by this commission; and the gentlemen who have voted to elect that court by the people now come and tell us that the people ought not to elect this commission. Mr. Barbour: The gentleman, I believe, voted against the election of judges by the people. I would be glad if he would explain why it is that the people are not competent to elect judges to pass on disputes between man and man, between citizens, but they are competent to elect a tribunal to pass on disputes purely between citizens on one side and corporations on the other. Mr. R. L. Gordon: Mr. Chairman, the gentleman, in Yankee fashion, answers the question I have just been asking him by asking another one. I can very readilj^ respond to the gentleman. This committee has provided that the Supreme Court of Virginia shall be the final arbiter in all these questions. Now, you voted to elect that final court by the people. I say if you can vote to elect the final court by the people, why can you not vote to elect the intermediate court by the people? Not that only, Mr. Chairman, but I want respectfully to call the attention of this body to the danger of confining this great power to the hands of any one man. I have the utmost respect for our present executive. I did all I could to elect him; but I am not willing to trust him or any other one man in Virginia with this tremendous power. I had rather trust the people of the State than any Governor Virginia has ever had or ever will have. These gentlemen say a demagogue will be elected, that some man will get up and will pledge himself beforehand that he will fix a particular rate in order to get elected. I do not believe a man who would take that position on the stump of Virginia could get the vote of a single county in the State. The people would not vote for any man unless that man was manly enough to tell them he would never decide a question until he heard all the evidence and that he then intended to do what was just and fair between the litigants before his court. It is the same old cry, Mr. Chairman. It is because we are afraid to trust the people. If we are willing to trust the people to make the Governor, why not trust the people to make this commission? Is the Governor any better after the people have selected him than he Vv^as before? But, again, Mr. Chairman, suppose our friends, the railroad people, on the other hand, come to the Governor when he is to appoint these men and say to him, as they have said to this body, " If you appoint this particular man you will ruin this State. You must appoint my man." The influence of the corporations of the State will be ten times as great in the selection of these officers if they are appointed by any appointive body, but I care not what it may be. If any injustice be done by the ruling of this commission, you have the court of appeals sitting over them, and that is elected by the Legislature. A party has only to take an appeal and have the decisions of this commission corrected. If that commission shall deny equal justice to the people, where will you get your remedy? The Court of Appeals will protect the corporations. The Court of Appeals — and I say it with the utmost respect for that tribunal — has protected the corporations. You are now engaged in passing a bill here, the fellow servant bill, for the purpose of overturning the decisions of that court in favor of the corporation and against the individual; and I say you can safely trust that court, and these gentlemen know you can safely trust that court, to protect the railroad interests of the State. I merely desire to ask that when we have done this great work — because in my judgment it is the greatest piece of legislation that has been accomplished in Virginia since the close of the war — gentlemen of the committee will not leave it incomplete, but will complete it by saying they will trust the people to select a 'great court, that will be fair, and that will dispense even-handed justice. The people of the State do DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF YIRGIXIA. 2553 not want anything but justice — fair and even-handed justice — to the corporations on the one hand, and to the people of Virginia on the other. Mr. Kendall: Mr. Chairman, I thought until to-day that this matter was to be settled in accordance with the report of the committee with almost unanimity, and I am a little surprised and deeply regretful that the able gentlemen who have risen here today to oppose this report in this regard have felt called upon to do so. I feel myself that the very heart of this whole measure is being struck at by the proposition to elect these commissioners by the people. I give place to no man in my confidence in the people. I believe their impulses are always good and are generally correct; and wherever any great political or constitu- tional question is involved, where any great question of political liberty is involved^ they may be implicitly relied upon, and should always be relied upon; but, gentlemeii, Y>^ill anybody contend that the people are specially fitted to pass upon the technical skill of men for this or any other particular line of duty? Is it not a fact that it is necessary very often to search out among the people with care and patience and time, by some one who has the time and the patience, to find men fitted to execute the great duties in positions where technical skill is required. ■\Vhy, gentlemen, suppose that because we go into a political convention and there decide the destinies of the State upon great political issues, that we are also capable as a people of deciding all other questions in which the interests of the people are involved. What, Mr. Chairman, is tne procedure of political conventions? They go there in a great multitude. Trained orators arise before them and advocate the interests of their special nominee. The nominee himself very often comes upon the stand, and with captivating eloquence wins the hearts of the people. They find he is a great orator, perhaps a great man. Their whole heart and interest become enlisted in his cause, and they believe he is the man they want. It may be he is a good man, a great orator and a great man, but he may be the very last man who should be called upon to fill some place of technical skill. Mr. Chairman, I Avas struck and much impressed with the point made by the gen- tleman from King and Queen (Mr. Jones J when he told you that so soon as this becomes a question of election by the people, the railroads would at once if they felt that their interest was in jeopardy, inevitably say to any faction in the convention that would make the nomination, or if they failed to succeed in any one convention, then to the opposing party, " We are able and willing to supply the sinews of war to carry on this election, and you may have the benefit of it, provided we are permitted to nominate these candidates to the office of corporation commissioner." But sir, apart from that, whether that is true or not — and I believe it would be true — what will you find here in the State of Virginia? You will find these offices provided with this attractive salary of three, or four, or five thousand dollars. We do not know what it is to be. Does anybody for an instant doubt that there will come clamoring from all sections of the State a lot of candidates for this position, good, bad and indifferent, unknown to the great mass of the people of Virginia, endeavoring to secure it by the wales of the poli- ticians and by the influences that may be brought to bear upon a convention by com- binations with the conflicting interests thai arise in every political convention. All kinds of possibilities will grow out of such combinations and such clash of interests; and sir, you can tell as well what will be brewed out of the witches' cauldron as what may come out of any such contest. I have looked forward to some such provision as this to but allay that prejudice that we all acknowledge to exist n the people aganst corporations, a prejudice which may be very often well grounded. I believe that whenever justice is done between man and man, between the people and the corporations, that prejudice will at once be allayed and will cease forever. I think it is one of the outrages of this day that undue and improper damages are often given against corporations. They are given because the people have in their hearts the secret belief that the corporations often oppress and do IGl— Const. Deb. 2554 DEBATES OF THE COJ^STITUTIONAL CONVENTION OF VIRGINIA. wrong to the people, and when they have an opportunity in the jury-box, they visit that oppression upon them. Let them but feel we are doing equal and perfect justice to them, and you will find that great wrong done away with. But, sir, if it becomes a political question between God knows how many candidates going from section to section, and the people perhaps imagining they have a special grievance which has not been corrected by the corporation commission, hurling epithets and denunciation and falsehood against the discharge of the duty by the man who has been in power, what may we expect to come out of any contest as that? I tell you, gentlemen, you have a most important matter before you now. A mis- take in this instance will bring discredit upon this v/hole feature in the eyes of the people, and in my opinion you cannot do a greater work than to stand by the action of the committee in this regard. I trust gentlemen, you will do so. Mr. Withers: Mr. Chairman, it is said that when Thomas C. Piatt founl it impossi- ble to control without question and without complete success the Legislature of New York, he adopted the method of boards and commissions appointed by the Governor, and the success of that policy has been seen in his absolute control over the State since that time. On the floor of the Alabama Constitutional Convention last summer it was admitted by one of the most distinguished gentlemen in that Convention according to the steno- graphic report, in the Montgomery Advertiser, that the Alabama Railroad Commission was utterly ineffective, and that one of the reasons of its ineffectiveness and ineffi- ciency was the fact that it was an appointive office by the Governor, and not elective by the people. I am grieved to see my friend from Culpeper (Mr. Barbour) and my friend from Richmond (Mr. Meredith) part from us on this question. I heard their speeches main- taining the right of the people to elect the judges, and every man who heard the speeches of those gentlemen can answer their speeches of to-day with those of the past. They cannot justify the position that the people should have the right of selecting judges of law and of equity and should not have the right of selecting the intermediate court, those who are to compose the tribunal, the arbitrament, the arbitration com- mittee, as it were, between the people and the corporations. Now let us see what this thing does. Let us see just two or three things about it: and I want the committee to understand it so that they may vote intelligently upon it. It may have slipped their attention. First, it is a commission of great powers, and it ought to be. It is a commission of comparatively untried powers, in Virginia alone, for there are nineteen commissions with power in the country, sixteen of which are elective and not appointive; and they are satisfactory. It is nothing to cause dreams nor the seeing of visions. All the horrors pictured here are but the horrors of the opponents of tJiis bill. Now let us see. It pays these men, as provided, $3,000 a year and makes them practically a court on corporations. What are the provisions of the bill? That the first four appointments shall be made by one man; not merely the first three, but at the expiration of the sBbrt term his successor shall be appointed. I say to the gentleman from Northampton (Mr. Kendall), of whose ability and judgment I have the highest opinion, that every evil he has pictured in a nominating convention that may hang around a railroad commissioner hangs around a Governor, and gives that Governor the opportunity for trade and traffic in politics, unapproached and unexcelled in the history of this or any other State. The gentleman from Richmond (Mr. Meredith) talks about what may be the capacities and incapacities of a candidate before the people for election to this office. I say to him that by a trade one year in advance — because by the provisions of this bill the appointments follow closely upon the election of the Governor — the Governor, by a compact with politicians or corporations, may select an utterly incompetent, cor- DEBATES or THE COXSTITUTIOXAL COXVEXTIOX OF VIEGIXIA. 2555 rupt and inefficient man, whose character and capacity may be unknown until his name is sent to the General Assembly for confirmation; and no protest, no power, can stop its <3onfirmation when the deal is consummated. Mr. Meredith: Is it not true thai if you give the power of appointment to the Gov- ernor in matters of this kind, the people will feel the importance of the office of Governor more than they do novr, and that they will see that the man who is put in that place will be one who will represent them fairly. Is it not more probable that they will take more interest in it? Mr. Withers: They will not take half the interest in selecting somebody to appoint somebody else that they will take in making the appointment themselves. The people of Virginia are not altogether stupid. You are here to purify the electorate. They will know the importance of this corporation commission as well as we do. They will know it better than the Governor. There is no justification for creating a court of this sort with the power conferred upon it and then saying to the people "You shall not elect the men who compose it." It is putting into the hands of the Governor a power that will come back to plague us. I am not talking of the present Governor. I apply it to any Governor from the first down to the last man that shall preside. It is a power he has no business to have. It affords the broadest possible chance for bargains, corruption and everything else that is objectionable in politics and that you gentlemen have urged against the nominating convention, where the people make their own selections. How much more potent, how much more insidious, how much more dangerous and powerful will be every practice known to politics to secure deals whereby a man may be nominated for Governor, with the understanding in advance that he shall make certain appointments to the corporation and other commissions. How much more infinitely powerful will those corrupt influences be when they can be accomplished under the cover of the night and in the dark, withotit knowledge by the public that such a deal has been made. And then the appointment is made as soon as the Governor is inducted in the chair. 'Mr. Brown: Would not your objection along this line be met by the amendment ottered by the gentleman from Rockingham (Mr. Keezell) ? IMr. Withers: I will ask the gentleman this question, and I ask it without any rela- tion whatsoever to the personal equation. Why confer upon one Governor the power you do not give to any other? The very fact that you gentlemen are willing to give the possibility of election by the people hereafter is an admission of our case. You may say yoti want to be conservative. I tell you the people of Virginia are more conservative than any Governor A irginia ever had. I do not believe these things will ever happen, even if the Governor appoints, but the possibilities of their happening in case of appointment by the Governor are infinitely greater than they are with the election by the people. The people of this State are not idiots and they are not corrupt. With a purified electorate, you run practically no danger: and if they can give you a good Governor, as they have given you in the past and the present, and a good Attorney-General, in the name of God, can they not give a good Corporation Commissioner? The whole answer is in that. If the power that is to do the appointing is elected by the people and proves satisfactory, then the men to be appointed should likewise be elected by the people, and they will likewise prove satisfactory. I have heard a great deal of talk about conservatism. I am reasonably conserva- tive, but I do not believe in that conservatism which is a species of dry rot, never progressing. The efficient commissions of this country, except three, are elected, and there is no undtie radicalism in any of them. I think that when we create a new court, with new powers and new privileges, the people of the State of Virginia ought to saj' who should control that court, preside over it and render its decisions. If there is -any injustice done to corporations, the Court of Appeals stands to rectify it, and the Court of Appeals is not elected by the people. 2556 DEBATES OF THE CONSTITUTIOi^AL COXVENTIOX OF VIRGimA. I want to say one more thing. I do not believe that the politics of our State ai-e in any such condition as has been pictured. I do not believe the nominating conven- tions of our State are dominated by any such influences as has been pictured. If that is true, then good has come out of evil, because we have had good State officials. I make this statement here, without fear of contradiction and without desire to reflect upon anybody, that the elective officers of this Commonwealth are more satisfactory than the appointive officers, and the record of the administration of every State officer and every other office to which the people have elected their officials shows that they have been more competently served than those that have been filled by appointment by legislature or other bodies. I have said, Mr. Chairman and gentlemen of the committee, that I was very much surprised and grieved at the departure from the path of rectitude and righteousness of my friends from Culpeper and from Richmond, and I am sorry but not surprised to observe the course of the chairman of the committee, to elect the Supreme Court judges by the people. He was afraid of the election of the Superintendent of Public Instruc- tion by the people. He was afraid of the election of the Commission of Agriculture by the people, and he was afraid to let the citizens of his own town decide local questions pertaining to their own court; and yet my distinguished friend stands upon this floor representing and being trusted by a constituency that has no superior in this State. (To Mr. Braxton). Why not trust the people? Mr. Wescott: Mr. Chairman, and gentlemen of the committee. I wish to say at the outset, that I have stood with a single exception in the deliberations of this body in the vanguard of those gentlemen who have advocated the election of officers generally, by the people. Unlike my friend from Louisa, (Mr. Gordon) I was an advocate of the election of the judges of the Court of Appeals by the people. Attentively as I have listened, and deliberately as I have reflected upon every argument that has been urged by any gentleman opposed to the views with which I came thoroughly imbued to this body, I have seen and see now no reason whatsoever to change the position I have taken. This question is not a new one to me, as presented before this committee. It is not the first time that I have been called upon, with those actuated by a common purpose in their desire to enact this provision into law, to consider this question. I wish to urge upon the members of the Committee of the Whole the extent to which, in my hum- ble judgment, the persuasiveness of the report of this committee should weigh upon ali members of the Committee of the Whole, by reason of the practical unanimity with which the recommendation of the majority report is concurred in by every phase of sentiment, by every interest represented, by every possible variety of conflicting views embodied in the personnel of this Committee on Corporations. I think that if you will retrospect the President's appointment of the several committees of this body, you will find that upon none has there been a greater diversity of interest, a greater diversity of sentiment and a greater diversity of callings, than is manifest in the selection of this particular committee. Notwithstanding the fact that we have upon that committee lawyers who are judges, and lawyers who are not judges, lawyers who have been characterized as railroad lawyers, and lawyers who are not railroad lawyers, and to descend to a somewhat invidious distinction that has been heretofore drawn, lawyers who carry an inside pocket well filled with railroad passes, and lawyers who do not carry any railroad passes at all, judges of the corporation courts, and of the county courts, the clergy and the laity, farmers and merchants — and perhaps the only calling which is not represented ir> the personnel of this committee are the medical doctors — yet, Mr. Chairman and gen- tlemen of the committee, considering the strong diversity of views, and opinions that have been manifested in the consideration of this committee's report by some of these gentlemen, when they come to this provision there is a startling unanimity among the members of this standing committee as to this particular provision of the report; the DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE VIRGIXIA. 2557 gentleman from ^Vytlie CMr. Blair) being the sole member Tv-ho does not concur in this provision. They have had this vrhole measure under consideration, not only for weeks but for months. They have considered it in its very phrase, and in its very bearing. Mr. Brooke: You are right, so far as the minority report, signed by the minority of the committee without reservation, is concerned. Only the gentleman from Fauquier and myself signed the minority report without reservation. The minority repori pro- vides for the election of these officers just as the majority report does. The gentleman from Wythe signed the minority report with a reservation. Mr. Wescott: I am glad that I was not mistaken in that proposition. Now, gentle- men, in this connection there is another consideration which I wish to urge upon the members of the Committee of the Whole, and I do it in sober earnest. I intend no improper reflection upon the gentlemen who have seen fit to differ so widely from the views which I have entertained upon this question; but I wish to direct your attention to the fact, which I believe will be admitted by the concensus of opinion in this body, that no committee which has been assigned any portion of the work of this Convention has so well demonstrated by its report, as well as by the debates vrhich have taken place in the last two weeks upon this floor, the thoroughness and extensiveness of their consideration. This majority proposition has been considered in its every phase, in its every aspect; and it is in the light of that reflection and of the practical unanimity of this committee on this proposition that I would urge you to adopt it. Let me say to you, gentlemen, that when this question was being discussed in the committee room, there were no stenographers there; there vrere no galleries to talk to. The gentlemen who were interested in drafting this provision upon the fundamental law of the State were engaged in conference, and dispassionately, earnestly, thoughtfully and deliberately considered every proposition which has been urged upon the floor of this committee. There was no appeal to popular approval when these gentlemen were deliberating. With the result of this practical unanimity, there was no opportunity to call to the attention of the public the reasons for the attitudes of any of them. I say to you, gentlemen, that fact ought to be very strongly persuasive upon the minds of the members of this Committee of the Whole. On motion of INIr. Braxton the committee rose and the President resumed the chair. The Convention took a recess until 4 o'clock P. M. AFTERNOON SESSION. The Convention reassembled at the expiration of the recess. CORPORATIONS. On motion of ^Iv. Braxton the Convention resolved itself into Committee of the Whole for the further consideration of the report of the Committee on Corporations, Mr. Ayers in the chair. The Chairman: The question is upon agreeing to the amendment offered by the gentleman from Danville (Mr. Withers). Mr. Hatton: Mr. Chairman, I am one of those who have been in opposition to the putting of this measure into the Constitution, but when it became apparent to me that a large m.ajority of the members of this body vrere in favor of putting it into the Constitu- tion. I have felt it my patriotic duty to do everything I could to perfect the measure, and I have taken care to do nothing to hamper it or to obstruct others who were seeking to perfect it. Mr. Chairman, it is in that spirit that I rise to oppose the amendment of the gentleman from Danville. It is maintained that this is a government of the people, and therefore that the people should select their own instruments for the duties imposed by this measure. It appears to me, Mr. Chairman, that this amendment, instead of adding to the powers of the people in this matter, tends to deprive them of some of the powers 2558 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. whi«h the measure as now framed gives to the people. TEis amendment, which pro- vides for the election of these commissioners by the people, has a negative as well as a positive effect. We are here making a Constitution, and what we put into this Constitu- tion as a provision for electing commissioners or other officers is necessarily exclusive of all other methods. When we say that these commissioners shall be elected by the qualified voters of this Commonwealth, that method is exclusive, and if, in the course of events, the people themselves should become convinced that other methods of selecting these commissioners are better then they find that we have tied their hands and pre- vented their doing any such thing. Now, Mr. Chairman, I say that by this amendment we would be taking powers away from the people which are given to them under the provisions of this measure as it now stands and as framed by the committee. After the people of the Commonwealth test this method of appointment by the Governor, subject to confirmation by the General Assembly, if that should be found wanting, then I say they have the opportunity them- selves to change it by their chosen representatives and by representatives who will be chosen with full knowledge on the part of the people of their power to change it. In other words, the people will be able, if they so desire, to instruct their representatives in the General Assembly to make this change. Again, Mr. Chairman, I think it but fair to this committee to allow this report in this respect to stand as they have framed it. This committee will be held responsible for this commission, and if men selected for it are guilty of any maladministration of it, the people of this Commonwealth will be more inclined to hold this committee responsible than the commissioners tliemselves. The duties of these commissioners are so technical in their character that, I respectfully submit, the people of this Commonwealth will not be able to judge specifically as to whether they have administered these duties properly or improperly in every particular. They will only note the general fact that this commission is a failure and noting that fact, they will hold this committee responsible for if. I think, therefore, it is but fair to this committee to allow this appointment to stand where they have placed it. I do not believe the people at large are as capable — and if the use of the word capable in this connection is treason, then I say make the most of it — by a popular vote, of selecting men with reference to the performance of strictly technical duties as are smaller bodies of men, and I believe that the capability to make that selection properly increases in the same ratio in which the number of those who are to make the selection decreases. These commissioners are not chosen in order to fulfill some great political duty, as a Governor is. Their duties are those of an extremely technical business — a science and, I say, Mr. Chairman, that the field from which this selection is to be made is an extremely small one. The number of men in this Commonwealth to-day who by train- ing are qualified to deal with the subject of railroad rates in a scientific manner is in- deed small, and the men who are capable of doing it will be the very men who will not seek nomination for the position. They are men who can always find remunerative employment, and if this selection is left with your Governor, he will be able to seek out those men, and if necessary to communicate with them to find out in advance whether they will accept the position or decline it. I say that is something that no nominating Convention can do. Mr. Braxton: Mr. Chairman, I hope that this committee will consider most care- fully and maturely this matter, before they reject the recommendation, in this respect, of the Committee on Corporations. It is needless to say that the Committee on Corpora- tions has at heart, as earnestly as it is possible for anybody to have the success of this measure. When I say success, Mr. Chairman, I do not mean the mere success of passing it through this body, but I mean that in its operations hereafter, it shall be successful in accomplishing those things which the friends of the measure hope for It, and in failing to produce those shortcomings the opponents of the measure have predicted for it. In coming to the conclusion that we did on this matter we did not act hastily. There was DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF VIEGIXIA. 2559 probably not a thing connected with this whole question of a corporation commission that met with more earnest and careful consideration at the hands of the committee than this question which we have now before us. It is a question as to which we did not de- pend entirely upon our own judgment. We sought the advice of all sorts and conditions of people who are interested in the welfare and success of this measure. At a good deal of difficulty and at some expense I conferred with those men who have been mose promi- nent in the State in urging and advocating this measure — I refer to the representatives of the boards of trade of the State. Those are the men who are more interested in this than any other similar number of men, because they have so much more shipping to do. After personal conference with those gentlemen they were unanimously of the opinion that the method recommended by your committee on Corporations was the best and the wisest. I do not mean to say, Mr. Chairman, that because fhe^' think that is so, it necessarily is so. We do not wish to arrogate to ourselves any peculiar wisdom. We merely say to this body that this was not a thoughtless, not a reckless conclusion to which we came, but that we arrived at this result in the method I have told you. Mr. Chairman, I regret that in debating this measure some of the gentlemen who take the opposite view seem inclined to throw out suggestions and intimations of a more or less, personal character, as to the motives which actuated or ideas which might bias and warp the judgment of those who favor the side which I do in this matter. My ex- cellent friend from Warren county (Mr. O'Flaherty) laid a good deal of stress upon the question whether it would be wise to exclude the possibility of any member of this Con- vention ever serving on that commission. I could not catch the pertinence of his re- marks, unless it was intended as an intimation or suggestion that some of the advocates of this provision, and particularly some of the committee who reported it, had in their hearts or in their minds the possibility of being candidates for this office, and thought they could get it better in this way than they could if the commissioners were to be elected by the people. I have no authority to speak on this subject for anybody but my- self but I would like to say, if the committee will excuse me for making a personal reference in a matter of this importance, that not only do I not desire to hold any office under the sun, but having taken the part I have in the establishment of this office, there is not money enough in the Stale of Virginia to make me accept it. I would rather see the office abolished than to discredit myself by undertaking to fill it, after having un- dertaken to establish it, whether if is an office that is to be filled by election by the Legislature, by election by the people or by appointment. (Great applause.) So far as any such idea as that is concerned, I wish to satisfy my friend that I for one, have no such idea; and I think, if I know the men who served with me on that committee, they occupy the same position and cannot possibly have any personal interest in this matter. Mr. O'Flaherty: I do not wish to be put in a false position before this committee. There is no man for whom I have more respect than the distinguished gentleman who is the chairman of this committee. I simply stated, in speaking of the Constitutional provision of Louisiana, that they had made such a provision. It was not necessary for the gentleman to make a disclaimer so far as I am concerned; but since he has done so I wish to say that nobody under the sun would believe it more implicitly than myself. Mr. Braxton: I thank the gentleman very much for what he has said. I think, Mr. Chairman, that this is a matter upon which, so far as I know, every member of this Convention, either on my side or on the other side, is prepared to act and will act without any ultra ideas or designs. As to the appointment or election of these gentle- men to fill this office I do not take a one-sided view. I recognize the fact that the appointment by the the Governor, in the method which we suggest, is not free from criticism. All I say is that any possible way of filling this office, whether by election by the Legislature, by election by the people or by appointment by the Governor is open to objection in some respects. There is not one of them that has not some bad features to it. In some States election by the people has been successful. In other States 2560 DEBATES OF THE CONSTITUTIOXAL CONVENTIOi^ OF VIPtGINIA. appointment by the Governor has been entirely successful. I was told not long since by one of the distinguished members of the Interestate Commerce Commission that, in his opinion, the Georgia commission was one of the most effectual and satisfactory commissions in the United States. That commission has always been appointed by the Governor and confirmed by the Legislature. I do not mean to say that because such is the fact that is the only possible way of doing it; but I mention that as an instance where this method of filling the office has proven eminently satisfactory to the people. Again, in California, the provision is made in the Constitution of the State that they shall be elected by the people. I am informed that that commission^ is eminently satisfactory in every respect. I am free, however, to admit that there are other com- missions elected by the people which are satisfactory. I am free to say, Mr. Chairman, that even if this commission is elected by the people in the way proposed by the gentle- man from Danville, I believe it will be infinitely better than no commission at all. But it is my most earnest conviction that the efficiency of this commission will be most seriously impaired if we start out with election by the people. I am strongly inclined to think that it would be better always to retain the method of appointment by the Gov- ernor; but it was the purpose of the committee to put us in such an attitude that we could avail ourselves of both methods. If you will think for a moment you will see that, when this commission starts off, it will be some time before there is a general election, and if you cannot fill the office until then you have got ail that time to wait without any commission. In the next place, one of the commissioners is appointed to hold office for only two years. I ask you, as practical men, if you think there is any man in the State of Virginia who is capable of filling this office in a satisfactory manner, who would go to work and make a canvass of this entire State in a political campaign to get that officer for the term of two years. I do not believe you could get a man to do it. The result would be that you would be forced to take up some political hack, who had all to gain and nothing to lose, who was totallyand grossly unfit for the position, and who, because of that very worthlessness and because of desperate fortune was willing to canvass the State or do anything else to get an office for a year, or for six months, if necessary. There are always men who will fill an office, but they are not men who are desirable. They are men who would take the presidency of the United States for a night's lodging, but it would be a calamity to have them do so. There are plenty of men who would like to have this office; but they are not the men the people would like to have in the office. It has been the practice, as I am informed, in most of the States, to install an insti- tution of this kind by appointment because of the practical difficulty of leading off by the cumbersome method of a general election. I think those gentlemen who favor election by the people will agree with me that, as a practical thing, the first officers should be installed by the method of appointment. Your committee has recommended that this commission be appointed by the Governor and confirmed by the Legislature. But we say that after their terms have expired after we have had a reasonable time for experi- ment with that method of filling the office, to see whether it is successful or not, we may adhere to that methodor change that method if we choose, so that we have a double advantage. We have an opportunity to experiment with these two methods of filling the offices, so as to determine whether or not, under the conditions which exist in Virginia to-day, that method of appointment is the best or the method of election by the people is the best. Now, gentlemen, I do not wish to talk claptrap. I want to talk to you like plain business men. You know, and I know that when once you give to the people the power to elect officers, it does not make any difference how much you regret it, you can never get it back. The history of the world has shown that when power of that kind is put into the hands of the people, though they may be rushing to their own destruction, they never surrender it except to a king or a dictator. If you want an opportunity to test the DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF YIRGIXIA. 2561 two methods, you must not begin by giving to the people the power to elect, because you can never take it from them. We start out, then, with the method of appointment, and we provide that if that method proves unsatisfactory you can have an election by the people. Then you would be acting in view of past events. Then you would be acting with the light of experience before yoti — not acting upon a theory, but having before you the actual practice of a year or two past. We did not think there would be any great difficulty in reverting to election by the people if it was decided to have it. The Legisla- ture, it is true, being men like all the rest of us, would be loath to surrender to the people a right which they themselves had, but they would not be loathe to take away a right which the Governor had and give to the people, if there was any demand for it on the part of the people. Therefore you would not have the same difficulty in re- verting from appointments by the Governor to election by the people, that you would have in reverting from election by the Legislature to election by the people. If there is any demand for election by the people, after we have experimented with the method of appointment, there will be no diffi^ctilty in putting it in force. Gentlemen talk about the people, their right of self-government, and their power to govern themselves. If the people are powerless to elect a Legislature to carry out their will, how can they be expected to elect commissioners to carry out their will? Election by the people, within proper limits and bounds, is the very groundwork and basis of our government; but like every other good thing it can be run into the ground. It is all very well to get up here and talk about the dear people, and how much we love them, and to imagine that they possess something absolutely transcendental and infinitely beyond all men. that they know everything, that they have all the virtues and, as Sidney Smith says, "not a single redeeming vice.'" But we all know that, not because of stupidity and not because of corruption, but because of the necessary result from the physical condition of there being immense numbers of them it is difficult for them to act. A million men can- not meet and confer together. The only way to get them to act effi-ciently is to reduce in simplicity, increase in importance so that you can concentrate their thoughts upon one point. Then, and then only is election by the people a safeguard for them- selves and for the country. But if you divert their attention with a multitude of officers and elections, the more difficult you make it for them to express their opinion. The more you expose them to the arts and wiles of the practical politician the greater opportunity you give to divert the attention of the ptiblic from that one object. If you elect them when the Governor is elected everybody will be thinking about the Governor and nobody thinks about these side issues. The politicians will do as they choose and when the people wake up they will find they have been made fools of and that, under the guise of popular election, their will has been defeated. Our idea is that there would be less danger of manipulation in this matter when the entire responsibility of it is put upon the Governor to nominate them and upon the Legislature to elect them. Popular attention is riveted upon the Governor. Thank God the day has not come when the Governor of Virginia can be bought or traded. But if you are going to call upon the peo- ple to elect Tom, Dick and Harry to this office and that office — offices which the people do not care anything about and in which they are not particularly interested, you are making an absolute bid for deals of all sorts and descriptions. As I attempted to explain the other day. while the people have the power to elect they are. absolutely, by reason of their great ntimbers, precluded from the possibility of selecting. They are bound to make their choice between the candidates that the parties put up for them. Can you not trust the Governor of Virginia, gentlemen, to put up better men for your consideration — better than the ordinary political convention which is evanescent in its character and utterly irresponsible to anybody, and is composed of delegates elected by perhaps one-tenth of the people, absolutely dominated, as it often is, by political bosses. The opportunity there for chicanery and for defeating the will of the people is unfortunately, greater than it is under the pro%ision as we have it here. 2562 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Admit, if you choose, that the method of filling these offices by election by fhe people is the best method, then I think you must concede that in starting off, in order to set the pace, to use a common expression, in order to indicate the kind of men it is necessary to have, in order to look over the State and give the State the advantage of picking out the best men we should start off by appointment. Having started off by the method of appointment, at the end of a reasonable time say to the people, you have experimented with this method and if you find it is not successful you have the right to change it, and if you find that it is successful you have the right to keep it. Do not say to them: You. have tried it and found it successful, but you shall be compelled to abandon an estab- lished and proven thing and take something that has not been tried. Leave it to the people, as represented by the Legislature, after this experiment has been tried, to say whether they will continue it or whether they will change it. One word more and I am through. It is always well to retain an arrow in your quiver and not to jump your whole length at once. If you choose to concede that the rail- roads do not want election by the people, if you choose to concede that the commissioners themselves do not want to be elected by the people, will you not be able to keep them in the path of their duty, will you not be able to discourage any attempt on the part of the railroad to corrupt them, as has been intimated will be done, when you hold this over their head in terrorem when you say to them: This is a good commission. If you let it alone and let it perform its duty it can go on, but if you tamper with it, if you corrupt it, if you befool it, if you make it a disappointment to the people, then we wiTl resort to election by the people. That is something you can hold over them to keep them in check. The Governor, in making the appointments will be careful not to abuse his power of appointment. If he wants to be a candidate to the Senate he will not try to commend himself to the people by appointing corrupt men to office. You talk about the candidacy of the Governor for the Senate. The Senatorship of the United States is an exalted office. It is one of great honor; but J ask you, gentlemen, what practical good is it to the people of Virginia as compared with a corporation commission"? Here is a thing v/hich comes home to every man in the State, which is dollars and cents in his pocket, and is he going to risk impairing the efficiencj of this commission in order to settle some matter between two politicians, as to who shall go through the form of representing this State ia the Senate? If I knew this provision was going to compel us to elect the Governor to the United States Senate, if I thought it was necessary for the efficient Constitution of this body, I would say: Take the United States Senator and go to thunder with him, if you will give us a good, efficient commission. But I do not believe, gentlemen, that it will have that effect. The Governor, as I say, will have an additional motive to make good appointments instead of making bad appointments. If he makes notoriously bad appointments there is the Legislature to head him off, and through the Legislature the people can speak. The whole matter is entirely in the control of the people. I trust, Mr. Chairman and gentlemen of the committee, that it may be the pleasure of this committee to sustain the Committee on Corporations in this m.atter which they liave so much at heart, which they have studied over with so much care, which they have looked into with so much patience, and about which they have conferred with so many friends of the measure. I believe that almost all the prominent friends of the measure throughout the State favor the report of the committee in this respect. As chairman of the committee, and simply because I happened to be chairman, I have received numerous letters; I suppose I have received from six to a dozen letters a day for the last thirty days from all sorts and conditions of men in this State, from mer- chants, from manufacturers, from farmers, from business men and men of all sorts, com- mending this institution in the way we have provided for it, and not one of them, so far as I can recall, has ever objected to the method of appointment. They all recognize that it is conservative and reliable. And, sir, they recognize that if you want efficient service, you want to be put in a position so that you can select your servants, and not be in such DEBATES OE THE COXSTITETIOXAL COXVEXTIOX OE YIEGIXIA. 2563 a posiiion that you have to sii still and choose between those vrho come and offer their services to you. The best men are those you have to approach. It is impossible for the office to seek the man, if you have a general election. The only way for the office to seek the man is to give the power of appointment to some one man vrho represents the people, who has been elected to perform that duty, who is directly responsible to the people, and who is a man so well known that he has succeeded in obtaining the suffrage of the people to elect him. He can act. Through him the office can seek the man and seek the best man to perform the duty. I think I should almost feel like weeping if I should see that this commission, which we have labored so hard to establish, filled up with a lot of political hacks. It is not a political office. T\'e do not want politicians in it. It is, strictly speaking, a business office, and ought to be filled by business men, whose lives have laid in that line heretofore, and who have not been politicians. It would be hope- less for them in seek public election throughout the State. A man must be something of a speaker to succeed in popular elections, although he may not be able to do any- thing but talk. The men that are fitted for this kind of work are frequently men who cannot talk, but men who can act. I hope, gentlemen, that the committees will be sustained on this proposition, as you have sustained them on other points. The Chairman: The question is upon agreeing to the amendment offered by the gentleman from Danville Olv. Withers,). The amendment was rejected, there being, on a division, ayes 27, noes 37. (Applause) . Mr. OTlaherty: I move to amend Section 3, line 3, page 3, by striking out the words, '"'be appointed by the Governor, subject to confirmation," and insert "elected." so that the sentence will then read; "The said commission shall be elected by the General Assembly in joint session and their regular terms of office shall be six years," etc. Mr. Keezell: Mr. Chairman, what has become of the amendment I offered? The Chairman: The Chair was not aware the amendment was pending. It will be considered now. Mr. R. L. Gordon: Mr. Chairman, I merely wanted to ask that the amendment offered by myself be changed so that the election by the people will take place after January 1st, 1905. The effect of that amendment will be to have the first commissioner selected by the Governor, and after the selection of the first commissioner it is absolutely provided that they shall be elected by the qualified voters of the State. The Chairman: The question is on agreeing to the amendment offered by the gen- tleman from Louisa (Mr, Gordon). The amendment was rejected; there being on a division, ayes 29, noes 33. (Applause.) Mr. OTlaherty: Mr. Chairman, I do not wish to make any further remarks in re- gard to the amendment I have offered, more than to say that I hope the gentlemen who have A'oted to elect the judges of the Supreme Court of Appeals of Virginia, and the circuit judges will now show their faith by their works again. I cannot see why men who voted to elect the judges of the Court of Appeals, when it is provided that the mem- bers of this commission at least one of them, shall have the same qualifications as the judges of the Court of Appeals, should not now vote for the election of the members of this commission by the Legislature. I want to get it as near the people as possible; but if it has come to pass that we cannot trust the Legislature of Virginia or the people, then let us put ourselves on record. I wish to call the attention of the committee to the fact that the tentative reports that were sent out by the committee provided for the election of this committee by the people, as those reports were published in the newspapers of the city of Richmond. The argument has been made upon the floor of this committee this afternoon that this com- mittee comes here with a solid front. I want to know how these gentlemen got con- 2564 DEBATES OF THE COXSTITUTIOXAL CONVENTION OF VIRGINIA. verted. On the way down to Damascus they must have seen some light which they had not seen when they sent out those tentative reports. I hope gentlemen will vote for the election of this commission by the Legislative Department of the State, and thereby recognize it as one of the co-ordinate branches of the government of Virginia. I shall not make any further remarks, because I know it is useless to debate this question. I would be recreant, however, to the duty which I feel I owe to my constituents, and to the people of Virginia, if I did not state my views. The chairman of the committee said the other day something which, with all due respect to him, I would not ever, I hope, be found guilty of saying, that power once lodged in the hands of the people could never be wrested from them. I thank God for that; but these gentlemen are not willing to put it in the hands of the people — Mr. Braxton: I did not say that, Mr. Chairman. The gentleman misunderstood me. Mr. O'Flaherty: I so understand you, and I think the record will bear me out. Mr. Braxton: I know the gentleman does not intentionally misstate what I said, but he misunderstood me, and I wish to correct him. I did not say that power once placed in the hands of the people could not be wrested from them. I said power once put in the hands of the people for direct elections was not surrendered by them excpt through a king or a dictator, and I think the facts will bear me out in the statement. Mr. Blair: Mr. Chairman and gentlemen of the Committee, I ask your indulgence for a few moments. I simply rise because the attention of the committee has been called to the fact that I differ from the majority of the Committee on Corporations in that I refused to sign the report which provided for the election of this corporation com- mission by the people. Mr. Wysor: I understood you endorsed both the report of the majority and of the minority. (Laughter.) Mr. Blair: No, sir; I did not. You misunderstood it. If you will look you will find T reserved the right to submit a minority report to this Section 3. There was no objec- tion to my doing that. I was in favor of the election of these commissioners by the Legislature. I am not one of those gentlemen who believe that the Virginia Legislature is a body of corrupt men. I believe the Legislature is com^posed, as a rule, of as patriotic men as those in the Constitutional Convention, and that they can be as fully trusted to place on this commission men who will do their duty as the Constitutional Convention tion can be trusted to do it. I heartily favor leaving to the Legislature the appointment of these commissioners. T do not approve of the Governor being allowed to appoint them. It is true that if he would follow certain rules I would agree to it. If I were the Governor of Virginia, and had to m^ake these selections, I would not have much trouble. This office of corporation commissioner is going to be, to use language more expressive than elegant, a soft thing. The members are going to have their pockets full of railroad passes, ride in palace cars, smoke 2.5-cent cigars and drink good champagne. If I had the appointing of the mem- bers of that commission, I will tell you what 1 would do. I would not have to go out of the city of Richmond or out of this Convention. I would go over here and get my friend from Hanover (Mr. Carter). Then I would get the gentleman from Carroll (Mr. Bolen). T would also put on that commission my friend from Pulaski (Mr. Wysor). (Laughter.) My reason for making these selections would be that whenever I see a good thing I like to see a fat man have it, as there is so much of him that he can enjoy himself. Gentlemen, I favor the election, as I said before, of this commission by the Legisla- ture. The possibilities that mighl grow from this commission cannot be calculated. It has the power of making a corporation commissioner out of a Constitution-maker. It has the power of making United Slates Senators out of Governors, and Governors out of Lieutenant-Governors, ad infinitum. I would not place in the hands of the Governor such power as this. I would not give such a lever to any man. I am not casting any reflec- tion on anybody, but I think it is too much power to put in the hands of an individual. DEBATES OE THE COXSTITUTIOXAL COXVEXIIOX OE VIEGIXIA. 2565 I simply wished to explain my position because the gentleman from Accomac (Mr. Wescott) has stated that I widely differ from the rest of the committee. The Chairman: The question is on agreeing to the amendment offered by the gen- tleman from Warren (Mr. O'Flaherty). The amendment was rejected, there being on a diA'ision, ayes IT; noes, 42. Mr. Blair: I olfer the following amendment. The Secretary read as follows: In line 10. page 4. after the word 1909."' insert the words not more than two of the commissioners shall te appointed from the same political party."' Mr. Blair: Chairman. I ask the pardon of the committee for addressing it again so soon; but. gentlemen. I want yoti to consider that amendment. It is offered with the intention of making this commission that is to be established as nearly impartial as pos- sible. Of course I recognize the hopelessness of an argument to induce the committee to adopt the amendment, but for fear some gentlemen may think it is offered from poli- tical motires, I want to state that it is taken verbally from the Interstate Commerce Commission act,, which was passed on the 4th day of February, 1SS7, and which I will read. I T^ant you to also bear in mind, gentlemen, that this act was passed during a Democratic administration, with a Democratic majority in Congress. Section 11 of the act which establishes the Interstate Commerce Commission, provides: That a commission is hereby created and established to be known as the Interstate Commerce Commission, which shall te composed of five com-missioners. who shall be appointed by the President, by and with the advice and consent of the Senate. The commissioners first appointed under this act shall continue in office for the term of two, three, four, five and six years, respectively, from the first day of January. Anno Domini, eighteen hundred and eighty-seven, the term of each to be designated by the President; their successors shall be appointed for terms of six years, except that any person chosen to fill a vacancy shall be appointed only for the tinexpired term of the commissioner whom he shall succeed. Any commissioner may be removed by the President for ineffi- ciency, neglect of duty, or malfeasance in office. Now, this is the part of the section I wish to call your attention to specially: Not more than three of the commissioners shall be appointed from the same political party. The object of that was to secure a nonpartisan hoard, if possible. I will not offer any argument myself, but I want to read to you a few remarks made by the distinguished chairman of the Committee on Corporations, to maintain my posi- tion on this point. In a little colloquy with the gentleman from Danville (Mr. Withers), he said: Therefore, this thing of the people going out. and untramelled. casting their eyes over the State and picking out the man who is fitted for this place is an iridescent dream. These men will be nominated by the political parties, and the people will be reduced to the necessity of having to decide betv,-een those men that the political bosses put up for them to choose between. Mr. Withers: Would not the effect of that criticism apply to the Governor? Mr. Braxton: I think not, sir. Mr. Withers: Wherein does it differ? Mr. Braxton: I will tell my friend if I can. I will certainly tell him what the difference in my mind is. The office of Governor is a political office. It is an office that no man can expect to be elected to unless he has been in public life for a greater or less length of time. The people know him. The people have an opportunity of judging his capacity for political matters. The office provided for here is a matter that has no more to do with politics than has the cashier of a bank. It ought to be filled by men who are not politicians. It ought to be filled by men whose past experience has been in the line of practical business, and not in the lines of political matters. The people are much better able to judge of a man to serve as Governor than one to serve as corporation commissioner under such a provision as this, because the functions which the Governor has to perform are function that every man is familiar with. 2566 DEBATES OE THE CO^^STITUTIONAL CONVENTIOJ^- OF VIRGINIA. Now, gentlemen, on such distinguished authority as this, I ask you to adopt my amendment. The amendment was rejected, there being on a division, ayes 8, noes 51. Mr. Hamilton: I offer an amendment to come in in line 6 of Section 3. That clause reads: "Subject to confirmation by the General Assembly in joint session, and their regular terms of office shall be six years." I move to substitute "twelve" instead of "six." Mr. Chairman, I propose to follow that by an amendment to make the salaries of these commissioners four thousand dollars a year apiece. Not less than that. In other words, my idea is that if we are to have this commission, we ought to put it at least on the basis of the Court of Appeals. We ought to give it the same term the Court of Appeals has, and we ought to give the members the same salaries as the salaries re- ceived by the members of the Court of Appeals. Mr. Wysor: I hope you intend to follow out the suggestion of the gentleman from Wythe (Mr. Blair) and put on the commission Mr. Carter, Mr. Bolen and myself. (Laughter.) Mr. Hamilton: It is not for me, Mr. Chairman, at present to say who is to go on it, and I am afraid it never will be for me to say who is to go on it. If it were, I should take great pleasure in selecting the honorable gentleman from Pulaski (Mr. Wysor) not to mention the other two. But that is not the question, and I am serious about this matter. Gentlemen of the Convention know that I have opposed most of this measure providing for the corporation commission with what I thought were reasonable and proper powers, properly guarded. At times I have been irritated and felt that I was unfairly treated when it seemed to me that the majority were not willing to listen to reasonable suggestions to better their measure; but that makes no difference, Mr. Chairman. We are to have it and I want to get this measure so framed that we can put the men who are to go on it as far above the danger of temptation as possible. We ought to put it as high in salary and as long in term as is possible, to get the very best available men in Virginia to serve upon it. I have had no conference with anybody about it, and I do not want any. If there is no merit in the suggestion, let it go down. I have been used to trouble, Mr. Chairman. I can stand it as well as anybody else; but if it is right and proper that you should con- stitute this court, this more than court, as I have described before it before this prose- cutor, judge and legislator all combined, you should put the members as far as possible above the reach of temptation, and you should give them a term that is long enough and a salary that is large enough to induce the reasonably best men you can get in Virginia to serve on it. I do not see why this should be objected to. It is said this position is more impor- tant than that of United States Senator. It is almost more important than a member of the Court of Appeals, and yet we have given the members of the Court of Appeals a long term and a good salary. Why not make this in fact, sir, one of the highest and most reputable courts of this State, a court upon which any man who can afford to accept the salary would feel an honor to serve? I therefore offer the amendment, having in view the regular term. It does not vary these first appointees, you understand. If my friend from Pulaski (Mr. Wysor) is one of the first appointees, and is not satisfactory, he can be turned off under my amendment, but if he is satisfactory he will be re-appointed prob- ably for a twelve-year term. I am sure we would all get justice at his hands. Let us make it a twelve-year term, Mr. Chairman, and at the proper time I will move to make the salary four thousand dollars. I have never seen a United States Judge who had been on the bench long who did not become arbitrary and somewhat tyrannical. I am not a life tenure man, but I be- lieve every judge ought to have a term long enough to enable him to feel reasonably free from the demagogic influences which surround a judge as v/ell as other people; and I DEBATES OF THE COXSTITUTIOXAL COXVENTIOX OE VIRGIXIA. 2567 think the same in regard to these officers. We ought to give them a long term and a decent salary, so as to get the best people in the State on the commission. Mr. Braxton: Mr. Chairman, the members of the Committee on Corporations who signed the majority report think they hardly deserve the criticism that the gentleman from Petersburg (Mr. Hamilton) applies to them when he says they are not inclined to listen to suggestions. I think if any criticism could be passed on them, it would be that they are inclined to listen to too many suggestions. Certainly we have most carefully and patiently Bstened to every suggestion, and adopted, without hesitation, those that could commend themselves to us. Listening to them is one thing, adopting them is another. We cannot agree to adopt every one we listen to. This is a matter which was considered by the committee, and the committee is satisfied that twelve years is too long a time. It is not so much a question of independ- ence, because unless you make it a life tenure, although you make it twelve years, as the 'twelve years approach their termination, the man would have all the temptations he would have if it originally had not been a shorter term. The idea we have is that the term should be sufficiently long to justify a man in taking the office and in running for it, iDut not to make him independent. If it is only a two-year term, he would not take it. He would say it was not worth his time. If it is a six-year term, it is long enough to in- duce him to take it, but it ought never to be long enough to make him independent of the source from v/hich he derives his power. Mr. Hamilton: In order to meet the point made by the gentleman, I will suggest to him what I thought of. Are you willing to agree that after serving out one full term, the man shall be ineligible for reappointment? Mr, Braxton: Mr. Chairman, I do not believe in the method of getting good work by punishing the man who does it, and saying, " Although you may be a most efficient and valuable servant, the only thing you can hope for is to be inevitably turned out of your office. I think the result would do much more harm than good. I wish to say only one other thing, that out of the twenty-nine commissioners with power and without power, in the United States, an overwhelming majority have terms of six years. The amendment was rejected. Mr. Barbour: I move to amend this section by striking out the word " 1909," in line 59, and substituting " 1906." The Chairman: The question is on the amendment offered by the gentleman from Culpeper (Mr. Barbour). Mr. Barbour: Before that vote is taken Mr. Chairman, I just desire to call the attention of the committee to the fact that that amendment in no way affects the term of the office. It merely permits the Legislature to provide after January 1st, 1*^5, that these officers may be elected by the people, instead of having to wait until 1909. Mr, Hamilton: I was not aware we had gone that far. I desire to offer another amendment prior to the point where your amendment comes in. In line 57, Section 3, page 6, the salary of each of these commissioners is fixed at not less than $3,000 per annum. I move to make it $4,000. I have already stated prac- tically my reasons for it, I am very much in earnest about the matter, I believe it is a matter of importance. No official in the State of Virginia will have more serious duties, more responsible duties, to perform than these people. If they give their services to this subject, they will earn every dollar of $4,000, and we have the assurance from the chair- man of the committee that the work of this corporation commission will produce some twenty or thirty thousand dollars in excess of its expenses. Let us pay these people a fair, decent, living salary for the work they are going to do, and try to get the best men. If we cannot get them for a term of twelve years, we are bound to have a term of six years. Let us give tliem $4,000 at any rate. They will be worth it, if they are fit for the position. You cannot get a traffic man that would be employed by any railroad in the State in any responsible position for $3,000. You cannot get a first-class lawyer for 2568 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. $3,000, and I do not believe you can get a first-class shipper for $3,000. I hope very much that the Convention will make the salary $4,000 instead of $3,000. Mr. Thorn: I do not understand the gentleman's motion. Is it to strike out the word "three" and insert "four," so that it shall be not less than four thousand dollars? Mr. Hamilton: That is it exactly. The salary of the Supreme Court judges, under our new Constitution, is made not less than"$4,000. The present salary is $3,000, but it is for a twelve-year term, and many a man has sacrificed two or three times the salary of those places for the honor of the position. The chairman was somewhat fretted by my criticism of the committee. I intended to say when I first rose, that although he has at times irritated me very much, I must say I have rarely, if ever, seen a man whose intellectuality and whose character I have a greater admiration for than his; and it was with the deepest and the greatest regret, although I did not expect it would be otherwise, that I heard him say he would not serve on this commission. I hope to God we can get men like him on the commission, Mr. Chairman, and I want the chance to get the strongest, best, ablest men in Virginia to serve on this commission and prevent the dreadful troubles which will come from broken-down, worthless people being put upon it. Mr. Braxton: Mr. Chairman, I must thank my friend from Petersburg for the kind things he has just said about me; and it makes it peculiarly agreeable to me to concur in the amendment which he has just offered. I have no authority to speak for the Com- mittee on Corporations in this matter, but I will say for myself that I heartily concur in what the gentleman has said, and I, personally, w^ould be very glad to see the minimum salary put at $4,000 for the reason he states, and because I believe, for the reasons I explained to the committee the other day, that even if you put it at $6,000 it would not cost the State one cent, as the work of that commission will earn its salary, and a good deal more besides, from sources from which the State is not drawing one dollar of revenue to-day, and from such sources that there will be no burden fo collect. I refer to the annual tax of not less than $5 on each corporation a year. Personally, I shall be very glad to see the gentleman's amendment adopted, and I will take pleasure in voting for it. I do not speak for the committee. I do not know what their views are. Mr. Thom: I move to amend the amendment by inserting the word "five" in place of the word "four." The Chairman: The question is on the amendment of the gentleman from Norfolk (Mr. Thom) to the amendment of the gentleman from Petersburg (Mr. Hamilton). The amendment was rejected. The Chairman: The question is on the amendment proposed by the gentleman from Petersburg (Mr. Hamilton). The amendment was agreed to, there being, on a division, ayes 35, noes 26. Mr. Barbour: I now offer my amendment to strike out "1909," in line 59, and insert "1906" In place thereof. Mr. Kendall: Mr. Chairman, I dislike to disagree with the gentleman from Cul- peper (Mr. Eaibour) but it seems to me this is unwise and that we ought to give an opportunity for a full test of the appointment by the Governor before it is thrown into hands of the Legislature. I think the trouble is going to be a disposition on the part of the Legislature to please the public by giving them the offices to vote for; but I think before that is done the people should have ample and full time to see what is the opera- tion under this system of appointment, so that they may have the matter fully tested before that question is brought up at all for decision, Mr. Keezell: I would suggest that if you put it off until 1909 and these people were not satisfactory, every one of tliem could be reappointed, and instead of having a six-year term, they would have a twelve-year term. Therefore it seems to me th'e amendment of the gentleman from Culpeper ought to prevail, so as to leave it in the power of the General Assembly to have these people elected by the people in case the appointments are not satisfactory. DEBATES OF TEE COXSTITUTIOXAL COXYEXTIOX OF YIPtGI^'I.A. 2569 The Chairman: The q-aestion is iii3on agreeing to the amendment offered by the gentleman from Culpeper (Mr. Barbour). The amendment was rejected, there being on a division, a:/6S, 27; noes, 32. Mr. Waddiil: I move to amend Section 3 by striking out in line 59, the word "1909" and inserting the word "1908." The reason I offer this amendment is that the term of the third commissioner ex- pires on the first day of February, 1909, and the General Assembly could not provide for his election, because there vvould only be a month v/ithin which to act. If my amend- ment is adopted, the Legislature will have an opportunity to elect the third commissioner. Mr. Fairfax: I vvish to say that in the case of the election of United States Senator, they have always in the past been elected one, and sometimes two years before the time for them to take their seats. Why could not this be done in the same way. Mr. WaddilJ: Because it provides that the Legislature shall not act until the first day of January, 1909, and that is v;ithin thirty days of the expiration of the term of the third commissioner. Mr. Eggleston: I desire to call the attention of the gentleman from Henrico (Mr. Waddiil) to the fact that during the year 1909 no General Assembly v/ill oe in session, so that the first time the General Assembly could possibly authorize the election by the people would be after the first v»^eek in January, 1910. Under this Constitution there v/ould not be a General Assembly until that time. I say that in favor of the amendment of the gentleman from Henrico. Putting the election by the General Assembly in the year 1909 ^artually postpones it until 1910. Mr. Waddiil: If this provision stands, you cannot elect one of the commissioners until 1911. That is the practical effect of it. Mr. Braxton: Mr. Chairman, I am authorized by the Committee on Corporations, or those members with v.^hom I have been able to confer, to say that they will accept the amendment of the gentleman from Henrico (Mr. Waddiil), to change the year from 1909 to 1908, and would be glad to have it adopted. « The amendment was agreed to. Mr. Thornton: I v/ould like to revert to line 6 of Section 3. I move to insert the w^ord "eight" in lieu of the v/ord "six." The effect of that a^mendment would be to make these commissioners, for the first term, hold for eight years instead of six years as pro vided by the committee. Under the terms of this Constitution none of the circuit court judges v'ill hold for a less term than eight years; and it does seem to me that the mem- bers of this important commission should serve at least as long as a circuit court judge serves in the State of Virginia. Mr. Braxton: I cannot agree with my good friend as to the wisdom of that amend- ment. The experience of this country seems to be that six years is a suitable and con- venient term for these oincers. While they have some judicial functions, they are not strictly judicial officers. They have many other functions to perform much more im- portant than judicial functions. I think that eight years is too long a time for a term. I will again state to the committee that out of the tv/enty-nine States vvhich have com- missions the great majority of them hold for six years. I presume that limitation has been fixed because the experience of those vvho started off with six years showed that to be a very reasonable and proper term. The Chairman: The question is on agreeing to the amendm^ent of the gentleman from Prince William (Mr. Thornton). The amendment was rejected. Mr. Braxton: If it is agreeable to the committee I would be glad if they would take up Section 18. Sections 11 and 18 are the only ones now left. The Chairman: That will be done unless there is objection. The Secretary will read Section 18. 162— Const. Deb. 2570 DEBATES OF THE COI^STITUTIONAL CONVENTION OF VIRGINIA. Sec. 18. General laws regulating and controlling the issue of stock and bonds by corporations shall be enacted by the General Assembly; but no statute shall be enacted authorizing any corporation to issue its stock as full paid, at less than its par value. Whenever anything other than money is hereafter received, or to be received, by a cor poration, in full or part payment for stock or bonds to be issued by ft, the corporation shall, before the issue of such stock or bonds, file with the State corporation commission a full and accurate written description (verified by the oath of the president or secre- tary of the corporation) of the property or services so received, or to be received (stated in detail), and against which the said stock or bonds are to be issued, together with a written statement, similarly verified, of the valuation at which the said property or services are so received, or to be received — a separate valuation being specified for each item of the property or services as stated in the description thereof. The General Assembly shall provide adequate' penalties for the violation of this section, or of any laws passed in pursuance thereof ; and it shall be the duty of the State corporation commission to see to the enforcement of the provisions of this section, by adjudging and enforcing against any delinquent or offending company, in the manner hereinbefore prescribed by lav/. Mr. Braxton: I am authorized by the committee to offer an amendment, which is a redraft of the middle portion of that section: Strike out the words beginning in line 3 with the words "but no statute shall be enacted," down to and including the words "in the description thereof," in line 18; and insert in lieu thereof the following: Whenever stocks or bonds are to be issued by a corporation, it shall, before issuing such stocks or bonds, file with the State Corporation Commission a statement (verified by the oath of the president or secretary of the corporation, and in such form as may be prescribed or permitted by said commission) setting forth fully and accurately the basis or financial plan upon, or for, which such stock or bonds are to be issued; and where such basis or plan includes, in whole or in part, services or property (other than money) received or to be received by the company, such statement shall accurately specify and describe (in the manner prescribed or permitted by said commission) such services and property, together with the valuation at v/hich the same are received, or to be received by the company ;fand such corporation shall comply with any other require- ments or restrictions which may be imposed by law. The difference betv/een that amendment and the provision contained in the majority report is two-fold. In the section as origiinally reported this sentence occurs: "But no statute shall be enacted authorizing any corporation to issue its stock as full paid at less than its par value." That is omitted in the amendment now proposed. If the com- mittee will bear with me I would like to explain this, which I find has been misunder- stood. In order that the committee may understand the scope of this amend- ment, I desire to call your attention to the sentence in the printed report that "no statute shall be enacted authorizing any corporation to issue its stock as full paid, at less than its par value." Observe that it does not say that stock shall not be issued as full paid at less than its par value, but that no statute shall be passed permitting that to be done. There is a great deal of difference of opinion among the lawyers as to whether it can be done regardless of the statute. Some of them think that it can be done under some circumstances; and some think it cannot. In the case of Hanley against Stutz it was held that it could be done, and that a reissue of stock by a going concern could be made and the stock put upon the market and sold for what it would bring, without liability on the purchaser for the difference between the price he paiid and the par value. In the case of Camden against Stuart, the same court apparently reversed itself in that respect, or at least so far modified its former decision as to leave the matter in doubt. Your committee, in considering this matter originally did not desire to enter into that domain and v/ithout undertaking to say whether, at common law, stock could ever be issued as full paid at less than its par value, it simply said that no statute on that sub- ject should be passed. Upon further reflection the committee has come to the conclusion that it would be better not to put that matter into the Constitution for this reason : DEBATES OF THE CO^^STITUTIOXAL CONVEXTIOX OF YIEGIXIA. 2571 Stock has, until comparatively recently, been supposed to stand for two things; in the first place, to indicate how much money the stockholders have contributed to a common enterprise, and in the second place, what proportion that bore to the entire fund. In modern times the practice has been to issue stock merely to indicate the proportion that a stockholder may own in common with the other stockholders, rather than to indicate what has been put in. The capitalization, as it were, of the good will or the future profits of a company has grov/n very much in practice. The committee do not approve of that. We do not think it is a wise thing to do; but we recognize the fact that, at present, the views of the lawyers and the public generally on that matter seem to be undergoing a change and it seems to be reasonably possible, if not probable, that at an early day stock will no longer stand as the representative of the amount a man has put into an enterprise, but stands merely as the representative of his proportionate share therein. If that be true, the time might come w^hen it would be desirable, in the interest of advancement, in the interest of development, and in order to keep abreast of modern ideas that the Legislature should be permitted to pass such an act. I say that time may come; but I do not think it has come now. I v/ould unhesitatingly vote against it; but I recognize the fact that it is reasonably possible that such a thing may come to pass. I will state to the committee that before making this change I corresponded at con- siderable length with some of the best known corporation authorities in this country. Those of you who are lawyers w^ill recognize the names of Seymour Thompson, Victor Morawitz and William W. Cook as the highest authorities on the subject. I stated the case to them as fully as I could, and they were practically agreed — Morawitz and Cook out and out, and Thompson practically — that it would be best to leave this as an open matter to be dealt with by the Legislature in the future, as changing conditions might show to be wise. But in order to get publicity in these matters, and inasmuch as stock cannot be depended upon to show^ what amount has been paid in, we have prepared the provision which I have just read. A company to-day may have $10,000 worth of stock issued, by some hocus pocus, on the basis of $500. Creditors and those contemplating giving credit, purchasers and those contemplating buying, no longer depend upon the face value of the stock as an indication of what is invested in the enterprise. They look at the assets or something else. In order to have publicity in this matter; in order to have some authoritative source to which everybody can go for such information as the public is entitled to have, we provide that wherever stock is issued, whether it is for nothing or for something and whether that something -is great or small, it must be reported to the corporation commission, without authority in the commission to pass, approve or reject the valuation. They merely have to state the fact, when stock is issued, what it was issued for, so that the public can know and everybody can know absolutely the thing which they can no longer depend upon finding out from the face value of the stock. I trust, therefore, it may be the pleasure of the Committee of the Vv^hole to adopt this amendment. I hope I have been able to make it plain,, in my brief remarks, this matter, on v/hich we might talk for several hours. The effect of the provision as it now is that every corporation hereafter issuing stock must file a statement under oath showing what the stock was issued for, w^hether it is Issued for money, for property, for services or for nothing, if there is any way to issue it for nothing. Whatever they do they must state under oath and file that statement that every man can have an absolutely reliable source of information on that matter. Mr. George K. Anderson: Did your committee consider v/hat effect this amendment would have upon the liability of the holder of stock which has been fully paid up, in fact, so far as creditors are concerned? Mr. Braxton: Yes, sir; our idea is that it has no effect on it at all. It merely says that whatever they do, although it may be unlawful, they must state it under oath and file the statement. If they issue stock without any basis, they must state that fact. As to whether it creates a liability or not is for the courts to determine. On motion of Mr. Blair the Committee rose and the President resumed the chair. 2572 DEBATES OF THE CONSTITUTIO]SrAL CONVENTION OF VIRGINIA. i •.. . _ . ACCOMMODATiONS FOR THE CONVEMTJON. IVIr. Cardwell, on behalf of the committee appointed by the House of Delegates 'addressed the Convention as follows: Mr. President, I desire on behalf of the committee appointed to-day by the House of Delegates to tender to this Convention the use of the Hall of the House of Delegates at any time and all hours of the day, except the hours between 12 o'clock noon and 5 o'clock in the afternoon. I desire to say on behalf of the House of Delegates that they recognize the importance of the work this Convention is doing to the people of Virginia :and that they desire that this work should go on unimpeded by the presence of the ^Legislature or anything else that may happen. We hope it may be the pleasure of the Convention to accept this proposition. I think I feel authorized in saying that the House of Delegates will not use the House more than two hours a day, beginning at 12 o'clock, for the first few weeks of their session. (Applause.) Mr. Thom: I offer the following resolution: Resolved, 1. That the cordial thanks of this Convention be and hereby are tendered to the Honorable, the House of Delegates, for the offer of the use of their hall for the . sessions of the Convention, and, at the sam^e time, that the House of Delegates be Informed that the Convention had already arranged to occupy the hall of the Mechan- ics' Institute, and will find it unnecessary to incommode the House of Delegates in the use of the hall of that honorable body. 2. Thp.t a copy of these resolutions be certified by the President and Secretary of the Convention to the Honorable, the House of Delegates. On motion of Mr. Turnbull the Convention adjourned until to-morrow, February 20, at 10 o'clock A. M. THURSDAY, February 20, 1902. The Convention met at 10 o'clock A. M. Prayer by Rev. W. B. Beauchamp. CORPORATIONS. On motion of Mr. Braxton the Convention resolved itself into Committee of the Whole for the further consideration of the report of the Committee on Corporations, Mr. Ayers in the chair. Mr. Bra,xton: Mr. Chairman, I desire" to move that in Section 19 the date be changed from January, 1902, to 1903. My purpose in doing that is to enable some of the corporations that have been chartered, but have not yet effected their organization, to do so before the charters are repealed. I find the law now gives them two years in which to effect their organization. I think it would be nothing more than fair and reasonable that they should have until the first of next January in which to do so, in- stead of cutting them off in January past. I move, therefore, that the date shall be changed from 1902 to 1903. The amendment was agreed to. The Chairman: The Secretary will read Section 11. Sec. 11. Every employee of any railroad corporation engaged in the physical con- struction, repair or maintenance of its roadway, track, or any of the structures con- nected therewith, or in the physical operation of its trains, cars, engines, or switches, shall have the same rights and remedies for every injury suffered by him from the SLcts or omissions of such corporations or its employees, as are allowed by law to other DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. 2573 persons not employees, or passengers, when the injury results from the negligence of a superior agent or officer of the corporation, or from that of a person employed by it having the right to control or direct the services of the party injured, or the service of the co-employee by whom he is injured, and also when the injury results from^ the negligence of a co-employee on another train of cars, or who has charge of any switch, signal point of locomotive engine, or is charged with dispatching trains or transrait- ting telegraphic orders therefor. Knov/ledge by any employee injured, of the defective or unsafe character or condition of any machinery, ways, appliances, or structure, shall not of itself be a bar to recovery for an injury caused thereby. When death, whether instantaneous or otherwise, results from any injury to such an employee, received as aforesaid, the personal representative, surviving consort and relatives of the deceased shall have the same rights and remedies that they would have had if he had not been an employee of the company. Any contract or agreement, express or implied, made by any employee, to waive the benefit of this section, shall be null and void. This section shall not be construed to deprive any employee of a corporation, or his legal or per- sonal representative, surviving consort or relatives, of any rights or remedy that he now has or they now have by the law of the land. The General Assembly may enlarge the relief and remedies herein provided for the above named class or employees, and may extend those herein provided for, or herein authorized, to any other class of em- ployees. Mr. Braxton: In line 7 of that section the word "corporations" is printed in the plural. It should be in the singular. At the end of the same line the word "are" appears. That should be "m.ay be." I do not know that it is necessary to make any formal motion to amend in these particulars. The Chairman: The changes will be made, if there is no objection. Mr. Braxton: In line 18, after the word "any," should be inserted the word "such," so as to read "any such employee." In line 24, after the word "shall," should be inserted the word "respectively," so that it will read "shall respectively have the same rights and remedies." The Chairman: If there is no objection, the amendments referred to will be made. Mr. Braxton: Mr. Chairman, the following, I suppose, should be in the nature of a formal amendment. In lines 25 and 26 strike out these words: "That they would have had if he had not been an employee of the company," and insert in lieu thereof the fol- lowing: "Therefor as may be allowed by law to the personal representative, surviving consort or relatives of other persons not employees or passengers." The amendment was agreed to. Mr. Braxton: Mr. Chairman, I move to amend by striking out the sentence begin- ning in line 32 and insert in lieu thereof the following: Nothing contained in this section shall have the effect of restricting the power of the General Assem-bly to further enlarge, for the above-named class of employees, the rights and remedies hereinbefore provided for, or to extend such rights and remedies to, or otherwise enlarge the present rights and remedies of any other class of employees of railroads, or employees of any person, firm or corporation. The amendment was agreed to. The Chairman: If there are no further amendments to Section 11 the Secretary will read Section 1. Sec. 1. As used in this article, the term "corporation" or "company" shall be construed to include all trusts, associations and joint stock companies having any powers or privileges not possessed by individuals or unlimited partnerships, but to ex- clude all municipal corporations or public eleemosynary institutions, asylums or pris- ons ow^ned or controlled by the State; the term "charter" shall be construed to mean the charter of incorporation by or under which such corporation is formed; the term "transportation company" shall be construed to include any company, trustee or other person owning, leasing or operating for hire a railroad, street railway, canal, steamboat or steamship line, and also any sleeping or parlor car company, freight car company, car association or car trust, express company, or company trustee or person in any way engaged in business as a common carrier over a route acquired in whole or in part under right of eminent domain; the term "transmission company" shall be con- 2574 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. strued to mean any company owning, leasing or operating for hire any telegraph oi, telephone line; the term "freight" shall be construed to mean any property trans- ported, or received for transportation, by any transportation company; the term "pub- lic service corporation" shall be construed to include all transportation and transmis- sion companies, all gas, electric light, heat and power companies, and all companies authorized to exercise the right of eminent domain, or to use or occupy any street, alley or public highway in a manner not permitted to the general public; the term "person" as used in this article shall be construed to include individuals, partner- ships and corporations, and to include the plural as well as the singular number; the term "bond" shall include all certificates or written evidence of indebtedness issued by any corporation and secured by mortgage or trust deed. The provisions of this ar- ticle shall alv/ays be so restricted in their application as not to conflict with any of the provisions of the Federal Constitution and just as if the necessary limitations upon their interpretation had been herein expressed in each case. Mr. Braxton: At the beginning of line 18 I move that this insertion be made: The term "rate" shall be construed to mean rate of charges for any service rendered or to be rendered; the terms "rate," "charge," and "regulation" shall include joint rates and joint charges and joint regulations, respectively. When we first drew this article we supposed and we still think that there can be no reasonable doubt that "rate" woula include joint rates. I find that that question has been raised and, so far as I know, it is still open, whether the power to fix rates is broad enough to include the power to fix joint rates. I believe that question is now beiing litigated in Arkansas. In order to put it beyond peradventure we think it best to offer this amendment. The amendment was agreed to. Mr. Braxton: In line 32, I move that the word "include" be stricken out, and in lieu thereof be inserted the words "construed to mean." My reason for making that change is this: As it stands now, we say that the term "bond" shall include all certificates or written evidence of indebtedness issued by any corporation and secured by mortgage or trust deed" ; but it does not say that it is exclusive. A number of the life insurance companies issue a kind of insurance in the form of a bond. It is not intended that that sort of a bond shall be included in this definition. In the way it is now placed it is not exclusive. To correct the trouble we suggest that the word "include" be stricken out and the words "be construed to mean" be inserted, so that it will read "the term 'bond' shall be construed to mean certificates or written evidence of indebtedness issued by any corporation and secured by mortgage or trust deed." The amendment was agreed to. In line 34 we find that we have omitted the definition of the term "frank," which is used in the section on free passes. I move that this insertion be made: The term "frank" shall be construed to mean any paper issued by transmission or transportation companies entitling the holder to any service from such company, free of charge. The amendment was agreed to. Mr. Claggett B. Jones: On page 1, Section 1, line 13, I move to strike out the words "and also any sleeping or parlor car company." My reason for the amendment is that sleeping or parlor cars are not, in any sense of the word, any part of a transportation or transmission company. As I understand the matter, they are entirely separate and distinct. As a further reason for the amendment, there are no charges against these sleeping and parlor car companies on account of discriminations made against any particular State or section. Their charges are uniform all over the country. It seems to me there is no reason why they should be put in as a part of this system of transportation and transmission companies. Furthermore, it seems to me, gentlemen of the committee, it is absolutely necessary to eliminate this sleeping and parlor car system from this DEBATES OE THE COXSTITI'TIOXAL COXVEXTIOX OE VIEGIXIA. 2575 report. The only means these companies have to protect themselves against parties vhom they do not vrish to occupy their parlor cars or sleeping cars is hy their rate of charges. For instance if a negro applies for a berth in a sleeping car the only means in the world these people have to protect themselves would be by making the charges so great as to make it almost impossible for them to obtain admission to the sleeping car. Furthermore, if at an:r time, anj^ reason should arise why these parlor car or sleep- ing car companies should be put under the operation of this law, on page 10, line 99, an amendment was offered to this report by the chairman of the committee to the fol- lowing effect: ''Or that the prescribing and enforcing of rates, charges or classification of traffic of public or quasi-public corporations other tham those hereinbefore set forth." So that the Legislature, in case any complaint should arise against these companies, would have the right to prescribe rules and regulations which would compel these com- panies to regulate their business in accordance with the spirit of this report. I hope. llv. Chairman, and gentlemen of the committee, that the striking out of these words will meet with the approval of a majority of the Committee on Corpora- tions, and v\-ith the approval of this Committee of the Whole. It is suggested by my friend from Richmond (]Mr. ]\Ieredith) that the common carrier can protect itself by the "Jim Crow" car law in our State; but these people, not coming under the operation of that law, are absolutely powerless to protect them- selves by a similar method. ]\Ir. Braxton: In connection with this matter I will say that so far as I am per- sonally concerned, I am indifferent as to whether the a.mendment is adopted or not. The reason why the Pullman Car Company was included here was not so much because of any information we had of present existing abuses, but merely in order to arm this commission with the power to deal with those abuses if they should hereafter arise. The language of Section 4 has been amended in that particular because I had an iiatima- tion that such a motion as this would be made, and in view of the possibility of its pass- ing I introduced the amendment to put it beyond all doubt that the Legisla-ture, if you should now exclude the Pullman Car Company, will have the right hereafter to include them in the operation and control of this corporation commission. I will state frankly that, so far as I knovc, I have heard of no existing abuses. I do not think it would be well to place it so that if those abuses should arise, the power to regulate their rates and to control them could not be conferred upon the commission. As I understand the wording of the report it is in such shape now that the Legislature can extend the operation of the commission to the Pullman Car Company hereafter, if it be omitted now. The reasons why the Pullman Car Companj^ desires not to be named, I may frankly say, do not strike me as a very controlling consideration; but still if it should be the pleasure of the committee to omit them, I do not think there would be any danger to the measure. So far as I am concerned, I do not care whether it passes or whether it does not pass. I am perfectly willing to have the house deal Vvith it as it cho-oses. ^.iT. R. L. Gordon: Is there any good reason why this great corporation, known as the Pullman Car Company, should be taken from under the operation of this commis- sion which controls all the other corporations of the State? Mr. Braxton: I can only state that I have heard the reasons given by the repre- sentatives of that company- and, personally, it does not seem to me the company would be exposed to the dangers v^■hich they seem to fear. That, however, is a mere personal judgment. I do not think the State will be exposed to any particular danger if they are omitted. That is the reason why I say I am perfectly willing to leave it to the good judgment of this bodA" to either put them in now or to strike them out and leave it so the3' can be put in hereafter. I do not know that I can say anything more on this sub- ject. 3.1r. Barbour: I would like to ask the chairman of the committee if he is certain that the Pullman Car Company is a public corporation or a qua.si-public corporation? 2576 DEBATES OE THE CONSTITUTIOi^AL CONVENTIOls^ OE VIRGINIA. Mr. Braxton: I think so. I do not think there can be any doubt about that. As I understand it the Pullman Car Company, or any other sleeping car company occupies a unique position. They are neither a transportation company nor an inn-keeper. They occupy a position somewhere between these two, and their liabilities are somewhat dif- ferent from either. That it is a public or a quasi-public corporation I think there can be no doubt. I think you will find that the courts have held they are not a transportation company. One of the objections made by the gentlemen representing this company was that they feared being defined as a transportation company in this article might change their legal status. In my judgment, that is not so, as the definition is merely conven- tional and one applicable to this particular article. The other objection is that it would hamper them in their efforts to prevent clashing between the negroes and the white people. I cannot help thinking that they are mistaken. That is a practical question, how- ever, that I cannot advise the body about. Every man must judge for himself. I do not ask that this amendment be adopted, because I do not think that the reasons for it are controlling; but I wish it perfectly understood that I do not object to its being adopted. I neither ask for it nor oppose it. Mr. Cameron: I desire to ask the chairman of the committee, with his permission, and that of the Convention, if the distinction dravm in regard to a sleeping car com- pany would not apply with equal force to an express company, which is included? Mr. Braxton: I think not, because I think there are abuses in the express com- panies that have been complained of. Mr. Cameron: Does the gentleman state, as' a. fact, that there are no abuses con- nected with the administration of the Pullman Palace Car Company, or merely that he has had none presented to him as chairman of the Committee on Corporations. I think investigation will develop the fact that there are abuses, and that there are discrimina- tions. Hov\^ far they can be reached^by any State autbority I do not know- but I know they exist. For instance, if you travel from Richmond to Jacksonville on any of the three roads they will charge you $5 for a sleeping car ticket for a ride of about nine- teen hours. If you go from here to New York, leaving here at half-past six in the evening and arriving there about eight in the morning, they charge you $2, while the same service in the West will cost you $1.50. As to the matter referred to by my friend who offered the amendment, regarding the exclusion of objectionable people from these cars — I use these cars a great deal, and I very rarely have been on one of them that that class of people did not have berths on them. Whatever the charge may be, it is not high enough to exclude those of that class, who either by virtue of habit or by virtue of circumstances, desire to have that luxury. To push his idea to a logical conclusion would be to say that this company should be allowed to charge any excess rate against the whole white population of the country, on the plea that they meant to exclude negroes from the use of their cars, which, as a matter^ of fact. They do not do. If there is any justice, if there is any reason for the appointment of this commission, and for conferring upon it the powers which have been conferred upon it in this report, it applies to this company. If there is a monopoly in the United States which disregards every right and every interest of the people it is that which operates these sleephig cars over the various railroads of this county, as dictators not only to the travelling public but to the rail- road corporations themselves. The chairman of the committee has mentioned that there are various sleeping car companies. There is onl}'' one. The Pullman Car Com- pany has absorbed the V/agner, and in absorbing it has divested itself of the least con- cern for the convenience and rights of the travelling public. It exercises its own sweet will without regard to either. I do not know, as I said before, how far the pov^^er of the State can be extended to the regulation of this company which attaches its cars to the regular trains of the common carriers and passes through the State. I am not in favor of striking out this clause which, for the first time, places the hand of the State upon this company, and I hope that an effort will be made to regulate it so far as the power of the State extends. I hope the amendment in this regard may not be considered favorably. DEBATES OE TEE COXSTITUTIOMAL CONVENTION OF VIRGINIA. 2577 Mr. Claggett B. Jones: It has not been my misfortune to be situated similarly to the gentleman from Petersburg, doubtless due to the fact that I have not used the sleep- ing cars so extensively as he has. For myself, I do not recollect ever to have seen a negro on a sleeping car. I do not doubt for an instant that they go there, for the gentle- man says so, and that is sufficient evidence, to my mind, that they do go there; but I Yyiill presume that those occasions are very few and far between. Certainly I have used them time and time again between Richmond and New York, and on two occasions between Baltimore and Denver, and never yet have I seen a negro in one of them. Our friend from Petersburg says he is charged $2 from Richmond to New York. It does not strike me that that is an unusual or unjust charge for a sleeping car berth from Rich- mond to New York under the circumstances. Mr. Cameron: The gentleman misunderstands the application of what I said. You leave here at six and a half in the evening and get to New York about eight o'clock in the morning, and you are charged $2, passing through a certain territory to the north of us. If you leave Richmond at half-past two o'clock for Jacksonville, arriving there a few minutes later in the morning, you are charged $5 for the same accommodation through the southern territory. Mr. Claggett B. Jones: I cannot see why the argument is applicable in this case. If it were a double company I could well see how his argument would apply. The gen- tleman has just stated that this company had a monopoly, and it is the same company that charges him ?2 from Richmond to New York that also charges him $5 from Rich- mond to Jacksonville. Therefore it seems to me that his argument is not applicable to the amxCndment. Mr. Cameron: I hardly know what language to use to convince the gentleman. If, for the occupancy of the sleeping car for nearly the same interval of time $2 is charged in one direction and $5 in another direction it does seem to me that is a manifest dis- crimination against the section in which the larger charge is m.ade. The fact that it is made by the same company emphasizes the discrimination and furnishes the means to arrive at a remedy. Mr. Claggett B. Jones: It seems to me, Mr. Chairman, that if what the gentleman says be true, there is an unjust charge; but I can well see that there are reasons why that should be so. You take the enormous trafiic to the North where these cars are constantly crowded, and where there is a demand for a great number of them and con- trast it v/ith the limited travel of the South, where there may be but few passengers, as in many instances there are, and you can well see v/hy this company would have to charge a higher rate in one direction than in another. Everybody knov,^s, Mr. Chairman, that a man who does a very large business can do his business at less expense and at a less percentage of profit than the man v/ho does a very small business. It depends upon the circumstances by which the man is sur- rounded as to what he must charge, therefore it may be a perfectly justifiable thing to charge $5 in one case and $2 in the other. I would say, if the conditions were similar, that certainly $5 for a similar distance would be very unjust and possibly a discrimination against one section in favor of another; but you have to take all the circumstances that surround these two different cases in order to decide what would be just and what would be unjust. It does seem to me, Mr. Chairman, there would be something in that in which my friend from Augusta (Mr. Braxton) seems to think there is nothing, that if you put this sleeping and parior car corporation in this report along with the transportation and transmission companies, you run the risk of denominating it as a transmission or trans- portation company. This amendment, as stated by the gentleman trom Augusta, ex- pressly provides that vvhile they may be regulated, and, if there is any complaint against them, legislation may be enacted which will put them on exactly the same footing with the other corporations which are embraced in this report. Therefore, it seems to me, this matter might be left and should be left to the future action of the Legislature. 2578 DEBATES OF THE COJ^STITUTIONAL CONVENTION OF VIRGINIA. The Chairman: The question is upon agreeing to the amendment offered by the gentleman from King and Queen (Mr. Jones). The amendment was rejected, there being, on a division, ayes, 29; noes, 34. The Chairman: Are there any further amendments to be offered? If not, that completes the consideration of the report. Mr. Braxton: Mr. Chairman, the only other amendments that we have in mind are some mere verbal changes, very simple and very few in number, not over two or three at the outside, and they will not affect the sense of the matter at all. The Committee on Corporations has not had time to word these amendments to their entire satisfac- tion, and without detaining the Committee of the Whole longer, we ask leave to make the changes when the report is considered in the Convention. I therefore move that the committee rise and report the bill as amended to the Convention. The motion was agreed to and the committee rose. (Applause.) The President having resumed the chair, Mr. Ayers reported that the Committee of the Whole had had under consideration the report of the Committee on Corporations, and, having completed the same, had directed him to report it back to the Convention with amendments. PREAMBLE AND BILL OF RIGHTS. On motion of Mr. Green, the Convention resolved itself into Committee of the Whole for the further consideration of the report of the Committee on the Preamble and Bill of Rights, Mr. TurnbuU in the chair. The Chairman: The question is on agreeing to the amendment offered by the gen- tleman from Albemarle (Mr. Lindsay). Mr. Barbour: Mr. Chairman, when my remarks upon this resolution, as reported from the committee, were interrupted som-e weeks ago, I had undertaken to state to the Committee of the Whole what my personal connection was with this resolution; that I could not claim to have originated the idea; that I had no connection with it whatso- ever except that, having been convinced that the principle announced in it was a just and proper one to be inserted in the Constitution, I had then attempted to put it into such language as to make it effective if the committee and the Convention should see fit to coincide with my views upon that matter. I was attempting to show that the measure as reported is not a legislative enactment, that it is in no sense a piece of legislation, that so far as its being legislative is concerned, it would be totally ineffective as a piece of legislation, but it merely fastens in the Constitution a principle. One element of the principle is neighborhood government in the matter of the retail sale of liquor. The other element of the principle is that those who desire to obtain a license for the retail sale of liquor must convince the granting authority that the neighborhood desires it. I was then interrupted by a query of the gentleman from Richmond (Mr. Pollard) as to why it was that the committee had reported in favor of requiring the signatures to this petition of a majority of the voters voting at the last preceding election, instead of requiring that it should be signed by a majority of the registered voters. I had stated that one reason for it was that I thought it was founded in sound public policy, as it would be an inducement to a certain class of citizens who do not take that active part in political matters which they should take, by abstaining from voting; that they would participate in elections if they were required to do so in order to have their votes counted on this question of granting licenses. It seems to me it would be a desirable result if we could induce that class of citizens to take part in our municipal and local elections. The other reason was in order to arrive at a certainty, so that a definite means might be provided by which it could be known whether a majority of the sig- natures have been obtained or not. Every one who is familiar with registration books in the counties knows well that there are sometimes three or four times as many names registered on the registration books as there are qualified voters, and it is almost impos- DEBATES or THE COXSTITUTIOXAL COXYEXTIOX OF VIEGIXIA. 2579 sible to pick out the qualified voters from those who have lost their right to vote; so if you take the registration list as a guide, it would require almost a unanimous petition to obtain a license, whereas, if you take the persons who voted in the last preceding election all that is necessary then is that the court, w^hen passing on the petition, should have the poll books of that election before it, and it is an easy and a definite means of ascertaining w^ho are entitled to pass upon this question. I v/as drawn out to state the reasons for this provision somewhat out of the order in which I had intended to explain it, but as the inquiry of the gentleman from P.ich- mond brought it out, I thought it was as well to explain it at that time as at any other. Mr. Pollard: The gentleman seems to have misunderstood the inquiry I made. The gentleman from Culpeper has been arguing that his provision insured majority rule in each precinct. By my question I intended to bring out the fact that it insured minority rule instead of majority rule; that inasmuch as you provided for a majority of those who voted at the last preceding election, and inasmuch as the number voting at the last preceding election would always be less than the total number, a majority of that num- ber would always be a minority of the community. I used as an illustration at that time one of the precincts here in the city of Richmond which, with about 500 votes in it, only cast about 40 votes on one general election. In that case 21 voters v/ould be able to se- cure a bar-room in that precinct, and that would be minority rule. They might be able to get a bar against the protest of a vast majority of the citizens of that precinct. Mr. Barbour: It would be a majority, Mr. Chairman, of those who felt enough con- cern in public matters to exercise the right of suffrage, which I think is a duty as well as a privilege of those who have it. Mr. Pollard: It would not be a majority of those who desired to express themselves on that particular question, but a majority who voted on some other question before. Mr. Barbour: Just in the same way, you cannot make a man register. Your kid- glove Democracy here in Richmond might refuse to register, and then in the same way you have to prescribe some method in which they can qualify themselves for the exer- cise of this right. Your mode is to require them to register. My mode is to require them to register and to exercise their right of suffrage in other local matters. Mr. Chairman, in discussing this matter, it is a fact which is recognized by a great many friends of temperance reform that one of the things they have to fight is a spirit of intolerance in their ranks. An idea seems to have gotten out, in consequence of this intolerance on the part of some friends of temperance reform, that every movement having temperance reform for its object is impelled by some spirit of intolerance. I ask the members of this committee not to be influenced by this idea, but to look at the merits of the proposition as they are presented to you. Do not go off half-cocked and say that you will turn this down on account of intolerance. Look at the proposition yourselves. Exercise your own judgment upon it and see if* it is a reasonable, just and proper principle; and if it does recommend itself to your judgment, then have the man- hood to stand up and put it in the Constitution. If it does not, reject it. All we ask here is a reasonable consideration of this measure. No one, as I understand, denies that saloons are a source of great evil. I will' not consume the time of the committee by undertaking to argue that matter. It is con- ceded, but as soon as you undertake to regulate them by other means, without reference to the reasonableness of the means imposed, w^e are met by the idea, "You are narrow- minded; you are trying to attend to other people's business." If it is an evil, and it is conceded that saloons are an evil, is it not as much the duty of this Convention to provide for its regulation as to provide for the regulation of any other evil that exists in the community and in the State? If the saloon is an evil, is it not just and wise that before the State permits a saloon to be erected in any com- munity, that community should be consulted upon that subject? Is it wise that a sa- loon shall be put in a neighborhood over the protest of the citizens of that neighborhood? Gentlemen, is it just that any saloon shall be erected in any community against the 2580 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. wishes of a majority of the people of that community? And if it is an evil, as seems to- be generally conceded, should not the State go further and say that before it puts this evil upon the people, or this instrument which is cause of so much evil, it will assure itself that a majority of the people want it? Is there anything unfair or unreasonable in that. And yet that is all that is provided for in his resolution. Everyone knows, Mr. Chairman, that our present system for the granting of licenses is a total failure. It has absolutely failed, so far as regulating the liquor traffic is con- cerned, and the only attempt which the Legislature has made to regulate it is by the so-called local option law. The local option law — and I want gentlemen of the commit- tee to pay special attention to this, because it was to a great extent the ground upon v/hich the gentleman from Accomac (Mr. V\^estcott) attacked it — is not a regulative measure at all. It requires the community to exercise the option between absolute prohibition and an unlimited number of saloons in every community. There is no mid- dle ground. Local option, if carried, is total privation. Liquor cannot be sold in that community at all in any quantity or under any circumstances. It is just along those lines that the principle announced in these resolutions furnishes relief. It is where respectability comes in. It permits every community, every neighborhood, to regulate for itself, not only the question whether liquor will be sold at all or not, but it also goes further, and permits the citizens and the neighborhood to say who shall sell it, where he shall sell it and how many saloons there shall be in the neighborhood. We have to take conditions as they exist, and not as we would like to see them. We must recognize the necessity for liquor in a great many cases. We must recognize the fact that men like liquor, that a great many will have dt, and that they cannot get it under the law, they will get it against the law. The best we can do in this matter is to regulate it to the very best of our ability, to carry the law as far as we can with safety, that the public conscience and the public sentiment upon this matter may be gradually educated. Local option, if carried, prohibits the sale. I may be willing that a particular man may sell liquor in my community, because I know from experience that he is a fit and proper man for the sale of liquor, and I know such men. I have in my mind's eye now certain men, and if all saloon-keepers were like them, there would be no trouble what- soever about this question of the sale of liquor; but it is because all are not like them that the trouble arises; and this will enable every community to govern itself in that matter, to pass upon the qualifications of each applicant for a license as to whether he is a proper man for the sale pf liquor and whether or not the place at which he pro- poses to sell it is a proper place. Those are matters in which the people of the com- munity are most deeply interested. It is purely a matter of opinion at last, and the judge is not as good an authority to pass upon that question as is the general sentiment of any community; and yet I have known occasions when citizens would undertake to pe- tition courts against the granting of license at certain places, and I have seen the courts entirely disregard them and throw them out and refuse even to consider them, stating they were not holding a local option election, but v/ere passing on this matter under the law; that the law said the licenses should be granted if the preponderance of the evidence showed the place to be a proper place and the man a proper man; and I have never yet heard of any judge of any court who could lay down any rule by which his successor could determine whether the man w^as a proper man or the place a proper place. Those are seme of the reasons which induce us to advocate this measure before this committee. This measure has been criticised to some extent. It is first criticised as being a statute, and then it is criticized because it is not a statute. That is because we do not go into particulars as to whether the petition shall be sworn to or not, whether there shall be a local option election, whether these lists shall be posted at the courthouses, and so on. All that is matter of detail, and in no way affects the principle we are trying to engraft in the Constitution, which is that no license shall be granted without the signatures of a majority of the citizens v^^ho have qualified themselves to pass upon this question. DEBATES OF THE COXSTITUTIOXAL CONVEXTIOX OF YIEGIXIA. 2581 The principle in no way trenches upon the right or power of the Legislature to pre- scribe additional conditions. Gentlemen say they are unwilling to submit this matter to petition. This resolution and this principle do not inhibit the Legislature from pre- scribing exactly the same conditions which they now prescribe, and the only effect of 11 will be that whatever conditions they do prescribe, or whatever conditions exist now, in addition to those conditions, and as one of them which the Legislature is bound to prescribe, is this one simple one. The Legislature might go further and require it to be signed by three-fourths before the license should be granted. This does not prohibit that. On motion of Mr. Lindsay the committee rose and the President resumed the chair. AFXeRNOON SESSION. Mr. Blair: I mo\e that the Convention adjourn until to-morrov\^ morning. Mr. Pollard: I move as a substitute for the motion of the gentleman from Wythe (Mr. Blair) that the chair be vacated until 4 o'clock this afternoon. The President: The gentleman from the city of Fachmond (Mr. Pollard) moves that the chair be vacated until 4 o'clock this afternoon. All those in favor of the motion will say aye. The motion was agreed to and the Convention took a recess until 4 o'clock P. M. AFTER RECESS. The Convention reassembled after the expiration of the recess. PREAMBLE AMD BILL OF RIGHTS. On motion of Mr. Green the Convention resolved Itself into Committee of the Whole for the further consideration of the report of the Committee on the Preamble and Bill of Rights, Mr. Turnbull in the chair. Mr. Barbour: Mr. Chairman and gentlemen of the committee, I feel very keenlj^ the disadvantages under which I speak this afternoon, both in having my remarks on this subject cut into three or four sections and the disabilities under which I labor in attempting to speak at all. I am extremely hoarse, and I repeat the request which I made this morning that the members will not indulge in conversation any more than is absolutely necessary. It only adds to the labor of the speaker, and I hope the mem- bers will show me this courtesy. At the time I suspended my remarks I was attempting to point out the difference between the principle which is embodied in this resolution, and the local option princi- ple. As I said then, local option is prohibition, absolute prohibition of the sale of in- toxicating liquors. The principle embodied in this resolution is not prohibition at all. It is neighborhood control and neighborhood regulation of the liquor trafRc. For in- stance, if any neighborhood or if any county, or any district in any county votes in favor of local option that means prohibition of the liquor traffic, wholesale or retail in that county or magisterial district. Whereas under this resolution it does not necessarily mean prohibition at all. It means just as many bar-rooms as the people in the commun- ity v/ant, and it is in behalf of the people who want it. A man might be willing to Tiave liquor sold in his neighborhood provided he could get it into the hands of a man whom he considers a proper man, or provided he can get it located at a place which he considers a proper place. This puts it witliin the power of every citizen of every neigh- iDorhood in the State, outside of the cities, to pass upon the question as to the fitness of the man to sell liquor and as to the fitness of the place wherein he proposes to sell it. So that it is absolutely within the control of each neighborhood whether it will be sold there at all. If it is sold then they can say to what extent it may be sold, where it shall 2582 DEBATES OF THE CONSTITUTIONAL CONVENTION OP VIRGINIA. be sold, and by whom sold. It is absolutely flexible in that connection. It puts it ab- solutely in the control of every community to regulate it in that way. So, I say it is reg- ulation of the liquor traffic as opposed to prohibition under the local option laws now exist- ing in the State of Virginia. At the same time the resolution in no way interferes with the operation of local option. If any district in any county votes for local option then there is nothing left. You might get up a petition signed by every man in the county and there could be no license granted there, because they have said they do not want it, under any conditions, sold by anj^body or at any place within that district. The committee, when the resolution was first adopted by it, did not think it interfered with local option in any way, but some criticism was raised on that point, and in order to quiet it, in order that this resolution might shov/ on its face that it in no way operated to interfere with the exercise of the right of local option, which is total prohibition, it was expressly stated, and is now expressly stated in the third section of this article, that it shall in no way interfere with the authority of the Legislature to adopt local option laws, nor shall it in any way interfere with any local option lavv^s which are already in force and effect. So it leaves the discretion of the Legislature in that respect absolutely unhampered. Under the present laws, the authority to pass upon the suitableness of the man and the propriety of the place is left to the judge who grants the license. He Has that matter to pass on. I call the attention of the committee to the fact, that it is more essential, under our new judiciary system to have this local control than it is under the old county court system, because under the old system there was a county judge who lived in each county, and he at least knew something about the local conditions. He, as a citizen of the county, could gather knowledge as to the character of these places and the character of the men. That was a safeguard. But under our new judiciary system where we have only circuit court judges to pass on this, matter, even that safeguard will be thrown away. A judge will be a stranger in a community where he goes to grant licenses; he will know nothing about local conditions, but will have to be gov- erned absolutely by evidence introduced before him. You would put upon any man w^ho opposed the granting of a liquor license in any community the absolute necessity of attacking the character and standing of an applicant for a bar-room license in that community. So, I say that this system is much more effective than local option, because it allows of greater flexibility; and in that respect the operation of it must necessarily be good. What harm can be done, what harm can result from it? You hear men say that great harm will result from the adoption of this measure.. I would like to know what harm can result from it. In addition to all the requirements now provided by law and in addition to the evidence to be furnished to the court, we say you must also furnish him with specific evidence of the desire of the people of the community that there shall be a bar-room in their midst, and that they shall sign a petition stating that fact to the court. Certainly no harm can result from this that does not already result from the bar-room, because this is merely an additional requirement. Some objection is raised to the measure because cities have been exempted from the operation of the principle oT herem announced. I think that was a wise exemption for the reason that the conditions in the cities are — and as reasonable men we must recog- nize the fact — materially different from the conditions in the counties, not as the gen- tleman from Accomac said, on account of police protection, but from the very fact that men do not reside in the districts where these licenses would be granted in cities. A man has his place of business in one district, and he might be acquainted with the fit- ness of men in his. neighborhood to conduct the liquor business; but his residence is in another district, and he, by reason of that fact, has no right to say one way or the other as to whether his next-door neighbor is a proper man to engage in the liquor traf- fic or not, because, not being a resident of the district in which the bar-room is sought to be put, he is not entitled to sign a petition either for or against it. Another objection which has been raised to this measure is that it is totally unpre- DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIEGIXIA. 2583 cedented either in the legislative or constitutional history of the country. I am sure my friend from Accomac did not know that that statement was wrong or he would not have made it but the fact is that it is a mistake. In the State of Mississippi they have this law now. It operates right along with the local option law. They both work side by side. There is no friction between them, and there is no difficult3^ about the enforcement of the laws. I will call the attention of this committee to the fact which I saw stated in the Washington Sentinel, the official organ of the liquor dealers of the District of Co- lumbia, that in the State of ilississippi, prohibition under those laws meant prohibition and local option meant local option, and that restriction of the liquor traffic under this regulation meant restriction; and for that very reason, the editor of that paper — in an editorial which I read some months ago, and which I intended to read to this Conven- tion, but v"hich I have misplaced — called on the bar-keepers of this State to oppose that resolution, because he said it meant exactly what it said, and accomplished the object for which it was enacted; that is, the regulation of the liquor traffic. He stated the remark- able fact that there was more liquor sold in prohibition Maine than there was in the State of Mississippi, under the beneficent effect of this law. I call my friend's attention to the fact that in the great State of ]^.Iissouri, one of the most progressive in the United States, they have a very much more stringent principle than that which is announced here, and that is that no liquor license can be granted until a petition for it is signed by a majority of the tax-paying voters of every precinct in the State. That is much more stringent than the resolution which has been reported from this committee — not voters; but a majority of the tax-paying voters and the guardians of infants wno own property in the district. It requires that there shall be a majority of both of those classes, of the taxpaying voters a.nd the guardians of infants who own property in the district. The State of Texas has a constitutional provision requiring the Legislature to pass laws giving the inhabitants of every election district in the State opportunity to pass at stated times, upon the question of the sale or non-sale of intoxicating liquors. Ken- tucky also has a similar constitutional provision, I believe. So that objection does not hold as to this proA'ision. I novs- desire to read to the committee an article which appeared some time ago in the Alexandria Times, and which is a fair sample of the character of objections which are raised to this provision. It says: "The Constitutional Convention has done much to gain the ill-will of the people. It has probably done much to gain approval, when the people come to Imow what has been done; but it will bring discredit upon its member- ship and the Democratic party if it adopts the prohibition clause introduced by Mr. Bar- bour. The result of such a clause would be to transfer the liquor traffic from the hands of good and respectable law-abiding men to law-breakers, who, of necessity, would be of a disreputable class. It would rob the State of thousands of dollars of revenue, and, while not crediting the evil sought to be remedied would increase the sale of impure liquor and add to rather than prevent drunkenness." That is the character of the objections which are raised to this resolution. These matters are stated as facts, with not one iota of argument back of them to stibstan- tiate them. There is nothing in this resolution which gives any foundation for such criticism, unless we assume that the majority of the voters in every district in this State are corrupt and want bar-rooms to be run by such a class of citizens, because a bar- room cannot be run unless the bar-keeper is endorsed by the majority of the citizens. If v-e grant that, then our whole theory of government is at fault, and we have no business here. The people are incapable of self-government if they are not capable of passing on the question as to whether or not a given man shall operate a bar-room in their neigh- borhood. T\Tiat is there that comes more closely home to the individual than this ques tion of bar-rooms? What is it that he is better capable of judging about and that he will be more apt to exercise his judgment in regard to than the right which this provision gives with a view single to the benefit of the community? This shows to what extent these 2584 DEBATES OF THE COISTSTITUTIOXAL CONVENTION" OF VIRGINIA. people are driven in their opposition to this wise and just principle, in their hunt for seme grounds upon tvhich to oppose it. Now, gentlemen, the next question that arises is. Do the people want this provision? It is unnecessary to refer the members of this Convention to the large number of peti- tions which have been presented in reference to it. I have seen it stated that the num- ber of petitions which have been presented to this Convention from every nook and cor- ner of this Commonwealth, is unprecedented in its history. I understand that there are about 20,000 voters in this State who have, under their own signatures, petitioned you to adopt this measure. Are their wishes worthy of consideration? Are they to be "v/histled down the wind "? Do they know what they are talking about? I ask the different mem- bers of this Convention to look at these petitions and to especially look at the petitions from their own counties, and see the character of the men — because they must know them — who are asking for this measure at your hands. Are they actuated by any selfish motives in this matter? What is actuating them? What is their objection in asking it? is it to accomplish any private revenge, or is it to accomplish any private benefit, or are they actuated by motives of public good and patriotism, and trying to elevate the stand- ard of morality and manhood within your State? The very character of the names v/hich you will find upon those petitions will be a sufficient ansv/er to that query. I read from a memorial addressed to this Convention by the Anti-Saloon League on this question. It says: While it is needless to remind you of the hundreds of petitions which have come up to you from all classes of the Commonwealth urging the insertion of this principle in the Constitution, we may, perhaps, be pardoned for calling 3^our attention especially to the significance of the different kinds of petitions presented to you. While many of these petitions were signed by individual voters, numbering thousands, some were signed exclusively by firms, representing great commercial and manufacturing interests, and numbers of employees; others v/ere signed by the faculties of many of the leading institutions of learning in Virginia; and others still came from religious and educational associations, seven of which spoke authoritatively for vast constituencies. All of these petitions, v/hether signed by individuals or by firms, or by colleges, or by associations, were prompted, not by selfish interests, but by enlightened patriotism that seeks only the welfare of the whole State. I ask each on© of you to ask yourself the question whether or not that statement, contained in the mxemorial, is true or not? What is the motive of the men v/ho are ask- ing this measure at your hands? We all know, in the- bottom of our hearts, that the statement is true and correct. This question has been raised, Mr. Chairman, and it has been raised by people who are not going to cease their agitation of this question until it is settled. It has got to be settled. . The question and the only question which con- fronts us now is whether or not v/e are going to aid them to settle it or are going to say to them, we will not aid and not permit them to settle it just yet, because chat is as far as we can go. No matter what your vote may be on this question I v/ill tell you that the people of Virginia are going to have this matter settled before they are done with it. I will read again from the same memorial along these lines. It says: Here undoubtedly is an instance verifying the v/isdom of the words of a president of the United States whom v/e all revere: Real issues cannot be manufactured by the leaders of political parties, and real ones cannot be evaded by political parties." The real political issues of the day declare themselves, and come out of the depths of that deep which we call public opinion. In a democracy it is neither safe nor right to go against public opinion, when that public opinion is enlightened, rational, honest, practically unanimous, and prompted only by the common weal. Conscience has hardly m^ore claim upon the individual than such public opinion has upon the Democratic statesman, particularly so when his own private judgment cannot but approve the wis- dom of the measure desired by the people. For who among you will challenge the naked principle that a voter has a right to say whether or not a saloon shall be planted near his home? DEBATES OF THE COXSTITUTIONAL CONVEXTIOJs^ OF VIRGIXIA. 2585 Are we, by voting down this provision, going to keep this matter alive, as a political question in Virginia, as. you surely w^ill do; or are you going to refer the whole matter to the people themselves for direct and immediate settlement, without any unsettling of political alliances or political affiliations in Virginia? That is all that this resolution does. It does not fasten this principle in the Constitution. It merely says that this single question shall be submitted to the people of Virginia directly. The committee has not' recorhmended to the people of Virginia that this principle should be fastened in the Constitution. We simply say that we put it in proper form so that, if adopted, it will be legal and effective. We refer the whole matter back to our principals for their ratifi- cation or for their rejection, unincumbered by any other question. If you are considering only the good of the Democratic party and are seeking noth- ing higher than that, I appeal to you to know whether or not this is not a wise course simply from that standpoint? Let the people pass on this question directly. If they do not want it they will vote it down. If they do want it they are entitled to have it. Is there any gentleman on the floor of this Convention that will deny the proposition that if the people of Virginia want this measure they are entitled to it? This resolution, as reported, presents that question directly to them, unincumbered by any consideration — just the narrow question, do you want this provision in your Constitution or not? I tell you it is the only way to get rid 'of this question, to get rid of it in a way that you wall know vvill be satisfactory to the people, because there will be no appeal from that decision. You will knov/ v/hen it is made that it is a measure they want, because it can only be adopted by their vote. Do we want to throw it out as a matter to be referred to the members of the House of Delegates. Should the people be compelled to turn down a good man for the House of Delegates merely because his views do not coincide with their views on this question? Mr. James W. Gordon: Is it the idea of the committee that this provision, if adopted, should be submitted separately to the vote of the people, no matter vv^hat shall he done v/ith the body of the Constitution? Mr. Barbour: Yes, sir. This is the report of the committee on this subject: In view of the widespread interest which the discussion of the subject, and its con- f^ideration by the committee have excited in the State since the assembling of this Con- vention, and of the fact that it received but little or no public discussion prior thereto, in order to insure that this principle may not become a part of the Constitution against the wishes of people who will be affected by it, and that the people may express their wishes on this subject unhampered by other provisions of the Constitution or any other considerations of any kind, it is recommended that this clause be submitted separately to voters of the territory affected by its provisions, who may be qualified to vote under the new Constitution, either at the same time that the new Constitution is submitted for ratification, or at the first election held under its provisions. There was some dissatisfaction v/ith merely that report on the subject, without the same idea being embodied in the resolution. In order to meet that objection, the com- mittee have recommended, as a fourth clause to this article, the following section: The above provisions shall not go into effect nor become a part of this Constitution until and except the same be submitted to the qualified voters under this Constitution residing v^ithin the limits of the State affected hereby, at a separate election held for the purpose, as hereinafter provided in the final schedule, and be ratified by a majority of those voting at said election. W^hat objection can there be to that provision? Is it not the very essence of Demo- cracy? Does it not provide for a settlement of this vexed question, and for its final set- tlement, and for a settlement in a way that we know will be satisfactory to the people w^e represent? Because we do not undertake to pass upon it ourselves, but refer the whole matter back to them. These 20,000 voters who have asked for this petition have certainly made out a prima facie case of a desire on the part of the public for the enactment of this clause. 1G3— Const. Deb. 2586 DEBATES OF TPIB CONSTITUTIONAL CONVENTION OF VIRGINIA. They have certainly presented a case sufficient to justify the Convention in providing that it shall be submitted to the voters. Whatever may be our individual opinions on it as citizens as to its v/isdom, it is our solemn duty when this resolution has, been asked for by 20,000 voters of the State of Virginia, and by a class of voters which will rank with any that have ever asked for the adoption of any provision into the Constitution, to submit this matter to them, and it is the only way it can be settled, and finally settled. Mr. Lindsay: Has there been any petition sent to this body advocating the resolu- tion in its present form? Mr, Barbour I do not know that there has, in the present form, sir. As I attempted to point out in the very start, the principle embodied in this resolution is the same as that embodied in the clause of the Quarles resolution that was asked for. It is the peti- tion idea that the majority vv^ant. All this committee has done is to make that idea legally effective in the event it is adopted. Tlie resolution, as originally presented, was not drawn, I suppose, by a lawyer. It was drawn inartistically. Any ordinary man could understand the meaning of it, but still it was drawn in such a way that it might be construed out. Mr. Pollard: You say the written request must be signed by a majority in number of the legally qualified and registered voters, registered in the town or in the precinct of the county wherein such liquors are intended to be sold, and who actually voted in the last preceding regular election? Do you mean that the same men who voted in the preceding election must be the identical men whose names are on the petition? Mr. Barbour: I think that will be the effect of that language, sir. That is a mere detail, however. The committee does not thing that is a matter of principle, and if the Convention thinks it wise to amend it in that particular, it is all right. I think the certainty which is accomplished under the resolution as drawn is better than the uncer- tainty which w^ill result from having your registration lists, which are unpurged. As we know, they go sometimes for ten years without being purged, and it would be a question of great difficulty and doubt to ascertain just how many of those people were qualified voters at a given j:ime, and how many were out. I understand there is a law, embodying some features of this, now in effect in one district in the county of Rappa- hannock in the State of Virginia, and I have understood that feature of it has given some trouble for the ascertainment of who were the qualified voters. I have undertaken, Mr. Chairman and gentlemen of the committee, to state, in my feeble Vv^ay, to the best of my ability, the reasons which have induced me to think this, is a wise provision. I think this is a matter upon which each member of this commit- tee should, and I have no doubt they will, exercise their sound judgment. If it recom- mends itself to your wisdom, then vote for it. If it does not, then vote against it; but I will tell you that the only way in which to get this matter settled is by some such pro- vision as the committee has reported; and especially do I urge you not to flout these people by such provisions as that offered here by the gentleman from Albemarle (Mr. Lindsay). Do not give these people a slap in the face. If their proposition is not just and reasonable, vote it down, but do not give them any such milk and water stuff as has been introduced here by the gentleman from Albemarle, which nobody wants, and v/hich these people who have sent up these petitions will resent. They do not want it. I thank you, gentlemen, for the attention you have given me. Mr. Quarles: Mr. Chairman, I deem it proper that I should explain my position on the measure now pending before this committee. In the early part of the session of the Convention, in June, I think it was, I offered a resolution relating to the sale of intoxicating liquors, vmich was referred to the Legis- lative Committee, of which I am a member. This resolution was introduced by me at the request of one of my constituents, which fact was stated at the time. I was not the author of it, nor did I assume any responsibility for it, which was clearly indi- cated by the manner in which it was offered. DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 258r The Legislative Committee, soon after this reference, considered the resolution and indefinitely postponed it. Shortly subsequent to this, the gentleman from Culpeper (Mr. Barbour) offered a resolution on the same subject, which was referred to the Committee on the Preamble and Bill of Rights, and that committee favorably reported the resolu- tion with some modifications in the shape of the ordinance we have under consideration. These two resolutions as originally introduced contained as their principal feature the provision, that no license should be granted to sell ardent spirits except upon the written request of majority of the registered voters of the precinct in which it is proposed to locate the business. These resolutions differ in this respect widely and materially from the ordinance we are considering. They apply alike to the cities and counties, whereas this ordinance does not apply to the cities, where most of the whiskey is sold and most of the evil resulting therefrom exists, but is confined to certain' counties and towns where comparatively but little whiskey is sold. They require, as I have stated, the sig- natures of a majority of the registered voters to a petition, in order for a license to be granted, whereas this ordinan^ce provides for the signature to a petition of a majority, in number, of the registered voters who actually voted. It will be noted that the peti- tions that have flooded this Convention, did not pray for the adoption of this ordinance, but for the adoption of the Barbour-Quarles resolution, by which name the two resolu- tions offered are known. Mr. Barbour: Will you vote for the resolution with the amendment in it, which you have indicated? Mr. Quarles: I will answer the question of the gentleman in a minute. Mr. Chairman, at a meeting of the Legislative Committee held last July to consider the first resolution offered, I then voted against that resolution on the ground that it related to a matter that should not be dealt with by a Constitutional Convention, but by the Legislature, only; and I say to the gentleman (Mr. Barbour) that after maturely considering the question from that time to the present, I am confirmed in my conviction that I acted rightly in casting my vote as I did at that committee meeting. But, sir, this ordinance, in my opinion, is more objectionable than the Barbour-Quaiies resolu- tion, as I shall show. Now, M,r. Chairman, w^e should not lose sight of the fact that we are engaged in the arduous and responsible task of making a Constitution, and not in enacting statutes; that there is a distinction between the functions of a Constitutional Convention and the functions of a Legislature. In the structure of a republican government, a written Con- stitution is absolutely essential, and its value and worth are largely in proportion to its stability and permanence. Did we not have a written Constitution binding the agents of the people and the people themselves, we v/ould have no permanent protection to the great and essential rights of the people. The weakness of an unwritten Constitution is said to lie in the fact that it is subject to perpetual change. In England her Constitution may be changed by a simple statute; but American Constitutions when made to conform to the spirit and genius of our institutions, safeguard and protect securely and con- stantly the great rights of the people without change, except by slow, deliberate and formal processes, which add dignity, firmness and stability to constitutional lav/. A stat- ute law is properly made by a Legislature, whose sessions are frequent, and it is, there- fore, frequently changed. It is manifest, then, that such matters as are not liable to fre- quent change, but should possess some degree of permanence and stability, should be put into a Constitution; and those as to which the policy of the people may change or which are being experimented with belong to the Legislature, where the laws affecting them may be altered, as conditions may change and require. It would be unfortunate, indeed, if we, disregarding the distinction between the functions of a Constitutional Convention and the functions of a Legislature, should undertake to do the work of a Legislature. Judge Cooley, in his w^ork on Constitutional Limitations, states the things, that one would expect to find in a Constitution, which are: first, a general framework of govern- ment to be designed, under which the sovereignty of the people is to be exercised by 2588 DEBATES OF THE COIstSTITUTIOIvTAL CONVENTIOl^ OF VIRGINIA. representatives chosen for the purpose; second, the qualifications of a voter; third, the checks and balances of government; fourth, the recognition of self-government; and fifth, a declaration of the rights for the protection of individuals and minorities, which he enumerates. Then he concludes with this language, to which I wish to call especial attention: Manj^ other things are found in these charters of government; but since, while they continue in force, they are to remain absolute and unchangeable rules of action and decision, it is obvious that they should not be made to embrace within their iron grasp those subjects in regard to which the policy or interest of the State or of Its people vary f]om time to time, and which are, therefore, more properly left to the control of the Legislature, which can more easily and speedily make the required changes. He states, first, what you would expect to find in a Constitution, and he then tells you what should be left out of a Constitution. This furnishes us a safe guide to a proper conclusion. Is the subject that we have underconsideration to be found among the things mentioned by this learned author as proper to be put into a Constitution? It is not found there. Is the liquor question a subject in respect to which the policy of the State, or its people, may change from time to time? It is. Then the test furnished us by Judge Cooley excludes it from the Constitution and our duty is to keep it out. I wish to read you also what Mr. "Woodrow Wilson says in his work, "The State," on this question. He is professor of Jurisprudence and Politics at Princeton University, and is an eminent scholar and a profound writer on governmental questions. He is a Virginian by birth, and I am proud to say a native of my own city. He says: One of the most characteristic circumstances connected with our State law is the threatened loss of all real distinction between constitutional and ordinary law. Consti- tutions are in their proper nature bodies of law by which government is constituted by which, that is, government is given its organization and functions. Private law, the regulation of the relations of citizens to each other in their private capacities, does not fall within their legitimate province. This principle is fully recognized in the con- struction of our Federal Constitution, which is strong and flexible, chiefly because of its great, its admirable simplicity and its strictly constitutional scope. But constitution making in the States, especially in the newer States, has proceeded upon no such idea. Not only do the Constitutions of the States go very much more into detail in their pre- scriptions touching the organization of the government; they go far beyond organic provisions and undertake the ordinary, but very different, work of legislative enactment. They commonly embody regulations, for example, with reference to the management of State property, such as canals and roads, and for the detailed administration of the State debt; they determine the amounts and sorts of property which are to be exempt from seizure for private debt; they formulate sumptuary laivs such as those forbidding the sale of intoxicating liquors; at a score of points they enter without hesitation or restraint the field usually reserved for the action of legislative bodies. Mr. Wilson then makes this comment; The objections to the practice are as obvious as they are weighty. General outlines of organization, such as the Constitution of the United States contains, may be made to stand without essential alteration for long periods together; but, in proportion as Consti- tutions make provision for interests whose aspects must change from time to time with changing circumstances, they enter the domain of such law as must be subject to con- stant modification and adaptation. Not only must the distinctions between constitutional and ordinary law hitherto recognized and valued tend to be fatally obscured, but the m_uch to be desired stability of constitutional provisions must in great part be sacrificed. Those constitutions which contain the largest amount of extraneous matter, which does not concern at all the structure or functions of government, but only private or particu- lar interests, must, of course, however carefully drawn, prove subject to most frequent change. In some of our States, accordingly, constitutions have been as often changed as important statutes. The danger is that constitution-making will become with us only a cumbrous mode of legislation. This is what this distinguished author has to say about putting extraneous matters into a Constitution. If we embrace in the Constitution subjects as to which the policy DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE VIEGIXIA. 2oS9 01 the State may cliange from time to time,, ^re. of course, sliould make easy and con- Tenient tlie method of amending the Constitution, so that the provisions of the Consti- tution might be subject to continual change. In such case there would be no pennanence in the security to the rights of the people that are properly protected by the Constitu- tion, and the entire govemment would necessarily be weakened. It would be a blow ax the foundation of free government. Xow, Mr. Chairman, these learned writers on constitutional law agree as to the doctrine that should te observed in making a Constitution. They in substance declare that a Constitution should not contain any subject in respect to which there may be frequent changes in the policy of the State or of its people. I have said that, in my opinion, the liquor question is a subject of that character. Judge Cooley in defining how a Constitution should be constructed, in effect, excludes it: and Mr. TVoodrow Wil- son expressly does so. It would seem that these authorities ought to determine our course. Tv'e are novices in Constitution-making, and can surely profit much from the teachings of these great students of the science of government. Mr, Chairman, if there is any one thing that is unsettled and undetermined in the minds of the American people and the people of the word, it is, how to manage and con- trol the liquor traffic. There are those who believe that this business should be treated as any other business — that it is a legitimate and proper business and should not be discriminated against. And there are those who would think it a crime for this Con- vention to incorporate for the first time into our organic law a provision recognizing the sale of whiskey as a proper business for any one to follow, — they do not even want to regulate it, as the gentleman from Culpeper (Mr. Barbour) does, but wish to destroy it. T desire to read to you a line from an address made by one of the distinguished leaders in the temperance movement in this State, to show what he thinks on this question, and how far he and my friend (Mr. Barbour) are apart. The address was made recently before the Anti-Saloon League. He says: What is our demand? It is that the State shall not legalize, but prohibit saloons. They do not desire to legalize the sale of whiskey, but to prevent it. And then, there are those who believe in the local option law as the true method of dealing with this business. And there are those who believe in dispensary laws, and still there are those who believe in this new untried plan embodied in the measure under discussion. Mr. Chairman, there is great doubt and uncertainty in the minds of the people upon this subject. The -measure itself carried upon its face doubt and uncertainty as to its effi- ciency. It excepts the cities, where the bulk of the liquor business is done; and excepts also the towns and counties where whiskey is sold under the local option law. 'Why is this ? Mr. Barbour: Is there any town wherein whiskey is sold under the local option law? Mr. Quarles: Yes, sir. Mr. Barbour: This does not except any of them. It does not interfere with the operation of the local option law. Mr. Quarles: The local option law provides, that there shall be held an election, when properly petitioned for, and that a vote shall be taken whether the people shall have license or not have it. They vote ■"For licensing the sale of intoxicating liquors," or "Against licensing the sale of intoxicating liquors." If the election is carried for license, then license to sell liquors must be granted under certain conditions, and an- other local option election cannot be held within two years. So the local option law, after an election is held, which results in favor of license, authorizes the granting of license for two years, and until another election is held. ^Iv. Barbour: I desire to put my friend right. Those communities are not excepted from the operation of this provision. 2590 DEBATES or THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Mr. Quarles: That is the gentleman's interpretation of it; but it is expressly de- clared in this measure, that it shall not interfere with the local option law in any respect. Mr. Barbour: The gentleman does not contend that where a local option election 3ias been held and local option defeated, that that does away with the necessity of obtain- -ing a license? Mr. Quarles: No, I do not. But the law says after such an election is held, if it goes for a license, a license may be granted, which means shall be granted when the applicant is shown to be fit and the place suitable. I insist that the local option law is in operation there for two years and until another election is held; for it is the operation of the local option law that prevents the holding of another election before the expiration of two years. Mr. Barbour: As I understand it, the local option law is, that liquor should not be sold, so that if the election is not carried, the local option law is not in effect, Mr. Quarles: The local law is that liquor shall not be sold if a majority of the voters at an election so decide; and that it may be sold if the majority at an election vote for license. The question at issue is, practically, whether whiskey may be licensed to be sold or shall not be licensed to be sold and if the decision is that it may be licensed to be sold, the law expressly declares that the decision shall be carried into effect. Of course license must be first granted, for the local option law says so; and it cannot be granted until it is proven that the applicant is fit and the place is suitable, and, this being done, the court must grant the license. And I repeat that the liquor dealers in a district where license has carried are protected by the local option law for two years, to the extent; that they cannot be deprived of the right to obtain license and sell whiskey dur- ing that time, and this is so, because the local option law is in operation there. Mr, Richmond: Are you not mistaken in the proposition, that it shall be sold? Does it not still rest in the breast of the judge whether or not he will grant a license? Mr. Quarles: The only question the judge has to determine is, whether the applicant is fit and the place suitable. He has that to decide under the general law, which •operates along with the local option law. "When these requisites are proven, the judge under the latest decisions of the Court of Appeals of Virginia, has no discretion, but is compelled to grant the license, — he must or shall grant it. The courts have held that the word "may," as used in the license statute, means "shall;" that is, the latest decisions of the Court of Appeals of Virginia are to that effect as I have already explained. Mr. Chairman, I hope there will be no more interruptions. I was, when interrupted, discussing the question as to whether or not the liquor question comes properly within the province of a Constitutional Convention. I was arguing that it did not, because the laws relating to this subject would necessarily undergo frequent changes. I stated, that no one knew how to deal with this subject and that all plans proposed in reference thereto were tentative and experimental; that those who framed this measure were un- certain as to what would be its effect and that this is evident from the fact that it is not made to apply to places, where whiskey is mostly sold, but only to counties and towns where the traffic is comparatively light. The best temperance measure is one that v/ill do to apply where it is most needed. I contend that if these gentlemen who are pressing this measure, had confidence in its efficiency as a temperance measure, and as the best, they would make it supplant every other law relating to the traffic. If they knew that it was better than the local option law, and better than dispensary laws, they would have made it supplant those laws. They are groping in the darkness and are uncertain as to the merits of their measure. Mr. Chairman, I do not believe the temperance people are generally acquainted with the real nature of this measure. If they were, I am confident they would not endorse it. Every effort made in behalf of the cause of temperance does not result in the advance- ment of that cause. How this plan will work, whether for the promotion of temperance. DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. 2591 or in the interest of the saloons, is problematical. I am informed that there are fifty- five counties in this State that are "dry" under the local option lav^. Mr. Barbour: I would like to correct the gentleman. There are eighteen counties in the State in which no liquor is sold under a license. There may be fifty-five counties in which one or more districts there is a local option law. Mr. Quarles: They nave the local option law, then, in fifty-five counties and eighteen of the fifty-five counties are entirely "dry." This measure doe not apply to the cities, at all, nor to the counties and towns in which there have been held local option elections, according to my viev/, and I am informed that such counties and towns number ten or fifteen in the State. Now, Mr. Chairman, to me, — with so many counties, cities and towns excepted from the operation of this measure, — it looks more like a whiskey measure than a temper- ance measure. Mr. Dunav;ay: Does the gentleman mean to assert there are fifty-five counties in the State entirely under local option control? Mr. Quarles: That statement was made the other day by my friend from Accomac (Mr. Wescott). But the gentleman from Culpeper (Mr. Barbour) states that there are eighteen counties in which the local option law operates to prevent the sale of whiskey in all the districts, of each county and that there are fifty-five counties in which the local option law so operates in certain districts in each county. I contend that experience will show that this measure, if adopted, will operate to the detriment of the temperance cause. I insist it will facilitate the granting of licenses in the counties and towns where it vvill operate. Take the case cited by the gentleman from Richmond (Mr. Pollard) on the floor to-day. He stated that there is a ward in Rich- mond, where there as four hundred registered voters, and that only about forty of that number voted at the last election. Then, in this case, under this proposed measure, a petition signed by twenty-one of those vs^ho voted would secure a license for an appli- cant to sell liquor in the ward mentioned. Twenty-one voters would be able to force the sale of whiskey regardless of the wishes of the other three hundred and seventy-nine voters. We all know^ that often elections are held in which the people take little or no interest, and the vote cast is very light; and v;henever this shall be the case, what, under this measure, is to prevent a man, who v/ants to secure a license, from getting the necessary signatures? Take a precinct of a hundred voters where only, say, twenty- five shall vote; the signatures of thirteen on a petition would obtain the license and according to my interpretation of the proposed measure, when the petition is presented to the court, the license must be granted without regard to the fitness of the applicant or the suitableness of the place. It seems to me that it should be apparent to anyone that such a law would obstruct the sale of whiskey less than the present law. The operation of a law in the State of Mississippi, which is said to be similar to the one here proposed, is claimed to be successful. My information from that State does not at all agree with this claim. In Mississippi there is a law similar to the one peti- tioned for here, that is, the Barbour-Qaarles resolution. It provides that when a petition signed by a majority of the registered voters is presented, the license shall be granted. I am informed that this lav\^ in Mississippi in its operation applies to only about twelve counties, all of the other counties being under the operation of the local option law prohibiting the sale of whiskey; and that the parties in those twelve counties who desire licenses get them. They go around with their petitions and with money and whiskey corrupt the voters. That is the experience in Mississippi, Vvdth a lavv^ more drastic than the one here proposed. I understand the people in the counties referred to are kept in a constant state of turmoil in the efforts to secure and defeat the granting of licenses. The measure proposed, Mr. Chairman, as I have remarked, is legislative. The gen- tleman from Culpeper (Mr. Barbour) denies this and says that it enunciates a principle. Y/hat is that principle? Let us see. It provides that no license shall be granted, ex- 2592 DEBATES OE THE COJ^STITUTIONAL CONVENTION OF VIEGINIA. cept upon the written request of a majority of those, who actually voted at the last pre- ceding election. In the Richmond ward referred to how many actually voted? Forty. It would take a petition then signed by twenty-one to obtain license. What sort of a principle is exemplified by such a proceeding as that? The principle woald be that a minority of twenty-one may rule three hundred and seventy-nine. But you cannot really know what the principle enunciated by this ordinance is, until after you put the ordinance into operation and see the results. The gentleman (Mr. Barbour) says this measure will give neighborhood rule. The local option law gives district rule,— town rule,— city rule. Now let us illustrate how the measure under consideration would work: There is a district with four or five pre- cincts in it and a petition goes up to the court from one of those precincts and a license is granted. The bar-room thus established would, in all likelihood, affect every neighbor- hood or precinct in that district; and the effect would be that the measure would give to one neighborhood or precinct the right to rule, in respect to whiskey, adjoining neigh- borhood. Is that right? Is not the principle wrong? Clearly so. A precinct or neigh- borhood is too small in territory. No territory in the country less than a magisterial district should be thought of in this connection. Mr. Dunaway: Where local option prevails you cannot have this measure to go into effect in a precinct. Where it does not prevail, you might save one precinct. Mr. Quarles: But you do not save the adjoining precincts, if the liquor license is granted in the one precinct; on the contrary you supply them with whiskey. And if it is not granted, you do not save the one precinct, because the license may be granted in one or all of the adjoining precincts, thus affecting the precinct, which you would save. Mr. Dunaway: If you take a magisterial district in the State, in which there is no local option prevailing, then, as has been asserted, you may not save some other precincts, but the people of that precinct will have the right to say it shall not be sold in that precinct, and in that magisterial district, so far as this law can operate, it operates to the exclusion of the bar-room. Mr. Quarles: I know that in many of the magisterial districts there are four or five precincts in each district. The point I am making is, that if one precinct, in a district containing several precincts, secures a liquor license and a bar-room is erected there, it will effect every other adjoining precinct in that district. I say that the territory embraced in the precinct is too small to give protection to its citizens against adjoining precincts where liquor may be sold; and also it is so small that if liquor be sold therein, it will conveniently supply the adjacent precincts. The territory to which self-govern- ment is to be given in this matter should not be, in the country, smaller than a magis- terial district, just as is the case in the local option law. Mr. Chairman, the question here is, not whether we are in favor of temperance or against it. We are all in favor of temperance. We all deplore the evil of intemperance, and we would check, lessen and destroy it if we could; but is it our duty as Constitu- tion-makers to deal with this subject? I submit that it is not, — I have shown that it is not, and that we will violate a fundamental principal if we do. We may have the power to adopt this legislation, but I say we have not the right to thus abuse our power. Mr. Tucker in his great work on the Constitution of the United States gives utterance to this pregnant sentence: "Wed right to povv^er, liberty is safe and despotism impossible Divorce them, liberty dies and despotism reigns." We should regard the right and can- not afford to do otherwise. The rules for our guidance are laid down by the great writ- ers on constitutional law, and it will be unpatriotic and wrong for us to transgress them. 1 would like to see temperance prevailing everywhere, but I am unwilling to sacrifice principle, — a foundation principle upon which we must build our Constitution if we would build properly and wisely, — for expediency. Last winter there was pending in Congress a till called the Anti-Canteen Bill. It provided that no whiskey should be sold in the camps of the army or on government properties. The members of Congress were besieged and implored to support it. The Bill passed Congress and became a law, and I was one of DEBATES OF THE COXSTITUTIOXAL C0XVEX5I0X OE VIRGIXIA. 2593 those ^-ho voted for it, but I would never have dreamed of putting that lavr in the Fed- eral Constitution, had I had the opFortunity of doing so. I had hardly reached my home from AVashington after the adjournment of Congress, before the newspapers teemed with adverse criticism of the law from the officers of the armj*. They claimed that whiskey would be sold outside of the camps, beyond the supervision and control of the officers and that it v\-ould be better to have it sold in camp where its sale could be controlled. I almost began to think that I had made a mistake, but I consoled myself with the thought that if I had, the law could be amended or repealed in a fevc months, at the next session of Congress. Mr. Chairman, I think this subject ought to be left to the Legislature to deal with. That is the proper body to make tentative laws. If it is desired to experiment with the operation and effect of a law, the Legislature can do so without much harm resulting. It can quickly correct its mistakes when made. I met a distinguished divine on the streets of this city a few days ago and he said to me: "You should turn that matter, the whiskej* question, over to the Legislature. I have in my possession statistics which conwince me that upon the elimination of the ignorant and vicious voters the local option law will extend throughout the Commonwealth and accomplish what is desired." I ask, :\Ir. Chairman, that the substitute I offer, which confers upon the Legislature full power to deal with this subject by enacting local option laws, dispensary laws, or any other laws controlling or prohibiting the sale of liquor, shall be adopted. (Applause.) Z^Ir. Hubard: :\Ir. Chairman and gentlemen of the committee, it has been argued, not that this body has not the povN-er to adopt this measure — it is conceded that we are supreme — but the distinguished gentleman who has preceded me (^Ir. Quarles), and all the other speakers who oppose this measure, have said they question the propriety of the Barbour resolution. It does seem to me that if there is one question upon which all of us should agree, it is that if this means anything it means a great moral question; and if Virginia, the grand old mother of States and of statesmen, has always taken the lead in the right, why should she not take the lead now, and in the great Constitution we are making, which is to be the fundamental law of the State for all time to come, set an vxample to her sister States of this Union upon a great moral question? It has been conceded, as I say, that we have the right and the power, but the pro- priety is questioned. If it is right that the Legislature of Virginia should do it, why should not we, as the chosen representatives of the people, who have that power, put in the organic law, the fundamental law of this grand old Commonwealth of Virginia, as a great moral principle, a great democratic principle, that the majority of the people in every community* shall say whether this evil shall exist or not. Mr. Chairman, it is a well-known fact that I have not detained this body long with speeches, and I do not propose to do it now; but I desire to say that in all my career, vs'ith all my faults, I have never 3-et been guilty of the responsibility of casting a "wet" vote; and standing here now, feeling the responsibility that is upon me as it is upon you, representing, as I believe them to be. the honest convictions of a good and honest con- stituency, I will not be guilty novr of putting this evil upon a community when they do not desire it. At best, if we live to three score years and ten, the journey of life is brief, and the end is soon reached; and the grandest, most inspiring thought that any man can have when that journey is almost over, is that he has not lived for himself alone, but for the good, the uplifting, and the elevation of his fellow-man. When we have so lived, and when our eyes are closed in that sleep which will know no waking until the call to which all mankind must respond, when tne secrets of all hearts shall be known, when the great Ruler of the Universe shall preside and pass upon the deeds done in the body. He will look upon this Convention individually, and upon these members here who have ambi- tious hopes, and who will be led astray from the ways of the path of right, because they think and feel that this is an unpopular matter; and such of us that have the nerve and 2594 DEBATES OF THE .COXSTITUTIOKAL CONVEIS^TION OF YIRGIIS'IA. the manhood to vote for the Barbour resolution will receive the plaudit, "Well done, good and faithful servant." Mr. Summers: Mr. Chairman and gentlemen of the committee, I shall speak five minutes of speech, and then finish my argument to-morrow, if living. I shot an arrow in the air. It fell to earth, I know not where. I breathed a song into the air, It fell to earth, I know not where; Long, long afterwards, in an oak, I found the arrow, still unbroke; And the song, from beginning to end, I found again in the heart of a friend. Longfellow never wrote truer lines. I am going to throw some arrows, and you will find them in the oak unbroke. I will sing a song that will be found in after years in the hearts of friends. Gentlemen of the committee, I have cared less about a personal record since I have been in this Convention than any man in it; but there are some things I must notice. I see that a festive croM^d in one of our cities met not long agoi and made me the chairman of the festal board, to give out the drinks. I see in a Nor- folk paper that we shall soon hear from Summers from the Southwest; but he cannot speak eloquently unless he has peppermint in his brandy. Now, gentlemen, I want to say in my personal defence — I care nothing about myself, but I do care for posterity — that I am the only man in this hall, in this whole body, I suppose, who, if he ever drank or tasted a drop of ardent spirits, it is unknown to him. For sixty years I have filled manhood's full measure and never supported by intimation, inclination, aid or other- wise, any measure unless it was on the moral side of the issue, and looking to the ser- vice of God and his Disciples on earth. Now, gentlemen, it is always unpleasant for me to see any young man take the immoral side of any issue. I listened to the great Ajax of Eastern Virginia, the repre- sentative from Hanover (Mr. Carter), whom God has blessed with a grand' countenance, and with a generosity of soul, but with no regulator for that which makes him think (laughter) ; and that reminds me of my young friend who hails from the caudal part of Maryland. I felt like shedding a tear over him. Young hian, follow the precept of St. Paul, and your noble old mother, and retract and retrace your steps, and prove yourself a moral man. (Laughter). I love my friend from Augusta (Mr. Quarles), because I believe he is a noble man, but his Platonic virtues are not equal to his other virtues. They gave him such a set- ting down about the election of officers by the people that he, like the old muse, went out here and never smiled again. He appears to be mad at the women and men of the earth. (Laughter) . If we, in the wisdom of this Convention, had decided in favor of the election of officers by the people, oh, how you and I would rally here to the cause of the men and women, and of God Almighty on earth, and declare ourselves men, instead of being aids and abettors of those who would tear down the proud banner that your wife, your daughters and your moral friends of Augusta are spending their lives to sustain. Now, gentlemen of the committee, I want to deal argumentatively for only five minutes this evening on this subject, and then to-morrow I will give you statistics that will make the enemies of temperance tremble and show the great supporters of the destruction of the country. Now, gentlemen, what is the position of the honorable gentleman from Augusta? There can be this said about the gentleman from Augusta that with ail his faults he is honest, he is fair; but, like the blind giant of old, you slay your friends and know not what you do. Let us take up this subject. I think my old friend and kinsman, Brother Mcllwaine, settled this matter when he said that everything in here that all you do not like should DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIEGIXIA. 2595 go to the Legislature, and the things you do like should go into the Constitution. Did you not vote that the judges should get so much salary? Every man who has advocated this position, so far as I have noticed, has so voted, unless it is my friend from Hanover (Mr. Carter), who is not only and truly my friend, taut is really a relation by marriage, as he and my wife have the same blood in their veins; and I will let him know that she will blush when she finds out how he advocates this measure. Mr. Carter: If she has stood you this long, she will not blush for me. (Laughter.) Mr. Summers: What a woman's misfortune's are are never known until she is dead. Did you support the measure? You have supported half a dozen appropriation bills and put them in the Constitution. Did you not vote that the salaries of the judges should be fixed at so much? Did you not vote that every other measure of that charac- ter should be put in the Constitution, and now you come here and try and hood- wink, untintentionally, a hundred intelligent men and say this cannot go in the Consti- tution. We have seventeen pages of minutiae in one of our reports here that I was in favor of, and we have put every bit of that into the Constitution; and when it comes to the suffrage measure you men who say this should not go into the Constitution will put about seventeen pages of minutiae into this same Constitution — minutiae that you say should be left entirely to the Legislature. Now, Mr. Chairman and gentlemen, thanking you for your kind attention, I will re- sume to-morrow morning, if alive. (Laughter.) On motion of Mr. Barbour the committee rose and the President resumed the chair. LIMITATION OF DEBATE. Mr. Eggleston: I offer the following resolution: The Secretary read as follows: Resolved, That when the Convention resolve itself into Committee of the V/hole to ■consider the report of the Committee on the Preambles and Bill of PJghts ets., no mem- ber shall be allowed to speak more than ten minutes, nor more than once until every other member wishing to speak has done so. The resolution was agreed to. On motion of Mr. George K. Anderson the Convention adjourned until to-morrow, Friday, February 21, 1902, at 10 o'clock A. M. FRIDAY, February 21, 1902. The Convention met at 10 o'clock A. M. Prayer by Rev. P. B. Price, D. D. PREAMBLE OF BILL OF RIGHTS. On motion of Mr. Green the Convention resolved itself into Committee of the Whole for the further consideration of the report of the Committee on the Preamble and Bill of Rights. Mr. Turnbull in the chair. The Chairman: The question is on the adoption of the amendment offered by the gentleman from AlbemarlB. The gentleman from Washington, Mr. Summers, is entitled to the floor. Mr. Summers: Mr. Chairman and gentlemen of the committee, I want to address myself to you when you have time enough to listen, which I know you have, for the period of ten minues. Now, gentlemen, I have, in the limited time in which I have talked, answered all the arguments, as I thought, produced by the gentlemen, except one 2596 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. remark from the gentleman from Augusta. That remark was with relation to his inter- view with a minister, in which that minister said for you to turn that over to the Legis- lature. I have never met that kind of a minister, and I do not think there are any more of them living, except the one the gentleman happened to meet on that occasion, and you will never meet him again on this earth, in my opinion. Now, gentlemen of this committee, there are imperfections in this report. All I want you to do is to settle the principle. It is the minutiae alone these acute and wise men have attacked. They have never attacked the principle. It is only certain portions of the report which they at- tack, and not the principle. Now, gentlemen, there will be amendments. There are some who have said that this should apply to the cities. You shall have an opportunity of voting on that if this old hand can wrife. You shall have an opportunity of testing your truthfulness and your sincerity about prohibition, because I am a prohibitionist. I do not dodge the issue, because I believe that human experience dictates it, and dictates it as right. You shall all have an opportunity of voting upon those subjects. Now, as I am limited, and have but ten minutes from this moment, I want to say that there was a reference made to a political error here. You all know my politics. I am not ashamed of them. I can say, for myself, and my twelve disciples in this Convention, that we are solid for the measure. 1 throw the responsibility upon the majority of this Convention, where it be- longs. From the humblest Republican voter in the Cumberlands to Park Agnew, in Alexandria, the Republican party is a unit for this measure. I speak whereof I know. Honest government, decency and morality and temperance is our motto, and if we do not run the earth, we know the seats that awaits us. Mr. Chairman, I am speaking against time. But, now, gentlemen, I want you to understand that there are 88 majority in this Convention, and whenever you throw this thing out in the face of my religious people and in the face of my religious women, democracy will stink in their nostrils and in the nostrils of all decent people in my land and country. Now, we come here to help you in a good cause and to check you when you are wrong. If you want to speed the prosperity and the decency of your country, we twelve disciples here are -ready, your humble servants., to move along to the goal of morality and decency and God-like principles. Gentlemen of the committee, I want to say to you this: You have received instructions from my people. I am from the most beautiful town in the Southwest, a town that has produced three Governors of this Common- wealth, the greatest heroes of it. There, in our little town, three female colleges — the Martha Washington, with an attendance of 200; the Jackson Institute, a Presbyterian institution, with 150; and our charitable friends, the Catholics, have another. There- fore, my enthusiasm for this great cause and principle. Gentlemen of the committee, I have certain statistics which I wish I could read to you. I have taken a long while to compile them, and I received them from the most accurate sources. You men who are opposed to this great principle should know of the fact that if for twelve months there was no ardent spirits sold in Virginia we could macadamize the roads of Virginia from one end to the other in twelve months.. In another twelve months we could pay half the public debt. In another twelve months we could send our children to school for twelve months, instead of four. Now, when we ask you for bread, you do not throw us a stone, but you throw drunkenness, debauchery and poverty at us. You would be more Chris- tianlike if you would throw the stone to us instead of the bread you do. Now, gentlemen of the committee, let me tell you I desire that my people shall rejoice at my conduct here to-day. I propose at a future time in this Convention to relieve, if possible, the Christian women and the decent men of the city of Richmond and every other city and protect them in their moral life. Now, gentlemen, why do you oppose this? The gentleman from Augusta, the gen- tleman from Hanover, the gentleman from Accomac, has given no reason upon earth ex- cept that it should not be in the Constitution. Now, gentlemen, as I must hurry on, my DEBATES OF THE COXSTITUTIOXAE COXVEXTIOX OE VIRGIXIA. 2597 experience is something. I suppose I have lived longer than any of you, and I thank God thai I am alvrays sober. The Chairman: The gentleman's time has expired. Mr. Summers: Well, gentlemen, all I ash of you is this: To stand by a God-like principle and to relieve the people of Virginia of this most damnaole curse, and if you do not, so help me God, democracy, as it is called, vrill pay the debt. :\Ir. Lindsay: :\Ir. Chairman and gentlemen of the committee, I vish very briefly and very frankly to state my position upon this question. I shall not conceal from this committee my very grave doubt about the Tvisdom of any temperance legislation in this Convention. Xor do I hesitate to say that if I honestly believed that the report of this committee was in the interest of real temperance, I should cheerfully waive any doubt I might have upon the subject and gladly support the same. Xov, notwithstanding the opinion of my friend from Culpeper (:\Ir. Barbour) that this is a "milk and water" amendment, I maintain that the object that each of us seeks to attain is identically the same. Let us for a few minutes consider the difference in the two resolutions. Both are based upon the principle of local option. Both are based ostensibly upon the democratic principal of majority rule. The difference is this: That in the one case the signatures of a majority of those who are opposed to license are re- Q_uired, and in the other case, as embraced in my amendment, the signatures of a majority of the temperance people are required. Xow, the whole theory, as I see it, of the gentlemen who advocate this report, and certainly of the petitioners who have asked for legislation upon this subject, is based upon the idea that men who will vote wet in a local option contest will not sign a petition granting a license. That is their conten- tion. Otherwise it is not one white better than local option, Their theory is that if you take a petition arotmd in a certain community men will not have the courage to put their signatures upon a petition for the granting of a license; but that if given the oppor- tunity they will vote wet in a local option contest. That is undoubtedly their belief, otherwise there is no improvement over local option conditions. If that be true, then, you have in a community that goes dry by this method public sentiment and the law di- rectly opposed; and I have never seen a law enforced anywhere against the public senti- ment of the community. W^e have such laws in our State to-day. Xow, the differences between signing a petition in favor of the granting of a license and against the granting of a license is very manifest. You can easily ascertain public sentiment in a protest against the issuance of a license, and all of the moral influences are arrayed on the side against license and in a protest against its issuance. There would be none of the hesi- tation in signing a petition against the granting of a license that would exist if the peti- tion was in favor of license. This is simply applying local option to individual cases, and to communities. That is exactly what my amendment proposes — to apply the prin- ciple of local option to individual cases, and to limited neighborhoods. The gentleman from Culpeper has seen fit not only to designate this as an ineffect- ive amendment, but to say that it is favored by the whiskey men of the State, Xow, I\Ir. Chairman, I am not in the confidence of the whiskey men of Virginia, but I will say that in my judgment, the gentleman from Culpeper is just as much mistaken in thinking that the whiskey men of Virginia want such a provision as I believe he is mistaken when he says the temperance people of the State want such a provision as is embraced in this report. X'ot a single, solitary petition has reached this body in favor of such a resolution. If they understood the effect of the provision embraced in this re- port, I do not think the people of Virginia would endorse it. If the case as cited here in Richmond exists, and if such instances are common over the State, then it is nec- essary for but a small portion of the registered voters to sign a petition, in order to grant a license. Ve all know what the temperance people have asked at our hands. It was that this provision should apply to the cities and counties, and in addition, that it should require the signatures of a majority of those who were registered, whether actually vot- 3598 DEBATES OF THE COISTSTITUTIONAL CO^TVENTION OF VIRGINIA. ing or not, in order to secure a license. Now, I contend that if you give to the majority the right to protest, you accomplish just as effectually the bringing out of the better ele- ment of citizenship at the polls. And if there is a small recorded vote, you would give to the friends of temperance the advantage, if there is an advantage, in the small vote. If, as some contend, it is an easy matter to get signatures to a petition — and I am not arguing that phase of the question — you give to the temperance people whatever advan- tage there is in that contention, in the securing of signatures to a petition against the sale of whiskey. My own honest belief is that this proposition, as embraced in the re- port of the committee, is not at all in the interest of temperance, but quite the reverse. The Chairman: The question is on the adoption of the amendment of the gentle- man from Albemarle (Mr. Lindsay). The amendment was rejected; there being, on a division, ayes, 11; noes, 42. The Chairman: The question now is upon the adoption of the substitute offered by the gentleman from Augusta. The Secretary will read the amendment. The Legislature shall have the full power of enacting local option or dispensary laws, or laws controlling, regulating or prohibiting the manufacture or sale of intoxi- cating liquors, Mr. Barham: I move that the dispensary clause be stricken out. It only relates to my county. We have two dispensaries, one at Courtland and the other at Franklin. On one side of the street there is a dispensary which sells the liquor in original packages. On the other side of the street is a man with ice, sugar and water. You buy your liquor on one side of the street and go over to the other side and have it mixed. If you do not drink it at all you leave it there for the next time, so you see it is merely a bar-room under another name. I would like to have the committee strike out the word "dispen- sary." I make that motion. Mr. Pollard: I hope the committee will not strike out the word "dispensary." In a great many States, notably in South Carolina, the dispensary law is considered to be the proper solution of this question. I had not heard before that it did not work satis- factorily in Southampton. Certainly the difficulties which present themselves, as stated by the gentleman from Southampton, could be corrected by a proper law on the subject. Inasmuch as the dispensary law has, in many localities in this country, proven effective, I hope the committee will not take such action as will preclude the making of such laws in Virginia in the future. The Chairman: The question is upon the adoption of the amendment of the gen- tleman from Southampton (Mr. Barham). The amendment was rejected. Mr. Dunaway: Mr. Chairm.an, I desire to offer an amendment, to strike out the words in lines 10, 11 and 12, "who actually voted in the last preceding regular election in such towns or in such precinct." I have observed, Mr. Chairman, that in the remarks made by the opponents of this measure that they have animadverted upon this particular part of the section. It is to relieve their minds and also make the amendrhent that I believe is necessary for the consistency of those gentlemen who advocate this matter that I offer this amend- ment. If it is a question of home rule in any place or to establish the Democratic principle that the majority in any precinct shall rule, then there ought to be required a majority of the registered qualified voters in the precinct and not simply a majority of those who voted at the last election. Mr. Green: Speaking for myself personally and without an opportunity to confer with the members of the committee, I will say that I am perfectly willing to accept the amendment of the gentleman from Lancaster, and it will be considered as accepted unless some member of the committee objects. Mr. Dunaway: I feel very much gratified at the statement of the chairman of the committee. I hear no objection on the part of any member of the committee and I take DEBATES OF THE C0X5TITUTI0XAL COXTEXTIOX OE VIEGIXIA. ■2599 it, therefore, that the friends of this measure ^ill favor the amendment to leave out these words. I also take it for granted that the opponents of this measure will vote for the amendment, because if it is to carry, they v-culd want it to carry in the best form in which it could be adopted. The amendment was adopted. Zvlr. Gillespie: I move to amend the second section by striking out the words in the third line beginning with the word '"in" and going down to the word '"sold"' in line 5. The section will then read: "Xo license to sell intoxicating liquors shall be authorized or granted in any town or county of this State for a period of more than twelve months," etc. I further move to strike out the word '•precinct" in line 9 and insert in lieu thereof the words "magisterial district." A license then could not be obtained without first obtaining the signature of a majority of the legally qualified voters in the magisterial district, instead of in the pre- cinct. A precinct is a very small part of a magisterial district. Mr. Barbour: It seems to me that the course of the committee in making limits within which these signatures are to be obtained as small as cotild be done conven- iently is a vrise course. For instance, in my own county, there are some magisterial districts that are fifteen miles long, I do not see any reason why the people at one end of that district should be governed by the people at the other end in the matter of granting a liquor license. I think that is the very reason v-hy the local option law has failed, in those places where it does net work satisfactorily — because, in those lo- calities, local option law is not supported by public sentiment. Mr. Pedigo: Mr. Chairman, I ask that the amendment of the gentleman from Taze- well be divided into two propositions. I would like to vote for the amendment pro- viding that a majority of the voters registered in a magisterial district should be re- quired to license grogshops anywhere in the magisterial district. In the one I live in there are four precincts in a magisterial district, and if we should put a grogshop on the corner it would annoy the other three just as badly as if it were inside their own pre- cinct. The amendment was rejected; there being, on a division, ayes, 23; noes, :30. The Chairman: The question is on agreeing to the amendment of the gentleman from Augusta (Mr. Quarles). Mr. Kendall: Mr. Chairman, I believe I understood my friend from Roanoke (Mr. Robertson) the other day to say that everybody had a right to talk as much as he pleased here; and if so, I suppose it is the duty of everybody else to listen. I am free to say that upon this question I have been much trotibled, perhaps, as to how I should cast my vote as upon almost any question that has been before the Con- vention. I have not regarded this proposition in the light in which I have heard it mostly discussed. I have not looked upon it as a local option or prohibition measure, or as anything in the form of either, but rather in opposition to both. It seems to me the question, and the whole question, before this committee is not whether there is to be local option in any precinct or district or not, but whether or not the question now decided by the court under the present law, that a man is a fit man and the place a fit and proper place, is -to be transferred from the sole jurisdiction and decision of the judge to the joint jurisdiction and decision of the judge and a majority of the voters in the precinct. That, it strikes me, is the question, and the whole and entire question involved in this proposed amendment. I do not believe that if put in force it would operate in the interest of local option or prohibition except in those particular sections where the sentiment for local option or prohibition is very strong; and wherever it is so strong, the local option law becomes effective and is generally beneficial; but wherever that is not the sentiment, or where that sentiment is nearly equally balanced, instead of operating for local option I think it would operate to the contrary. 2600 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. There are many men who thmk that the sale of liquor is but a reasonable and proper privileges which ought to be exercised under proper control, but they find it con- tinually abused by those to whom the privilege is intrusted, and they visit upon the Ys'hole traffic itself the abuse of some one or two particular men who have the privilege; and to get rid of some one fellow who is abusing this right, or to prevent its liquor sold at some particular locality, they gladly vote for local option to prevent it altogether, when they would be perfectly vv^illing that it should be sold if properly regulated and properly sold. Looking at it from that standpoint, gentlemen, and feeling somewhat, too, that as it is a question of decision by a majority, it does have slightly the aspect of a constitu- tional question. I hesitated Vv^hether or not I would give it my support; but two re- flections have decided me to the contrary. In the first place, I do not think it can be denied that it is to a very large extent, experimental. I think there is great force in the suggestion that you may set a neighborhood by the ears in getting up these petitions. Men will take offense because some of their friends do not sign them for somebody. Men are compelled to place themselves on record, as between their fellow-men and be- tween their neighbors, and bad motives may influence some, and bad motives may be attributed to many; so that it would, perhaps, be likely to set a neighborhood, to some extent, by the ears. If that is so, I do not want to put any provision of that kind in the Constitution, so that it cannot be changed. Another, and perhaps a paramount, consideration with me, however, has been that we have a Constitution ih fhe consideration of w^hich we have spent many months, and Y/hich involves a vast interest to the people in seeing it adopted and put in force, be- cause I think, taking it on the whole, we have made a very good Constitution. Now, gentlemen, I do not v/ant to do anything to jeopardize that work; and notwithstanding the fact that it is proposed to submit this question separately, I do not think it can be denied that it would be found that the liquor interests would have the overtures of other interests, and that it V\^ould be said to them,^ 'if you will help us to defeat this Constitution in toto, or certain parts of it, we will help you on the liquor question, and vice versa. If this Constitution is to be submitted at all, I do not want it hampered by any such weights as this provision would throw around it. So that these two controlling principles will control my vote. Were I a member of the Legislature, and this provision were offered, I should not be averse to it. I am inclined to think I would support it, and give it a trial, but it is a very different ques- tion here to-day; and for that reason I exercise the privilege to which the gentleman from Roanoke says we are all entitled, to declare my opposition to it. Mr. Parks: Mr. Chairman, I had not intended saying anything upon this subject, but while to some it may seem a small matter, to my mind, it is very important. I have voted to place in this Constitution measures that, in my judgment, were of a legislative character. I did it because I thought it was best and right to do it. I did it against my better judgment in reference to Constitution-making, believing that nothing should go in the organic law of the State unless there underlies it a general principle, a broad, comprehensive principle, affecting the whole body-politic, and touching all the people alike. When we come to this matter, this is not merely legislative in its character. It is the worst kind of special legislation. Why? Look at the third section. It says if this becomes a law it shall not interfere with local option nor with dispensaries. Therefore, you would have in one district in a county, for instance, in the county of the gentleman from Southampton (Mr. Barham), liquor disposed of under the dispensary system, in another district the sale of liquor governed and controlled by the local option law, in another district the sale of liquor governed and controlled by what is said to be a majority of the voting population, or of the registered voters in the precinct signing a petition taken around by somebody, and, as suggested by the gentleman who has just DEBATES OF THE CONSTITUTIOis" AL COXVENTIOIT OF VIRGINIA. 2601 taken his seat (Mr. Kendall)! can see very well how great trouble would arise growing out of that very matter, and that people in a community would be set by the ears be- cause there would b^ those who would say, when questioned about it, "I did not sign mj name to that petition, and I did not give anybody else the right to sign my name to it." And there would be a question of veracity. If we propose by any such method as this, or by any other method, to stop the sale of ardent spirits, the only way we can reach it at all to any extent, is by stopping the manufacture of it. That will not stop it entirely, because even in States where the manufacture of ardent spirits is prohibited, liquor is gotten and sold; but you license the maufacture of liquor, and when you do so, when you give a man under the sanction of the law a right to manufacture an article, there goes with ft the implied authority to dispose of that article, and whether the authority is implied or express, he will argue this way to himself: "You license me to manufacture, and whether you give me the right to sell it or not, I propose to sell it." Mr. Chairman, what my personal habits may be have nothing to do with this ques- tion. None of the gentlemen who have spoken, with the exception of the gentleman from Washington (Mr. Summers) have said they are teetotalers and prohibitionists. What my habits or my wishes may be as to the use of ardent spirits has nothing to do with this matter; but I want to say this, and I challenge contradiction of it, that the distilleries are doing more to debauch and corrupt the morals and ruin the young men of the country than all the bar-rooms in the land. Why? Because you give them the right to sell by the gallon, and I know, and every other man knows, who knows any- thing about it, that they sell by the drink, by the pint, by the quart, on Sunday and week days, and to anybody, young or old, high or low, rich or poor, black or white, male or female— anybody who wants to drink it. (Laughter.) Mr. Robertson: That is the case right in your own county, it is not? Mr. Parks: Yes, sir; right in my own county; and in every other county in my section of the State wherever there is a distillery, they will do it. Why is this gentlemen? Let us look at the facts. I say that a great deal of the trouble has grown out of the manner in which the manufacture and sale of ardent spirits has been conducted by the government, both Federal and State. The Federal government licenses a man to manufacture whiskey or brandy, and then puts over him an inspector or a store-keeper to watch him. It practically says " you are a scoundrel. You will not observe the law and the government will put an inspector to watch over your conduct." The State government licenses the manufacture and it provides the manner in which license may be obtained for the sale of it; and what have we done? Do we license it as any.thing else is licensed? No, we throw around it the safeguard of the court. We say to the man, "While we will give you license to sell, you must go to the court and prove that you are a suitable man; you must show the place is a suitable place; then you must give bond." And, gentlemen, in this connection let me say that the Legislature of this State has done all the temperance people have ever asked at their hands. What have we done? We have said that if a party makes application to the court for license, any citizen of a county may come forward and appear as a defendant and have the same rights in court as any litigant, introduce witnesses and make all the opposition that can be made to the granting of a license. What further? Why. the temperance people then said, "We do not know when the man is going to make his motion. We do not know when he is going to court with his application, and we will not be prepared." Very well; the Legislature then said further: "Whenever a man proposes to apply to the court for a license, and at the place where he proposes to ask for the exercise of this privilege, and in front of the court-house door of the county for thirty days, so as to give notice to the public of his purpose, and that the people, if they object to it, shall have the opportunity, as the law confers upon them the right, to appear in court and oppose it. 164— Const. Deb. 2602 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. It is said we propose to go a step further. The law provides for a license, but we propose to say "You must take a petition and go around and get a majority of the registered voters who voted at the last election," if that is the form in which it is put, or if the other way, "a majority of the registered voters of a precinct, to sign a petition requesting a license. Look at the position in which we put ourselves. The law provides for granting of license, and legalizes the traffic, and yet says to the citizen who proposes to engage in it, "Although the law does that, you must go and get the consent of the people to allow you to do what the law says you shall have the right to do." What sort of position is that for us to put ourselves in? I thank you gentlemen. Mr. Dunaway: Mr. Chairman, before the vote is taken I wish to engage the atten- tion of the committee for a short while upon this very important subject. Replying first to the speech that has been made here by my friend from North- ampton (Mr. Kendall), ISecause it is fresher in my mind, he takes the position, which is probably taken by a good many other gentlemen on this floor, that this provision should not be adopted into our Constitution, because it is an experiment, in the first place, and will put the people of certain precincts of the State by the ears, to use his own expres,- sion on this subject. Mr. Chairman, I wish to say that the people of Virginia are already by the ears on this matter in every precinct in the State. If the members of the Convention have con- sidered the trend of affairs in Virginia for the last twenty years, they must be obser- vant of the fact that a great moral reform has swept over the Commonwealth of Vir- ginia, and that sooner or later the contest which is waged upon this floor will be crowned with victory for the advocates of the measure that proposes that there shall not be a licensed saloon in the Commonwealth of Virginia. The relief is coming, Mr. Chairman. It may not come through this Convention, but it is on the way, and the time is coming — I hope some of us may live to see it — when there will not be a licensed bar-room in the State of Virginia. As for the people being put by the ears upon it, what is the conditon of affairs now, under your local option laws? The same thing exists in every county, iji every district in the State. Men will differ, and sometimes, unfor- tunately, they will fall out on account of their differences. They say this is an experiment. You are going to try several experiments. You have adopted the experiment of a railroad commission in the State of Virginia; and you did not stop at that because it was an experiment, but because you believed you were upon the line of right, and therefore adopted it. Some gentlemen say the whole matter ought to be left to the General Assembly. I have found in the discussion here that if we favor a measure we are willing to put it in the Constitution, whether it has legisla- tive characteristics or not, and if we are opposed to if, we seek to condemn it by saying it is a matter that ought to be left to the General Assembly of Virginia. We have already adopted this corporation article, which is essentially legislative in its character, and yet gentlemen who voted to support that will condemn this because it is legisla- tive in its character. Now, in regard to another objection raised, that it is going to hazard the adoption of your Constitution. We must be cognizant of the fact that a great many petitions have Deen brought here, signed by, perhaps, 20,000 of the registered voters of the Com- monwealth of Virginia — a small part, it may be, but I will tell you, gentlemen of the committee, that these 20,000, in my judgment, represent a majority of the voters of the Commonwealth, and the people behind this measure can make or unmake your Consti- tution. There are more people behind this measure than are engaged in the liquor traffic in Virginia. The temperance people of Virginia can control more votes in Vir- ginia than the whiskey element can control in the State; and the people who are ask- ing this measure at your hands can defeat your Constitution if they want to do so. They are patriotic citizens, and they will most likely vote for your Constitution if it is DEBATES OE THE COXSTITETIOXAL COXYEXTIOX OE VIEGIXIA. 2603 submitted to them, Tvhetlier 3-ou liave outraged their desires or not, by failing to give them this reliei, but that is no way for this Convenion to treat those who stand them in the hour of their peril. It may be that the whiskey interest will threaten the OTer- throw of our Constitution, but I doubt whether they have that degree of patriotism which is entertained by the men who have signed the petitions which hare come up here. Coming to the main question, what is this which is here before us? It is not a proposition to prohibit the sale of ardent spirits in the Commonwealth of Virginia. It is not a measure of prohibiton. It does not prohibit the manufacture or the sale of whiskey anywhere in the Commonwealth, or of brandj', wine, or sluj other ardent spirits whatsoever. It does not even say there shall not be a bar-room in any place in Vir- ginia, but it proposes to leave it to the people in the various localities of the State to say whether they will have a licensed bar-room or not. Mr. Chairman, from the time when I was a boy, this question in regard to the sale of intoxicants has been before the people of Virginia. The friends of it have adopted various devices. I, myself, have been a member of a temperance association, the Gaod Templars, for instance. I remember in my boyhood when the old Sons of Temperance were in Virginia. I wish to say that I believe the friends of temperance in the Com- monwealth have made mistakes along that line, and that relief can never come to the people through any of these organizations. Years ago I formed the opinion that the proper way to do was to strike at the saloons in every part of the State. I rejoice to live in the da^* when there is in the Commonwealth of Virginia a league that is known as the Anti-Saloon Leagtie. Mr. Quarles: Do you believe the sale of intoxicating liquors is an evil? Mr. Dunaway: I believe the sale in licensed bar-rooms is an unmitigated curse in any place where it exists. (Applause), Mr. Quarles: Then you believe in prohibiting it? Mr. Dunaway: Xo, sir. It does not necessarily follow. Mr. Quarles: You are willing to sanction, in the Constitution of Virginia, the sale of it, are you though you believe it an unmitigated curse? Mr. Dunaway: I\Ir. Chairman, if we cannot accomplish a perfect and thorough re- form in regard to this great evil that afflicts our land. I am for striking at what I con- sider to be the tap root of the free of evil, and that is the saloon. Just let me get the saloon out of the Commonwealth, in the first place, and in the meantime you may go on and have whiskey sold. Yes, sir, I would compromise with the whiskey element in the Commonwealth of Virginia upon that right now. You may sell it as articles of mer- chandise are sold in your respectable stores, in certain quantities, gallon quantities, as provided here, not to be drunk where sold. I do not regard it as the chief evil in A'ir- ginia that whiskey is made and drunk, but I regard it as the chief evil that the Com- monwealth of Virgina licenses these places, that whiskey may be drunk where it is sold and where young and old men may be tempted, debauched and corrupted, ruined, filled in their latter days with shame and remorse. I say I regard the bar-room as an evil in this Commonwealth. Tkose who oppose this measure will unanimously agree with me, I think, upon that question. I do not be- lieve there is a man upon this floor who thinks a bar-room is a good thing to have in any community in the State. I regard this whole proposition as a blow at the bar-rooms, and because of that fact I give it my advocacy and my vote. If there be an evil, what are you going to do with it? Regulate it? Regulate an evil? I think the right thing to do with an evil is to abolish it if you can do ft: abolish in a proper way, and in accordance with the spirit of our institutions, by a majority of the voters in any particular place in the Commonwealth. Mr. Quarles: If I understand yoy correctly, you are willing to sanction the sale 2604 DEBATES OF THE CONSTITUTION^AL CONVENTION OF VIRGINIA. cf liquor in this Commonwealth by a provision in our Constitution? You are wiling to perpetuate the sale of it? Mr. Dunaway: Mr. Chairman, this is not a question of the sale or no sale of ardent spirits in any part of the Commonwealth. It is a question of whether we as citizens, of Virginia, are willing to do something to get the bar-rooms out of the Com- monwealth. I say that it is an evil, and we ought to try and rid of it if we can; but the position of the Commonwealth of Virginia is a false and untenable position upon this subject. I hope gentlemen will hear me when I say that. I repeat it, the position the Commonwealth occupies upon this subject is a false and untenable position. It has been so for a long time. The Commonwealth assumes that the bar-room is a good thing. I am very glad that no opponent of this measure has said anything about the State getting revenue out of it. That old gun has been spiked long ago, because it is well known that the criminal expenses growing out of the ex- istence of these bar-rooms more than consumes the revenue that comes into the State from them. The State is occupying the position of the barroom keeper. It is said it is a good thing and we must make money out of it; and that is what old Virginia is doing, making money out of a great evil that is cursing a great many of her people. The friends of this measure say it is an evil. The State and the opponents of this measure say it is a good thing to have the bar-room, and, notwithstanding we think it is a good thing, we give you a chance to vote it out if you can get a measure in your local option election. The friends of this measure come with the opposite position and say it is a great evil, and that it should not be forced upon a community, and that no com- munity ought to be allowed to have an evil in its midst unless, acting upon an old Democratic principle, a majority of the people of that precinct say it ought to be there. T ask you which is the correct position upon this subject. Will you force it upon the people, or will you let the people take it at your hands? That is one of the great ques- tions we are to decide here. This is a proper measure, in my judgment,Mr. Chairman, and, so far- as local option is concerned, and the relations of this measure to local option, I regard this merely as supplemental. Where local option exists, this measure would not apply. Now, some gentlemen have said that local option exists in fifty-five counties of the State. One of the gentlemen sitting here before me, my esteemed friend from Rock- bridge (Mr. Anderson) has sought to find out how many counties there are in the Commonwealth that have local option by sending around a paper among the members of the Convention. I will ask him how many there are. Mr. William A. Anderson: As near as I can get at it from the knowledge of mem- bers of the Convention who have responded to the inquiry, Mr, Chairman, there are about twenty-four counties in the State that have local option throughout the counties, but a large number of counties, as many more, perhaps, have local option in various magisterial districts in parts of those counties; and in a number of those counties no licenses are issued — either none at all, or none, perhaps, except in one locality, gen- erally the county seat. As near as I can get at it, no license is granted for the sale of liquor in much more than one-half of the Commonwealth. Mr. Dunaway: Mr. Chairman, I just wish to make one more remark, and I will re- lieve the attention of the committee. They say you are making an experiment, and you ought to leave it to the General Assembly of Virginia. What we want, and what we are contending for, is the establishment of a principle. Principles do not change with the coming and the going of the years. The time will never come in the history of Virginia when the bar-room can be a good thing. Some things may change their nature, but this cannot change. The Ethiopian cannot change his skin, nor the leopard his spots, and this cannot be made into a good thing in the State of Virginia. DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF TIEGIXIA. 2605 Anotlier thing is true and eternal; and it lies at the very lowest part of the founda- tion of our American political systems and of our constitutions — that majorities shall rule. Now, here are two everlasting principles, and we want to engraft principles into the Constitution. So you need not fear that if you adopt this principle that it will he an experiment and that subsequent Legislatures may find that it is not wise. No Legis- lature ever elected in Virginia will be wise enough to say that the bar-room is a good thing, or that a majority of the people in any place ought not to control this subject in their midst. Thanking you, gentlemen, for your attention, I must leave the matter to your decision. Mr. P. W. Campbell: Mr. Chairman, having been credited with the distinction of having cast the deciding vote of the committee in favor of the Quarles-Barbour resolu- tion, I desire to submit just a few remarks, not believing for an instant that my remarks can change a single vote of any member of this committee, but for my own satisfaction and as a duty which I think I owe my constituents. The consideration which deter- mined me to vote in favor of this resolution was not that which seems to have actuated a number of the gentlemen on the committee, and which seems to be actuating a num- ber who have addressed themselves to this question on this floor. It puzzled me long, and I was deeply worried as to whether or not I should advocate this measure. The question of morals, I must confess, entered but little into my determina- tion to support it. I am not one of those. Mr. Chairman, who believe so greatly in the old principle that we are our brother's keeper. I think that every man has a right, in this country, so long as he does not trespass upon the rights of others, to do as he sees fit. The consideration which did actuate me was whether or not this was a provision that should go into the organic law of our land, and I arrived at the decision that it was, based upon the high principle that this is truly the embodiment of the highest form of local self-government. If the people of a community or a county want to place upon themselves the evil of the liquor traflBc then I say let the people of that community or the people of that county have the right to do so; but if. on the other hand, the people of a certain community do not want to place them- selves under the ban of the liquor traffic then I say they have the right by the exercise of their privileges of citizenship, to say that this traflic shall not be forced upon them. Mr. Chairman, for those reasons, and not for fanatical reasons, as has been some- times charged against the members of the committee who voted in favor of this resolu- tion. I was led to support this measure. Intimations have been made here that some of these who advocated this measure were afraid of the Christian element throughout the State. I want to say for myself, that I do not believe the principle I have just enuncia- ted entered into this matter, and the Christian people of the State of Virginia, and I hope I am one of them," with all their combined effort in carrying out what may be with them a fanatical movement, could not force me to support the measure. I repudiate any insinuation, from whatever source, that I, for one, have been actuate~H by any motives of fear or favor. I do not believe that the advocates of temperance would threaten the people of the State of Virginia. I think that argument by the opponents of this measure is a bugaboo. I do not think the advocates of temperance would imperil the Constitu- tion whch we are framing by voting against it because we simply refuse to incorporate this single provision in our organic law. For these reasons I supported the resolution offered by the gentleman from Culpeper in committee, and for these reasons, sir, I intend to support it upon the floor of this Convention. :\Ir. Wescott: Mr. Chairman and gentlemen of the committee, I want to relieve your minds from the consternation which I fear will result from the size of these vol- umes I have brought with me by assuring you that I have no intention to make, in this matter, any further protracted argument. Last Monday, two weeks ago, I attempted, as best I could, to point out some of the gravest and weightiest objection which this matter, as reported by the committee pre- sented to my mind. 2606 DEBATES OF THE CONSTITUTIOIS^AL CONVENTION" OF VIRGINIA. In the course of my remarks I said — I have not the exact language before me, but I think I can state accurately and succintly what it was — that there was no parallel to be found for this species of legislation in any Constitution of any State in the Union, nor in any statute ever enacted by the General Assembly of any State in the Union. The distinguished gentleman from Culpeper, for whom it is useless for me to asseverate, I entertain the highest respect and most unbounded admiration, said that I was wrong in the statement I have referred to. The urbanity which ever characterizes that gentle- man's utterances and demeanor in all respects induced him to say further that he be- lieved I would not have made the statement, which he characterized as a wrong state- ment, If I had known that it was wrong. For that I am duly grateful to the gentleman, and, in his own language, I wish to say the same with reference to his utterances yester- day. Mr. Barbour: I will state to my friend that I did not confine it lo a statement of belief. I said that I was sure. Mr. Wescott: Permit me, Mr. Chairman, to read from the remarks of the gentle- man from Culpeper on yesterday afternoon: Another objection which has been raised to this measure is that it is totally unpre- cedented either in the legislative or constitutional history of the country. I am sure my friend from Accomac did not know that that statement was wrong, or he would not have made it; but the fact is that it is a mistake. In the State of Mississippi they have this law now. Let me, in the first instance, ask your attention to the law of Mississippi, and per- mit me to say to you that if I am capable of forming any definite or intelligent conclu- sion from the reading of the statute, the gentleman was never more mistaken in his life than when he asserted upon this floor that they had this law in the State of Mississippi, or that there was any element of mistake or wrong statement in any remarks of my own to which he was then referring, I do not mean to say that there are not certain features of this measure that have been enacted into law; but that it as a substantial whole has never found place in any provision in the constitution of any State, or in the statute law of any State of the Union. I say that this law does not exist in the State of Mississippi, and whilst I cannot go into detail and point out to you the differences between the two laws, I can point out some materiar elements of difference, which will suffice to demonstrate the accuracy of my former statement. For instance, the provison in the statute, not in the Constitution of Mississippi, is that "a license shall not be granted to any person to retail liquors in less quantites than one gallon, unless the applicant shall first produce a petition for the issuance of such license, recommending the applicant to be of good reputation, and a sober and suitable person to receive such license;" mark you, the first difference between these two pro- visions exists in this, that in Mississippi the law is not local or special, but applies to every foot of the territory of the State. In the second place it requires the petition to be signed by a majority of the legal voters — I believe that has been corrected by amend- ment, but at the time the gentleman's remarks were made he was addressing himself, and so was I, to this provision as reported. There is another difference. There stUI exists a more fundamental and radical difference than either of those to which I have directed your attention. It is this: That in Mississippi, the petition has to state that the applicant "is of good reputation, and a sober man and suitable person to receive such license," while under the provision contained in the article under discussion, no license whatever shall issue to any person unless he present a petition signed by a majority of the legal voters of the voting precincf in which the applicant proposes to sell liquor indicating that it is the wish of the signers that such license should be granted. The difference between the measure sought to be incorporated into the fundamen- DEBATES OE TKE COXSTITUTIOXAL COXYEXTIOX OF VIRGIXIA. 2607 tal law of this Commonwealth and the statute of Mississippi is this, that in Mississippi the opinion of the citizens of the district is sought to be obtained as to the qualifica- tions and fitness of the applicant, while by the law which now exists in the State, and which by this anamolous provision is to remain in force, that question is relegated to the judge, to be determined upon sworn testimony. In this unprecedented piece of legislation the petition speaks not as to whether the applicant is a fit and suitable per- son, not whether he possesses the essential qualifications which, under the theory of that law he is required to possess; but it is sought to vest a majority by petition with the right to reverse the previous determination of a majority of the legal voters ex- pressed at the polls upon that question, and to determine upon the main question whether or not a license shall issue at all. More than that, gentlemen, there is one other difference. In the Mississippi statute ample protection is provided against signatures which are not genuine and do not repre- sent the wish of the person whose name purports to be signed to them by a provision which requires that before the application for a license shall be considered, the petition shall be published at least three weeks, to the end that the people may know who has petitioned and whose names purport to be signed thereto. Mr. Dunaway: As to the matter just spoken of by the gentleman from Accomac, of course if this measure is adopted in the Constitution, legislative action will be neces- sary in regard to the details just spoken of. I want to ask the question, if you do not have the same objection, just alleged, against this measure, that may now be urged against the petition for local option. There is nothing said there about publishing. Mr. Wescott: Mr. Chairman, I submit that my clerical friend is not as good a lawyer as he might have been, in the short time that he devoted himself to the practice of law, or he would not have asked that question. This purports to be a complete legisla- tive provision, and, so far as I know, requires no supplemental legislation to make it effectual. It is operative from the time this Constitution is adopted, if it ever has that good fortune. I am aware that this matter has already occupied considerable time in its discus- sion, and I am extremely loath to continue it, but let me again ask your attention to the remarks of the gentleman from Culpeper. He says: I call my friend's attention — and I take it was myself to whom he referred — to the fact that in the great State of Missouri, one of the most progressive in the United States, they have a very much more stringent principle than that w^hich is announced here, and that is, that no liquor license can be granted until a petition for it is signed by a majority of the tax-paying voters of every precinct in the State. That is much more stringent than the resolution which has been reported from this committee — not voters, but a majority of the tax-paying voters, and the guardians of infants who own property in the district. I only refer to the Missouri statute, Mr. Chairman, for the purpose of demonstrat- ing the facts that I was not wrong when I said this legislation was unprecedented in any Constitution or statute. From the fact that this paragraph follows in close succes- sion upon the other I have read, it is manifest that the gentleman desired to enumerate the State of Missouri as well as Mississippi in contradiction of my statement. I want to direct 3'our attention to the marked differences between the measure that exists in Missouri, under statute, and that which it is proposed to incorporate into our Constitu- tion. The statute in Missouri is in no wise similar to the statute which is sought to be incorporated here. It requires a majority of the assessed tax-payers anfl the guardian of infants owning property in the block or square in which the dram-shop is to be kept, to sign the petition for a license, in every city or incorporated town of 2,000 inhabi- tants or over. I need not emphasize this difference. It is required in every city or incorporated town of 2,000 inhabitants or more, a majority of the tax-paying voters owning property, including the guardians of minors owning property in the block or square where the dram-shop is to be located, to sign a petition. That is a provision 2608 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. which exists, under city ordinances, in many of the cities of the Union, and is one, the wisdom of which I most heartily commend. Then there is a further provision that in any city containing less than 2,000 inhabitants and in any incorporated town contain- ing less than 2,000 inhabitants, and in any municipal township containing less than 2,000 inhabitants, a majority of assessed tax-paying citizens, and guardians of minors owning property therein, and in the block and square in which the dram-shop is to be kept, shall sign the petition. Let me call your attention to another difference. Under this ■anom.alous provision it is applicable only to the counties of the State and magisterial districts of counties where local option does not obtain. The Missouri statute deals with cities, incorporated towns, and with municipal townships. " Municipal townships " is perhaps an expression with which most of you are not familiar. I have pursued the investigation into the statutes of Missouri to ascertain what a municipal township is, and I find that there is a general statute providing that rural districts may be incorporated into municipal townships with the right to sue and be sued, to issue bonds, and with practically every other right that every other muni- cipal corporation has by the vote of a majority of the legal voters of the township sought to be incorporated. There stands out the difference to which the gentleman from Page referred in bold relief. In Missouri they seek to deal with this liquor traffic, this blighting curse, as the gentleman from Lancaster calls it, and in which I heartily concur, in the populous centers where that curse is most potential for evil; but when they come down to these portions of the rural section of the State that are not incor- porated into municipal townships, it does not apply at all. The signers are to be the assessed tax-payers, instead of the legally qualified voters. The allusion of the gentle- man to the Constitutions of Texas and Kentucky are justified only in so far as those Constitutions contain the provision that the General Assembly shall do that which our General Assembly has long since done, towit, enact local option laws. That is the only provision in the Constitution of any State bearing upon this subject that I have been able to find, -or that the gentleman from Culpeper has been able to find, although there may be others. Just one word more in conclusion. It has been said that the statement which I made upon the floor and which I stated at the time I quoted from one of the most dis- tinguished clergymen of the State, which appeared in public print, that local option prevailed in fifty-five counties of the State, was a mistake. I adverted to it in connec- tion with the statement that this was special and local legislation in the Constitution, in that it did not apply to all of the State or to all of the people of the State. It has been said that local option applies only partially in some of those counties. I knew that to be the fact, and I did not mean to state to the contrary. But I think the gen- tleman might as well have let that fact rest and not have brought it conspicuously to the front, for it demonstrates as nothing 'else can, the fact that this legislation is local, special and unheard of in a Constitution, which should embrace the fundamental prin- ciples of the law applicable to every foot of territory in the State and to every class of citizens of the State, except where discriminations may be made between residents of cities and rural districts. If we enact this into our Constitution we find that in per- haps twenty-five counties of this State a provision of the Constitution may be in full force and effect in one magisterial district of a county, and yet in the other two, three or four magisterial districts of the same county that constitutional provision is a dead letter, by the express terms of the provisions thereof. Anomalous, unprecedented, crazy- quilt patch-work! I reiterate every arraignment that I have heretofore attempted to make against this measure. It is said by those gentlemen who advocate this article that they are giving adherence to principle and they talk with great earnestness and eloquence when they contend for neighborhood rule. No man believes in that more heartily and sincerely than I do. They say this is neighborhood rule. Let me suggest to some of these gentlemen who are displaying such zeal in behalf of this questionable measure that if the wish to DEBATES OF THE COXSTITUTIOXAL COXVENTIOX OE YIRGIXIA. 2609 change the provisions of the law in the State of Virginia upon this question and to bring it down to neighborhood control all they have to do is to get the General Assem- bly TO amend the local option law and provide that you shall hold upon the petition of a certain number of voters, a local option election in a voting precinct, or a less sub- division of the county, than under the present terms of the law can be held. By this method the relief of this admirable principle, for which the gentlemen contend with such zeal and such eloquence, will be obtained. It was not deemed wise either by the advocates of that measure or by the General Assembly which passed the local option laws to make the provisions of the local option law applicable fo any smaller subdivison than a magisterial district. I wish to urge upon the gentleman from Culpeper and Lancaster, and others who insist upon inserting this measure into our constitution, that the very object which they profess to be seeking along that line, the very happy result which they tell you will follow from this measure if embodied into our Constitu- tion, can be attained with as great and even greater facility and more effectually by such an amendment to the local law itself, than by the insertion of this article into our Constitution. Mr. Barbour: Mr. Chairman, I do not desire to detain the Convention very long and will not attempt to say anything in response to the remarks of the gentleman intended to show that I was mistaken in reference to the statutory provisions in Miss- issippi. Notwithstanding his hair-splitting, I still assert that the provisions of the Miss- issippi statute are substantially the same as this, but this, of course, does not contain everything that is in that statute. It has been one of my arguments before this com- mittee that it was not a statute and that all of these matters of detail were left to the Legislature, where they properly belong. The gentleman sought, however, to show that I was mistaken in reference to the statute of ]Missouri and I desire to read this portion of Section 2997, which bears on this matter: It shall not be lawful for any county court in this State, or clerk thereof in vaca- tion, or any other authority, to grant any license to keep a dramshop in any town or city containing two thousand inhabitants or more, until a majority of the assessed tax- paying citizens and guardians of minors owning property in the block or square in which the dramshop is to be kept, shall sign a petition asking for such license to keep a dramshop in such block or square, in such town or city; nor in any city containing less than two thousand inhabitants, nor in any incorporated town or municipal township, until a majority, both of the assessed tax-paying citizens, and guardians of minors own- ing property therein, and in the block or square in which the dramshop is to be kept, shall sign a petition asking for such license to keep a dramshop therein, Mr. Wescott: That is exactly the way I read it. Mr. Barbour: Except that you inserted the words "incorporated municipal town," which does not appear in the statute. In Missouri the counties are divided into town- ships just as in the State of Virginia they are divided into magisterial districts. Mr. Wescott: I think if the gentleman had pursued his investigation a little further, as I have done, he would have ascertained that my statement is entirely borne out by the very volume he has in his hand. The law of that State provides that muni- cipal townships may be incorporated by the residents of that township, by election. It is not an arbitrary sub-divison, as in our State, into magisterial districts and voting precincts; but there is to be an election to decide whether there shall be incorporated municipal townships and when that is settled the statute determines what shall be their legal right and status. ]\Ir. Barbour: If the gentleman had only held his fire I would h?.ve shown him the authority upon which I base my statement and read to him the authority in the Consti- tution which provides for these townships. They have a S3^stem under which these townships may form a tovvTiship organization and under that system each township has control of its local affairs, just like a county has. This is a provision of the Constitution upon this subject: 2610 DEBATES OF THE COI^STITUTIOXAL CONVENTION OF VIRGINIA. The General Assembly may provide, by general law, for township organization under which any county may organize whenever a majority of the legal voters of such county, voting at any general election, shall so determine; and whenever any county shall adopt township organization, so much of this Constitution as provides for the management of county affairs, and the assessment and collection of the revenue by county officers, in conflict with such general law for township organization may be dis- pensed with, and the business of said county, and the local concerns of the several town- ships therein, may be transacted in such manner as may be prescribed by law. So it permits these counties to take away from the central county authorities their control over local revenues, and place it in these municipal townships. That is a provision of the Constitution. I submit that my remarks on these two provisions are absolutely correct. The Chairman: The question is upon the adoption of the substitute offered by the gentleman from Augusta, which the Secretary will read. The Legislature shall have full power of enacting local option or dispensary laws, or any other laws, controlling, regulating or prohibiting the manufacture or sale of intoxicating liquors. The substitute was agreed to, there being on a division, ayes, 28; noes, 24. The Chairman: If there are no further amendments to Section 2 the Secretary will read Section 1 of the last article of the report. Future changes in the Constitution. Sec. 1. Any amendment or amendments to the Constitution may be proposed in the Senate and House of Delegates, and if the same shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendment or amendments shall be entered on their journals, with the ayes and noes taken thereon, and referred to the General Assembly to be chosen at the next general election of Senators and mem- bers of the House of Delegates, and shall be published for three months previous to the time of making such choice. And if in the General Assembly so next chosen as afore- said, such proposed amendment or amendments shall be agreed to by a majority of all the members elected to each house, then it shall be the duty of the General Assembly to submit such proposed amendment or amendments to the people, in such manner and at such times as the General Assembly shall prescribe; and if the people shall approve and ratify such amendment or amendments by a majority of the electors qualified to vote for members of the General Assembly voting thereon, such amendment or amend- ments shall become part of the Constitution. The Chairman: Are there any amendments to Section 1? If not, the Secretary will read Section 2. Sec. 2. At such time as the General Assembly may by law provide, the question, " Shall there be a convention to revise the Constitution and amend the same?" shall be decided by the electors qualified to vote for members of the General Assembly; and in case a majority of the electors so qualified, voting at such election, shall decide in favor of a convention for such purpose, the General Assembly, at its next session, shall provide by law for the election of delegates to such convention. Mr. Wysor: I have an amendment I desire to offer to that section. In line 3, Section 2, strike out the word "amend" and insert the words " propose amendments to." Mr. Chairman and gentlemen of the committee, I hope the committee will settle the question raised by that amendment one way or the other. You will observe that the committee has reported the words contained in the present Constitution. Section 2 reads: At such time as the General Assembly may by law provide, the question. Shall there be a convention to revise the Constitution and amend the same? shall be decided by the electors, etc. In the debate before the Convention as to v^hether this question should be sub- DEBATES OF THE COXSTITUTIOXAL CONVEXTIOis" OE VIRGINIA. 2611 mitted to the people, whether we were compelled to do it or whether we should pro- claim it, that clause was relied upon by gentlemen in the Convention to show that we had a right to proclaim the Constitution. My own view of it is that that is not a proper construction to put upon the words; that the words do not give us any such power; but it was so contended in this body, with a great deal of force, by many gen- tlemen. Certainly that is an ambiguous expression, then, so far as the Convention is concerned. It was the most forcible argument made here by gentlemen who were in favor of proclaiming the Constitution. They could get no authority anywhere else. The party had in its platform a provision that it would submit the Constitution to the electorate, and it could mean nothing but the entire electorate. The entire electorate constitute the constituency of this body, and they gave this body all the power it has. That is the only electorate to which you would have any right to submit the Constitu- tion. I do not believe that there is a single judge in the Supreme Court of Virginia who would hold that we have the right to proclaim the Constitution. The great argu- m.ent made was that the Constitution uses the words, "Shall there be a Convention to revise the Constitution and amend the same," and that that meant we had the power to amend it. I have inserted here in my amendment the words, "at such time as the General Assembly may by law provide, the question. Shall there be a Convention to re- vise the Constitution and propose amendments to the same? shall be decided," etc. I wish you would settle it one way or the other. If you cannot adopt that amend- ment, let us put in the language "Shall there be a Convention to revise the Constitution and proclaim the same." If that is what it means, and what the majority want, let us put it in there. Do not let us leave it ambiguous and uncertain in its meaning. The debates in the Convention have not yet settled it, and I want it settled one way or the other. If this amendment is voted down, let the gentleman who believes the Constitu- tion ought to be proclaimed offer an amendment to put in the word "proclaimed." Let us make it certain and definite what the Constitution means. I think it is our duty to do it, so that another Convention may not have a great debate over that question. I hope it will be the pleasure of the body to agree to the amendment. Mr. Harrison: Mr. Chairman, I have been with the gentleman from Pulaski (Mr. Wysor) in the contention that this body has no power to proclaim the Constitution. I do not derive that from the language of the Constitution itself, but from the act under which the members of this body have been elected. My theory is that no provision that we put in the Constitution can in any way affect the right of the people to call a Con- stitutional Convention when they please, and to repose in the members of that Consti- tutional Convention such powers as they choose to delegate to them. The basic princi- pal of constitutional government is that the people have the right to change and alter their government in such way and in such manner as they choose, and therefore any con- stitutional provision which has any reference whatever to any future Constitutional Con- vention is absolutely nugatory and void, because it is undertaking by this Convention to limit and restrict the powers of another Constitutional Convention, which this Con- vention has no right to do. If we put those words in there the effect of it vfill be this: It might be urged that the people will have enoug'h power to call a Constitutional Convention with the power to proclaim. I think it would be a very unfortunate thing that the people should be re- stricted. I believe the provision will be wholly nugatory, but still it might be urged hereafter that a Constitutional Convention could never be called with power to proclaim a Constitution. We cannot look into the future and say that a time will not arise when it v/ill be essential to have that power. It was necessary in 1861, because we had no opportunity to submit a constitutional amendment to the people, and in time of war and excitement it may be that we will not have the opportunity to submit the question for ratification, when it may be essential that the Convention should have the power of proclamation. So I do not think those words ought to go in. I think it would be absolutely nugatory and void, but at the same time it would limit the free discussion of the question. 2612 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. I wish to propose a substitute for the amendment of the gentleman from Pulaski, which I think would carry out his purpose. This section leaves out these words, which I think ought to be in there: "At the general election to he held in the year 1888, and each twentieth year thereafter, and also at such times." I think the question as to whether there should be a Constitutional Convention ought to be submitted to the people at stated periods. I do not believe we ought to leave it merely discretionary with the Legislature to submit the question when they think proper. I think we ought to pro- vide that at certain stated periods the question shall be submitted to the people. I think the provision of the gentleman from Pulaski should then be adopted, as suggested. When that question is submitted to the people, it ought to be coupled with the power simply to propose amendments and not to proclaim them. Mr. Wysor: Mr. Chairman, I have changed the wording of my amendment, and I ask that it may be read. In line 3, Section 2, strike out the word " amend " and insert in lieu thereof the words " proposed or proclaimed " and after the word " same " in the same line, add the words " as the people m^ay elect." I have offered that amendment so as to make it comport with the views of the gen- tleman from Winchester (Mr. Harrison), with whom I agree. I do not deny the right of the people to give the Convention power to proclaim a Constitution, but they must do so directly and unmistakably. The amendment leaves the whole matter with the peo- ple as to whether they are going to have a Convention to propose a Constitution or pro- claim it. Certainly they ought to have that power and that right. Then you will not have any wrangle or dispute about it, because the question will be submitted to them, and they will say whether they want you to proclaim it or pro- pose it. Mr. Gillespie: I propose to amend the amendment of the gentleman from Pulaski by striking out of his amendment the words "or proclaim." Mr. Wysor: Mr. Chairman, I cannot agree to that amendment. My own views are that the Constitution ought always to be proposed, but I think the people have a right tc authorize the Convention to proclaim, and I think it ought to be so stated unmistak- ably in the Constitution. When that question is submitted to the people they might elect the Convention to either proclaim it or propose it. Mr. Barbour: May I ask the gentleman if he does not think they should also have a right to elect a Convention with discretion to do either that the Convention thinks wise? Mr. Wysor: Yes, sir. The Chairman: The question is on agreeing to the amendment offered by the gen- tleman from Tazewell. The amendment was rejected. The Chairman: The question recurs on agreeing to the amendment offered by the gentleman from Pulaski. The amendment was rejected. Mr. Harrison: I now offer an amendment. It is simply to give the people the power to vote on this question whether the Legislature wants them to do so or not. Insert at the beginning of Section 2, the following: At the general election to be held in , and in every twentieth year there- after, the question, shall there be a Convention to propose amendments to the Consti- tution, shall be decided by the electorate qualified to vote for members of the General Assembly. The committee has stricken out the power of the people to call a Convention unless the question is submitted to them by the General Assembly. Under the present Con- stitution they have the right to vote on that question, whether the Legislature wants DEBATES OF THE COXSTITrTIOXAL COXVEXIIOX OF VIRGIXIA. 2613 it or not. When a Convention is called under those circumstances, I think it ought to be simply to propose amendments and not to proclaim them. Mr. James W. Gordon: ^Ir. Chairman, I move to amend the amendment offered by the gentleman from Winchester (Mr. Harrison) by striking out that clause as to the proposition, and to leave the introductory part of the amendment just as he has offered it; that is, to provide for a submission of the question whether there shall be a Convention to revise the Constitution and amend the same as it is in the present Constitution, to be submitted each twentieth year, because otherwise we would have a legislative oligarchy in the Commonwealth, but not to provide there that the people are called upon to vote to have a Constitution proposed to them. That is the very thing we just voted doT\-n in the amendment of the gentleman from Tazewell (]\Ir. Gillespie) . Mr. Hatton: Mr. Chairman, as a member of this committee, just allov;- me a moment to explain to the Committee of the Whole what the changes are that ha'v'e been proposed by the standing committee. Section 1 is just the same as it was in the old Constitution. Section- 2 in the Constitution tmder which we are now living, the section Is as follows: At the general election to be held in the year ISSS, and in each twentieth year thereafter, and also at such time as the General Assembly may by law provide, the question, shall there be a Convention to revise the Constitution and amend the same? Shall be decided by the electors qualified, &c. Then, at the close of that section there is this proviso. Provided; that no amendment or revision shall be made which shall deny or in any way impair the right of suffrage or any civil or political right as conferred by this Constitution, except for causes which apply to all persons and classes without distinc- tion. The committee has simply left out this last provision, providing that no amend- ment or revision shall be made to the Constitution to deny or in any way impair the right of suffrage or any civil or political right as conferred by the existing Constitution, except for causes which apply to all persons and classes without distinction. Those words have been entirely eliminated. We have also eliminated these words: At the general election to be held in the year ISSS, and in each twentieth year thereafter. We now provide that the question, "Shall there be a Convention to revise the Constitution?" shall be submitted to the qualified electors of the State whenever the GenerpJ Assembly shall so provide. We have omitted that provision which requires the General Assembly to submit this question every twentieth year. The experience of every man in the Common- wealth is to the effect that whenever this question has been submitted by the General Assembly under this provision, no attention has been paid to it by the people. Only once since the adoption of the present Constitution has that question been submitted, and when submitted, the people of the Commonwealth were absolutely inattentive to it. They were not prepared for it, it was not discussed and it went as a dead letter. When the people went to the polls and voted, a large majority of them did not know the question was before them or not. The committee very carefully considered that. They concluded that that provision was an excrescence upon the Constitution, and they determined to eliminate it as absolutely useless and ineffective. I hope the Committee of the VvTiole will sustain the Standing Committee on that question. The gentleman from Frederick (Mr. Harrison) has proposed an amendment which Involves another change. In this present Constitution the form of the question which 2614 DEBATES OF THE COXSTITUTIOXAL CONVEA'TIOiT OE VIRGINIA. the Legislature is required to submit to the people— and that has been adopted by fhe committee — is as follows: Shall there be a Convention to revise the Constitution and amend the same? The amendment of the gentleman from Frederick provides a change in the form of that question, that a Convention shall only have the power to propose amendments to the Constitution. We hope this amendment will be voted down. There should be no change in the form of that question. The question which the Legislature submits to the people to vote on as to whether they will have a Convention or not is now in proper form. It is in a form which leaves the fullest powers to the people to be exer- cised by their representatives in a Constitutional Convention, and any limitation of that power is simply an invitation to trouble in the Commonwealth. I say the Legislature should not be left to frame the question as they think proper. The framing of that question is extremely important, as has been developed by debates on this floor in the early days of this Convention and it is well for any Constitution to provide the form of that question, because any Constitutional Convention that would take any drastic action in the way of restricting the power of the people in that regard would invite serious trouble in the State where it happened. I hope the Committee of the Whole will make no mistake on this subject, and I think if they change the form of this question they will make a serious mistake. I ask that the Committee of the Whole vote down these amendments. Mr. Wysor: What do you understand that amendment to mean; that we shall pro- claim? Mr. Hatton: No; I do not understand it to mean any such thing. I think It puts the question in a form that will provoke discussion and dissention as to its meaning. Mr. Harrison: Mr. Chairman, I desire to have the members of the Committee of the Whole understand the proposition I have submitted. The gentleman from Ports- mouth (Mr. Hatton) has misunderstood it. As the law now stands, every twenty years the people have the right to vote on the question, without regard to whether the Legis- lature wants them to do it or not, whether they shall have a Constitutional Convention or not. Under the change the committee has proposed, that power is taken away, and I think that is very wrong, because it seems to me the people ought to have a right at certain stated intervals, whether the Legislature wants it or not, to vote on the question as to whether or not they shall have a Constitutional Convention. The amendment I propose does not take away the power of the Legislature to frame the question as the Constitution now has it. The only change is that when they vote on this question without the interposition of the Legislature, they will vote simply on the question as to whether the Convention that they call together shall have the power to propose amendments. ("Vote, vote.") Mr. Robertson: Mr. Chairman, I do not know whether anybody will listen to me or not, but it does seem to me that this matter is considerably more important than the members of this committee seem to think it is. I think the question of what a Convention shall do with a Constitution when it is framed is one of the most important that can come before this body. Every member of this committee remembers that when we first met here we were confronted Avith a number of questions with reference as to how we should proceed. In the first place, the question was raised as soon as we got into the hall of the House of Delegates whether the members of this body should take an oath or not. None of us knew and none of us know to this day whether we should have taken that oath or not. We had to decide here as a deliberative body, a legal question, which could only be decided by judges, and we were in no temper to decide that question in a judicial manner. While we may think this question is not of any importance to us as individuals, it will be of importance, perhaps, to our children, if they should ever call for another DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF YIEGIXIA. 2615 Constitutional Convention. I agree with the gentleman from Pulaski (Mr. Wysor) that ii is an important matter; that if we are going to provide at all in this Constitution hew amendment shall be obtained to the Constitution we are framing, we should go into sufficient detail in order that the people in that Convention will know how they can act. I, myself, would be perfectly willing to leave this whole clause out, but if we are going to put any clause in here' at all providing how future changes shall be made in the Constitution, I respectfully submit the language should not be so ambiguous that lawyers in any future convention would differ as the lawyers have done in this Con- vention as to what the powers of any future convention should be. My remarks may not be exactly pertinent to the matter at issue here. I confess the confusion has been so great that I do not know exactly what the amendment of my friend from Winchester (Mr. Harrison) is; but as I understand it, it is that when the Legislature submits to the people every twenty years, it shall submit to them the ques- tion whether the Constitution shall be proposed to the people for their ratification or not. Am I right in that? Mr. Harrison: My amendment is that without the interposition of the Legislature at all, that question is to be submitted to the people, and v^hen it is submitted in that way only, it is simply to propose amendments. Mr. Robertson: And let the people vote on it, to ratify it afterwards? Mr. Harrison: Yes, sir. Mr. Robertson: Now, Mr. Chairman, I am in favor of that. I was in favor of and voted for the amendment of the gentleman from Pulaski (Mr. Wysor) , but that was voted down. At the proper time I am going to move to reconsider in order to get the vote of the Convention, when we have more people here; but I am in favor of the amendment of the gentleman from Winchester, and I want to state briefly my reasons for thinking it is proper. It seems to me that the power of proclaiming a Constitution and ramming it down the throats of the people is a power that nobody ought to claim. I am not going to discuss the legal aspect of it. I am aware of the fact that we have the right to do it, probably, as a legal proposition, though I think that is very doubtful. A Constitution, in its nature, is an instrument which ties the hands of the people. The whole object of a Constitution is for the people to take away from themselves powers that they would otherwise have. I do not believe it is good policy to ever proclaim a Constitution in this democratic America of ours. It is bound to give rise to discontent, and if there is discontent, the Constitution will not work, as a general proposition. The courts will have a tendency to construe it away, and it vdll practically amount to the Constitution not having been adopted. Take the Constitution we are framing here to-day. In nearly every provision we are putting into it there is an honest and a broad difference between us here on this floor as to whether the provision ought to go in or not. Some of the most important interests of the Commonwealth are being affected by the work w^e are doing here. We have just gotten through with the consideration of a question which will affect this Commonwealth more than any other question that has been before a Constitutional Convention for many years. People differ about that, and differ widely and honestly; and any man who gets up on this floor and says we ought to proclaim a Constitution and ram it down the throats of the people simply because we have the power to do it has more courage and more nerve than I have. I do not believe it is good policy ever to do it. I believe it is contrary to democratic principles. This is a government of the peo- ple, by the people and for the people, and when the people have sent us here, even if we have the legal right, I do not believe we have the moral right, aside from party pledges, to proclaim a Constitution. Now, certainly when we are providing for the future we ought to relieve future Conventions from the embarrassment of the questions that are agitating this Conven- 2616 DEBATES OF THE CONSTITUTIONAL CONVENTION" OF VIRGINIA. tion. Every man here is embarrassed by the fact that he does not know exactly what the powers of this Convention are. Some gentlemen say they know them. Some gen- tlemen in this Convention are very cocksure about everything. (Laughter.) Some of them claim to have all the common sense in the Convention, and that other men who differ with them have gloomy imaginations. But there is an honest differ- ence of opinion here, entertained by lawyers who have studied this question as to our power, and certainly if there is no difference as to the legal question, there is a wide difference as to the moral question. Is it not our duty, sitting here legislating for the people of this Commonwealth, provid- ing how the Constitution which we are enacting shall be changed in the future, to make it so plain that the men who meet in any future Convention will know exactly what rights and powers they have. I grant you the gentleman from Pulaski is right, that it is a matter that ought to be left to the people. In times of emergency the people might be willing to intrust the Convention with the pov/er of proclaiming a Constitution, but ordinarily I do not believe they would. I do not believe the people of Virginia thought any man would get upon this floor and talk about proclaiming it; but I can conceive that in some time of emergency that may happen, in the future the people might be willing to say, '.'We will trust you because the time is short and v/e must get a new Constitution to meet some emergency. Therefore, I think this matter ought always to be left to the people; but as the Convention has voted that down, and it is not before this committee now, as a substi- tute for that idea I certainly hope that the committee will not as a matter of course, and simply because a committee has brought in a report here about a matter which has not been carefully considered by this Convention, adopt the report of the committee and vote down any amendment which gentlemen may choose to make here. I am aware of the fact that all of us are getting tired of this work. I believe there is a grov^ring tendency in this body to not give due and proper deliberation to amend- ments that are offered to the reports of committees. It is a lazy and easy way of doing, to say the committee has considered this question, and we had better take their report rather than consider it; but, gentlemen, if we stay here until the middle of next August, it is our duty to consider every one of these questions. I do not believe this matter has been gone into at any great length by the com- mittee. I do n(tt mean to say a word in criticism of the committee, but I do not think their attention has been specially called to that feature of the matter, and I respectfully submit that we ought to take time and deliberate about the matter. If I am in order, I move that the committee now rise, so that we can consider it before a vote is taken upon it. Mr. Waddill: Mr. Chairman, I dislike to submit any remarks to this body, when there is a disposition to come to a vote; but I submit this is a question of too much importance to be railroaded through in this fashion. I rise to raise the point that if this Section 3 is adopted in its present form, the General Assembly is precluded from ever submitting the question to the people in any other form, and the time may come when the question should be, Shall there be a Convention to revise and proclaim the Constitution? That has been done in this Commonwealth, and done in very recent years. After the war the question was submitted to the people, Shall the General Assembly revise the article of suffrage and proclaim the same? That was the question that was submitted to the people, and they voted affirmatively upon it. The General Assembly revised the article upon suffrage and proclaimed the same. Now, I am in favor of the proposition of the gentleman from Frederick (Mr. Har- rison), because at stated times the people will have the right to vote upon the question of revising and having amendments proposed. I think the General Assembly should be left with a free hand to submit this question to the people in any form which they see fit. I do say, and I submit it to the lawyers of this body, that if we adopt this section in the form it is presented, we run a very serious risk of precluding the possibility of DEBATES OF THE C0NSTITUTI0NA£ CONVENTIO^^ OF VIRGINIA. 2(517 ever submitting the question to the people in any other form. I insist that this is a question of too much importance to be disposed of in the manner we are attempting to do it. It needs and ought to have our most serious thought. It is a matter of great importance. No graver question has been before this body, and I submit we ought to give it better attention than we have given it to-day, because it has been sprung upon this house in the last half hour. It involves a very serious question, and I ask that it be given due consideration, and that we should act discreetly in the matter. The propo- sition of the gentleman from Frederick is fair. It is, at stated elections, to submit the question to the people; and then, if at any other time the General Assembly sees fit to submit it in some other form, they shall not be cut off from the power to do so. Mr. Wysor: Mr. Chairman, I want to say to the committee that I did not know this provision was in this report until this morning. When I came here and read it I thought I would offer an amendment. I agree with the gentleman who has just taken his seat (Mr. Waddill) that this is one of the most important questions that has been presented to this body. As to the proper construction of the present language of the Constitution, I hold exactly the opposite views to those of many of the gentlemen who have addressed the -Convention. I believe that the language means, upon a proper con- struction, tnat you must propose amendments to the Constitution, and that you have no power whatever to proclaim a Constitution. I am sincere in that view as I can be, and I have all the authority I want to sustain it. Other men have opposite views. They think it requires you to proclaim the Constitution. Some think it means that you can do anything you please, that you can proclaim it, or you can propose it. When there iB that much difference about the matter, we ought to put it at rest, by putting it in language that is unquestionable in its meaning. Are you going to put yourselves on record as saying to the people that they cannot give you the power to proclaim or pro- pose a Constitution? One gentleman came here and suggested the startling proposition that you could not put such a provision into the Constitution because you would be binding succeeding Conventions. I am asking that this ambiguous, this uncertain pro- vision in the Constitution, upon which men of ability differ, be made plain and certain. I want to put the question at rest. I want to give the people the power to say that you must proclaim or you must propose, or that you may do either. They can give you plenary power if they wish to. Is the Convention going to put itself on record here as opposing the giving of such power as that to the people, in the Constitution. I do not know what the gentleman from Portsmouth thinks it means. He wants the same pro- vision we have now in the Constitution. What do you think it means? Mr. Hatton: I think, Mr. Chairman, the question as framed there is broad enough to cover any Constitution, and that is the way it ought to be. I do not think the people of this Commonwealth ought to be tied down, in advance of a Convention, as to what that Convention shall do. I think the hands of the people should be left free, when they select delegates to a Constitutional Convention, to allow those delegates either to proclaim or not to proclaim the Constitution. That is what I think about it. Mr. Wysor: The gentleman from Hanover (Mr. Carter) in his argument upon that question many months ago took an entirely different view. There are gentlemen in this Convention who have taken the ground that you have full power, outside of the provision in the Constitution, and that it does not bind any- body. They hold that when a Convention is elected, it has all the power of the people to do as it pleases: Mr. Barbour: I move that the vote on all amendments to Section 2. now under consideration, shall be taken at 5 o'clock to-day. The resolution was adopted; there being on a division, ayes 37, noes 20. Mr. Barbour: I move the Chair be now vacated until 4 o'clock this afternoon. The motion was agreed to, and the Convention took a recess until 4 o'clock P. M. AFTERNOON SESSION. The Convention reassembled at the expiration of the recess. 165— Const. Deb. 2618 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIKGINIA. On motion of Mr. Green, this Convention resolved itself into Committee of the Whole for the further consideration of the report of the Committee on Preamble and Bill of Rights, Mr. Turnbull in the chair. The Chairman: The question is on the adoption of the substitute offered by the gentleman from Richmond, and the amendment thereof by the gentleman from Pulaski. Mr. Harrison: Mr. Chairman, I want to withdraw the amendment I offered so that another amendment can be offered in its place. I would like the gentleman from Rich- mond to offer his amendment to the report first then we will offer ours as an amend- ment to his, for this reason, that if we cannot get ours we would be very glad to have his. Mr. Gordon: I agree to that. Mr. Wysor: I offer the following amendment: At the general ejection to be held in the year, and each twentieth year there- after, and at such times as the General Assembly may by law provide, the question, Bhall there be a Convention to revise and propos»e amendments to the Constitution, or to revise the Constitution, and proclaim or propose am'endments to the same as the Convention may determine? shall be submitted to and decided by the electors qualified to vote for m'embers of the General Assembly, The committee will observe that the amendment embraces a double question. The question to be submitted is: "Shall there be a Convention to revise and propose amend- ments to the Constitution?" That is one question you submit to them. If they decido in favor of that provision, the Convention that assembles has limited powers. It can only revise and propose amendments to the Constitution. Then the amendment goes on and provides, "or to revise the Constitution and proclaim or propose amendments to the same as the Convention may determine." That gives the Convention absolute power to do what it pleases in the matter, either to proclaim it or submit it to the people. I want to know wiiy such a provision as that should not go into the Constitution? The pro>- vision in the present Constitution and in the report is: Shall a Convention be called to revise the Constitution and amend the same? What does that mean? Have we not had arguments here for two or three weeks on that subject? One lawyer contends it means one thing and another that it means an entirely dif- ferent thing. I have my views about what that means, considering the Constitution as a whole. I think it means that you shall simply revise the Constitution and propose amendments to the people. Other gentlemen here say it gives the Convention plenary power to do what it pleases, either to propose it or proclaim it. Some gentlemen con- tend, with a good deal of reason in support of an erroneous proposition, that it means that they shall proclaim the Constitution and that they have no power to do anything else. I simply want to make unambiguous and clear that which is now ambiguous and uncertain. I cannot see why the Convention should not remove this ambiguity in the Constitution. I hope the Convention will not think it has any bearing at all upon the question as to whether they shall submit or proclaim the present Constitution. It has no reference to that whatever. The decision of this question one way or the other can- not affect that. I am for proposing the present Constitution to the entire electorate. I believe that the present Constitution requires us to do it. I know that the people, under their vote, have required us to do it. I sincerely believe that any other pro- cedure would be wrong. If you proclaim it, I believe you will not have any Constitu- tion. We have labored here to provide for a Corporation Commission. If you proclaim this Constitution you will not have any Corporation Commission because, the corpora- tions will litigate the Constitution and defeat it in the courts and I hope they will do it, if it is proclaimed, and I will join them in trying to do it. I don't care how good or just a Constitution it may be, because I will feel that you have trampled on my rights, and the rights of the people generally. This question does not bear upon that at all. I want to remove from the Consti- DEBATES OF THE COXSTITUTIOX AL COXYEXTIOX OF A'IRGIXIA. 2 619 tution every ambiguous expression. I know that posterity has not done anything for me, but I want to do something for it. I want future Conventions to know what they are assembled for. I want the people to tell them in their votes that they have limited or plenary powers. That is all this amendment means. I want the people who have advocated the rights of the people here to stand by them, and unless they are will- ing to advocate this, I want them to take the weights off their feet and sit down and say no more on the subject, because here you come to the real power of the people. You are right at the throne itself. If the people cannot limit the powers of the Constitu- tional Convention, what can they do? Where is their power? We have the argument made here that when a Constitutional Convention is as- sembled it does not matter what is in the Constituton, it does not matter upon what question the people have voted, the Convention has absolute power to do as it pleases. It has been argued to-day that if this question had been submitted to the people to say whether there should be a Convention to revise the Constitution and propose the same to the people for their ratification, that under such a call the Convention could Ignore that question and trample under foot this vote of the people, and proclaim the Consti- tution. If that could be done, where would be the rights of the people? You say you cannot limit future Conventions. We are not trying to do it. We are only inserting in the present Constitution the inalienable right of the people. I am perfectly willing, if you will agree to it, to leave out the provision altogether. Then, what are the powers of the people? Just take this provision out and what are the powers of the people? The Underwood Constitution is the first one that ever had any provision on the subject iu it in Virginia. Now, take it out, and then cannot the people call a Convention, and when they call that Convention, cannot they limit its powers; cannot they give it plenary power; cannot they part with a part of their power, or with all oT it. Would not that be so if there were no provision in the Constitution at all? I am not trying to put anything in the Constitution except the inalienable right of the people, in lieu of the provision which is there now, which is ambiguous, and about the construction of which we all differ. I am simply saying that the people by their vote can limit the power of the Convention or give it plenary power, and that is all this amendment means. Now, what objection has the gentleman from Chesterfield (Mr. Hancock) to this amendment? What objection could you have to it? Are you willing to cast aside a provision like that, which makes the power of a Convention plain and unmistakable, and put in a provision like you have in the Underwood Constitution, whicli is ambig- uous and uncertain, and about which men differ? I say again that these men who have been wanting to elect the judges by the people, and to elect all the other officers by the people, and who proclaim that they are for the people, that now is the time to test whether they are willing to have the power in the people or not. Tliere are men in this Convention who have argued here that this provision means that the Convention has absolute power to proclaim the Constitution, and that when you put it in the Constitu- tion you have determined that the Convention can do as it pleases. If that be so, then the people never can elect a Convention with only the power to propose amendments and command them to do it. I want to fix it so that the people will have the right to say to a Convention, "You shall propose it." That is what this amendment says, plainly and unmistakably. It simply secures to the people, under the Constitution, their inalien- able rights in this regard. Mr. Robertson: I took up a little time of the Convention before recess; but for fear that I may not have made myself as plain as I should have done with reference to my attitude in regard to this matter, I desire to say a few words more. As I under- stand the law that governs this matter, the power of the Convention depends entirely upon the votes that the people cast in reference to it. When a Legislature submits the question to the people whether the Convention shall be called or not. the language of the act in which the Convention submits that question to the people seems to me neces- sarily to control the Convention which is held subsequently to that call. I do not think 2620 DEBATES OF TtlE COis STITUTIONAL CONVENTION OF VIRGINIA. there is any dispute in the books with reference to that matter. If you will look at the debate in the Convention of 1829-30 you will see that the whole question there was as to what had been submitted to the people by the call that the Legislature made. Now, it does seem to me, as the gentleman from Pulaski has said, that if this Convention, fol- lowing the example of the Underwood Convention, is going to make any provision at all with reference to what the duty of the Legislature shall be in reference to submitting to the people the question of calling a Convention, there can be no two opinions about it that we ought to make it perfectly clear what the Legislature can do under the consti- tutional provision we enact. My idea about it, and I think I can speak for the gentle- man from Pulaski, Is that we are perfectly willing to leave this whole matter out. Then the Legislature will have its hands free, if it passes an act submitting it to the vote of the people, all that you have to do is to look at that act, and see what was submitted to the people, and the Convention, when it assembles, can determine what its power is. But if we undertake to put in the Constitution what the question shall be that the Legislature shall submit to the people, I respectfully submit that there is grave doubt as to the power of the Legislature to go outside of the question which is put into the Constitution and submit any other question to the people. Take the provision of this present Constitution, which ties the Legislature down to submitting the question, "Shall there be a Convention to revise the Constitution and amend the same?" The gentleman from Hanover, in one of the ablest arguments that has been sub- mitted to this Convention, argued that when we proceed under that clause of the Con- stitution there was grave doubt, at least, whether we could do more than revise and amend; and I understood the gentleman to resolve the doubt in favor of the idea that all that could be done under that would be to follow strictly the language of the ques- tion and revise and amend the Constitution, without doing anything further. I must say that I do not agree with the gentleman. I think that under this provision the legal right of this Convention to either proclaim or submit to the people cannot be questioned. That is my own idea about it. But I see very readily how lawyers could differ about that language. My own idea about it is that the word "amend" in that question carries with it all that this Convention may consider necessary to carry out the amendment. In other words, that if we have the right to amend, we have the right to say how we shall amend; and we can say that this amendment can take effect when the people vote on it and ratify the amendment that we have adopted. Mr. Wysor: Even admitting your construction of that provision to be the proper one, is it not a fact that if the question remains in the Constitution, the people never can compel a Convention to propose a Constitution? Mr. Robertson: I was coming to that. I say there is a grave doubt about it which doubt ought not to be in a provision of a Constitution. It is a question about which lawyers in future Conventions will differ as the lawyers have done here. When Conven- tions assemble in the future it does seem to me that the time of the Convention should not be taken up in duscussing the powers of the Convention, but rather in carrying out the duties that the people have imposed upon them. I go further than that. I think it would be better, as we have agreed to live under written Constitutions, to provide the manner of making changes in this Constitution. Everybody knows that the Constitu- tion of the United States provides how amendments can be obtained through that instru- ment. It has become very general, though our old Constitution did not have it, that a provision shall be contained in the Constitution whereby the people can, in an ordinary and constitutional manner, amend the Constitution under which they are living. If we decide, as this committee has done, that we will provide for future amendments, it does seem to me that we ought not to put in anything that may be construed as tying the hands of the Legislature. The gentlemen say that no constitutional provision can tie the hands of the Legislature. I cannot understand from where they get that principle. They say there is some higher law somewhere. I respectfully submit that if the lan- guage of this question was, "Shall there be a Convention to revise the Constitution ^nd DEBATES OF THE CONSTITUTIONAL CONVEXTIOX OF VIRGINIA. 2G21 proclaim the same?" that the Legislature would not have the power to do anything ex- cept to call a Constitutional Convention, which would be compelled to proclaim it. The only reason I think we have the right to either proclaim or submit it, is because of the construction of the language of that question. I cannot agree with the gentlemen who hold that one Constitution cannot bind the method of creating a new Constitution and that the Legislature has all the power, because the Constitution is, in its nature, some- thing which the people have adopted by their own law-making power. How can the Legislature have any power when it has been deprived of it by this Constitution? Is it not better to leave the Legislature where it can submit more than one question to the people, rather than to require the Legislature to submit but one, when in the nature of things it may be very important that more than one should be submitted to them? As I said before, there may be occasions in the future, cases of emergency, where the people would be perfectly willing to call a Constitutional Convention, and to vote that that Convention might exercise its own judgment as to whether it would pro- claim the Constitution or submit it to the people. I think it is almost the universal practice in this country to submit these Constitutions to the people, and the reason for it is perfectly obvious, is because this is a matter which goes down to the very funda- mental, rock-bottom foundation of our government, and the people ought to decide what sort of government they shall have. They are to decide what limitations they will put upon the different branches of the government; and every government that is a govern- ment adopted by the people should be one which is based upon the wishes of the majority of the people in regard thereto. Mr. Hancock: Mr. Chairman, I believe it is bad policy to limit the powers of a Constitutional Convention. I believe the report of the committee is rigEl and that the suggestions contained therein should be adopted by the Committee of the Whole. When we look at the history of Constitutional Conventions in Virginia, we find that the Constitutional Convention of 1776 proclaimed its w^ork as the fundamental law of the State, and so did the Convention of 1864. Thus we see that two out of the five Constitutions of this State have been proclaimed, proclaimed because an emergency existed at the time for such proclamation. Now, if this be true, then why should we place any restrictions upon future Con- stitutional Conventions? The Underwood Constitution was the first Constitution that provided for any amendments to a Constitution or for any call for a Constitutional Con- vention. Now, if the suggestion of my colleagues from Chesterfield (Mr. Ingram) pre- vails, and this whole clause is stricken out, no harm would be done thereby, for the people by their General Assembly would have the right at any time to call a Constitu- tional Convention. The Conventions of 1829-'30 and 1850-'51 were called by the General Assembly without any provision in the Constitution in relation thereto. The right to revise and amend the fundamental law is a right that cannot be taken from the people by constitutional provision or otherwise. If this be the law of the land then the people will know when they vote for a Con- stitutional Convention that they vote for a Convention that has a right to proclaim, that has a right to submit to an abridged or an enlarged electorate or to the present electorate, the Constitution framed by them. I think that Is what we need in a Con- stitutional Convention. It is organic in its nature, it is fundamental in its character. No one knows when the necessity may arise which may demand that the Constitu- V tion should be proclaimed. This necessity might arise after the Convention had assem- bled and completed its work for a Constitution that will be valuable must change exist- ing conditions. In changing existing conditions there will be opposition and by a combination of its enemies a first class Constitution might be defeated unless the power to proclaim it is in the Convention itself. Now, while I believe that is the true idea about a Constitutional Convention, that it should be unlimited in its power, yet I do not intend to vote to proclaim the Consti- 2622 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. tution, we are now framing, unless the people should rise up en masse all over this Commonwealth and ask that it be proclaimed, and should say, "Proclaim the Constitu- tion, because we are satisfied with it and do not wish to incur the expense of an elec- tion." I see no reason, Mr. Chairman, why this Convention should endeavor to put limitations on the powers of this or any other Constitutional Convention to do what is best for the interest of the people. I hope the report of the committee will be adopted. Let it be understood that Con- stitutional Conventions have unlimited power. Let it be known that the people, when they vote for delegates to a Constitutional Convention, selecting men whom they are willing to trust and no matter what emergency may arise, no matter what dangers may come, no matter what unforseen events shall present themselves, that the people will feel that the men they have selected have the power to protect them and the courage to proclaim the Constitution if the best interests of the people should require it. Mr. Dunaway: Mr. Chairman, I intend to vote against all amendments to the re- port of the committee, and having done that, to afterwards vote for a motion to strike out the whole section. If we are to have a provision of this kind, I think the com- mittee has given us as good a one as we could get; but I shall favor striking out the section entirely, because I am firmly of the opinion that you may write in this Consti- tution what you please with regard to the matter of the people making a new Constitu- tion in the future, you cannot bind the people of Virginia in the future; and in regard to Constitution-making, and the matter of calling a Constitutonal Convention, you can- not bind the General Assembly of Virginia. Suppose you write this in the Constitution, then suppose any number of years in the future, one, two, any number please up to twenty, the General Assembly entirely ignores what you have put in the Constitution and calls a Constitutional Convention and that is submitted to the vote of the people. Whether they comply with the requirements of the Constitution or not, if the people have called a Constitutional Convention, then that Convention assembles by vir- tue of the sovereign right of the people, and cannot bind future generations. You may bind the General Assembly of Virginia in regard to the matter of making laws. They cannot make any law contrary to the Constitution of the State. If they do, it will be declared unconstitutional by our Supreme Court; but in regard to this matter of calling a Constitutional Convention, the words will not be worth the paper upon which they are written if the General Assembly should violate the express terms you write in here. Whether" you have it as it is, or whether you have the amendment pro- posed by the gentleman from Pulaski (Mr. Wysor), the General Assembly of Virginia can ignore both. The people may desire their General Assembly to call a Constitutional Convention. Then if they do it, the people are sovereign. They have the right to call it, and though the Legislature has departed from the strict letter of an old Constitu- tion, the defect is cured by a vote of the people of Virginia. So it will be altogether nugatory. I desire that this provision shall be stricken out because there is no necessity for it. In the Constitutional Convention of 1829, when this question was up, John Randolph, of Roanoke, said to the members of the Convention, "There is no need that you should put a provision in your Constitution about changing it. The people will change it whenever they get ready to do so." The people have heretofore changed their Constitution when- ever they desired, when we had no provision of this kind; and the only effect of putting a provision into your Constitution in regard to this matter would be a tendency to per- plex the mind of the people and the minds of a Convention when it shall be called. The people are free in regard to Constitution-making. You cannot bind them, and you ought not to try to do it. There ought not to be any provision of this kind whatever in your new Constitution. Mr. Barbour: Mr. Chairman, I simply desire to call the attention of the committee to the fact that if they strike out this provision, it will be competent for the Legislature DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF VIEGIXIA. 2623 to call a Constitutional Convention at any time they want to, without reference to the people. Mr. R. Walton Moore: It did not seem to me wise to attempt to put a prohibition upon the General Assembly; and I may say, Mr. Chairman, if I may be permitted — it has pernaps been mentioned by the gentlemen who preceded me — that the Conventions of 1776, 1829-'30 and 1850-'51 did not seem to consider it at all necessary to put any- thing like this proposed restriction upon the representatives of the people in this re- gard. Mr. Harrison: Mr. Chairman, there may be some ambiguity in the phrasing of the amendment of the gentleman from Pulaski. The gentleman from Richmond (Mr. Gor- don) has prepared an amendment which expresses it more clearly, and for my part I would be glad to see that adopted. I think we ought to perfect this amendment. I do not propose, like the gentleman from Lancaster (Mr. Dunaway) to vote down any amendment and then vote to strike it out. I shall vote with the gentleman from Lan- caster to strike out all provisions, but it seems to me that we should perfect the lan- guage in case the motion to strike out does not prevail. The object of this amendment is simply that there shall be a question submitted to the people, first, as to whether there shall be a Convention or not. If that is voted aye, then what shall be the power of that Convention? Mr. Meredith: In two votes? Mr. Harrison: No; at the same election. In other words, you submit the question to the people in a distinct form, Shall there be a Convention? The people vote on that proposition, which can be readily arranged on the ballot. Then they vote as to whether that Convention shall have full power or simply limited power; and then when that Convention comes, they will know exactly what powers they have, and the people who vote for them will know exactly what powers they are conferring on the Convention. The way it is in the present Constitution, it is in a stereotyped form. If the gen- tleman from Culpeper (Mr. Barbour) is right, no other question can be submitted but that one stereotyped question. If it is submitted in the present shape, the Legislature is given a free hand, without disturbing the question whether there shall be a Conven- tion or not, to say whether that Constitutional Convention shall have full power or shall have limited power. Another thing that this amendment carries out is that it provides that every twenty years this question shall be submitted to the people; not whether the Legislature wants it or whether the Legislature does not want it. For some reason the committee has stricken out that provision in the present Constitution, and they have not explained here why they did it. I do not understand why there should have been taken away from the people that they now have, without any power in the Legislature to prevent them from having it, the right to say at the end of every twenty years whether we shall have a Constitutional Convention or not. Suppose a Legislature gets into power in this State and wilfully will not submit that question to the people when the people demand it, then at the end of a certain period of time that question has to be submitted, whether the Legislature desires it or not. The Chairman: The question is upon agreeing to the amendment of the gentleman from Pulaski (Mr. Wysor). The amendment was rejected, there being on a division, ayes 19, noes 35. The Chairman: The question now is upon the adoption of the substitute offered by the gentleman from Richmond (Mr. Gordon). The amendment was rejected. The Chairman: The question is on the motion of the gentleman from Manchester to strike out the entire section. The motion was agreed to; there being, on a division, ayes 40, noes 18. Mr. Green: Mr. Chairman, I move that the committee rise and report the com- pleted report to the Convention, T^ith amendments. The motion was agreed to, and the committee rose. 2624 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. The President having resumed the Chair, Mr. Turnbull reported that the Committee of the Whole had had under consideration the report of the Committee on the Preamble and Bill of Rights, and miscellaneous matters, and had completed the same and directed him to report it to the Convention with amendments. On motion of Mr. Barbour the Convention adjourned until to-morrow, Saturday, February 22, 1902, at 10 o'clock A. M. SATURDAY, February 22, 1902. The convention met at 10 o'clock A. M. Prayer by Rev. W. P. Dunaway, D. D. TAXATION AND FINANCE. On motion of Mr. Fairfax the Convention resolved itself into Committee of the Whole for the consideration of the report of the Committee on Taxation and Finance, Mr. Ayers in the chair. Mr. Fairfax: Mr. Chairman and gentlemen of the committee, in presenting this report to you this morning, I cannot but express the great regret of the committee in the loss of our chairman, Mr. Newton, who, by reason of ill health, was compelled to resign from this body. During his work as chairman of this committee his industry and patriotism, as exhibited by his work was, to the highest degree, appreciated by all of us. I wish, Mr. Chairman, also to express my regret and the embarrassment which it places upon me as being the accidental chairman of this committee. I have the honor to bring before this body a report which has the signature of every member of the committee to the general principles laid down in the report, with the exception of the gentleman from Franklin, who has been forced to be absent the last few months on account of illness, and the gentleman from Petersburg (Mr. Hamilton) and the gentle- man from Portsmouth (Mr. Hatton ). I am not sure as to whether the gentleman from Franklin is satisfied with all of the measures presented here or not, although I trust he is. The other two members of the committee just mentioned, signed the report with one or two exceptions. That is, they except to one or two sections of the report. Mr. Chairman, as I am nothing of a speaker, I will not undertake to go over this report in detail to make explanations of it, but will simply call upon the different mem- bers of the committee who have had the special assignment of the different sections of the report in sub-committee, and who, I believe, will be able to clearly explain to the satisfaction of this body every question that may be asked pertaining to the respective sections. I do not believe, Mr. Chairman, that there will be any great con- test upon any of these measures, and as I do not wish to take up the time of the Con- vention unnecessarily I will move that we proceed to the consideration of the report section by section. The Chairman: That will be taken as the sense of the committee v/ithout objec- tion. The Secretary will read the first section of the report of the Committee on Taxa- tion and Finance. Sec. 1. All property, except as hereinafter provided, shall be taxed; all taxes what- soever, whether State, local or municipal, shall be uniform upon the same class of sub- jects within the territorial limits of the authority levying the tax. Mr. Fairfax: Mr. Chairman, there is one amendment which I wish to make to that section, which is as follows: At the end of the section after the word "tax." DEBATES OF THE COXSTITUTIOXAL COXYENTIOX OF YIRGIXIA. 2625 change the period to a comma, and add the words " and shall be levied and collected under general laws." The amendment was agreed to. Mr. Hamilton: I move, Mr. Chairman, that in the second line of Section 1, after the .word "taxed" the following be inserted: "Except as hereinafter provided." The section would then read: All taxes whatsoever, whether State, local or municipal, shall be — I wish to insert there the word " equal," then it would read " equal and uniform upon all property within the territorial limits of the authority levying the tax." So that the section when amended will read as follows: All property, except as hereinafter provided, shall be taxed; except as hereinafter provided, all taxes whatsoever, whether State, local or municipal, shall be equal and uniform upon all property within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws. In presenting this amendment, ]\Ir. Chairman, I feel it my duty to say a few words. You will observe that Section 1 as presented to 3'ou in the committee's report does away with the law which we have had in Virginia for many years, certainly, I believe, since 1850, providing that taxation shall be equal and uniform. To my mind that pro- vision is the most essential of all for the protection of the individuals and the people of the Commonwealth, with respect to the exactions of government. I know it is the fact that in some States, under modern Constitutions, and possibly under earlier Constitutions, there was no provision which guarded the citizen against unequal and therefore unjust taxation. I am aware of the fact that it is said that provision was first put in the Virginia Constitution in 1850-51, in order to prevent the taxing out of existence of slave property or the unjust taxation of slave property. I am aware of the fact that .in the recent Constitution made in New York four or five years ago, there was nothing whatever on that point. There was no statement laid down at all witl^ respect to the principles of taxation; but it seems to me, Mr. Chairman, the foundation principle, if there is any principle connected with taxation, is that property should equally bear in proportion to its value the burdens of taxation. I cannot see that we can accomplish anything by putting in our Consti- tution a provision which will enable the Legislature, in the future, to discriminate between classes of property, in laying taxes. I can see no justice in saying that property may be taxed hy classes. I can see no reason why you should draw a distinc- tion between one kind of manufacturing company and another, and say that the rate of tax on one shall be lower than on the other. I can see no reason why you should tax one species of real estate lower than another. I can see no reason why you should tax one species of personal property at a less or greater rate than another. The object of putting anything into a Constitution is to lay down certain general principles which will prevent action contrary to those principles by 3-our Legislature. For myself. I would prefer to see no general principles placed in this Constitution as to the subject of taxation, than to have the one presented by the committee here, which says that all taxes whatsoever, whether State, local or municipal, shall be uni- form upon the same class of subjects within the territorial limits. In other words, you mean by that to give to your legislative body the authority to classify the subjects of taxation in Virginia and that legislative body can delegate to the subordinate local taxing powers, like boards of supervisors in counties and city councils in cities, this same right of unequal taxation, of a different rate of taxation upon different kinds of subjects of taxation. To my mind it is of the very essence of bad government, ine- quality^ and injustice. A great deal, I think, of buncombe has been gotten out of the expression in the political parties " of equal right to all and special favors to none." But, gentlemen, that is a true principle of government, whether it is taken as the shib- 2626 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. boleth of the Populist party or of any other party. No people should have favors from the government. All people should be treated equally, justly and rightly, especially in the exaction of their property for the support of the government. Now, Mr. Chairman, my amendment does not in the slightest degree, I wish the gentlemen of this body to understand, effect the provisions which are provided in the residue of this report in respect to the taxation of corporations and other such matters. I do not wish you to feel that, in this matter, I am standing here to get a change in the principle of taxation, in order to affect in the slightest degree anything you have done with respect to a corporation commission, or anything which is recommended in this report with respect to the taxation of corporations. But, having accomplished your purpose with respect to the taxation of corporations, and if I may use the expression without offense, having ravished the corporations, do not let us put a principle in here which will enable the Legislatures, State and local, to ravish and destroy the rights of the people, the individuals themselves. I think it may be laid down as a correct prin- ciple, and as a correct statement of fact, that the line of demarcation between a tyran- nical and arbitrary government and a constitutional government is that there shall be a provision which prevents arbitrary exactions of the property of the citizens, and which makes the burden bear equally upon all in proportion to value. My recollection Mr. Chairman, of the history of our race is that, if you leave out the wars had by our ancestors merely as to what royal family or what members of a royal family should be king, or something of that kind, all of the real wars, the real revolutions which have occurred in the history of the English speaking people have grown out of the unjust, the arbitrary levying of taxes or subsidies or loans or aids upon the people. We all know that that produced the revolution of 1688 in England; we know that it produced the Revolutionary War in this country. We know that in substance it was at the foundation of our Civil War, because there was the threat that a large proportion of the property of the South was to be destroyed. It seems to me, Mr. Chairman, unless there is some occasion for it, unless some good is to come from it, unless something is to be accomplished by it, tliat when we do ourselves no harm with respect to this special property, when with respect to corporate property in this report we reserve the right to tax franchises in any way we deem proper, we ought to preserve for the benefit of the plain citizen, the individual of this State, the protection against unequal, arbitrary and unjust taxation. Now, Mr. Chairman, the answer to what I have said is, in substance, to this effect: That, while there may be unequal taxation as between classes of property, and whilst that is intended to be accomplished by the committee, the taxation of all property within the several classes is to be uniform. I do not think it would be much comfort to a man who has a large portion of his estate in mining property, for instance, to be told that all mines must be taxed in the same way his property is taxed, but that all city lots shall be taxed at a different rate, or that all farming lands shall be taxed at a differ- ent rate. I do not think it will be agreeable to the man whose riches consist chiefly of cattle " on a thousand hills," to feel that his cattle may be taxed at a different rate from the sheep in some other part of the country, or from some other product of the soil of some other part of the State. The underlying principle of the thing is wrong. We gain nothing by it. We can carry through the whole of this report and still pre- serve the position of equal taxation between all the people, except as hereinafter stated. It will be said that classification cannot be arbitrarily made; that there must be some distinction between classes of property in order to justify their being put in classes. I do not think, Mr. Chairman, that any distinction is sufficient to justify the classification. All property should be taxed at its fair value, and should be taxed at an equal rate by this State. I differ from the gentlemen who say that no harm can come from arbitrary classification. In the State of Pennsylvania, from which this provision is taken, a case was decided in its Supreme Court which held that discrimination might be made between different classes of manufacturing property, and a decision DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 2627 was made which said that the Legislature was the body to decide what was proper classification. The Supreme Court of the United States has decided that the classifica- tion should not be wholly unreasonable or arbitrary, or, in other words the limitation is only to this effect, that you should not say that a man who had black hair should pay $2 capitation tax, and a man with red hair should pay $1.50, as that, of course, would be wrong. If you submit it to legislative authority to decide what is a proper classi- fication, your people will be entirely at the mercy of your Legislature, and of the subordinate taxing bodies, like boards of supervisors in counties, and city councils in cities. To show you that that is the case, I will read from a decision of the Supreme Court of Pennsylvania in a case decided in 1888, after the Constitution was adopted, which we have copied from here. I read from a pencil extract which I made, it being somewhat inconvenient to get books here this morning. In the case of Commonwealth against the Delaware Division Canal Company, 123 Pennsylvania State, 594, decided in 1888, the court says, among other things: The power to impose taxes for the support of government, with the power of classi- fication, still belonging to the Legislature under the new Constitution, the selection of the subjects thereof, their classification and the methods of selection to be provided, are matters purely legislative. The Supreme Court of Pennsylvania decided that the classification of subjects of taxation is a matter purely legislative. We copy that provision of the Pennsylvania Constitution, and, according to all rules of construction, we take along with that pro- vision the settled rules of construction in that State. So that you have no aid from the courts in this matter unless the classification is so purely arbitrary, so wholly with- out reason or possible justification, that the courts may say ft would be an outrage upon common sense, upon the very plainest principles of justice, to make the distinction attempted to be made. But we all know that the courts must never decide that an act of the Lgislature is unconstitutional, unless it is clearly so. There can be no presump- tions against such an act. The presumptions are all the other way, and to all intents and purposes the authority of the legislative body, in making these classifications, is going to be supreme and final. I say if it is too great a power to put in the hands of anybody; that it affords too great a chance for wrong and unjust discrimination. Another thing: Suppose that your Legislature has the right to classify, practically arbitrarily, classes of property for taxation. See what an immense temptation there will be to have people come into your legislative body, using every possible influence — I do not mean wrong influence — every possible legitimate influence to show that this, that and the other subject of taxation in which they are interested should be taxed at a rate lower than some other kind of property. See where you get to when you carry that power down to your subordinate local taxing bodies like the city councils in cities, and think of the pressure being brought to bear on those people to say that one species of property in the city is a kind of property you ought to encourage in order to build up the city and to help its improvement, and that you ought to put a lower rate of taxa- tion on this than on property generally. The reasons and influences will be innumer- able and wonderfully ingenious to produce those changes, and to bring about these results. Partiality and favoritism must largely enter into the decision of such a ques- tion by such bodies. State and local. In this same case in Pennsylvania, the court further said: The power to classify being given, all that is then required by the Constitution is that the taxes shall be uniform upon the members of a class, and it is the uniformity of taxation according to the classification made, which is a question to be determined by the court. That is all the court can determine, under the Pennsylvania law, unless the classi- fication is so clearly reasonable that it would come under the protection of the decision of the Supreme Court of the United States. We have in the Supreme Court of Penn- 2628 DEBATES OE THE CONSTITUTIONAL CONVENTION OF VIRGINIA. sylvania, this proposition laid down, that the only thing the courts can pass upon is whether the taxation is uniform in the classes as between the different subjects of taxation within the same class, and that it is proper for the legislative body to deter- mine what the classification may be. That is a power and danger which we should not run the risk of, especially as there is no occasion for it, as I can see. We do not need it. We do not want unequal taxation, I take it, as between individuals. I do not know that I am prepared to say that you, or any of us, want unequal taxation as between any classes of property. If this provision was necessary in order to carry out the general plan of taxation presented by the Finance Committee I could see some excuse for it on the ground that conditions have so changed, etc., etc., that we could not stand by the old antiquated rule of equality and justice. It is not necessary, however, and we are simply inviting unequal and unjust taxation. If we had no general principle laid dow^n in our Constitution as to taxation we would at any rate have that presumption which arises in almost every man's heart and mind that the burdens of taxation should be equally borne in proportion to the value of the property. But when you go further than that, when you put there a rule that is an invitation to unequal taxation, an invitation to partiality, it seems to me that we would be better off without it. We had better have nothing in the Constitution than a pro- vision of- that kind. There is another case, decided by the Supreme Court of Pennsylvania, in 1891, Commonwealth against the Germania Brewing Company, 145 Pennsylvania State, page 83. In that case the court held, in substance, that the Legislature can subdivide manu- facturing companies into classes, and that it can treat a manufacturing corporation making gas and one making liquor as two different classes, and of course tax them at different rates and treat them differently, as classes, in taxation. I merely cite this to show to what extent this power of classification goes, under the decision of the State of Pennsylvania, the State from w^hich we draw this general principle in out first sec- tion. It seems to me to be an exceedingly dangerous power. It seems to me to be a pow^er fraught with nothing but evil to our people in the future, and by our people I mean our individuals of all classes. I, therefore, Mr. Chairman, have moved to amend so as not to interfere in the slightest degree with the rest of this report, by providing that " except as hereinafter provid-ed " all taxation v/hatsoever, v/hether State, local or municipal, shall be equal and uniform upon all property within the territorial limits of the authority levying the tax, and shall be levied and collected by general law. Mr. Hatton: Mr. Chairman and gentlemen of the committee, I shall only ask for a moment or two of the time of this committee. It is with very great reluctance and with something closely akin to genuine sorrow that I have felt called upon to differ from my colleagues on the committee of Taxation and Finance upon the subject treated of in the first section of that Committee's report. I do not desire to take up much of your time, because my views upon this matter have been expressed better than I could express them by the gentleman from Petersburg, who has just given his reasons for his dissent from the action of the committee. But, Mr. Chairman, the power of taxation is, In my judgment, the greatest powder within the exercise of any constitutional government? The power to tax has been justly characterized as the power to destroy, and it seems to me that in a constitutional government, the eminently proper function of a written constitution is to protect, by some general and just principle, Its people against what may be the unwise exercise of such a great power. The provision reported by the committee is really worse than no restrictive pro- vision whatever. For my part I would rather see the whole matter relegated to the discretion of the Legislature than to see it in its present form; and why? Because what purports to be a restriction, what is evidently held out to the public to be a re- striction is merely one in words, but not in fact. It is the shadow without the substance. DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OF VIEGIXIA. 2629 The committee has embodied the shadow and eliminated the substance. The provision that taxes shall be uniform upon the same classes of subjects within the territorial limits of the authority levying the taxes, so far as it is intended to be restrictive, is, in fact, only a delusive form of words, empty and ineffective because it only postpones power to do damage from one stage of action to another. It transfers the power to do injustice to the making of the classification and leaves that power wide open and without protection or restriction. Inequality in classification is as potent for working injustice as inequality in taxation and the restriction of the latter without restricting the power to do the former is without protection to the people of the State. The gentleman from Petersburg (Mr. Hamilton) has read you the decisions of the Pennsylvania courts, the highest judicial authority in a sovereignty which has this same provision, and these decisions sustain what I say. This power of classification without restriction, enables the Legislature, and in fact, invites them, to put inequali- ties upon different property, not so much by the taxation as by classification. It post- pones the injustice one degree. I take it that this power of classification is unre- strained, except so far as restraint may be found in the equality clause of the 14th amend- ment to the Constitution of the United States. The Supreme Court of the United States, has held that in making classifications of this kind, as long as the classification is based upon any reasonable foundation, upon any foundation that has any reasonable relation to the classification, it is not obnoxious to the equality clause of the 14th amendment leaving the field of action very wide. It has been justly said, and, I believe, it is con- ceded by all authorities upon the subject of taxation, that there is inherent in humanity, a tendency to shift burdens from one to another. One of the greatest difficulties in dealing with the subject of taxation in all sovereignties lies just there. The personal equation, and we all know what that means by this time, in this body, enters more largely into that subject than into any other; and when that tendency is absolutely un- restrained, there is danger. Now, this argument will doubtless be met by a statement that up to 1850-51 we had no restrictions in Virginia on this subject. True, but I say to this committee, and I believe no thinking man will deny it, that the conditions in this State in 1850-51, were far different from the conditions existing to-day, and which are likely to exist during the life of this Constitution. The property conditions in the State are far different, far more diverse. The method of material development is different to-day. and vastly dif- ferent. The method of selection of those who are to impose taxes is far different to-day. The men who imposed the taxes in 1851 were the men who paid the taxes, as no others were eligible to hold an office vested with authority to impose taxes, and I say the con- dition to-day is just exactly the reverse. The men who impose the taxes to-day are the men usually who do not pay the taxes, and as you get down from the State Legislature into the governing bodies of the subdi- visions of the State, the supervisors in counties and the councils in cities and towns, that reasoning applies with even greater force. Take the city councils in your cities and look over their names on your tax-rolla and see what relation they bear to the community in the matter of taxation. You v.dll find that many of them do not even pay their poll-tax, that many of them do not appea- on th6 tax-rolls, except in their relation to the poll-tax; that they are assessed with nothing save the poll-tax, and do not pay that. I have seen instances of it within my own brief experience; and I ask you, is it safe, is it wise, to leave the taxing power in the hands of men who can impose the taxes and bear none of the burdens that they impose? Are you prepared to go before the country to-day, to go before the people who support this Commonwealth, with any such principle? Can you expect the support of these people for any such principle? Gentlemen of the Committee, I cannot give mj sanction to it, because I do not be- lieve it is right, and I do not hesitate, let me say here, to vote for anything in this Consti- 2630 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. tiition which I do think is right, and in voting for it I will not be governed by any con- siderations as to how it may catch the unthinking public. I am not willing to put any- thing in this Constitution for buncombe. If any matter cannot go into this Constitu- tion on its merits, in my judgment, I shall vote against it, I do not care how much of a vote-catcher it may be. I am not here to put things in the Constitution to catch votes. But, Mr. Chairman, I do not by this explanation mean to charge this committee with putting this provision in the Constitution for any such purpose, I wish that dis- tinctly understood, because I believe the gentlemen who put this provision in the re- port are governed by just as high motives as I am, and far be it from me to make any suggestions to the contrary. I believe this principle set forth in Section 1 arises from the recognition by this committee of the necessity for some other method of taxation as applied to corpora- tions. In that recognition I beg to say I agree with the committee. But I respectfully submit that where that necessity stops the principle should stop, and the principle should not be extended further than the necessity extends; and I am perfectly willing to make an exception to this principle of equality and uniformity, so far as it is neces- sary to tax the franchises of corporations. I believe the nearest we can get to equality in that is to permit an exception to the general principle to cover that case and that case only. Mr. Chairman, I believe it is the proper function of a Constitution to protect minorities. Majorities can always protect themselves. One of the great necessities for a written Constitution is the protection of minorities. There is no trouble about the majority protecting itself; and as we apply that principle to taxation, we want to pro- tect the people who may not be able to get or to obtain material representation in the taxing body. Gentlemen, for these reasons, I am opposed to Section 1, I had myself prepared an amendment, but as the amendment of the gentleman from Petersburg (Mr. Hamil- ton) covers the same point, I will not take the time of the committee to offer it, but I felt it was due to myself, in the dissent I have put on record to this report, to make this explanation to the committee. Mr. Cameron: Mr. Chairman, though in no condition, perhaps, to satisfy either myself or my audience in the discussion of any subject, I feel impelled to utter a brief protect against what I must characterize not as the assertion of a principle, but as the abandonment and suppression of a correct principle of government contained in the first section of the report of the Finance Committee. I cannot conceive a more obvious truth than that the burdens of taxation should be equal upon all classes of property. I find, after passing from Section 1 of the proposed ordinance, this provision in Section 4: The General Assembly shall provide for a reassessment of real estate, and such real •estate shall be assessed at its fair market value. Section 5 reads: The General Assembly shall provide by law for the special and separate assess- ment of all coal and other mineral land at a fair market value. Why are the values of these properties to be ascertained and measured by the fair price which they will bring in the market, except that their value having been ascer- tained, upon that an equal burden of taxation shall rest? A hundred dollars is a hun- dred dollars no matter of what it consists, whether real, personal of other property; and when that value has been once ascertained, it is an exercise of injustice, of tyranny and of robbery to place upon it any greater burden than you would put on one hundred dollars worth of any other kind of property. Let me say, so far as the practical results obtained by this report are concerned, I DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGINIA. 2631 have no objection to offer. On the contrary, I have always believed that franchises should be taxed. I shall always believe that extra privileges granted by this govern° ment should be required to pay a corresponding share of the burdens of government. I have never believed that the common carriers of this State vs-ere paying a proper share of the burdens, and I do not believe that the provision made in this article requires an improper share of the burdens from them; but in the direction of that policy which led the Chinaman to burn his house down whenever he wanted roast pig, I think this com- mittee has gone to the length of destroying an essential and fundamental principle, after it had attained a fair and proper way of placing a commensurately fair burden upon the corporations. It seems to me when you strike this great principle of equality and uniformity of taxation from this Constitution, you place it in the power of the preponderance of any interest in any taxing or legislative body to burden the others with an unfair share of the expense of conducting the government. Under this section there is no reason in the world why the Legislature of Virginia, or the common council of any city or town in the State, or the board of supervisors of any county, should not assess a hundred dollars worth of real estate at one price and a hundred dollars worth of personal prop- erty at another. There is no reason whatever, if your legislative bodies, central and in the different localities, should be dominated by influences opposed to both real and personal property, that they should not seek to relieve themselves of their fair and equal share of the ex- penses of the government by laying an improper and inordinate tax upon all the real and personal property under their jurisdiction. Gentlemen have imagined here the presence in this Commonwealth of malign in- fluences, who wish to rise to wealth by a system of robbery upon the people. If that be true, and the power of these corporations is such as has been alleged here, that they find no difficulty in entering a legislative hall and polluting the presence of our courts tc the accomplishment of their ends, I can imagine, Mr. Chairman and gentlemen of the committee, the building of no more golden road to the accomplishment of their purpose than by striking down this well-established principle of government, and opening the door by which, if they do obtain control of the legislative bodies or of the lower taxa- tion authorities in this Commonwealth, they can shift the burden from themselves to the real body of the people. But over, above, beyond and beneath what may be the practical result of the incorporation of this lack of principle into our fundamental law, with me is the consideration that it is inherently wrong, repugnant to every sense of fairness, justice and good government. Who. in the conduct of any ordinary business of life, in which a division of interest is contemplated, Avould say that the principle of the fair ascertainment of value, and then an equal pro rata tax upon that value, is not the only proper way of arriving at the share of payment to be made by each contributing party. I remember once to have been for some years a citizen of a town which the common council was by turns dominated by the classes which owned the real estate in the city, and by those who controlled the mercantile classes; and we passed, by a succession of movements, through the positions of punishing the real estate holders for the money necessary to carry on the tow^n, and then, on the change in the common council, the pendulum would swing, the merchants would grow tired of submitting to exactions in the way of licenses which were unfair, and they would obtain possession and throw the burden the other way. This was possible even when we had the protection in our organic law of a declaration of equality and uniformity of taxes; and it seems to me it would follow as of necessity and universally upon the adoption of a section containing a lack of principle, such as this. I see no good object to be attained by it. I have tried to think what would be said by the gentlemen who advocate this radical departure. It cannot be necessary, as has been stated, to carry out the purpose of arriving at a just amount of taxation to be 2632 DEBATES OF THE CONSTITUTIOi^fAL CONVENTION OF VIRGINIA. developed upon the corporations, particularly of that class of corporations to whom surrender of the eminent domain has been made. It may be that the consideration which has impelled the committee is that it might be necessary to carry out the con- templated change of segregating the subjects of taxation between the State and the various sub-divisions, but even then, what would be the necessity or where would be the right of allowing a municipality to deal with different classes of property in a different way. I cannot see, and I do not believe that any logical mind can see, a single rational defence to the proposition that $100 worth of value in this State would be taxed more than any other $100; and that is and must be the logical conclusion of an application of this section to the practical affairs of government. If it does not mean that the Legislature and the councils and the boards of supervisors may do that, it does not mean anything. If it does not mean that $100 worth of real estate in the city of Richmond may be taxed at one rate and $100 worth of personal property in the city of Richmond may be taxed at another rate, if it does not mean that a tobacco factory worth $10,000 may be taxed at one rate, and that a carpenter shop worth $10,000 may be taxed at another rate, if it does not mean that a $10,000 mine in your county, valued fairly at $10,000, may be taxed $500 a year, and an iron mine in your county, worth $10,000 may be taxed $200 a year or $1,000 a year, or that, to broaden the application, any property of the same value in any section of the State may be taxed a greater or a higher annual rate than the same class of property, only of different expression, or name, in another, then I am utterly unable to understand the force of language and the application of law. If the committee has found or finds any conflict between the maintenance of what I regard to be a sacred and necessary principle in the Constitution, and the arrival at proper results in the taxation of the class of corporations to which I have alluded, then I appeal to the committee and to the members of the Convention, and promise my aid to any measure or course of measures which will legitimately carry out the object of deriving a proper amount or share of revenue from those corporations. But let us not destroy the great safeguard that exists for every man in this Com- monwealth in order to accomplish a special purpose against one class of property. As I understand the amendment offered by my colleague from Petersburg (Mr. Hanailton), it does not attack, it does not affect, in the slightest degree, the carrying into execution of the ratio of taxation of these corporations which the committee has declared to be just and proper, to which I here pledge my assent, my voice and vote. That being the special object which appears on the surface here, and that having been accomplished I beg you gentlemen, with the little strength either of thought or voice that I have now at my command not to go further to endanger the peace and the rights of all of these people by taking from them that safeguard which guarantees that this great government shall deal with every man and every class of property owned by him with equal hand. Provide for the ascertainment properly of the full value of all the property, but when so ascertained, do not make fish of one, flesh of another and fowl of another. Treat all alike. That is justice, and it is. the basic idea of the government under which we live. With the highest respect for this committee and for the intelligent work it has done, I am constrained to believe and to say that they have made a mistake in this first section, and I hope it will not receive the endorsement of this committee. Mr. Meredith: Mr. Chairman and gentlemen of the committee, you will readily give us credit for at least believing that there are some reasons for the provision which has been recommended by us; especially if the thing we recommend is the monstrous evil, that has been portrayed by these gentlemen who are opposing it. If you will ex- amine the signatures to that report you will see that it comprises some of the men who have had a great deal to do with the financial features of the State government for the last seven or eight years, upon the finance committee of the Senate, and upon the finance committees of the House. They are men who understand somewhat the subject DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE VIRGIXIA' 2633 of taxation, men who have been brought in contact with it, and have seen where the dIfSciilties of it lie. It is fair to presume that, in addition to their experience, they have a sense of justice that would prevent them from desiring to impose any unfair tax upon any class of people. I think that is a fair presumption. In addition to that, Mr. Chairman, I represent a constituency, which according to the pictures, that have been painted here by these gentlemen, might suffer as much as any, and yet I do not hesitate to say that I do not believe the present idea of taxation in this State is fair to the larger part of it; that it is a grievous and unjust burden, and that the large portion of this State has been for years paying an unjust portion of the taxes of the State. Mr. Chairma^n, I am glad to say that I am supported in that view by the gentleman, who was Chairman of this committee and was obliged to resign his position in this body because of ill-health; a man who has as much connection with the financial enter- prises in this State, as any man I know of, from banks to manufacturing establishments and on to railroads, while he heartily approved of this proposition that there should be an equality of taxation, as our opponents are claiming, yet he held that it could not be gotten at under the present system of taxation. He recognized there is no class of peo- ple in this State who have taken greater advantage of the present provision in the Constitution than those who have owned the property they could hide. Those of you. who own property that cannot be hidden, have been forced, if the assessment has been fair, to pay your fair share of the taxes, but those who have been able to hide their property, have been able to avoid what has been simply a fair share of the burden. Mr. Chairman, it would be a little surprising that both myself and the gentleman, who was the chairman has now such connection with the financial institutions in this State, should come and offer the provision, which is contained in this section, if it is the monstrosity that has been painted here by the gentleman who preceded me. 'Mv. Chairman, let me test. I do not say the sincerity — I will not say that, because I do not doubt the sincerity — but let me test the information of the gentlemen, who have pre- ceded me on this question, when they have stated on this floor that rather than have the provision which we offer in this section they would have no restriction upon the Legislature. How can that be the serious determination of a man who can appreciate what would be the extent of having restriction in the Constitution? What earthly pro- protection would you have? Yet you, in the earnestness of your remarks, have said that you would rather have nothing in this Constitution, no restrictions, no limitation, no protection whatever to the system of taxation than to have this provision that is here offered. Gentlemen, I respectfully submit that when you come to discuss the question of taxation, it is not a thing that you can weave out of your mind in five minutes. It is not a thing as to which one's mind should jump to conclusions. It has been the matter of serious and earnest study by some of the ablest minds of this country, and their thoughts and conclusions are worthy of consideration before 3'ou express any crude ideas upon the srbject. So far as I am concerned, if these gentlemen who are opposing this measure can stand it. I will agree that nothing shall be put in the Constitution. I will accept the pro- position, if you will, go heartily with me. I will go with you, but I must state that I do not believe it will be wise to pursue that course. To say that you would rather not have some restriction in the Constitution, so as to at least have a system of taxation by which men of the same class shall be taxed alike, that you do not want even that pro- tection, but would rather have none at all. is, I respectfully submit, the expression of an unthought of thought, if I may so express myself; certainly an ill considered idea. Mr. Chairman and gentlemen of the committee let us see the origin of the language we have in this report. It is taken, sir, verbatim from the Pennsylvania Constitution. If there is any State in this Union that is regarded by writers upon economics as far 16G — Const. Deb. 2634 DEBATES OF THE CONSTITUTIOXAL CONVENTION OE VIRGINIA. in advance of any other State upon the subject of taxation, it is the State of Penn- sylvania. Are the gentlemen aware of it? Gentlemen, we have the right to ask that you study this subject before you attack us for making a report for the benefit of the State. Nearly all the economic writers will tell you that the State of Pennsylvania is far in advance of the other States of this Union upon the subject of taxation. We have adopted verbatim, I say, the language of the Pennsylvania Constitution. Mr. Marshall: How long has that been in operation? *Mr. Meredith: Since 1873, sir. If the chairman of the committee will allow me to have his book, I will call your attention while I am on that subject to the States that have no limitation whatever upon their Legislatures as to taxation — just what we had up to 1851. They are the States of Connecticut, Delaware, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island, and Vermont, the tliriftest, w^ealthiest States in the Union where the people are not ground down by injustice and unequal taxation, but States that have greatly prospered along lines of manufactures and works and internal improvements. Those States have no provision, no restrictions whatever upon their Legislatures. Mr. R. WaRon Moore: New York, in its recently revised Constitution, omits any provision at all. Mr. Meredith: Yes, sir. When you come to the States of Colorado, Georgia, Idaho, Montana, Louisiana, and Missouri, you will find they have virtually the same principle as the Pennsylvania Constitution. There are but eight or nine States that have a provision anything like the one we ha,ve in our Constitution. What is the reason of this? The people of those States had some reason for it. It is simply because they have had the idea that actual, tangible property is not the only thing to look at, but that it is the faculty or feature of productivity that you must consider. Mr. Cameron: I dislike to interrupt the gentleman, but I wish to ask whether it is possible to reach that by assessment? Mr. Meredith: No, sir; it is impossible to reach it by assessment, and it is so recognized. The principle is that there is no equality of taxation unless you have a classification of subjects, those subjects that come in immediate competition. That is the principle. It must be the subjects of taxation that come into immediate competi- tion. You must divide the subjects of taxation into classes. But I am off from what I started to say. I have called your attention to those States which have no limitation upon the Legislatures, and that instead of suffering and having their citizens driven from their borders by unequal taxation, they are the thriftiest and the wealthiest States in the Union. I have here a report of the Tax Commission of the State of Minnesota, which is suffering under a general property tax, as called by economists, the same system that we have in this State. They recom- mended and prepared a bill for the Legislature of that State to pass, asking that among the amendments to the Constitution there shall be this: "All taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws for public purposes." Mr. R. Walton Moore: That report is just issued. Mr. Meredith: Yes, it is just issued. It is a report for 1902. Mr. Fairfax: And that is a report of a commission which was appointed for this especial purpose in the State of Minnesota, which has the same provisions in its Con- stitutions that we have in our old Constitution; virtually the same provision as that proposed in the amendment of the gentleman from Petersburg (Mr. Hamilton). This commission has been in session for the last 12 or 13 months, and has just made its report. Mr. Meredith: I stated, Mr. Chairman, that we had virtually been free also until DEBATES OF THE COXSTITUTIOJs^AL CONVEXTIOX OF VIEGIXIA. 2635 1851, and then we put for the first time in our Constitution the requirement of equality what, from the language of the gentleman from Petersburg (Mr. Cameron), is sup- posed to be necessarj^ for the life of a State. From what he said one would think that we could not possibly live under any system of government unless it should be declared that taxes should be equal and uniform. Yet we lived under it until 1S51; and it was then put in for on-e single purpose, as declared by the Supreme Court of the State in the case of Slaughter, in 13th Grattan, and that was to protect slave property. That was the sole purpose for which it was put in there. You will find that when they put that provision in the Constitution of 1851, seeing how dangerous it was to require that all taxation should be equal and uniform, no matter w^hat might be the class of property, no matter what might be the nature of it, that all should be taxed equally, at the same rate of taxation— they had to put in there also that there might be levied taxes upon salaries, incomes and licenses. Whsit did that additional provision mean? Yv^hat is the system of licenses? Is it equality of taxation except among the class upon which it is imposed? Do you not know that you do not tax the liquor dealer like you do the mer- chant who sells dry goods? Do you not know you do not tax the lawyer like you do the physician? Do you not know you do not tax the merchant like you do the manufacturer? It is simply a taxation based upon the theory of the productivity of the property, and not upon the property itself, and the tax is according to the classes In w^hich it is laid. Mr. Cameron: I desire to interrupt the gentleman for one moment. I think he is assuming a little too much ignorance on my part. I do not claim to have all the wisdom in the world, or even so much as has been exercised by this committee, but I must be given credit for an ordinary amount of acquaintance with the affairs of government of my State and with its laws. I knov/ that licenses are imposed where the values cannot be ascertained. I know that those licenses are supposed to be imposed VN-ith reference to the incomes derived from the business or the professions. I also know that assess- ments and the arriving at value under assessments is supposed to be done by taking the productivity of the propert itself as the basis of its value. Mr. Meredith: Mr. Chairman, I did not deny that the gentleman knew the facts, but what I was calling attention to was he did not recognize the theory upon which the facts had come in existence. If his theory is right, why did you not say there should be a license tax of one hundred dollars upon anybody doing any kind of business? If there must be equality of taxation, if there shall alwaj^s be the same tax, why do you say a tax upon one man shall be one thing for doing one class of business, and another tax upon another man for doing another kind of business, and another tax upon another man for doing still another kind of business? It is because it is recognized that equality and injustice, upon the principle upon which our wish is to be based, that is to say, that the same rate of taxation must be laid upon everybody. We are contending that that proposition is a false theory. That the proper way is lo put the subjects into classes and w^hen you have them in classes, then all the people in a certain class shall be taxed one way, if necessary, and all in another class shall be taxed in another way. The basis of taxation should not be property, but its produc- tivity, because you do not tax propertj'; it is the person you tax. You get at the tax upon the person by reason of the value of his property or any other standard. What has the State to do with property? It is the person she taxes. Therefore when we come to lay a system of taxation it should be upon classes of sub- jects, for the purpose of seeing what each person ought to bear. Why should a man, who is in one class of business, have the same license tax put upon him as is put upon another man in another class of business? Do the men in the different classes of busi- ness come in contact with each other? Are the circumstances the same? Are their in- comes the same? Are their methods of making money the same? Are their advantages the same? There cannot be any system of equality of taxation unless it be upon the basis of the classification of the subjects of immediate competition. Mr. Chairman, I would not read an authority to this body except for the fact that 2636 DEBATES OF THE COJsTSTITUTIONAL CONVENTIOlSr OF VIRGINIA. these gentlemen have stood here and talked as if we were advocating a theory that is wild and unknown. I want to call your attention to a statement of a writer, to whom I respectfully submit, any man, who has considered this subject, will give great con- sideration. I speak of David A. Wells, one of the greatest economic writers of this country: Scientifically considered, it means the making of the burden of taxation equal upon all subjects of immediate competition. And that is the true principle that where one man comes in competition with another, he shall bear the same burden as the other man; but where the advantages and the circumstances are different as to different classes, then the law has the right to tax according to the class, and it does not do an injustice to any man by taxing ;npon that theory. Says he again: It is also well to remember that when the term " uniform," in respect to taxation is used, it is essentially the same and that uniformity of taxation does not consist in the payment of the same amount by each tax-payer, but that the proportion of the value of each particular class of that subject which each party pays in taxation to the State shall be everywhere the same. ^ow, Mr. Chairman, I want to call your attention to another thing that these gen- tlemen seem to have misunderstood, as to the object we had in putting this provision in this report. They seem to think that it is giving to the Legislature more power than it would have if you had nothing in the Constitution about it. That, gentlemen, is not borne out by the history of the original draft of this idea in the Pennsylvania Consti- tution. The fact is that up to 1873 Pennsylvania had no restriction in her Constitution. She stood like Virginia up to 1851, with an unlimited power in the Legislature on the question of -taxation. But it was found that by manipulating the Legislature different individuals, on the same classes, would have different rates of taxation imposed upon them. They were able to get an unfair system of taxation, by not having uniformity as to class. This provision was put into the Constitution for the purpose of restricting the Legislature. Yet the gentlemen who have preceded me talk as though this provision gave a greater power to the Legislature than it would have if there was no provision at all. The historic fact is that it was put into the Constitution of Pennsylvania for the very purpose of preventing injustice; in order that the true theory of taxation should be carried out, so that it should not be possible, that a man in one class should have one rate of taxation, through favoritism, and that a man in the same class should, through unjust discrimination, have a different rate. So I call your attention to the historic fact that this provision was put into the Constitution for the express purpose of restricting the Pennsylvania Legislature and to make it act fairly, according to the true rule, namely, that all persons in the same class should stand alike. That is the history of it, and I respectfully submit that these gentlemen, when they say that they would rather have nothing in the Constitution than to have this provision are ignoring this historic fact, as well as ignoring the benefit to be derived from it as a system of taxation, namely, that all men of the same class shall have jus- tice done them, and that there shall be equal and uniform taxation between all the peo- ple of the same class. Mr. Hamilton: I would like to ask the gentleman if he will give some reason why it is ever right to have a different rate of taxation upon different classes of property, if that property is fairly valued? Mr. Meredith: Because, Mr. Chairman, it is absolutely impossible to get at what you call the market values of some classes of property. You cannot get at the market value of the railroads, and we do not propose to do it in this report. We offer the scheme of railroad taxation contained in this report really as a compromise measure, for what we thought was a better scheme of taxation. But in order to satisfy the rail- DEBATES OF THE COXSTTTUTIOXAL COXVEXTIOX OE VIEGIXIA. 2637 roads and not to get too much, taxes out of them immediately we adopted this com- promise. It is impossibe to give the market value of railroad property and, in the same way, it is impossible to give the market value of franchises. Mr. Hamilton: Will the gentleman allow me to ask him how he expects to get at the value of the thing he taxes, if he is not going to take valuation as the basis? :\Ir. ::\Ieredith: I have said it is impossible to get at the actual market value. It has no actual market value. It has a value which the several States get at by different systems of taxation, and they do it just as far as they are able to do it, some in one way and some in another. Some have the franchise value fixed by the gross earnings; some by the net earnings of the road; some by the market value of the stock plus the market value of the bonds not above par; some by the valtie of the stock, and others by excluding the stock and bringing in the bonds. In other words, there is a groping in the dark among scientists of this country to-day who are trying to get at a proper system of taxation for these corporations, in order that they may bear their fair share of the taxes. It is impossible to state, as yet, what is the true principle. It is just as impossible to state that as to state absolutely anything else that is not settled, because the facts have not been ascertained upon which to base a final theory. Mr. Chairman, this idea that my friend has, of having what he calls equal taxation, or equal and uniform taxation upon all persons, is going back to what the economists of to-day tell us is not only an exploded theory, but the grossest injustice. It is denounced by every text-Avriter. They all say that it allows the classes of property that otight to be taxed to escape and puts the burden, finally, upon a few. That vvhen you tmdertake to tax, according to a general property tax, you are doing the grossest injustice. It was easy, in olden times, when the classes of property were but few, whe^n it was nearly all visable, when it was land or horses or cows or furniture or jewelry. It was easy to have a general property tax. Btit the State of society is dif- ferent now. There are htmdreds of different classes of property that you cannot put your hand on. Don't you know that values have been sub-divided by stocks and bonds-- and things of that kind to such an extent that it is absolutely impossible to reach them all by a general property tax. I say you will find it is absolutely impossible to apply the old rule of a general property tax. You may take every writer on economics and you will find that statement made. You may take this work from which I have read, Wells, or the work by ''Seligman" and you will find that both denounce it as absolutely unjust to the man who owns visible personal property, to the man who lives in the country and has his cow and his horse that can be gotten at by the assessor; while the man who has a bond in his pocket cannot be gotten at. We mtist recognize that system of taxation as unjust. No man can say that I, with a hundred dollar bond in my pocket, ought to escape taxation, while the man who has a hundred dollar horse or cow should pay it. Xo man can say that is a fair principle; and yet that principle exists in our Constitution to-day; and the application of it has been found to work the grosses injustice. Mr. Cameron: If I have a bond for a hundred dollars in my pocket which you cannot find, and you have a cow worth a hundred dollars in your back yard where- everybody can see it, is there any inequality of burden in taxing you 40 cents on $100 on your cows, and taxing me 40 cents on $100 on my bonds? I want to ask if there is anything in the announcement of what is said to be a principle in Section 1 of this report, that will enable you to get at the bond any better than you do now. Mr. Meredith: Yes, sir; because it allows us to tax the franchise according to what the State may deem the franchise value of each class of corporations. Mr. Cameron: Has not every speaker who has antagonized Section 1, declared that they had no opposition to make to the provision with regard to the taxation of franchises, and is not the amendment so drawn as not to affect the report of the com- mittee in that respect. Mr. Meredith: I am aware that the statement has been made without due com 2638 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. sidera.tion, for you declare that the tax rate shall be equal, and by doing that you destroy the theory of equalization of taxation. We do not provide for different rates in this report. We leave the Legislature to say whether the merchant selling dry goods shall have the same rate of taxation put upon him for the use of his franchise that the railroad has for the use of its franchise, when you cannot get at the market value of either. Mr. Thornton: Does the word " uniform," in the report of the committee, mean the same as equal? Mr. Meredith: It does, as to classes. There is no doubt about it. There is decision after decision to that effect, in recognition of that principle. Mr. Carter: I would like to ask the gentleman if Section 3, beginninig in the fourth line, does not provide for the taxation of franchises, and also to ask whether the section now under consideration does not give to the Legislature and to municipal bodies the power to discriminate between different classes of real estate, for instance? Mr. Meredith: No sir; I do not believe anything of the kind as to real estate; but it can have a different rate of taxation between one class of manufacturing companies and another class. It can tax a gas company and an electric power company on its fran- chises, at a higher rate of taxation than the man who is simply selling dry goods. The value of the franchise to the man who is selling dry goods is nothing in the world but a protection from individual debt, while the value of a franchise to an electric com- pany or to a gas company is the use it can make of the streets, and the monopoly it has in the community, and therefore the rate of taxation should be higher upon one than upon the other; but all who are in the same class should stand alike. Mr. Hamilton: I understood you to say that there cannot be a difference in the rate of taxation on different kinds of real estate. Mr. Meredith: So far as I am aware. Mr. Hamilton: You explain the fact that the Pennsylvania isupreme Court decisions hold that you may subdivide manufacturing companies and tax one at a dif- ferent rate from another? And you explain that upon the ground that it is a taxable franchise? Is it not a fact that in the Pennsylvania case to which I referred the tax was upon the property? Mr. Meredith. No, sir; not according to my recollection. Mr. Hamilton: It was not a franchise tax. It was a property tax. Mr. Meredith: My recollection is to the contrary. If it was, it was simply because Pennsylvania has a system of recognizing manufacturing as a special thing, which they prefer to tax as little as possible in order to encourage them to come there. Tiiey prefer to put the lowest rate of taxation upon them in order to encourage them to come, because they can go elsewhere. But Vv^here can a gas company go? It can only pursue its business by being in the community. It may have another gas company some- where else; but it cannot pack up its goods, like a manufacturer and go to some other place. Therefore it is recognized as a different class. Mr. Robertson: Would it not be a license tax, where you cannot get at the value? Mr. Meredith: You might call it a license, or an excise or franchise tax. Mr. Robertson: What I want to undestand is this: Whether, if you take the amendment of the gentleman from Petersburg, you do not allow for the case where you cannot get at the value of the property, under the third section. Mr. Meredith: No, sir. Mr. Robertson: It says "All property, except as hereinafter provided." In the third section you provide for a license tax and a franchise tax, and a license tax may be levied upon any business which cannot be reached by the ad valorem system. As I understand these gentlemen, their objection is to making a discrimination where the ad valorem system will apply; in other words, where you can get at the value, and value ought to be the basis, regardless of the character of the property. Mr. Meredith: If you will read the third section you will find that in imposing a DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OE TIRGIXIA. 2639 f^^anehise tax they may take the franchise tax in lieu of taxes on other property, in vhole or in part; that is to say, the thing upon which it lays the tax may be real estate or may be simph* bonds or stock bonds. But, by the provision offered by the gentle- man from Petersburg, you are required to have the same rate of taxation upon an ordi- nary mercantile business corporation that you have upon a railroad. I say that there is no method by which you can absolutely determine the actual market value of a fran- chise. It is purely a question of method, according to legal requirements. We respect- fully submit that it is necessary to have the right to fix the value by the gross earnings, at a certain rate of tax, or to fix it upon bonds and stock at another rate of taxation, or to have it simply upon the real estate at another rate of taxation. IMr. Cameron: I may have been so unfortunate as not to make myself clear to the gentleman. My idea was, however, that your license tax system and your franchise system were provided for. I undoubtedly recognize the fact, and have no objection to the application of the theory that the license system was inaugurated and is main- tained to cover cases where the value of property cannot be arriA'ed at, so as to produce equality of taxation. But when you have your license system, and can apply it as you do now, to conditions existing in a particular business, and when you have provided for a separate system or method of arriving at a proper tax on franchises, and given the General Assembly hereafter the right to deal with the subject, it seems to me that your provision here applies altogether to property, real and personal, the value of which can be arrived at. And if yoti can arrive at the value of property and have arrived at the value of that property, there is no reason why the rate of taxation upon it should not be the same. Mr. Meredith: I did not understand the question. What I am claiming is that the gentleman does not understand what is meant by the third section. It does not say anything about the rate of taxation. It only says how you propose to get at the value of a franchise. I submit that if he will read the third section he will find that it only provides for the laying of a franchise tax which may be in lieu of taxes upon other property, i^'ou cannot lay it upon the whole of a visible property or any part of it. Suppose you take the Michigan or Wisconsin system of taxation upon gross earn- ings. We have in this report laid down and followed the rtile of a tax of one per cent, upon gross earnings as a franchise tax upon railroads; and yet I doubt very much as to whether that is a fair rule as to some roads. After having had thorough opportunity to consider this matter in Wisconsin and Michigan, they have said that where the gross earnings of the road amount to so much per mile the tax shall be so much: and where it amounts to so much less, the tax shall be less. How could you do that if you had one rate of taxation as would be required under the amendment just offered. Do you not see that you would be tying the hands of the Legislature in regard to this matter, which you have never been able to reach hereto- fore in a proper manner. All I am asking for is that the State shall have a fair chance to do itistice to all her citizens. That is the reason I am standing here asking for this change in the law. I am not asking it in the interest of anybody, but only in order that the State shall have a chance to make its system of taxation fair and equal and that she shall have an oppor- tunity of laj'ing taxes according to the productivity of the property, and not upon the old worn out idea of the mere existence of it. I shall not go into a discussion of the absurdity of our present system of taxation on personal property. The system is ridiculed by everyone who writes upon the subject. I want to call your attention to the fact that there is no injustice done here. This principle has existed under the Constitutions of the different States, and under the systems of taxation in European countries. In some of the European countries the old general property tax is absoltitely ignored, and in others it exists simply as a subordi- nate attachment to the general system of taxation. The proposition here is, that where the Legislature thinks a certain class of property should be taxed in a certain way the 2640 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Legislature may do it and if there is a different class of property which the Legisla- ture thinks should be taxed in a different way there may be put such rate of taxation upon it as, according to their idea, is fair. Now, if it should turn out that the classifi- cation is just, tell me if it is not a fair principle. Suppose I can separate on this floor a pile of property that ought ^o bear one rate of taxation and a pile that ought to bear another rate. Will the gentleman contend for the same rate of taxation? Mr. Cameron: I will not; but I will contend for a different system of arriving at the value and then fix the rate of taxation according to the value. Mr. Meredith: The gentleman will still continue to ignore the fact that it is abso- lutely impossible to determine the actual market values; that you cannot get at the value of a franchise as you do at the value of a horse. Mr. R. Walton Moore: That fact was practically and substantially admitted by the representatives of the railroads when they appeared before the commJttee. Mr. Cameron: I have admitted that as to a license tax on franchises, if some other mode of taxation is provided for than applies to real and personal property I would support it. Mr. Meredith: The gentleman, I submit, is groping in the dark. This committee has considered this matter with very grave earnestness. Here you have a manufactur- ing company and you propose to put upon it a system of taxation. You have an indi- vidual Avho is doing the same thing. Under your idea of equal taxation you would put the same rate of tax upon the man who is carrying on the business individually as you would put upon my property. But when you come to the manufacturing company that is carried on by a corporation, in order to encourage them you can put a tax on their franchise which might not be the same. You must leave it to the Legislature to deal with classes. You cannot have a hard and fast rule by saying that taxation shall be equal on all persons. All we are asking for is that the Legislature may have a chance to separate these classes and do what is wise, fair and just, not with the idea of separat- ing them unfairly. There is no gentleman who has the right to consider that we are desirous of doing anything of the kind. We are only saying what has been said by other persons in other States that the present system of taxation in Virginia is grossly imequal, and that it comes from the fact that you undertake to lay upon all classes of property and persons the same rate of taxation. You can only get equality of taxation when you lay it upon those subjects that come into immediate competition. These gentlemen say that this provision is grossly unjust. Let us see. In the first place the Legislature must do the classifying. I do not mean to say they will not do v/rong. I presume they may do wrong. They are men and they are apt to do wrong, Li the haste with which they consider their measures it is more than probable they will do wrong. But when it comes to the question of classification you have got the Supreme Court of the State to protect you. If you fail there you have got the Supreme Court of the United States to protect you under the Constitutional amendments as to the equal protection of the law. They have laid down a rule as to classification which, I respectfully submit, should protect everybody. They lay down the rule in 165th United States in the case of the Colorado Railroad Company against Ellis that " classi- fication must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis." With such protections, we have a right to ask for a change from a rule which is recognized to work great injustice, the so-called rule of an equal rate of taxation. I respectfully submit that when you see we are working along lines that have been adopted by the most thriving States of the Union, along lines that seem to be necessary in order that we shall have a fair system of taxation that we are proposing a system by which the Legislature can classify these subjects which ought to be classified so that everybody in that class shall be protected. When we are working along lines under which you have the protection of the Supreme Court of this State and the protection of DEBATES OF THE CONSTITUTIOI^AL CONVEXTIOX OF VIRGINIA. 2641 the Supreme Court of the United States, I ask if we do not give as fair protection as can possiK^iy be given. We are not dreamers. We do not expect any absolute equality of taxation. It never existed and never will exist. We are trying, however, to get a system of taxation that v.iil be fair, by which classes of subjects may be taxed equally, and under which, possibly, some classes may bear their fair share of the bur- dens of the government. Mr. Hamilton: I hope that it will be agreeable to the committee that we pass this section until Monday so as to allow the amendment to be printed and give the gentle- men a little more time to consider the matter. I have no object in that except to give an opportunity for fair discussion and hearing. I do not think there will be much controversy about this report except over this general principle. I think we can pro- ceed with the other sections without much delay and without much, if any, discussion. I hope the first section will be passed by until Monday and we can go on and take up the other sections now. We will lose no time by that method. I presume we will not sit here on Saturday afternoon, at any rate. I make that motion. The Chairman: The question is upon the motion of the gentleman from Peters- burg to pass by Section 1. The motion was agreed to; there being, on a division, ayes 28, noes 27. The Chairman: The Secretary will read Section 2. Mr. R. Walton Moore: I am authorized by the chairman of the committee to say that he has no objection to that section being passed by. It is better to pass the entire section by than a portion of it. The Chairman: Unless there is objection, that will be taken as the sense of the committee. The Secretary will read Section 3. Sec. 3. The General Assembly may levy a tax on incomes in excess of six hundred dollars per annum; and may levy a license tax upon any business which cnnnot be reached by the ad valorem system; and may impose franchise taxes, and in imposing a franchise tax may make the same in lieu of taxes upon other property, in v/hole or in part, of a transportation, industrial or commercial corporation. And, whenever a franchise tax shall be imposed upon a corporation doing business in this State, or whenever the capital, however invested, of a corporation chartered under the laws of this State, shall be taxed, the shares of stock in any such corporation, the same repre- senting the business or capital so taxed, shall not be further taxed. No city or town shall impose any tax or assessment upon abutting land owners for street or other public local improvements, except for making and improving the walkways upon then existing streets, and for construction of sewers; and the same when imposed, shall not be in excess of the peculiar benefits resulting therefrom to such abutting land owners. Except in cities and towns no such taxes or assessments for local public improvements shall be imposed. Mr. Barbour: Mr. Chairman, I move to strike out, in lines 20 and 21. the words " except in cities and towns, no such taxes or assessments for local improvements shall be imposed." The effect of that amendment will be to tie the hands of the Legislature unneces- sarily, it seems to me. Especially will it tie their hands with reference to road improve- ments which, just at this time, is attracting very general public attention in a number of the most progressive States. It is by this system_ of local assessments, in proportion to benefits received, that the roads are improved. Such a system is now in operation in the State of New Jersey. Mr. Hamilton: I will say that was put in for the protection of the counties. It has not been understood that there had ever been any local assessment or any assess- ment upon abutting landholders for improvements, and we thought it proper to go into the Constitution that there should never be. We thought that was to protect the coun- ties. We do not understand it prevents the counties from improving county roads. Mr. Barbour. No, sir; it does not; but it will prevent those assessments for im- pi'ovements on abutting land-owners, or land-owners within a given radius of those 2642 DEBATES OF THE COXSTITUTIONAL C02s^YENTI0N OE VIRGINIA. improvements, in proDortion to the benefits received. As the gentleman from Peters- burg states, it is certainly a right which the Legislature has always had, and it is cer- tainly one which never has been used, and therefore there is no danger of any abuse of it. I do not see the necessity of putting these limitations upon the powers of the Legis- lature unnecessarily. This may be the secret we are looking for to enable us to get improvement to our roads. It can certainly do no harm to strike it out, and I can see no good that results from having it there. Especially do I think there should be no limitation upon the taxing power unless there is some benefit to be derived from Jt. Mr. Fairfax: I do not see that anything here would prevent the county taking a vote to issue bonds to complete roads, or anything of that sort. It simply says that no such taxes or assessments for local public improvements shall be imposed. Mr. Wysor: Mr. Chairman, I move to amend the proposition of the gentleman from Culpeper oy inserting after the word "assessment," in line 20, the words "upon abutting land-owners," so that it will read, "except in cities and towns, no such taxes or assess- ments for local public improvements shall be imposed." Mr. Barbour: Mr. Chairman, the object of the gentleman's amendment is just the opposite of mine. I want the hands of the Legislature left free to deal with this matter. It is a very important matter to the people of the counties, and it seems to me the Legislature should be left free to deal with it. Mr. Wysor: You do not want the Legislature to have the power to say that the man who abuts on a public road shall keep that road up? Mr. Barbour: I think the Legislature should have the same power that the councils or cities and towns now have, to require the people within a certain radius of an improved road to pay for a certain portion of it, if they see proper to do so. There is a special law in operation in my county permitting that sort of thing to be done. The people have done it voluntarily. Mr. Hatton: I will call the attention of the gentleman from Culpeper to this fact, that the councils in cities and towns, will, under this provision, have limited powers. They will not have the power to impose local asessments for anything but improve- ments of walkways upon the streets, and only upon certain kinds of streets — namely, existing streets. They will not have power to levy a local assessment upon a street that is to be, or for property to open a new street, but only to improve the walkways, and that only on an existing street— and for the construction of sewers. I take it that, from the nature of the case, the counties would not want that privilege. No county would want to lay sewers and no county would want to simply improve the walkways on its public roads. Therefore, when you apply this language to the actually existing con- ditions in the State, the counties really stand, in the same position that the cities do. Mr. Barbour: As I understand it the roadways in the counties serve very much the same purpose that walkways do in the city. It is the only means the people have to get about and see each other. It is much more important, that they should have the right to improve their walkways. Mr. Wysor: I want to say that my object in offering that amendment is to make the meaning of the last sentence of the section clear and unmistakable. The provision says: "No such taxes." The section previously refers to other taxes, such as fran- chise taxes. I suppose the word " such " there means taxes upon abutting land-owners, at the end of the line 20, after the word "assessments." I cannot at all agree with the gentleman from Culpeper that the Legislature ought to have the power to make a man whose lands abut on the public roads pay a tax to keep that road up. My land may not abut on the road, and the land of the gentleman from Culpeper may abut on it, and I may get as much good as he would out of it; yet he would have to pay a tax that I did not pay. It would be very unjust. Mr. R. Walton Moore: Mr. Chairman, the committee thinks that this language is unnecessary to make clear the meaning of the provision. I will call the attention of my friend from Pulaski (Mr. Wysor) to the fact that in this sentence a limitation is DEBATES OE TEIE COXSIITUIIOXAL COXYEXIIOX OE YIEGIXIA. imposed by the use of the word. " such." It is quite evident, taking the whole of the section and applying the language of it, that the reference in this last sentence is dis- tinctly to the imposition of taxes or assessments upon abutting land-owners for local public improvements. I would suggest that the meaning is very clear, when the matter is considered in that way. The committee, hovs-ever, waives any objection to the amendment. The Chairman: The question is upon agreeing to the amendment offered by the gentleman from Pulaski (Mr. Wysor). The amendment was agreed to. The Chairman: Are there any other amendments to be offered to the section? If not the Secretary will read Section 4. Sec. 4. The General Assembly shall provide for a reassessment of real estate in the year 19n5, and every fifth year thereafter; and such real estate shall be assessed at its fair market value. :\Ir. Fairfax: ISlv. Chairman, the committee offers the following amendment to that section. In line 2, Section 4, after the words " real estate,'' insert the words " except that of railway and canal corporations." The amendment was agreed to. I\Ir. Fairfax: 3.1r. Chairman, the committee offers as a further amendment, to strike out the language of the section after the word hereafter," in line 3. The words to be stricken out are " and such real estate shall be assessed at its fair market value." The reason for striking this out, I will say to the committee, is that in article 2 you find that wording exactly, and it is simply to avoid a repetition of the sentence that we propose to strike it out. Mr. Parks: IVIr. Chairman. I wish to call the attention of the gentleman to the fact that the language of Section 2 applies to personal property as well as to real estate, and the commissioner of the revenue would assess the personal property each year. This is for the reassessment of the land every fifth year. Mr. R. Walton Moore: I will sa3^ to the gentleman from Page (Mr. Parks) that the purpose of striking out this language in Section 4 is simplj^ to avoid unnecessa^rj- repeti- tion. Section 2 says that the real estate when it is assessed shall be assessed at its fair market value. It is unnecessary to repeat that in Section 4. for the reason that Section 2 contains a provision that all assessments of the value of real estate and tangi- ble personal property shall be at their fair market value. Xo question is raised as to who shall make the assessment or as to what real estate shall be assessed, and there is a general direction that whenever any real estate is assessed, it shall be assessed at its fair market value. The committee therefore thought it was tmnecessary to repeat that direction in Section 4. ^Iv. Parks: Mr. Chairman, I appreciate the reason why the chairman asks that this be stricken out. in order that they may not have a provision or a statement in this sec- tion that has already been made; but I desire to offer an amendment, to come in at the end of the section, as follows: That such real estate shall be assessed at a fair market value, and the price at which lands have been sold in the community shall be one of the means to be con- sidered in ascertaining such market value. One of the evils of our system of taxation which prevails to-day and which gives rise to a great deal of dissatisfaction is the fact that neither land nor tangible personal property are assessed at their fair market value; and dissatisfaction arises on the part of persons who are assessed with invisible personal property. You go to a man who has a bond of one hundred dollars. The law says that if that is a good bond, if it can be collected, if it is solvent, you 264:4: DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. shall assess it at its value and add in the interest. You go to another man who has just purchased a horse at a hundred dollars, that he can sell for a hundred dollars at any time, and the commissioner of the revenue assesses that horse at $40 or $50 or $60. I have heard complaints made about it over and over again. These men v/ho make the complaints with reference to the taxation of invisible property have said to me time and time again: If you will apply the same rule to the assessment of visible personal property, it will be fair; but v/hen you assess at a hundred dollars that man's horse for which he paid a hundred dollars and for which he can get a hundred dollars, at $40, or $50, or $60, and assess my bond at a hundred dollars when I cannot get more than a hundred dollars for it, it is unfair and unjust; it is a discrimination against me, and hence all the dissatisfaction arises in reference to the assessment of taxation of invisi- ble personal property, and those owning that class of property are thereby induced to refuse to give in some of the invisible property, in order to equalize what is otherwise an unequal assessment of property and a discrimination against them. "What I want to get at, and what it seems to me this Convention ought to desire to get at, is that every class of property shall be assessed at its fair market value — what it will bring upon the market. It does not increase any man's taxation. If property is assessed at its fair market value, we can reduce the rate of taxation, because there will be no necessity for having the present rate of taxation, and we owe it to the State that we should do it. When men desire to come to Virginia and invest their capital, they do not ask how your property is assessed, but what is your rate of taxation? By assess- ing every class of property at its fair market value, you can reduce the rate of taxation, not increasing the taxes of any man, and yet secure equality and do away with dis- satisfaction that is urged upon the part of those whose invisible property is taxed, as they say, in a manner in which visible property is not taxed. It seems to me the Convention ought to desire to settle that thing, and it can be settled by having property assessed at a fair market value. Mr. Stuart: Mr. Chairman, as a member of this committee, I desire to make a statement on that particular point. The old Constitution provided that property should not DC assessed either above or below its value. The general construction of that term heretofore has been " cash value." In the minds of the committee, it was thought important that the word "market" should be used there as a guide to the assessor in determining values. Under the language as employed, it is presumable that the assessor will avail him- self of all sources of information in determining the question of market value. The question as to what market value is, is not to be determined from any one source of information or from any one standard, and least of all could it be determined by the very uncertain and shifting standard proposed by the gentleman from Page (Mr. Parks) — shifting because uncertain. The sales of property in communities are never a reliable test of values taken in themselves, and never can be. One piece of property may be sold with reference to its situation, its peculiar advantages, or for values absolutely unknown to anyone but the purchaser himself. For this reason, it seems to me, if not simply tautology, it would be injurious to prescribe a hard and fast rule for the government of an assessor in determining what is laid down here in most unmistakable terms already. I therefore object to the amendment and I think I have given ample reason why it should be rejected. The question of what is a community, is an important one. I know of communi- ties in which values of land may be found to vary from $1 to $2 per acre. I know of adjoining farms, one of which is worth $10, $15, or $20 an acre more than the other, so that when you introduce the question of community, the question arises as to what is that community, and to what extent shall the territory be considered in establishing a community for the consideration of the assessor? Mr. Parks: Mr. Chairman, I simply wish to call attention to the fact that I am endeavoring to establish no hard and fast rule by this amendment. I simply say that DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF VIEGIXIA. 26^5 the price at which land in the community shall be sold shall be one of the sources of information. The assessor can take into consideration that source and get information from all other sources and all the circumstances surrounding them. The amendment was rejected. The Chairman: The question now is upon agreeing to the amendment offered by the gentleman from Loudoun (Mr. Fairfax) to strike out the language read by the Secretary. Mr. Bouldin: Mr. Chairman, may I inquire of the gentleman from Loudoun (Mr, Fairfax) what is the object of striking out that language, and whether there is any ether reason than the appearance of similar language in the second section? Mr. Fairfax: That is all, sir. We did not want to repeat the same section two or three times. Mr. Bouldin. It strikes me it had better be left there for this reason: It is an admitted fact that the lands in different portions of the State have been assessed at different standards of value. In some portions of the State they have been assessed at their full market value; in others, at not over two-thirds of their market value; and in order to place that question beyond any doubt — to leave nothing open for construction — I think the language of the fourth section as reported by the committee ought to re- main unchanged. The very fact that it was reported by the committee and after- wards stricken out might be appealed to to show that there is some objection to its re- maining in the Constitution other than a mere correction of phraseology. If the lan- guage as reported by the committee remains, no harm whatever can result from it, and it would place the intention of the Constitution on this important subject beyond doubt or question. Mr. R. Walton Moore: Mr. Chairman, it seems to me this language in Section 2 will meet the view presented by the gentleman from Halifax (Mr. Bouldin) : " Except as hereinafter provided, all assessments of the value of real estate and tangible personal property shall be at their fair market value, to be ascertained as prescribed by law.'' I will ask the gentleman whether there can be any doubt that that would apply to the assessment contemplated by Section 4?- Mr. Bouldin: I think it would, sir; but I also think that this provision would be emphasized by permitting it to remain as reported, and that this emphasis is made necessary by the mode of valuing real estate for taxation under the existing Constitu- tion. The terms of that instrument imperatively demand that real estate shall be assessed for taxation according to the fair market value thereof throughout the State. Yet it cannot be controverted that this standard of valuation has been uniformly ignored in certain sections of the State, to the injury of other portions in which real estate is assessed according to its fair market value. If the language I desire retained appeared twice in the short section under consideration, there might be some force in the objec- tion of tautology, but such is not the case. The language of the second section merely declares on general terms the rule for the assessment of real and personal property. Afterwards, when the committee addressed itself in the fourth section to the considera- tion of the assessment of real estate specially, it declared, and, I think, wisely, the rule for ascertaining the value of the real estate. I am unable to see that even the diction of the proposed Constitution is at all impaired by retaining the languages as the committee originally reported it. In view, Mr. Chairman, of the varying modes of assessing lands for taxation under the present Constitution, it is, in my judgment, the part of prudence, when providing for the reassessment of real estate, to declare the mode of assessment in no uncertain terms. I trust the body will retain the language as originally reported by the committee. Mr. Meredith: Mr. Chairman, it is simply a question as to whether we can do any good by repeating a thing twice. We state, in Section 2, in explicit terms, "except as hereinafter provided, all assessments of real estate and tangible personal property shall be at their fair market value, to be aseertaind as prescribed by law." 2646 DEBATES OF THE COXSTITUTIOXAL CONYENTIOX OF VIEGimA. U That language is as broad as it is possible to make it. Here is a requirement as ta the fifth year assessment, and, instead of repeating it, we leave it out, as already de- clared, as one of the first principles we announce in this taxation clause, that all assess- ments shall be at their fair market value. While I am not a stickler as to form espe- cially, I think we ought not to uselessly repeat a thing in the Constitution. We cannot make it any stronger on the assessor by saying it two or three times. He ought to be guided just as well if it is said once as if it is said more than once. Mr. R.Walton Moore: That language has been stricken out in other subsequent sections, and if we decline to strike ft out now, we will have a repetition of this lan- guage not simply once, but several times, and it strikes me it will mar the form of the Constitution to some extent. Mr. Keezell: Mr. Chairman, if the retention of the language would emphasize the necessity of carrying out the provisions of the article, I, for one, would be opposed to striking it out, and if anybody should construe it to mean that it is admitted there it would relieve the necessity of having the fair cash value or market value put upon real estate, I think the mere fact that we are repeating it would be a matter of small con- sequence, if it should be misunderstood in any way, shape or form by striking it out. Within the last few days I have had called to my attention this state of affairs exist- ing in some sections of the Commonwealth under the present Constitution: There came before the committees of the General Assembly of Virginia representatives of seme of the sections of the State asking for certain legislation before that body, and it v/as admitted before those committees that in those sections of the State land that sells at $35 and $40 an acre as readily as property could change hands in any part of the Commonv/ealth is assessed at $4, $5, and $6 an acre. It is not denied at all that that state of affairs exists, and it was also admitted there that, so far as tne valuations of personal property are concerned, the assessor or the commissioner, having ascertained the fair market value of horses, cattle or what not, divides it into thirds, and returns for assessments to the State only one-third of the value, and, so far as the bonds held by the citizens of those communities are concerned, they were not assessed at all. I say those facts are not denied, because they are unquestionably true. If we are to in any way, shape or form countenance and continue such practices as that, or if, by omitting this language here, we are relieving them of the necessity of having this property assessed at a fair cash value, I think we had better leave it in. The Chairman: The question is upon agreeing to the amendment offered by the gentleman from Loudoun. The amendment was agreed to, there being, on a division, ayes 36, noes 15. Section 5 was adopted. Sec. 6. The General Assembly shall levy a State capitation tax of, and not exceed- ing, one dollar and fifty cents per annum on every male resident of this State not less than tv/enty-one years of age. except pensioners of this State for military services; one dollar of which shall be applied exclusively in aid of the public free schools in propor- tion to the school population, and the remaining fifty cents of which shall be returned and paid by the State into the treasury of the county or city in which it was collected, to be appropriated by the proper county or city authorities to such county or city pur- poses as they shall respectively determine; but said capitation tax shall not be a lien upon, nor collected by legal process from, the personal property which may be exempt from levy or distress under the poor debtor's law. Mr. Richmond: I offer the following amendment: Add at the end of the section the following: " And the General Assembly may pro- vide by law for free labor on the public roads in any county of this State." The amendment was rejected, there being on a division, ayes 9, noes 42. Mr. Turnbull: Mr. Chairman, I desire to ask the chairman of the committee in DEBATES OE THE COXSTITUTICXAL COXVEXTIOX OE YIEGIXIA. reference to the language used beginning in line 5 of Section 6: "SI of Trhich shall be applied esclusiveh- in aid of tbe public free schools in proportion to the school popula- t'.on. and the remaining 50 cents of which shall be returned and paid by the State into the treasury of the county or city into vrhich it "vras collected, to be appropriated," &c. The old Constitution simply provides that the counties shall have power to impose a capitation tax, not esceding 50 cents per annum for all purposes. I should like to know why this language is changed. Mr. Hamilton; 3.1r. Chairman, I was responsible for that provision. The idea was that there should be a poll-tax prerequisite to voting, amounting to SI. 50, and that it should be collected hy the State so as to make tne process of collection easier, and then that the 50 cents the counties now get, be at once paid over to the counties. I\Ir. R. "V^ralton :Moore: I will say further, that under the present Constitution, the levy of a poll-tax or capitation tax by political subdivisions, is permissible. This is designed to make it compulsory, in order to have a capitation tax throughout the State of SI. 50. Mr. Thornton: Mr. Chairman, along that same line I desire to offer this amend- KLent: In line 8, page 5, substitute the words "retained in" instead of the words "re- turned and paid by the State into." My reason for offering that amendment is exactly along the line suggested by the gentleman from Brunswick (Mr. Turnbull). I do not think the explanation made by the gentleman from Petersburg (Mr. Hamilton) is sat- isfactory- It ma3' be true, so far as permitting the county to levy this tax or not, as they may think proper: but I see no reason on earth for paying that fifty cents into the State treasury and then having it paid back to the counties again. Those of us who have examined the statement sent to the Convention by the Auditor have been absolutely astotmded by the condition of affairs in this State in reference to the payment of the capitation tax. T^'e find that otit of a poll of IG.OOO in some instances 15,000 have been returned delinquent, vrhile in others only 174 have been delinquent. Yott will fimd that running throughout this State. It is one of the greatest inequalities connected with the payment of taxes in the State. I say it is unjust taxation to put upon the people who pay this tax to require them to pay it and let it go into a general fund and then require it to be distributed. Mr. Meredith: The gentleman has misconstrued the language. It is not to be paid into a general fund. It reads "and the remaining fifty cents of which shall be returned and paid by the State into the treasury of the county or city in which it was collected." Mr. Thornton: Why not let it remain in the county in which it is collected? Y\hx have it paid over here to Richmond and then sent back? Mr. Keezell: I have no doubt that the practical object the gentleman seeks to accomplish by his amendment would be accomplished by the fact that the treasurer of the cotmty wotild simply keep that money in his treasury and get credit for it. :\Ir. Thornton: Then, why not let it remain in the county in vrhich it is collected? Vrhy not let the dollar go to the State treasury and let the fifty cents remain in the county treasury? Why have it brought to Richmond and then redistributed if you pro- pose to send it back to the county in which it is collected? It seems to me to be a use- loss trouble. Mr. Eggleston: Does not the gentleman think it is absolutely necessary to provide that this capitation tax shall be paid to the Auditor, v\-hen you will probably make that as a prerequisite to voting? Yoti' do not want to leave it in the hands of the county treasurer and thereby give him the right to disfranchise or enfranchise any citizen, but you require him to account for it and pay it into the treastiry in order to ascertain who is qualified to vote. Mr. Thornton: I do not think that applies at all, sir. Yoti can provide that the treasurer of each county shall report exactly who has been delinquent and who has not; and upon that rule would depend the right of a man to vote. Mr. Stuart: I wish to call attention, Mr. Chairman, to the fact that the whole dol- 2648 DEBATES OF THE COJs'STITUTIO^s^AL CONVENTION OF VIRGINIA. la r and a half is a State capitation tax. The language of the section begins in this way: " The General Assembly shall levy a State capitation tax of, and not exceeding, one dollar and fifty cents per annum." This being a State capitation tax, levied by the State, it would be presumed it should be collected by the State, and it is only an inci- dent that fifty cents of it shall be returned to the counties. While on this subject-, it might be well to state that this whole section is liable to undergo some changes with reference to the action of the Suffrage Committee. It does seem to me, however, that the point I have made showing that it is a State capitation tax, would necessitate practically the language the committee has employed. Mr. Thornton: So far as the first suggestion by my friend from Russell (Mr. Scuart) is concerned, I do not agree with him. I do not think because it is a State tax that is any reason on earth why it should be paid into the general treasury. It may be a State tax, and collected, as it has to be, by the same official, the county collector or treasurer. Let him turn over one dollar in cash to the State treasurer, and retain in his county the other fifty cents, and report to the State treasurer the fact that it has been retained, and he can get credit for it. As to the second suggestion, I agree heartily with the gentleman from Russell. I believe it will probably be changed, and for that reason it seems to me it would be better to pass this entire section by for the present. At the suggestion of a member of the committee, I withdraw my amendment, with the understanding that I will have an opportunity of offering it later. Mr. Hamilton: Mr. Chairmian I desire to make a motion that the committee rise. It is very necessary that we shall have some action before 2 o'clock upon the report of the committee appointed to select another meeting place and I think tlie time has come for that. I do not think we need go any further into the report of the Committee on Taxation. Mr. Gillespie: Mr. Chairman, I desire to offer my amendment, and it need not be acted on at this time. The amendment I propose is to strike out all the words of Sec- tion 6, after the v/ord "determine," in line 12, The words stricken out would be these: "But said capitation tax shall not be a lien upon, nor collected by legal process from, the personal property which may be exempt from levy or distress under the poor debtors' law," My idea is that every man who lives under a government ought to contribute some- thing to the support of that government, and if he has anything it ought to be taken from him, to the extent of the capitation tax, for the support of the government. Then I would further add these words : " The General Assembly may provide for the dis- charge of delinouent capitation taxes by labor on the public road," I voted against the amendment of the gentleman from Scott (Mr, Richmond), not believing it was right to require a man to pay his capitation tax and then give free labor upon the public roads; but I do believe it is right that a man who has no other way of discharging his public duties and his capitation tax should be allowed to dis- charge it by labor upon the public roads, in a manner provided for by the General Assembly, On motion of Mr. Hamilton the committee rose and the President resumed the chair. On motion of Mr. Thomas H. Barnes the Convention adjourned until Monday, February 24, 1902, at 12 o'clock M. DEBATES OF THE COXSTITFTIOXAL COXVEXTIOX OE VIRGIXIA. 2649 MONDAY, February 24, 1902. • The Convention met at 12 o'clock M. Prayer by Rev. Richard Mcllwaine, D. D. OFFFiCE OF THE ADJUTANT-GENERAL. Mr. Brooke: I offer, by request, a resolution relating to the office of the Adjutant- General, and ask that it be referred to the Committee on the Executive Deparment. Resolved, That the Committee on the Executive Department be directed to report upon the advisability of incorporating in the Constitution the following provision: There shall be appointed by the Governor an Adjutant General, whose duties shall be prescribed by law% and who shall hold his office for the term of years, unless sooner removed, with the approval of the Governor, by the finding of a court martial organized and conducted as the law requires. TAXATION AND FINANCE. On motion of Mr. Fairfax the Convention resolved itself into Committe of the Whole for the further consideration of the report of the Committee on Taxation and Finance, Mr. Ayers in the chair. The Chairman: The question is upon the amendment offered by the gentleman from Tazewell (Mr, Gillespie) to insert in Section 6 the words, " The General Assembly may provide for the discharge of deiiquent capitation taxes by labor on the public roads." Mr. Epes: I think that proposition ought to be divided. There are two proposi- tions in the amendment, one to strike out the words read, and the other to insert the language proposed. I favor one of those propositions and oppose the other. The Chairman: Unless there is objection, the amendment will be so divided. The question will be first upon the motion of the gentleman from Tazewell to strike out the language referred to. Mr. IMeredith: Mr. Chairman, it is the hope of the Committee on Taxation and Finance that the Committee of the Whole will not see fit to strike out that language. It may be necessary hereafter to broaden it still more. It is desirable that this capitation tax shall be a voluntary contribution. We recognize the necessity for it, and we deem it desirable that any man who does not pay that tax should not be forced to pay it. We recognize the condition of affairs in this State requires that that tax should be a voluntary tax, and we ask that the motion of the gentleman from Tazewell — that part of it, beginning in line 12, saying that the capitation tax shall not be a lien upon, nor collected by legal process from, the personal property which may be exempt from levy or distress under the poor debtor's law — be not agreed to, and that the provision be allowed to stay in the report. It is possible that when the Suffrage Committee makes its report that language may be made broader still, that it shall not be collected from any property, but be a purely voluntary contribu- tion to the State. Therefore the committee hopes that language will be allowed to stay in for the present, at least. Mr. Summers: We are together in regard to the resolution; but differ in the motive. Mr. Chairman and gentlemen of the committee, on this beautiful morning, as I came from my house to this hall, I looked over to the Capitol of this proud old State. I sav7 the banner of the State, with the Goddess of Liberty standing so proud and pure with her foot upon the tyrant's throat; and that flag waived to the grand country from which I hail. And when I thought of the fact that the most charming and beautiful of the handmaidens that wait upon that Goddess were from the country of my noble friend 167 — Const. Deb. 2650 DEBATES OF THE CONSTITUTIOXAL COXVEXTIOX OF VIRGINIA. from Tazewell, and the county of Washington, I considered that it would be a wonder to our friends for us to disagree. I can account for this, gentlemen of the committee, upon this ground: My friend from Tazewell is an optimist, looking for a bright future, while, for the present, I am a pessimist, and for my people see nothing but gloom and sliadow awaiting them. Gentlemen of the committee, I hope that the sequel may prove my friend from Taze- well right; but be that as it may, we, in our land and country, will be found in the last ditch. Now, let us address ourselves, Mr. Chairman, to this question which I consider to be the most important that has arisen or that will arise in this Convention. Here is the question that presents itself in Section 6: "The General Assembly shall levy a Slate capitation tax of, and not exceeding, $1.50 per annum on every male resident of this State not less than 21 years of age, except pensioners of this State for military ser- vices; $1 of which shall be applied exclusively in aid of the public free schools in pro- portion to the school population, and the remaining 50 cents of which shall be returned and paid by the State into the treasury of the county or city in which it was collected, to be appropriated by the proper county or city authorities to such county or city pur- poses as they shall respectively determine; but said capitation tax shall not be a lien upon, nor collected by legal process from, the personal property, which may be exempt from levy or distress under the poor debtor's law." The first part of that section, gentlemen, will be amended, or at least there will be amendments offered to it, which do not concern us. One of them will be that this capi- tation tax shall be made $1; and then, again, instead of exempting alone Confederate pensioners, I propose to spread the mantle of the State so that it will cover the few remnants of that grand body of men who served with us in our grand cause. But we are not now considering that. The question is, Shall the capitation tax cease to be a lien upon the property of the people of Virginia? It will be a popular measure? I do not attribute the motive to the members of this committee that this is done for the purpose of putting a certain party in power, I am advocating it because I believe it right, let whoever be in power that may be. The poor law exemption of this State is a pair of horses, a mule, a wagon, or, if he has not got that, a little house and furniture, some knives and forks, a barrel of flour, and a few bushels of meal. Now, the object of the poor debtor's law was to protect those who had no capital, those who had no means of living except by the sweat of their brow. My friend from Tazewell (Mr. Gillespie) has put it so that it can be enforced. The politicians of this Convention say do not enforce it, from political motives, and so as to throw the poor man off his guard, and the rich and mighty may control the State. But that is not my principle. I say release the lien. I have lived long enough, until I have seen our little collectors riding over this State in my county for years and years. I have seen women barefooted, children barefooted, old men tottering with age, and these little despicable collectors come round and levy upon the last thing on God's earth they have. I want to prevent this, not in the interests of the Democratic party, nor in the interests of any other party, but because the principle is wrong; and if it is a democratic measure, thank God that they have for once stumbled and blundered upon a grand prin- ciple that I think is right. What effect will it have upon the State? According to the clerks I have at work, this will apply to 196,000 voters of the State of Virginia. History repeats itself. The black wave was started years ago in the State of Mississippi, and it has moved around the South, and at last the simoom has struck the old State of Virginia, and now wages battle against the battlements of freedom and liberty. Are we to expect any more at the hands of this Convention than they have in Mississippi, Alabama, South Carolina and North Carolina? My friend from Tazew^ell believes that there is hope. There is none. The poor man, when this assembly is over, will be crowned with a damning understanding clause that means fraud and perjury for the next thirty years. When DEBATES OF THE COXSTITrTIOXAL COXVEXTIOX OE TIEGIXIA. 2651 vre leave this hall, and I vrant my friend from Taze^vell to remember it. the foe: of the tyrant will be upon the neck of the poor man, and it will stay there until God Almighty in some future day removes it. I do not look for anything else. My friend, in his optimistic delusion, is more buoyant and hopeful, but it is but a mirage playing upon a sandy desert, that never existed and never vrill exist in Virginia. Time vill prove v,-ho is right. We vrill have the State of a3airs that exists in Xorth Carolina, South Carolina, :Mi55issippi and Alabama, and Virginia vrill be as poor in her old age as she was when she followed them in 1S61 — and I went with her. She is going to rob us of our best blood and capital. But our party leaders are going to do this thing, and you might as well try to stop a herd of frightened buffaloes upon the plain as to try to stop the politician in his onward march in the destruction of the poor people of Virginia. Xow, with that state of affairs, what do I want? I repeat again we are none of your common soldiers, we are the men that led the van, and the virtue of our women is phenomenal, poor as they may be. You have taken and will take from us all; you will rob us of our rights and crown all other evils with an understanding clause that means perjury for thirty years. Xow that we have lost all interest and honor in our government, take away from the hand of a vicious collector the power to walk into my humble cabin and take the last thing on God's earth to pay a government for protection that has robbed them of all they had, or will have for the next thirty years. Xow, you Democrats that are honest, I am with you in heart and principle. Leave us what little things we have upon earth and let us redeem them. My prayer is that the gentleman from TazeAvell may be right and that I may be wrong, but I c-an see as far into the dark future, I am presuaded as any man living to-day. TLaughter.) I thank you, gentlemen. Mr. Davis: Mr. Chairman, I rise to offer a substitute for Section G, which I ask may be read. Substitute for Section G. the following: The General Assembly may levy a tax not exceeding one dollar per annum on every male citizen who has attained twenty-one years of age. except pensioners of this State for military services; which shall be applied exclusiA^ely in aid of the public free schools. Mr. Hamilton: The motion before the house. I believe, is that of the gentleman fT^om Tazewell to strike out certain words. I feel that it is proper to say to the com- mittee, in a few plain words that we hope that it will not be stricken out. This pro- vision is nothing more than the present poll-tax levied in Virginia now. It is one dollar tc the State everywhere and fifty cents to the locality. VTe simply make it payable to the State, and we relieve the man who has no more property than the poor debtors' law exempts, from having it forcibly collected from him. There are good reasons why this should remain just as it is. I hope there will be no striking out. :Mr. Gillespie: Mr. Chairman and gentlemen of the committee. T regret that I differ, perhaps, from not only the Democratic but also from the Republican members of the Committee of the Vhole. I differ also from the Committee on Taxation and Finance. I think it is but just to myself that I should state the reasons for the amend- ment to the committee. I must further say that I think if the proper consideration was given to this question the Committee of the Vhole would not desire to place this pro- vision in the Constitution. There is no necessity for placing it in the Constitution. If it becomes necessary to say that certain property shall be exempt from the levy and collection of this capitation tax, then that can be done at any time by the Legislature. Vi'hy, then, place it within the Constitution, so that it will make it impossible to collect a great deal, if not the greater part of the capitation tax of this Commonwealth? Xow, as I said when I offered this amendment, it seems to me that a reasonable capitation tax is but a just tax. One dollar and fifty cents is not an unreasonable tax 2652 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIKGINIA. to my mind. Every man in this Commonwealth has the protection of the law, every man, no matter whether in his home or in the performance of public duties, or on the highway, has the mantle of protection of the law thrown around him. The whole power of the Commonwealth is here to protect him. Then, gentlemen of the committee, is it reasonable to say citizens should render nothing for this, and that we should fix it so that it cannot be collected. I do not think it is reasonable. Another consideration that I would call to the attention of the committee is that this capitation tax has been, in the past, and I suppose will be in the future, set apart for public free schools. How far then, is this going to effect the revenue of the State for that purpose? I notice from some tables that were furnished, that in the year 1899 there were capitation taxes amounting to $124,031.37 returned delinquent in this State. If, then, the prop- erty which is now exempt under the poor debtors' law is exempted, may we not expect that very greatly increased? How far is it going to affect the revenue? Who can tell? And now the proposition is to put it in the Constitution, and no matter how far it affects the revenue it cannot be corrected in the future. I do not think it is a wise propositon. I think it is one which, if the committee gives it proper consideration, will not go into the Constitution. I notice that in a table furnished, there are about 103,000 persons reported as hav- ing as much as $300 worth of real estate in this Commonwealth; that out of 447,000 in round numbers, persons over twenty-one years of age in this Commonwealth, there are only 103,000 owning as much as $300 worth of real estate. I imagine, gentlemen, that there will not be more than 100,000 more, owning more than $150 worth than is exempt under the poor law. Under the poor debtors' law there is exempt to a man engaged in agriculture two horses, one wagon, cov/ and calf, and various articles of a household nature, I would say not less than $150. Then the proposition is to make them, probably for all time, free from the collection of this capitation tax, I do not think, gentlemen, that is a wise proposition. I do not think that without knowing how far and how it will affect the revenue, especially for the purposes for which this revenue is collected, this committee will place it in the Constitution. The theory of public education is that it is a benefit to the Commonwealth and that the citizens of the Commonwealth are to be benefited; that it is to raise a higher standard of morals; that there will be less crime if our citizensliip is educated. The Commonwealth expects to derive a benefit from this education. Then we should have all the benefit that can be derived from it. What does the poor man do who pays $1.50 to the State for this purpose? He but makes the State, as it were, a trustee to expend that much for the education of his children, to make better citizens of them. It does not seem to me that it is an improper tax or one which the people ought to be unwilling to pay, although I have no doubt if you relieve them, by saying that their property will be exempt from levy, many of them will not pay it. Gentlemen, v/hilst I am on my feet, I will give my reasons for the second part of my amendment; that when it is impossible to collect the capitation tax by levy, then that the persons against whom they exist, shall be allowed to discharge them by labor upon the public roads. That is but giving a man an opportunity to discharge his duty to the State, if he wishes to do so. I do not say that it shall be done, but my amend- ment provides that the General Assembly may vote for it. What objection can there be to that? This document, which is supplied from the Auditor's office, shows thai there are 65,000 white men over twenty-one years of age who in 1899 failed to pay their capita- tion taxes. If it is to be made a prerequisite to voting, then I want those 65,000 white men to have an opportunity, if they desire to do it, to render their dues to the State, and to be able to vote. Many of them have no money, but many of them would be will- ing to give the two days' labor upon the roads, or whatever time might be required of them, to discharge that $1.50 of capitation tax levied against them. I do not ask you to put it into the Constitution, but that all that shall be done, is to leave it to the 3.egislature, if they should hereafter desire to do it, to provide such a law. DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. 2653 Gentlemen, I have presented these amendments, feeling that they are proper and right. The first amendment striking out a portion of Section 6, I believe, is proper and right, and the other should go into the Constitution in order to enable a man if he de- sires, to discharge his duties. Every duty required of a citizen, he ought to perform and the opportunity should be given him to perform it. The Chairman: The question is upon agreeing to the amendment offered by the gentleman from Tazewell to strike out. The amendment was rejected. The Chairman: The gentleman from Tazewell (Mr. Gillespie) offers the following amendment which the Secretary will read: Add at the end of Section 6 the following words: The General Assembly may provide for the discharge of delinquent capitation taxes by labor on the public roads. The amendment was rejected. The Chairman: The question now is upon the substitute offered by the gentleman from Franklin (Mr. Davis), which the Secretary will read. The substitute was rejected. The Chairman: Are there any other amendments to Section 6? If not the Secre- tary will read Section 7. Sec. 7. After this Constitution shall be in force, no statute of limitations shall run against any claim of the State for taxes upon any property; nor shall the failure to assess property for taxation defeat a stibsecuent assessment for and collection of taxes for any preceding year or years, unless such property shall have passed to an innocent bona fide purchaser for value. Mr. Wysor: I move to strike out this section. Mr. Fairfax: I would like to call the attention of the gentlemen of the committee to the fact that during the consideration by the Committee on Finance and Taxation of this question, we called into council the officers of the State, notably the Auditor of Public Accounts, who has been in his present position for twenty-odd years, I believe, and when he came to this article he said it was the most commendable article that had been offered to his knowledge. He said it was covering ground that had made more trouble than any question that had come before the Auditor for years. He commended this article most highly as one that ought to be put into the Constitution. I am making this statement in order to show you his appreciation of this article. Mr. Barbour: May I ask what reason he gave for that opinion? Mr. Fairfax: He gave numerous and sundry reasons, that I am not able to explain here on the floor, for the simple reason that I did not tax my mind with them. "We felt so confident that it was an important measure, and one that ought to go into the Con- stitution, that we had no idea that there would be any objection to it. Mr. Stuart: I hope it will not be the pleasure of this committee to strike out this section. In examining and in having titles examined in the Southwestern part of the State, I have frequently been greatly puzzled by the operation of the statutory release of the claim of the State for taxes. It may not be within the knowledge of the members of this committee, or within the knowledge of any considerable number of them, that there are large patents lying on very considerable territories in various cotmties of this State, notably the counties of Buchanan, Dickenson, Wise and perhaps others similarly situated. Some of these patents were granted considerably more than a hundred years ago. Since that time actual settlers have come in and occupied these lands and have acquired a bona fide title. The lands are now occupied by them, as they believe, under an absolute title. In the meantime these great patents are hanging over them, claimed by parties who, perhaps, have acquired them in exchange for suburban real estate in some Western city. They are nothing more than poker chips in a game of poker, and 2G54: DEBATES OF THE CONSTITUTIO^TAL COISTVENTION" OF VIRGINIA, yet they will stand in the way of the people, the inhabitants of this State. How have they seen made so? By frequently recurring acts of the Legislature excepting the holders of sucn patents from liability to this State for taxes. In other words, a for- eigner has been allowed, over and over again, to obtain a release from liablity to the State, in order that he might hold a bogus title over the actual occupant and settlers. No citizen of this State has been granted any such privilege, so far as I know. Such a light has been granted only when the representatives of large patents, such as I have mentioned, come in and log-rolled a general scheme through the General Assembly, for their release, i hope there will be no authority left in the General Assembly to repeat such a performance. They are an unmixed evil and are unjust to the citizens of this State. I hope that this section will be retained because it serves directly to redress the wrongs which have heretofore been committed by the General Assembly. Mr. R. Walton Moore: I would suggest to the gentleman from Pulaski (Mr. Wysor) that if his motion were to prevail it would not accomplish the result that he seems to be aiming at. He has referred to a statute wnich is now in force, fixing the term of the statute of limitations at five years, upon all arrears of taxes. The gentlemen of the committee know very well that when the lien for taxes accrues the Commonwealth, very soon thereafter, purchases the land and then the statute ceases to run, and has no operation at all. So that even if we were to strike out the provision that is sought to be stricken out by him, we would not, practically, have any five years' limitation. The reason is that the courts have said that if the lien has attached, and the land has been purchased by the Commonwealth, which is always done short of the expiration of the five year period, then the statute ceases to run. Then there is no limitation at all. The title is in the Commonwealth, and the Commonwealth can at her pleasure, and in her own time, bring about a resale of the property. But independently of that, it does seem to me that the Constitution ought to say that no statute of limitation shall run against the Commonwealth touching its lien for taxes. There is a long period given for the life of a judgment. There is a long period given for the life of a note or bond. The general rule is that no statute of limitation shall run against the Common- v/ealth; and yet we find that there has been a limitation of five years provided by statute. If such an act could be made effective, it would work an injustice. It would be practically a discrimination in favor of one citizen or class of citizens or body of citi- zens against others who are prompt in paying their taxes and liabilities. I can see no reason w^hy, when a public lien fastens itself upon real estate, that lien should be ex- tinguished by lapse of time, either short or long. If I were framing that section, I am free to say I would go a step farther than the committee has and declare that the State shall not, by general law, remit or release tax liabilites that have accrued. I think there have been abuses along that line. I recall one instance in which the State by a release statute surrendered heavy liabilities that might and should have been collected. I shall not propose any amendment of that character. I only hope that this section which seems to have commended itself to the authorities of the State, and which was fully canvassed in the committee, may not be stricken out. Mr. Braxton: What would be the effect of this enactment, where the person whose name the tax was assessed had lost his title under the operation of the statute of limita- tions? Would the State continue to hold a lien upon the property if the person against whom the tax was assessed had lost his title? Mr. R. Walton Moore: As I understand it, that vt^ould be a case where the land was assessed, let us say in the name of Smith. Then the name of Smith would be in the chain of title and the record would show the tax liability in that name upon that par- ticular tract 01 land. I do not see why the purchaser taking that tract of land should not be bound to. clear that tax liability. I do not find anything in this section that would prevent the State from compelling the party who finally buys the land to pay the DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OE VIRGINIA. 2655 amount of tax for which the land was returned delinquent in the name of Smith, albeit subsequently Smith may have lost title to the property. Mr. Turnbull: As the gentleman from Pulaski (Mr. Wysor) has offered to strike out the whole section, I want to offer an amendment to it in a practical way. Mr. Wysor: WilL you wait a moment with your amendment? I am going to change my amendment. I now move to strike out all the first part of the section down to the word " the " just before the word "failure," in the third line; and to insert the words "shall not," before the word "defeat," in the fourth line; and after the word "years" in the fifth line, to insert the words " not exceeding five years." So that it will read, if this amendment is adopted: The failure to assess property for taxation shall not defeat a subsequent assess- ment for and collection of taxes for any preceding year or years, not exceeding five years, unless such property shall have passed to a bona fide purchaser for value. The committee will observe that I strike out all of the first three lines after the word " the " in the third line. I think that should be done and that there should be a limit to the Commonwealth lien for taxes. Certainly the Legislature should have the power to make such a limit. You are taking away from the Legislature the power to pass an act limiting the lien of taxes on property. I do not think that power should be taken from the Legislature. It has always had the power and has exercised the power. It makes the Commonwealth prompt in the collection of taxes. As to the point made by The gentleman from Fairfax, that I w^ould not get the benefit of my amendment, anyhow, of course if the Commonwealth goes on and collects its taxes before they are barred by sale or otherwise, that would end it. Mr. R. Walton Moore: Perhaps I failed to make myself understood. The Common- wealth buys the land in. There is no payment of taxes, but a merely nominal purchase of the land by the Commonwealth, which operates to prevent the running of the statute of limitations. Mr. Wysor: That does not always happen. If you will look up some of the late cases you will find the case of Moore vs. Repass, in Wythe county, where the taxes had ri7n from eight to ten years, and Repass v/as trying to enforce a lien for taxes. He had not collected the taxes, but kept them in his pocket for years, and then came forward and claimed he had a lien. The court held that they would be barred in five years, but that, in this case, they were not barred, because a creditor's bill had been filed which saved the lien, I, however, succeeding in defeating the tax on the ground that the treasurer could not be subrogated to the title of a Commonv/ealth under the circum- stances. I say there ought to be some limitation to the lien for taxes. The point made by the gentleman from Russell (Mr. Stuart) certainly does not apply to a lien. I suppose he was addressing himself to the question of assessments, and to the proposition that the failure to assess property for taxation shall not defeat a subsequent assessment. The language of the amendment is " the failure to assess property for taxation shall not defeat a subsequent assessment for and collection of taxes for any preceding year or years, not exceeding five years." Mr. Stuart: It is that section I am particularly anxious to have retained as it pppears in the report of the committee. Mr. Wysor: The only amendment I ask is to have it limited to five years. I ask that these amendments be voted on in order. Mr. Meredith: Mr. Chairman, on behalf of the Committee on Taxation and Finance, I ask that this section be allowed to stay as it is. We think, if you will give it such consideration as ought to be given to it, you will see that no hardship is done to anybody, but that, on the other hand, it tends to make the burden fair and equal to everybody. There is no meritorious claim in a statute of limitations. There is no 265(3 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. moral obligation as to when a debt shall be past collection. It is simply the favor of the State granted to different people and under different circumstances. There is no right that any one should be relieved of a debt. It does not make any difference whether it is ten years or five years old. You have no moral right to be relieved at any time. It is just a question whether a statute, in the nature of a statute of repose, shall be passed adopting a policy which will say it is better that, at a certain time, debts shall cease to be due and collectible. It is only a favor granted by the State. So I say there is no man who has any moral right or claim to be released from debt. Yet when you come to know what has been the exercise of the power of the Legislature in passing statutes of limitation, you will find this remarkable state of affairs: That as to debts due to the Commonwealth, as to taxes, as to that upon which she lives, as to that which is necessary to her existence, she makes the statute of limitations five years; and upon a bond it is now ten years. Mr. Braxton: Have you considered what effect, if any, this would have upon the efficient operation of the Torrens system of land registry and guaranteeing titles? Mr. Meredith: None at all. I think if you declare that no statute of limitations shall be passed, you then know exactly the conditions of affairs. If the State undertakes to guarantee the title it undertakes to guarantee it against its OM^n taxes. She would not guarantee the title until the taxes were paid. Mr. Braxton: If she knew it? Mr. Meredith: She must know it. It is claimed that we ought to leave to the Legislature the right to exercise this power; and yet you find that v/nen it has been exercised by the Legislature it has been exercised against the State, that the statute of limitations does not run against a bond for ten years, v/hile a debt to the State can- not be collected after five years. Mr. Thornton: How would it affect a case where the land is assessed in an improper name? I understand this lien to be "in rem." What effect would that have? Mr. Meredith: That would not affect the title except as provided below — " Nor shall the failure to assess property for taxation defeat a subsequent assessment for the collection of taxes for any preceding year or years, unless such property shall have passed to an innocent bona fide purchaser for value." It would not be affected, except as against an innocent purchaser. |! Mr. Thornton: If the land is assessed in the name of Jones, when it it owned in fact by Smith, and continues to be assessed in that way, vv'hat would be Aie effect? Mr. Meredith: I do not see that there would be any assessment there at all, and therefore there would be no claim. I was calling the attention of the committee to the fact that in allowing the Legis- lature to exercise this right, it has been shown by experience how it will exercise it. It will exercise it as a political matter. It has exercised it as a political matter. It has been represented to the Legislature that it is a desirable thing that we should wipe out all the taxes, and about 1884 or 1885 they did wipe out all the taxes up to a certain year. In addition to that for the first time in 1885 it has attached this proviso, making the period of limitation five years. It was thought that would be a popular measure all over the State. You must recognize that when these acts are passed they are passed not merely with reference to the consideration as to whether they are wise measures, but also with reference to the question as to what will be their practical effect. The effect of this act has been that the State cannot collect that upon which she lives, after five years; and yet individuals do not have the same protection, on a bond, for instance, until after the lapse of ten years. I am calling your attention to the fact that this right has not been reasonably exercised; that it has put the State in a situation of embarrass- ment with regard to her taxes, and has driven her to the passage of these land-grabber bills. It was found that the five years were passing by and that the State was not enforcing her liens. Then, in order to protect herself, she passed this land-grabber act, so that the time might not run against it. I say that this power has been unwisely DEBATES OF THE C02s^STITUTI0XAL COXVEXTIOX OF VIEGIXIA. 2657 exercised; and you ought not to leave it to the Legislature to exercise the same power again. You ought at least to put in a provision here saying that no statute of limita- tions shall be for a less period than twenty years, or ten years, and not leave it to the Legislature to do as it has done in the past; that is, put the State of Virginia, the sovereign, in a weaker position than you do the subject. I ^ay no man can even suggest the wisdom of that idea. I call your attention to another thing, and that is, that if you strike this out and leave to the Legislature the power to pass a statute of limitation it will at once act as an encouragement to men not to pay their taxes. Mr. Braxton: May I ask the gentleman how far his views would be met by fixing a minimum period? Mr. Meredith: I think that would be wiser; but I do not think there ought to be any statute of limitation as to the sovereignty. The common law principle is that there should not be, that the statute of limitations never runs against the sovereign. When you come to the question of taxes, upon which the sovereign lives, the Legisla- ture has exercised this power in such a way as to put the State in a situation where she shall not collect debts due to her after five years have elapsed, while any subject can collect upon a bond until ten years have elapsed. By putting this into the Constitution v>'e are warning the people that the Legislature shall not pass any statute of limitation, and that all persons shall pay their taxes, and cannot hope, by simply not paying their taxes, to be released from their just burden in support of the State, by simply waiting for the Legislature to relieve them of their just burden in the support of the State by passing an act of release from, the payment of taxes. Mr. Bouldin: May I ask my friend from Richmond if the result he desires to secure would not be secured by the increased activity that would be necessary on the part of the officers of the government to collect the taxes, if they had a reasonable period of time within which alone the collection could be enforced? The necessity that caused the adoption of the land-grabber acts referred to was the custom of the State officials of purchasing lands delinquent for the non-payment of taxes and afterwards taking no action for converting the lands so purchased into money and paying the taxes. It has been the habit of the State to hold these lands for years and permit the taxes to pile up from year to year without any actual steps being taken by the authorities to sell the lands and pay the taxes. Mr. Meredith: Of course activity will tend to prevent delinquency; but at the same time if you are going to hold out the hope to a man that by waiting a certain period of time he is going to be released from the payment of taxes, he is going to exercise all the ingenuity of which his mind is capable to keep from paying them. It seems to me that, as to State taxes, we ought to have the greatest activity in the efforts to collect them, and at the same time an obligation to pay. Mr. Bouldin: That brings us squarely up to the consideration of this question: Would not a five years' limitation law give the State ample time within which to collect all her taxes, and would not the spirit of repose on which our statutes of limitations between individuals rest make it wise that the State should also be required to collect the taxes due to her promptly, and not permit them to accumulate indefinitely. The great hardship sustained by the delinquent taxpayer has been largely due to this accu- mulation of taxes which has resulted from the policy of the State in not resorting to prompt and efficient methods of collecting the taxes due on lands purchased by her. Is it not therefore the part of wisdom to modify the rule that no time runs against the sovereign and provide for a reasonable statute of limitation that v/ill give the State all needed protection, and at the same time promote the interest of the tax-payer, as con- templated by the amendment of the gentleman from Pulaski. Mr. Meredith: I think not. I think the inactivity is owing to the fact that proper laws have not been passed. I do not think the failure to collect has been by reason of 2658 DEBATES OE THE CONSTITUTIONAL CONVENTION" OE VIRGINIA. the fact that there has been no statute of limitations. There has been a statute of limitations since 1865; and yet it is only within the last three or four years that we have passed these land-grabber acts. Mr. Bouldin: Those acts were passed because the Commonwealth had been in the habit of buying in the titles of delinquent lands and feaving the lands themselves in the possession of the delinquent taxpayer to breed other taxes — a sale in form, but not in fact. By requiring the State to be prompt in collecting her taxes the public interest of all the citizens which should be the object of the State, would be far better promoted than by permitting her to sleep on her rights for an indefinite period of time — until the taxes become so large as to amount almost to confiscation. It is right and just and sound in policy that the State should be limited to a reasonable period within which to collect her taxes. Mr. Meredith: Here is a statute that depends upon the officers scattered all over the Commonwealth for its support. Some are good; some bad. Some attend to their duties and some fail to attend to their duties. The State is absolutely dependent upon her officers and agents; and yet you say that she shall have five years' time in which to collect taxes due her, and if she does not, the statute of limitations shall run against her. On the other hand the State says to the individual, who looks after his own personal private interests and who is supposed to give the greatest attention to them, when your bond becomes due I will give you ten years, after it becomes due, in which to collect it. V/here is the principle upon which you can justify such a difference of protection when the State depends upon agents, in all instances she does not select, but which are selected in different communities. Mr. Bouldin: If the limitations of ten years as to transactions between individuals is wrong, let it be corrected, but do not on that account give the State the right to sleep on her rights indefinitely and then proceed to enforce them in the harsh method pre- scribed for the collection of taxes. The great mass of commercial transactions are evidenced by notes, the limitation on which is five years, the same that should be applied to the State in the collection of taxes. The State has ample power to collect all of her debts. The complete machinery of collection is in h^r hands; and, although collections are made by agents scattered throughout the Commonwealth, there is power enough in the hands of the State to require each one to pay his taxes promptly and save the State from loss. Mr. Meredith: Theoretically there is, but we all Imov/ from practical experience that the power is not properly exercised, and while we recognize that fact, shall we say that the State shall lose her taxes because they have not been collected? I say it is not justice to the State, and that she ought to be protected with respect to taxes. Mr. William A. Anderson: I think it makes very little difference whether this section stays in or goes out. I do not know how many land titles it has been my duty to examine during my practice, but I have examined a great number of them, and in sections of the State where delinquency in the payment of taxes is of exceedingly fre- quent occurrence. I have never known or heard of a case in which the State had lost by reason of section 636 of the Code. Why, Mr. Chairman, the possibility of the State losing its lien by that section is prevented by the following sections of that chapter which makes it the duty of the treasurer to sell all delinquent lands, and if the lands are not bought in by a purchaser for a sufficient amount to pay the delinquent taxes, they are bought in for the State and the running of the statute of limitations is stopped eo instanti. I say that my friend is fighting an ignis fatuus when he seeks to encum- ber the Constitution by a provision of this sort. It is absolutely unnecessary legislation. Mr. Stuart: I would like to ask this question. Many of the large patents are not on the land books, and never have been, and where no taxes have been paid and it is beyond the power of the tax gatherer to collect, would any degree of activity on the part of the collector or the public officer avail to protect the right of the State to delinquent taxes on such land? DEBATES OE THE COXSTITUTIOXAL COXVE\"TIOX OE VIEGIXIA. 2659 Mr. ■William A. Anderson: I do not kno^ that the question of my friend is perti- nent to this section. This section refers to cases where the taxes are delinquent. Mr. R, Vv'alton Moore: The language of the provision is that '" no statute of limita- tions shall run against any claim of the State for taxes upon any property." It may have been reduced to a lien or it may be a mere inchoate claim. Mr. vrilliam A. Anderson: Section G36 of the Code only applies to taxes which have been assessed. This proposed section of the Constitution does not give any remedy for the evil complained of by my friend from Russell (Mr. Stuart) at all. The Legis- lature has undertaken to give a remedy for the cases referred to and covered by the G_uestion of the gentleman from Russell TMr. Stuart) applying to lands west of the Alleghany mountains. Our present law requires them to be assessed for taxation, and if they are not put on the land books for five years they are forfeited to the Common- wealth. Mr. Stuart: I would like to have you explain to me your view of the purport of the language of this last clause, which I now read: Nor shall the failure to assess prop- erty for taxation defeat a subsequent assessment for and collection of taxes for any pre- ceding year or years, unless such property shall have passed to an innocent bona fide purchaser for value.'"' Mr. William A. Anderson: I do not know anything in the present law to prevent the assessment of land for omitted taxes. I have known land to be again and again assessed for unpaid taxes where the land owners had failed to put them on the land books. Mr. Meredith: For how many years back? ]\Ir. Y^'illiam A. Anderson: I think it was only for five years, but they can be assessed and should be assessed for all omitted years back to 1576. I think they have generally only gone back for five years. I think they ought to go back to the time when the last act of release took eftect. The last act of release took effect in 1876. according to my recollection. All taxes due by citizens of the Commonwealth upon land which was assessed prior to 1S76 was released. My friend from Pachmond (Mr. Meredith) is much mistaken in his supposition that these release acts were political measures. Some of them were passed long before he or I were born, and as far back as and before 1S31, and several of them have been passed since. I have never known of a case where the Legislature has passed acts giving special relief in regard to this matter, although I understand there have been such cases. It was long before my acquaintance with the legislation of this State if such special laws were passed. There have been general statutes, statutes of repose, passed by the wisest men that Virginia has produced, the men who have made our government and given to our government all the merit it possesses, the men who framed the Constitution of 1S29-30, and men like them. Z\Ir. Hamilton: I do not understand this section to prohibit the Legislature from passing a general act permitting a lien for taxes. Mr. William A. Anderson: I do not understand it has that effect at all. The legis- lative article prevents special acts of relief: but this does not interfere with that pro- wlsion. I say that these general acts of relief were wise measures, because such con- fusion had arisen in reference to tax titles in this State as to the amount of taxes due, that it was necessary to give relief by some such measure; and the Legislature has repeatedly, in the course of time, fixed a period beyond which the State would not assert her claim for taxes, for the purpose of quieting titles to lands. It is to the great interest of the Commonwealth that the ready transfer of real estate should not be interfered with by any unascertainable lien upon it. ^Ir. Thorn: Does my friend think that such an act as this would be possible, under the joint operation of this clause and the clause in the legislative report, which forbids tie release of any claim on the part of the State. :^Ir. William A. Anderson: I do not think the Legislature could remit taxes by special act. 2660 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Mr. Thorn: Could it be done by a general act, under the joint operation of these two clauses? Mr. William A. Anderson: I think it could. Mr. Thorn: How could it be done, if the legislative article says that no claim against the State shall be released by the Legislature? Mr. R. Walton Moore: That is in the class of cases where the Legislature is for- bidden to legislate specially. There is no prohibition against general legislation of that character. Mr. William A. Anderson: It seems to me, Mr. Chairman, that it is wise to leave this power with the Legislature. They have never abused it. I remember three acts that have been passed by the General Assembly of Virginia in this regard and they were passed for the purpose of giving repose, of quieting titles, making it possible to buy these wild mountain lands and of being certain of getting a good title so that they could be put upon the land books and become a source of revenue to the Commonwealth. I say, however, that I do not think it makes much difference whether this section stays in or goes out, except that it is useless to encumber the Constitution with pro- visions of this kind. The Chairman: The question is upon agreeing to the amendment offered by the gentleman from Pulaski (Mr. Wysor). The amendment was rejected; there being, on a division, ayes 21, noes 35. Mr. Turnbull: I now offer an amendment which I send to the clerk's desk and ask that it be read. Amend Section 7 by adding at the end of the section the following: "In which latter case the tax so fa,iled to be assessed may be assessed against such bona fide purchaser from the date of his purchase." Mr. Turnbull: I do not know v/hether the committee will understand the purpose oi this amendment. The object of the latter part of this section, as I understand it, is to prevent taxes from being put upon the bona fide purchaser of a tract of land, which has not been included in the assessment book. I see no reason in the world why, if a bona fide purchaser buys a piece of land he should not pay the taxes on it from the time he purchases it. Mr. R. Walton Moore: Mr. Chairman, the purpose sought to be accomplished by the amendment presented by the gentleman from Brunswick (Mr. Turnbull) is approved by the Committee. I think the Committee will accept the amendment; bui '^e would like to have an opportunity to examine the language a little more carefully. We will accept the amendment with the understanding that we may recur to the matter later on. The amendment was adopted. Mr. Barbour: I now move to strike out Section 7. The amendment was rejected, there being on a division ayes 20, noes 34. Sections 8 and 9 were adopted. On motion of I^r. Fairfax the committee rose and the President resumed the chair. On motion of Mr. Lindsay the Convention took a recess until 4 o'clock, P. M. AFTERNOON SESSION. The Convention reassembled at the expiration of the recess, the President in the chair. TAXATION AND FINANCE. On motion of Mr. Fairfax the Convention resolved itself into Committee of the Whole for the purpose of further considering the report of the Committee on Taxation and Finance, Mr. Ayers in the chair. The Chairman: Are there any further amendments to Section 9? DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE VIEGIXIA. 26G1 Mr. Eggleston: It seems to me that the word "nov,-" in the sentence "now authorized by law" should not be embodied as a part of this Constitution. It makes the statute law in regard to taxes a part of the Constitution of the State. I do not think that ought to be done. If the Legisature is allowed any latitude in regard to taxes on any kind of property I do not see why they should be prevented from ■exercising discretion in regard to all classes of property. '■>7ow authorized by law" :fixes it and will prevent the Legislature from making a change in the system of taxa- tion on this particular kind of property. That is not true as to other property in the State and I can see no reason for it. It seems to me that we are doing a dangerous thing when we take up perhaps fifteen of twenty sections of the Code and incorporate them into our Constitution bodily. Not one in ten of us knows exactly vrhat those pro- visions are. I move to strike out the word "now" Section 9, line 11. I\Ir. Boaz: I would suggest that perhaps the difhculty is answered in Section 14, which provides that this system of taxation shall continue for ten years and after that may be modified as the Legislature sees fit. ]\Ir. Eggleston: I have noticed the provisions of that section, but I do not see any reason for the use of this word "now" nor can I see that there is any reason why, even for ten years, there should be a difference in the different classes of property as to taxa- tion. I think they ought all to be considered alike and treated the same. Why the tiands of the Legislature in regard to this particular kind of class of legislation should be tied, even for ten years, is something beyond me. I cannot see the reason for it. 3,Ir. Meredith: I ask the attention of the committee while I make some explana- tion of this matter. It will take some time, as this provision was framed after very grave and very long consideration by the committee. Objection is made to the use of the word "now" in line 3, and to the use of the word "now" in line 11. In line 3 it says that the State Corporation Commission shall annually ascertain and assess, at the time hereafter mentioned and in the manner "now" required by law the value of the roadbed and other real estate, rolling stock and other tangible personal property in this State of each railway corporation. In the first place. ]\Ir. Chairman, the law referred to is not in the Code. It is one of the taxation or assessment laws of the State. It simply defines the manner in which ra'lroad property shall be taxed and the report which shall be made to the Board of Public Works as to their mileage, the value of their machine shops, the value of their cars and of their other personal property. It then requires that the Board of Public Works shall assess the value of the roadbed. In other words the railroad is treated as a unit, and the Board of Public Works fixes its value at $5,000 or $10,000 or $15,000 per mile, as the case may be, and that is the basis of the State assessment for State taxes. Of course they also assess all tangible personal property. Then the statute goes on to provide that local taxation shall be upon the value so assessed, according to the amount of mileage in each county, school district, citj' or town. This statute simply fixes the manner of assessing the property of the railroads. It is almost universally held, that it would not be proper to allow the rail- road to be assessed by the local authorities upon one piece in one county and by dif- ferent local authorities- upon another piece in another county; that such a method of assessment would be unfair to the railroad and unfair to the different sections of the State to do so. Therefore it is treated as a unit and the Board of Public Works under this statute, simply fixes the value of the property and then the State tax. whatever that may be, is held upon it, and the tax of any particular city or county, whatever it may be, is laid upon the portion in that city or county. This section does not fix the value of the property. It only prescribes the method of ascertaining the value. The Board of Public Works could to-morrow or a year from now. increase the value of the real estate and of the personal property. In addition to that the State can raise or lower her tax rate, and accordingly as she raises or lowers her tax rate the railroad property is affected. It may be affected in two ways, first, by the assessment to be 2662 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIKGINIA. put upon it by the State Corporation Commission, and secondly, by the rate of taxation imposed by the State or by local authority. So that all that we do by this reference here is to get at the manner of assessment and say that it shall be assessed in the manner in which it is "now" assessed; and that the State Corporation Commission, instead of the Board of Public Works, shall subdivide the aggregate value of the roadbed according to the mileage in each district, county, etc., in the Commonwealth. That is all the statute or this section does, instead of going through the method of saying, in detail, what shall be the way in which it shall be assessed, we adopted the short, simple method of a reference to the statute by say- ing " in the manner now required by law." This statute refers simply to the method of assessment and not to the value of the property or the rate of taxation thereon. The hands of the Legislature are perfectly free to deal with the question of the value of property or the rate of taxation, just as it is now. The local authorities are free as to the rates of taxation just as they are now. All that is done here is to say that this shall be the method of ascertaining how this property shall be assessed and how this unit shall be subdivided for local taxation purposes. You can see that it is not tying the hands of the Legislature except as to the method of ascertaining value. Your committee, after long consideration, and after very earnest study of this subject, and after going to considerable expense in bringing an ex- pert here from Harrisburg, Pa., for the purpose of giving them assistance, came to a conclusion as to what they thought was the best way to tax railroad property. They came to the conclusion that the proper system of taxing railroad property is according to the Connecticut plan; that is to say, to take the value of the franchise to be worth, the market value of the capital stock plus the market value of the bonds, not above par. That, we thought, was tno proper way to fix the value of the franchise. We had in our plan some details as to how that should be worked out. We divided it so as to let the State tax two-thirds of such aggregate amount, and the counties and cities tax one-third of it, accordmg to the mileage rate in each particular county or city. We adopted that plan because the present value of the railroad properties of this State is just above one- third of what would be the value of the franchises of these same roads if assessed under the Connecticut plan; and therefore the cities and counties of the State v/ould not lose anything by taxing one-third of that aggregate amount. The value of one-third of the franchises, on the Connecticut plan, would give them about the same amount of prop- erty to tax as they have now under the present plan, when they tax the real estate and the tangible personal property. This matter was fully discussed before the committee. We then determined that, as it was a very important matter, and bore somewhat grievously upon the railroads, because it would increase their taxes to about $400,000 a year, and that we would ask the railroads to come and discuss this matter before us; and they did so. Some of you gentlemen are aware that we had a meeting in the court- room of the Supreme Court, where several of the railroad presidents came and dis- cussed our plan. They said: The State has been taxing us as provided in the statute. We are not denying that it is a proper thing to increase our taxes, but we do say that your proposed method of taxing us is such a large increase from what you are now taxing us, that we earnestly urge you will not impose it upon us. They said: You must recall the fact that most of tnese railroads have failed once, twice, or three times, and that at each reorganization there has been carried over a large amount of stock held by the owners of the property previous to such failure and reorganization. Thai has been carried on two or three times, and has accumulated the stock according to the number of receiverships and reorganizations, until now there is carried by the roads in this State such a large amount of stock that, if you were to attempt to fix the value of the franchises oy the value of the stock, it would be far in excess of the real value, be- cause the accumulation of stock, by reason of these failures and reorganizations and the issuing of preferred and common stock, has been so greatly increased. They made that plea, and they suggested this as a simple plan. They said: We will say this to you, :f DEBATES OF THE COXSTITUTIOX AL COXVEXTIOX OF VIRGIXIA. 2663 you determine to put anything into the Constitution, this, we submit, would be a fair basis of taxation. You will get a larger revenue from it, and, at the same time, it will not be such an increase to bear too harshly upon us. They then suggested that we should continue the present method of taxation upon the roadbed, the other real estate and the tangible personal property, and that, in order to get an increased revenue, that we might add a seven mill tax upon the gross earnings as a franchise tax. Your com- mittee considered the matter, and some of us still thought that we ought to adopt the Connecticut plan; but after due consideration we came to the conclusion that, as that would, perhaps, bear pretty harshly upon the railroads, and, as we were looking for- ward to more control over the rates through the corporation commission, it would, per- haps, be wiser not to be too hard in the beginning, but to be fair and to take a reason- able step, so as to get what would be fair compensation at present, considering the con- ditions surrounding those companies. Therefore we said we will* agree to tax you under this system as suggested by you; to tax your real estate and tangible personal property, and other real estate and tangible personal property', as other real estate and tangible personal property is taxed; and in addition we will lay upon you a franchise tax of 1 per cent, of your gross earnings instead of 7 mills. That is the scheme proposed here, to continue for ten years. Then the question came up as to whether it should be for- ever or whether the length of time for which it was to continue should be fixed. It was desired by the roads that we should fix it for ten years. They said, if this is a fair compensation to you, as we have got to meet this burden, we ask that you give us a reasonable time in which to meet it, so that if you hereafter desire to change it and adopt the Connecticut plan, we Y»-ill have the chance to get the benefit of increased prosperity. In addition to that, it will keep us out of politics, more or less, as w^e will not have to be constantly watching the question of taxation before the Legislature if we know that for ten years we will not have any change. But understand that this does not affect and does not limit the right of the State Corporation Commission to increase the value of this real estate and personal property. Nor does it bind the hands of the Legislature as to increasing the rate of taxation upo)i real estate and personal property of these railroads. It is fair for you to consider that under the present system of taxation the method of fixing the value of roadbeds is very uncertain. It is almost impossible to see hovr the Board of Public Works can ascertain that one road is worth $10,000 a mile and another $15,000 a mile. They claim that while they have not been imposing a franchise tax upon the railroad in ascertaining the value of their property, yet that that subject has entered into the ascertainment of value. But we do not think so. We feel very confident that when the State Corpora- tion Commission comes to assess the values of these roadbeds, it will find that there has not been a dollar assessed by reason of the value of the franchise. It will find that the value of $10,000 a mile, or whatever it may be, which has been laid on such property, exists to-day just as it did twenty years ago, althought the railroads have gone from deficits and bankruptcy up to handsome net earnings. Considering all these matters, taking into consideration what we would get, and at the same time, the change of circumstances that might come to these roads, we agreed to this method of finding out the value of the real estate and tangible personal property. We recognize that that would be a reasonable method of ascertaining the value of such properties, and recommend that this method of ascertaining such valuation should re- main in force for ten years. The value of the property, and the rate of taxation is not affected by this section at all. This provison simply provides for ascertaining the value. If you should pass an ordinance to-morrow saying that the rate of taxation on real estate and personal property should go down to three mills, instead of being four mills, they would get the benefit of that reduction. If you should say to-morrow that the rate should be five mills, they would feel the increased burden. I want it to be understood that we have done nothing in this section except to say that this method of ascertaining the value of this railroad, as a unit, for State taxation, and the method of subdividing 2664 ■ DEBATES -OF THE CONSTITUTIONAL CONVENTION OF VIPtGINIA. for local taxation. I need not say it Avould be extremely; inconvenient and cumbersome to put all of the long statute here referred to into the Constitution. The act has been in force since 1882 or 1883, and it has worked well. I hope it may be the pleasure of the committee not to adopt the amendment. Mr. R. Walton Moore: May I suggest to you here, in response to the remark of the gentleman from Charlotte (Mr. Eggleston), that really we undertake to read very little of this statute into the Constitution. Practically all that we read is the provision that the Board of Public works — which is now changed to the Corporation Commission — shall put a value upon this property. Mr. Meredith: The object is to prevent putting in here the details of this statute. The whole object of that statute is to ascertain the values. If I had a copy of the statute here I could readily satisfy you that the whole effect of the statute is to show how the value of the property shall be ascertained. Mr. Barbour: Mr. Chairman, it seems to me that this language should be stricken out. The gentleman from Ptichmond (Mr. Meredith) says that they do not even know how this Board of Public Works get at their present assessment. Notwithstanding that they are putting requirements in here that they shall continue in the manner now pre- scribed by law, when they do not know what that manner is. They are actually asking us to put in the Constitution a thing that we do not know, and that they do not know themselves and that they say they do not know. Mr. Meredith: Permit me to say that I have never stated that the law says how they shall get at the value. The law says that they shall ascertain the value of this property as a unit and they shall sub-divide it. Therefore, by saying "as now required by law" we simply say that they shall ascertain the value in a manner required by law, that is that they shall treat it as a unit and then sub-divide it according to locality. If -this State commission sees fit to put that valuation at $20,000 a mile, where it has been $10,000 or make it $10,000 where it has been $5,000, you could not restrain them. You have got to trust somebody as your assessor. The manner "now required by law" simply means that it is to be treated as a unit and then be sub-divided after- wards, as provided in the statute referred to. Mr. Barbour: If that is all you want let us put it into this article so that we need not incorporate a lot of statutes into the Constitution, when none of us know what they are. They come here with a report and, time after time, they have whole sec- tions and whole chapters of statutes to be incorporated or read into it, merely by a reference of this kind. If the provision the gentleman from Richmond mentions is the only thing they want in here it will not take much time to put it in. I would have no objection to that. I think when a committee reports a section to go into the Con- stition they ought to put it in such shape that we know what we are voting for. Mr. Meredith: I will obtain the statute and read it for the benefit of the com- mittee if it is desired. We thought everybody knew pretty well how the railroads are taxed. Mr. R. Walton Moore: May I say that this is not in fact a very elaborate statute, but that it is a comparatively brief statute which provides for the assessment of the visible property of railroad companies. It has been in force for a long time and has been frequently before the courts. In substance, so far as this particular point we are upon is concerned, it provides that a certain tribunal, to-wit, the Board of Public W^orks shall assess at its value the visible property. We are now substituting the State Cor- poration Commission instead of the Board of Public Works. I submit that there is no good reason for elaborating the statute any further than we have done in this section. The gentleman will agree with me, I believe, when he comes to make an examination of the statute, that no good purpose would be served by going more into detail. When he looks at Section 12 of this report he will find that the State Corporation Commission is to assess the value of the property. He will find that we have provided what kind of report the railroad and canal corporations shall make to the State Corporation Com- DEBATES OF THE CONSTITUTIOXAL COXVEXTIOX OF VIKGIXIA. 2665 mission. The commission, however, can go outside and get other information upon which this assessment shall be made. Then, when he reaches Section 13, he will find that we have carefully provided for an appeal, in order to keep within the limitations of the fourteenth amendment of the Federal Constitution. I know my friend wants to be fair, and I can say to him that I think a slight examination of the statute will satisfy him that the position of the committee is a reasonable one; that it has not done any extraordinary thing, which can justly subject it to the criticisms that have been offered. Mr. Barbour: The gentleman from Richmond (Mr. Meredith) and the gentleman from Fairfax (Mr. Moore) give different reasons for not inserting this statute. One says it is so long it ought not to be inserted, and the other says it is so short that it does not make any difference. I do not see why it is that we want to tie the hands of the Legislature so that they may not add to these requirements or take from these requirements. As I understand it this does not effect the principle that this property is to be assessed at the same rate that other property in the State is assessed. The only way the Legislature would have control over the valuation of this property at all would be for them to prescribe the means and mode of assessing the values. If the Legislature is to have no control over that, then this commission is independent of the Legislature, and the Legislature can control it in no way. Mr. R. Walton Moore: I will say to the gentleman that the commission is inde- pendent just as it is independent in its rate-making power, and there is an appeal if it exceeds the power conferred upon it. Mr. Barbour: There is an appeal if they put the rate of taxation too high; but I do not see that there is any appeal if they put it too low. The representatives of the people are entitled to some control over this matter. So far as the rate-making power is concerned, the right of appeal is preserved; but in this provision an appeal is granted only to the company. It seems to me that the reasons assigned for this provision, and for keeping it up for ten years, are not satisfactory. They say that the railroad com- panies have not been paying as much taxes as they ought to pay, and that it would be a hardship to make them pay as much as they ought to for ten years, although the people of Virginia have got to pay as much as they ought to pay all along. It seems to me they ought to pay all along. It seems to me they ought to be satisfied with not having had to pay as much as they ought to up to the present time. I see no necessity for giving them this additional ten years within which to make enough money to enable them to pay their proper share of the taxes. I dislike to be put in the position of criticising this committee or its report, because I sympathize with the object they are striving to attain. I believe they are trying to accomplish the same object I am; but it certainly does seem to me that they have made a very serious mistake by introducing these provisfons, and by putting these statutes into the Constitution. It puts us in the position of buying a pig in a poke. We really do not know what we are voting for, or - voting against. Mr. Meredith: This act provides that every railroad and canal company of this State not exempted from taxation by virtue of its charter, and every railroad and canal company incorporated under the laws of any other State, doing business in this State, shall report annually on the first day of June to the Auditor of Public Accounts, all of its real and personal property of every description, as of the first day of February of each year, showing particularly in what county or corporation the principal office or agency of such company is located in this State, and in what county or corporation said corporation is located, and also shov/ing what part of such property is located in each school district of such county and classifying the same under the following heads: First. Roadway and track or canal bed. Second. Depots, depot grounds and lots, station buildings and fixtures and machine shops. Third. Real estate not included in other classes. Fourth. Rolling stock, including passengers, freight, cattle or stock, baggage, mail> express cars, &c., &c. 16S— Const. Deb. 2666 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Fifth. Stores. Sixth. Telegraph lines. ^ Seventh. Stocks, bonds and other evidences of debt of other corporations and individuals and firms held by the company. Eight. Stocks, bond and other evidences of debt of any person or corporation belonging to any such company, chartered in this State, in excess of its indebtedness. Ninth. All other personal property of such company not enumerated in either of the foregoing heads, which would be taxable under this act if the same belonged to an individual. That is the report they are to make. We want that report made to this State Cor- poration Commission. Then the act goes on and provides that they shall report their gross net receipts and that the report shall be verified by the oath of the president or other proper officer and that upon the receipt of the report it shall be the duty of the Auditor of Public Accounts to lay the same before the Board of Public Works, who shall, after thirty days' notice previously given to the president, treasurer, or other proper officers of such company, proceed to ascertain and assess the value of the property as reported upon the best and most reliable information that may be procured; and to this end shall be authorized and empowered to send for persons and papers should it be deemed necessary. It then provides that a tax shall be at once levied on such value at the annual rate levied upon the value of other property for the year. It then provides that it shall be the duty of the secretary of the board to furnish to counsel of every corporation and to the board of supervisors of every county whereia any property belonging to such company is situated a certified copy of the assessment of taxes made by the Board of Public Works of such company's property, which shall definitely show the character of the property, its value and location for purposes of taxation in each county, corporation and school district, so that county, corporation and school district taxes may be levied upon the same: Provided, however, that it shall be the duty of the county superintendent of the schools in each county in which a railroad is located and operates to furnish, on or before the first day of May in each year such railroad company or companies the boundaries of each school district through or in which any part of such railroad or other railroad property is situated. So you see it is just as I told you. They have to ascertain the value of this roadbed as an entirety and then subdivide it. Mr. Eggleston: If I understand the gentleman from Richmond, this method was adopted because it was thought by the committee that, under the present system of valuation, these railroad companies were not paying their share of the taxes. If this provision is adopted for the next ten years, then one per cent, of the gross earnings will be collected from them, and it goes into the State treasury. Their property in this State must bear its proportion of the State and county taxes. The provision made here equalizes the taxes as far as the State is concerned, but makes no provision for tli3 equalization of municipal and county taxes. That does not seem to me to be right. Under the present statute and the present method of collecting taxes upon visible property of railroads, it is taxed where the principle office is. If this right of taxing the railroads as a unit and then subdividing it according to the number of miles of roal in the several counties and cities of the State is adopted, it seems to me that some rule ought to obtain in regard to the visible personal property of the road. As I understand the statute alluded to by the gentleman from Richmond, which we are legislating into this Constitution, it provides that the tax is to be collected where the principal office of the road is, and is not to be pursued as other taxes are. If I may be allowed to repeat, although they make an effort to provide for the inequality existing in State taxes, they make no effort whatever to equalize it in regard to cities and counties. It does not seem to me that this is right. Mr. Barbour: May I be allowed to suggest that the rate of local taxation is gener- ally about twice what the State rate is. Mr. Eggleston: Yes; I believe the average rate is twice what the State tax is. DEBATES OF THE CONSTITUTIONAL CONVENTION" OF VIRGINIA. 2667 Now, so far as the State tax is concerned, perhaps it has been equalized. The com- mittee has undertaken to fix this tax on gross receipts at a figure which will equalize this tax so far as the State tax is concerned, hut they have undertaken to do nothing with this question of local taxation for the cities and counties. Mr. Portlock: Mr. Chairman, I, for one, object to this provision in this section, and 1 do it because I feel that we are going far beyond what the provisions of the Constitu- tion contemplate. We have already embodied many matters of legislation in this Con- stitution, and we have now reached a point where the Constitution is not to speak for itself, but where we must go outside of it and look at the laws which now exist. For all future time we must turn back to the laws which now exist and read them into this Constitution in order to know what the Constitution is? If this method of framing a Constitution is to be adopted, the whole Code of Virginia and the Acts of the General Assembly will ultimately be embodied in it. Take this one provision in the very outset of this section, and we find that it provides for a method of assessing property as " now provided by law." By what law? By the Constitution of Virginia? Certainly not; but by a law which must be read into this Constitution. Further on in this section we find that another provision is made for assessing this property, real and personal, according to certain other laws v/hich must be read into this Constitution, and those laws cover whole chapters. Mr. Meredith: I submit that the gentleman does not understand the matter he is discussing, because he speaks now as if there were half a dozen laws to be read in here, when there is only one referred to. Mr. Portlock: You read into this Constitution the laws relating to the assesment of taxes. Mr. Meredith: No, we do not; all we read in is this law as to assessing it for local purposes; which law is the same one that provides for the method of assessment foi" State purposes. It is one single statute. Mr. Portlock: If I am mistaken as to that I am not mistaken as to the general principle that you are reading into the Constitution a statute law which ought not to be in the Constitution, inasmuch as the Constitution should, in my opinion, speak for itself. ] think the Constitution ought to stand by itself. It ought to be a Constitution which amounts to a prohibtion only upon Igislation and should not embody legislation in it from the beginning to the end, as is sought to be done by this Convention. Mr. R. L. Gordon: I trust. that this word "now" will be stricken out. It seems to me that the object desired may be accomplished by leaving out that word and having it read " in the manner authorized by law." It seems to me that is all that is necessary. Mr. Fairfax: Instead of the word "authorized," we have amended and used the word " required." Mr. R. L. Gordon: I am opposed to any proposition which will tie the hands of the Legislature of Virginia for ten years as to the quantum of taxation. I think that if any- thing can be left to the Legislature of Virginia this question of taxation can. Mr. R. Walton Moore: That there may be no misapprehension, may I say to the gentlemen th&t the report does not tie the hands of the Legislature of Virginia as to the quantum of taxation, except in one particular, and that is as to the amount of franchise tax, 1 per cent, upon the gross earnings of the road. If the gentleman will make an examination, I think he will find that that is a pretty liberal provision. If you will compare that rate with what is imposed by laws of other States you will find that it is a tolerably liberal provision. It was put in here for the purpose of guiding the Legis- lature and with the understanding that we might be, at once, sure of receiving from two hundred to two hundred and fifty thousand dollars more than we are now, instead of postponing such a result as that until the Legislature could give this matter full and detailed consideration. Mr. R. L. Gordon: I am perfectly content to accept the judgment of this committee as to the quantum of taxation which they fixed as proper, at this particular time. But 2668 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. how can this committee say or how can any finite man say that that rate of taxation will be just and proper ten years from now, non constat, the property of one of these cor- porations may have doubled in value, and one per cent, tax may be a very small tax ten years from now, whereas it may be a very heavy tax at this time. My objection to the word " now " is that is seems to me to be a part of a general scheme of this committee to practically make a bargain with the railroad people of this State that their taxes shall not be increased for ten years. Mr. R. Walton Moore: Does my friend think that we are limiting the assessment of the visible property of these corporations? Mr. R. L. Gordon: Not at all. Mr. Stuart: In answer to your statement that one per cent, is fixed as the tax upon the franchises of railroads, and that these franchises may become more valuable, I think that you will observe, on reflection, that it is based upon gross receipts, and in propor- tion as the gross receipts increase, the taxes must necessarily increase, so that it is not a fixture. Mr. R. L. Gordon: I understand that as the value of the franchises increase, the gross receipts of the company will increase, and the taxation will increase; but that does not show that the taxation will be just and proper, or that it will be right. I under- stand from the gentlemen who represent the committee here, that the railroad people came forward and offered them a rate of seven mills, and that the committee accepted ten mills, and that they not only accepted ten mills, but accepted ten mills for ten years. Mr. Hamilton: May I interrupt the gentleman for the purpose of giving informa- tion? I do not understand that the railroad people came before the committee and admitted that the taxation which they had heretofore had was not full and just. On the contrary they contended that they had heretofore been taxed as high as the average railroads in this country, and as high as other property in Virginia, in proportion to its value. To that extent I differ from the statement made, if they have proceeded from an impression that the railroad people volunteered to pay an increased rate of taxation. Mr. R. L. Gordon: If they did not admit it they ought to have admitted it, because everybody knew it. Mr. Hamilton: I will say that that is true of a great deal of other property in this State as he knows. Mr. R. L. Gordon: There are places where the rate of taxation is as high as four per cent, upon the gross earnings. Mr. Meredith: You will understand that in any State where the rate of taxation upon gross earnings amounts to four per cent, of such earnings, there is no tax upon the real or personal property of the railroad. The average tax, in the United States, upon railroad property is about three and a half per cent, of their gross earnings. This rate of taxation, which we have provided, will make about three and one-third per cent, of the gross earnings, and on two of the roads will make something over five per cent. Mr. R. L. Gordon: In response to my friend from Richmond, I will say that I am not questioning the fact, and do not wish to be understood as questioning the fact that this committee has suggested a wise and proper tax for the present. I do not mean to say what would be a proper tax. It would be very presumptuous on my part to suggest anything in that line to this committee who have carefully studied and considered this question. The reason I object to the word " now " is that it is a part of this ten year proposition, and I am opposed to putting it in. Mr. Meredith: The word "now" does not effect the question as to Section 14. When you come to Section 14 you can discuss the question as to whether you will strike out that ten year provision or let the Legislature modify it to any time it may see fit. That is another proposition that ought to be left until the proper time for discussion. The word " now " is necessary in order to put this scheme into operation and keep it going for ten years. We do not propose to strike out Section 14. The gentleman knows that Section 14 DEBATES OE THE CONSTITUTIONAL CONVENTION OF VIEGINIA. 2669 not ony provides for continuing the methods for ten years, hut also provides that the Legislature may modify or change it. If you change Section 14 so that the Legislature may, at any time, modify or change the laws in force, the present methods of carrying this thing becomes a nullity. So, when I refer you to Section 14 I do not refer you to a part of it, but refer you to the whole of it. We have asked that you allow us to carry this method of taxation into immediate operation. We have said that v\'e believe we can get more than |250,000 increase of revenue for this State, if you will allow us to carry it out. We say we will tax the ralroads upon their real estate and tangible personal property, and that in addition there shall be a franchise tax of one per cent, on their gross earnings. Now let us know whether you propose to adopt that scheme as a wise one or whether you propose to cut it down, because you did not want the word "now " in there. That is what we tender to the State. What do you tender? We are offering something valuable. We say we are prepared to give this State $250,000 more taxes, by this method than it gets now. We say that you have got to pursue one method or the other; that we have got to carry this thing into operation ourselves, or we have got to let the Legislature do it. We say let the Constitution do it. Mr. Barbour: I object to the word "now" for the reason that it does not leave it to the Legislature. I want the power continued in the Legislature. I have no objection to the scheme except so far as it limits the taxes on the corporations and does not limit taxes on the ordinary citizen. Mr. Meredith: We have said that we tendered the State a scheme of taxation whereby you get $250,000. You do not offer anything. We tender you a scheme by which we put this into immediate operation. You have got to take that or you have got to say that while you would like to have that $250,000 you prefer that the Legislature should carry it out. You must make your choice. You have got to put this thing into operation 3-ourselves or leave it to the Legislature. You have got to make a choice. That is a fair statement. If 3'Ou make it yourselves you have either got to give it in express terms, by setting forth the manner in detail or by reference to some statute. That is a fair proposition. There are but two methods by which you can put it into the Constitution — either by express terms, or by reference to some statute. Which will you to.ke? Do you want to incumber this section by stating how the real estate of a railroad shall be taxed, and how their tangible personal property shall be taxed? Shall we put In here the very words of the statute? TvTiat good will it do? Yv'hat benefit can come from lengthening this article on taxation? Objection has been made time and time again that this Constitution will be too lengthy. We have merely tried to shorten this article by referring to the statute, instead of inserting its provisions. Now, Section 9 is not affected by Section 14, which provides that this system shall be in operation for ten years and then may be modified by the Legislature. If you do not approve of binding the Legislattire at all, when yoti come to Section 14 simply strike out that part of it, and say that the Legislature may change it at an^^ time. Do not let us have one thing in our mind, when it is not fairlj' before us. The question as to how long the Legislature shall be bound is not determined by Section 9, the one under dis- cussion. It does not prescribe how long the Legislature shall be bound. It simply says that for the purpose of putting this system into immediate operation, we propose to adopt the statute for the purpose of prescribing the method of valuation; but not for fixing the value of the rate of taxation. Having chosen now, that you vant to get this $250,000 of increased taxes, and having chosen that you deem it wise to start it your- selves, then you must say whether you are to start it by putting into this article a reference to this statute, or by inserting this long statute. I respectfully submit that you can find no objection to Section 9, unless you tie it to Section 14. Do not tie it to Section 14. Let us meet Section 14 when it comes. Let us say how we shall start this thing. If you will consider for a moment that Section 9 is not tied to Section 14, but is perfectly free, and that if Section 14 did not exist — Mr. Waddill: I understand that the word "now," in line 3 of Section 9, means that the Legislature can hereafter change the method of assessing railroads? 2670 DEBATES OF THE CONSTITUTIONAL CONVENTION" OF VIRGINIA. Mr. Meredith: It does, if you modify Section 14. You can say it shall last for five years, or one year, or not at all. You need not fix any definite time, and then the Legis- lature can change it at any time. Mr. Barbour: What is the objection to leaving the word "now" in there and in- serting after the word " now " the words " as may hereafter be authorized by law?" I want to call your attention to the fact that this would not interfere with your ten year scheme at all. We want to preserve the power to the Legislature to alter the details of the present statute during that period of ten years. Mr. Meredith. The period of ten years is not put in there simply for the benefit of the railroads. That was put in there for the benefit of the State also. We thought if we could get this fixed for ten years, so that the Legislature could not tamper with it and cut it down, that at the end of ten years, it would provide a scheme of taxation which it would deem better than this. The railroads wanted it put in there for the sake of peace to them, and we want it put in there for the benefit of the State. Mr. Wysor: Could not we preserve that system striking out the word "now?" Mr. Meredith: That is a legal question and a question of construction. You are undertaking to say that a certain system of ascertaining the value of property shall be carried out; and you say that it shall be done in the manner required by law. By what law? That is a matter of construction. We do not want it to be a matter of con- struction. We want it to say that it shall be carried out under the provisions of this statute, and therefore we use the words " now required by law," That is the object of the word " now." It was put in there, so that there should be no doubt as to what statute was referred to, and that it should clearly specify the one now in existence. Do not confound this Section 9 with Section 14, but let us consider the two sepa- rately. I earnestly hope that you will look at this matter for the benefit of the State, as a scheme by which we will get $250,000 a year more taxes than we are now getting, and that you will adopt this language. Then, when you come to Section 14, we will meet the objection, which you may make to the length of time. The Chairman: The question is upon agreeing to the amendment offered by the gentleman from Charlotte (Mr. Eggleston). The amendment was rejected. The Chairman: Are there any other amendments to Section 9? If not the Secre- tary will read Section 10. Sec. 10. Each such railway or canal corporation, including also any such as is exempt from taxation as to its works, visible property, or profits, shall also pay to the State an annual State franchise tax equal to one per centum upon the gross receipts hereinafter specified in Section 11, for the privilege of exercising its franchises in this State, which, with the taxes provided for in Section 9, shall be in lieu of all taxes or license charges whatsoever upon the franchises of such corporation, the shares of stock issued by it, and upon its property assessed under Section 9: provided, that nothing herein contained shall exempt such corporation from assessments for street and other public local improvements authorized by Section 3; but nothing herein contained shall annul or interfere with any contract or agreement by ordinance between street railway corporations and municipalities, as to compensation for the use of the streets or alleys of such municipalities by such railway corporations. A. When the road or canal of the corporation lies wholly within this State, the tax shall be equal to one per centum of the entire gross transportation receipts of such corporation. B. When the road or canal of the corporation lies partly within and partly without this State, or is operated as a part of a line or system extending beyond this State, the tax shall be equal to one per centum of the gross transportation receipts earned within this State, to be ascertained as follows: By ascertaining the average gross transporta- tion receipts per mile over its whole extent within and without this State, and multiply- ing the result by the number of miles operated within this State: provided, that from the sum so ascertained there may be deducted a reasonable sum because of any excess DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 2671 of value of the terminal facilities or other similar advantages situated in other States over similar facilities or advantages situated in this State. The Chairman: If there are no further amendments to sub-section B the Secre- tary will read Section 12. Mr. Barbour: Before proceeding with that section I would like to inquire of the committee as to what construction is put upon the words " transportation receipts." Has there been any construction of that language? Mr. Meredith: That language is used in the Maine statute, which has received the construction of the Supreme Court in 142nd United States Reports. It has been con- strued to mean freight and passenger receipts. Mr. Barbour: That point is all right for the present. I see that you provide that a reasonable sum may be deducted " because of any excess of value of the terminal facili- ties or other similar advantages situated in other States over similar facilities or advan- tages situated in this State." I think that is all right where those advantages exist in other States. But if the facilities in this State are superior to those situated in other States it seems to me that there should be an addition to cover that point. In order to meet that I suggest the following amendment to -be added at the end of the section: And a like sum may be added thereto because of any excess value of terminal facilities of other similar advantages situated in this State over terminal facilities and similar advantages situated in other States. Mr. Meredith: In treating this we had to be very careful because we knew we had to run the risk of a contest in the United States Courts. We took the Maine statute, as far as we could and added to it this provision because the courts have recognized that in ascertaining the gross receipts per mile, the boards must be allowed to take into consid- eration the extra facilities in other States. We were a little afraid to undertake to add anything to the value of these transportation receipts per mile by reason of any extra facilities in this State, as that question has not been decided, involved only a small amount, and he did not think it wise to do so. Mr. Barbour: In view of that statement I will not insist upon the amendment. The Chairman: Are there any other amendments to Section 11? If not the Secre- tary will read Section 12. Sec. 12. Each corporation, mentioned in Section nine, shall annually, on the first day of September, make to the Board of Public Works the report which the existing law requires to be made annually to such board by every railroad and canal company in this State, not exempt from taxation by virtue of its charter, except that the report shall show what property in this State belonged to the corporation on the 30th day of June preceding, and its total gross transportation receipts for the year ending on that date. Upon receiving such report the Board of Public Works shall, after thirty days' notice previously given, as provided by said law, assess the value of the property of the cor- poration, if not exempt by its charter from taxation, and ascertain the amount of the franchise tax and other taxes chargeable against it. All taxes for which the corporation shall be liable shall be paid on or before the first day of December following. The provisions of said existing law, except as changed by this article, shall apply to the ascertainment and collection of franchise, as well as other taxes of such corporations. Said taxes, until paid, shall be a lien upon the property within this State of the corpora- tion owning the same, and take precedence of all other liens or incumbrances. Mr. Fairfax: There are two or three amendments we desire to make to this section. In line 3, strike out the words " board of public works " and insert the words " State cor- poration commission." In line 4 strike out the words " such board " and insert the words " the board of public works " and insert " State corporation commission." The amendments were agreed to. The Chairman: If there are no further amendments to Section 12, the Secretary will read Section 13. 2672 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Sec. 13. Any corporation aggrieved by the assessment and ascertainment made under Section 12 may, within thirty days after receiving a certified copy thereof, apply for relief to the circuit court of the city of Richmond. Notice of the application, set- ting forth the grounds of complaint, and verified by affidavit, shall be served on the board of public works, and on the Attorney-General, whose duty it shall be to represent the Commonwealth. If the court be of the opinion that the assessment or tax is exces- sive, it shall reduce the same; but if of opinion that it is insufficient, it shall increase the same. Unless the applicant paid the taxes under protest, when due, the court, if the decision is wholly adverse to the applicant, shall give judgment against it for a sum, by way of damages, equal to interest at the rate of one per centum per month upon the amount of taxes from time the same was payable. If the decision is in favor of the applicant, in whole or in part, appropriate relief shall be granted, including the right to recover any excess of taxes that may have been paid, with legal interest there- on, and costs, from the State or local authorities, or both, as the case may be; the judgment to be enforcible by mandamus or other proper process issuing from the court finally adjudicating the application. Subject to provisions of article — of the Constitu- tion, the Supreme Court of Appeals may allow a wirt of error to either party. Mr. Barbour: I observe that in line 20 of this section is a provison for the payment of costs by the Commonwealth. This is the only case I ever heard of where costs were allowed against the Commonwealth. I see no use of making an exception of these cor- porations in such cases. Individuals have to pay their own costs whenever they are litigating with the Commonwealth, and I do not see any reason why the corporations should not do the same. I move to strike out the words " and cost." At this point the committee rose and the Convention adjourned until to-morroWf Tuesday, February 25, 1902, at 10 o'clock, A. M. TUESDAY, February 25, 1902. The Convention met at 10 o'clock A. M. Praj^er by Rev. W. F. Dunaway, D. D. TAXATION AND FINANCE. On motion of Mr. Fairfax the Convention resolved itself into Committee of the Whole for the further consideration of the report of the Committee on Taxation and Finance, Mr. Ayers in the Chair. The Chairman: The business before the Committee of the Whole is the report of the Committe on Taxation and Finance, and the question is on the amendment offered by the gentleman from Culpeper (Mr. Barbour). Mr. Barbour: Mr. Chairman, I wish to call the attention of the committee to the fact that in all these statutory proceedings for the correction of erroneous assessments of individuals, the statutes expressly declare that no costs shall be allowed against the Commonwealth. Section 444, which applies to the correction of assessments of real estate, concludes " and such application shall have precedence over all other causes pending in said court; but no costs shall be taxed against the applicant or the Common- wealth." Section 573, which applies to the same matter in the Court of Appeals, says: "But no costs shall be adjudged against the Commonwealth on the appeal." Mr. Chairman, I do not see why these corporations should be on a different footing from that of individuals, and I hope the amendment will be adopted. Mr. Meredith: Mr. Chairman, this may seem to be a very small matter, and possi- bly it may be, so far as the actual amount of money is concerned; but this provision is put in here for this reason: You will see that there is a very large penalty put on the railroads if they fail by their appeal. They have to take the chance of that in taking the appeal. Now the question of ascertaining the value of railroad property is DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 2673 a very difficult one, and it is very possible that the commission may commit some errors. The question between us is as to whether the winning party shall get costs. I under- stand the general rule is not to pay costs in the case of the Commonwealth; but this is a matter in which there may be involved very large amounts, and the party certainly ought to have the right at least to get back the money he expends in testing the large assessments that may be put upon him; and if you take into consideration that he is required to pay a very large penalty if he fails in his appeal, I think the Commonwealth will certainly come out even in matters of that kind. I do not think we ought to put the penalty upon these people that we do not put upon other people and at the same time not give them some slight benefit not given others. That is our reason for drawing an apparently invidious distinction between private citizens and the corporations, because we put a burden on these corporations that we do not put on individuals, in the large amount charged in damages, if they fail on their appeal. We think it is fair and just and that the Commonwealth would more than come out even in the long run. Mr. Hancock: Mr. Chairman, I think the amendment of the gentleman from Cul- peper is eminently proper, that it is wise and is according to the custom that has always prevailed in Virginia. No costs have ever been adjudged against this Commonwealth in any of here courts. It seems to me to be giving these railroads and corporations a right to recover of the State of Virginia what the individual who may appear in her courts can not recover. What difference does it make whether the costs that are to be recovered are large or small, or whether the transaction is one that involves one hundred dollars or one hundred thousand dollars? The same principle should control the judgment of the court. That principle is that the sovereign can not be compelled to pay. The principle is that the State can never be made to pay costs to any person who appears in her courts. She provides courts for her citizens and allows herself to be sued or not as she may think proper. That being the case, it seems to me that it is wrong in principle to allow any one of these railroads or any individual in the Commonwealth to compel the Commonwealth to pay cost in any case whatever. Let it be as it always has been that the Commonwealth gives her people the privilege to sue in her courts, and the right to recover costs against each other, but never to recover costs against the Commonwealth. The amendment was rejected; there being, on a division, ayes 15, noes 38. The Chairman: Are there any further amendments to Section 13? If not the Secretary will read Section 14. Mr. R. L. Gordon: Mr. Chairman, I move to strike out all of the language in Section 14 beginning with " and such system shall so remain until the first day of January, 1913." Mr. Chairman, I only want to say a word in support of that amend- ment, in addition to what I said to the committee on Saturday. I do not know, sir, upon what basis the committee have arrived at this franchise tax which they have imposed. The gentlemen who have spoken in defense of this report have not told us upon what basis they placed this system further than to say it was arrived at by some under- standing between the committee and the gentleman representing the railroad people. I, therefore, am totally unable, and I do not think the committee is able, to determine whether that system imposes a sufficient or an insufficient tax upon these corporations. I, for one, do not desire to place upon the corporations of this State one cent of taxa- tion beyond what is just and fair and in excess of what the individual is paying to the State, but I do want them to pay the same tax that the individuals pay. I recognize further, Mr. Chairman, that this question of taxation is perhaps the most difficult with which we have to deal, and for us to determine, with the limited light which we have before us that the amount of this tax shall continue for ten years, and that the system prescribed by this committee shall continue for ten years, seems tO' me to be unwise. It seems to me to be unnecessary, because if there is any one power that we can safely trust to the Legislature of Virginia it is this power to tax. The taxation of this State 3674 DEBATES OF THE CONSTITUTIOi^AL CONVENTION" OF VIRGINIA. is always laid in response to a well defined public sentiment. I believe that sentiment will always be just and fair, and I do not see why this able committee has undertaken to tie the hands of the Legislature of Virginia for ten years, unless it be that it is a concession to the corporations of the State. If it is a concession to the corporations of the State, that seems to me to be the very strongest reason why we should defeat it, because I hope that this body will not take the position of taxing the railroads or of taxing any individual according to what he or they may say is a fair and proper tax; but will take the position that this matter of taxation shall apply to individuals, to corporations and to everybody alike, and that this Convention in its sovereign power, in fixing these taxes, will not ask anybody what they are willing to pay, but that it will determine what is fair and just for them to pay. Mr. Chairman, I know the history of this struggle in reference to the taxation of these corporations in other States. I know that in the State of Wisconsin the Legis- lature of that State as early as 1854 levied a tax of 1 per centum on tlie gross earnings "of the corporations of that State, and that that tax has been steadily increased until it is now 4 per cent, of the gross earnings of the corporations of the State, though there is no property tax there, such as we have. I know that the recent tax commission of that State, at the head of which stood William J. Anderson, after a most elaborate investiga- tion of this question of taxation, asked as a matter of fact, and after an elaborate com- parison of the values of taxes upon individuals and the values of the taxes upon cor- porations, ascertained that even a tax of 4 per cent, upon their gross incomes was $600,000 short of their just proportion of the taxes of the State. Now I am not in a position to determine this question. I am willing absolutely to trust our committee, and to believe that they have placed on these companies a fair and just tax for the present. But I do not think, gentlemen of the committee, that it will be wise or that it will be politic for us to tie the hands of the Legislature of Virginia for the next ten years. Now, I know there is some feeling that the Legislature of Virginia will not be as much disposed to tax these corporations, perhaps, as this body is; but, gentlemen, I venture this assertion: There is not any Legislature that will assemble in Virginia that is going to repeal a fair and just tax which is placed upon corporations. I merely want the power in that body to remedy any evil or any injustice which may be apparent within the next ten years. That is all. It seems to me that is as far as this body ought to go. Mr. Meredith: Mr. Chairman and gentlemen of the committee, I want to assure you that the Committee on Taxation and Finance, in undertaking to make this system of taxation, did not think for one moment of granting any favoritism to the corpora- tions. On the other hand, I think we can claim that we did not show any desire to do any injustice to them. We think we have shown neither favoritism nor bias. We in- crease the taxes largely, it is true, but that we increase them fairly is also an undoubted fact. That is to say, certainly we did not deal harshly with the railroads. Of course a theory or a principle is a desirable thing, but you understand that the misapplication of a good principle will do just as much harm as the application of a bad principle that might be perfectly just in other States, if the circumstances existing in this State were not the same as those in the other States, or such as would justify the application of that principle. We found in this State a condition of affairs different from that exist- ing in Wisconsin, Michigan, Pennsylvania and in Connecticut. We found this State to be an agricultural State. We found this State had very few towns of any size and very few cities of any size. We found that there was not one city in our whole Common- wealth of one hundred thousand inhabitants. That is rather remarkable for a State which has been settled as long as has Virginia, because this country has grown so rapidly that there is hardly a State in the Union, outside of the Southern States, that lias not got a city of that size. When you take the State outside of the cities of Rich- mond and Norfolk, you will find that we have hardly more than one or two cities of over twenty thousand inhabitants, and you will find a very small number of towns and a DEBATES OE THE COXSTITUTIO XAL COXVEXTIOX OE VIEGIXIA. 26:5 comparatively small number of tillages. Our people are an agricultural people, and they are widely separated and scattered all over the State. They are not only agri- cultural,, but they own large tracts of land, which are not even sub-divided into small farms. That isthe condition in which we found this State. You will readily see that if that is the condition, the returns of the railroads would not be as great as in the State of Connecticut or Wisconsin or Pennsylvania or Michigan or any of the other States that h^ve other systems of taxation. So, in applying the theory of taxation, it was but fair, and we desired to be fair, that we should recognize a fact that was so patent and so potent. You cannot blame us for that. We recognized that we could not immediately apply a principle that would be fair elsewhere but would be unfair in Virginia because of the different circumstances by which we are surrounded. It was because of this that although some of us on the committee were very earnest in advocacy of what is known as the Connecticut plan, of ■which I spoke on yesterday, yet we had to recognize that under the present circum- etances it would not do to apply that plan to the railroads of Virginia at present. Not only did we see that conditions of our State would not justify it, but we realized the fact, that there is scarcely a railroad in this State outside of the Richmond, Fredericks- burg and Potomac railroad that has not been in the hands of a receiver two, three or four times in the last fifteen or twenty years. That is the condition we found in this State. It would have been unfair and unjust, if we did not recognize those circum- stances, because they aSect the financial condition of the people upon whom we propose to put this burden of taxation. Those are the reasons which guided us in our conclu- sions. TTe found another fact. We found in these States that are wealthy and well settled, that have large manufacturing and business industries, that furnish a large amount of freight and do a great deal of local trafiic ('outside of the group known as the New England States), three and one-half per cent of the gross earnings is regarded as a fair tax. That information is furnished by the Industrial Commission of the United States. They have classified the States of this country in groups. And outside of the group known as the New England States, we found that the average was about three pnd a half per cent, of the gross earnings of the railroads, almost exactly the taxation that we apply to railroads in this State. We could not see our way clear to taxing in Virginia as they do in Massachusetts or Connecticut. In the first place their roads are wealthy and they are built handsomely and strongly. Their accounts for repairs and improvements do not begin to compare with the amount of repairs and improvements in this State. We need those repairs and we desire those improvements. So, instead of making a system of taxation which would get a percentage as large as in the New England States, we simply recognize that it would not be fair to do it. Therefore we listened to the railroads when they came before our committee and said that it would not be fair to apply the Connecticut plan to them at present. And what did we do? We found, as we say, that the roads in the United States have been classified into diff- erent groups by the industrial commission according to the circumstances that make it appropriate that certain roads should be in a certain group. In nine or ten groups fixed by the Industrial Commission (outside of the New England States) the taxation is not in excess of three and a half per cent, of the net earnings. Surely we ought not put a greater burden on the roads in Virginia than they can bear in Wisconsin and Michigan, Ohio and Iowa and those States which are prosperous and well settled and thickly set- tled. It would not do for us to put a larger rate of taxation on these roads. It would be burdensome, and would tend to retard the progress of the State. ]\Ir. R. L. Gordon: I would like to ask the gentleman if he has entered into any calculation to ascertain as a matter of fact whether the corporations, upon the values of their properties as shown by the market value of their stocks and bonds, are paying to the State an equivalent to what the individual is paying upon his property. -^Ir. Meredith: We did not ascertain that by an accurate calculation. We could readily see that if we undertook to assess them by what is known as the Connecticut 2676 DEBATES OF TPIE CONSTITUTIONAL CONVENTION OE VIKGINIA. plan, we would find that they would have. to pay one hundred thousand or two hundred thousand dollars more taxes than they will by this plan. But I am explaining that under the present circumstances — Mr. R. L. Gordon: Does my friend think that because they have been in bank- ruptcy and in the hands of receivers, is any reason that they should be excused from paying taxes, the taxes which the people of Virginia have to pay. Does he say that is a reason they should not, for ten years in the future, pay their fair and just burden of the State taxes — I mean as compared with the individuals? All I ask is that the rail- roads may be taxed as the individuals are taxed. Mr. Meredith: It is a question, as to what you mean by a fair and just rate. Mr. Chairman, how are we to get at the actual market value of the roadbed of a railroad? That is a thing that you cannot actually and accurately ascertain; it is a matter of cal- culation and of estimate. Now, not being able to ascertain that in the usual method of valuing real estate, and not being able to say exactly what is the market value of such property, we thought we would take another method. We looked around, and we, saw how the railroads were taxed in other States which were more prosperous than ours and more thickly settled, States that had a larger local travel and business than we had, and we thought that if we could find there a guide which was a proper and safe one, that we would adopt that because v/e found it almost a matter of impossibility to take the usual guide in ascertaining the value, the market value of this property. You cannot find the market value of railroad property. It is absolutely impossible. If you put it at what it costs you could not fix it properly. If you put the value on some roads in this State at what they originally cost, on some miles of the road you would get the proper value and on some you would not. Therefore, finding no way in which we could fix the value of that property according to the usual method, we thought we would get some other guide that v/ould be fair under conditions more favorable than those which exist in this State. That is the extent to which we thought we ought to go in doubling the taxes on these people. We found that in these other States (outside of the New England group) the tax did not exceed three and a half per cent., and I believe that is the highest. That is the way we got at this system. Mr. R. L. Gordon: I understood my friend the other day to contend, and I agreed with him, that the proper taxation was the income producing value — the capacity to produce income was the proper thing to gauge value. Mr. Meredith: You are simply anticipating what I am going to say. We do not recognize that the present value put upon the real estate of railroad property is proper. I, for one, do not. I cannot conceive that the value of a piece of road, valued at $15,000 a mile in 1883, when there was a deficit in the accounts of its company and inability to pay interest, ought to be the same as in 1902, when it has a million-dollar surplus of net earnings. I cannot conceive that that can be taken as the value now. I say that you cannot find the actual value of the real estate of a railroad, but you must consider when you undertake to find out its value what is its revenue-getting power, and it might follow that you Vv^ould increase the value of its property, which ought to be taxed according to its productivity. I do not shrink at all from the principle. It is the proper and only true principle that I know of. But I say that we have to trust our officers, and if they should find that this property is more valuable that it has been heretofore assessed, they will fix the value at a fair and just price, and nothing more. Their hands are not tied by this pro- vision. My friend has the idea that we are tying the hands of the Legislature; but neither the hands of the Legislature nor of the Corporation Commission are tied as to the assessment of value or the rate of taxation. These things are left open to the Legislature. When this provision is adopted the Corporation Commission will have full powder to say that this line of road, which has heretofore been assessed at $15,000 a mile, shall be hereafter assessed at $17,000 or $20,000 a mile. Mr. R. L. Gordon: As to the franchise tax do you fix the amount? DEBATES OF THE CONSTITUTIONAL CONVENTION" OE VIRGINIA. 2677 Mr. Meredith: I will try to explain that in one moment. Of course these things are separate and I have to take them up one at a time. Let me go back one moment, and call your attention to the fact that we do not propose to go into this important question and act at haphazard. You would not have wanted us to impose taxes unless we proceeded upon some reasonable principle. As I have said, we looked around to see if we could find a principle that would do justice, and in looking around we found that as we could not find out the material value of this property, like you find out the value of a house, we would provide for some method of estimating it, and we would leave it to the State authorities to exercise it. We found that if we take the property at its present value, if you do not increase the assessed value of their real estate and tangible personal property one dollar, but add to it the proposed tax of one per cent, upon the gross receipts, the franchise tax, you will get in the case of the Chesapeake and Ohio road 3.31 per cent, of their gross earn- ings, or about three and a third per cent. In the case of the Norfolk and Western you will get 3.37 percent., or about three and a third per cent. In the case of the Southern you will get 3.97 per cent,, or, in round numbers, four per cent, of their gross earnings. In the case of the Seaboard Air Line you will get 5.32, or about five and a third per cent.; and as to the Atlantic Coast Line you will get 6.75 per cent, of their gross earn- ings. We think, gentlemen, that we have shown no favoritism. Mr. R. L. Gordon: What per cent of a man's income does he pay upon a four per cent, bond? Mr. Meredith: My impression is that very few of them pay anything on a bond. I think the history of this country shows that if there is any humbug in the world it is this theory of equality of taxation, so far as intangible personal property is concerned. I repeat that you cannot get at the value of this property like you can get at the value of my real estate. There is but one way of looking at my real estate, and that is to see what its market value is. But you cannot ascertain the market value of a railroad bed. We could not apply, therefore, the principle that you would apply to the ordinary classes of property owned by individuals. We found that, taking information as given by as high a board of men as the Industrial Commission of the United States, who have had grouped the States of the Union acpording to their circumstances, their wealth, their railroad facilities and their business, outside oft he New England group, that we would be taxing the railroads in Virginia fully as much as any group in the United States, outside of the New England group, notwithstanding the fact that this State is not a thickly settled State, or one with large manufacturing and industrial interests. We were seeking for some principle by which we could justify our conduct. We found this, and we adopted it. I want this committee to bear in mind that if this method of assessing real estate and tangible personal property should be continued for twenty years in this State you would not be tying the hands of the Legislature, so far as ascertaining the value of it is concerned, but simply as to the m-ethod of finding the value. Nor would you tie its hands as to the rate of taxation. But we did not think it was wise to go too far. We thought we would look around and see if we could not fix upon a number of years which would be fair to everybody and at the same time give the State such reasonable protection as she was entitled to. I recognize the principle advocated by the gentleman from Louisa. Our duty is to look to the interest of the State first. But do not let us mistake the interests of the State and destroy the rights of the corporations. Do not let us think that the interest of the State lies in unjustly treating anybody. Let us use our power in such a way as to redound to the best interests of the State. We thought that, as this property was to be assessed by us and not by them, through these ten years, we could be trusted to protect ourselves in ascertaining the value of that property. Was not that a wise con- clusion to come to? If you cannot trust 5^ourselves in ascertaining the value of property from which you derive your revenue, whom can you trust? Therefore we say that, what- 2678 DEBATES OF TEIE CONSTITUTIONAL CONVENTION OF VIRGINIA. ever may be the value now of any road, the value of it may be increased by us, if we think they are assessed at too low a value. Mr. R. L. Gordon: I want to ask if you give to your State Corporation Commission a power to arrive at this value, why do you desire to tie the hands of the Legislature as to the 1 per cent, franchise tax? Mr. Meredith: I am coming to that. Bear in mind, first, that we found as far as we could what we thought was a fair principle. Bear in mind, secondly, that the value of the real estate and personal property of the railroad can be increased according to its actual increase of value. Therefore your hands are not tied. You start out with the rate of taxation that is equal to the taxation in any other group of States in the United States, outside of the New England group. You start now with an average of about 3i per cent, on the gross receipts; and more than that, as I have just shown, on some of them. So we start, as I say, with a fair rate of taxation according to the experience of other States. Now, we submit, that if we start right, that we will be safe as we go along for this period of ten years. Mr. James W. Gordon: Are these figures based upon the percentage of gross earn- ings of roads in the other States? Mr. Meredith: The actual percentages were, as I stated, ascertained by the Indus- trial Commission grouping these roads in certain Slates. They ascertained that the average rate in the different groups did not exceed in any case, except the New England group, 3J per cent. We applied that principle, which we thought was about right. Remember, now, that you start with a basis that is fair and just, and let us see if you cannot protect yourselves in the future. You have the right to fix the value of the real estate and of the tangible personal property. Therefore, if they increase in value you increase the assessed value of them, and if you do that, you will get more taxes. You can protect yourselves as to that. You are only limited as to the matter of getting at that value. You also tax them 1 per cent, on the gross earnings. Mr. R. L. Gordon: My friend will admit that the system of taxing the actual value has been, in the past, absolutely ineffective, and they have been paying taxes on a great deal less than your committee says they ought to pay. Mr, Meredith: If you will look back, you will find that this State has been indulg- ing in an absurd method of taxation. She has undertaken to tax net earniogs, after deducting not only operating expenses, but also interest paid on the bonds. But I think that what has been done in the past ought not be used as a prophecy as to what will be done in the future. We have created the State Corporation Com- mission for the purpose of ascertaining the facts necessary for proper methods of taxa- tion, for the purpose of giving the Legislature information in order to let it see what is right and just and fair to the State, and not to trust to some move being made in the Legislature upon the individual authority of some member. So we can hope, I think, that in the future the system of ascertaining values will be more accurate and more just to the State. We say that we start off with the power in you to increase the value of this property, so that you can increase the amount of taxes if you think it just. As to the tax of 1 per cent, on the gross earnings you would not have the right to increase the rate; according as those earnings increase, your revenue will increase. If they decrease, your revenue will decrease. You share pot-luck, if I may use that expression, with these corporations. If they are benefited by prosperous times, you are benefited. If they suffer by times of financial depression, you will have to bear partly the loss. So it is a movable tax, which we think is fair and just to these companies and to the State. Now, of course if you are going to fix any time for the continuance of this system, you will have to fix some time. Let us see if ten years can be fairly regarded too long. Do you expect this State to jump to great wealth in ten years? Do you think the change will be so great, that unless we say there shall be a change in the rate of taxa- tion in less than ten years the railroads will not pay enough taxes. I do not conceive, gentlemen, that there is going to be any such jump in the wealth and prosperity of these roads. DEBATES OE THE COXSIITUTIO XAL COXVEXTIOX OE VIEGIXIA. 2679 We know that these roads have rights in this matter. They said: Gentlemen., you are putting on us just double as much as we have been paying. You proposed, in addi- tion to that, to control and to some extent manage — I will not shrink from the word, though I see my friend from Roanoke smiling — the railroads, as far as the fixing of rates and classification of traffic is concerned. Under those circumstances, they thought it was fair they should be reasonably safe for ten years." If there is any reasonable and fair objection to it, of course you gentlemen must do as you choose about it. We gave it grave and serious consideration. I can say, for myself, that I was the last man on the committee to agree to the period of time being fixed. I did agree to it, after full consideration, and I believe now that it is fair. I cannot see any harm that can come from it. I can see some good that will come from it. I believe now, and am willing to stand with the rest of the committee in maintaining the proposition that this system ought to be fixed for a reasonable time; not for so long a time as would carry us into the future, when we might expect a large increase, but for a reasonable time. It does not tie our hands as to the taxable value of the real estate or personal property. We benefit hy the increase in the gross earnings. Mr. R. L. Gordon: ^Ir. Chairman, before the vote is taken, I desire to change the amendment to some slight extent. I merely want to strike out the words " until the first day of January. 1913. after which date it shall continue," so that the section vs-ould read: "And such system shall so remain until modified or changed, as may be pre- scribed by law." The first amendment was too broad, and would have left the section without modification or change by the Legislature. I simply want to strike out the words I have just read until the first day of January, 1913. after which date it shall continue." ivlr. ^Meredith: If you snuke out anything, and I hope you will not. you will have to strike out also the date to which it shall continue until modified or changed. Mr. R. L. Gordon: Xo. sir; we are leaving it June 30. 1903, and such system shall remain until modified or changed as prescribed by law." It merely strikes out the ten- year limitation. Mr. R. Walton Moore: Mr. Chairman, it seems to me that if we adopt the amend- ment offered by the gentleman from Louisa we ought to go further and strike out the system of railroad and canal corporation taxation we have embodied in this report, because if we distrust the fairness of the system for ten years we ma}" as well distrust the fairness of the system for one year, and it is just as wrong to risk a probable unfair system for one, two or three years as it is for ten 3"ears. If the Committee of the A\liole is unwilling to assume that this will be a fair and proper system for a certain period, it may as v\-ell assume that it will be an imfair and improper system for one. two, three or four years, or so long as it remains in operation. Xow. I will call the attention of the committee to the fact that this report does two things. It embraces some general principles of taxation, and it embraces a ten-year system of taxation for particular corporations, namely, the railroad and canal corporations of the State. If this is a matter, as suggested by the gentleman from Louisa, which is to be turned over to the General Assembly to the extent proposed by him, then the Committee on Taxa- tion and Finance made a mistake, it seems to me. in attempting to put a plan in here at all, and we ought to relegate the entire subject to the General Assembly. Why was the committee tm willing to adopt that course? Simply for the reason that we looked back over a long stretch of years, and we found that these companies had not been paying sufficient revenue to the State, and looking forward to the future, we doubted whether the General Assembly would be able to deal with this matter satisfactorily at once. And therefore, in order to insure the payment into the treasury of some thing like the amount that we conceived ought to be paid by these companies, we put in here this system of taxation providing that it shall last for ten years. Mr. R. L. Gordon: Does the gentleman believe that the Legislature of Virginia will undertake to lessen or repeal that law if it demonstrated to the people of Virginia 2680 DEBATES OF THE COJsTSTITUTION'AL CONVENTION OF VIRGINIA, that it was a just and fair tax? Does he believe that any legislature could be elected in the State of Virginia to repeal a just and proper tax upon corporations? Mr. R. Walton Moore: I do not think so. I have no apprehension of that character at all; but my friend seems to look only to one side of the question. Is there no pos- sibility that we may have exceeded reasonable limits in imposing this one per cent. tax. Mr. R. L. Gordon: I will say to my friend that if there is any doubt concerning that it ought to be modified. Mr. R. Walton Moore: Then I repeat that if we are going to disturb the report at all, we ought to strike out the ten-year system altogether and place the State in the situation of uncertainty that it occupies now and will continue to occupy, for how long a time no one can predict. Now, gentlemen, look at this matter for a moment in a practical way. What are we getting out of these companies to-day? Barring the $20,000 net income tax, we are getting into the State treasury about $240,000 from these companies. That is a property tax collected upon an average assessment of something like $15,000 per mile made by the board of public works. Now, we propose to say to the corporation commission that for the next ten years it shall continue to assess the visible property, and nobody appre- hends that the commission is going to reduce the assessment below $15,000. The rail- roads do not believe or expect it. No one acquainted with the situation anticipates it. We can very safely assume that the commission is not going to make any reduction of the assessment which produces, roughly stated, $240,000. And my friend from Rich- mond (Mr. Meredith) has suggested there is a possibility that we will get more than that amount by an increase of assessment. In addition we have done what? We have laid a tax of one per cent, upon the gross income of the companies which will accom- plish what, immediately? It will bring into the State something like $260,000 in addition to the $240,000 which we are receiving nov/. The earnings of these companies in the State of Virginia aggregate about $26,000,000 and we wish to write it here in the Constitution that they shall pay upon those earnings a tax at the rate of one per cent, per annum. And this is to be maintained at least ten years. Throughout this ten-year period we are to con- tinue to receive one per cent, upon the gross earnings of these companies, whatever reductions may be made in other directions involving individuals and other corpora- tions. Now, gentlemen of the committee, is it better to do this, or, upon the other hand, is it better to strike out this entire system of corporate taxation and say to the General Assembly. " You shall get to work upon this subject and struggle with it as the Com- mittee on Taxation and Finance has been doing for several months, and as the Consti- tutional Convention has done and work out a result at some time in the future? Mr. R. L. Gordon: Does the gentleman believe that if this is a just and fair bill that the Legislature of Virginia is going to change that law? Mr. R. Walton Moore: The report is predicated upon the idea that we have arrived at a just and fair conclusion. If that be in doubt, if we are in the clouds as to that, we ought not to put these companies in peril any more than we should put the State treasury in peril, and in justice to all interests, we ought to drop the whole plan and turn the matter in its entirety over to the General Assembly. Mr. R. L. Gordon: Does not my friend believe that the Legislature can be more safely trusted to deal wisely with this matter than it could be trusted to create a State corporation commission? Mr. R. Walton Moore: So far as I am concerned, I believe, you could trust the Legislature to deal wisely with this matter in the end precisely as I have believed you could trust it to confer powers on the commission. But this matter of taxing corpora- tions is a great subject and a complicated subject, and it struck this committee that the Legislature might not be able to deal with it satisfactorily in the very near future, and it would be better to put the system in effect for a certain period and insure the immediate collection of a far larger revenue by the Commonwealth. It seem.s to us DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OF VIEGIXIA. 2681 that it is very desirable from every point of vievr, that this systera should go into the Constitution as we have marked it out in this report. Mr. Barbour: Mr. Chairman, I hope very much that the amendment offered by the gentleman from Louisa will be adopted. It does not seem to me that the position taken by the gentleman from Fairfax (Mr. Moore) is a fair one in undertaking to threaten this Convention that it is to take the report of this committee or that com- mittee. He says that unless we are willing to put this system in for ten years that we should not adopt it at all; that if we express a doubt as to the fitness of the sj'stem, that it should not go in here at all; when the Committee themselves have expressed a doubt as to the system, by limiting it to ten years. They have expressed a doubt as to the fairness of the system. AVe say if the system turns out to be unfair it will not take ten years to demonstrate it. It can be demonstrated in less than ten years. Our position is that if the actual practice of it demonstrates it to be unfair and inequitable, then the representatives of the people should not find their hands tied for a period of ten years before they can correct it. Xow 1 propose to show that the same rule that has been laid down for corporations is not laid down for individuals in this matter. They have reported this system because they say the taxation of railroads could not be gotten at under the ad-valorem system, as I understand it. They provide for this assessment of this property as it is at present, at the rate of $15,000 a mile, and no one seems to think that will be changed one way or the other; but it is asserted, upon the floor of this Convention, that is not a fair valuation of the property, that the rail- roads, the cost of whose work, as demonstrated in the reports that have been filed before the railroad commissioners, cost about 840,000 a mile, are assessed at $15,000 a mile, showing that they are assessed at a little over one-third of what they should be assessed. But in order to equalize that, they come in with this provision for an income tax, a tax upon gross receipts. They limit that tax so that it cannot be increased; whereas the tax that is laid upon the individual may be increased to any extent. Who can tell what will be tlie necessities of this State in the next ten years? Some great calamity may sweep over this State; we may have greatly increased revenues to raise. Public buildings may be destroyed and epidemics may come, and it may be absolutely necessarj- to raise the rate of taxation. But if such a calamity should happen, if such an emergency should arise, then under this provision these corporations would not have to pay that increased tax, but the individual would. The tax upon their incomes is limited to one per cent. The tax upon the incomes of individuals is not limited to any such amount. The State has an unlimited right to tax the incomes of individuals. It has an unlimited right to lay a license tax upon every business in this State. Mr. Boaz: Is there anything in this report to prevent the corporation commission from raising the assessment to $40,000 or $50,000 a mile on the roadbed, if they see fit to do so? ]\Ir. Barbour: Yes, sir. I\Ir. Boaz: What is it? Mr. Barbour: It is this: That the Legislature is given power to change your present system by which that is arrived at, but under the plan the Legislature cannot apply the Connecticut system of arriving at a valuation of those roadbeds. Mr. Boaz: What is to prevent the board of public works now from assessing it for S40.000 or S50,000. 'My. Barbour: Nothing. Mr. Boaz: Well, we do not put any further restrictions upon them than they have at present. Mr. Barbotir: Of course not; btit if it is their duty to assess it at S40.000 or $50,000 a mile and they do not assess it at but $15,000 a mile, how is the Legislature ever going to make them assess it at $40,000 of $50,000? You do not provide any means by which the Commonwealth can appeal from the decision of the board of ptiblic works, or that 169 — Const. Deb. 2682 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. they can get the Supreme Court to believe it unfair. It is absolutely out of the control of the Legislature and beyond their power to provide any additional requirement. This Constitution prohibits licenses upon railroads, prohibits everything except a one per cent, tax upon the gross income. What I say is that in the course of ten years it may be demonstrated that it is not fair, just or equitable. I do not think it is fair of this committee to say that you must take this or nothing. It is not just to the individual that the right to tax the railroad shall be limited by the Constitution and that the right to tax individuals shall be unlimited, that their taxes may be increased to an unlimited extent, by license taxes, income taxes, and taxes upon valuation. The Chairman: The question is upon agreeing to the amendment offered by the gentleman from Louisa (Mr. R. L. Gordon). The amendment was rejected. Mr. Hancock: I move to strike out the figures "1913" and insert the figures "1908" in line 7. The amendment was rejected. Section 15 was read and adopted. Sec. 16. Except as otherwise provided in this Constitution, the following, and no other property shall be exempt from taxation, State and local: A. Property directly or indirectly owned by the State, however held, and property lawfully owned and held by counties, cities, tov/ns, or school districts, used, wholly and exclusively for county, city, town or public school purposes. B. Buildings, with the land they actually occupy, and the furniture and furnishings therein lawfully owned and held by churches or religious bodies, and wholly and exclusively used for religious worship, together with such additional adjacent land as may be reasonably necessary for the convenient use of such buildings for public wor- ship. Mr. Stuart: There are several members of the committee who desire to submit an amendment to that subsection. The amendment, as I understand it, is in the hands of the gentleman from Rockingham (Mr. Keezell), who is detained from this body this morning by sickness in his family. I would be glad if this subsection could be passed by temporarily. The Chairman: Unless there is objection, that will be taken as the sense of the committee. Sub-sections C and D were adopted. E. Real and personal property belonging to and used by Young Men's Christian Associations, orphan or other asylums, hospitals and nunneries, which are not conducted for profi-t, but purely and completely as charities. Mr. Pollard: I move to amend sub-section E by adding after the word "association" in line 41, the words " and other similar religious associations." My purpose in moving the amendment is that there are two denominations that do not affiliate with the Young Men's Christian Association. There is an institution in the city of Richmond called McGill's Catholic Union and the purpose of that organization is precisely the same as the purpose of the Young Men's Christian Association: They have property here which should be exempt from taxation if Y. M. C. A.'s are exempted. There is also an organization knovm as the Young Men's Hebrew Association, who own or may own property in this State. Mr. Hamilton: I think this matter is entirely covered by other sections of the report. Mr. Pollard: I would like to have the gentleman point out where it is covered by other sections, I want to say that I do not believe that McGill's Catholic Union belongs to any particular church but I think it is a religious organization like the Young Men's Christian Association, not owned by any church as such. The same thing is true of the Jews. I hope that these words may be used so as to prevent any discrimination DEBATES OE THE COXSTITETIOXAL COXTEXTIOX OE YERGIXIA. 2683 ■between tlie Tarious religious organizations. I am sure it was not the purpose of ttie committee to discriminate against any religious denomination. Mr. Hamilton: I do not know ^-hether I speak for the committee in objecting to this amendment, but I do object to it for myself. The words "•other similar religious associations'' are too indefinite. You will have the Christian Scientists in here claiming exemption from taxation and all sorts of "isms'" claiming to be religious associations. Mr. Pollard: Does the gentleman mean to say that if the Christian Scientists own property they ought not to be exempt from taxation the same as any other demonina- tion? Mr, Hamilton: I don't fhink any of it ought to be exempt. That is just the trouble. Anybody who calls himself or herself a Christian and forms some sort of an associa- tion will come in and ask for exemption from taxes. The great trouble has been that the language in the statute has not been sufficiently definite to protect the State from fraud and from people getting exemptions under guises and pretenses. If we enlarge this language we simply open the doors again and throw dovm. the bars. The truth is nothing ought to be exempt from taxation; but our age has not yet reached the point where people are willing to accept that doctrine, we have to say what is reasonable and practicable in this matter. I hope the amendment will be voted down. Mr. Pollard: I fully agree with the gentleman from Petersburg CMr. Hamilton) that there should be no exemptions of this kind. — that churches on principle ought not to be exempted from taxation. But I do say that it is totally unjtist to exempt the property belonging to one religious denomination and not exempt that belonging to another. If we are to have exem^ptions we ought to hare them apply uniformly to all religious denominations. There is a Woman's Christian Association. Does the gentle- man think that they ought to be subjected to taxation when the Young Men's Christian Association is exempt. If we are going to have exemptions on property belonging to religious associations it ought to apply equally to all denominations. If the language I use in my amendment is too broad I would be glad to have the gentleman modify it. He certainly does not wish any such Injustice to exist. He certainly does not want the Young Men's Association in the Catholic Church to be taxed when the same asso- ciation in the Protestant Church is free of taxation. He surely cannot mean to main- tain that on this floor. VvTiat I object to is discrimination. If you will put them all on the same footing It will satisfy me, but I do object and protest against any discrimination in this Constitu- tion as between any religious denomination whatsoever. Mr. Hatton: I want to enter my protest against the introduction of any such broad and inefficient language into this exemption clause. If you put this language into this clause I predict that, in a little while, every negro society in this Commonwealth will be one of the " similiar religious organizations." You know as well as I do that the colored brother mixes his religion with everything. He mixes it with his politics. He brings it into all of his relations: and you will find that, in a short time, everv one of these societies that own a piece of property will be one of these " similiar religious organizations." You cannot predict any limit to it. For my part I want to enter my protest against it. Air. Aleredith: I want to say that the committee is somewhat divided on this ques- tion. I shall vote for the amendment offered by the gentleman from Richmond. It has been suggested by the gentleman from Danville that the diS-culty might be met by striking out the words " Young Men's Christian Association." It is not for me to imder- take to teach religious duties to you gentlemen. I fear I have not a sufficient amount of religion to satisfy my own needs; but I do think that we ought to consider, as to whether or not, we are justified in exempting institutions of secular education, and yet not exempt institutions for religious instruction. That is a thing, I think, the wickedest of us would shrink from, and yet that is what we will do if we carry through the sug- gestions. Since we leave in all the institutions like colleges and educational institu- 2684 DEBATES OF THE CONSTITUTION^ AL CONVENTION OF VIRGINIA. tions, should we strike out the Young Men's Christian Association, and leave out the Woman's Christian Association, and property held by the Christian Endeavorers and the St. Andrew's Brotherhood. These are all organizations that are devoting their lives to doing good. I do not think we would be justified in making such distinction. While I think there might be some danger of improper institutions getting in, under the liberal language offered by the gentleman from Richmond, yet I think we had better run that risk, than run the risk of doing harm by putting a burden upon these religious institutions, which we do not put on secular institutions. We cannot justify that. I submit that we ought to put in after the words " Young Men's Christian Association," the words " other similar religious institutions," and then let the courts say whether they are similar or not. We can depend upon the court to protect us; and even if we do not get the desired protection, we had better bear the burden than put ourselves in that position of drawing such an unfortunate discrimination. Mr. Gordon: Why not exempt all charitable and religious institutions and leave out the word "similar"? All of the great charities in this world now are developed, in my opinion, through different religious associations, and whether they are Christian or not does not make any difference. We know that there are a great number that are not Christian which have developed large charitable objects, and have expended im- mense amounts of money and time for charitable purposes. Let us exempt all of these. Do not let us make any distinction. By all means in the world, do not let us confine our Constitution in this matter to the exemption of certain institutions only, such as the Young Men's Christian Associations. Whether that would include the Woman's Christian Association, vvhich Mr. Pollard has just mentioned. Mr. Robertson: Mr. Chairman, I do not pretend to know any more about this Christian Association than anybody else here; but it does, seem to me that we ought not to determine in this Constitution between what is generally known as the Pro- testant religion and the Catholic religion. Mr. Fairfax: W^e do not. Don't you regard the Catholics as Christians? Mr. Robertson: Everybody knows that the Young Men's Christian Association is connected witn tne Protestant church. If you select that as a subject that ought to be exempt from taxation you certainly and unquestionably draw a distinction between the Protestant church and the Catholic church, as the gentleman from Richmond (Mr. Pollard) has indicated. I think that the gentleman from Danville is right, and that we either ought to strike this thing out entirely, or ought to make it so broad that it will cover every denomination. As I understand it, every Christian church in this land has auxiliary bodies which undertake to do the work that the church, proper, cannot do. Now, whether the gentle- man from Danville (Mr. Green) is right in his view about the Young Men's Christian Association or not, I do not know; but certain it is that all churches recognize and encourage these auxiliary societies that do work which the churches cannot do. It does seem to me that it is a worthy object to encourage them as a part of the church, and we ought not to single out one particular kind of auxiliary church work or one particular organization v/hich everybody knows is connected with the Protestant church and exempt that, and not allow similar organizations connected Vv^ith Catholic churches or other churches to have the same exemption. I vv^ill state, candidly, that I agree with my friend from Petersburg that we ought not to exempt any of these people. I believe in everybody paying taxes, but I do not believe this Convention is willing to adopt that policy. It does seem to me that if we are going to have any exemption we ought not to make any discrimination. It seems to me that this Convention is going contrary to the spirit if not the letter of another clause of our Constitution, in which we say that we will not grant any special favor to any particular denomination. Everybody knows that there is a broad line of cleavage between the Catholic church and the Protestant church. If we single out this organi- zation, the members of which are all Protestants, we are practically making a distinc- tion in this Constitution, between Protestants and the Catholics, who constitute a large DEBATES OF THE COXSTITUTIOXAL COXTEXTIOX OF VIEGIXIA. 2685 part of the body of our people. I do not tliink ought to do it. I, for one, would be willing to strike out every one of these exemptions and make everybody pay taxes. I believed that where people are protected by law they ought to be willing to pay for that protection. But when we get into exemptions, the exemptions ought to be fair and equal to all denominations, and this Convention ought not to make any distinctions between them. Mr. Pedigo: Do not the Jews, who are not Christians at all and do not pretend to be Christians, have as fine charitable organizations as any other denomination? ]\Ir. Robertson: If there is anything in which the Jews set a good example, in my opinion, it is in the matter of charity. I do not think they ought to be discriminated against, so far as charitable and religious matters are concerned. Mr. Hamilton: I think there is a misapprehension here in supposing that any discrimination is made against the Catholic church or any other church. That certainly was not my purpose and I believe it was not the purpose of anjr member of the com- mittee. This is a subject which has to be very carefully treated, so far as the language to be put in here is concerned, in order to show the meaning of the entire section. The reason the section is put into the Constitution is that heretofore the Constitution - allowed the Legislature to make certain exemptions, describing the character of tEe exemptions in a general way. Under that constitutional provision the Legislature, try- ing its best to do its duty, made a statute, and as far as possible we have followed that ' statute, only making the language more accurate. But we found that there were some twenty-five or thirty million dollars' worth of property in this State exempt from taxa- tion. That was too much. There were a great many frauds perpetrated on the State. Immense numbers of these State insurance compa^nies were doing business nominally under the gnise of benefit associations. A great many people said they were incor- porated seminaries and institutions of learning where the money all went to one man, and it was really, in substance and truth, a private enterprise. In order to correct these troubles and to bring under taxation property wMch. everybody would admit ought to be taxed, we have had to be very careful in the language used in this section. Now, the use of these words, the Young Men's Christian Association," seems to be the only criticism made and that is made upon the ground that it is a discrimination against other denominations or against some other associations. I have no interest in the Young ]^vlen's Christian Association. I entertain very much the same view of them as the gentleman from Danville does. I do not think any of them should be exempt. But we have to be practical, gentlemen. We cannot carry our theories out fully. We must do whatever we are able to do. in the line of what is best, in making this Constitu- tion. That has been recognized all through. I do not suppose any man here has been able to get his whole theory approved and carried out. I would be glad if the whole section as to exemptions, except the first clatise. should be stricken out. It is perfectly useless to hope for that. You would have a revolution in the S'tate if you taxed the churches of the State. The people have been accustomed to that exemption too long. There are certain really benevolent and charitable institutions not conducted for profit which ought to be exempt if an:.i:hing is exempt. Of course the property in the munici- palities and cities and counties should be exempt as governmental agents. I want to say to the gentleman from Richmond Olr. Pollard) that if he will look in sub-section D. in line 24. he will see that it reads: "buildings with the land they actually occupy and the furniture, furnishings, books and instruments therein belonging to and used by public libraries not conducted for profit, and not belonging to churches or to incorporated colleges." The word "churches" was put in there, although there was another section with regard to church property, and it was put in for the express purpose of giving to the Catholic church the same exemptions that were given to incor- porated Protestant churches. The property of the Catholic church is universally held, under their system, by the bishop of the diocese. It is recorded in his name. That is not an incorporated institution. Therefore if we had treated those churches as incor- 2686 DEBATES OF THE CONSTITUTIONAL CONVENTION" OF VIRGINIA. porated churches we would have left the Catholic churches out. We have been careful to provide that the Catholic churches shall have every right that the Protestant churches have. Further down we say " property belonging to and used by the Young Men's Christian Associations." We do not mean to say that is the only property that can be exempted. We have tried to cover all of the various things that we thought the prejudices of our day and generation would require to be exempt, such as orphan or other asylums, hospitals and nunneries, v/hich are not conducted for profit, but purely and completely as charities. We are bound to guard this point or somebody will defraud the State. I have no objection to including here the Young Men's Christian Association and the Jewish or any other association, which is a purely religious association; but I do not want it to be fived so that everybody can get up a religious association, establish a church of his own and call it a religion, and get exemption from taxation that is not right and proper. We have got to guard against it in the Constitution or it will be guarded against nowhere. What is a religion? Nobody can answer authoritatively and definitely. It depends upon the man's own views, if he is sincere and earnest, in con- nection with matters in relation to his future condition. What is a religion? You can- not tell. So when you say "other religious associations" you simply throw open the door to fraud, by the use of such indefinite language. I have no objection to putting in here words to cover the cases that the gentleman from Richmond knows of, the Young Men's Christian Association, the Young Men's Jewish Associations, the McGill Associa- tion; but let us be definite in whatever we do provide in this article. Mr. Pollard: Will the gentleman tell us how the use of the words "other similar religious associations," following the words " Young Men's Christian Associations," could possibly do any harm? Mr. Hamilton: I thought I had been, telling you that for the last fifteen minutes. Mr. Withers: May I suggest to the gentleman from Petersburg that under the language of the gentleman from Richmond the Elijah Dow Association would undoubt- edly come in. Mr. Hamilton: I wish to say that I do not know, and no other man in this body knows, accurately and definitely, what "religious associations" means. We cannot tell what will come in under that language and what will not come in under it. Mr. Meredith: If you specify a certain thing, as you do here in the case of the Young Men's Christian Association, and then you say " and other similar religious as- sociations," why can't you leave it to the court to decide v/hat is a similar association, just as you leave them the decision whether the land is necessary for the "covenient use" of educational institutions. You get the protection of the court. You know what the Young Men's Christian Association is, and you can get the construction of the court as to the meaning of the word "similar religious institutions" why is not that sufficiently specific? Mr. Hamilton: Mr. Chairman, it is not sufficiently specific, according to my mind, for if vv^e cannot define at all what we mean, how can we hope that the courts will settle it for us? If we do not know what we want, and cannot definitely state it in general terms, but must let the court construe it, is not the court making this Constitu- tion instead of our making it? I would have no objections to striking out the language " the Young Men's Christian Association," and I would have no objection to putting in "any simJlar associations" we know of by name and that we approve of as associations. But we might get the Christian Scientists, we might get the Elijah Dow Association, and I don't know who we might not get. Then the courts will have to determine what is a similar religious association. You, I am sure, do not want that. Mr. Pollard: Would we not have the court construe what is "a Christian Associa- tion" if we insert the words " Christian Association?" Mr. Hamilton: I believe that what we call the "Young Men's Christian Associa- tion" is reasonably definite. People differ in their opinion as to whether it is a valuable DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIKGINIA. 2687 thing or not, but they know what it is, at any rate. I do not think there would be much harm in having the court construe that, but if you say " other similar religious organi- zations," if I was on the bench I could not tell what you meant. You may know, but I do not. Mr. Braxton: It seems to me this whole discussion demonstrates the unwisdom of putting into this Constitution any of the exemptions covered by subsections d, e, f and g. I do not know whether this is the proper time now, from a parliamentary stand- point, to introduce an amendment to that effect but I would like to give notice that I shall move to strike out that section. It is with great hesitancy that I move to amend this report; but it does seem to me that every argument that can be adduced here, if carried out to its logical conclusion, will demonstrate that there ought not to be any exemption from taxation unless it be property owned by the government, some of the subordinate department of the government, church property and burying grounds. The Chairman: The question is upon agreeing to the amendment offered by the gentleman from Richmond. The amendment was adopted — there being, on a division, ayes 38, noes 16. Mr. Stuart: Mr. Chairman, according to notice just given, I desire to call the attention of the committee, for a moment to sub-section b, section 16, line 11. I move to amend by inserting, after the word " ownership," the words "and for the residence of the minister of such church or religius body. So that the section will read: Buildings, with the land they actually occupied, and the furniture and furnishings therein, lawfully owned and held by churches or religious bodies, and wholly and exclusively used for religious worship or for the residence of the minister of such church or religious body. It may be proper to state, Mr. Chairman, that several members of this committee hold this view, and reserved the right to introduce this amendment and to advocate it. I presume there is ample room for a difference of opinion on the question of whether or not there should be any exemption from taxation for any purpose. I say this for the reason that there are men on this floor for whom I entertain the highest respect and regard who announce the proposition that they do not believe in exemptions of any kind, either for religious or educational institutions or other purposes. It is abso- lutely clear, however, to my mind that there is no duty which presses upon any repre- sentative body with more force than the upholding of the efforts of the religions denomi- nations of this State, working as they do as coadjutors of our civil authorities in upholding law and morals. I venture the opinion that the execution of our laws, and especially our criminal laws, be they ever so vigorous and efficient, find their chief support in the powerful influence for good of the religious denominations. I venture further to say that in all this Commonwealth those communities in which these religious denominations exert the most powerful influence are the communities in which the law is best administered and held in the highest esteem. So that, if there were no higher ground for upholding the hands of these instrumentalities for good, it would be justified by the fact that we are thus upholding the law. I am one of those who believe that the houses of public worship should be exempt from taxation. I am one of those who believe that the devil already has too much start of us and that we had better not tax the agencies that are set on foot to circumvent him. If, then, to be brief, it is proper to exempt from taxation the houses of worship, it is equally proper to exempt those buildings which are necessarily incident to such houses of worship. Speaking for the rural members of this Convention, it is well known to some, at least, of these members that there are congregations covering territories which embrace in some instance one- half to two-thirds of an entire county. There may be two or three churches, or half a dozen churches embraced in the same denominational territory. These churches meet and take subscriptions and build what are known in the Methodist church as parsonages. These houses so built are occupied by the ministers in charge of the several churches. 2688 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Wherever these conditions exist it is a constant struggle for the membership of the churches to meet their necessary dues for purely church purposes. If it should be the will of this Convention to impose a tax upon those things which these people have here- tofore regarded as their Christian duty to erect and maintain, it would seem to me to be a public utterance on the line of treating these instrumentalities as on a par with ordinary industrial and business undertakings generally. I think it will readily occur to each member of this Convention, and especially to those of them who live in the country, that these parsonages are as much the property of the church, as much an adjunct to church influence as the edifice itself. If we declare the principle that the edifice should not be taxed, it would necessarily follow that the necessary adjunct, that is, the parsonage, the place of residence of the minister, should likewise be exempt from taxation, unless we intend to impose this additional charge upon already heavily burdened communities for the upholding of religious influences. I trust, sir, that it may be the will of this committee to exempt from taxation church edifices and all the incidental adjuncts of the church for the betterment of the spiritual condition of mankind. Mr. Keezell: I am one of the members of the Committee on Taxation and Finance who agrees with the gentleman we ought to exempt parsonage property belonging to churches from taxation. Upon the question as to whether it is proper to exempt any property at all from taxation, I am not sure that I agree altogether with what he says. It may be possible that I more nearly agree with the gentleman from Petersburg. But this committee has made exemptions. They have said that church property, proper, should not be taxed and that property used for educational purposes and various chari- table instittitions should be exempt from taxation. Having adopted the principle of exemp- tions it seems to me there can be no reasonable ground for not including in the line of exemptions the parsonage property of churches. I am not so well acquainted with the matter in the cities; but the gentleman from Russell has certainly expressed my views and the result of my observations so far as conditions in the country are concerned. It is usually the case in the country that these parsonages are erected by the untiring efforts of the good women of the various communities, and at great sacrifice by these noble and devoted people. For us now to undertake to impose a tax upon this class of property, in my opinion, would be the cause of more resentment than there would be if we were to make no exemptions whatever. The very fact tliat you exempt one class of church property and do not exempt another class, which in all human probability has been erected at more sacrifice than any of the other agencies of the church we have to deal with, and are as necessary as the church itself in the preaching of the Gospel, cannot avoid raising a cry of dissent among the people. What have we done already? Section d has been passed, and in that section we have provided an exemption for the buildings used as residences by the officers or instructors of educational institutions. You have put in Section d a provision that the residences of the professors and officers of educational institutions shall be exempt for taxation. You have put them upon a higher plane than you do the residences of the ministers of the Gospel. I do hope that this committee will include in these exemptions the parsonage property of the churches for the reasons I have mentioned. It ought to be done, if you are going to have any exemptions at all. It ought to be done for the further reason that I believe if you do not do it, it will cause more unfavorable comment than any other one thing that could happen, so far as these exemptions are concerned. It ought to be done as a m.atter of policy, because the amount of taxes you would get would be out of all proportion to the amount of dissatisfaction you would create. Mr. Garnett: Mr. Chairman, as a member of the Finance Committee, I agree with the two gentlemen who have just spoken on the question now before this body. I agree with my friend, the gentleman from Russell (Mr. Stuart), and I heartily endorse the idea of the committee in exempting church property, proper, from taxation. The prop- DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF VIRGIXIA. 2689 erty we now want to exempt is a necessary adjunct for the support of the churches in the country. Without a parsonage it is impossible to elect good preachers, and without preachers the churches go down. We in the country feel and know that this work is largely the work of the women, that it is a work of self sacrifice, and the work of the best people on earth. The Christian women of the State of Virginia to-day are respon- sible, more than any other class of people, for the erection of parsonages to the churches. I say that I hope it will be the pleasure of this committee to say to the Christian women of the State of Virginia that we want to stand by them in this matter, to encourage them in the discharge of their duty and in the effort they are making for the civiliza- tion and Christianization of the people of this Commonwealth. If we exempt the residences of the professors of colleges, still more ought we to exempt the parsonages, which are the residences of the ministers who cultivate the hearts of the people. We not only want these educational institutions exempt, but we want that which comes nearer home, the education of the heart to be brought to the people by the ministers of the Gospel of Jesus Christ to-day in the State of Virginia. We ought to say to these women of the State, " We do not propose to discourage you in this matter, but we will help you all we can." I hope it will be the pleasure of the committee to support the amendment. Mr. Braxton: Mr. Chairman, I would like to offer an amendment to the amendment offered by the gentleman from Russell by restricting the value of the parsonage prop- erty. So far as the argument applies to poorer churches it seems to me that it is perfectly sound and I would be willing to vote for his amendment, but so far as it may be extended to exempting from taxation parsonages in the larger cities, which I am told sometimes are valued at fifteen, twenty or twenty-five thousand dollars, I do not think it is commendable. When the churches are poor and where the parsonages are acquired by contributions of poor people, such as have been referred to by my friend from Rus- sell and Rockingham, it is commendable. But if the congregations are rich enough to have churches worth fifty or a hundred thousand dollars and parsonages worth from ten to thirty thousand dollars, I think they ought to pay taxes on their value in excess of a reasonable amount. I would suggest that a limit of $3,000 be fixed as the value of the parsonage to be exempted from taxation and that a further provision should be made that the property should be used exclusively as a residence for the preacher. If my friend will accept that amendment, I for one, will be verj^ glad to support his amendment. I think it would limit the exemption to meritorious cases. Mr. Stuart: What is the amount of the limitation suggested? Mr. Braxton: I suggested §3,000. Mr. Stuart: I will accept that or any other reasonable sum. Mr. Pollard: If you are going to limit the value of the parsonage that is exempt from taxation, ought you not, on the same principle, to limit the value of church prop- erty that is exempt? :\Ir. Braxton: I think the congregation that can afford to build and maintain a church worth a hundred thousand dollars can afford to pay taxes on it. That is my personal judgment. I think that the value of a church ought to be limited to a reason- able sum. islv. Garnett: So far as I am concerned, I am in favor of the preacher having just as good a house to live in in the city, as any member of his congregation. I do not see why we should not give him a good a house to live in as the richest member of his congregation. I believe that a good preacher is the best man on earth and I will say here that while I am not a preacher I would rather be a good preacher than king of the universe. ;Mr. Thom: I did not expect to say anything on this subject; but the discrimina- tion sought to be introduced by the amendment which has been proposed calls for some attention on my part. I have heard the suggestion made that there are rich churches in the State of Virginia. If there are any such I do not happen to know them. Because there is a handsome edifice dedicated to the service of God, that by no means indicates 2690 DEBATES OF THE CON"STITUTIONxiL CONVENTION OF VIRGINIA. that there has not been as much effort, as much self-denial and as much Christian endeavor to erect that edifice, on the part of the city congregation, as it takes to erect a less handsome one on the part of a country congregation. I think that any gentle- man who has had any experience with the contributions for charitable and religious purposes in the city will understand that as much draft is made upon the Christian people in the city for the purpose of creating and maintaining the religious instrumen- talities as is made upon the poorer people in the country. I have lived in both communities. I have known of the contributions of the Christian people in the country and I have likewise known of the contribution of similar classes of people in the city; and where ten dollars is given in the country probably two hundred and fifty dollars is required to be given by the person similarly situated in the city. Every handsome stone and every handsome ornament in a Christian church in the city represents self-denial just as much as the plainer edifice in the country represents self-denial. There is as much effort on the part of the Christian preachers and on the part of Christian women and on the part of all religious co-workers in the city to maintain what is in accord with the requirements of modern practices in the cities in religious institutions as there is in the country. The demands for charity are immensely greater in the city. These very people that are maintaining these hand- some churches in the city are sending their contributions of charity to less favorable communities. I am prepared to say that as much effort is being made on the part of the Christian people in the cities to-day to do what they are doing for the good of reli- gion, as is required of the people in the country to do what they are doing. The whole matter is relative. It seems to me that there is no such distinction between religious bodies as to justify a Constitutional Convention in saying that one is rich and the other is poor. The question is wliat are they doing relatively to their means? I do not be- lieve that there is any distinction between what ar known as the wealthy congregation and the poor congregation in that regard. I shall therefore vote against making any such discrimination. I am willing to say that the church parsonage in the city, which is reasonably necessary for the occupation and com^fort of the minister's family may be exempt from taxation, just as I am willing to say that the plainer edifice suitable to the needs of the country pastor in the country may be exempt; but to say that there shall be this distinction between them seems to me to savor of the grossest injustice. I am very sorry that my friend from Russell (Mr. Stuart) has accepted the amendment offered by my friend from Augusta (Mr. Braxton). Mr. Braxton: When I made the suggestion just now my friend from Russell, act- ing without mature reflection, accepted the amendment. He states to me now that Ke does not desire to accept it, so I will withdraw the amendment for the present and reserve the right to introduce it later on. Mr. Hamilton: On behalf of the committee, I hope that you will not vote for the amendment of the gentleman from Russell. This matter has been very carefully and fully considered by the committee. I do not pretend to claim that the committee is Is omniscient and allwise; but the belief of the committee was, and I believe the facts sustain it, that whenever a preacher is given the use of a parsonage it is reckoned as a partoof his salary, in dollars and cents. He pays an income tax upon his limited salary, and there is no reason why the dwelling house, which is given to him as a part of his salary, should not pay taxes, just as any other property in the State does. It is a fact, as I am told by all the church members that I ever talked to, that if the minister of any church is furnished with a residence it is counted as so much money, and is charged to him as a part of his salary. As I understand it. when a church has a parsonage, it is nearly always able to give a better salary than one which does not have a parsonage because the house is thrown in as a part of the salary. It is a part of the salary, and nothing more, nothing less. I do not believe that the church members I have talked to in the city think it is DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 2691 right to exempt parsonages from taxation. They believe that the houses devoted exclusively to religious worship should be exempt, but they do not ask any more than that. I am told that very few churches in the city of Richmond have parsonages and furnish them to their ministers. If we adopt this amendment the result will be that there will be discrimination. It will be an inducement to the churches to buy realty, and take it out of the taxable list, and by so much reduce the revenues of the State. There is one view in which it seems to me an exemption should be made. If you treat the preacher as a teacher, and you exempt the house of a professor of an educa- tional institution. I think there should be no discrimination made, and that you should exempt the residence also of the preacher. But there certainly should not be unlimited exemption. If this exemption should be made, there ought to be a limit placed upon the amount of property to be exempt. I do not think there is any difference in principle, whether the parsonage is a small one or a large one, whether it has been gotten together by the efforts of the blessed women, who are very poor, or by other people. I believe it is all wrong. I believe, however, that we should not have the exemption unlimited. There is a possibility that this thing may grow to very serious proportions. Some people are getting very wealthy in this country, and they are disposed to endow churches largely. They are disposed to give them money to build enormous churches, and expensive buildings to be connected with those churches. Every time that is done, you take some- thing away which ought to contribute to the expenses of the government. There ought to be a limit to this exemption. I believe that no amendment without a limit with respect to these parsonages ought to pass. Mr. Meredith: I have just one word to say to the committee. Representing, as I do, the city which has perhaps some of the largest parsonages in the State, and which are more valuable than those in other sections of the State, I want to say that I am heartily in favor of the committee's report. I believe you will find in this city as many parsonages of considerable value as you will in any other portion of the State. You are not making any discrimination when you say any church or any house of public worship shall be exempt. You put them all on the same footing. But when you add that the residence of the pastor or minister of the congregation shall be exempt, it is the rich congregation which gets the benefit. The congregation that can afford to buy a house gets a benefit over the congregation that is unable to buy one. I say that is all unjust discrimination. It is a discrimination in favor of the wealthier congregation. That is the effect of the amendment offered by the gentleman from Russell. I know it can be said that the parsonage helps to pay the minister's salary, that it helps the church in that way. But you see, and I call your attention to the fact, that when you allow the parsonage to be relieved from taxation you are giving the advantage to the wealthier congregation over the one that cannot afford to pay for its parsonage. I respectfully submit that you ought to put them all on the same footing. Say that a church, no matter what it may be worth, shall be exempt, but that the parsonage, no matter what it may be worth, shall not be exempt. If you think you can pay for a stone church in which to worship, we will exempt that. If you are only able to pay for a wooden edifice in which to worship, we exempt that. Whatever it is, we exempt it simply because it is a place in w^hich you worship. We put you all on the same footing. But when you add to that another piece of property, you are giving to those who can afford to pay for the additional piece of property an advantage over those who cannot afford to pay for such a piece. I say that is not fair, and that it is not necessary. We ask you to approve the committee's report, as we think we have been as liberal as we ought to be. Mr. Dunaway: Mr. Chairman, when this matter was first introduced, I had great doubt in my own mind as to how I should cast my vote. On reading over the report of the committee, soon after it was printed, I noticed that parsonages were not exempt. I 2692 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. had a conversation with a member of the committee upon that subject, and my mind was still undecided upon the question. I said that I, at least, would not introduce an amendment to this effect. Ever since the discussion began this morning I have had some hesitation about the matter, but I have at last decided that I will give my vote to the amendment that is now pending. Perhaps I was influenced by casting my thoughts back to those humble parsonages in the county which I have the honor to represent. I suppose that what is true of them is true of most of the property of that character in the Commonwealth. I know they were not bought without great sacrifices on the part of the people who bought them. I know, at the same time, while they are given as part of the salary of the minister of the church who occupies them, that those ministers even with that help, find it very difiicult to live upon the small salaries which they receive. From that reason I have determined that I will vote for this amendment. I am not influenced in this matter by the fact that I am a minister of the Gospel. I have never forgotten for one moment, while I have been a meraber of this body, that I am a citizen of Virginia, and that I occupy here a double position; that I can stand here on this floor as a layman, considering the interests of the State as well as any man upon this floor. I shall vote to exempt our houses of worship from taxation, not because they are connected with religion. It is not the part of a secular government to support religion. I shall vote for it for the same reason that I vote to throw a safeguard around the Christian Sabbath, not because it is the Christian Sabbath, not because it is a time when the people may have religious worship, but because the maintenance of this one day is necessary for the prosperity of the Commonwealth, in order to better the economic conditions of the people of Virginia. It is necessary for the health of the people, and to the material prosperity of the State. That is the ground upon which we base our demand for the statutes in regard to the Christian Sabbath. For the same reason I will vote to exempt our houses of worship from taxation, not because they are teaching religion, but for the reason that it is a necessity for the secular government that there should be religion, in a certain sense, which, if not maintained and fostered, is still recognized and looked favorably upon by the government. We may not all be members of the same Christian Church, but there is no man in this Convention, and there is no man in the world who is not religious. He may not be religious from your standpoint, but man is a religious animal. States cannot flourish without religion. This has been recognized by Greece, by Rome, by Egypt, by Babylon, and every secular power that has existed upon the fact of the earth. It is for the wel- fare of the State, for the good of the people, and for the peace and prosperity of the community that these institutions should exist among us. It is for the material welfare of the people, as a police powder and educational force, a force that makes against crime in the Commonwealth, that we should look favorably upon these institutions, and upon these houses of worship. For these reasons I shall give my vote to exempt parsonages, because they are along the same line. If we could imagine what will be the condition of the Common- wealth with regard to crime with regard to civilization, with regard to the very life of the State without the influence of the churches and of religion, we v/ould recognize the fact that these houses of worship should be exempt. If we could see how we would relapse again to that from which we came, how the very civilization of the Common- wealth is built upon the religion of Jesus Christ, it seems to me it would influence us, not only to exempt the churches from taxation, but- also to exempt the parsonages, which are a help to the religious congregation in the support of the minister, and which go to make up a part of his salary. I said I had some hesitation upon this subject. My mind is not entirely clear upon it now. But, so far as I can see the merit of the case, I shall give my vote for the amendment to exempt the parsonages of the churches from taxation. Mr. Thornton: Mr. Chairman, I promise not to detain the committee five minutes with v/hat I have to say. I would not now undertake to trespass upon your time if DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 2693 I did not feel the greatest interest in the amendment that has been suggested by the gentleman from Russell (Mr. Stuart). It, has been my pleasure to support, I believe, with a single exception, this admirable report of the Committee on Taxation and Finance. But in this particular I beg leave to differ from them. One reason that has been assigned here by the gentlemen who advocate the adoption of this report is that you are discriminating, that you are saying to the churches who are able to buy or build a parsonage, they may be exempt from taxation, while to the poor church you say no such exemption shall be extended. Ah, sir, that is one of the very reasons why I think this committee should help these poor churches, and say to them: Go to work, and when you have succeeded in building up a little house, humble though it be, in which your preacher may live, we will help you by relieving you from the burden of taxation. You gentlemen who live in the country know hov/ these rectories and parsonages are built. You know how the good v/omen of the community go about the building of them, in many cases depriving themselves of those things which are almost the neces- saries of life, in order that they have a shelter for their preacher, humble though it may be. For that reason I say that, instead of discriminating against these people, you are encouraging them to build rectories, which are actually necessary in order that they may select preachers and have some one to administer to the sick and to bury the dead. Another reason assigned her for not exempting these parsonages is that, if you exempt them, you are drawing a distinction between the city and the country. So far as I am concerned, I am willing to exempt from taxation the parsonages in the cities, because the people of the cities have probably gone to exactly the same trouble and have done the same v/ork that the country people have in order to obtain their parson- ages. When you go back to your people and say to them that you have exempted the houses in which the college professors live from taxation, the houses in which the officials of these schools live, but that you have not seen fit to exempt the building in which your preacher lives, it will be an explanation that will be hard to make. I pray and beg that this committee will not go back to the people and say that we have failed to exempt from taxation these parsonages which are an adjunct to the church. It has been contended here that you are not relieving the congregation, but are relieving the preacher. But if you exempt the house from taxation you are relieving the poor people to the extent of that exemption, and are raising the salary of the preacher. You are not relieving the preacher, but even if you did, I will say that, not only are the ministers poorly paid, but, in most instances, they are unable even to get the amount tliey have been promised. Year after year that preacher, when the year comes to an end, has to surrender a part of the meager salary that was offered him, simply because the poor people in the community have been unable to raise it, without great deprivation. For those reasons I hope this committee will not, for one instant, undertake to put a tax upon the building that are occupied by these ministers of the Gospel in the cities and in the country. Mr. Stuart: There is necessarily involved in the amendment already offered a further amendment in the last line of subsection D, line 13. I move to amend by striking out the last three words in that line " for public worship." The amendment was agreed to. The chairman: If there are no further amendments to this sub-section, the Secre- tary will read sub-section F and G. F. Building with the land they actually occupy, and the furniture and furnishings therein, belonging to any benevolent or charitable association and used exclusively for lodge purposes of meeting rooms by such associations, together with such additional adjacent land as may be necessary for the convenient use of the buildings for such purposes: and G. Property belonging to the Mt. Vernon Ladies' Association of the Union. 3694 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Mr. Brown: I desire to offer, the following amendment, which I hope will be accepted. After the word "to" in line 51, insert the words " the association for the protection of Virginia antiquities, and to the Mount Vernon Ladies' Association of the Union." The Chairman: If there is no objection the amendment will be considered as adopted. Mr. Blair: Mr. Chairman, I desire to offer an amendment which I ask the Secre- tary to read. The general Assembly may exempt property owned by ex-confederate soldiers who were permanently disabled in the service of the Confederacy. I Mr. Blair: Mr. Chairman and gentlemen of the committee, I offer this mendment, following up a resolution which I offered very soon after the Convention convened. When that resolution was offered I could not tell hov/ many beneficiaries there would have been under this exemption. I expect it is considerably decreased by this time. I think it is very apropos where we are exempting certain properties under this Section 16, that we should consider this amendment. It strikes me that it is a little hard to require the men who were incapacitated in the service of their State to pay to help support the State when they are unable, physically, to do so. Gentlemen, the thought has occurred to me this morning that this is the first con- stitutional body that has ever been in a position to help the confederate soldier. Thirty years ago the framers of the Constitution were not so inclined. They were not in sym- pathy with the old soldier. Thirty years hence, in the course of nature, the old con- federate soldier will not need constitutional aid or recognition. I offer this amendment now in Committee of the Whole, and I shall follow it up in Convention, if it is voted down here. I do not propose to deliver any eulogy on the old confederate soldier. He needs no encomium from me. He wrote his name in letters of blood upon his country's banner, and in letters of love upon the hearts of his countrymen. I offer this amend- ment which provides for leaving it to the Legislature, if they see fit, to exempt the property of the old confederate soldier. Mr. Hamilton: Mr. Chairman, the committee, I am sure, can not accept the amend- ment. We hope it will ve voted down. The confederate soldiers are the last persons who would ask for such an amendment. The amendment was rejected. Mr. Withers: I would like to ask the attention of the Committee on Taxation and Finance to two clauses in their report. This is a matter which is worthy of the atten- tion of the Committee of the Whole, and I hope I can detain them for a few minutes. Sub-section F, from lines 44 to 50, inclusive, exempts from taxation buildings with the lands they actually occupy and the furniture and furnishings therein belonging to any benevolent or charitable organization, and used exclusively for lodge purposes or meet- ing rooms by such associations, together with such adjacent land as may be necessary for the convenient use of the building for such purposes. Beginning with line 59 is this provision: Nothing contained in this section shall be construed to exempt from taxation any person, firm, association or corporation, or their property, who or which shall expressly or impliedly, directly or indirectly, contract or promise to pay any sum of money or any benefit on account of death, sickness or accident to any of its neighbors or any other person. I hope, Mr. Chairman, that I may have the consent of the Committee of the Whole to call attention to just what this does. I appreciate fully the purpose of the com- mittee. I have no criticism to make of them, so far as their actions are concerned. Sub-section F exempts such orders as Masons and Elks from taxation. The latter provision will prevent the exemption of the actual house and grounds used and occupied DEBATES OE THE COXSTITETIOXAL COXTEXTIOX OE VIEGIXIA. 2695 for lodge purposes or meeting rooms of such orders as the Odd-Fellov:s and Pvthians. I am a member of the Odd-Fellows. The Odd-Fellows and Fythians have what they call sick benefits and they bury the members of their order who are not able to be buried by their own families. There does not enter into either the sick or death benefits, if I may so style them, the slightest desire to earn a dividend or to make a profit. It is actually a charitable and benevolent work done in that particular way, just as the Mason contributes a direct sum by a vote of the lodge, and as the Elks contribute sum by subscription taken up in the lodge without knowing the purposes for which it is going to be used. So the Odd-Fellows and Pythians and possibly the Junior Order of United American Mechanics accomplish a like charitable purpose by assessments, if the dues are not sufficient for the purpose of paying to a man v^'ho is sick and disabled a weekly benefit, and to enable a man who is v%-orthy and respectable to be buried without an undue burden upon his family. I want to make it plain that I do not in an^- way question the purpose of the com- mittee. I know exactly what they intended to reach'. I believe this provision ought to reach just such organizations, associations or societies. I offer no amendment because of the fact that I thought possibly the committee might suggest a remedy. It does seem as though they might provide a method whereby the two organizations that I know accomplish the very highest possible good to their fellow men should not be put under the burden, while two similar organizations, simply because they happen to work out their charity and benevolence in a different way, escape the burden. I am not asking for the exemption of such organizations. I am simply calling attention to the hardship that this clause will work upon two orders, while it entirely exempts two others. I want to say right here that there is no order in the world, there is no association, corporation or set of individuals in the world that reaches right down into the very rank and condition of men who need charity and help and benevolence to a greater extent than this order of Odd-Fellows. Its member- ship consists largely of the laboring men of Virginia. Its charity goes out to them when they are disabled in their works, when they are stretched upon their beds by reason of accident, by a fall from a house, by being ground under an engine, by being blown up by an accidental explosion. It goes out to them and by a weekly benefit enables them to keep the wolf from the door and sustain their families during their temporary or permanent disability. I have known of instance after instance where men of the highest character, men of the very highest traits of citizenship have had accidents to happen to them by which their earning capacity was absolutely destroyed, and by the system of weekly benefits in this order these men were kept from being absolute objects of public charity. If the question of a dividend or profit entered into the matter I would net take up the time of this committee to call the matter to its attention. If it had any other purpose in the world than to stretch out to the needy and deserving fellow-man the hand of charity, I would not take up your time to discuss it or call your attention to it. But I know from personal observation and knowledge, I know from personal contact with men who belong to that order that it reaches into the ranks of life where its work can be most effectively done. The Chairman: The Chair will state that the question before the house is a motion to strike out Section E and F. Mr. Braxton: My opinion was to strike out all of Section 16, beginning with line 21 which covers sub-sections D, E. F, and G. and also covers the portion to which my friend is now addressing himself. Mr. Withers: Mr. Chairman, I simply desire to call the attention of the committee to this hardship upon these two orders. I thoroughly understood the object of the committee and I approve of it and I will vote for it. But the two contradictory pro- visions operate as a bar so far as these orders are concerned while it exempts two equally worthy and commendable orders, the Masons and the Elks. As I started out to say, from my own personal knowledge as a member of the Odd- 2696 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Fellows and from my own personal acquaintance with the men who compose that order I know that the hand of charity and benevolence reaches out to those men who best deserve and most need it. If the principle of benevolence and charity to your fellow-" men is in any way to receive the sanction of this Convention by being exempted from taxation I know that there is no finer manifestation of the high trait of self-sacrifice, of benevolence and of regard for the welfare of our fellow-men than is manifested in this order of Odd-Fellows. Mr. Meredith: The object of Section 7, to which you referred, which relates to death benefits and insurance is for the purpose of protecting the Commonwealth against a lot of pretended benevolent associations which are at work in this State without paying taxes. If you allow any one to work under that provision who does pay benefits on account of death or any sum of money on account of accident to its members you would leave the door open for these fake insurance companies to do business, just as you are now. Mr. Withers: I am very much afraid you would, unless you specify them by name. We might possibly meet it by putting in a provision that they should not be exempt except where such insurance or benefit was not the subject of profit or for the purpose of declaring a dividend, but was for pure charitable and benevolent purposes. Mr. Braxton: I do not wish to take up too much time of the Convention in con- nection with the motion which I have made to strike out Section 16, beginning with line 21; but there are some few considerations in this connection to which I would like to direct your attention. In the first place it seems to me, Mr. Chairman and gentlemen of the committee, that it is a wrong principle. I do not mean that it is morally wrong but that it is economically wrong for the government to make appropriations for or compel its citizens to contribute in any way to the support of anything that it does not control or supervise. That has been recognized by this body heretofore in a provision, which has been already adopted, that no appropriation shall be made for the benefit of any society or institution that the State does not control. Nobody knows how the money so appro- priated is spent. I submit that the exemption from taxation is no more or less than a public contribution to that extent, and an appropriation of public money to that extent for the benefit of the institution in whose favor the exemption is enacted. But, Mr. Chairman and gentlemen of the committee, that is but a small part of the objection, because it can be well said that there is no rule without an exception and that this is a legitimate exception to the rule. The great difficulty, Mr. Chairman, is the absolute impossibility of providing exemptions of this sort without making unjust discriminations. We have seen that illustration here to-day. You have got to do one of two things. You have either got to use such general language that you will throw the door open to frauds of all kinds, or else you have to make unjust and invidious dis- tinctions and discriminations, frequently by name, exempting this concern and not exempting that. I say, in the first place, that whenever the institution which you are going to favor with an exemption is not absolutely public in its character the exemption is wrong. Every tax that we exempt imposes that much more tax upon those who are not exempted. As a member of this body very clearly said in conversation with me this morning, the man who gets more than his share of the pie takes away from somebody else and makes him get less than his share. Mr. Chairman and gentlemen of the committee, if you are going to exempt anybody you are practically making you and me and Jones and Robinson and everybody else pay taxes which we ought not to be required to pay. You are compelling us, nolens volens, tot contribute to an institution, unless it is public in its character when we have no means of participating in the benefits of it. I am not a member of the Masonic fraternity; but from all that I have ever heard of it I imagine it is a most excellent and commendable order. But why should I be made to pay the tax of that order when it will not permit me to come inside of its door. It is wrong in principle. So with the Odd-Fellows and so with tlie Pythians and so DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF VIRGIXIA. 2697 with every other institution that jou may mention that is not free and public. To that extent the churches are, I believe, distinctly different from anything else, because any man that behaves himself with decency can go inside a church and participate in the benefits of that organization, if he chooses to do so. Xow, Mr. Chairman, when you undertake to provide for these exemptions you will find what these gentlemen have found this morning, that there is no general principle which you can enunciate upon which you can base your exemption that will not permit of all sorts and kinds of frauds and deceit, unless you pick them out and exempt them by name, as you have done the Young Men's Christian Association. I submit to you that is not proper. How do we know that there are not other organizations of almost identically the same character? If they do not exist to-day, how do we know that fhey may not exist to-morrow? How can we defend ourselves when we go before the people and say, for instance, that the Young Men's Christian Association has been exempted from taxation, but the Young Women's Christian Association has not been exempted from taxation. You cannot apply any principle to it. As my distinguished friend from Dan- ville has just pointed out to you, if you undertake to exempt benevolent associations, you throw open the door to every kind of fraud and swindle under the name of a bene- volent association, which are no more or less than swindling insurance companies in disguise. And in your attempt to exclude the swindling associations you exclude from your exemption two, certainly, of the most meritorious benevolent bodies in this coun- try — the Odd-Fellows and the Pythians. My friend also suggests that the Junior Order of American Mechanics is included, and, for all I know, there may be a dozen others. Mr. Meredith: It does not exclude the Junior Order of American Mechanics. Mr. Braxton: It is immaterial, for my purpose, whether it excludes them or not. There may be dozens of others. We are embarking upon a line that cannot be defended in logic or reason, and we are really doing no one any particular good. You do not exempt anything but the lodge room in which they meet, and that only provided there is nothing in the building but that lodge room. How many buildings are there in the State of A'lrginia which contain nothing but the lodge room? Under the provisions of line 67, and following lines, if any portion of the building is leased or rented, or used by any one else, the whole house must be taxed. Go around through this country and find how many lodge rooms there are which have separate and independent buildings, each one of which contains nothing but the lodge room. If it has a store do-^Ti stairs, a dwelling house up stairs, or anything in any part of it. the whole building must be taxed. If you do not do that you enable the very thing to exist which has been a crying evil, in this country, namely, that under the guise of having a lodge room, a house can be established that will yield a tremendous revenue by having a hotel in it, by having stores in it, and other things of that sort, and paying no faxes. In my own town nearly one-third of the real estate is exempt from taxation to-day; and yet it costs this government just as much to police that property and protect it rights in the court of the municipality, to pave around it and give it fire protection as it does any other property. But it does not contribute one cent to the government. I say that we are reduced to this — we must make all property pay its own taxes, and if we undertake to make any exemptions, we have got to throw the door open and let in endless frauds. If you do not do that, you make the most unjust and invidious distinctions between the various people who are contending for the exemption. You want to exempt educational institutions. I tell you, gentlemen, that even under the disguise of educational institu- tions frauds are perpetrated upon the Commonwealth, and I do not see how you can prevent it. My attention has been called to an instance of this sort. Five men wanted to run a school, and wanted to run it for their own profit. They got up the money necessary to buy the school building and they secured that monej^ by issuing bonds upon the property. They organized a so-called ellemosynary institution for educational purposes without capital stock. They bought the property and borrowed the money from, themselves to pay for the property, and issued bonds at 6 per cent. They are 170 — Const. Deb. 2698 DEBATES OF THE CONSTITUTIONAL CONVENTION" OF VIRGINIA. employed as president, secretary, general manager and professors. Every dollar of the profits goes into their own pockets, in the shape not of dividends on stock, but for sal- aries for their own real or nominal services, and the State is defrauded of her revenue. I do not see how you can work this matter in such a way as to prevent that kind of fraud, unless you say that everybody in this country, to get the benefit of govern- ment, must contribute his due share to the support of the government. I am willing to exempt government property. Of course the government would not tax itself. By government property I mean also the property of municipalities. I am willing to exempt the churches in which the meetings are held, and the house in which the preacher lives. I think they stand on a different ground from the others. I think the fact that a church is not a close corporation but is open for every man to come into it, is one thing which distinguishes it from these other organizations. I think the public sentiment against the taxing of property that is appropriated actually and exclusively to religious purposes is a proper sentiment, and one that we ought to respect. If we had to enforce the collection of taxes on churches, we would be forced to shock the consciences of everybody in the community by selling the church for taxes. Therefore I am in favor of exempting the church and the house of the preacher from taxation. I am in favor also of exempting burying grounds. In the first place, there is no way of perpetrating fraud as there is if you exempt these other associations. In the second place the revenue that would be derived from taxing them is infinitesimal, and, in the third place, it would be absolutely shocking and horrible to sell anybody's grave to pay the taxes on it. But when you have exempted government property, church property, including the parsonage, and graveyard property not owned by a corporation for profit, I believe Mr. Chairman and gentlemen, that we Tiave gone as far as we can safely and logically go in this line? I know that some of the gentle- men think this would have been done heretofore if a strong public sentiment in favor of these exemptions had not existed; but I believe there is enough common sense and patriotism in the people of this country to recognize the justice and wisdom of this matter. I believe that the amount of taxes that would be placed upon these people would be exceedingly small. I cannot believe there is any material part of the people of this Commonvvealth who would undertake to antagonize a Constitution otherwise acceptable to them, because it had in it what every man, I think, must consider is right and just. I trust, therefore, it will be the pleasure of this committee to strike out that part of this section, beginning in line 21, and leaving in it only the exemptions I have referred to, public property, church property and burying grounds. When I say church property I mean the buildings necessary, and the land to go with it. Mr. Pedigo: I hope the amendment of the gentleman from Augusta will prevail. I believe in carrying out the original decree of Caesar Augustus that all the world should be taxed. I believe that the taxes should be assessed strictly ad valorem. I believe it is wrong to exempt the residence of the preacher or the residence the the preacher lives in. If the preacher lives in the country and lives in his own cabin, he has to pay his own taxes, and it is an unjust discrimination against those who live in their own houses. I hope the amendment to strike out this whole section will prevail. Mr. Hamilton: Mr.' Chairman I agree with the gentleman from Augusta; but, while I agree with him with respect to exemptions, I think that we must look at things prac- tically in this world. It would not do at all, in my judgment, for us to undertake to tax certain things in this Commonwealth. As I stated this morning, we are yet too full of prejudices and too full of the idea that what has existed so long with respect to certain things should continue to exist, to enable us to carry out that idea at the present time. I think it would be very imprudent and very impolitic for the Convention to carry out and approve the motion of the gentleman from Augusta. Theoretically I think he is right, except that he does not go far enough to fully carry out his theory. But I feel DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF VIEGIXIA. 2699 that it Tvould be imprudent for this Convention to adopt that view, and I trust the Con- vention will sustain the report of the committee on this subject. The report was pre- pared with the greatest care. We know, at the same time, that it is not perfect. It is a very difficult subject to get even approximately perfect. :\Ir. Turnbuir. I have adopted the rule, since I have been in this Convention, of voting for what I believe to be right regardless of consequences. I believe that the amendment of the gentleman from Augusta is the correct thing to do and I believe it is right from every standpoint. I am going to vote to support the amendment. This question of the exemption of people from taxation has been the • one thing that has created more dissatisfaction than anything else in the State of Virginia. In my town one-half of the property is exempt from the burden of supporting the town and it rests upon the balance of it to bear the burden, and they are getting the benefit of the pro- tection that is paid for by others. I say it is not right. I say that the principle enunciated by the gentleman from Augusta is absoltitely right, that I should not be made to contribute to the support of an institution that I do not choose to contribute to, and that is the principle of exemption from taxation. Kas a school that is supported by contributions a right to be exempt from taxation and make me contribute to its support whether I want to or not? I say the principle is not right and therefore I shall vote for the amendment of the gentleman from Augusta. :Mr. Meredith: On behalf of the committee I have to ask that the amendment offered by the gentleman from. Ai^giista may not pass. It is all very well to have a general principle. It is all very well to be guided by principle, but we surely ought to recognize whether the principle is applicable to the circumstances under which we live. If the gentleman from Augusta would carry his principle to the full extent he could not justify the taxes laid upon the people for the public schools of the State. You are taking the money out of my pocket to pay for the education of somebody else. There is but one justification for it, and that is the justification which comes from the fact that I am benefited by the spread of education in the community in which I live. That is the only justification you can have. I derive ( indirectly, a portion of the benefit because the tone of society is elevated. That is the only theory upon which you can justify the free school education; yet it is a sufiicient justification. Mr. Braxton: I would suggest that there is a further justification in that the public schools are managed and controlled by the State and in that way are distinguished from private institutions, and, further, if you do not choose to send your children to those schools it is your own fault. Mr. Meredith: I was going to say that the only principle upon which you can justify the principle of taxation for the benefit of public schools is upon the theory of the general benefit which the public derives by reason of the fact that the great mass of the citizens are elevated by education. Now Mr. Chairman, that being a good reason for the establishment of public schools let us see if the same reason does not apply to the exemptions that we give here, except that we will not have public management of the institutions. That is the only distinction between them that I can see. If you say it is absolutely necessary to have all the charitable educational institu- tions managed by the public authorities, I will agree to your proposition. But I would like to see any man maintain that proposition. If the gentleman can maintain that proposition I will vote for his amendment; but I am not prepared to admit that there cannot be any benefit conferred upon society in general by the efforts of individuals, the organized efforts of individuals for charitable purposes. I believe that far greater good is done by the public authorities as to charitable institutions. Mr. Braxton: Does not my friend think that private charity aggregates a great deal more than those of the charitable and benevolent associations? I understood my friend to say that all private charity is for the public good, whether it is controlled by the government or not. I wish to ask him if that observation does not apply with equal 2700 DEBATES OF THE CONSTITUTIONS^ AL CONVENTION OF VIRGINIA. force to the charity of individuals as well as to the charity of the secret societies, and if the charity of individuals does not aggregate vastly more than the charity of secret societies? Mr. Meredith: If you could show me that an individual had set aside $20,000 or $50,000, the interest of which was to be used for the benefit of charity or the benefit of education, I would be willing not to put tax on it. But that is not done. When you come to the property of these associations, they are set aside only for the purpose of charity or education. I ask, Mr. Chairman, if we are now in a condition, financially, to undertake to tax the property which we ask shall be exempted? What does the gentleman propose to tax? You are sitting now, at this moment, in a building that was erected by charitable contributions. This building in which you are now sitting was erected by men in this city putting their hands in their pockets and giving their money for the benefit of mankind simply in order that the young men who work all day long may have an opportunity at night to get an education. If you undertake to tax it, you v/ould have to put quite a large tax on it, as the property is valued at forty or fifty thousand dollars. Why should it be taxed? It comes into competition with nobody. There is no pro- ductivity attached to it. It does not enter into any business competition. It does not deprive anybody of the opportunity to obtain a livehood. It is simply devoted to the benefit of mankind. Tell me why that property should be taxed upon any theory. There is no profit derived from it. It is merely devoted to the benefi.t of mankind in general. It ought not to be taxed unless it is used for private benefit, by which either an actual profit or an expected profit in the future will come from it. What is proposed by the gentleman from Augusta? To strike out all of this sec- tion after sub-division C. My friend goes further than he intended. If he will examine sub-section E he will find that it refers to religious and charitable institutions; and that the institutions mentioned in that sub-section are just as much a moral benefit to man- kind as those in sub-section C. He will find there in connection with the Young Men's Christian Associations other institutions, such as orphan asylums, hospitals, etc., all devoted to charitable purposes. There is no reason why they should be taxed if you do not propose to tax the churches. The only section that he could ask to be stricken out is sub-section D; and then you would be striking at educational institutions, which are not conducted for profit. The only justification that has been given by the gentleman from Augusta, as well as by the gentleman from Brunswick, is that there is a possibility that some evil will creep in by reason of some one committing a fraud. That possi- bility we have avoided as far as possible by the restrictions set forth with great care in this section. To the gentleman from Danville (Mr. Withers) I simply want to suggest that we had the same difficulty that he has exeprienced" with reference to the beneficial orders. It is absolutely impossible to undertake to draw any provision by which we can exclude the sham insurance companies and at the same time exempt those benevolent orders to which he referred, when they confer any benefit in the nature of sick benefits or death insurance. We, therefore, had to provide that if a man derives a personal and private benefit from such an order, it should pay taxes because there is a pecuniary benefit derived from being a member of it. We could not avoid the course recom- mended by us. The Chairman: The question is upon agreeing to the amendment offered by the gentleman from Augusta. The amendment was rejected, there being on a division ayes 17, noes 39. On motion of Mr. Fairfax the committee rose and the president resumed the chair. On motion the Convention took a recuess until 4 o'clock P. M. AFTER RECESS. The Convention reassembled at the expiration of the recess, the President in the chair. DEBATES OF THE COXSTITUTIOXAL CONVENTION OF VIRGINIA. 2701 TAXATION AND FINANCE On motion of Mr. Fairfax the Convention resolved itself into Committee of the Whole for the further consideration of the report of the Committee on Taxation and Finance, Mr. Aj^ers in the chair. The Chairman: The business before the Committee of the Whole is the further consideration of the report of the Committee on Taxation and Finance. If there are no further amendments to Section 16 the Secretary will read the next section. Sec. 17. No debt shall be contracted by this State except to meet casual deficits in the revenue to redeem a previous liability of the State, to suppress insurrection, repel invasion, or defend the State in time of war. No scrip, certificate, or other evi- dence of State indebtedness shall be issued except for the transfer or redemption of stock previously issued, or for such debts as are expressly authorized in this Constitu- tion. Sec. 18. The credit of the State, or of any county, city, or town, shall not be, directly or indirectly, under any device or pretense whatsoever, granted to or in aid of any person, association, or corporation; nor shall the State, or any county, city, or town subscribe to or become interested in the stock or obligations of any company, association, or corporation, for the purpose of aiding in the construction or maintenance of its works; nor shall the State become a party to or become interested in any work of internal improvement, nor engaged in carrying on any such work; nor assume any indebtedness of any county, city, or town, nor lend its credit to the same. Mr. Brown: Mr. Chairman, I desire to offer the following amendment, to go in at the end of this section: But the words " any work of internal improvement" shall not be construed to include the public roads of the Commonwealth. I understood from the committee that the idea is that those words did not include public roads. Mr. Boaz: I think that amendment is objectionable. The members of the Con- vention will recall the case of our public debt, which grew up just in this way. It commenced with turnpikes, and then went on to canals and then to the construction of railroads. This is just a recurrence to the same conditions. We have gotten into tolerably good shape now, and are looking around for somewhere to put the little money that we have, and the first thing we know we will have a great big debt piled up on us. Mr. Brown: I do not think the objections raised by the gentleman from Albemarle are necessarily tenable here, because, in Section 17 there is a direct inhibition against any debt being contracted for any purposes, except as specified in Section 18. There is a prohibition expressly against the State lending itself to the aid of any corporation, I understood that it was the opinion of the lawyers on the committee that the words "internal improvements" did not include the public roads of the State, and if there is any doubt about it, it seems to me that this body ought to set that doubt at rest by saying that the words "any work of internal improvement" shall not be construed to include public roads of the Commonwealth. It seems to me to be desirable that the State should be in a position to give some aid in thi^ matter. I think the reason given by the gentleman from Albemarle (Mr. Boaz) for refusing to adopt this amendment is the strongest reason that could be given for its adoption. Mr. William A. Anderson: I would like to ask the gentleman if he has carefully considered the language of this amendment. I know of public county roads in Virginia, but I do not know of any public State road in Virginia unless it is the railroads, and the railroads are treated under the corporation article as public highways. If this amend- ment is adopted it might throw down the bars with regard to railroad corporations. Mr. Brown: If it did have the effect of throwing down the bars, it could only throw them down to the extent that the Legislature of this State could go, and does 2702 DEBxlTES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. ^tnybody expect that the Legislature would go to the extent of building a public railroad? Mr. Hamilton: Mr. Chairman, I agree with the gentleman from Albemarle. I think it is very dangerous to make such an exception. The State of Virginia has been put to an enormous amount of trouble because of the use of her funds and credit in connec- tion with such improvements. It is unquestionably true that it began with the turnpike companies; but it makes no difference whether you are going to build turnpikes through a company or build them directly by the State. I do not doubt that certain works that have been built by the city of Richmond would have been much less expensive if they had been built for them by a corporation. The State may undertake to build roads, public county roads, in different parts of the State. But then the question would arise where the State money is going to be put to build these roads. The people ought to build these roads in their own localities. I would have no objection to an amendment reading that this was not to prevent the use of convicts in the penitentiary upon the public roads to better them, the same to be paid for by the localities where they are used, that it should not forbid the establishment of the office of State Engineer, whose advice with respect to building county roads might be taken; but I do not think the funds of the State should be used for that purpose. It is no answer to say that you cannot create a debt, under another section that we have adopted, for this purpose. You might create a debt under a section prior to this to meet a deficit in the revenue and you might have an annual deficit in the revenue caused by the State undertaking to build a county road somewhere. I think the amendment is wrong in principle, and I hope it will not be adopted by the committee. The amendment was rejected. Mr. Barbour: Before we leave that section I wish to call attention to a very grave injustice which this provision will occasion in my locality. There is a provision here prohibiting any county, city or town from subscribing to stock of any company for the construction of a railroad. At the last session of the Legislature a bili was passed per- mitting the counties of Culpeper and Rappahannock to vote upon a subscription for the erection of a railroad to run from Rappahannock county down to Fredericksburg. The gentlemen interested in that scheme which was purely a local one, with no outside capital interested in it. have had surveys and estimates made for the building of the road. Mr. Thom: Is there any difference between a case where purely local capital is interested and where outside capital is interested? Mr. Barbour: None that I know of. I want to say that these gentlemen have acted on the faith of this act of the General Assembly and they have furnished this money for the purpose of making the survey and having estimates made, and then expect to have had subscriptions to the stock from these counties. In the county of Rappahannock the vote will be taken on the 3rd day of April. It depends on how Rappa- hannock goes on the question as to what Culpeper will do. If Rappahannock votes for it Culpeper will probably vote for it. I do not think it would be just to cut these peo- ple out of the money they have invested in this enterprise, which is what it would mean — just that much money thrown away unless we can get the local people there to make up the deficit. I hope the committee will be able to make some provision that will cover this case. It vs^ould certainly be a very great hardship upon the people whe are interested in this scheme to be cut up by the roots in this manner. The Chairman: Are there any other amendments to this section? If not the Secretary will read Section 19. Section 19. All taxes, licenses, and other revenue of the State, shall be collected by its proper ofRcers and paid into the State treasury. No money shall be paid out of the State treasury except in pursuance of appropriations made by law; and no appro- priation shall be made for the payment of any debt or obligation created in the name of the State of Virginia during the war between the Confederate States and the United States. Nor shall any county, city or town, pay any debt or obligation created by such county, city or town in aid of said war. DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OF VIEGIXIA. .2703 The Chairman: Are there any amendments to Section 19? Mr. Eggleston: Mr. Chairman, I want to offer an amendment to that section, whici I will ask the Secretary to read. Add after the word "law," in line 5, Section 19. the following: And no such appropriations shall be made which are payable more than two years after the date of the law authorizing the same. The object of that amendment is to require that the moneys paid out by the treasurer shall be paid out under the provisions of the regular appropriation bills passed by each and every session of the General Assembly. That is the rule now, but there are a good many of these appropriations that are paid from year to year, under no appropriation bill, but under what is called a permanent appropriation. Regular appropriation bills are passed every two years; but there are a good manj* payments made out of the public treasury, under what are called general bills, and they are paid whether they are in the regular appropriation bills for that purpose or not. It seems to me that this is a bad principle. In the first place, you never know what the cost of running the State government is. You cannot take the appropriation bills and tell within 8100,000 what the cost of running the State government is. For instance, if you take such things as the State Board of Health. There is a law creating the State Board of Health, and in that law is a provision that, annually, the president of the board shall be allowed to draw out for the necessary expenses of the board a sum not to exceed $5,000. That is annual, and he can draw that money whether you have a session of the Legislature or not, and whether you pass an appropriation bill or not. There are a great many others of the same sort. For instance, take the subject of assessing personal property. In this State it has been the custom, for years' to put into the appropriation bills an item of 820,000 to pay for the assessments of personal property, whereas the actual cost of the work is from 860,000 to $75,000, and the dif- ference between the |20,000, the nominal amount put into the appropriation bill, and the real expense of the item, is paid out by the Auditor, because the law says these commissioners of the revenue shall have a certain percentage of the assessments they have made, as compensation. I think that is wrong. The Legislature meets here and levies taxes to be collected for State purposes. At the same time it undertakes to appropriate money for those purposes for two years, and it ought to appropriate all of it. Not a dollar ought to go out of the public treasury unless it is on a general appro- priation bill or on some appropriation bill passed at stated intervals. Mr. Hatton: Would it not be necessary, under some circumstances at least, to make the time longer than two years? The General Assembly is authorized to sit for sixty days, and it only meets every two years, so that an appropriation bill passed in the first days of one General Assembly, providing for an appropriation, would expire if the appropriation bill succeeding it was passed in the latter days of the next General Assembly. It would certainly be necessary to add something to the two years in order to prevent that hiatus. Mr. Eggleston: The General Assembly could extend the appropriation for ten days if necessary, or it could hurry up the appropriation bills, which would be the best thing tbat could happen, and pass them promptly at the beginning of the session instead of at the end of it. So far as the language of this amendment is concerned. I have no objection to having it changed; but it does seem to me that the people of this State have the right to know what it costs them to run their State govern- ment, and the only way to find it out is to see to it that each and every item shall be put into these appropriation bills. Mr. Eggleston: I have no objection to making any change along that line and 1 will make the amendment read in this way: And no such appropriation shall be made payable more than two years after the end of the session of the General Assembly during which the law is passed authorizing the same. 2704 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Mr. Keezell: I am in favor of the amendment offered by the gentleman from Charlotte because I think the people have the right to know what their government costs them as a whole and in each of its departments. They ought to be able each year, to take the appropriation bill, as passed by the General Assembly, and know that it contains all of the items of costs of the different departments of the government. I know that under present conditions, money is paid out that is not contained in appro- priation bills. I do not say it is improperty paid out because I do not think it is. An act is passed and there is attached to it a salary for an officer or an appropriation for carrying out the act. Some of these things are included in the appropriation bill and some of them are not. You cannot, by getting the appropriation bills and making an examination of them find all of the items of public expense. I will give you an illustra- tion. During the time of our debt settlement there was provided, in the office of the treasurer of the Commonwealth, what is known as a coupon clerk. There was a special act creating this office and providing a salary for the clerk. Each year there was an appropriation for the salary of the treasurer and for the clerical force of his office, and this coupon clerk was not included because he was paid under this special act. Not until three or four years ago was the coupon clerk ever included in the appropriation bill and I do not suppose there were five men in the General Assembly who knew of of the fact that $1,200 or whatever amount the salary was fixed at was paid out to this clerk for clerical service in the office of the treasurer. I will give you another instance. I think you will find somewhere in the Code a provision appropriating $2,000 for certain clerical work in the executive department. I understand that for a great many years the General Assembly thought they were making an appropriation sufficient for clerical service in the executive department and that each year this $2,000 was divided up among those persons whom the Legislature thought were already sufficiently com- pensating. That continued until the recent executive called attention to the fact and asked that the law be repealed, which was done at a recent session of the General Assembly. That $2,000 was not in the appropriation bill but was paid each year and the gentlemen who were supposed to be paid under the general appropriation bill received it. I say that I think the people have the right to know such facts as these. It is nothing more than right that all appropriations and expenditures should be shown on the appropriation bills, so that any one may find out the entire cost of each one of the departments of the government in any year by an examination of the bill appropriating the public revenues for that year. The amendment was adopted. Sections 20, 21, 22 and 23 were adopted. Mr. Withers: I desire to offer this as an independent section. I do not desire to discuss it. I would rather have the committee consider whether or not they will adopt it and let it be settled once for all by the Convention. It can be disposed of in a very short time. The Chairman: The Secretary will report the amendment. Sec. 24. On all tracts of land and lots and the improvements thereon, and all personal property, choses in action, moneys, credit and capital, not exempt from taxa- tion by the provisions of this article, there shall be a tax of 20 cents on every hundred dollars of the assessed value thereof, the proceeds of which shall be applied to the ^support of the government, and a further tax of ten cents on every hundred dollars of the assessed value thereof, which shall be applied to the support of the public free school of the State, provided that after the 1st day of January, 1907, the tax rate upon such real and personal property, choses in action, moneys, credits and capital for the support of the government and for public free school purposes shall be such as may be prescribed by law. Mr. Withers: I want to say, Mr. Chairman, that this section is practically self- explanatory. DEBATES OF THE CONSTITUTIONAL CONVENTION OP VIRGINIA. 2705 Mr. Keezell: You will find that if the tax rate is reduced in accordance with the article which you propose, you will either have to reduce the State appropriation for schools or you will have to increase your rate of tax. You will find that your twenty cents will probably be more than enough for governmental purposes, but that the ten cent rate would be less than is needed for the public free schools. Mr. Withers: My estimate was that this rate would provide for that very emer- gency. The gentleman fro?n Fairfax (Mr. Moore) has a statement from the Auditor himself, I believe, which deals with the increased and the unincreased appropriations. The reason I offer this is that if this Convention has done the work it believes it has done, it has reduced the expenses of the government. The result of this and other reports has been to increase the income from various properties of the State. If the Convention has done the work it believes it has done I believe that the people of the State are entitled to the benefit of the reduction, and that for four years and maybe even for eight years, it is perfectly safe to make the reduction therein specified without in any way affecting the appropriations for schools, public institutions, hospitals, etc. At the same time it will give to the citizens of the State the benefit of the work of this Convention. I merely make this suggestion to prevent taking up the time of the com- mittee. I think it would be wise to permit this section to be printed, and suck criticisms as are desired can then be made upon it, and the whole subject can be settled in Convention without discussing the subject twice. Mr. R. Walton Moore: I think it would be well to print, along with the section offered by the gentleman from Danville (Mr. Withers), a letter from the Auditor of Public Accounts, which contains a statement bearing upon this question. Anticipating that the proposition would be made to reduce the tax-rate, I communicated with the Auditor, and I have here a letter written by him yesterday, which contains some infor- mation that the Committee of the Whole and the Convention will probably desire to have. Before this letter is read, I merely wish to draw the attention of the committee to the fact that the reduction to the extent proposed by the section of the gentleman from Danville will, according to the Auditor's letter, involve a loss of $514,198.99, of the revenue of the State, which, of course, will have to be covered in some way. Without making any motion I will ask the Secretary to read this letter, so that it may go into> the report of to-day's proceedings. Commonwealth of Virginia, Office of the Auditor of Public Accounts. Richmond, Va., Feby. 24, 1902. Hon. R. Walton Moore: Dear Sir: — Replying to yours of this date, the estimate of receipts, annually, made by me for the Finance Committees of each House of the present General Assembly was $3,541,045.43, and the estimate of the annual expenditures, if the same sum be paid for pensions as was paid last year was $3,213,368.53; but should pensioners under the last pension act be paid the pensions named in the act, instead of the sum paid them last year, which was only one-fifth of pensions named in the act, the estimate was $3,376,848.53. The loss in receipts by a reduction in the rate of taxation of 10 per cent, would be $514,198.99. These estimates are based upon the laws now in force. Very truly yours, Morton Maeye, Auditor Public Accounts. On motion of Mr. Fairfax the committee rose and the President resumed the chair. On motion of Mr. Thomas H. Barnes the Convention adjourned until tomorrow, Wednesday, February 26, 1902, at 10 o'clock A. M. DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. WEDNESDAY, February 26, 1902. The Convention met at 10 o'clock A. M. Prayer by Rev. John Hannon, D. D. TAXATION AND FINANCE. On motion of Mr. Fairfax: The Convention resolved itself into Committee of the Whole for the purpose of further considering the report of the Committee on Taxation and Finance, Mr. Ayers in the chair. The Chairman: The business before the Convention is the report of the Com- mittee on Taxation and Finance. The Secretary will read Section 1. I Sec. 1. All property, except as hereinafter provided, shall be taxed; all taxes what- soever, v/hether State, local or municipal, shall be uniform upon the same class of sub- jects within the territorial limits of the authority levying the tax. The Chairman: The question is upon agreeing to the amendment of the gentleman from Petersburg (Mr. Hamilton). Mr. Wysor: Gentlemen of the committee, I will occupy your time but a few moments in discussing the amendment offered by the gentleman from Petersburg (Mr. Hamilton) to Section 1 of the report of the Committee on Taxation and Finance. I am not in tune to speak this morning. I have the epizootic. Epizootic means a distemper. Sometimes people, to be fashinonable, call it la grippe. There is not much left to be said on the question by the two gentlemen from Petersburg. The Cockade City should be proud of her representation upon this floor. They are able; they are eloquent; they are patriotic. I have a great deal of respect for the report of the Committee on Finance. I know that it is entitled to a great deal of weight in this body. I know the gentlemen who compose the committee and their opinions ought to be worthy of great consideration on almost any subject. I cannot help but think, however, that the committee has, to some extent, drummed up a support for its report. I do not mean to criticise that at all. I think, however, they ought to have followed the example of the Corporation Com- mittee, of which I am an humble member, and filed a report that would have gone through the Convention of its own weight and merit, without any previous log-rolling and electioneering. (Laughterl. Now, gentlemen, the present Constitution of this State provides that taxation shall be equal and uniform. The Committee on Finance undertakes to strike that provision out of the Constitution, which has been in it for more than half a century. Taxation shall be equal and uniform. I have examined to some extent these scientific books which were handed me by the gentleman from Richmond (Mr. Meredith) ; but they are too scientific for me. I would rather look at the question in a plain common sense kind of way. I say that equality and uniformity in taxation is a desirable result, and one that must commend itself to every man's judgment. We do not need any scientific w^ork to prove that. The equivalent for taxation is said to be protection. Of course, protection is not equal altogether, but it is as equal as it can be. We frequently hear the expression that citizens are entitled to the equal protection of the law. Well, then, they should pay for that equally. No man should be made to pay a greater rate of taxation than any other man. As a matter of fact, the rich people can pay their taxa- tion much more easily than can the poor people, but that is no reason why you should tax them at any greater ratio. The rich people frequently think and say that the poor people do not pay anything. That is not a fact. The poor people pay as much as the rich people, but it is harder for them to pay their taxes than it is for the rich. I have to grind and sweat and economize to pay my taxes. Does Mr. Rockefeller mind paying DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE VIEGIXIA. 2ro: his taxes? Does Mr. Vanderbilt mind paying his taxes? They can pay their taxes and give millions of dollars to public libraries and charities. So, then. I say all men should be taxed at an equal ratio, so that every man T\-ill contribute, if possible, equally to the support of the government. If you were to leave the Legislature absolutely free in the matter, and leave it unlimited, it would seek to bring about just such a system of taxa- tion as that. All just bodies would undertake to do that. Why, then, put in the new Constitution a provision that they may tax property unequally. Taxation, under the present Constitution, with a provision in it for equal and uniform taxation, is more or less unequal. We have a provision in the present Constitution, and also in the report of the committee, that property that cannot be reached according to value must be reached by a system of license taxes. But still the principle prevades the law that taxation must be equal and uniform. So I think that it devolves upon the committee when it undertakes to change a proposition that has been in our fundamental law for half a century, to show some reason for it, to show vrhy that change should be made. You cannot get a member of the Committee on Taxation to deny the proposition that taxation should be equal and uniform. If they want to sustain that report, they must do it on the ground that the provisions of the report will leave the legislature unhampered, and that under such a provision it can arrive nearer to equality and uniformity-. They should be required to sustain that proposition in order to carry it before the body properly. They provide in their report that there must be uniformity according to classes; that is. that you may tax one class of property if you choose to do it, higher than another class. It provides that you may do that. If they want to bring about uniformity and equality by such a system as that, it is for them to show it. The provision on its face shows that it is intended to bring about inequality. The purpose of the commission is to tax some classes higher than it taxes others. I say it is an unjust system of taxation, if you give the right to tax my sheep any more than you tax another man's cattle. It is unjust if you give the right to tax telephone or telegraph companies any more than you tax the farmer, according to ratio. What right have you to do it? If I put SIO.OOO in a telephone company, that is SIO.OOO; if a farmer puts $10,000 in a farm, that is .SIO.OOO, That is all there is to it. 'My telephone system may be worth more than the sum of Sli'-noo. Well, let them make a proper assessment and then tax us at the same ratio, and there will be equality. But SIO.OOO is S10,000. and that is all there is in it. If I have SIO.OOO and the gentleman from Rockbridge (Mr. Anderson) has SIO.OOO, why. you must tax each of us alike. He may have the power to make more money out of his SIO.OOO. He may be a more discreet man than I. He may be a wiser man than I. Ten thousand dollars in his hands may have greater potentiality than SlO.Ono in my hands, but he is entitled to that. That belongs to him. You have no right to tax his energy and his mentality. So. the whole proposition here, then, is: "Shall we leave to the Legislature the right to make distinction in imposing taxes?" That is the proposition. If you do not limit the Legislature in the Constitution by some provision, it has unlimited power to tax; it can tax just as far as the necessities of the government require. There is no limit to its power at all. except when it goes beyond taxation and gets to the point of confiscation. That is the only limit. You cannot confiscate a man's property-. That is contrary to the ftmdamental principles of Republican government. It cannot take his property bodily and apply it to public uses, but it can tax it to any extent, so long as it stays within the definition of taxation and does not trench upon confiscation. Now. the point is. shall we give to the Legislature unlimited power to do that? It is time that this provision does confine it to a rule of uniformity, so far as different classes are concerned. I do not want to be understood as meaning that I am unwilling to trust the Legislature. You might search the records there from beginning to end of the meetings of the Convention, and you would not find a single place where I have said anything derogatory of the Legislature. It is true, the other day I did vote against returning our thanks to the House of Delegates, but that was because I thought the Convention had asked the House of Delegates for its 2708 DEBATES OF THE CO^TSTITUTIONAL CONVENTION OF VIRGINIA^ cloak, and I thought it was its duty then, as the Bible enjoins, to give its coat also. I did not come here to bury the Legislature. I leave that to the gentlemen who favor quadrennial session. I came here to praise the Legislature. When you undertake to bury people, it is a two-sided game. If I undertook to bury the Legislature, it might bury me. (Laughter.) Now, many gentlemen of the Convention exhausted themselves yesterday in praising the churches. I wanted to, but I could not get in a word of praise, I could not edge a word of praise edgeways. I come here to praise the Legislature. I want to praise the churches too. I did not get a chance yesterday. I believe in the churches. Why, I love the churches; I love all the Young Men's Christian Associations and all of these charitable institutions. I want them all to know that I am going to stand by them; and some of these days it might be that I would want some of them to stand by me. (Laughter.) Now, I say the Legislature is one of the greatest representative bodies on earth. It has furnished a great many great men to this country. I like the present Legislature. They are a set of noble men. They are able; they are eloquent; they are patriotic men. In some respects they are much smarter men than the men in this body, though this body is said to be one of the greatest bodies upon the face of the earth. (Laugh- ter.) Whenever this body seeks to take a recess for any length of time, it discusses for a long time as to whether it will adjourn with pay or without pay. When the Leg- islature wants to adjourn for two months, it simply does so and takes the pay during all that time and says nothing about it. (Laughter.) It is a patriotic body of men. Why, I just noticed the other day that they are talk- ing about extending their session for thirty days without pay, in order to serve their Commonwealth. Now, it may be that when the time comes for their regular adjourn- ment, and in order to give the Constitutional Convention a pleasant place for its labors, it will reconsider the position it has taken of continuing its session for thirty days for the public good, and for the greater public good will adjourn sine die, so as to permit the Convention to occupy the hall of the House of Delegates. Whichever course it takes it will undoubtedly be governed altogether by patriotism. It is a stout body of men. Why, they have got a little giant over there, and he is trying to rearrange the Congressional circuits of the State by main strength and awkwardness. He has actually taken hold of the counties of Pulaski and Wythe by the nape of the neck, as it were, and has undertaken to swing them clear across Giles and Craig and hitch them on to Rockbridge. I do not know what we will do with that little giant unless we get into his confidence, like Delilah did into the confidence of Sampson, and cut his hair off. (Laughter.) Now, if I had the money, I would give every member of the Legislature a gold- headed cane. I would give them a banquet and while they feasted at the board, it it would be under the influence of the sweetest music. If I had my way I would just gather this Legislature, and all other Legislatures, under my wings as a hen gathers her brood, so that whenever they wanted to elect a man to the United States Senate, they would not do so until I did the clucking. (Laughter.) Now, by way of praise, the finest effort I ever heard in that direction was from the gentleman from Russell yesterday, in praising the churches, and he was so convincing that young men in the hall arose from their seats and joined in with the gentleman from Russell. They said they agreed with the gentleman from Russell, man after man. The gentleman from Russell would make a good preacher. He would have a great convicting and converting power. Why, during his speech the gentleman from Mat- thews and Gloucester got up and said that if he could be he wanted to be a preacher. Well, he can be. He can make as good a preacher as he has made a member of this Convention. (Laughter.) He can be an angel if he will be, and I suppose, if any of you would examine behind his arms you would find little stubby wings there, which will grow and after a little while will fall back in long pinions gracefully over his shoulders. He can be an angel, and with the angels shine. DEBATES OF THE COXSTITUTIOXAL CONVENTION OF VIRGINIA. 2709 But I want to give you a concrete illustration of what I wish to show, and to empha- size my argument against this section of the report of the Committee on Taxation and Finance. By hard labor and by strict economy, denying myself a great many things which I think I ought to have had, I have accumulated a little money, and put it into a tele- phone company. The gentleman from Albemarle (Mr. Boaz by denying himself of things perhaps which he ought to have had, and by strict economy, has accumulated a good deal of money and put it into an apple orchard in Albemarle county. Now he is a mem- ber of the Legislature. He is over there in the Legislature taxing my telephone com- pany. I am not a member of the Legislature. He has not got now the same power that this Committee on Finance is seeking to- give him, but yet he has been placing very burdensome rates on telephone companies. Let me show you how he taxes telephone companies. In the first place he put the property tax on them equal to the property tax on any other property. He may think that they are not assessed at their full value. That is the fault of the assessment, if that is true, but he puts the same rate of taxation on them that is on any other property. He has taxed the interest which I have in the telephone company by taxing its property and everything it had. He then taxed my money in the form of stock, which is double taxation. Not satisfied with that he passed an act that on every 600 telephones there should be a tax of 50 cents; between 600 and 1,000 telephones there should be a tax of 75 cents; for all telephones over 1,000 and under 2,000 there should be a tax of $1, and for all over 2,000 there should be $1.50. He had already imposed double taxes before that, taxes on the property and taxes on the stock, and he comes and violates all rules of taxation and undertakes to establish an ascending scale instead of a descending scale of taxa- tion. And when I talk to him about it he just looks at me and grunts. (Laughter.) Mr. Keezell: I think if the gentleman had been present before the General As- sembly when the act for taxing telephones was passed, he would find that those tele- phone companies are taxed exactly as the telephone companies suggested, and just as they asked to be taxed. He would find that they came before the General Assembly and asked to have just that kind of a tax put upon them, because they knew that the law as it has been for a great many years was that after the gross receipts of a telephone company reach $1,500, they have to pay a transmitter tax of $1.50, which they did not have to pay under $1,500 gross receipts. They did not want to pay that transmitter tax, and they came in and asked that this very scale the gentleman is complaining of should be adopted by the Legislature, and it was adopted — 50 cents on 600 telephones, 57 cents on 1,000 telephones, and $1 on 2,000 telephones, so that instead of adopting an ascending scale, they adopt a descending scale. Mr. Wysor: I have different information as to how the bill was passed or at least as to the motive for passing it. The gentleman says that all the telephone companies came before them and asked for this tax, this descending scale — I say that it is an ascending scale and he says that it is a descending scale, but that makes no difference. Our company was not in existence at the time, and therefore did not come before the Legislature, if other telephone companies did come. Now, it dont matter much about that. He says these independent companies all over the State came and asked that. At the time there was not a single telephone company in the State except the Bell Company that had 600 phones — not a single one, and they knew that not a single one except the Bell would have to pay over 50 cents on a phone, and the idea seems to have been, " Here is a good chance to get in under the belt of the Bell people,," and the Legislature said, " We will pass that bill, because it won't hurt any of the independ- ent companies, and it will reach the Bell people. Let us reach the Bell Company." That is what I understand was done. Is that a proper way to tax, to establish an unjust system of taxation for the purpose of reaching the Bell? If the Bell Telephone Com- pany is doing anything it ought not to do, are you going to come in and provide an unjust system of taxation? Is it a matter of fact that when that law was passed there 2710 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. was not a telephone company except the Bell in the State that had 600 phones, and they knew they would not have to pay for more than 600. All telephone companies are trying to have this unjust law amended. I just want to show you what may sometimes be done, even with an express pro- vision in the Constitution for equal and uniform taxation. They put the ascending scale on telephone companies — the gentleman from Rockingham (Mr. Keezell) says it is a descending scale; let us see about that; 50 cents, 75 cents, $1, $1.50 — is that a rise? Mr. Keezell: No, sir, commence at $1.50 and go down and then it is descending. (Laughter.) Mr. Wysor: Yes, but the system does not run that way. Mr. Keezell: Yet it does. It has been $1.50 at all times, against telephones, in Virginia — $1.50 on each transmitter before that time and the tax goes down from that. Mr. Wysor: That is a straight tax. Unless it amounts to confiscation or is excessive, that- would be all right, $1.50 on all 'phones. That puts all the companies on the same footing, a tax of 50 cents per 'phone on all the companies would put all of them on the same footing, or $1 on a 'phone would do so; but they not only make a distinction in the system of taxation between telephone companies and other companies and persons, but they make a distinction between the telephone companies themselves. I want to show you what that system of taxation will do and what injustice it might impose upon a company, when untrammelled and unlimited. I want to show you what a distinction they make between telephone companies themselves. They say a man who has 600'phones shall pay 50 cents. They say a man who has 1,100 'phones shall pay $1, just double what he man who has 600 pays. What right have they to do that? That may be unconstitutional. They say the man who has the most 'phones will make tlie most money. How do they, know that. How do they know that he is making the most money? The man who has the smaller number of 'phones may be making the most money, according to the locality, according to the circumstances that surround him, according to the manner in which he manages his business. Now they have taxed our telephone companies that way. What do they know about our company? How much do we make? Why tax us in that way? Why not tax our property according to value? How much have we made? Mr. Boaz doesn't know. We are not making unreasonable charges. We have just been serving the public. Yet, when I talk to my friend Boaz about this matter, he just looks at me and grunts. (Laughter.) Now, I say ought there not be some limitation on the Legislature? Ought we not to impress it with the idea that taxation should be equal and uniform? I would like to have power to tax the apple orchard of the gentleman from Albemarle a little while. I believe I would be more just to him than the present law is to telephone com- panies. I happened to be looking through the agricultural report, and I found a picture of his orchard and of himself in it. It is a beautiful picture — I mean the picture of the orchard. (Laughter.) The gentleman's picture is right at the orchard. It is a good picture of Mr. Boaz, too. I can see his little goatee right on his chin. (Laughter.) Now, listen: At the foot of the picture is written, "A famous pippin orchard in Albemarle county, containing 750 trees; $21,000 in the last five years; the property of Hon. William H. Boaz." Why didn't he put that ascending scale on that orchard? (Laughter.) Every time he sells 1,000 bushels of apples, say they should be free, and then the next 1,000 charge $2.50, on the first thousand $5, on the next thousand $10, and so on, raising the scale on every thousand bushels of apples he sells. Would he like that system of taxation? In this picture he looks like he is satisfied with the present status. Why, he stands back against one of the rails of the fence, under a wealth of apple bloom and fragrance, and he is the most contented looking man that ever I saw. He reminds me of that injunc- DEBATES OE THE COXSTIiniOXAL COXTEXIIOX OE VIEGIXIA. •2rii tion of St. Paul in ihe Scriptures: In ^'hatever state you are, learn to be content therewith." I imagine right now, gentlemen, that he hears the partridge's call in his fields of waving grain, and the tune of the lark in his meadow as she lifts herself on easy wing to greet the coming sun with tuneful note. I was up here at the Bijou Theatre the other night, and I saw the moving pictures in the vitagraph, and they apparently made the pictures come down out of a frame and VN-alk along on the stage and dance and move before us. I carried the idea a little further, and I thought that maybe it was the vrork of a magician, and that these pictures did have life in them, and that they did come down out of the frames and dance and walk on the £oor. And now, as I stand and look at the gentleman's picture, he looks to me as if he was going to walk right down out of the picture and dance and walk. I carry the idea a little further. It seems to me that I can hear a divine melody bursting from his throat: " When the apple orchard is in bloom. When the apple orchard is in bloom." Now. what do you think about the acoustics of this house? i; Great laughter.) Why, that song of the gentleman from Albemarle coming from his picture to me, is like the sweet south breathing upon a bank of violets, stealing and giving odor." It sounds to me like the song of a mermaid on a dolphin's back, uttering such dulcet and harmonious breath that the rude sea grows civil at her song, and certain stars shoot wildly from their spheres to hear the seamaid's music. Xow. Gentleman, I have. I think, succeded in illustrating to you that the Legislature, with unlimited powers of taxation, might tax some property at a greater rate than other property. Xow, gentlemen, we want property* when it is assessed, to be assessed equally. Common sense teaches you that we ought to put every man on an equal footing. I do not mean to say that I think the gentleman from Albemarle (Mr. Boazj means to be unjust. I think he is one of the best members of this body. He has been eloquently spoken of as the watchdog of the treasury. In examining this picture I think it would be also appropriate to call him the watchdog of the Albermarle apple orchard. (Laugh- ter.) I say he is an excellent member of this Convention, and of the Legislature, and a nice gentleman every way, and I do not charge anything improper to him. I am just trying to show you how one set of men might get together and undertake to tax some classes of property more than they tax others. Why should the telephone company be taxed so much more than the apple orchard? An apple orchard is a good thing. I like to see it in bloom and to smell the fragrance of the apple blossoms. But the telephone is a good thing too. It brings us into communication with one another. It will take from point to point a war message. It will take a message of love which is as tender as the tender horns of a cockle snail, and will carry it, though it be as soft and delicate as the notes of bright Apolo's lute strung with his hair. It is just as laudable an enter- prise as raising apples, and there is no reason why it should be discriminated against. I have just used this concrete illustration to emphasize a principle. I want an equal and uniform system of taxation. Xow, gentlemen, in conclusion, I want to say in all seriousness, God forbid! that W. H. Boaz should have tmlimited power to tax my 'phones, " When his apple orchard is in bloom, "WTien his apple orchard is in bloom." (Great laughter and applause.) Mr. Keezell: Before the gentleman takes his seat I want to ask him a question. Are not the inequalities of which he complains, so far as taxation is concerned, now had under a provision which says that taxation shall be uniform? Mr. Wysor: Certainly, I argued as to that. I do not want to give them any more limit; I do not want to turn them loose entirely. I have argued that the provision in the present Constitution is intended to be a restriction on the Legislature. The present 2712 DEBATES OF THE COiS-STITUTIOi^AL CONVENTION OF VIRGINIA. system says that the taxation shall be equal and uniform; but it is not equal and uni- form even in that system. You cannot have it absolutely equal and uniform; you do not have protection, which is the equivalent for taxation equal and uniform, and you cannot have it so under the necessities of the case. You cannot have taxation absolutely equal and imiform, but you can have a principle in your Constitution which says that that is the purpose of the Constitution, that that is the purpose of the law. We do not want a provision in the new Constitution which intimates to the Legislature that it may he made unequal. That is the position I am taking. I think it addresses itself to the common sense of the body. Mr. William A. Anderson: Before the gentleman from Pulaski .takes his seat I w^ould like to ask whether, in his opinion, if this section is adopted by the Convention as a part of the Constitution, if such discrimination as that which he has illustrated, in his argument, will be constitutional? And could be proposed by the General Assembly? Mr. Wysor: Certainly. Mr. William A. Anderson: A discrimination charging one telephone company 50 cents and another 75 cents, and so on, that kind of discrimination; would not that very inequality you complain of be absolutely impossible if the Constitution is adopted? Mr. Wysor: I will explain to you what I mean. The amendment or provision in the report of the committee says that all taxation shall be uniform on the same class of subjects. Of course, then, in taxing telephones the tax should be uniform. It should be equal on telephones, and I do not think that under the provisions of the report you could tax telephones of one company greater than the telephones of another company. But I do mean to say that as between the telephone system and the apple orchard, the Legislature by tlie provision of the report would be absolutely unlimited. It could impose any rate of taxation it pleases within the limit of confiscation upon the tele- phone company, and just as low a rate as it pleases upon the apple orchard. It would do away with equality altogether so far as classes are concerned. The Legislature has unlimited power of taxation except so far as you take it from it, and this report has embodied the idea of equality between classes, but that is all. They can tax the dif- ferent classes of property just as they please. They can come almost to the point of confiscating property of one class and almost relieve the property of another class for taxation altogether. What is the use of it? What do they want with it? They want to give the municipalities the same kind of power. They want to put the city of Richmond, for instance, in a position to say to the manufactures that come to Richmond. " We want you here, and we will put our tax on the merchants and on other property-holders, and we will relieve you almost altogether." The report does say that all property shall be taxed. Well, now, if Richmond wants to build up her manufacturing enterprises, they say Richmond can impose just as low a tax as she pleases on manufacturing enterprises, and on the mer- chants she can impose just as high a tax as she pleases and can make any distinction she pleases. They say " You can tax the farmer as low as you please, and you can tax a telephone company as high as you please." Mr. Meredith: I will ask the gentleman if he does not know that the municipality has no power of taxation except as expressly given by the Legislature. Mr. Wysor: But the Legislature has the power. It is all a question as to whether you limit the Legislature in its power or not. Mr. Meredith: Do you not know that there is some limit now on municipalities as to hov/ the classification of citizens and merchants shall be made, and how the taxes shall be placed, to reach lawyers and doctors, and all classes that cannot be reached by the ad valorem tax. Mr. Wysor: Certainly. Our present Constitution provides for that, because you cannot reach those people by the ad valorem system, and you have to do it by a license tax. They tax merchants according to their business, and they have a descending scale and not an ascending scale, as in the case of telephones. DEBATES OF THE CONSTITUTIOJs^AL COIs^VENTION OF VIRGINIA. 2713 A merchant can, according to the present system of taxation, do $300,000 of busi- ness and does not pay any more than a telephone company which does $14,000 worth of business. Make a calculation and see if that is right. It is a system of taxing by license, and a merchant who does $300,000 worth of business and a telephone company which does $14,000 worth of business pay the same tax. Is that proper. Take a law- yer. Some lawyers may make as much as $2-5,000 a year; perhaps some of the lawyers in this body do. I do not know about that; I do not know what kind of practice they have, but they only have to pay a tax of $25 to do it. Say that they pay $25 to do $25,- 000 worth of business, when a telephone company would have to pay a tax of $1,000 to do less business, say $14,000 worth of business. So I say that such license tax upon telephone companies is unequal and unjust. Before adopting this provision of the report, we should be satisfied that its tendency would be to equalize taxation; but I say, how can it be done when they say expressly in the section to the Legislature: "You have power to tax one class of subjects higher than another." And so, when you get a Legislature composed in great part of farmers, they sit down, and they begin to think, and they say, "These railroads have been imposing on us; these telephone companies have been imposing on us; we do not know what they are making, it is a mysterious thing; but no doubt they are making fortunes. Let us reach them." Then you might have a Legislature composed of telephone or railroad people, and they would undertake to reach the farmers. I say it is better to maintain in our organic law a principle which all men will admit, and no man will deny, and that is, that taxation ought to be equal. Who will deny that? You have no right to make me pay any more for the protection afforded by the government than you do the gentleman from Albemarle. It ought to be equal, according to the value, and why, then, should we put a contrary provision in our Constitution. If the gentlemen are seeking to do away with a provision that has been in the Constitution for half a cen- tury and put in a contrary proposition, it is for them to show that in the execution of that provision it will tend to bring about a greater equality of taxation — not an inequality. Equality and uniformity is what you desire, and what you ought to have. All men are entitled to the equal protection of the government, and they ought to bear its expenses equally. I insist that we should retain in our organic law that great prin- ciple. Let us not follow these books which the gentleman from Richmond city (Mr. Mere- dith) has brought in, these scientific works discussing the subject from a scientific point of view. We are not doctrinaries; we come from the plain people, and we are supposed to have plain common sense; and we will know that principle is just that the taxation on all classes of subjects should be equal. Mr. Hamilton: Mr. Chairman, I hope the vote will not be taken just yet. I under- stand there are one or two other gentlem_en who wish to be heard on this subject. I know that my colleague from Petersburg (Mr. Cameron) wishes to be heard, and I thought he would be here by fhis time. Mr. Wysor: I do not wish to interrupt my friend; but I want to say to the body that Governor Cameron told me to occupy the attention of the committee until 11 o'clock, and he would be here by that time. I want to show that I am as good as my word. It is 11 o'clock. (Laughter.) Mr, Robertson: Mr. Chairman, I hope it will not be thought that I am speaking against time, or for the purpose of enabling another gentleman to get here; but I hope it will not be considered very inconsistent in me to rise here to say anything about this matter, after having stated that I considered myself incompetent to speak on this sub- ject. I said that in a moment of modesty. But since so many other gentlemen have had the audacity to discuss this deep subject that requires so much study and learning, 1 do not think it is particularly immodest in me to say something about it. Without disrespect to any of the gentlemen, I doubt very much whether any of us know much about the theory of taxation, but all of us who have to pay taxes know how hard it is to pay them. 171— Const. Deb. 2714 DEBATES OF THE CONSTITUTIOXAL CONVENTION OE VIRGINIA. I do desire to make a few remarks simply to show my position in regard to this matter. I have not had the benefit as the gentleman from Richmond indicates he had had reading the general principles laid down by Mr. Wells and others in reference to taxation, but I have had in my career as a lawyer some opportunity to look into the law on this question, and there cannot be much doubt as to what the law is. It does seem to me, as I said the other day, that this committee has brought in a report which under- takes to adopt a new principle with reference to taxation, superseding an old principle which has been in our Constitution since the year 1851. Now, I care not what was the original cause for putting that in the Constitution. It is there, and as it bears on its face the idea of equally and uniformity, an idea which is based on justice and fairness to all people. Taxation is as I understand, based on the idea of protection. The more property a man has the more he has to be protected by the government under which he lives and the more he ought to pay in proportion. But to put into our Constitution something which will suggest to the Legislature that there shall be different rates of taxation on the different classes of property in this Commonwealth, that a different rate of taxation can be charged on one class from what can be charged on anotner, would, I submit, no matter what these text books and these gentlemen who theorize about the systems of taxation we ought to have may say, incorporate into our Consti- tution an unjust principle. I do not believe any man on this floor could justify the charging, for instance, tangible personal property whose value can be ascertained, thirty cents on the hundred dollars and charging real estate at the rate of forty cents on the hundred dollars. I cannot believe any man will defend any such proposition as that. Yet, under the report of this committee, I respectfully submit, that difference could be made. Now, I am av/are of the fact that in applying the present provision of our Consti- tution which requires that the tax shall be equal and uniform, our Court of Appeals has held that that principle shall only be applied so far as it can be applied; that where you can ascertain value, and value is made the basis of taxation, the tax rate has to be equal and uniform; but these license taxes the Court of Appeals has held are not based on an ad valorem system. They are based on the character of the business that a man is doing, and there you can only have an approximate. The equality which the Consti- tution requires, that you cannot go into the details and say that because you charge a physician, for instance, a higher license tax than you do a lawyer, that that is an invasion of the principle of equality and uniformity. But I respectfully submit to this committee that because the court has decided that there are a number of subjects which cannot be reached by the ad valorem system, as to which the Legislature may impose a license tax, is no excuse for carrying the principle further than the present Constitution does, and including a character of property that can be reached by the aid of the ad valorem system. The gentleman from Richmond the other day, in attempting to explain why this provision was put into this article, was asked a number of questions. I myself asked him a question, and with all due respect to the gentleman, I do not think he could have understood the question I asked him, because when I asked him why it was that this amendment offered by the gentleman from Petersburg would conflict with the views of this committee he would go off into a long discussion about property which escaped taxation. I am the last man in the world to deny that. I think what the State of Virginia is suffering from to-day is the fact that there is a large amount of property in this State that has been escaping taxation, that is escaping now and always has been escaping. But I cannot see how this provision is going to make any difference about that. This provision simply allows the Legislature to classify property. This com- mittee, in its report, has drawn the line between property that can be valued and prop- erty that cannot be valued. In the third section it provides for that. Our courts had already said that the Legislature could do that under the old Constitution. I think they enumerated certain things which they could charge a license tax on, and our courts have decided the provision about equality and uniformity did not apply to those cases. But, DEBATES OF THE COXSTITrTIOXAL COXVEXTIOX OF VIPiGlXIA. 2715 as I understand the first section, it refers to property that can be valued, and I cannot see how saying that you can classify different kinds of tangible property will meet the evil that the gentleman is talking about. The evil that he is trying to get at is the escape from taxation of the intangible property, which he reaches by the third section. Mr. R. Walton Moore: I wish to explain the position the committee has taken in reference to a particular subject. The committee has no doubt that if you work equality and uniformity into that first section the rule will apply to the taxation of all property, including franchises, and will prevent the classification of franchises. Mr. Robertson: If you will look at the amendment you will see that is not the case. I respectfully submit that the amendment of the gentleman from Petersburg guards against that in express language by saj^ing " except as hereafter provided." Mr. Robertson: If you will allow me to proceed I think I can show you that you have misconstrued the effect of the amendment. The gentlemen seems to forget that a large part of the property of this State is tangible property that can be reached by the ad valorem system. There is a great mass of personal property in this State, con- sisting of everything you can imagine, furniture, sheep, horses, and everything in the nature of tangible personal property. On the other hand there is real estate that unpues- tionably can be reached, and that is, in my opinion, taxed beyond what it ought to be taxed. If you put in what you have proposed here, I submit that the Legislature can classify it so as to put a different tax rate on the tangible property, that can be reached by the ad valorem system. The effect of this amendment is to guard against that. As I understand the meaning of the amendment, it does not intefere, practically, with the right to impose a license tax. The gentlemen talk s.bout a franchise tax as if it was something very different from a license tax. They are both a tax of the same nature, they are both taxes imposed upon a person for the privilege of being engaged in a cer- tain business. When we are speaking of a person we use the word "license" and when we are speaking of a corporation we use the word " franchise;" but they are both taxes of a similar nature. The Court of Appeals has already said that that class of taxation is not Included in the Constitutional provision with reference to equality and uniform^tJ^ This article makes that perfectly plain. In your third section it expressly provides that a license tax may be imposed in every case where you cannot reach the value of the property. What more than that do you want, in order to reach this intangible property. I respectfully submit that the language of the third section amply protects this Com- monwealth with respect to the kind of property that cannot be reached by the ad valorem system. But if you leave here the language we have in this report, the Legis- lature will have the power to make all kinds of classifications of diff'erent kinds of property, and if the courts cannot say that it is done arbitarily they are bound to let it stand. Then you will have one man paying a rate of twenty cents, and another thirty cents, and another forty cents on property that is worth exactly the same. As the gentleman from Pulaski (Mr. Wysor) has said $1,000 invested in sheep is just the same as $1,000 invested in real estate. Mr. Meredith: I want to ask you this question: Take actual tangible property^ and suppose the State wanted to have a tonnage tax on coal or iron or manganese, that is going to be carried out of the State, how will you do it? Mr. Robertson: I say that under your third section you can get at every one of those things, by charging a license tax for engaging in that business. ^■Iv. Meredith: Then you would have a license tax charged on managanese and on iron and coal. Mr. Robertson: I say that if a man is engaged in selling the kind of property about which the gentleman talks it would be perfectly in the power of the Legislature to say that the people engaged in that kind of business should paj' a certain license tax for the privilege of so doing, based upon what are supposed to be the profits made out of it. Mr. Wysor: Mr. Meredith has called your attention to the difficulty of assessing 2716 - DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIEGINIA. coal. I want to call your attention to Section 5, in which they say that the General Assembly shall provide by law for the special and separate assessemnt of all coal and other mineral land and at its fair market value, but that until such special assessment is made such land shall be assessed under existing laws. Mr. Meredith: Do you propose to tie the hands of the State and say it shall not have the privilege of doing any other thing, if it is wiser to do it. Mr. Robertson: I submit that these gentlemen are asking for more than they claim they are asking for. I cannot for the life of me see why we should segregate that particular matter and put it on a different footing from other property. His ques- tion is answered by the fifth section, which provides for the assessment of coal and mineral lands at a fair market value. The third section, I respectfully submit, covers the very case the gentleman was talking about the other day. That is what I meant when I said I did not think he had answered my question satisfactorily. He kept talk- ing about a franchise tax and would not say a word about a license tax you can impose a license tax on a corporation just as well as on anybody else. It is, in other words, simply taxing the privilege of doing business and the Legislature can classify the dif- ferent kinds of business. This provides that wherever you cannot reach it by the ad valorem system the Legis- lature shall have the right to impose a license tax. What is the necessity then for saying in this first section that you shall classify the property referred to in that section. I can- not see to save my life how you can get around the position taken by my friend from Pulaski, that, as a matter of general principle, it is the duty of this State to impose equal burdens upon every citizen of the State. I submit that the Legislature ought not to have the power to classify property so that you can impose one rate on one man and another rate on another, simply because he has invested his money in a certain kind of property. A number of the gentlemen upon this floor have very hostile feelings towards the corporations — I am not making a personal remark — and some of them have said things here about the corporations that show an intense bitterness in their hearts against corporations simply because they are corporations.'^ Some people here may be actuated with the motive of imposing a tax on them that will not be imposed on the individuals. But, gentlemen, when you attempt that sort of class of legislation, when you attempt injustice and wrong you do violence to everybody and injure everybody, not only the person you are attacking, but everybody in the State. If you adopt this principle, if you put into this first clause the language that these gentlemen have put there, it will not only effect the corporate interests in this State but, I submit it will affect the individual interests of every man that owns property in the State. I am not going to say anything in defense of corporations. This is not the time nor the place to do it; but I tell you that in our very zeal here in this Convention we have killed the goose that lays the golden egg and do not let us, for God's sake, do anything that will injure materially every one of us. It does seem to me that, after we have adopted this stringent law and Created an imperium in imperio, a corporation commission that has higher powers than anything that has ever been created or ever been known to exist, with legislative, judicial and every other kind of powe^, for the purpose of trammelling and controlling these corporations, we ought not, under the guise of getting revenue for the State, to do an unjust thing here which will effect the individual interests of every man in this Commonwealth. That is all I have to say about this matter. I feel deeply about it. I do not mean to impugn the motives of the gentlemen of this committee; but I do believe that there is an element in this Convention that is driving this Commonwealth towards destruction by the feeling they have about this matter. I hope that what I say will not make the gentleman from Richmond see skeletons and specters or cause him to think my imagi- nation is particularly gloomy. I think that if this Convention will come back to its senses and stop looking for specters and skeletons and look at the cold facts, they will stop treading this path, which is a path of danger, and will go back to common sense principles and try to do justice to all men. DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 27ir Mr. R. Walton Moore: Mr. Chairman, I do not claim a better knowledge of the subject of taxation than does my distinguished friend from Roanoke (Mr. Robertson) and I shall not do much more than read to the committee some of the authorities upon the very important subject we are now engaged in discussing. The proposition made by the gentleman from Petersburg (Mr. Hamilton) is that we shall maintain the status quo so far as the organic law is concerned — that we shall impose upon the Legislature the rule of equality and uniformity that is contained in the present Constitution. That is a restrictive rule that the Committee on Taxation and Finance thinks ought to be removed, in order that the people through their represen- tatives in the future may have more latitude than has been allowed since 1851. Of course if nothing practically is to be accomplished by the change, then it is a matter of indifference how we determine the pending question. But the committee believes, and urges that there are practical results that can be accomplished and that ought to be accomplished by relieving the General Assembly of the rigid rule of uniformity and equality that now prevails. Let me take a concrete illustration. Heretofore the rail- road companies have been assessed at about $15,000 per mile, and have been taxed at the rate of forty cents. There has always been power in the General Assembly to tax franchises. But the General Assembly has had trouble in getting at the value of a fran- chise, and in deciding how to estimate even approximately its value. Therefore it has failed to lay franchise taxes, and by this rule of equality and uniformity it v/as tied down to a rate of forty cents upon $15,000 per mile of assessment. And accordingly the State did not derive, and does not derive, from the railroad properties, in this State the revenue to which it is fairly entitled. Now, suppose we allow the Constitution to remain as it is. Then, after the expiration of the ten-year period for which a system is provided, the same difficult condition may exist. We resort to a percentage tax on gross income or net income which may prove ineffective and the Legislature may be cut off from the only method of securing fro'm railroad companies a proper amount of revenue, namely, by imposing a higher rate of tax upon the visible property of those companies than is imposed upon the visible property of natural persons. It might be not only desirable and fair to do that, but necessary, and yet it would be impossible. Another illustration suggested by the remarks of my friend from Pulaski. He speaks of the telephone companies. Take the long-distance telephone company, which may hereafter operate extensively in the State of Virginia. Suppose in the future we cannot ascertain w^hat their gross earnings or their net earnings are, and cannot impose a franchise tax, based upon their gross or net earnings. Mr. Robertson: Does not this provision of the article require that every one of the companies shall make reports of a character that the commission shall formulate? Mr. R. Walton Moore: Undoubtedly, and there has been a provision in the statute under which other companies shall send in a statement of net earnings; and yet I sup- pose there is not a gentleman on this floor who does not know how inadequately that has worked. Now, to resume, in order to obtain a fair revenue from long-distance telephone companies, we may wish to classify the telephone companies, so as to put the long- distance companies, the great and powerful companies, into one class, and the local companies into another class and taxing their properties at different rates. Illustra- tions might be multiplied. Now I submit, gentlemen of the committee, that fundamentally what we wish to do in devising a system of taxation is to equalize the burden, and all of the authoritities here are to the effect that you do not reach that result necessarily by equalizing the tax. On the contrary, the leading writers upon this subject, from the time of Adam Smith down, take the contrary view and say you may reach real equality of burdens by inequality of taxation. Take a corporation enjoying the right eminent domain. It ought ordinarily to pay more than the corporations of a mercantile nature that do 73 ot enjoy that right. 2718 DEBATES or THE COISTSTITUTIONAL CONVENTION OF VIRGINIA. Mr. Hamilton: Do you think, as a lawyer, that it is necessary to preserve this first section in the form in which it is now, in order to carry out the right of the State to tax the corporations pretty much as it pleases under the franchise tax. Mr. R. Walton Moore: I can hardly answer that in the negative. Suppose we find twenty years hence that we cannot get at the value of a franchise in the way proposed here as to the railroad companies for the next ten years: Suppose we cannot adopt any method that is satisfactory, and suppose we wish to assess the visible property and to put upon that visible property a higher tax rate than the natural persons in this Commonwealth bear upon their property. If you write equality and uniformity into the Constitution you are precluded from doing that. Mr. Hatton: Would you be willing to write equality and uniformity of taxation into the Constitution and make it apply to everything but corporations? Mr. R. Walton Moore: I would not. I think that would be unfair, and I do not propose anything of that sort. But I say very frankly that the question of corporate taxation is a great question among the people who are dealing with the subject of taxa- tion. It is full of doubt and complication. It presents problems which legislative bodies should be left free to deal with. Mr. Robertson: If the third section does not provide for the cases you mention, would it not be better to amend that section so as to cover it, rather than to adopt a general principle not only for the corporations, but for the individuals and everybody in the State? Mr. R. Walton Moore: I will say to my friend that, so far as I am concerned, I am Mailing to omit any declaration of general principles, but leave the Legislature free, as is done in New York and Massachusetts, and in other States. I would strike out Sections 1 and 3. Mr. Hamilton: Would you strike out the provision for taxing corporations for ten years ? Mr. R. Walton Moore: That, as I understand, was put in here as a sort of a com- promise between the committee and the railroad companies. Mr. Hatton: Pardon me for interrupting you. I very much dislike to do so; but does the gentleman think that is in line with his statement a while ago that he was willing to leave this whole thing to the Legislature? Mr. R. Walton Moore: My friend misunderstood me. I said in reference to the general principle I am willing to leave the matter to the Legislature. Now, gentlemen of the committee, there has not been an authority produced upon the other side in favor of this equality and uniformity proposition. Historically Vir- ginia is against it. It was not dreamt of in 1876; it was not dreamt of in 1829-1830. It was only adopted in 1850-51 on account of the peculiar situation in this Commonwealth growing out of the existence of slavery. This was stated in the Slaughters case, reported in 13th Gratton, where our Court of Appeals said, speaking of the uniformity and equality clauses of the Constitution of 1851, that they— were inserted with the intention of preventing onerous taxes upon slaves. As that species of property was chiefly held in the eastern portion of the Commonwealth, and as the power of laying taxes would in a short time pass out of the hands of the western portion it was foreseen that the western portion, if the tax levying should not be restricted might discriminate in the levy of taxes to the prejudice of the owners of The provision of the clauses, taken in connection with the history of the times, leaves no doubt that they were inserted as adjustment of the supposed antagonism of eastern and western interests. And in the case of Eyre vs. Jacob, 14th Gratton, the court said: DEBATES OF THE CONSTITUTIONAL CONVENTION' OF VIRGINIA. 2719 Had the interests of all portions of the State been uniform and homogeneous, the principle of representation would have afforded adequate protection to the taxpayer against injustice and oppression, and no such provision would have been introduced. I place this view of our court against the suggestions of the gentleman on the other side, to show that the people who have made constitutions for Virginia when unembar- rassed by the slavery question did not consider that it was important or desirable to lay down any principle of restriction to be applied to the legislative department of the government. Mr. Braxton: I will call the gentleman's attention to the fact that the provision in the Constitution of 1850-51 applied only to State taxation, and that the present pro- vision never was in our Constitution until the adoption of the Underwood Constitution. Mr. R. Walton Moore: Yes, sir. When I go to the Constitution of the United States, I do not find that the framers of that instrument thought it was necessary to bind Congress by an equality and uniformity provision. Has anybody said that the Constitution of the United States is defective or that it contemplates and paves the way for injustice because there is an omission to bind the Congress by an equality and uniformity restriction. What does the Supreme Court of the United States say about that principle in the case of the Pacific Express Company against Sibert (142 U. S. Supreme Courts Reports, 351) ? This court has repeatedly laid down the doctrine that diversity of taxation, both with respect to the amount imposed and the various species of property selected either for bearing its burdens or for being exempt from them, is not inconsistent with a per- fect uniformity and equality of taxation in the proper sense of those terms; and that a system which imposes the same tax upon every species of property, irrespective of its nature, condition or class, will be desfructive of the principle of uniformity and equality in taxation and of a just adaptation of property to its burdens. So we have the Court of Appeals of Virginia justifying us historically, and the Supreme Court of the United States combating the position of my distinguished friends and saying in substance that equality and uniformity of assessment and taxation is not the fundamental or essentiality. So much for the courts. How about the text writers? The very last deliverance upon this matter is in the report of the Tax Commission of the State of Minnesota, published this year. That is a commission which has been in session for months and months^ and after a most thorough examination of this whole matter it reached the conclusion reached by the Supreme Court of the United States, and recommends that there shall be a Constitutional amendment in the State of Minnesota which will allow the classification of subjects of taxation. There are other recent author- ities. If my friends have read the report of the Industrial Commission they will find that the able men composing that commission, including the senior Senator from Virginia (although, of course, I cannot say that he endorsed that particular point), almost snapped their fingers at the idea that Legislatures should be bound by the equality and uniformity principle. They refer to the State of Ohio and to other States where it obtains, and say that those States have been struggling against the limitations of that principle, and that until those limitations are removed the tax systems of those com- munities cannot be placed upon a reasonable basis. Mr. Hamilton: I find this is not a decision of the court, but it is a lecture by Mr. Justice Miller on the Constitution of the United States, and you will find it referred to in Well's book which my friend has vouched for, and which I have been familar with for some time. It is on page 323. I would like to read what Judge Miller says. I suppose he knew what the Supreme Court of the United States has decided. Wells says: "The Constitution of the United States requires that" — then he takes up the quotation from the lecture of Mr. Justice Miller, on the Constitution of the United States — " All duties, imposts and exercises shall be uniform throughout the United States;" and the question as to what constitutes uniformity of taxation under this pro- vision has repeatedly come before the courts, Federal and State, for the purpose of 2720 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. definition, and so has become invested with a degree of historical interest. The natural inference, at first, would be that under this provision of the Federal Constitution all property subject to taxation must necessarily be taxed at the same rate or ratio — that is, if horses, wagons and land are taxed, then the same per cent, of value must be assessed upon the horses and wagons as upon the land; and in some 800 per cent, is assessed upon distilled spirits — whiskey — (as is the case in the United States at the present time), every other commodity from which it was proposed to raise revenue ought to be taxed in the same proportion. In like manner, under the customs all imports, liquors, and pig iron, for example, would have to be subjected to one rate of duty. This difficulty, so far as the Federal Government is concerned, has been obviated by an assumption which the courts have sustained, that a tax " is uniform within the meaning of the constitutional requirement if it is made to bear the same percentage over all the United States;" that is, it must be uniform as regards any particular article in all places; and whiskey or any other commodity, for example, shall not be subjected to Federal taxation" at one rate in one State, and at a different rate in another State, but that different articles may be subjected to different rates provide they are uniform as between different places and different States, as it obviously could not have been the intent of the framers of the Constitution that the government in raising its revenues should not be allowed to discriminate in respect to articles which it desired to tax. Mr. R. Walton Moore: That is exactly in the line of our contention, that there should be uniformity within the territory of the taxing power and upon the same class of subjects. That is what I understand that writer to say. The only uniformity that is required is the uniformity in the territory of the taxing power, and if that uniformity be observed there can be classification of subjects of taxation and different rates im- posed upon different classes. If my friend has any doubt about the approval of the classification principle by the Supreme Court of the United States, I refer him to the case of the Railway Company against Ellis in 165 United States, and to the case of Bell's Gap Railv/ay against Pennsylvania, 134 United States. The Supreme Court in those cases upholds the classification principle and its application, provided that there are reasonable grounds of classification observed. Mr. Braxton: You may add to that the case of the Home Insurance Company against New York, where that question is still more fully discussed. Mr. R. Walton Moore: I invite the gentlemen upon the other side to show any case in which the court has said that the classification principle is not just, or to show any writer upon the subject of taxation who will say that the classification principle which we propose here is an unfair principle. Mr. Hatton: Can the gentleman show any case, decided by the Supreme Court of Pennsylvania, from which this section is taken, where that court has declared any classification improper? Mr. Meredith: Yes, I can. I will give you a case in the 112th Pennsylvania Re- ports, Pennsylvania State, page 355, where they undertook to classify notes and bills for labor done, and the court said that was an improper classification and the Constitu- tion did not justify it. Mr. Hatton: Has it not also been held that bonds and notes could be classified in one class when held by a corporation and in another class when held by individuals? Mr. Meredith: Yes; and they gave the reason for it, and showed the justice of it, which my friend is not prepared to dispute. Mr. Hamilton: I will now endeavor to give the gentleman from Fairfax (Mr. Moore) a reference to a text writer in answer to his challenge. I read from Wells on page 323 : " Uniformity or proportionality in taxation is, therefore, one of the funda- mental principles of every free and just government; and the safety of all taxpayers against the grossest abuses demands that in taxing any class or locality the principle of equality of rates should be kept sacred and inviolate." DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OE VIRGINIA. 2:21 Mr. R. Walton Moore: It says in taxing any class there should he an equality of rate. That is what we are contending for. Mr Hamilton: Will the gentleman contend that classification is not practically ai'bitrary under the decisions of the Pennsylvania courts and that it is a purely legisla- tive power. ]\lr. R. Walton Moore: The Supreme Court of the United States has said that that question is controlled by the Fourteenth Amendment, and that you cannot make an arbi- trary classification; that it is out of the power of the State to make one. Mr. Hatton: Has not the Supreme Court of the United States practically said thai every presumption ought to be taken in favor of the Constitutionality of the classifica- tion? Mr. R. Walton Moore: Of course there is always a presumption in favor of the Constitutionality of the lav\'. Every authority v\^e have found and every authority pro- duced or suggested by the gentlemen upon the other side upholds our contention and shows the advisability of allowing the classification principle. We wish to give some flexibility to the organic law, so as to give more latitude to the legislating power. That is the difference between us and the gentlemen who seem to be opposing the report of the committee. Now, Mr. Chairman, I am only going to read one other authority and then I will not detain the committee any further. I suppose there is not a greater writer upon the subject of taxation in this country than Judge Cooley. We have Judge Cooley speaking about this very matter, and he says, on page 169 of his work on taxation: "It has already been stated that inequality does not necessarily follow the restricting of a tax to a few subjects only, or even to a single subject. Such a restricted tax might, on the other hand, under some circumstances, be as equal and just as any that could be laid. A tax laid exclusively on merchant goods might not be burdensome to those W'ho in the first instance paid it, since the effect would only be to increase the price to the con- sumer and thus to diffuse the burden to the whole community. A license tax might not be unjust though laid upon a single occupation, provided that it was so laid that none who followed that occupation escaped it. i^et it reach all of a class, either of persons or things, it matters not whether those included in it be one or many, or whether they reside in any particular locality or scattered all over the State." Here is a great lawyer and a great thinker, in favor of the report of this com- mittee declaring for the classification of subjects. I do not see why we ought not to do this. We have here a representative government. The legislative right is within the check and control of the people. We are only designing to go back to what was done in the early days of this State and to say that the legislative department of the government shall have the right to impose taxes within the bounds of moderation and justice that is enjoyed by the English Parliament, that is enjoyed by the Congress of the United States, that is now enjoyed by nearly all the Commonwealths of this country. It has been pointed out here by my distinguished friend from Richmond (Mr. Meredith) that at least two-thirds or probably three-fourths of the States of this Union have dropped out this uniformity and equality provision, wherever they had it. They have either omitted any regulation on the subject of taxation or else they have adopted this princi- ple of classification. Mr. Chairman and gentlemen of the committee, I apologize for taking up so much of your time. I only wanted to read some of these authorities in response to the chal- lenge of those who are opposing this amendment^ and who said that this committee ought to explain and support the position they occupy. Mr. Hamilton: Mr. Chairman and gentlemen of the committee, I do not propose to make any extended argument or to take up much more of your time. I merely desire, Id a few moments, to recall to your minds the fundamental points and the main points made by me in suggesting this amendment. I mean to say, and I believe that all the history and all the authorities bearing upon our race uphold and will maintain the 2722 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. doctrine that discrimination in the burdens of taxation ought not to exist under any- free government. The theory of the gentlemen who have advocated their views is that you may have no discrimination under this power of classification. That is perfectly- true. You may not have it, but, gentlemen, the object of any one in the consideration of the subject of taxation, is to prevent the principle of discrimination, partiality, favor- itism and injustice. If we are going to trust this matter entirely to the Legislature I say we ought to have nothing in here on the subject of a general principle. I said that in my opening argument andl repeat it now, notwithstanding the fact that the gentle- man from Richmond said he did not think we could possibly mean that, I do mean it. I much prefer to have here no general principle as to the method of taxation, as to the principle of taxation, than to have a method which is suggestive of and apparently tells the Legislature that this Convention approves a principle which is, almost from the necessity of the case, unequal and therefore unjust and bad taxation. Now, Mr. Chairman, I mean to say that the book referred to by my friend from Richmond (Mr. Meredith) the other day, which is vouched for by him is the book upon which I have largely based my views on this subject. I read this book when it came out in the North American Review some years ago, and after this Convention was called and I found that I was to come here, I sent for and got a copy of the published book. It is impossible for me to take up your time to read from this work. This is a worry- ing subject. It is a dull, dry subject and yet it is one of great importance. I mean to say that there is no utterance of the Supreme Court of the United States, and there is no utterance of the Supreme Court of any State which is not upon some special authority for partial taxation or class taxation, and that there is no utterance by any first-class writer on the subject of taxation which justifies unequal taxation based upon classifica- tion. Proportional taxation is absolutely approved of by all the writers and all the courts, unless those courts are governed by some such provision as has been adopted in Pennsylvania. When the gentleman from Richmond gave his answer to the gentleman from Portsmouth (Mr. Hatton) he gave him a Pennsylvania decision, which was neces- sarily that way, because it was governed by the Pennsylvania Constitution. Mr. Meredith: I understood you to say that we could not produce any authority which would justify inequality of taxation under the principle of classification. Of course we could not, but can you cite any authority or any text-writer or the decision of any court which holds that the classification of subjects is not a proper and fair way to get equality of taxation? Mr. Hamilton: I might cite the last two Constitutions of Virginia on the point, and it seems to me to be pretty good authority. Mr. Meredith: I think the Court of Appeals of Virginia apologized for one of them and I think you would have to apologize, yourself for this Underwood Constitution. Mr. Hamilton: I do not think I would. I do not think I would have anything but praise for the Underwood Constitution. We must do justice and not cast aside the Underwood Constitution and say it was made by people who did not represent the people of Virginia. The Underwood Constituion, except as to the framework of local govern- ment, was practically a reproduction of the Constitution of Virginia of 1850 and 1851. "With respect to the framework of local government it was practically copied from the Constitution of New York. There is very little difference. I mean to say, and I call it to the attention of this body, that there has been practically no answer made to the decision of the 'Supreme Court of Pennsylvania, which I read the other day, under a Constitution like the one proposed here, on the point that the power of classification is purely a legislative power and that the only funtcion of the court is to see that it is uniform within the class. Mr. Meredith: Do I understand you to say that the Supreme Court of Pennsyl- vania has said that the court cannot decide whether there is proper classification. Mr. Hamilton: I think not, but perhaps I had better read the decision. I read from the case of the Commonwealth against the Delaware Division Canal Company, de- DEBATES OF THE COXSTITFTIOXAL COXVEXTIOX OF VIEGIXIA. 2723 cided in 1899 and reported in 123d Pennsylvania State, page 594. I read from the syllabus: The power to impose taxes for the support of the government with the power of classification, still belonging to the Legislature under the new Constitution, the selec- tion of the subject thereof, their classification and the methods of selection to be pro- vided, are matters purely legislative. The classification of subjects, under this decision of the Supreme Court of Penn- sylvania, is held to be a purely legislative power. Mr. Meredith: Is it not a fact that the gentleman has seen other authorities, Avhich I have furnished him, from the State of Pennsylvania which recognize the power of the State to say that a classification has been arbitrary? Mr. Hamilton: I will read the next clause, which says that it is not. This is one of the cases you referred me to. I am not reading anything new to you. " The power to classify being given all that is then required by the Constitution is that the taxes shall be uniform upon the members of a class, and it is the uniformity of taxation according to the classification made, which is a question to be determined by the court." If that does not mean that the power of classification and the right to classify is abso- lutely a legislative question I do not know what it does mean. Mr. K. Walton Moore: Does my friend think that if the Supreme Court of Pennsyl- vania were to say that the Legislature had conclusive and arbitrary authority that it could stand, in view of the provision in the Federal Constitution? And, in that con- nection, may I not ask him if the Supreme Court of the United States, in reviewing the Pennsylvania cases, does not expressly declare that the State of Pennsylvania, through its Legislature, can only exercise a reasonable and not an arbitrary power of classifica- tion. Mr. Hamilton: I mean to say that this case has not been overruled and that the principle enunciated here is the law of Virginia to-day. Our own court has decided cases on the same principle. No farther back than yesterday afternoon I was talking on the subject with one of the judges of our Supreme Court and he said that this was the principle of our own court, that classification is a legislative function. There is a limitation to it, but, gentlemen, the limitation means nothing. It must be such a dis- tinction, such an arbitrary thing as would bring it within the principle of the decisions of the United States Supreme Court to enable the court to deal with it. If there is any sort of foundation for the classification, if a man that was not an idiot could make a plausible argument for the classification, then such a classification and distinction would be upheld by the Court; and to such an extent does that go that the Pennsylvania Supreme Court says that the power of classification is purely legislative — " the power to classify being given, all that is then required by the Constitution is that the taxes shall be uniform upon the members of a class, and it is the uniformtiy of taxation according to the classification made, which is the subject to be determined by the court." I read you the other day from one of the Supreme Courts of Pennsylvania reports- to the effect that the power of classification and the right to arbitrary classification was so great and was upheld to such a degree that you could sub-divide manufacturing establishments. One of the cases was to the effect that the Legislature had the povrer to sub-divide manufacturing establishments, with tangible property, so that you might put one rate of taxation upon a manufacturing concern making liquor and another upon a manufacturing concern making gas. This was a tax upon property in some way. Mr. Meredith: You referred to it the other day as real estate; but the property was stock. Mr. Hamilton: I think I referred to it as property, and I think now it is property. I mean to say this, without meaning to be in the slightest degree unpleasant, that the impression left upon me by my friend who last addressed the committee was that the fight or this objection was something in favor of the corporations. I am not able to 2724 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. see its bearing in that way. I say I do not think it has any bearing upon corporate matters. I will not stand up here and state anything to this Convention as a fact or as my opinion, as a matter of law, unless I think it. Why there should be any argument here based upon the general idea that something was to be saved to the corporations, I am unable to say. It seems to me that nothing is left here for the corporations to contend for. Mr. R. Walton Moore: I do not think my friend understood me. I did not assert that he was a champion of the corporations, in supporting this amendment, I did not mean to assert that. Mr. Hamilton: I did not understand you to refer to me, personally, at all. I thought you v/ere making your argument on the line that to make this change, which I strongly urged you to make, was a benefit to the corporations. Mr. R. Walton Moore: I say here, once and for all, that I have no respect at all for any suspicion which attaches or directs itself to any gentleman here, based upon any such supposition as that. Mr. Hamilton: I was not referring to myself. I think so well of myself that it never occurs to me that other people do not think well of me. I am never conscious of doing things with a wrong purpose. I do wrong things, but not with a wrong motive. I mean to say, gentlemen, that I do not think it is a fair way to consider this ques- tion, to consider it on the idea that the change proposed here is intended or will have the effect of benefiting the corporations. I say that they are beyond the region of hope under this Constitution. I say to you, let us preserve to ourselves the really true principle of equally and proportionately bearing the burdens of our government. If there is anything in the amendment which I propose which, in any way, modifies the condition of corporations under this Constitution. I am not aware of it. I do not believe it exists. If it does, and if any one can point out to me that there is any such thing in it, I v/ill be glad to specify that the franchise and license taxes shall not com-e under the principle of equal and uniform taxation. That is the only way on earth you can tax the corporations, except by taxing their property itself. I cannot believe that it is the purpose or the wish of any man in this Convention to say that you shall put, arbitrarily, a different rate upon different classes of property, actual visible property, real or personal^ because a difference in rate must necessarily mean injustice and partiality, when you cannot get at the value of the property. I cannot believe that any man in this Convention means that, and if he does not mean that as to tangible visible property, and you except from this rule of equality the license tax and the franchise tax, which we have done, there can be no interest to the corporations in this matter unless you mean to tax their visible property at a higher rate than you tax the property of individuals. I do not believe that is the meaning of anybody. I believe this is an unnecessary and dan- gerous provision, and that it may ruin us in the future, when changes take place of which we do not know. I believe it has crept in here under the idea that it was neces- sary to carry out the suggestion of taxing corporations. It is not necessary for that. The occasion for it is gone, if it was ever justified. I beg that you will not keep in the Constitution a bad, false and vicious principle when there is no occasion for it. I wish to say to the members of this committee a few words in that connection. Conditions change very much in the State. None of us are able, none of us are suffi- ciently prophetic to see one year into the future, much less five, ten or twenty years. This principle — I suppose I will have to call it a principle, although I do not think it is — has been copied from the Constitution of Pennsylvania. We have been referred to Pennsylvania as an instance of how well it works. Gen- tlemen, the comparison ought not tohave been made. Pennsylvania, I presume, next to New York, is the largest, richest and wealthiest State in this country. The conditions which fit there do not fit here. We are a comparatively poor State, with a sparse population, and almost wholly undeveloped. We are just beginning the development DEBATES OF THE C0X5TITUTI0XAL COXVEXTIOX OF VIRGINIA. 2725 of our State; and yet we are compared to a State where there is a factory open upon almost every hill top and along every stream at every few hundred yards. I do not know that it is a fact myself, and I cannot, therefore, state it positively as a fact, but the conditions with respect to the control of the legislative body change. You must all recollect that there is danger for you and for your constitutents if this plan is put here to enable people to tax unequally and disproportionately the citizens of this Commonwealth and their property. A time may come, gentlemen, when those citizens, those individuals, the great humble body of the people, will not so fully control their Legislature as they do now. Do not misunderstand me. I am not stating what I wish, but what I do not wish. I hope to God the time will never come when anybody will control the Legislature of Virginia except the majority- of the vote of her people, made of flesh and blood. But, gentlemen, we take this provision from the Constitution of Pennsylvania. According to the best reports and best information that can be gotten, there are no more corrupt legislative bodies, State and local, in this country, than those of the State of Pennsylvania. :\Ir. R. Walton 3Ioore: In order that you may not confine it to the State of Penn- sj'lvania, I beg to remind you that for almost as long a period the State of Georgia has had this provision in her Constitution. The State of Louisiana, which has just revised its Constitution, has adopted it and a great many of the Vv'estern States, where condi- tions are very much like those which prevail in this Commonwealth, have adopted it. Mr. Hamilton: I think now my friend is mistaken in saying that the State of Georgia has this provision. I do not think it has just this provision exactly. It is a little singular, if the State of Georgia has it, one of our own States, inhabited by people comparatively" like ours, with a country comparatively^ like ours — if she has it, it is singular that we never heard it referred to as being copied from the State of Georgia and have never heard anything said ^is to what occurred in Georgia, or how it worked in Georgia. It has always been Pennsylvania — Pennsylvania. :\Ir. R. Walton Moore: I want to say to my friend, in reply to the suggestion that these States have never been referred to, that I have examined the authorities in those States and other sources of information, as far as I had access to them, to ascertain whether or not evil had resulted from the application of this classification principle, and I assure him I have not been able to find any evil has resulted. ]Mr. Hamilton: I would have much preferred tohav e had a reference to the Con- stitution of these other States in time to examine them. I have never heard this referred to except as being based upon the Constitution of Pennsj^lvania. !My impres- sion is that I examinded the Constitution of Georgia, and I do not think it contains this same provision. If the gentleman has a copy of the Constitution of Georgia on this point. I would be glad for him to read it. Mr. R. Walton Moore: I can only say that the chairman of the committee united with me in making examinations of the Constitutions of the States, and we found that the classification principle in almost the same terms as the Pennsylvania provision, had been adopted in Colorado, Georgia, Idaho. ^Montana, Louisana, Missori and Penn- sylvania. i\Ir. Hamilton: You found the classification principle in about the same terms? I go back now to what I was saying. Pennsylvania was certainly the leader in this classification system. Pennsylvania is the State that is all the time referred to as the one from which the identical language in this report is taken. I mean to say that in Pennsylvania there has been great and bitter complaint of injustice because of arbitrary classification. I mean to say that Pennsylvania, if we can believe the public press and believe the people who have been there whom we know, has legislative bodies. State and local, that are partial, bad and corrupt to a greater extent than those of any State in this Union. I say that a principle of taxation where there are favors to be given out on the one hand and hard blow on the other, unavoidably leads to corruption and tends to produce injustice between the different classes of taxpayers. 2?2(i DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Mr. Fairfax: The gentlenian from Petersburg has laid some stress upon the fact that he does not think this clause is necessary in order that the other provisions of th© report may be carried out. I want to ask him if he can refer to a State in the Union that has a division of subjects into classes that has the equal and uniform provision in it . Mr. Hamilton: i presume that you gentlemen who examine it can tell about that. I did not examine it. I mean to say, so far as I am able to judge, that in this State of Pennsylvania, where the conditions ofproperty are different from ours, the results of this change have been bad, have been unjust, and that we are running a great risk here unnecessarily. I say it is not necessary to put this bad provision into our Constitution in order to carry out the rest of the plan of the committee. I say the amendment which I have suggested, providing for equal and uniform taxation except as hereinafter provided^ expressly allows your Legislature to treat license taxes as they are treated now and gives them a free and untrammelled hand in the imposition of franchise taxes upon corporations. If that is not true we are willing to change the amendment so as to ex- pressly except license and franchise taxes from the operation of this section. If the object of this provision is to tax corporations differently from other people, I say that you will have a free hand to do it without any trouble or question. There can be no diflSculty unless you intend to impose a tax on their actual tangible and visible personal property in a different way and at a different rate from what you do upon the property of individuals, and I do not believe anybody would want to do that. I mean to say that the time may come, as I believe it has come in the State of Pennsylvania, when the people you are here to protect, the people you wish to protect, the great body of the men and women of the State may bitterly rue the day when you put it in the hands of the State Legislature and the local taxing body, to whom that power may un- doubtedly be delegated, to tax with partiality, with favor and with disfavor. My belief is, although I do not personally know it, that there is no State in this Union so far dominated by corrupt influences as the State of Pennsylvania, from which you have taken this as a model. I see no reason for our following in the footsteps of such a State. Our conditions are different. Our people are different. There is no good to come of it. We can get no good from putting a false, bad and vicious principle into our Constitution. Mr. Meredith: Will you name any court or any respectable writer on economics who has ever said that taxation by classification is a vicious principle? Mr. Hamilton: I do not know of one that has admitted it was a good principle ex- cept the Supreme Court of Pennsylvania. Now, gentlemen, I beg your pardon for taking so much of your time. I have added practically nothing new to this subject. I feel that on this point I have a right to be heard, and that I am entitled to be listened to. I speak on this subject as much for the people of the State as any man in this house. I believe I speak more for the interest of the people of the State on this point than any gentleman who advocates the opposite view. It is fundamentally dangerous to do what we are going to do. It does no good, and will never result in good, unless you believe it is good to favor, for instance, a manufacturing property over other sorts of property in your rates of taxation, or to favor no species of property over another. I do not believe that is ight. There is something inherent in me which makes me feel that people should proportionately, according to their means, bear the burden of taxation. I think it is a principle so inherently right that it is instinctively recognized by every man whose mind is not perverted by theories, and thoughts connected with theories which are unsound and fallacious. I thank you for your attention and beg your pardon for taking up so much of your time. The Chairman: The question is upon agreeing to the amendment offered by the gentleman from Petersburg. DEBATES OF THE COXSTITUTIOXAL COXTEXTIOX OE VIEGIXIA. 2127 Mr. Gwyn: I T^-ill offer a substitute for the first section. All propert}', except as hereinafter provided, shall be taxed; all taxes \\-hatsoever, whether State, local or municipal, shall be equal and uniform and for State purposes shall not exceed twenty-five cents on each hundred dollar's worth of real or personal property so assessed for the purposes of State taxation. The Chairman: Are there any further amendments to Section 1? If not the Secretary will read Section 2. Sec. 2. Except as hereinafter provided, all assessments of the value of real estate and tangible personal property, shall be at their fair market value, to be ascertained as prescribed by law. The General Assembly may allow a lower rate of taxation to be imposed for a period of years by a city or town upon such land as may be added to or taken into the corporate limits of such city or town. Nothing in this Constitution shall prevent the General Assembly in its discretion at any time after the 1st day of January, 1913, from segregating for the purposes of taxation, the several kinds or classes of property so as to specify and determine upon what subjects State taxes, and what sub- jects local taxes may be levied. Mr. Turnbull: I offer an amendment to Section 2 by inserting in line 7, after the word "■ town " the words as is imposed on such property within the limits of said city or town at the time said land is added," The amendment was adopted. Mr. Carter: Mr. Chairman, I would like to ask the chairman of the committee what is meant in the section by "'tangible personal property?" T\'hy does he use the word "tangible?" Why not say "personal" property? ;Mr. Meredith: Because we thought that intangible personal property would be dealt with better under the franchise tax. It is rcognized that the tax on intangible pioperty does not amount to anything, because nobody returns stock and bonds. It has been denounced by every writer on the subject. Mr. Fairfax: I move that the report of the Committee on Taxation and Finance, as amended, be adopted and reported to the Convention. The motion was agreed to. On motion of Mr. Faixfax, the committee rose, and the President having resumed the chair, Mr. Ayers reported that the Committee of the Whole had had under consider- ation the report of the Committee on Taxation and Finance, had completed the report and had reported it back to the Convention with the recommendarion that t~ be adopted with amendments. ]\Ir. Cameron: Mr. President, I had expected this morning to ask the Convention to resolve itself into Committee of the Whole for the consideration of the report of the Executive Committee. For some unaccountable reason the report has not yet been printed, i therefore move that the Convention take up the further consideration of that portion of the report of the Executive Committee which has already been con- sidered. The President: The question is on the motion of the gentleman from Petersburg to take up that portion of the report of the Executive Committee which has already been considered in Committee of the Whole. The motion was agreed to. Mr. Cameron: Mr. President, at the time the consideration of the report of the Executive Committee was suspended, some days ago, the question pending was an amendment offered by the gentleman from Norfolk county (Mr. Portlock) in regard to the office of the Superintendent of Buildings, the Register of the Land Office, the Secre- tary of the Commonwealth. The President: The Secretary will report the amendment. Amend by striking out all the words in lines 1. 2. 3 and 4, and insert in lieu thereof the following: " The Secretary of the Commonwealth shall be elected by the joint vote of the two houses of the General Assembly for the same term as the Governor." 2728 DEBATES OF THE COXSTITUTIOXAL CONVENTION OF VIRGINIA. The President: The question is on agreeing to the amendment of the gentleman from Norfollc county (Mr. Portlock). The ayes and noes having been taken, the result was announced, ayes 19, noes 37, as follows: Ayes — Messrs. Allen, W. A. Anderson, Ayers, Thomas H. Barnes, Braxton, Brown, Carter, Chapman, Epes, James W. Gordon, Gregory, Hamilton, Hatton, Hunton, Lin- coln, Orr, Portlock, Robertson, and Thom — 19. Noes — Messrs. George K. Anderson Barbour, Manly H. Barnes, Bouldin, Cameron, Cobb, Davis, Duanaway, Earman, Fairfax, Fletcher, B. T. Gordon, Green, Hancock, Hardy, G. W. Jones, Keezell, Lindsay, Mcllwaine, Meredith, Miller, Moncure, R. Walton Moore, Mundy, Parks, Pedigo, Richmond, Rives, Summers, Thornton, Turnbill, Waddill. Wise, Withers, Wysor, and the President — 37. The amendment was rejected. Mr. Portlock: Mr. President, I was temporarily absent from the Convention en- deavoring to get some notes I had made on this subject. I regard it as a most important matter, especially to the incumbent of the office of Secretary of the Commonwealth, if not to the State. I was absent for only a few minutes trying to secure some notes which I had made with reference to the matter upon which I proposed to address the Conven- tion. The matter was taken up in my absence, and not knowing how the vote was going I, of course, voted for my own amendment. I hope it will be the pleasure of some gen- tleman here wHo voted in the negative to move a reconsideration of this matter; in order thai I may be heard upon this subject. Mr. Lindsay: I move to reconsider the vote by which the amendment of the gen- tleman from Norfolk county (Mr. Portlock) was rejected. Mr. Portlock: I now move that this matter be passed by, for the reason that I have been unable to find the page who has taken charge of my effects during my absence, and who has removed my notes and papers from my desk in the hall of the House of Dele- gates. I iiope iL will be the pleasure of the Convention to pass this matter by for the time being, in order that I may find myself in better position to speak on this question than I am now. The President: The question is on the motion of the gentleman from Norfolk county (Mr. Portlock) to pass by the motion to reconsider. The motion was agreed to — there being, on a division, ayes 32, noes 20. Mr. Cameron: Mr. Chairman, the committee moves to strike out section 18 of the original report which provides for a board of public works, and its membership. This section is rendered unnecessary by the action taken by the Committee of the Whole on the report of the Committee on Corporations and the report of the Committee on Taxa- tion and Finance. The President: The question is on the motion of the gentleman from Petersburg (Mr. Cameron) to strike out Section 8. The motion was agreed to. Mr. Ayers: I snould like to have Section 12 read as it now stands. The Secretary read as follows: Sec. 12. A Secretary of the Commonwealth shall be elected by the qualified voters of the State at the same time and for the same term as the Governo?, and the fact of his election shall be determined as in the case of the Governor. He shall be commis- sioned by the Governor, and shall receive a salary to be fixed by law. He shall keep a daily record of the official acts of the Governor, which shall be signed by the Governor and attested by the Secretary, and when required, he shall lay the same, and any papers minutes, and vouchers pertaining to his office, before either house of the General Assembly. He shall discharge all the duties heretofore attaching to the office of Register of the Land Office, and such other duties as may be prescribed by law. All fees received by the Secretary of the Commonwealth shall be paid into the treasury ^^^M? Ayers: Mr. President, I move to strike out, in lines 11 to 13, the words: "He DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OE YIEGIXIA. 2729 shall discharge all the duties heretofore attaching to the office of the Register of the Land Office and such other duties as may be prescribed by law." Mr. President, there is no necessity of throwing the duties of these three officers upon the Secretary of the Commonwealth. You will note that by doing this you will tie your hands, and you tie the hands of the General Assembly, who, at present, can alter and change the ordinary duties of the Secretary of the Commonwealth. In so far as the duties oi tnese two officers are created by statute, and not by the Constitution, they are made fixed and determined, and, if placed in the Constitution, the General Assembly would be powerless to cnange them, although they may change, alter and amend, in so far as is consistent Avith this provision, the duties of the Secretary of the Commonwealth. The Legislature would have no power whatever to change the duties of the Secretary of the Commonwealth, in so far as those duties related to the fixed statutory duties of the Superintendent of Public Printing and the Register of the Land office. As I stated in my argument before in the discussion of this question in Committee of the whole, the Register of the Land Office is the residuary legatee of four different offices that at one time existed in this State. He is Superintendent of Weights and Measures, Superintendent of Public Buildings, and has charge of the entire machinery connected with the maintenance and supervision of public buildings. He makes con- tracts for all supplies, for heat and light, looks after everything, and is required to dis- charge the duties formerly incumbent upon the engineer in charge of the Capitol. One of the duties of that engineer was to personally repair all the locks and keys to all the doors in the Capitol. If you adopt this constitution provision you make it incumbent upon my friend, the present Secretary of the Commonwealth, to be a good locksmith. He states, as a matter of fact, that he could make the keys if personally required to do so. But there is no reason, in my opinion, to fix finally the duties of these two offices, which are created by statute and which now may be abolished by the General Assembly when there is no longer any necessity for them. There is no use at all in combining them under the Secretary of the Commonwealth. There is no economy in the measure. The records of the Register of the Land Office, and the books, would have to be kept, and will be kept, because they are the basis of the title to property, to every home in the Commonwealth, and under a recent decision of the Supreme Court it is more neces- sary than ever that they should be preserved. They ought to be kept as they are, and kept by somebody who will keep them properly, and who will furnish copies thereof without a delay. The Register now only gets $1,200 a year, with about $300 in fees, making $1,500, and there has already been consolidated into his office places which for- merly paid nearly $5,000 a year. It seems to me that joii have almost squeezed the lemon dry^ when you have made one man with a salary of $1,200 discharge the duties which formerly devolved upon officers who were paid about $5,000. But, leaving that matter entirely out of the question, it is certain that if, undr this Constitution, jou charge upon the Secretary of the Commonwealth the duties now dis- charged by the Register of the Land Office and the Superintendent of Public Printing, you will read into this Constitution some sixty to seventy-five sections of the Code of Virginia, which I submit is a thing you ought not to do. I hope the amendment will prevail. Mr. Thom: Would not your object be better attained by striking out, in lines 11, 12 and 13, the words beginning with the word " all," in line 11, and ending with the word "and," in line 13^ so that it would read: He shall discharge such other duties as may be prescribed by law. Mr. Ayers: I will accept that suggestion. Mr. Thornton: Is it not rather a difficult thing now to tell just what are the duties of the Register of the Land Office? Have they not been put upon him from time to 172 — Const. Deb. 2730 DEBATES OF THE COXSTITUTIOXAL CONVENTION OF VIRGINIA. time, so that now, if you undertake to find out what they are, you will have to run not only through the Code of Virginia, but through the general acts? Mr. Ayers: I will not bother the committee to run through the sections, but I have here some sixty-four or five sections^ all of which you will have to read into the Constitution, if you maintain this provision of the Constitution. Mr. James W. Gordon: I wish to address a tew remarks to the amendment offered by the gentleman from Danville (Mr. Withers), which added the words "Superinten- dent of Public Printing " to the language contained in the report. When that question was before the Convention I was very much inclined to, and, I think, I did, vote for putting that language into this section^^ but since that time I have made some investigation into the duties of the Superintendent of Public Printing, and have had a number of conversations with gentlemen here in this city who are experts in the printmg business, and are entirely disinterested parties. I find from them that the duties performed by the Superintendent of Public Printing are largely of a tech- nical nature. It seems to me that if we abolisli the office of the Superintendent of Public Printing it will be necessary for the Secretary of the Commonwealth to call to his assistance some person who is qualified to perform those duties, and it seems to me to be absolutely unnecessary to abolish one office and require another officer, a subordinate^ to be put into the office of the Secretary of the Commonwealth for the purpose of performing the duties of the officer whose place has been abolished. Mr. Pollard, my colleague from Richmond, handed me a letter this morning, which I think sets out succinctly the reasons why the office of Superintendent of Public Printing should not be abolished. I think this is a reply to the question v^hich was just asked me by the gentleman from Danville (Mr. Yv'ithers). I imagine that this letter was written to Mr. Pollard in response to a request for some information on the subject, and that it was v/ritten by a practical man: The statute requires the Superintendent of Public Printing to take an oath that he is a practical printer, skilled in, and acquainted with the details of the printing business, showing the importance the General Assembly attaches to technical knowledge. . He has to prepare specifications for the printing and binding, on which bids are to be made, and then to see that the specifications are complied with, and if these specifications are loosely made, much loss can result to the State. He must not only possess a knowledge of the printing business, but also of binding, for this branch of the business is equally as important as the printing. He has to pur- chase all paper used by the State, and must therefore, have a knowledge of what size, weights and qualities are needed for the different departments. He must know how much paper should be used on each job, and it is his duty to see that the paper of the State is not wasted. Let me state right here that I understand from a number of printers in the city of Richmond that wastage is a very large item of the cost of the printing department of the State, and that there is no item in which it is easier for fraud to be practiced than in the quality of the paper furnished. It is his duty to supervise the printing and to see that it is not unduly spread out, eo fthat more pages are not put into a book than should go there. The most important and laborious duties the Superintendent has to perform, is the auditing of accounts, as it involves the measuring of every piece of printing done; and here comes the great saving to the Commonwealth, as it is an easy matter to impose on a non-expert and secure large pay for bad work. I wish to enforce that right here. As I understand^ it is the duty of Superinten- dent of Public Printing to advertise for bids and to award the printing to the lowest bidder. When the work done under those bids comes in it is his duty to get that work measured and to find that the work, as completed, corresponds with the bid made. It is very often the case that a large saving results to the State of Virginia by this system of measuring, which can only be done by a practical printer. DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 2T31 Mr. Withers: I would like to ask the gentleman if the public printer ever sees the contracts for the various departments; if they are not made and delivered directly to the head of the departments without his ever seeing them — Mr. James W. Gordon: I believe the gentleman is better acquainted with those details of the government than I am; but I imagine that when a bid is accepted by the public printer the work comes in under that bid and that it becomes a part of his duty to measure up that work and see whether it has been faithfully performed, and whether the bill which is rendered for the work is a just and proper one. Mr. Lindsay: Can the gentlem.an tell what is the costs of the public printer's office? Is there a clerk or an assistant allowed to him? Mr, Gordon: I really cannot inform you on that question. A large portion of the time of the superintendent is taken up visiting the offices of the different contractors and pushing forward the work. In addition to this, it takes the time of one man during the sessions of the Legislature to look after the printing, binding and distribution of the work of that body. The superintendent has to box and ship all the acts of the General Assembly to the different counties and cities of the State and WTap and mail all the advance sheets to the judges, clerks, Commonwealth Attorneys and members of the Legislature. He has to keep a separate account for each department of the government showing the cost of printing, binding and paper for each job. The average cost of the public printing and binding is about $27,000 annually, and without proper supervision would be greatly increased. As to reading proof sheets by the superintendent, that is imprac- ticable, except on rare occasions. It is estimated by experienced and conservative printers that it would take all the time of four men (two proof readers and two copy holders) to read the proofs of the public works. This letter is signed by J. N. Carlton. He is a printer here in Richmon^^ and a responsible gentleman. I have no doubt that the gentleman from Danville (Mr. Withers) will himself admit that these are the duties of the Public Printer I say that these duties cannot properly be performed by anybody except a practical printer^ a man who has come up through a printing office and understands the work of buying paper, testing paper, writing contracts, measuring work and all that sort of thing. It does seem to me that for these reasons the motion to reconsider the vote by which the amend- ment of the gentleman from Danville (Mr. Withers) was adopted should prevail. This language ought not to be inserted into the report. Mr. Cameron: Mr. President, it is supposed by the advocates of the merger of the two offices, that one clerk in the office of the Secretary of the Commonwealth will do the work now done by the Register of the Land Office. As I understand the amend- ment offered by the gentleman from Wise it comprehends the two objects of striking out from tnis report the office of Register of the Land Office and also the merging of the office of Public Printer into the office of the Secretary of the Commonwealth. I am unfortunate, Mr. President^ in having two of the members of my committee absent to- day. I must, therefore, be largely guided by the knowledge of the feelings and wishes of the individual members of the committee which I gathered during our previous con- versations. The committee was not entirely agreed upon the subject of merging the office of Register of the Land Office into that of the Secretary of the Commonwealth. The committee was unanimous in believing that it would be improper to merge the office of Public Printer into the office of the Secretary of the Commonwealth. Under those circumstances we believed the question of economy involved would be infinitesi- mal, and that, assuming that the statement of the inefficient manner in which the duties of the superintendent of public printer have been discharged in the past is true, a Con- stitutional remedy is not what is needed. To provide by a Constitutional provison for the duties of the superintendent of public printing and for properly scheduling such duties it seems to us is training a Columbiad gun upon a sparrow. I will therefore be- lieve I am voicing the will of the committee of which I am chairman by accepting the amendment of the gentleman from Wise. 2732 DEBATES OF THE COJSTSTITUTIOISrAL CONVEjSTTION" OF VIRGINIA. Mr. Withers: Mr. President^ I am infinitely more sorry at having to say anything than anybody is at having to hear me. That is not modesty, but it is the result of ner- vous strain and tension that are telling upon me at a rate which I had no idea I could be susceptible to. But I do wish to call the attention of the Convention to the reason why this motion was made, and in the very briefest possible manner explain one or two things. This matter is in the line of the investigation of a special committee created by this body for that purpose, and while it may be training a Columbiad gun, or even a 15-inch gun upon a sparrow, it was a systematic policy that the committee found neces- sary to adopt in order to effect changes in government that would contribute to efficiency and economy. The amendment involves two offices, the superintendent of public printing and the register of the land office. I submit to you^ Mr. President, and gentlemen of this Convention, that the very best answer to every argument adduced upon this floor is the fact that this Convention has had to complain again and again because its own printing is not done; and the system which creates such a condition of affairs ought to be remedied even if we have to use a Columbiad gun or a drastic measure. I will say, in answer to the gentleman from Richmond city, that I have the testimony of experts who have testified to me in person. I did not bring their letters here because it is unnecessary to do so, and I do not desire to draw private citizens into a controversy of this kind. This oflGlce, under the law as it now exists is practically not worth a baubee, a flip of the fingers to the State. That is the testimony of expert printers who have seen fit to express in private what they did not care to say in a public controversy. One more thing. You observe that the argument for the retention of this office, outside of the Convention, comes from a printer who gets the contract. Not that I know that the gentleman who wrote that letter has, at present, a contract, but the print- ers, and by printers I mean the men who own the plants and run the establishments, are the beneficiaries of this system and for that very reason the amendment which I pro- posed is not favorably received by them. The law of 1893-94 compels the sending of two slips of paper from the printing establishment to a different establishment in order to have a little piece of wire run through it_^ and that is called a binding. There is where our trouble conies from and there is where the language of this amendment " as may be prescribed by law " becomes effective, so that this statute can be wiped out and a contract can be let for printing and binding, so that the work may be properly, efficiently and quickly done. This would be no hardship upon the Secretary of the Commonwealth because other States of this Union, equal in intelligence and in the administration of their affairs to the State of Virginia, the duties of the public printer are performed by a clerk in the office of the Secretary of the Commonwealth. When gentlemen get up on this floor and seriously contend that the duties of the office of public printer are of such importance as to require the attention of a State official, instead of that of a subordinate employe^ it can be answered only with a smile because it is absurd. It is not worth a serious argument to respond to it, because the facts stare us in the face. When a man, in order to sustain his position in argument, says that an official ought to be retained upon the pay roll in order to mail the reports of the General Assembly, we can treat it only with a smile. Any contractor will gladly do the boxing and packing in order to get the contract, unless there is a combination to prevent it. As to the Register of the Land Office^ I want to call your attention to one fact. I have looked at every section of that long list that the gentleman from Wise (Mr. Ayers) flourishes in his hand and all of the duties combined mentioned in those sixty-four sections amount to practically nothing. The duties of a locksmith can be performed by any employe on that pay roll which last year cost the State $10,940 under the head of employes of the Capitol. The duties of the Superintendent of Public Buildings can be designated by the Secretary of the Commonwealth to the most efficient man on that roll E'ZSATZS or lEE COXSTIXriIOyAL COXTEyilOX OP TIEGIMA. 2733 and be made responsilDle to Mm for ihe proper performance of iliose dniies. Tlie records tliax lie in ihai office ouglii lo "be kepi where the Secretary of the Common- wealth keeps the records of the State of Virginia. There is nothing in the way of uniting these positions. It does not make the Secretary of the Commonwealth a lock- smith. It does not make him the Superintendent of Grounds and Buildings. He has a force of employes ai his command ^hich costs this State Sll.OOO per annum, any one of whom he can designate for these positions, and force and compel them to fill them. As to the Secretary of the Commonwealth, the issuing of fiity-two land grants per year, under the Great Seal of the State, will not he a very gi^eat hurden for him. On motion of the gentleman from "VTise the library has been taken away from the Secretary of the Commonwealth. By the action of this Convention sitting in Committee of the "Whole, by a very large majority, the subject of charters has been taken away from the Secretary of the Conmionwealth. What will the Secretary of the Commonwealth have to do? He ought to be, in my humble opinion, the most important officer, next to the Executive, and possibly the First Auditor. There will be practically nothing left for him to do. The evil of keeping up the office of an unnecessary official is continuous. There is always a demand for an increase of salary, through the Legislature, due to the fact that he is a good fellow and an excellent officer. The evil in it is seen in the con- tinual attempt to increase the salaries of the basement officers. The Senate appropria- tion bill of this session contains a clause which increases the salary of one of the base- ment ofhcials $300 per annum. TTe are told that these are but minutiae and details of economy. To that I assent, but I say you have thrown many economical measures of importance aside, and if you now refuse to consider the details of economy what is left? TThen we are told that we cannot reduce the tax rate of the State of Virginia will it be, forsooth, because there is no need for the tax or because there are unnecessary officials occupying desirable places to spend the money upon, in order that the surplus may be gotten rid of? Mr. Ayers: I desire to say ihat what the gentleman from Danville O.Ir. Withers) has stated may be true, and yet there is no sufficient reason given to this Convention for devolving the duties of these two officers upon the Secretary of the Commonwealth. By reason of the articles which have been adopted by this Convention the duties of the Secretary are greatly lessened and he will have time and opportunity to discharge many other duties. You have now, in the Constitution, under my amendment, a provision by which the General Assembly may devolve other duties upon him. My objection to this provision is that you write into the Constitution sixty sections of the Code and numerous acts of the General Assembly. I do not believe there is a member upon this fioor that can tell one-quarter of the duties of either one of these officrs and yet you say that the Secretary shall discharge the duties heretofore devolving upon these officers, ^l-.Ir. Cameron: Before making the proper motion to secure the action of the Con- vention in regard to this amendment, I wish to move a suspension of the rules so that the supplemental report of the committee on the Executive Department may be con- sidered in Convention without reference to the Committee of the Whole. It is a very short document, presents very definite issues, and I think no difficulty will arise. I believe we will save time by adopting the course I suggest. The President: If there is no objection of the suggestion made by the Chairman of the Committee on the Executive Department it will be adopted.. ^1t. Cameron: I nov- move that the chair be vacated until 4 o'clock this afternoon. The motion was agreed to and the Convention took a recess until 4 o'clock P. M. AFTERNOON SESSION. The Convention reassembled at the expiration of the recess, the President in the chair. 2734 DEBATES OF THE COXSTITUTIOIsTAL CONVENTION OF VIRGINIA. EXECUTIVE DEPARTMENT. The President: The question is on the amendment offered by the gentleman from Wise. The proposition being divisible, the question will be taken first on the part of the amendment relating to the Register of the Land Office. The question having been taken, the result was announced — ayes 31, noes 14. So the amendment was agreed to. The President: The question recurs on the second portion of the amendment relat- ing to the duties of the Public Printer. The question having been taken, the result was announced — yeas 36, noes 19. The amendment was agreed to. Mr. Cameron: Mr. President on behalf of the committee I move to amend Section 12 by striking out lines 4, 5, 6, the words " he shall be commissioned by the Governor, and shall receive a salary to be fixed by law." The requirement that he shall be commissioned by the Governor is in the present Constitution, and there is no reason whatever for it in this report, as there is no pro- vision of the kind as to any other executive officer. The provision that he shall receive a salary to be fixed by law is superfluous in this section^ because if the members will turn to the supplemental report they will find that Section 15 provides that the salary 01 every officer of the executive department shall be determined by law. Therefore the committee ask that these words in lines 4, 5 and 6 be stricken from Section 12. The amendment was agreed ^o. :^r, Portlock: I presume the resolution which I offered is now in order. Mr. President and gentlemen of the Convention, I offered a resolution, some days ago, amending Section 12 of this report^ which had for its object the election of the Secretary of the Commonwealth by the joint vote of the two houses of the General Assembly, instead of the election of that officer by the direct vote of the people. When I offered this resolution I did not do so in any spirit of captiousness or trivial objection, but because I believed that the election of the Secretary of the Commonwealth by the people would be detrimental to the best interests of the State of Virginia. Therefore, when this motion was taken up this morning during my temporary absence from the hall and was voted down by this body, I felt more than concerned about the situation. It was with some delicacy that I asked some gentlemen who had voted in the negative, having myself voted in the affirmative, to move to reconsider. I did so because I felt it to be my duty, in the interest of the State of Virginia to be heard upon this question. I have, Mr. President, given this matter some thought. I felt, after hearing the announcement of the vote this morning, that the majority of the body who had voted on this resolution offered by me had, perhaps, voted on this measure inadvertently, without having given the matter the consideration which I feel I have given to it. I therefore ask the consideration of this Convention for a short time to permit me to express, my views as to the necessity of supporting the resolution whch I have offered. Mr. President, this office of Secretary of the Commonwealth is a far more important factor in the official arrangement of our State government than is generally supposed. This officer is more or less remote from the people of the State of Virginia by reason of the fact that his duties are performed under the acts of the General Assembly and under the supervision of that body rather than under the supervision of the electors of the State of Virginia. For that reason, I say, his duties have not been generally under- stood or appreciated. They have not been as generally commented upon as the official duties of the other officers of this Commonwealth, and I do not think, with all due deference that the members of this Convention have placed a proper estimate upon those duties. For that reason, as I have stated, I felt that there was some inadver- tence and, I apprehend, some indifference involved in the vote upoD this question this morning. DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. 2735 As to the importance of this office, and therefore the necessity for securing an efficient and acceptable incumbent in the office^ I beg to call your attention very briefly to some of the duties of the position which the Secretary of the Commonwealth has to perform. In the first place, Mr. President and gentlemen, the Secretary of the Com- inonwealth is to all intents and purposes the head of one of the bureaus of this State — one of the official bureaus. He is the State Secretary, so to speak, of the Governor. It is his duty at all times to inform himself as to all the official acts of the Governor and to keep a daily record of them. He is brought into intimate personal and official con- tact with the Governor in the discharge of the duties of his office as Secretary of the Commonwealth. He is the official amanuensis, so to speak^ of the Governor, and in that way his duties are very closely connected with those of the office of the executive of this State. In additon to that, he has various duties to perform under the general supervision of the General Assembly of Virginia and. so far as those duties enter into his official actions, his office amounts to an official bureau. The Secretary of the Com- monwealth is the keeper of the great seal of the State. He has to issue all commis- sions made by the Governor^ and to impress upon them his signature and the seal of the State of Virginia. He is the official librarian of the State, although under the consti- tutional provision, which will probably be incorporated into the Constitution in this State, he may not be designated as " librarian," yet the strong probability is that the duties which he performs now will devolve upon him under this new commission^ whether he be designated as librarian or not. At present he has the very responsible and professional duty of purchasing all the books for the public library, which, of itself, necessitates a high degree of intelligence and culture. Mr. Lindsay: Under the new Constitution those duties are certainly taken away from him. JMr. Portiock: I am speaking distinctly as to what his present duties are and what his probable future duties will be under the new Constitution. I do not think the office of the Secretary of the Commonwealth will be wholly disconnected from the public library, even if the new corporation be established in the Constitution to be framed by this body. Mr. Lindsa}': There is no doubt that the duties are entirely removed from him and that ir is hardly fair to use as an argument the fact that he will perform the duties of public librarian when^ under the new Constitution, those duties are absolutely devolved upon another branch of the government. Mr. Portiock: I understand that this propo'sed library commission will have gene- ral supervison and charge of the public library. How far, in their discretion, they may impose duties upon the Secretary of the Commonwealth I cannot say. I believe that, notwithstanding this commission, he will have important duties to perform in that direction. But whether that be true or not, eliminating if you please his official dutes so far as the public library is concerned, you will find that the duties whch still pertain to his office make it a most important office in this State. He has charge of the seal of the State. He has sole charge of the public library, and the library commission, so far as I have been able to ascertain^ will not deprive or take from him the duties which now devolve on him as the custodian of public documents. To him is confided the sale of public documents, such as copies of acts of the General Assembly^ copies of the reports of the Supreme Court of Appeals, and special laws which he is required to cull out from the acts of the General Assembly and send broadcast throughout the State for the en- lightenment of the people upon general subjects, such as election and oyster laws, and others. The Secretary of the Commonwealth is the keeper of the executive journal. He is supposed to be in his office daily and to record the transactions of the Governor. In that I conceive a most important duty devolves upon him. He records all the charters, whether issued under the present laws or under the provisions to be made by this body, 2736 DEBATES OF THE COXSTITUTIOXAL CONVENTION OF VIRGINIA. and he is the custodian of these original documents. All these duties are confided to the Secretary of the Commonwealth. He is the custodian of all records to be recorded in his office. These charters, as we all know, are most valuable and important, and are referred to by the people every day — not only by our own people in this State, but through the entire Union — who apply to the Secretary for information touching these charters and for authenticated copies of these important documents. They must be recorded somewhere. There must be a custodian somewhere. Whether they are here- after granted by the court or by the Legislature^ or recommended by the commission to be granted by any power on earth, they are still to be recorded. They must still have a custodian. That is the most important function to be performed by the Secre- tary of the Commonwealth, as we must all admit. In addition to that, gentlemen, the Secretary of the Commonwealth has most important duties to perform with reference to State elections. In all State elections it has heretofore been his duty^ and it will hereafter be his duty, if he has any duties to perform as such officer, to send out prior to every election the names of all the candidates for State and Federal offices. He has to send out registration blanks to 118 electoral boards in the State of Virginia. He has to send out poll books. After the election he is a member of the State Board of Can- vassers, whose duty it is to count the returns and make up those returns and certify them. He must furnish these 118 electoral boards throughout the State with correct lists of the names of the State and Federal officers to go upon those tickets. That, I say, is a most delicate and important duty when you come to consider the consequences which may be involved in a mistake in the names of those candidates for office or in the canvassing of those returns and certifying the same. His duty in that respect is, of course, all important to the people of this State. He is also a member of the military board, and, as I understand it, has charge of the funds of that board. That, also, is an important position. That is an important adjunct to the duties of his office, and one that cannot be depreciated nor ignored in summing up the important and indispensible functions performed by the Secretary of the Commonwealth. In addition to this, the Secretary of the Commonwealth signs all warrants on the treasury for all printing in the State of Virginia^ which is a most important duty. It is incumbent upon him to issue commissions to all the judges elected by the Legislature and to all notaries public and to other officers appointed either by the Legislature or the Governor of this State. This is also necessary work, and must be performed by this officer. Now, as to the duties which he is called upon to perform which may not seem to be strictly official, but which, nevertheless,^ are important to the State of Virginia and to the people of this State, as well as to people living without its boundaries. He re- ceives letters every day in the year asking for information. There are secretaries of every State in this Union, and they are the official who is generally known to people throughout the Union as the only person to whom people outside of the State can with any certainty, address letters with reference to matters pertaining to the material in- terests of the State and to the interests, also, of the individuals who write those letters. I am told by the Secretary of the Commonwealth that he receives letters asking for information about every subject that could possibly be suggested to the human mind, relating to the various interests of this State, and while it is not his official duty to answer those letters, he feels that it is a duty, nevertheless, which he ought to perform in the interest of the State. I am told that the postage on those leters amounts to a considerable sum of money in the course of a year, going up into the hundreds of dol- lars. The Secretary of the Commonwealth is the only person to whom people outside of the State feel that they can address letters of this character with any assurance that they will have a prompt or intelligent reply. So much, gentlemen^ for the duties of this office. I beg your pardon for having gone into this question so minutely, but I have felt that it was proper to show this Convention the importance of this office, and to show the necessity for securing an officer who would be efficient in the discharge of the duties which devolve upon him in this capacity. DEBATES OE TPIE COXSTITUTIOXAL COXVEXIIO^ OE YiEGIMA. Trhat will be the result if you make the election to this office so difficult, so burden- some financially and otherwise, as to make it impossible to secure the services of a gen- tleman ^vho will effectively and acceptably fill this position? The position I take here is that if the Secretary of the Commonwealth is to be elected by the people of this State_ he will be compelled to make a State canvass from one end to the other of this Commonwealth, traveling,, as he will be compelled to do, from the seashore to the re- mote western boundaries, all the way from Norfolk to Scott or Lee county, a distance of 600 miles_ and 250 or 300 miles from the south side to the northern neck of the State. And by doing that it will take this officer away from the discharge of his duty at the very time when he would be most needed. He would be compelled under those circum- stances, to do as every other aspirant for nomination and election has to do, go out into the campaign, and without any reference to the question of expense, it would take this officer from the discharge of his duty at the time of all others, when he is required to be in his office to discharge the most important duties of that office. TThy, gentlemen of the Convention^ at the very time when this officer would be compelled to go over the State of Virginia for the purpose of making his campaign, he would be compelled to be ir his office attending to the duties of that very election, duties whch he could not turn over to his assistants, duties in which if a mistake were made, it would be a reflection of the most serious character upon this officer_ and of serious consequence to the person, the candidate in whose case the mistake may have been made. I want you to remem- ber, gentlemen, that he is a member of the canvassing board, and as one of that board he will have to pass upon the count in his own case. Z\Ir Cameron: The gentleman has evidently not read the section which he is mov- ing to amend. It distinctly provides that his election shall be ascertained in the same manner as that of the Governor. Mr. Portlock: I beg your pardon. I may be wrong as to that. I did overlook that provision in this section. He did not have to pass on his own case. I am glad to recall that that difficulty was obviated by the committee. But certainly at a time when he ought to be in his office attending to the duties relating to that election, he would be com- pelled to be absei-t from his office and to neglect those duties. I say that, of itself, ought to be a sufficient ar.gument against the election of this officer by the people. So much for the inconvenience, and perhaps, disaster to the State of Virginia, involved by his absence from his office at such a time. I have not been so fortunate myself as to have had the experience of making a State canvass; but every aspirant for office in this State who has made a State canvass must know and does know what it means in the way of financial cost to be a candidate. I assert, upon information derived from gentlemen who have made these State canvasses, that at least one year's salary of this officer, the Secretary of the Commonwealth, ^vould be necessary as a campaign fund to secure his election or re-election to the office. The Secretary of the Commonwealth gets a paltry salary of $2,000 a year, and in addition to that he gets some little commissions from the sale of public records, acts of the General Assembly, Code, and other public documents, amounting in the aggregate to about $360. You see that the total income, or rather salary and commissions combined, amount to not over the sum of 2,360 a year. Vill this Convention say that any man occupying this positon as a State officer can afford, with that small salary, to take the office in the first place to say nothing of the pros- pects of p. drain upon his small salary at any subsequent election when he might desire or feel impelled to again run for the office. Vill anybody say that any man who has the capacity to fill this office, and who might otherwise take it at the small salary of S2.360 a year, would take it_ when the necessity would be staring him in the face of making his canvass, which would cost him at least one year's salary, and perhaps im- poverish and pauperize him? I do not know any gentleman who would be so anxious for office or to serve his State as to seek this office under these circumstances. In addi- tion to the legitimate expenses, in addition to the contributions which he would be called upon to make to the State campaign fund and to the county fund, he ^vould. as 2738 DEBATES OF THE CONSTITUTIONAL CONVENTION- OF VIRGINIA. everybody knows who has been a candidate in an election in the State or county or district, be expected to contribute, to donate to every church built and to be erected, every Sunday-school picnic and handkerchief bazaar, every conceivable charitable object and entertainment, to say nothing of burying the dead. These things appear trival, but they cannot be ignored, as a condition in the election of officers in the State, city or county. Therefore I say that when you consider the importance of this office, when you con- sider that it would be impossible to secure the service of a proper and acceptable man for the small salary v/hich is paid, because of the difficulty, pecuniary and otherwise, of obtaining his election and re-election, it ought to be manifest that this officer should not be elected by the people. I take it that very few men capable of performing the duties of this office will accept this positon for one term, would give up their business or their professional duties to accept this office for the small salary involved^ if they could not look forward to re-election to that office. It is evident to my mind that you will not get a proper and desirable person to fill that office for the first term, if he knew that he would have to spend a large portion of his income, made during the first year, in order to be elected to a second term. I have heard from members of this committee, although not upon the floor of this Convention, that the members of this Executive Committee have passed lightly over this matter, much more lightly than I feel they ought to have done. I have heard it asserted that this is a " tub thrown to the whale;" that they have declined to provide for the election of other officers of this State by the people, that they have deprived the people of the right to elect their judges^ and I agreed with them: That they have denied to the people the right to elect their auditors of public accounts. They have not had the right to elect the Register of the Land Office, the Superintendent of Printing, or perhaps the Commissioner of Revenue, and that it v/as now necessary the people should be appeased, and so here is an insignificant officer, and we will throw his office to the people for election, as a sop, a " tub to the whale." I say^ gentlemen, that I am constrained to believe, in view of such assertions as these, that this matter has been passed over more lightly than the importance of the office would seem to justify or require. I feel, Mr. President, that I have at least performed my duty in this matter. I feel that I have spoken only in the interest of the State of Virginia. I want to assure this Convention that I have no reference to any individual, either to the present incum- bent or any future aspirant to this positon. I believe this to be a most important office. I believe this is not the " tub " which should be thrown to the whale. I believe that this officer should be elected by that body which has the immediate supervision over him and under whose laws he acts directly. He is not brought in contact with the people. He will be at a disadvantage in making his campaign along with the other aspirants for offices in this State. He is not brought into contact v/ith the people of the State. They come into contact with the Governor. They come into contact with the treasurer and other officers, but his work, so far as the people are concerned, is done more largely through the mail. He is answerable to the Legislature for his conduct of his office and for these reasons there can be no reason for his election by the people. I say that I feel I have done my duty in showing in this manner which has been unsatisfactory to myself and I fear also to you, the great importance of this officer, and the necessity for his election by the Legislature rather than by the people. I leave the question for your determination. The President: The question is upon the amendment offered by the gentleman from Norfolk county (Mr. Portlock). The question having been taken, the result was announced — ayes 21, noes 40. The amendment was rejected. The President: The question is upon agreeing to the adoption of Section 12 as amended. The section as amended was adopted. DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 2739 Mr. Cameron: I move that Section 11 be adopted. The motion was agreed to. The President: The Secretary v;iH read Section 13. Sec. 13. A State Treasurer shall be elected by the qualified voters of the State at the same time and for the same term as the Governor. His powers and duties shall be prescribed by law. Mr. William A. Andersen: I desire to offer an amendment to this section to which I invite the attention of the committee. I move that the following v^ords in Section 13 be stricken out and the words that I here present be substituted in lieu thereof: Strike out the words "by the qualified voters of the State and at the same time and for the same term as the Governor," and insert in lieu thereof the following: By the joint vote of the two Houses of the General Assembly, for the term of four years. The effect of this amendment will be to i^rovide that this officer shall be selected in the same manner in which the other principle fiscal officers of the State Board of Public Accounts, in charge of the co-ordinate departments of the government, are to be selected. I do not know whether the Executive Committee have committed them- selves past recall to the mode of selecting this officer as provided in this report. I hope they have not. I can see no reason why either of these officers should be selected by the people. They are purely bureau officers requiring certain methodical business qualifications, of which the General Assembly will be far more competent to judge than the qualified voters of the people of the State. To require that the Treasurer of the Commonwealth should be chosen as a political officer by popular vote, would be to throw his office, which is purely an administrative office into the vortex of party politics, an^ to impose a burden upon the income to be derived from the office w^hich many men who would take the place, would not be willing to assume. It will be apt to give us, for this position, a politician instead of a capable business man. Mr. President, I am as much in favor of popular government as any member of this Convention. I am as much opposed to restricting the legitimate exercise of the powers of government by the people, which they can properly and wisely exercise, as any man in this Convention. I want to ask the gentlemen of this Convention to refiect for a moment, and to answer me this question; What government to-day upon the face of this globe is more efficiently administered in all of its departments than the govern- ment of the United States? Look at its great Post-office Department, which is operated like clock-work, and which has proven a benefaction to the people of this country, no matter what political party is in power. Look at its Treasury Department in the great government, the creation of the brains of the greatest artificers of government that the world has produced, and which statesmen^ publicists, historians and jurists, the world over, have pointed to as the most perfect form of representative government the world has yet given, a government in which the will of the people is exercised in all matters which it is necessary that they should absolutely and directly control, and yet, according to the original conception of this government there is but one set of officers chosen by the people, the members of the House of Representatives of the Congress of the United States. To-day, Mr. President, out of 150.000 to 180,000 officers in the Department of the Government of the United States, less than 330 are selected by the direct vote of the people except the members of Congress. How can you have a more satisfactory example of the success of representative democracy than in the republic of the United States under the National Constitution? I want to ask why a mere bureau officer like this should be required to be selected by a political con- vention, because after all the selection is made by the political convention? I believe a better man for the place can be selected by the representatives of the people than by the people at large. Every argument, Mr. President, and every consideration and 2740 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. every reason that would prompt us to provide for the appointment of the Auditor of Public Accounts by the General Assembly, or by appointment by the Governor subject to confirmation of the General Assembly applies to the selection of the Treasurer. These ofiicers will be at the head of co-ordinate departments, having similar duties t& discharge, each being a check upon the other, and if one is to be selected by the people the other ought to be selected by the people. I will take no more of the time of this Convention. I hope the gentlemen of the committee v/ill not insist upon this mode of selecting these officers, and that it will be the pleasure of the Convention to decide that they shall be selected as proposed in my amendment, by the General x^ssembly in joint session, and they shall be nominated by the Governor subject to the approval of the General Assembly. Mr. Withers: Mr. President, with the permission of the Convention I would like to call attention for one moment to the beauties of consistency. The Convention will observe that this report, as originally presented, supported by the statement of the ranking members of the committee on the floor of this Convention, provided that if the Treasurer and the Attorney General and the Lieutenant Governor were on the Board of Public "Works and they were the officers or the majority of them who were to assess the property of the corporations for taxation, they should be elected by the people. Since that unfortunate speech was made the corporation commission has been created, and this Convention held the method of the election of these ofiicers in abey- ance for the moment, in order to find out whether it was to be permitted that the people should elect a corporation commission which was to perform the duties the Board of Public Works formerly performed. It was argued as a reason, upon this floor, and upon the floor of the House of Delegates, where this Convention was then in ses- sion, that these executive officers of the government performing the duties of the office of the Board of Public Works were to be elected by the people, and yet the very com- mission that is to perform the duties this board was to perform is to be named by the Governor and confirmed by the General Assembly. That is consistency No. 1. Let us see another thing We have heard a eulogy pronounced upon the Executive Officer of the United States Government, and at the end of it a simple question pricks the bubble, because they v^eve not selected in the manner that the amendment, offered by the gentleman, proposed to select them. This oflicer is elected by the people in most of the Commonwealths of this Union. The great State of New York elects its Treasurer by the vote of the people. The bud- get of New York will make the onerous duties of the Treasurer of Virginia seem small in comparison, and yet the duties of that office have been satisfactorily adminstered under the elective system. Why is the Treasurer any more a bureau officer than the Attorney General? One is the head of the Legal Department of Virginia, and the other is the real head, although not actually the practical head of the Fiscal Department of Virginia. I submit, therefore, in all seriousness, that we are in this position: We have been told by the gentlemen that if this officer performs a certain duty, to wit, the assessment of the property of corporations for taxation, he must be elected by the people. Imme- diately subsequent thereto we create a commission for that purpose, and say that it shall not be elected by the people. The people are incompetent to elect anybody, after the election is over. But they make most admirable selections before it is over. Now, if my friend, whom I esteem so highly, will excuse a bit of pleasantry, I would call attention to the fact that the great old county of Rockbridge has fared exceedingly well at the hands of the people. It has the Attorney General. It has the Treasurer. It has the sergeant-at-arms of one of the Houses of the General Assembly, and certain employes in the departments affected by this very amendment. Now, why, forsooth, should we have an amendment destroying the right of the people to select from such a great county, a county composed of great men, of wise men and good men, the successors to the present incumbents of those offices? DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA, 2741 The President: The question is upon agreeing to the amendment offered by the gentleman from Rockbridge (Mr. Anderson). The ayes and noes were ordered and taken. Mr. Braxton: I am paired with the gentleman from Louisia (Mr. Gordon). If he were present he would vote " nay " and I should vote " yea." The question having been taken, the result was announced — ayes 28, noes 30, as follows: Ayes — Messrs. Allen. W. A. Andersen, Ayers, Thomas H. Barnes, Bouldin, Brown, Carter, Dunaway, Flood, Gilmore, James W. Gordon. Hamilton, Hancock, Hatton. Hubard, Hunton, Claggett B. Jones, Mcllwaine, Meredith, Orr, Portlock, Robertson, Stuart, Tarry, Thom, Waddill, Willis, and Wise — 28. Noes — Messrs. George K. Anderson, Barbour, Blair, Boaz, Cameron, C. J. Campbell, Davis. Earman, Eggleston, Fletcher, B. T. Gordon, Green, Hardy, G. W. Jones, Keezell, Lincoln, Lindsay, Miller, Mundy, Parks. Pedigo, Phillips, Richmond, Rives, Summers, Thornton. Turnbull, Walter, Withers, and the President — 30. So the amendment was rejected. Mr. Cameron: 1 move that the section be adopted. The motion was agreed to. The President: The Secretary will read Section 14. Sec. 14. An Auditor of Public Accounts shall be elected by the joint vote of the two Houses of the General Assembly for the term of four years. His powers and duties shall be prescribed by law. Mr. Barbour: Mr. President, I move to strike out the words "by the joint vote of the two Houses of the General Assembly for the term of four years,' and insert in lieu thereof the words: "By the qualified voters of the State, for the same term as the Governor." Mr. Cameron: Mr. President, I am aware that there is a superficial inconsistency in the report as submitted. It is true that when the subjects as to the manner of the selection of these fiscal officers was before the committee we waited to see what weight was given to the fact by the majority of the committee that these officers might consti- tute, in the future, a part of the membership of the board charged with the assessment, for taxation, of corporate property. It was claimed by the majorit3^ element in the Executive Committee that if that should prove to be the case, the majority of these officers should be elected by the people. After the Committee on Corporations and the Committee on Taxation and Finance had reported, and their reports had been as they now stand adopted by the Committee of the Whole, another meeting of the Executive Committee was held, and the majority instructed me, as chairman, to stand by the recommendations as made. I will not say, because it matters not now, what my indivi- dual positon was with regard to the matter as to which we have just taken a vote. It is sufficient to say that I felt, in loyalty, bound by the action of my committee. In spite of the apparent superficial inconsistency here, I stand prepared to argue that there is an essential difference between the office of auditor and the office of treasurer which v-ould account for the difference in the method of selection. The treasurer of the State has no other function than to honestly disburse the public revenue. The Auditor of Public Accounts, on the contrary, is the arbiter of the financial relations between the Sta^e and the accounting officers of every city, town and county in it. I think that sug- gestion is sufficient to gain the assent of every rational mind to the danger that would exist if this officer was placed in a position of struggling, first for his nomination, and then for election. There can be no doubt that there would be a tremendous temptation to exchange pecuniary favor for political influence with those financial officers in the different counties and cities of the State who constitute, as a rule, the great political factors in the control of those divisions of the State. Human nature is human nature, after all, and a man holding this office, knowing that whether or not he obtains the 2743 DEBATES OF THE CONSTITUTIO^tal COIsTVENTION OF VIEGII^IA. political endorsement he desires is largely dependent upon his relations with the per- sons holding the offices of treasurer, sheriff, and commissioner of the revenue in the counties, would be tempted beyond the power of the average man. I am in no condition, Mr. Chairman, to make a long speech, nor do I think it neces- sary to do so. I think the reasons already given are cogent, and ought to be compell- ing. I request the Convention to sustain the report of the committee, and vote that the Auditor shall be selected by the General Assembly. Mr. Hancock: Mr. President, I was a member of the Committee on the Executive Department. As stated by the gentleman from Petersburg (Mr. Cameron) the chair- man of that committee, there was great difficulty in arriving at what might be con- sidered consistency in the matter of the election of the several officers of this depart- ment. Some members af the committee were in favor of electing the Treasurer and the Auditor by the General Assembly, provided three out of the five members of the Board of Public Works, which assesses the taxes on corporations, could be elected by the people. When it was decided that the Board of Public Works should be abolished, then a majority of the committee, I think, favored the election of the Treasurer and Auditor of Public Accounts by the General Assembly. When the question of the elec- tion of the Treasurer was before the Convention a few minutes ago, I voted to elect this officer by the General Assembly because I believe the financial officers of the State should not be political officers and dependent upon political conventions for their positions. I believe the committee were nearly unanimous in favor of the election of the Auditor of Public Accounts by the General Assembly. The Auditor of Public Accounts is the head of the fiscal department of the State, and manages the financial affairs of the Commonwealth. He has to deal in a financial way with hundreds of officers and with numerous corporations. One hundred and twenty treasurers have to make monthly settlements with him. Over tv/O' hundred Commissioners of the Revenue receive their instructions from him, and make annual reports to him, besides other reports in relation to license, etc. Without going into detail as to all of his many varied and responsible duties, I think it can be truthfully said that the duties of his office require of him more care, more accuracy, more good common sense, more regular and continuous work than is required of any other officer connected with the State government. Any one who frequents his office will see at a glance that he is dealing with the most complicated machinery of the whole government, and that it is necessary that all of his time, all his attention and all his best thoughts should be given to the work that devolves upon him in his office. He ought not to be placed in a position in which he might be tempted to make combinations with these 120 treas- urers and these 227 Commissioners of the Revenue, and other financial officers, in order to secure his re-election. The Auditor of Public Accounts should hold his office by tenure from the General Assembly of Virginia, and should not be looking to political conventions for a renomi- nation or a re-election. Such a condition would be inconsistent with his duties, and would make him an inefficient officer. Mr. Portlock: Would not the same argument apply to the selection of the Secre- tary of the Commonwealth? Mr. Plancock: No, sir; the same argument does not apply, because the duties imposed upon the Secretary of the Commonwealth can be performed by an assistant, a deputy, or a clerk in his office. It is not necessary that the Secretary of the Com- monwealth should have that personal supervision of the affairs of his office that is required of the Auditor of Public Accounts. The Auditor of Public Accounts ought to be in his office personally every hour that his office is open to the public. No one can tell when the Auditor will be called upon to decide what is the proper and practical con- struction to be placed upon one of the numerous laws relating to the revenue with which he has to deal. I would say to my friend from Norfolk conty, that the office of Auditor of Public Accounts and the office of Secretary of the Commonwealth are as DEBATES Ox TEIE COXSTITUIIOXAL COXTEXTIOX OE VIEGIXIA. different as it is possible to make offices. One can be performed by a deputy or clerk, while tbe other must be performed by the officer himself, who must personally direct and control the financial machinery of the State and be responsible to the people for the proper management thereof. I feel that to require this officer to be elected by the people would be the greatest blunder this Convention could make. I believe in the election of officers by the people. As I said on a former occasion, the people elect their officers in two ways in their individual capacity and in their representative capacity. They are elected as much by the people when they are elected by the Legislature as when they are elected at the polls. But when you come to the question of the finance of the government, when you come to the officer who has charge of everything relating to what comes into the treasury of the State, and of the management of all the monetary details of the Com- monvrealth. with everything connected with the taxes, and with the duties that are imposed upon financial officers all over the State — v\hen you come to a great depart- ment like this, the officer has no time to consider anything except the very highest and best interests of the people of the State — I think, therefore, that it is important that the Auditor of Public Accounts shall be elected by the people in their representative capacity, that is, by the General Assembly. I hope therefore the amendment will be defeated. The President: The question is upon the amendment oiiered by the gentleman from Culpeper (Mr. Barbour.) The ayes and noes were ordered, and being taken, the result was announced — ayes. IS, noes 41. The amendment was rejected. Mr. Cameron: ]\Ir. President, I move that Section 14. as amended, be adopted. The motion was agreed to. Sections 13, 16. 17. and IS were read and adopted. Mr. Cameron: I move that the article as a whole be adopted, and referred to the Committee on Final Revision and Schedules. The motion was agreed to (Applause.) On motion of Mr. Turnbull the Convention adjourned tmtil to-morrow. Thursday. February 27, 1902, at 10 o'clock A. M. THURSDAY, February 27, 1S02. The Convention met at 10 o'clock A. INI. Prayer by Rev. J. 0. Eabcock, D. D. Mr Cameron: I\Ir. President, there was referred to the Committee on the Execu- tive Department a resolution directing the committee to report upon the advisability of incorporating into the Constitution a provision making the Adjutant-General a con- stitutional offxcer. The Committee on the Executive Department, to which was referred resolution Xo. 2S7, beg leave to report that it had previously discussed the subject of making the Adjutant-General a constitutional officer, with the result of making no mention of that office in the article on the Executive Department which it submitted to the Convention. The committee novr report the resolution Xo. 2S7 back to the Convention withotit recommendation, and request to be discharged from the further consideration of the subject. The President: The question is on agreeing to the adoption of the report of tSe Committee on the Executive Department. The report was adopted. DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. PREAMBLE AND BILL OF RIGHTS. Mr. Green: Mr. President, it was the desire of the Commitee on the Preamble and Bill of Rights to call up for consideration the report of the Committee of the Whole on their report, and to present it in Convention. Unfortunately we are having difficulty in having it printed, and I wish to give that as an explanation of the reason for our inability to present it in Convention. It will probably be ready by midday, so that we can pre- sent it at that time and go on with its consideration. It is not yet ready. Mr. Barbour: I move that the chair be vacated until 4 o'clock. Mr. Ayers: I move to amend the motion, so that the chair may be vacated until 12 o'clock. The amendment was agreed to. The President: The question now is upon agreeing to the motion of the gentleman from Culpeper as amended. The motion as amended was agreed to, and the Convention, took a recess until 12 o'clock meridian. The Convention reassembled at the expiration of the recess. ELECTION OF STATE TREASURER. Mr. William A. Anderson: I present the following resolution, which I ask may be referred to the Commitee on Executive Department: Resolution to rescind Section 13 of article IV, reported by the Committee on the Executive Department as amended and adopted by the Convention on the 26th day of February, 1902, and to substitute a new section therefoT. Resolved, That Section 13 of Article IV, relating to the Executive Department, adopted by the Convention on the 26th of February, 1902, be rescinded and the following section be adopted in lieu thereof: Sec. 13. A State Treasurer shall be elected by the joint vote of the two houses of the General Assembly for the term of four years. Mr. Withers: Mr. President, I rise to a parliamentary inquiry. Can a resolution be referred to a committee which has reported fully, which report has been adopted by the Convention sitting in Committee of the Whole, and then referred to and adopted by the Convention itself, with amendments, and by the Convention referred to the Com- mittee on Final Revision, without taking from the Committee on Final Revision the entire executive report? The President: The Chair is of opinion that a resolution to rescind any action heretofore taken by the Convention is in order. At any rate, it is not necessary to de- cide that question now, and under the circumstances the Chair thinks the resolution should go to the Committee on the Executive Department. If the gentleman will refer to the rules he will find that a resolution to reconsider or rescind is in order. Part of that resolution proposes to rescind the action taken yesterday by the Convention, and the Chair would not undertake to hold now that it is not in order. The Chair begs the Convention to bear in mind he only decides now that the motion to rescind is in order, provided it passes through the regular stages. He does not hold, and has not heretofore held, that a motion to reinstate into the ordinance what has been deliberately stricken out by the Convention, as to which a motion to reconsider has been made and voted down, would be in order. That is a different question. The Chair overrules the point of order and refers the resolution to the Committee on the Executive Department. (Applause.) Mr. Portlock: I desire to give notice now that I will offer a resolution similar to that offered by the gentleman from Rockbridge, with reference to the office of the Secretary of the Commonwealth. I will submit it in writing. DEBATES OE THE COXSTITETIOXAL COXVEXTIOX OE VIRGIXIA. PREAMBLE AND BILL OF RIGHTS. On motion of Mr. Green the Convention took up the report of the Committee on the Preamble and Bill of Rights. The President: The Secretary will read Section 1. Sec. 1. Every householder or head of a family shall be entitled, in addition to the articles now exempt from levy or distress for rent, to hold exempt from levy, seizure, garnishment, or sale under any execution, order or other process issued or any demand for a debt contracted since the 26th day of June, 1870, his real and personal property, or either, including money and debts due him. to the value of not exceeding tvo thousand dollars, to be selected by him; provided, that such exemptions shall not extend to any execution, order, or other process issued on any demand in the following cases. Mr. James W. Gordon: I move to amend Section 1, in line 8, by substituting the word one " for the word " two before the word '-thousand." The ayes and noes were ordered, and being taken, the result was annoimced — ayes 21, noes 89, as follows: Ayes — Messrs. Barbour, Chapman, Cobb, Earman, James W. Gordon, Gwyn. Ham- ilton. Hardy. Hatton, Claggett B. Jones, IMeredith. Moncure, :\Iundy, Orr, Pollard, Portlock, Robertson. Stuart. Turnbull, Walter, and Willis — 21. Noes — T^Iessrs. Allen, George K. Anderson, Ayers, Manly H. Barnes, Thomas H. Barnes. Braxton, Brown, C. J. Campbell, Carter, Davis, Dunaway, Eggleston, Epes, Fairfax, Garnett. Gilmore, Green, Gregory, Hancock, Harrison, Ingram, G. W. Jones, Lindsay, Mcllwaine, Miller, R. Walton Moore. Parks, Pedigo. Richmond. Rives, Summers, Tarry. Thom. Thornton. Waddill. Watson, Withers, Wysor, and the President — 39. The amendment was rejected. Mr. Robertson: I desire to offer an amendment by adding to this section a sub- section to be numbered 7; by adding the words: For any debt or demand incurred prior to the filling of the claim for such exemption. Mr. President, this amendment is offered in pursuance of a resolution that I pre- sented to this Convention early in the session of the Convention accompanied by peti- tions signed by every board of trade or similar board in the State of Virginia. The Chamber of Commerce of the city of Richmond, and of other cities in this Common- wealth, sent petitions here on behalf of the business men, merchants and manufac- turers of this State, requesting this Convention to make such changes in the homestead law as would protect the retail traders of this Commonwealth, who deal with the people claiming this homestead exemption. I submit to this Convention that the homestead law in Virginia, while on its face it purports to be a protection to the families of poor people, has been used as an engine of fraud to cover up the property of people in failing circumstances, and has not accomplished the object for which its framers originally intended it. These merchants claim that they either have to refuse credit to people on these open running accounts, or they are put in the position of being beaten out of their debts against people, when they are in failing circumstances, by the homestead exemption being claimed. It is a well-known fact that where a man goes to a bank to borrow money and gives a note, or where he gives a bond, or anything of that kind, the home- stead waiver of exemption is always put in that note, and people of that kind are pro- tected. But w^hen a man goes to a store for the purpose of buying groceries and the necessaries of life, it is the universal custom not to require a waiver of the homestead. . Gentlemen may say, and it was argued in committee, that everybody knows what the law is, and they have a right to demand a waiver of the homestead. That is true, but we all know, as a matter of fact, that that is not done, and that these retail mer- 173— Const. Deb. 2746 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. chants would be seriously injured if they demanded of a man that he should sign a Tfaper waiving his homestead as to open accounts of a retail nature, which every one of us has to contract with these people. The practical working of this homestead law has been that when a man fails and hi>: ... ... Lujuiit to be wound up and his property is turned in for the purpose of paying off his debts, the Bankers and other people who have given him credit on paper secuniy in the nature of notes and bonds, get the benefit of the waiver of the home stead, and the other people do not get the benefit of it. It is the rarest thing that a man's family ever does get the benefit of his homestead exemption. The result is that a preference is created between creditors of one class and creditors of another class, and in nine^cases out of ten a man's family has no benefit from it whatsoever. I respectfully submit that the result of that is to create fraudulent preferences in favor of one class of people over another. It is a serious inconvenience, a serious injustice, to a large class of our merchants in the State of Virginia, I do think that when a respectable body of men like that come before the Convention and ask the Conven- tion to do something to protect their interests, certainly the request ought to be con- sidered, and not turned down as a matter of course. The main argument that I heard made against this matter was that it would be unpopular with certain people in this Commonwealth, that it would endanger the adoption of this Constitution. -In the first place, I do not believe that is true. I do not believe there is any body of men in the Commonwealth organized together for the purpose of beating their creditors out of the just debts they owe them. People claim the benefit of this homestead exemption when they get into failing circumstances. Most men are hopeful, and do not expect to get into such circumstances as that, and there is no organized band of people in the Commonwealth who would undertake to fight this Constitution if we do justice about this matter. They are not organized. You might just as well say that if v/e provide here for the proper enforcement of the criminal laws of the Commonwealth, the criminals of the Commonwealth would vote against the Constitution in order to prevent those laws being adopted. I am aware of the fact that some demagogues, some people who want to defeat this Constitution, may go around amongst the people and undertake to say we are depriving the poor man of his exemption, but I do not believe in listening to that kind of talk. We must take some risks. We must submit to the people a Constitution that we are willing to defend on the grounds of reason and right, and not adopt a Constitu- tion simply because we think it will be popular. I respectfully submut that if we put this provision in here it can do no harm to anybody. I. for one, do not believe this hom_estead law has done a.ny good, in 99 cases out of lOO. in some cases where a man dies, I admit his wife and children have received the benefit of it. I believe every lawyer in this body who has had any large practice in Virginia will bear m.e out in saying that the homestead law as it stands has proved to be a perfect failure, so far as concerns protecting the rights of a man's family and keeping them from being put into the poor-house, but, on the contrary, it has been used as an engine of fraud and oppression, and has given one class a prefer- ence over another under the law which allows people to waive the exemption. It seems to me the opinion of these gentlemen in the Chamber of Commerce in Richmond, the merchants in Danville, Charlottesville, Roanoke, Petersburg and Nor- folk, m.en who have seen the practical workings of this thing, ought to have some weight. Although I was overwhelmiingly turned down by the committee that had this matter in charge, I considered it my duty to present it here to the Convention and let them do vfhat they think proper with it. The President: The question is on agreeing to the amendment offered by the gen- tleman from Roanoke (Mr. Robertson.) The ayes and noes were ordered, and being taken, resulted — ayes 2G, noes 36. The amendm.ent was rejected. DEBATES OF THE CONSTITUTIONAL COXVEXTIOX OE VIRGINIA. 2747 The President: If there are no further amendments to Section 1 the question is on agreeing to that section as read. Section 1 was adopted. The President: The Secretary will read Section 2. Sec. 2. The said exemption shall not be claimed or held in a shifting stock of mer- chandise. Mr. Meredith: I offer, as an amendment, to be added to Section 2, the following, language: Nor as to a debt created in the purchase of merchandise by a merchant or manu- facturer for sale or use in carrying on a store or manufactory. That allows, gentlemen, the protection to be given to these merchants which they are asking for. We do not touch any indivdual who simply wants to claim exemption against a debt, and who does not carry on trade, but we all know that the breath of trade is credit, and this homestead exemption has simply tended to destroy the credit of the honest merchant. Mr. Green: Individually I am willing to accept that. I cannot speak for the com- mittee, but I am personally willing to accept the amendment. Mr. Meredith: If you will give us that, gentlemen, we will have the protection that the wholesale merchants desire, and at the same time you will allow men not in trade to claim the homestead exemption if they wish it. It is simply a matter betw^een mer- chant and mei'chant. It is for the benefit of trade, and v/e ask for the protection of the merchants of this State that you will adopt this amendment. The President: The question is on the amendment offered by the gentleman from Richmond. The ayes and noes v/ere ordered, and being taken, resulted — ayes 27, noes 31. The amendment was rejected. Mr. James W. Gordon: I offer the following as an amendment to Section 2: Amend Section 2 by adding thereto the words " nor in any properly the conveyance of which by the homestead claimant has been set aside on the ground ot fraud or want of consideration." Mr. President, the Convention has refused to amend these two sections in any par- tjicular, so lar. They have retained the $2,000 exemption and have allowed it to be claimed just as it has been done heretofore. I ask that the Convention will now stamp with disapproval the practice which has been so common in this Commonwealth in the last few years of men making voluntary and fraudalent conveyances of their property and then coming in right behind the decree or judgment of a court and claiming that property as exempt — not only claiming it as exempt against their creditors, but claiming it as exempt against their grantees. I ask that the Convention will do this simple act of justice and not send this homestead exemption out through the Commonwealth and say " AVe will not only give you $2,000 of exemption, but we will place a premium upon the fraudulent conveyance of your property." The President: The question is on agreeing to the amendment offered by the gen- tleman from Richmond (Mr. Gordon). , The ayes and noes were ordered, and being taken resulted — ayes 30, noes 29, as follows: Ayes — Messrs. Avers, Barbour, Thomas H. Barnes. Braxton. Brown, Chapman, Earman, Fletcher, James W. Gordon, Gwyn, Hamilton, Hardy, Hatton, Claggett B. Jones. Lincoln, Mcllwaine, Meredith, Moncure, Mundy, Orr. Pollard, Portlock, Robert- son, Tarry, Thornton, Turnbull, Walter, Willis, Wj'^sor. the President — 30. Noes — Messrs. Allen, George K. Anderson, W. A. Anderson. Manly H. Barnes, C. J. 2748 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Campbell, Carter, Cobb, Davis, Dunaway, Eggleston, Epes, Garnett, Gilmore, Green, Gregory, Hancock, Ingram, G. W. Jones, Lindsay, Miller, Parks, Pedigo, Phillips, Rich- mond, Rives, Summers, Waddill, Watson, Withers — 29. The amendment was agreed to. The President: The question is on agreeing to the adoption of Section 2 as amended. Section 2 as amended was adopted. The President: The Secretary will read Section 3, Sections 3, 4, 5 and 6 were read and adopted. The President: The Secretary will read the next article. " ARTICLE Sale of Intoxicating Liquors. Section 1. First, No intoxicating liquors shall be sold in this State without a license therefor first obtained. Mr. Barbour: Mr. President, the Convention will observe that this first section is a part of a scheme the gist of which is in the second section. I therefore, ask that the first section be passed temporarily so that we may take up the second section. The President: It will be so ordered without objection. The President: The Secretary will read the second section. Second. The Legislature shall have the full power of enacting local option or dispensary laws, or any other laws controlling, regulating, or prohibiting the manu- facture or sale of intoxicating liquors. Mr. Barbour: Mr, President, I move to substitute for that section the section as originally reported by the committee except the words " who actually voted in the last preceding regular election in such town or in such precinct," in lines 10 to 12. That will leave the section then in the exact condition in which it was amended by the Com- mittee of the Whole, so that a majority of the petitioners for these licenses would have to be signed by the registered voters in the precinct and not consigned to those who actually voted in the last preceding election. Before the vote is taken on this section, Mr. President, I wish to call the attention of the Convention to the furher fact that the committee have agreed upon a further section as Section 4, whicn directs that this article shall not go into effect until it has been submitted to a vote of the people separate from the vote on the main portion of the Constitution, so as to present this single question directly to the voters of those portions of the State which are effected by it. I make that statement so that there may be no misunderstanding on that score on the part of the members of the Convention. The President: The Secretary will read the amendment proposed by the gentle- man from Culpeper (Mr. Barbour). In lieu of the substitute adopted in the Committee of the Whole, insert the follow- ing language: No license to sell intoxicating liquors in quantities of less than one gallon or to be drunk at the place where sold shall be authorized or granted in any town or county of this State for a period of more than twelve months, nor without the written request of a majority in number of the legally qualified and registered voters resident in the town or in the precinct of the county wherein such liquors are intended to be sold. The President: The question is on the amendment offered by the gentleman from Culpeper. The question having been taken, the result was announced — ayes 24, noes 36, as follows: DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. 2749 Ayes— Messrs. Ayers, Barbour, Chapman, Cobb, Dunaway, Earman, Eggleston, Epes, Green, Gregory, Gwyn, Hardy, G. W. Jones, Lincoln, Lindsay, Mellwaine, Mundy, Orr, Pedigo Richmond, Summers, Turnbull, Watson, the President — 24. Noes— Messrs. Allen, George K. Anderson, W. A. Anderson, M. H. Barnes, Thomas H. Barnes, Braxton, Brown, Carter, Davis, Fairfax, Fletcher, Gilmore, Hancock, Harri- son, Hatton, Ingram, Claggett B. Jones, Keezell, Meredith, Miller, Moncure, R. Walton Moore, Parks, Phillips, Pollard, Portlock, Rives, Robertson, Stuart, Tarry, Thorn, Wad- dill, Walter, Willis, Withers, Wysor— 36. The following pairs were announced: Mr. Garnett with Mr. Lovell; Mr. Thornton with Mr. Cameron; Mr. Vincent with Mr. Hamilton; Mr. Stebbins with Mr. Wescott. The first named w^ould have voted in the afiirmative. The amendment was rejected. Mr. Green: I now move to strike out the whole article in reference to the sale of intoxicating liquors. That article, as it now stands, reads: "No intoxicating liquors shall be sold in this State without a license therefor first obtained." The Legislature has already full power to enact laws of this kind. It would be an anomaly to put into the Constitution a section giving the Legislature the power to do a particular thing. If the Legislature needed that power the proper place to give the power to pass such laws would be in the Legislative section, where all of its other powers are conferred upon it. It has full power in this regard and does not need this Consti- tutional provision. I hope, therefore, the whole provision in regard to the sale of in- toxicating liquors v/ill be stricken out. Mr. Summers: I have two motions to make. One with regard to this first section and one with regard to the second. As regards this second section I am trying to save this country as far as I can, and in order to get the right start, I offer this: No intoxicating liquors shall be sold in this State except in sealed packages, nor drunk where sold. Mr. Dunaway: I desire to offer a substitute to the amendment offered by the gen- tleman from Washington (-Mr. Summers). It is not that I am so much opposed to that, Mr. Chairman, but I do not believe that it can possibly be adopted by this Convention. I offer one that I think will stand a better chance of being adopted, although I have not very much hope for it. I ask that the attention of the members of the Convention while I read it: The General Assembly shall, in the year 1905 submit to the qualified voters of the State the question, ' Shall intoxicating liquors be sold in the State to be drunk where sold?' If a majority of the voters in such election shall be cast in the negative, then no bar-room license shall thereafter be granted in the State. Upon that substitute I wish to make a few explanatory remarks. I do feel, Mr. President, that this Convention owes something, that it owes a great deal to the people of the State who have multiplied their petitions to this Convention for some relief in regard to this matter. The original proposition has been voted down and about that I do not wish to say anything. I would not revive that question. The question raised here is shall the people of the Commonwealth have an opportunity to declare their will upon this question? It is not whether we will declare the will of the State in its organic law, but whether we will give the people of the State the opportunity of voting on this question. If this question to be submitted to the people should be voted on in the negative it will not at all interfere with the manufacture of intoxicating liquors in this State. It will not interfere with the sales of intoxicating liquors in the State in a retail or wholesale way, but if the majority of the voters shall vote no upon this propo- sition, then it simply breaks up the bar-rooms. It is simply a question as to whether intoxicating liquors shall be drunk at the place where sold, and that is all. I think we 2750 DEBATES OF THE COXSTITUTIOIs'AL CONVEIsrTIOlsT OF VIRGII^IA. ought to give the people the right to vote on this subject for themselves. If at such an election the majority of the people shall say they are in favor of the bar-rooms then the will of the people must prevail. On the other hand, if the majority of the people of the CommonAvealth want to abolish bar-rooms then they have a right to do so. A sufficient time is given between the present and the year 1905 for canvassing the State, for in- formation to be given to the people by the press and by addresses before them. No- l)ody will be taken by surprise. I hope it will De the pleasure of the Convention to put this into the Constitution as a concession to the petitions that have been presented here. It seems to me to be a moderate request to make the members of the Convention, and I ask them to support this resolution. The President: The question is upon agreeing to the amendment of the gentleman from Lancaster. Mr. Garnett: I am paired with the gentleman from Madison (Mr. Lovell. If he were present he would vote nay and I should vote yea. The question having been taken, the result was announced — ayes 32, noes 31, as follows: Ayes — Messrs. George K. Anderson, Ayers, Barbour, Manly H. Barnes, Chapman. Cobb, Dunaway, Earman, Eggieston, Epes, Fletcher, James W. Gordon, Green' Gregory- Gwyn, Hardy, Claggett B. Jones, G. W. Jones, Lincoln, Mcllwaine, Moncure, Mundy, Orr, Pedigo. Phillips, Pollard, Richmond, Summers, Turnbull, Waddill, Watson, and the President— 32. Noes — Messrs. Allen, W. A. Anderson, Thomas PI. Barnes, Boaz, Braxton, Brown, Carter, Davis, Fairfax, Gilmore, Hamilton, Hancock, Harrison, Hatton, Ingram. Lindsay, Meredith, Miller, R. Walton Moore, Parks, Portlock, Rives, Robertson, Stuart, Tarry, Thom, Thornton, Walter, Willis, Withers, and Wysor — 31. The amendment was agreed to, Mr. Thomas H. Barnes: Mr. President, I move the chair be vacated until 4 o'clock. The motion was agreed to and the Convention took a recess until 4 o'clock P. M. AFTER RECESS. s At the expiration of the recess the Convention reassembled. The President: The question now pending is on agreeing to the amendment in the Tiature of a substitute, offered by the gentleman from Lancaster to the original amend- ment offered by ihe gentleman from Washington. The question having been taken, the result was announced — ayes, 18; noes, 33, as follows : Ayes — Messrs. George K. Anderson, Dunaway, Earman, James W. Gordon. Gwyn, Hardy, G. W. Jones. Moncure, Mundy, Orr, Pedigo, Phillips. Pollard, Richmond, Sum- mers, Turnbull. Waddill, and the President — 18. Noes — Messrs. Allen, W. A. Anderson, Ayers, Barbour, Thomas H. Barnes. Boaz, Braxton, Brown, Clarence J. Campbell. Carter, Davis, Fairfax, Fletcher, Gilmore. Hamil- ton, Hancock, Harrison, Hatton, Ingram, Lindsay, Meredith, Miller, R. Walton Moore, Portlock, Rives, Robertson, Stuart, Thom, Walter, Watson, Willis, Wise, and Withers — 33. The amendment was rejected. Mr. Summers: I have an amendment I want to offer. Insert at the end of the section these words: No intoxicating liquors shall be sold in the State except in sealed packages, nor 1)8 drunk where sold. Mr. Barbour: I rise to a question of personal privilege. I merely wish to explain why I voted against the adoption of this section, after having voted to amend it. After DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OE VIEGIMA. 2:51 mature consideration I have come to the conclusion that it is wrong and that our action in adopting this amendment this morning -u^as vrrong. I have come to the conclusion that it is contrary to the principle of local self-government in this matter, vrhich I think is the proper rule for the settlement of this Question. Ml. vratson: Mr. President, I will ask the indulgence of the Convention for a moment. I find myself in the same attitude as that occupied by the gentleman from Culpeper (.Mr. Barbour). In the first instance I voted to incorporate the amendment offered hj me gentleman from Lancaster (Mr. Dunav\-ay ' as a part of the Constitution. Upon reflection I became satisfied that it vrould destroy the right of each community to regulate its ovn affairs and that such a constittitional provision v.-ould be more tmvrise than the local option laws now prevailing. The President: The question is on agreeing to the amendment offered by the gen- tleman from "Washington. The amendment was rejected. Mr. Quarles: I wish to move that Section 1 be stricken otit. I think it is some- what in conflict vrith Section 2. The question is on agreeing to the motion of the gentleman from Augusta to strike out Section 1. The motion vras agreed to. Mr. Green: Mr. President. I now move to strike out the entire article. The motion was agreed to. Mr. Green: I now move to reconsider the vote by which the entire article was stricken out. Mr. Quarles: Mr. President. I hope the motion made by the gentleman from Dan- ville will carry, and that the vote will be reconsidered. Section 1, which is proposed to be stricken out. was proposed by myself. The reason I proposed it, was that I knew the constitutionality of a dispensary law had been questioned, and inasmuch as this Convention has taken the position that the Legislature ought to have full control of this matter. I thought all doubt should be removed as to whether or not the Legislature has the power to pass a dispensary law or any other law relating to the sale of liquor. Mr. Pv. Walton Moore: This morning I inquired of some of the members of the committee, including the chairman, if any question seemed to exist as to the power of the General Assembly to enact a dispensary system, unless authorized by the Constitu- tion. They answered in the negative. My friend says some question has arisen. Will he go a little more into detail, and tell us how the question has arisen, and when, be- cause if it be necessary, in order to bring about the dispensary system in the future if it becomes desirable to b'ring it about, to put anything in the Constitution I would vote to retain this provision. Mr. Quarles: I do not desire at this time to enter into a discussion of the legal aspect of this matter. I remember having seen in the press some time ago that there was a case pending before one of the circuit courts of this State in which the constitti- tionality of such a law was involved. My impression is that the court held it unconsti- tutional. I know further that when bills controlling the sale of liquor have heretofore been offereo in the Legislature they have been opposed on the ground that they were unconstitutional and I wish to remove all questions about the matter. And I think it fair to the temperance people that this be done. I want to take away all doubt that might possibly arise about the power of the Legislature in enacting laws in regard to the sale of whiskey — I want to deal fairly with the temperance people of this State. I voted against putting any legislative mat- ter into the Constitution relating to the sale of whiskey, and my reason for doing so was that the Legislature had full power in such matters. I want to show to the temperance people that we. who have voted to keep out of this Constittition all legislation with re- gard to this matter, are dealing in good faith with them. There is no reason why this provision should not be ptit here. What harm will it do? Why should not every doubt 2752 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. about the question whether or not the Legislature has full power to deal with this matter be removed? It may do some good and I think it will; it certainly can do no harm. I think the Legislature has the power already, but I may be wrong. I therefore hope that the Convention will vote to reconsider the vote and retain this provision in the Constitution. The President: The question is on agreeing to the motion of the gentleman from Danville, to reconsider. The question having been taken, the result was announced — ayes 32, noes 24. The motion to reconsider was agreed to. The President: The question now recurs on the motion of the gentleman from Danville to strike out the entire article. The question having been taken, the result was announced — ayes 23, noes 34. The motion to strike out was rejected. The President: The question now recurs on agreeing to the article. The article was agreed to. The President: The Secretary will read the next article. ARTICLE . Future Changes in the Constitution. See. 1. Any amendment or amendments to the Constitution may be proposed in the Senate and House of Delegates, and if the same shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendment or amend- ments shall be entered on their journals, with the ayes and noes taken thereon, and referred to the General Assembly to be chosen at the next general election of Senators and members of the House of Delegates, and shall be published for three months previous to the time of making such choice. And if, in the General Assembly so next chosen as aforesaid, such proposed amendment or amendments shall be agreed to by a majority of all the members elected to each house, then it shall be the duty of the General Assembly to submit such proposed amendment or amendments to the people, in such manner and at such times as the General Assembly shall prescribe; and if the people shall approve and ratify such amendment or amendments by a majority of the electors qualified to vote for members of the General Assembly voting thereon, such amendment or amendments shall become part of the Constitution. The article was adopted. Mr. Barbour. Mr. President, I now move to reinsert Section 2 as reported from the committee. I will ask the Secretary to read it. Sec. 2. At such time as the General Assembly may by law provide, the question, "Shall there be a Convention to revise the Constitution and amend the same?" shall be decided by the electors qualified to vote for members of the General Assembly; and in case a majority of the electors so qualified, voting at such election, shall decide in favor of a convention for such purpose, the General Assembly, at its next session, shall provide by law for the election of delegates to such convention. Mr. R. Walton Moore: Mr. President, I desire to suggest to the gentleman from Culpeper (Mr. Barbour) an amendment to that section in order to perfect it before we pass upon it. I will ask him if it does not occur to him that when the General As- sembly votes whether or not to submit such an important question, a majority of the members elected to each house should be recorded in the affirmative on the passage of the law submitting the question. Mr. Barbour: I have personally no objection in the world to such a provision. Mr. R. Walton Moore: Otherwise the important matter of submitting to the peo- ple the question whether they shall have a Constitutional Convention or not might be carried through each house by a two-fifths vote. Mr. Barbour: Mr. President, I desire merely to call the attention of the Conven- tion to the fact that unless they have this provision or some similar provision in the Constitution, every Legislature hereafter elected would have absolute power to call a DEBATES OF THE COXSTITUTIOXAL COXVENTION OF VIRGINIA. 2753 Constitutional Convention with, unlimited powers, whenever they desired to do so, and without ever submitting the question to a vote of the people. The decision to strike this article out was sprung on the Convention in Committee of the Whole the other evening, within five minutes of the time when, under the rule, we had to take a vote on it, and there was absolutely no opportunity to consider it. Since then I have given the matter careful examination, and I have no hesitation in saying, as the result of that investigation, that unless there is a way pointed out in the Constitution for calling a Constitutional Convention, the power of the Legislature in that respect is unlimited. It is too large a power to be granted to any legislative assembly elected for the ordi- nary purposes of legislation. I do hope the Convention will reinsert this or some similar provision which will regulate this power and the exercise of it. Mr. James W. Gordon: I offer the following substitute for the amendment offered by the gentleman from Culpeper (Mr. Barbour). It seems to me it meets an objection that has been raised by a number of gentlemen on the fxoor of the Convention as to the provision as it was reported from the committee. The President: The Secretary will read the proposed substitute. At the general election in year 1921, and in every twentieth year thereafter, and at such other time as the General Assembly may by law provide, the question " Shall there be a Convention to revise the Constitution and amend the same?" shall be decided by the electorate qualified to vote for the members of the General Assembly, and there shall be decided at the same time and in the same manner whether the proposed Con- stitution shall be proclaimed or submitted to a vote of the people for their ratification or rejection. In case a majority of the electors so qualified voting at such election shall decide in favor of a Convention for such purposes, the General Assembly at its next session shall provide by law for the election of delegates to such Convention. Mr. R. Walton Moore: Mr. President, the gentleman from Culpeper (Mr. Barbour) has accepted the amendment which I suggested providing for a majority of all the members elected to each house, and he accepts this further amendment, to add to the section as he proposes it, these words, as an independent sentence: "And no such Convention shall otherwise be called," so as to limit the calling of a Convention to a vote upon the question submitted by the General Assembly to the people, the question being whether a Convention shall be had or not for the purpose of revising and amend- ing the Constitution. Mr. Braxton: Mr. President, the gentleman from Culpeper (Mr. Barbour) author- izes me to say he will accept a further amendment which I have suggested, that we insert in parenthesis here, after the word " amends," in the third line, the words " or propose amendments to," so that it will read: "The question, 'Shall there be a Con- vention to revise the Constitution and amend or propose amendments to the same,' " etc. That meets the view, I think, covered by the amendment offered by the gentleman from Richmond (Mr. Gordon). Mr. James W. Gordon: Tha.t does not meet the objection, for this reason: It throws this whole discussion that we have had on the floor of this Convention which you propose to call in the future. It seems to me it does not meet the point raised by the gentleman from Winchester (Mr. Harrison) and others, that in the election which calls the Convention the people should decide as to whether they shall have a chance at it after it is framed, or whether the Constitution shall be proclaimed. My substi- tute makes that perfectly plain. Mr. Braxton: Mr. President, I agree with the gentleman that the question, as to whether the Convention should proclaim or submit the Constitution is a matter that should be settled by the people at the start. It may be that his language is more apt to accomplish that object than the language I have used. Mr. James W. Gordon: I ask permission to read this language and show what it is intended to accomplish; and I will ask gentlemen to listen to it a moment, as I think it covers the point: ■2754: DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. At the general election in the year 1921 and in every twentieth year thereafter, and at such other time as the General Assembly may by law provide the question: " Shall there be a Convention to revise the Constitution and amend the same?" shall be decided by the electors qualified to vote for members of the General Assembly. That is one proposition to be voted on by the people — shall there be a Convention to revise the Constitution and to amend the same. The next is: - And there shall be decided at the same time and in the same manner whether the proposed Constitution shall be proclaimed or submitted to a vote of the people for their ratification or rejection. Mr. Carter: There are three questions. Why not leave them all to the people? Mr. James W. Gordon: If you had three propositions being voted on at one time, no one of three would receive a majority of the votes cast. Under the proposition which I have presented, each one of these propositions would either have to be lost or carried by a majority or minority as the case might be, of the votes cast. Mr. Harrison: Mr. President, it seems to me the objection of the gentleman from Hanover (Mr. Carter) can be very easily met by somebody simply phrasing the ques- tion as to whether the Convention shall have full powers or limited powers. Mr. James W. Gordon: I am perfectly willing to put it that way. Mr. Mereditn: Mr. President, I hope the Convention will adopt the amendment as offered by the gentleman from Culpeper (Mr. Barbour) with the amendments accepted by him, and that we will put nothing else in the Constitution. I think it is very desir- able that we should put his amendment in there. We can see very great danger that a' Legislature, without some restriction on it might meet in a very short time, under very great political excitement, in the hands of an unfavorable party and might immediately for the purpose of getting rid of any plan of suffrage we might adopt — Mr. Harrison: Suppose this Convention should put in this Constitution that the Legislature should never call a Constitutional Convention; would that have any vitality at all Mr. Meredith. No. - Mr. Harrison: Then why do you draw the line as to what power we can confer upon the Legislature as to future Constitutional Conventions? Mr. Meredith: That is the question that seems to have been decided by the author- ities cited by the gentleman from Culpeper (Mr. Barbour), in favor of the proposition, and the other being an absolute attempt to tie the people's hands, would be so regarded as destructive of the people's rights; but as a simple plan has been adopted, it is deemed proper that they should be limited by that provison in the Constitution. If the gentle- man disputes the authority, that is another matter. I only state the law as cited by the gentleman from Culpeper. Mr. Harrison: I have not seen those authorities. Mr. Meredith: Nor have L I do hope the Convention will go further than is sug- gested by the gentleman from Culpeper. I do not believe it would be wise for us to put into the Constitution a statement that You shall submit to the people as to whether they will vote to propose or to adopt a Constitution." Suppose you do so, and they vote upon that question. Now, are the people prepared to say at that time as to whether they want that Constitution proclaimed or submitttd. Take the conditions of affairs that exist here with us. There are many of us who came here with the idea, with almost the certain purpose, of submitting this Constitution to the people, and many of us have changed our views; and yet if this question had been submitted to the people as to whether we should propose it or proclaim, it, and they had voted on that question, I do not see how we could well get rid of proclaiming it. You will, in other words, anticipate your determination as to a thing about which you ought not to make up your mind until you have it before you. You will undertake to say whether a Constitution is so meri- DEBATES OF TEIE COXSTITUTIOXAL COXVEXTIOX OF YIRGIXIA. 2755 tcriciis that it ought to be proclaimed, before you kno^- v,-hat the Constitution is. or you will undertake to say that a Constitution is so objectionable that it ought to be submitted before you ever heard of what is going to be a provision in it. I submit that is not a wise line of conduct for us to pursue. On the other hand I do submit it is a matter vre ought to trust to the integrity and good judgment of the members of the Convention who make the Constitution. They ascertain what are the feelings of their constituents. They ascertain that in the differ- ent ways that they see fit, whether by calling county conventions, by calling mass meet- ings, or whatever may be the method. They can ascertain, after the Constitution has been framed, what are the wishes of the people, as to what? That particular Constitu- tion. They can make up their minds as to some concrete thing. I submit it would be wiser to let us pursue the course which we have been pursuing in making a Constitution, and then determine amongst ourselves by ascertainment, if you choose, of the people's wishes, or arbitrarily if you choose and let us bear the re- sponsiblity. but determine for ourselves after the thing is made, as to v/hat ought to be done. It would be extremely unwise to tie the hands of the people, and tie our own hands before we knov/ what we are going to tie otir hands about. I earnestly urge that the amendment as offered by the gentleman from Culpeper be supported and that the sug- gestions that have been made by my colleague" from Richmond (Mr. Gordon) or by the gentleman from Augusta (Mr. Braxton) vrill be voted down, and that we will not tie our hands, before we know as to what we tie them. Mr. James W. Gordon: In order to meet the objection "of some gentlemen, I ask to make this little change in the language of the substitute I propose: And there shall be decided at the same time and in the same manner whether the proposed Convention shall have full power, or whether the proposed Constitution shall be submitted to a vote of the people for their ratification or rejection. Mr. Braxton: Mr. President, is it in order to offer a substitute? The President: There is an amendment pending offered by tne gentleman from Culpeper (Mr. Barbour) to which the gentleman from Richmond (ilr. Gordon! has offered an amendment. It is in order to offer to amend either the original proposition offered by the gentleman from Culpeper, or that offered by the gentleman from Rich- mond; but if the gentleman offers an independent proposition, it must be a substitute for the whole. Mr. Braxton: I will offer this, then, as an amendment to the amendment offered by the gentleman from Culpeper: Strike out the v^-ords "shall there be a Convention to revise the Constitution and amend the same."' and so on. in line 2. down to and including the words "General Assembly"' in line 5. and insert in lieu thereof the words: The question shall be decided by the electors qualified to vote for members of the General Assembly, shall there be a Constitutional Convention to be held as prescribed in the act submitting the question, in vrhich act the powers of the proposed Convention in the matter of proclaiming or submitting the Constitution shall be specified. Mr. President, it seems to me that this is a right important matter we are on. I fully agree with what my friend from Culpeper (]\Ir. Barbour) says, that there ought to be some provision in here to prevent Constitutional Conventions being called by any i^egislature at any time, clothed with any powers they may choose. In the absence of any provision to that effect. I take it the present Legislature could call a Constitutional Convention to sit this summer, with absolute power to proclaim a new Constitution, and all the people could do v/ould be to elect delegates thereto. As I understand the law in this matter it is that this Convention has not the povrer to make any enactment which will prevent the people having a reasonable opporttmity of amending this Constitution: but it does have the power of prescribing reasonable 2756 DEBATES OE THE CONSTITUTIOisTAL CONVENTION OE VIRGINIA. rules and regulations for the carrying out of that thing, and if we undertake to put a provision in here whereby we cut the people off entirely from amending it, it is absolutely void; but if we put a provision in here which prescribes reasonable regula- tions and methods for accomplishing that purpose, they are exclusive. It seems to me, Mr. President, that the people have the innate right to call a Convention to propose amendments to it, or to call a Convention and leave it to the Convention to say whether they will proclaim it or submit it as they choose; and that any provision we adopt which cuts the people off from the right to do any one of those three things is curtailing the power of the people and not merely providing reasonable regulations for carrying out the power. If we say that the only question that can be submitted to the people is the question can a Convention be called to amend the Con- stitution? We preclude them from calling a Convention to propse amendments to the Constitution and we preclude them calling a Convention to — Mr. Barbour: Do we not provide here for a system for proposing amendments to the Constitution? Mr. Braxton: A system for proposing them to the Legislature, but not through the Convention. The proposition I make is that through every Constitutional Con- vention they have the right to propose amendments, to enact amendments or to give plenary power to the Convention to do either they choose. When we undertake to provide reasonable regulations for them, they must not be of such a character as to cut them off entirely from doing either one of these things. In order that the people may speak upon that, the Legislature must propose a question to them and it seems to me that the idea embodied in the amendment which I propose is the most regular one; that the Legislature, whenever they think a Constitutional Convention should be called, shall, in their act submitting the question to the people, say what sort of a Convention it is proposed to call. Do you propose to call one to proclaim a Constitution? Do you propose to call one to propose amendments to it, or do you propose to call one to give plenary power to proclaim or propose it? Say in the act what sort of a Convention you want and then leave it to the people whether they will call that kind of a Convention. Then, when the Convention is called, the question will never again arise because the act which subm;itted the question to the people and which received its force from the subsequent vote of the people, would prescribe, on its face, the exact powers of the Convention and when a man voted for such a Convention he would not have to depend upon the declarations of political conventions, but he would know absolutely whether he was voting for one to submit the Constitution or whether he was voting for a Con- vention which was to proclaim the Constitution or whether he was voting for a Con- vention which could do either it chose. If you wish to accomplish that purpose I think it can be done under the language I propose. The question that shall be submitted to the people is not " Shall a Convention be called to amend the Constitution," because I contend that amending it and proposing amendments to it are different things. The question is " Shall there be a Constitutional Convention held as prescribed in the act submitting the question, in which act the powers of the proposed Convention in the matter of proclaiming or submitting the new Constitution shall be specified?" I say, Mr. President, that by and in this way you accomplish these purposes. You prescribe a regular and orderly method of exercising this function by the people. At the same time you do not cut them off from the free exercise of their rights but leave it to them or to the Legislature to submit to them either one of these questions they choose. I think this is a matter of a great deal of importance and I trust it may be the pleasure of the Convention to adopt, at least in substance, the idea involved in this amendment. I would be very much gratified if my friend from Culpeper could see his way clear to agree with me, in substance. Mr. Barbour: Mr. President, I am very sorry that I cannot see my way clear to accept the suggestion of my friend from Augusta. It seems to me that when we pro- vide in this Constitution a method by which amendments may be proposed to the Constitution and then provide another way by which the people, if they shall see fit to DEBATES OE THE COXSTITUTIOXAL COXVEVTIOX OE VIEGIXIA. 2757 do so. can call another Conveniion v^-ith power either to proclaim or to submit their "work to the people, we have done all we ought to do in this matter. It is impossible for the people to judge wiseh". in advance, as to what should be done with the Consti- tution which is prepared hj the Convention. It is possible for the members of the Convention themselves, to tell what is just and wise and proper to be done with such an instrument. The best way is to follow the course that has heretofore been followed in this respect and leave that matter to the Convention itself, as is done under the provisions of the present Constitution of the State of Virginia. The language which has been reported from the committee is exactly the language of the Constitution under which we are acting, except that the former provision contained the clause that this question should be submitted every twenty years whether or no. It has never happened that this period of twenty years came at a time when the people thought proper to call a Convention. It is not likely that such a thing will happen in the future. This leaves it absolutely discretionary with the Legislature to submit this question when they want to, in the future, and the con- struction which will have been put upon this clause by this Convention, itself, will leave no doubt as to what is the meaning of the language. It seems to me that is an advan- tage and that we ought to adopt language which we are acting under ourselves and which we have construed ourselves. Mr. James W. Gordon: Mr. President, I want to call the attention of the Conven- tion to one very radical difference between the amendment offered by the gentleman from Augusta and that which I propose in my substitute. If he had provided for taking two votes, one as to whether there should be a Constitutional Convention and another as to the powers which that Convention should exercise, I would be very glad to accept his amendment and to withdraw my substitute. But it may very well happen, under his amendment, that a man might come to the polls and say: " I am extremely anxious that there should be a Constitutional Convention in this State; but I am very unwilling to call that Convention under the limitations imposed upon me b3' the Legislature." Therefore it seems to me that whenever this question is presented to the people they are first to decide whether there shall be a Constitutional Convention and then they are to decide at the same time and in the same manner, as to how that Constitution shall be carried into effect, whether by proclamation on the part of the Convention or by submission to the people for ratification or rejection. Under the provision submitted by the gentleman from Augusta, he absolutely ties a man down to not only voting for or against the Constitution, but to voting on a particular method which the Legislature has pointed out. For that reason it seeme to me it would be unwise to adopt his amendment. The President: The question is on agreeing to the amendment offered by the gentlemen from Augusta to the amendment proposed by the gentleman from Culpeper. Ayes — Messrs. Braxton, Clarence J. Campbell, Davis, Earman, Epes, Hamilton. Harrison, G. W. Jones, Lincoln. Pedigo. Portlock. Robertson, Stuart, and Willis — 14. Noes — Messrs. Allen. George K. Anderson, W. A. Anderson, Ayers, Barbour, Boaz, Brov-n, Carter. Chapman. Dunaway, Eggleston, Fairfax, Fletcher, Gamett, Gilmore, James W. Gordon, Green, Gw^-n, Hancock. Hardy, Hatton. Ingram, Lindsay, Mcllwaine. Meredith, Moncure. R. Walton Moore, Mundy. Orr. Parks, Pollard. Quarles, Richmond, Rives, Summers, Tarry, Thornton, Turnbull. Watson. Wise. Withers, and the Pres- ident — 42. The amendment was rejected. The President: The question is on agreeing to the amendment in the nature of a substitute offered by the gentleman from Richmond city. The substitute was rejected. The President: The question is upon agreeing to the amendment offered by the gentleman from Culpeper. Mr. Braxton; Mr. President, I tnink if we adopt the amendment offered by the 2758 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. gentleman from Culpeper that we will simply perpetuate the state of affairs we have to-day. We have a condition here to-daj^ when this body is not certain and no man can say, with certainty, what the powers of this body are, whether we are authorized to pro- claim or submit. That que&tion will never be settled as long as Vve perpetuate this condition of affairs. The people have the innate right to say, when they call a Con- stitutional Convention, what its powers shall be, and we undertake to say they shall not be allowed to call any Constitutional Convention except one with power to proclaim the Constitution. It matters not what your powers are, I submit the people have the right, when they call a Constitutional Convention, to say to the Convention that it shall have a right to proclaim its Constitution or to say that it shall submit it or that it may do either it chooses. I say that nothing we can do in this Convention can deprive the peo- ple of that right. Mr. Hatton: Could they not instruct their delegates to vote in that way? Mr. Braxton: It would be merely pursuasive. It would have no legal effect. The effect of this amendment is to provide that, hereafter, no Convention shall be called unless the people authorize it to proclaim a Constitution. It may be that the people will not authorize it to proclaim, and they have the right to require the Convention to submit it or the right to leave it to the Convention to either submit or proclaim, as they may deem best. If we adopt any provision here under the guise of regulating the exer- cise of that right by the people, we absolutely cut them off from the possibility of exer- cising it except in one particular v^ay. My friend from Richmond' suggests that it may be unwise to say in advance whether a Constitution should be proclaimed or not. It is for the people and their representatives to determine that, and if they think it is unwise to determine it in advance, they must elect the Convention and give that Convention the power to determine the question. I say it is the height of unwisdom to perpetuate a condition of affairs that has perplexed us more than any other one, that is the question as to the rights and powers of this body. I say that a body is called to undertake to make the fundamental laws of a State and is called in such a loose-jointed way that the members have difficulty in determining what their powers are in the premises, it is an unfortunate condition of affairs and ought not to be perpetuated. It seems to me it is a grave mistake we are making and one that we have no excuse for, because we find ourselves to-day embarrassed by this very provision in the present Constitution, which leaves it doubtful as to what our powers are. I say that, hereafter, when the people vote for a Constitutional Convention there should be no shadow of doubt as to what the powers of that Convention are. We ought not to depend upon what this man thinks or that man thinks or what that newspaper man v^^rites or what this politician promises to his constituents. It ought to be a matter of law and of law so plain that men could not differ as to what the powers of the body are, when it is called into being. The only way to determine that is to specify in advance. You ought to say: "You are required absolutely to proclaim it; you are required absohitely to submit it or we will leave it to your discretion after you have adopted it to proclaim or submit it as you think best. I say the people have the right to say you shall do any one of these things. It is not in the power of this Convention to cut them off. If you do anything to the contrary it is of no effect, and you cannot put it in force. Suppose the' people say: We want to call a Convention with powers different from those ycu have pre scribed. Plow could they call it? Mr. Claggett B. Jones: Do you not think you had better provide, in future con- ventions, whether the members are to take an oath or not to take an oath? Mr. Braxton: I think so; and I will be glad to provide for that so as to settle the question that members of a Constitutional Convention are not officers of the State and are not required to take an oath except the oath to support the Constitution of the United States and to honestly and faithfully perform their duties in Convention. Mr. Sum.mers: How could the people vote before they knew what the Constitution v^as? Then I want to inquire if you will not be willing to accept an amendment that all Constitutions shall be submitted to the people. DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE YIEGIXIA. Mr. Braxton: No, sir; and I do not think it v.-ould be of any effect if we should adopt it because the people hereafter have the right, v/hich we cannot take awa^^ from them by anything we do, to say that they will elect a Convention to proclaim it or a Convention to submit it, as they choose. We cannot curtail their power in that respect. When the Question is submitted to a man to vote upon, shall there be a Constitutional Convention, the man who votes for it has the right to know what kind of a Constitu- tional Convention he is voting for. He has the right to know in advance, because he may say, if this Convention has the right to proclaim, I will not vote for it, but if it has the right only to submit, I will vote for it. That is a question he is absolutely entitled to know before he votes for or against it. I hope this Convention will see that when the act which submits the question to the people undertakes to prescribe the powers of the Convention, it is just as competent for them to say that the proposed Convention shall be vested with the power to proclaim or submit the Constitution as they choose, as it is for them to say that the proposed Convention shall be obliged to submit or obliged to proclaim. The only pcli't I r^ake is that the people, before being called upon to vote to call into being a body with such powers as this, are entitled to know absolutely what the powers of the boG3- are for vv-hich they are going to vote. Mr. Harrison; ^-is I understand this Question, if we vote down the proposition of the gentleman from Culpeper, we leave the subject of a Convention just as the Com- mittee of the Whole left it. The Committee of the T\Tiole recommended that we strike out the whole section, and leave it absolutely in the power of the Legislature with dis- cretionary powers, vhich the gentleman from Augusta thinks they ought to have. The President: The question is upon agreeing to the amendment offered by the gentleman from Culpeper. The ayes and noes were ordered, and being taken, resulted — ayes 31. noes 25, as follows: Ayes — Messrs, Allen. W. A. Anderson, Ayers, Barbour, Boaz. Brown. Barman. Eggleston, Fairfax, Fletcher, Garnett, Gilmore, Green, Gwjm, Hardy, Hatton, Lindsay, Mcllwalne. Meredith, Miller, E.. Walton Moore, Mundy, Orr. Phillips, Pollard. Quarles. Tarry, Turnbull, Walter, Withers, and the President — 31. Noes — Braxton, Clarence J. Campbell. Carter, Chapman. Davis, Dunaway. Epes, James W. Gordon, Hamilton. Hancock. Harrison, Ingram. Lincoln. Moncure. Pedigo, Portlock. Richmond. Rives. Robertson. Summers. Thornton. Waddill. Watscn. "Willis, and Wise— 25. The amendment was agreed to. Mr. Pollock offered the following resolution, and asked that it be referred to the Committee on the Executive Department: Resolved, That Section 12, of Article IV, relating to the Executive Department- adopted by the Convention on the 26th day of February, 1902, be recinded. and the fol- lowing section be adopted in lieu thereof: SECRETARY OF THE COMMONWEALTH. Sec. 12. A Secretary of the Commonwealth shall be elected by the joint vote of the two -houses of the General Assembly for the term of four years. He shall be commissioned by the Governor, and shall receive a salary to be fixed by law. He shall keep a daily record of the official acts of the Governor, which shall be signed by the Governor and attested by the Secretary, and when required he shall lay the same, and any papers, minutes, and vouchers pertaining to his omce, before either house of the General Assembly. He shall discharge such other duties as may be prescribed by law. All fees received by the Secretary of the Commonwealth shail be paid into the treasury- monthly. On motion of Mr. Barbour, the Convention adjourned until to-morrow, Friday. Feb- ruary 28, 1902. at lu o'clock A. M. 2760 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. FRIDAY, February 28, 1902. The Convention met at 10 o'clock A. M. Prayer by Rev. J. T. Bosman, D. D. CITIES AND TOWNS. The President: The hour for the special order has arrived. The business before the Convention is the consideration of the report of the Committee on the Organization and Government of Cities and Towns. Mr. Brooke: Mr. President, and gentlemen of the Convention, the special order of this morning is Section 7 of the report of the Committee on the Organization and Gov- ernment of Cities and Towns. Every other section of the report has been passed on by the Convention in Committee of the Whole. A clause of Section 7 was eliminated, as the result of an amendment offered by some gentlemen upon the floor. I desire on the part of the Committee on the Organization and Government of Cities and Towns, to offer this amendment to Section 7. In lines 9, 10, 11, 12, and 13, insert: " The less numerous branch of the said council shall be composed of freeholders, who shall own a freehold estate in real estate situated in said city of an assessed value of at least $1,000." I would state that the language which I desire to put into this section, by an amendment now, is just the language of the original report. If the members of the Convention will endeavor to bear with me with some degree of attention for a very few minutes, I will endeavor to explain to the Convention the purpose of the Committee in adopting this section. The general lines upon which the work of this Committee has worked out, were fully stated by me in presenting this re- port, and a bare reference to them is all that is necessary to refresh the memory of the members of the Convention, so that they may be able to appreciate the purpose of the committee in the adoption of this section. We felt that the criticism expressed all over the United States as to the efficiency of city governments, as they are now organized, was a just criticism, and was largely due to the ill considered, the reckless, and sometimes, even to the corrupt action of the city councils. In setting ourselves to meet that difficulty, it occurred to " us that it might best oe met, not by putting hide-bound restrictions upon the power of the council, but by, in some way, so constituting the councils themselves that their action would be more conservative and their legislation more for the benefit of the cities at large. In order to do that it occurred to us that it was necessary to accomplish two purposes: First if possible, to secure a more conservative membership of the council, and, secondly, to segregate the conservative element of the council in such a way that it would have a potent influence in checking ill-considered and reckless legislation. When we had gotten that far in our theory about the matter it occurred to us to con- stitute the council upon the same basis as in the original Constitution of our own gov- ernment in its legislatve department, by dividing it into two branches that one might be a check upon the other. We were then met with this question: How can we so segregate the conservative element, which shall be elected to the council, that it may have the influence which is due to it. We know, of course, if the council was composed of forty members, and fifteen of them, for example, were the most conservative, level- headed, honest and upright citizens of the town, yet if they held their seats in the same body with the other twenty-five who might represent the very extreme they Avould have practically no effect, certainly no certain effect, upon the legislation, inasmuch as they would always be liable to be out voted by the tv/enty-five who did not represent the con- servative element of the city. It therefore occurred to us that we ought to segregate the conservative element into a separate branch and by so doing give them their just DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF YIRGIXIA. 2761 weight in directing and creating legislation. So we got to the point that, in our opinion, there oiignt .o be two branches of the council, and that the lesser branch should be com- posed of the more conservative element of the people What qualification to impose in order to secure this conservative element in the council was a matter which gave us a great deal of concern and a great deal of trouble. Finallj^ we determined that a small freehold qualification for membership in the lesser branch would give to the real estate interest, to the landed interest, to the people who, after all, in the final analysis bear the larger proportion of the taxes and bear the greater burden of reckless legislation, such a representation in the city council as that they might be a potent and legitimate check upon the extravagant wasting of the city revenues. Now, gentlemen, these are the principles by which we were governed, and which led us to the adoption of the article recommending two chambers in all councils of cities and towns, and that the lesser should not be filled except by freeholders, having a small freehold qualification. Mr. President, we did not find this whole subject free from difficulty. We attempted to produce an article here which, by progressive stages, would lead us to better city government. W^e strengthened, first, the hand of the Mayor by giving him the veto power and giving him larger powers than he now has. We strengthened the situation by the adoption of a council of two branches, the lesser branch to be composed of the , conservative element. W^e submit to you that this is a much more philosophical way to deal with this matter than by attempting to lay down any hidebound, ironclad restric- tions upon the legislative power of the city council. Personally, if I may be permitted to say so, I feel that this is one of the most important, elements in our report. To my mind it carries with it more security to the people of the cities than any other and almost all of the other provisions. The w^hole root of the trouble in city government lies with the city council. If we undertake to correct it we ought to try to correct it upon some lines which will be at least philo- sophical and will be permanent in their operation. I hope very much that the amendment which is offered on the part of the com- mittee may be adopted by the Convention. Mr. Harrison: I w^ant to give notice that I desire to offer an amendment as an independent section to this report to be known as Section 15. The proposed section is: Nothing CLntained in this article shall effect the repeal or amendment of any charter of any city of less than 25,000 population or interfere with the control of the General Assembly over the same in regard to its local municipal government and its local municipal officers as distinguished from State officers. Of course I cannot tell whether this provision will be adopted or not. I am opposed, therefore, to the amendment offered by the gentleman from Norfolk (Mr. Brooke). The gentlemen of the Convention VNill observe that in Section 2 it is provided that no special act shall be passed except in cases w^here, in the judgment of the General Assembly, the object of the act cannot be obtained by general laws. The result of that would be that wherever a law was offered which might be beneficial to one com- munity, and was not beneficial to another community, the object of which could be obtained by general law, there would be a fight between the two communities. I say there ought not to be such a conflict of interest. There can be no reason in the world why all these little communities, or big communities, for that matter, should not have their own special government, suited to their own special interests. I object to having Inserted into this Constitution a provision for a charter which is applicable to every city in this Commonwealth, and which cannot be changed according to the interests of the different municipalities except by general law, which general law is to be applicable to every community. I think I can show that to deny special legislation to cities will be prejudicial to 174 — Const. Deb. 2762 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. the interests of the various cities and towns in the Commonwealth. When legislation is desired by one city, it may be prejudicial to others, and thus cities will be in conflict over legislation highly beneficial to the one community. I desire to say that the effect of my amendment goes to this extent, that it prevents any cities that do not desire it from having a double branch in their councils. We have always had one branch. We do not want two branches of the council, because it requires too many councilmen. We have got twelve men in our council in a city of 6,000 inhabitants, and that is all we can satisfactorily deal with. We might get along with a smaller number. But if you are going to have a double branch, one of which is to be smaller in number than the other, then if you take four for the less numerous branch, it will be too small, and if you take eight, it would swell our council to twenty members. That is not necessary, because twelve men, taken from the four wards of the city, give us an absolutely satisfactory government. The largest taxpayers of the city are in the council, and they represent nearly every condition of the population. Nearly every walk in life is represented. They have satisfactorily administered the affairs .of the city. The veto power of the Mayor is not necessary, because under our charter no tax can be levied and no appropriation of money can be made unless two- thirds of the council vote for it, by a recorded vote which is entered in their journal. If the Mayor had the veto power it would have no sort of effect, because you must " already have had the two-thirds vote recorded in favor of the measure. We do not want a freehold qualification because out of the twelve men in that council, all successr ful business men, there would be tv^^o-thirds, at least, who would be disqualified from representing the city. Mr. James W. Gordon: I thought you said nearly all of the present council were large property holders. Mr Harrison: I said tax-payers. They do not have to be freeholders in order to be tax-payers. The largest tax-payers in our city, who pays a tax on an income of ?1 5,000 a year, is not a freeholder, and would be disqualified from sittng in the council under this provision. I say it would be unnecessary, and would result in an unsatisfac- tory state of affairs for this Convention to interefere with the charter that our commu- nity has enjoyed for 125 years; and it would accomplish no good result. The present method has worked no evil result in the past, and this article can result in no good in the future. All we ask is that this Convention should leave our city charter alone. Pass any laws you please to affect any other city in the Commonwealth, if you want to, ' according to the wishes of other people; but simply leave communities their own char- ters. Why should not a city have its own charter. I say that this body and every other body ought to encourage these local communities to have a municipal government. It works in the interest of the State. It imposes no burdens on the State. The cost of the municipal government is not borne by the tax payers at large. The law and order of that community is preserved by the local authorities at local expenses. It is a burden, in fact, upon the local community, and if that local community desires it, I do not see why it should not have it. As I say, under our municipal government, our streets are kept in order, our public schools maintained by a tax, our free schools also are endowed. The city council has control of it. We have our system of water works, which, in a country community, it would be very difficult to maintain, properly control and take charge of, any other way. In every way these little local self-government charters work to the good of the State and the burden of them is borne by the local tax-payers of that community. Why we should undertake now to interfere with that local government which, as I say, has operated so successfully in the past and which, so far as we can see, would be very much interfered with by this legislation is some- thing that I cannot see. Now, the gentleman says he has got a theoretical government here that he has gotten out of some books. Mr. Brooke: No doubt some other gentlemen here may have gotten it out of a DEBATES OP THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 2763 book, but I will inform you that this particular feature is not mentioned in any book that I ever saw. I am rather proud of having originated it myself. Mr. Harrison: I say we ought to have our own local government. Special legisla- tion cannot change the features that are incorporated upon town charters by this article. There is no sort of denial of the fact, that we will have engrafted upon our charter provisions contained in this article, which we do not want and which one of the com- mittees of this Convention, having fully examined this subject, has said ought not to be put here. We do not need two chambers to our council any more than the veto power of the mayor for by another feature of our charter the necessary deliberation is secured by a rule that requires two meetings of the council to pass an ordinance. The conserva- tism is secured by electing only one third of the council each year. Mr. Meredith: Mr. President and gentlemen of the Convention, I know that this is rather a dry subject to most of you who do not live in the cities; but it is a matter of great importance to us who do, unfortunately, live in these municipalities. I do not propose to discuss the suggested amendment of the gentleman from Winchester. I rather think that the whole of his argument has been confined to a proposition which is not yet before the body. Any remarks I make now shall be along the line of the propo- sition of the gentleman from Norfolk (Mr. Brooke) that you insert into this article what has already been stricken out in Committee of the Whole, the provision contained in lines 9, 10, 11 and 12, on page 5, which in substance require that there shall be no member of the upper branch of the municipal council unless he be a freeholder, with real estate worth one thousand dollars. Mr. Chairman, I feel constrained to oppose that. I think I may claim that there is no man in this Convention who has seen the necessity and felt the necessity of putting reasonable restrictions upon the city councils more than I have. I have struggled in this body to get such restrictions upon them as Avould protect the people in their property and their rights. I have argued for restrictions which are not put upon the legislature because I recognize the distinction between these two bodies, in their manner of meeting, in the people from whom they are selected, in the manner in which they pass measures of very great importance and in the hasty manner in which they give away property in the nature of franchises which frequently becomes ruinous to the municipality. Therefore, I state to you that I think I can say that I have struggled as earnestly as anybody to put reasonable restrictions upon city councils for the protection of municipalities. I feel constrained to object to the line of restriction proposed here. This is certainly an anomaly in our law. You can elect the Governor. You can elect any State officer without his being the owner of any property. There is no qualification of property required. You can elect the President of the United States without his owning a foot of land or a dollar's worth of property; and yet it is proposed that you should require the members of the board of aldermen of the municipality to have what is, regarded as a superior, if not a higher qualification, than you impose upon the Presi- dent of the United States or the Governor of this Commonwealth. I do not mean to contend that this is a rule or reason by which we should be absolutely guided. I do say it is one that ought to be explained before the gentleman makes a proposition to put such a restriction upon the members of a city council when it is not required of the officers of our State and national government. I can see that there might be some reason that would not apply to the President of the United States. I know the difficulties of municipalites. I recognize the dangers that lie in view and I would be willing to throw around them any restriction that is reasonable. But while this proposed restraint is, in theory, extremely attractive, I think that in practice it would be an evil instead of a benefit. I say in practice. I know it sounds well to say that a man who has property in the community is going to feel an interest in that community and is going to be prudent in the management of municipal affairs. That may be so; and it doubtless is true, but, Mr. Chairman, the experience of those of us who live in communities shows that we cannot get that class of people to go into our 2764 DEBATES OE THE CONSTITUTIONAL CONVENTION OF VIRGINIA. city council. We do not depend on the man who owns real estate in our city to go on our council. You have but little idea as to the difficulty we have to get that class of business men. You gentlemen do not appreciate the labor that is required of a man who goes into a council of a city of the size of Richmond. The work is very great and the tax upon their time is very great and the loss of time to them is very great. It is a very great inconvenience to them in their business, and it is very rare that you can get that class of men to give up their private business interests and sacrifice themselves for the public good. I speak with some knowledge about this, and I say it is rare that you can get good men. If you take the younger men who are practicing professions in the municipalities, just as soon as a man goes into politics he begins to lose the benefits of his profession. He is regarded more or less as trifling with matters which tend to keep him from attend- ing to his profession, and, therefore, he loses his business. You can readily see how it is that we have difficulty in getting the professional men, and the business men either say they cannot do it or they will not do it. What is the class of men to be depended upon to serve in the council of a muni- cipality? It is not the business men; it is not the elderly men. We depend upon the young men of our community, who have more time and who are able to give attention to matters of that kind without personal loss; and the effort of those of us who fight for good goverment in municipalities is to get the young men to take part in the public affairs of our community. Why, Mr. Chairman, look at the late revolution that took place in the government of the city of New York. Who was at the head of it? Run over in your minds the men who stood there in the front and made that fight, and you find they were young men. Municipalities have to depend on young men to protect them from the evil element in our communities. Those are the men who rarely have real estate. Even if they have a couple of hundred dollars' worth of personal property, they are rarely able to accumulate a thousand dollars' worth of real estate. I regard this not as a beneficial restriction, but as a restriction limiting us in the choice of our members of the council to such an extent that it would very seriously ham- per us and I think would injure us. I think I am speaking facts when I say — I know it is the experience of our own city, and I believe if you will look at cities of any size, you will find it to be so — that wherever in cities of any size the work attached to a municipal council is very large, the difficulty of getting men of business standing in the community is great. It is so great that frequently they cannot be had. We will have an election in this city in May. There are some of us who take an interest in our city government and we strive to look arou'nd and pick out as far as we can proper men to send to our city council; just for the purpose of endeavoring, as good citizens, to get a good government, and with no other object. I happen to live in one of the wealthiest wards of this city, and to-day we are having difficulty to get men to go to the council. We are picking out the young men of our ward because we feel that they can afford to do it better than the business men, and the business men will not go. The young men we are picking out are men without this qualification; so I say instead of benefitting this community, you will be hampering it in the men as to whom they will be able to select. We all know — I do not propose to stand here and argue it — that money does not make a man more virtuous. In our own city council (and I presume it is so in the councils of the other cities of any size where you have vicious elements) some of the members who have the most property are men of the worst character. Mr. Brooke: I hope you did not understand anything that was said by me as being ■an argument to the effect that men who have money are necessarily more virtuous? Mr. Meredith: I said that was not argued. I know you said nothing of the kind. But there are men in our council who are owners of real estate, and one or two of them large owners of real estate, whose character is far from desirable; but some of our best men, some of our truest men, some of the men who can withstand temptation to which DEBATES OF THE COXSTITUTIOXAL COXTEXTIOX OF VIEGIXIA. men of that character are subjected in all questions of municipal government, where large amounts of money are invoh-ed, are to-day v.-iihout a dollar of property. One of them is a professor of law at Richmond College, and so far as I know he does not own a dollar of property, and he is benefiting the city in which he lives by sacrificing him- self and giving his time and attention to the municipal affairs of this community. I submit you are not doing us a benefit by putting this restriction upon us, but you are ctitting us off from getting a class of men who are our best representatives. We feel that we have had to struggle hard enough anyhow. Do not require us to look around and get men of property, because it would be extremely difficult, and frequently impos- sible, to get that class of men to sacrifice themselves: not that they are not willing to do it personally, but when they go into the council their business is sacrificed to a cer- extent, and they cannot afford to let it go to rack and ruin simply for the public good. Mr. Barbour: ]\Ir. President, I had not expected to say anything on this subject, except that the gentleman from Richmond (Mr. Meredith) said that there is no reason which distinguished representatives in a body of this kind from those in the State Legis- lature and the national Legislature. So far as the national Legislature is concerned, we have no control over it. but so far as the State Legislature is concerned, we have, and we could put these limitations on them if we saw fit. Btit I wish to call the attenion of the Convention to some material distinctions between the character of the services rendered by these representatives in city councils, the functions they perform, and those per- formed by members of the State Legislature, for instance. In the first place, we have a provision in the State Constitution that the Legisla- ture cannot create any State debt at all, whilst these city councils can create debt. The object of the provision is to get conservatism in the city council as a source of protec- tion to the property interests. That is one distinction, that these city councils can create debts to IS per cent, of the assessed value of the real estate in the city. The power of these cities to create debts is based upon real estate, and real estate alone, and as I have stated before, the Legislature cannot create any public debt at all. Another distinction is that whenever one of these councils creates a debt it is prac- tically a lien, just as much so as a deed of trust of record, upon every piece of real estate in the city. It can be enforced by the judgment of the cotirt. The court may issue a mandamus to the city council to sell every piece of real estate in the city to pay that debt. Xo such power pertains to the Legislature. Even if they could create a debt, there is no power to enforce that debt against the State against its own consent. The owner of personal property can move his property out of the city and absolutely escape the payment of these debts. The gentleman referred to by the gentleman from Winchester (Mr. Harrison) as the largest income tax payer in his city can move out between two suns, and leave the real estate holders with the bag to hold. Mr. Harrison: The real estate owner can sell out. Mr. Barbour: Yes; but he sells out subject to the burden of the debt that is already created, and therefore it aft'ects the A'alue of his real estate. It is a very material dis- tinction: and it is nothing but fair and just that the owners of real estate in the city, who have ultimately to bear the burden of the debt created by the city councils, should at least have some voice in the creation of those debts. That is the idea in providing that the real estate owners shall compose the upper branch of the council. They are not elected by real estate owners entirely. They are elected by all the voters, but the only requirement is that they shall be the owners of real estate. I think I have pointed out at least some distinctions which differentiate the mem- bers of the city councils from the members of the State Legislattire. I\Ir. Robertson: Mr. President. I would not say anything about this matter except 2766 DEBATES OF THE COXSTITUTIOXAL CONVENTION OF VIRGINIA. that I represent here a city that is deeply interested in this question. I believe Alex- ander Pope was the first man who said — "Let fools for forms of government contest; That which is best administered is best." One of the distinguished gentlemen in this body has reiterated that sentiment with a great deal of eloquence, in a speech made heretofore, and I think there is a great deal of truth in it. If there is anything for which our Anglo-Saxon race is distinguished from other races, it is in my opinion, that it does not act on theories in regard to govern- ment. Our English ancestors to this day go by practical experience, and never change anything until practical experience shows them they ought to make the change. I do not care how much the gentlemen may theorize here about what is the best and most conservative form of government for our cities, we must do as the gentleman from Richmond (Mr. Meredith) in his fine arguments on this question, has done, we must look at the practical experience of these cities in our Commonwealth, before we can determine what we are going to put into this Constitution with reference to this ques- tion. I agree with every word he says, I will state here that I am in favor of the amend- ment that the gentleman from Winchester (Mr. Harrison) proposes to offer with reference to two chambers of the council, but that is not the subject of consideration now. I wish briefly to enter my protest against the idea that you will get a more conservative form of government in the cities, if you have two chambers by requiring as a qualification for membership in the upper chamber of the council, the owning of real estate. In addition to what the gentleman from Richmond has so well said about the diffi- culty of getting good men to go into the councils and as to the fact that we have to get the best men we can, looking at the individual and at his character and education, and not at what he owns. I wish to call the attention of the Convention to the fact that in modern times the owning of real estate has ceased to be of the importance it used to be in old times. I think a good deal of the theorizing these gentlemen have indulged in, is due to the fact that before they came to the Convention, they may have undertaken as I did, to read over to some extent the debates of the Convention of 1829-30. Our ances- tors had a great regard for the holding of real estate. It was an old feudal idea, handed dovv^n from our English ancestors, that the man who owned land was worthy to be a soldier and called to war and was therefore a good citizen. It was a part of the military system of ancient times. I respectfully submit that the idea that the mere holding of land makes a man con- servative, is not necessarily true. In the cities lots are the subject of speculation. They have a market value in every city, and they change hands as rapidly as stocks and bonds. The lowest and most ignorant man may invest his money in a town lot for the purpose of speculation, and become thoroughly qualified under this clause, to become one of the dignified aldermen of a city, to legislate upon the affairs of the city, and he may sell that lot a year after, and put his money into something else. The character of the man has nothing in the v/orld to do with the kind of property in which he invests his paoney. Mr. George K. Anderson: The same gentleman v.-ho invests his money in the lot would be eligible without the lot, would he not? Mr. Robertson: I know it, but I say you do not get any better man by that. I am arguing that it is the character of the individual you elect, and not the kind of invest- ments he makes. Real estate is on the same footing with any other investment, prac- tically because it is the subject of speculation, and changes from one man to another much more rapidly than it did in old times. Mr. George K. Anderson: Do you think we get any worse men because we make them hold real estate? DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIEGIXIA. 2767 Mr. Robertson: I think frequently you would. You would exclude good men and limit our choice. The gentleman from Richmond has shown so conclusively how that would work. I do not care to discuss further that feature of it. I am simply trying to show that you do not necessarily get conservative men by this provision. There is another consideration about this matter that strikes me with force. We have abandoned here in our tax article the idea of equality and uniformity of taxation. The committee thought they had good reasons for doing it. I was opposed to that, but of course I have to submit to the majority in this Convention. We have adopted here as a theory of this government that the State shall be no longer tied down to equality and uniformity in taxation as a general proposition; and I say that there is a danger in giving real estate too much power in city councils, even if men hold it permanently. How easy it would be, if in a city council there is a predominating influence of real estate to put a greater burden of taxation upon people who do not own real estate. Mr. Brooke: With the other branch of the people represented by people who do not own real estate, how in the world can one branch impose that greater burden of tax- ation? Mr. Robertson: There may be a great many real estate owners in the other branch. You have one branch where they all have to be owners of real estate and the other one you do not know who you are going to have. Suppose a large number of the lower branch are real estate owners and all the upper chamber are real estate owners. It cer- tainly would result in that danger. The gentleman seems to have forgotten that you do not prohibit real estate men from sitting in the lower branch. A number of them may own real estate, and I say there is a great danger in that when we abandon the idea of inequality and uniformity, because you can classify taxes on the basis of real estate and personal property, and if these real estate men who have tangible property which can be reached, get a predominating influence in the council, they might decide to shift the burden of taxation on to the merchants, a large number of whom in every city do not own one foot of land. Merchants do not want to invest their money in real estate. They want to keep it free for the purpose of carrying on their business; and it is the tendency in our cities for the men who are building up the cities and doing the greatest work for the cities not to own the real estate in which they are conducting their business; and yet every one of those men would be precluded from sitting in the upper branch of the council if we adopt any such measure as this. I want to make a few remarks in regard to the local aspect of this matter, before I take my seat, because it is on that account that I take an interest in it. Gentlemen are theorizing here about what is the best government for our cities. I have no doubt the gentleman from Norfolk (Mr. Brooke) can be thoroughly relied on to establish the best government for the city of Norfolk, although with all due respect to my friend, I think he has read too much about the theory of city government, and has not looked enough at the practical results. I think the gentleman from Richmond (Mr. Meredith) has come in closer contact with the city council of his own city than has the gentleman from Norfolk, because, as I recollect it, he was city solicitor of the city of Richmond for a long number of years, and knew the practical workings of the system. But in my town real estate is the sub- ject of speculation up to this day, although the boom has collapsed there. I am sorry to say, however, that the boom is slowly reviving in real estate. The gentleman from Alleghany (Mr. Anderson), I think, was there at one time, and if he will recall some of his past experiences, he will know what the situation is likely to be there. He has gone to a little village now, and he thinks he can run a city. (Laughter.) I remember, there was once an ignorant Irishman in my city who bought a lot, I think, for $500. If my memory serves me right, I drew the deed to it, and that Irish- man, although he could hardly read or write — I do not think he could read or write — held that lot until it was worth $35,000, and he sold it for that price. He was so en- 2768 DEBATES OF THE COJfSTITUTIONAL CONVENTION OF VIRGINIA. couraged by the idea that real estate was a good thing that whenever he saved any money he put it into real estate. He would have been a fine man to put in as one of the Board of Aldermen of our city. I simply use this as an illustration to show that you cannot form a theory here and work it into our Constitution that will fit every city in this Commonwealth. I do not like to appeal to a question of popular prejudice, but I do say that in framing this Constitution, where a matter is simply a local matter, the wishes of the people of that locality should be given some weight. It is simply a local matter, as the gentleman from Winchester said, where a local community pays its own taxes and does it for local purposes. And where the people have become used to a certain kind of govern- ment, and prefer that government, there is no sense in theorizing about what is a good kind of government for them, and ramming down the throats of those people the theories of the gentleman from Norfolk or the gentleman from these different villages around in this Commonv/ealth. The gentleman from Culpeper and the gentleman from Clifton Forge, and other gentlemen on this floor, want to undertake to say to us what is a good thing for our people to have in the shape of a government, when vv^e have to pay the taxes, and we have the practical experience as to what we want there. My people do not want to have this Constitution force a charter upon them, because some gentlemen here are high up in the theories of government. Some of them are equal to the Abbe Eeyeres, who used to go into the French Convention every morning with a new Constitution in his pocket. (Laughter.) The theories of these gentlemen are perfectly beautiful. If we were sitting here to listen to theories on municipal governments, I would be delighted to hear them; but when they try to come here and put them into practical shape and force them upon my people who object to them, I desire to enter my protest. I believe the argument of the gentleman from Richmond is as sound as it can pos- sibly be, that it will do a gTeat harm to every city in this Commonwealth to adopt this old theory about conservatism and real estate following it. I hope the Convention will do what the Committee of the Whole did — keep this provision out of this section. Mr. Hatton: Mr. President, I will detain the Convention only a moment, and for detaining it for only that brief period I will apologize by saying that it is only my intense interest in this matter that makes me arise at all. I do not think, Mr. President, that any man who has ever had any experience with the affairs of a municipality will deny the proposition that there is great need for having an increased conservatism in the governing bodies of these sub-divisions of our Commonwealth. There must be some theory about all questions of this character, but I submit that there has been no more practical question brought before this Convention than this: Shall the people who are vested with the power to tax and to impose the burdens of taxation be made to feel These burdens themselves? There is the question, and if there is any theorizing about that, then I do not know what could be called practical. That, Mr. President, is an eminently practical question. There is no more prac- tical question than the question of taxation and who is to bear it, and who is to impose it. This amendment which has been offered here by the gentleman from Norfolk (Mr. Brooke) as a part of this report, is not offered upon any theory that a man who owns $1,000 worth of real estate is any more honest or in any way superior to any other man. That is not the foundation of it. The reason of it does not lie there; but it is based upon this, that if any set of men are to impose burdens, and 75 per cent, of those bur- dens is to be borne by real estate, if those men happen to own some of that real estate, they will, by means of such ownership, be brought to a realizing sense of their responsi- bility in imposing those taxes. Now, there is the question, and that is the whole theoy of it, that a man who owns $1,000 of real estate will be more thoughtful, will be more conservative, will look deeper into the subject of imposing taxes, the burdens of which are to be borne by real estate. DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OE YIEGIXIA. 2769 than will the man who owns no real estate. Let any man on this floor deny that pro- position, if he can. 3,Ir. President, that proposition cannot be successfully refuted by any man who knows the first thing abotit the tendencies of human nature. Any man should know that by instinct. It is axiomatic. Now, there is the foundation upon which this theory rests, and it is eminently prac- tical. It is a condition which confronts every municipality in this Commonwealth to-day, and it is one of the burning questions with which its people have to deal. How do the gentlemen attempt to answer the argument for this provision in the committee's report? The gentleman from Richmond (I\Ir. Meredith) says that this provision should not obtain, because it is difficult to get men in your councils. It is difficult, and to that extent I agree with the gentleman from Richmond; but my agreement with the gentle- man from Richmond stops right there. I respectfully submit that such a provision as this will make it easier to get good men in your councils, instead of rendering it more diffictilt, as the gentleman from Richmond contends. Now, gentlemen, assertion is not argument. I assert that proposition, and if I can- not give some good reason for it, then do not accept it. :My reason for it is this: In your councils, as they are now constituted, you cannot get good men, because when those men go on those councils and devote their time and their talents to it, they find that their time and their talents are wasted, because they are ustially in a minority, and because the men on those councils who are not good men overrule them by their votes. That is why you cannot get them to go there, because v\-hen you get a good man, and he gives up his time, and his labor, then when he gets to your council meeting he finds himself in the minority constantly, and his time is wasted, and yet he has to share the responsibility for the improper acts of the ignorant or corrupt men who may be in the majority, and usually are in the majority. The gentleman from Richmond also says we should not have it. because it finds no parallel in the legislative branch of our State government. He is attempting to draw an analogy between these councils, the legislature of your cities, and your State Legisla- ture; and in the very next breath he admits that there is no such analog^-, by his state- ment that he has on the floor of this Convention advocated restrictions upon city coun- cils that he would not advocate if they applied to the State Legislature. Then, I say, if he advocates on this floor restrictions to be imposed upon th.ose councils that he is not willing to impose upon the State Legislature, he thereby admits the absence of such analogy and his argument against this provision that no such provision has been made applicable to your State Legislature is fully and completely refuted by his own admissions to the effect that he has recognized such want of analogy by voting to impose restrictions on these councils that he would not vote to impose on the State Legislature. Mr. President, this question should not be decided upon any assertion from some delegate upon this floor that some man he chooses to pick out in his community would be disqualified by it. It is too broad a question to be decided upon any such considera- tion as that. The gentleman from Winchester (Mr. Harrison) has told you that he has in his community a gentleman who pays $15,000 in taxes, and yet does not own real estate of the value of $1,000, and would therefore be disqualified from its city council. I respectfully submit that such a statement as that is not a fair one. because that gen- tleman to whom he refers would be qualified for election to the council under this pro- vision. He might not be qualified on one branch, but the gentleman has lost sight of the fact that he would be qualified on the other branch, and the other branch would have equal power with the branch from which he was disqualified. :\Ir. Harrison: That one branch would have the power of blocking legislation absolutely. Mr. Hatton: And so would the other branch have the power to block legislation. Therefore, if the gentleman who paid $15,000 worth of taxes and owned no real estate was on the most numerous branch of the city council, he could block any legislation by the freeholders' branch that might be detrimental to him. 2770 DEBATES or THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Mr. Harrison: What I wanted to call your attention to was that the free-holders could absolutely prevent legislation by being in control of one branch of the Legislature. I did not say that gentleman pays $15,000 taxes. I say he pays a tax on an income of $15,000. Mr. Hatton: It would make no difference if he paid $15,000 in taxes, the argument is not a good one. It is also advanced as an argument against this provision of the committee that the merchants of your community are not generally real estate owners, and the gentlemen made an argument against themselves when they made that state- ment. What is the reason why the merchants do not generally hold real estate? It is because real estate is now bearing more than its share of the burdens of taxation. The man who holds $1,000 worth of real estate has to pay more taxes than the man who holds $1,000 in bonds or other personal property that can be concealed from the tax assessor. Mr. Meredith: They are no higher than they are on personal property. Mr. Hatton: They are higher when we come to consider the way that real and personal property are assessed; and for that very reason, gentlemen, we want this ele- ment of conservatism in these bodies which impose the taxes. It simply shows you that the taxes as they are now imposed by people who owns no real estate have piled up the burdens upon real estate to such an extent that the average man cannot afford to hold it. So this argument is an argument in favor of the proposition rather than against it. Mr. President, I hope the Convention will adopt this provision in the report of the Committee on tne Government of Cities and Towns. There is an additional reason for adopting it, in view of the report of your Committee on Taxation and Finance. Taxa- tion in this State is now controlled by the rule of equality and uniformity, but your Committee on Taxation has thrown down that barrier, and the only limitation in this Constitution we are now framing will be the limitation of classification. I want to ex- plain to you why I say there is an additional reason for this provision, in view of that recommendation of the Committee on Taxation. As the law now is, or rather as it will be if the Constitution should be adopted, with this recommendation of the Committee on Taxation, your city councils and your boards of supervisors in the counties, I take it, will be governed in their classifications by the classnfications which may be made by the General Assembly. I am not positive about that proposition, but from the trend of the decisions of the Court of Appeals, I am inclined to think that would be the result. But suppose that after ten years, as your report on taxation permits, the Legislature should see fit to segregate the subjects of taxation, and should take certain subjects of taxation for State purposes, and should relegate other subjects of taxation for local pur- pose. Then, I submit, that these local legislative and tax imposing bodies could make any classification they saw fit, and, no matter how unjust or oppressive to certain classes of property, they would only be restrained in making that classification by the equality clause in the fourteenth amendment of the Constitution of the United States. Mr. President, I regret that I have had to detain the Convention so long, but I do ask that the members from the counties on this floor will help to give to the cities this element of conservatism in their local government. Mr. Brooke: I feel, Mr. President, that this question has been probably as fully discussed as there is any necessity for it being discussed, and therefore I shall under- take to delay the Convention only a few moments. There are, however, some things that have been said in the argument on the other side, which to my mind are so mis- leading, though of course not intentionally so, that a few words of explanation ought to be made from this side of the case. The gentleman from Roanoke (Mr. Robertson) is particularly hard upon theorists. He is very critical of any man who, in presenting to a Convention of gentlemen who are met together for the purpose of forming an organic law, undertakes to be guided by any principles whatever, because in matters of that sort there is no difference be tween principle and theory. If we are to come here and form our organic law without any reference to the wisdom of our fathers, without any reference to any principles of DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. 2771 government, then we will suit the gentleman from Roanoke. We are not attempting to force on the city of Roanoke any government which she does not want. We are doing just exactly in respect to these smaller governments, what this Convention of theorists itself has done with regard to the State government. This Convention of theorists, gentlemen, has determined that the State government should have a judicial department, a legislative department and an executive department. The Committee on Cities and Towns says that these smaller governments should be subdivided in the same way. This Convention of theorists have said that the State legislative department shall consist of a Legislature divided into two parts, a Senate and House of Delegates. The Committee on Cities and Towns have said that the legislative department of these small govern- ments should also have two branches. We are simpiy suggesting to the Convention to put the government of cities and towns, in intelligent form, upon the same basis upon which, in their wisdom, they have sought to put the government of the State itself. Now, if that be theory, make the most of it. The gentleman from Richmond (Mr. Meredith) says that one of his great objections to this particular proposition is that we have difficulty enough in getting good men to serve upon the council; that men with property will not serve on the council; and that if we put any disqualification upon them, it will limit the choice. I ask any man who has been familiar with the government of cities if it is not at least true in some degree that the objection that men of substance have to serving in the councils is that they are not willing to bear the unjust responsibility of vicious legislation, when they know that they will not have influence enough in the councils to control the legislation. How many of us who are here to-day, gentlemen, would have hesitated to come if we had realized what a responsibility each and every one of us will carry away from here be- cause of things which are done in this Convention that we think are dangerous to the liberties and destructive of the interests of th-e State. But if you segregate this con- servative influence and place it where it will at least have the power to check vicious legislation, then you remove, to my mind, very largely, the objection which men of sub- stance will have to serving in the city councils. They will then feel that they will have the power, and having the power they are willing to assume the responsibility, over legislation which occurs there; but as they now stand, no man who values his repu- tation or his peace of mind is willing to put himself in a position where he is going to be held responsible for vicious legislation and have no power to check it. Now, gentlemen, I have nothing more to say on this subject except that after laborious consideration the Committee on Cities and Towns have submitted this propo- sition to the Convention along the lines of well recognized principles of city government and of government at large. Your committee feel that it is one of the most essential points in their report. They feel that the report would be largely emasculated if this provision is not allowed to go back in it as it was originally presented by the committee. The President: The Secretary will read the amendment offered by the gentleman from Norfolk city (Mr. Brooke), chairman of the committee. Insert after the word " sub-division," in line 9, the words, " The less numerous branch of the said council shall be composed of freeholders who shall own a freehold estate in real estate situated in said city of an assessed value of at least one thousand dollars." The President: The question is upon agreeing to the amendment proposed by the gentleman from Norfolk city. The question having been taken, the result was announced — ayes 21, noes 40. The amendment was rejected. Mr. Harrison: I want to offer an amendm^ent to this section by adding after the word "of" in line 2, the words "one or" so that it will read: "There shall be in every city a city council, composed of one or two branches." The President: The question is on agreeing to the amendment offered by the gentleman from Winchester (Mr. Harrison). 2772 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. The ayes and noes were ordered, and resulted — ayes 24, noes 36. The amendment was rejected. Mr. Harrison: I offer this amendment: After the word "sub-division" in line 9, insert the following " but in any city under twenty-five thousand population the General Assembly may permit the council to con- sist of one branch." s Mr. Hatton: I move to amend that amendment by striking out the words "twenty- five" and inserting " ten." The President: The question is on agreeing to the amendment offered by the gentleman from Portsmouth (Mr. Hatton). Mr. Robertson: I hope the last amendment will not be adopted. It antagonizes my city without any cause for it at all. I do not see why we should try to load the Constitution down more than has already been done. Mr. Hatton: I would suggest to the gentleman that by putting it at 25,000 he is antagonizing my city. Mr. Robertson: Why can't you get what you want from the Legislature? Mr. Hatton: I understand that the gentleman who offers the amendment has only 5,000 in his town. I will call the attention of the Convention to the fact that if this provision is made applicable only to cities of 25,000 inhabitants it can only apply to two cities in this Commonwealth, the city of Norfolk and the city of Richmond. We will be put in the position of making a Constitution for governing cities and having it really apply to only two cities of the Commonwealth. Mr. Barbour: Mr. President, I hope that the Convention will vote down both of these amendments. I realize the fact that I have been criticised to some extent for taking an active interest in this report, because I am, as the gentleman from Roanoke says, a villager. It seems to me that is a criticism which should be addressed to the President of this Convention for having assigned me upon this committee, rather than to me. i did not seek assignment on this committee. But when I was assigned to it, I undertook to discharge the duties imposed upon me to the very best of my ability. If this amendment is adopted it will interfere with almost every section of this report. For instance, in dealing with the veto power the report prescribes what shall be done with the veto, that it shall be returned to first one body and then to the other. If we adopt either one of these amendments it will throw the entire report out of joint. In addition to that, the idea of the committee is to have these powers granted by general law. If it is really the idea and purpose of this Convention to have that principle carried out it will be necessary that these general powers shall be conferred on councils in broad terms. If that is to be done it is essentially necessary that they should have proper checks and balances thrown around them, and in order to avoid any abuse of those powers it seems to me it is necessary that there should be two bodies, that there should be two branches of the council, with power in each to hold the other in check, so as to insure conservatism in the consideraetion of measures brought before them. We hardly realize the extent to which people are interested in conservatism of these city councils. In the last twenty-five years I suppose that the value of franchises which are con- ferred by these councils have increased tenfold. I suppose that the franchises in a city of 10,000 inhabitants are worth as much to-day as those of a city of 100,000 inhabitants fifteen years ago. It is just as essential that the interests of these growing cities — these young cities — of course I do not include Winchester in that category, because it is not a growing city, it is a finished town and it don't make much difference what we do with it. I hope that both these amendments will be voted down and the report of the committee adopted. Mr. Harrison: Mr. President, I want to say that if the gentleman had studied the various charters of these cities instead of reading the books issued by the Municipal DEBATES OF THE COXSTITUTIOVAL COXTEXTIOX OF VIEGIMA. Reform League he would have found out that all these checks and balances, about which he has spoken, are found in the charters of the towns where they have only one branch of the council, and they have been amply protected. In the city of Winchester the council is composed of twelve men, of whom only three are elected each year, so that there are nine out of the twelve that hold over from year to year, and exercise a con- servative influence in the council. Xow, Mr. President, I insist there is no reason in the vrorld vrhy these various cities should have two councils, when everything necessary is accomplished by one council, which we now have. We have all the necessary checks and balances that the gentle- man has been reading about and theorizing upon. If the city of Portsmouth desires not to be affected by the operation of this provision, I will willingly vote that it shall be exempted from its operation, and then the gentleman (Mr. Hattonj can have a constitu- tional provision saying that he shall have such a charter as he wants, but I submit we ought to leave the various localities their own charters, as they now exist. Mr. Robertson: I do not care to discuss the merits of this matter any further. I merely desire to say that one-half of the council of the city of Roanoke is elected at a time and we have the conservative element there. We have no trouble in our city council. We do not have charges of corruption. It is suggested to me by my friend from Richmond that another provision of the Constitution prohibits the giving away of franchises. We have a growing town. We have a different kind of population from what there is in other cities of the State. Our people have gotten used to their form of govern- ment, and they do not want it changed. It is more important for us to get legislation through our council, frequently, than it is to prohibit legislation. The different towns and cities in the country differ in that regard. Our city, as the gentleman has indi- cated, has grown tip rapidly. It grew up in a night. It is called the ]Magic City. We were compelled to let private individuals get control of the franchises in that city. It is important for us not to be too conservative. We desire to have competition against those people who have already gotten control of these franchises, and the more difficult you make it to get things through the city council, the worse it will be for the inhabi- tants of that city. I do not intend to cast any reflection at all upon the gentlemen who live in villages. I do not intend to say for one moment that they have not been actuated by honest zeal in the case of reform, but I do question their knowledge and experience about cities. They are governed by their theories in regard to holding land out in the country. I consider the gentleman from Culpeper one of the best friends I have in this Convention, but i do not think that he, who spends most of his time at home attending CO his large law practice, knows anything about the conditions in the city of Roanoke. '}lv. James W. Gordon: I think that a number of these gentlemen have lost sight of the fact that the inhabitants of these various cities are, primarily, citizens of Vir- ginia, to guarantee to each one of these communities such a form of government as is best calculated to work out for them their peace and safety. It has been said by these gentlemen that every one of these communities ought to have a local self-government. I admit that they ought to have a local self-government. But how ought they to have it? They ought to have it on the broad principles established by all the States of this Union for the government of these communities. There is not a single one of these gen- tlemen who are asking for a single branch of the city council in these cities, who would be willing to have a single law bearing upon one of the citizens of this State, passed by a Legislature of the State composed of only one branch; and yet they stand here and ask that taxes amounting to three or four times the amount of money that is ever expended by the Legislature of Virginia may be imposed by these local councils, with- out the consideration which it is necessary to give it by having it go before two branches. We have recognized, in the legislative report which has been adopted by this Convention, the principle that mature and wise legislation demands that each proposi- tion coming up for adoption, which is to affect the whole people of the Commonwealth, 3774 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. shall be considered in two houses, in order to secure proper and conservative action. That is exactly the principle which this report seeks to carry out in regard to the cities of the Commonwealth. Why should not a city with 5,000 inhabitants have the same problems and the same issues coming before its council that comes before the council of a city of 25,000 inhabitants; and why should not the people of such a city have the pro- tection which we give to the larger cities. I say, Mr. President, that the State of Vir- ginia and this Constitutional Conventional owes it to every citizen in these cities to pro- tect them against the extravagance which, it is manifest, has too often characterized municipal legislation and that the only way we can secure the proper amount of con- servatism is to have each one of the ordinances, which affect the people, passed under review before two branches of the council, so that they may receive proper considera- tion and that one may be a check upon the other. It is not only in matters of finance that these municipal councils are called upon to legislate. They have the power to enact a large body of criminal law, I ask the gentlemen of this Convention when they cast their votes on this question, to consider that the Commonwealth has conferred upon these councils the power, to a large extent of enacting criminal laws. I do think that the State of Virginia ought to see that each one of these communities and the citizens thereof are protected in the way which the committee has provided for their protection. The x^resident: The question is on agreeing to the amendment offered by the gen- tleman from Portsmouth city to strike out the words " twenty-five " and insert " ten." Mr. Hatton: Mr. President, I withdraw that amendment. The President: The question is upon agreeing to the amendment offered by the gentleman from Winchester. The ayes and noes were ordered, and being taken, resulted — ayes, 27; noes, 37. The amendment was not agreed to. Mr. Harrison: I now move to make it ten thousand instead of twenty-five thousand. Mr. R. Walton Moore: I hope that will be done. I think it would be a great hard- ship to impose this regulation upon a city like Winchester, in the face of the protest of the people and of its representatives here upon this floor. Mr. Barbour: I hope it will not be done. If Winchester is not a finished town it will have 10,000 inhabitants in a very short while. Mr. President, I trust the Convention will reject the motion of the gentleman from Frederick (Mr. Harrison) and decline to make him and his city an exemption to the constitutional provisions. Mr. Green: Heine says, that on a visit to Hell he found that the mode of punish- ment there adopted consisted in seating the condemned in iron pots, along which small devils passed and poured shovels of burning coals over the culprits. Among these, he saw Socrates and observed that when the small imps shovelled the fiery coals on him, he cried out in fearful tones, saying " Did not I live up to the light of nature? Was I not moral and upright in my life on earth, but to these appeals the devils replied, " Dry up old fellow! We make no exceptions down here." So I trust that in this case the Convention will decline to make an exception of the philosopher of Winchester. Mr. R. Walton Moore: The gentleman from Danville (Mr. Green) has quoted a German author. An English writer whom we all know has told of the land of Lilliput, which Gulliver visited where he found that all of the tailors measured their patrons for suits of clothes with a quadrant without regard to their varying needs and sizes. It strikes me that we are undertaking to do something similar to that. We are endeavor- ing to measure every city in this Commonwealth for the same sort of government. We are trying to put under the rigid regulation which we have devised, every municipal community in the Commonwealth. We are undertaking to do it even if the people of these communities protest vehemently against it. I have been to the city of Win- chester. I do not know whether it is a finished town or not, but I do know that it seems to be a most admirably governed town, and one of the best managed in this Commonwealth. If it gets along well under its present government I do not see why^ we should insist upon experimenting, by making this proposed change. DEBATES OE THE COXSTITUTIOXAL COXTEXTIOX OE VIEGIXIA. 2775 :\Ir. Robertson: I want to suggest that I think the illustration made by the gen- tleman from Danville (Mr. Green) is a very apt one, and that we are playing the devil, in this Convention, at a very rapid rate. (Applause.) The President: The question is upon the amendment offered by the gentleman from Winchester. The question having been taken, the result was announced— ayes, 39; noes, 23. The agreement was agreed to. Mr. Brooke: I now move that Section 7, as amended, be adopted by the Conven- tion. The section was adopted. Mr. R. Walton Moore: In view of the action of the Committee of the Whole on the report of the Committee of the Whole on the report of the Committee on Taxation and Finance, it seems to me there should be an amendment to Section 14. That section de- clares: "In cities and towns the assessment of real estate and personal property for the purpose of municipal taxation, shall be the same as the assessment thereof for the purposes of State taxes." The time may come when some property located in cities and towns may not be assessed by the State, and therefore, it is deemed wise to add to the section this lan- guage: "Whenever there shall be a State assessment upon such property." I have conferred with Mr. Meredith, a member of the Committee on Taxation and Finance in regard to this matter; and I think the amendment is also acceptable to the chairman of the committee. Mr. Brooke: I think that amendment should pass, in order to put this article in line with the report of the Committee on Taxation and Finance. The amendment vras agreed to. Mr. Brooke: I now move that the articles reported by the Committee on Cities and Towns as adopted by the Convention, be referred to the Committee on Final Revision and Adjustment of the Schedule, and be printed. The motion was agreed to. CORPORATIONS. Mr. Braxton: I move that the Convention now take up the report of the Com- mittee on Corporations, as adopted and reported by the Committee of the Whole, and proceed to dispose of it. The motion was agreed to. At this point Mr. Ayers took the chair as presiding officer. Section 1 was then read. Mr. Claggett B. Jones: Mr. President. I move to amend Section 1 by striking out the words " and also any sleeping or parlor car company."' I made this motion in Committee of the Whole. The vote by vrhich it was lost was very close. I think that it lacked only two votes of carrying. I am satisfied if the Committee of the Whole had thoroughly understood the matter these vrords would have been stricken out of the report. My reason for making this motion. Mr. President and gentlemen of the Convention, are that these sleeping and parlor car companies are, in no sense of the word, transmission or transportation companies. The courts of this country have held that they are, in no sense of the word, transportation or transmis- sion companies, it seems to me that if we insert this provision in the report, we under- take to do what the courts have held cannot be done; that is, make them transportation or transmission companies. A further reason ^vhy these companies should be eliminated from the operation of this report is the fact that it is absolutely necessary to protect these companies from certain classes of passengers. It is necessary that they should have the right to say: "Your rates are unjust, your rates are unequal, your rates must be uniform, they must apply alike to all persons under all circumstances and conditions."' As we all know, we are protected from a 2776 DEBATES OF THE CONSTITUTIONAL CONVENTION OP VIRGINIA. certain class of travelers in this State, by what is known as the Jim Crow car law. But that might not apply in the case of these companies. They have no means of protecting themselves, save by discriminating against this peculiar class of people from whom we wish to be protected. There is another reason, as I understand this matter, why this amendment should be adopted. There has been, at no time, any complaint made against these companies that they have discriminated against certain people or against certain sections. When this motion was made in Committee of the Whole my friend from Petersburg stated that a certain section of this country had been discriminated against, in that the charge from Richmond to New York was $2 and the charge from Richmond to some town in Florida was $5. I think the gentleman made that statement under a misapprehension. The fact is that the distance from Richmond to New York is 331 miles, and the dis- tance to Jacksonville is 687 miles. The time that it takes to go from Richmond to New York is about nine hours, possibly a little less on certain trains and the time that is taken to go from Richmond to Jacksonville is never less than eighteen hours, and gen- erally about twenty-three. Now, if $2 is a reasonable charge for traveling 331 miles, certainly $5 would not be an unreasonable charge for traveling a distance of 687; and if $2 is a reasonable charge for traveling nine hours, $5 would not be an unreasonable charge for traveling about twenty-tree hours, and as suggested by my friend from Win- chester, it might require two nights to make the latter trip. I know that the gentleman from Petersburg did not intend to do injustice to these companies. Upon investigation, I find that the gentleman was in error in making the statement that the time it took to make the two journeys was about the same, and that the travel was about the same. Therefore, Mr. President and gentlemen, the charge that there is a discrimination against the South by these companies, it seems to me, was not founded in fact, but was due to a misapprehension on the part of the gentleman from Petersburg (Mr. Cameron). I hope, gentlemen of the Convention, it may be the pleasure of this Convention to eliminate these companies from the operation of this report. An amendment was offered by the chairman of the Committee on Corporations, in Committee of the Whole, that in case these companies should need regulations at some future day, if they began to dis- criminate against particular persons or particular sections of the State, the Legislature v/ould have a perfect right to provide for that at any moment, under an amendment ofl'ered by the chairman of the committee, which was inserted as a part of this report. It seems to me therefore, that we ought to leave this matter to the Legislature, to take future action should occasion arise. I undersand that the chairman of the committee is willing that these companies should be eliminated from the operation of this report. He so voted, if I am not mistaken, in Committee of the Whole. I hope it will be the pleasure not only of the chairman of the Committee on Corporations, but of the gentle- man who signed the majority report, that these companies may be eliminated from the operation of this report. Mr. Braxton: Mr. President, when I stated the other day that I, personally, had no objection to the amendment going in, and that I thought I voiced the sentiment of the members of the Committee on Corporations who signed the majority report, it was, as I explained then, in view of the fact that sub-section c, in Section 4, had been so amended that the Legislature could include sleeping car companies amongst those over which the corporation commission would have jurisdiction, whenever, in the opinion of the Legislature, it was deemed proper. I hope the gentleman from King and Queen will give me his attention. The language by which I thought we had accomplished that purpose was " or with the prescribing and enforcing of rates, charges, or classification of traffic of any public or quasi public corporation." Since the adoption of the report by the Committee of the Whole, upon investigating the matter further I have come to the conclusion that there is a good deal of doubt as to whether the Pullman Sleeping Car Company is a quasi-public corporation, and we propose to remedy that, when the time DEBATES OF THE COJsTSTITUTIO^^AL COXVEXTION OF VIRGINIA. 3777 comes, by changing the wording in such a way as to put it beyond peradventure, by striking out the words " or classifications of traffic of any public or quasi-public corpora- tion," and insert the words " to be observed in the conduct of any business where the State has the right to prescribe the rates and charges in connection therewith." I say that if our amendment is adopted we have no objection to the amendment offered by the gentleman from King and Queen, but in view of the fact that our position will depend upon the adoption or rejection of this amendment on page 12, I would sug- gest the propriety of passing by, for the present, the consideration of his amendment, until we have disposed of this matter in sub-section c. Mr. Claggett B. Jones: So far as I am concerned, personally I have no objection to the motion to pass by. Mr. Cameron: Mr. President and gentlemen of the Convention, the language which the gentleman from King and Queen desires to strike out occurs in a portion of the re- port of the article giving definitions of certain terms used in the report, and it says: " The term ' transportation company ' shall be construed to include any company, trus- tee or other person owning, leasing or operating for hire a railroad, street railway, canal, steamboat or steamship line, and also any sleeping or parlor car, freight car company, car association or car trust, express company or company trust, or person in any way engaged in business as a common carrier, over a route acquired in whole or in part under -the right of eminent domain." It will be clear, on examination, that the jurisdiction claimed for this commission rests upon the exercise of functions as a common carrier over the route In this State, acquired in whole or in part under the right of eminent domain. The question as to whether a decision may have been rendered by a court that the Pullman Car Company may be properly denominated a transportation company, does not seem to me at all applicable here. It is certainly a common carrier, performing the functions of a com- mon carrier, hauling passengers at a price over roads operated in this State, acquired under the right of eminent domain. Therefore, if there be any legal objection to the inclusion, in this part of the report, of " parlor car and sleeping car companies," the same objection exactly would apply to express companies, and other car companies, car associations, and any other of the associations which do their business by the aid of the railroads. I used the term " Pullman Car Company " simply to designate sleeping car companies in this country. They do their business by owning their cars and having them hauled by the railroad company, under the charters granted by the State, charging for the transportation of such passengers. It was suggested in this connection that we would have no jurisdiction. We certainly would have no jurisdiction over traffic or travel originating beyond the State, or over passengers carried to a point of destination beyond the State. But the same argument would apply to the railroad company as to intra-State business. It seems to me the gentleman from King and Queen proves too much. He has two theories. One is that these companies ought not to be included in the jurisdiction of the Corporation Commission because if their rights were interfered with it might prevent discrimination, and the prevention of that discrimination might destroy the power of the sleeping car company to exclude a certain class of people from those cars. Then he says that they have not discriminated and do not discriminate. Both cannot be true. Mr. Jones: I think the gentleman misunderstands me. I did not say they had not discriminated. I said there was no complaint against them because of discrimination. Mr. Cameron: Waiving, for the moment, the question of discrimination, I want to say that I see no reason why this company or any company which comes within the statement of a principle, or any company which comes within the jurisdiction of this commission, should be excluded from that jurisdiction. An express company could say the same thing. The car trust companies could say the same thing. They occupy no territory in your State. They have not, themselves, been given any grant of eminent domain; but they are common carriers, over roads which have acquired, in the State of 175 — Const. Deb. 2778 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIKGINIA. Virginia, property by the exercise of the right of eminent domain and therefore are subject to the regulation of the State law, just as far as the railroad companies them- selves are, limited only by the provision of the Federal Constitution. The gentleman apprehends that I have been in error in regard to rates. I did not say that the distance was the same and I did not state that exactly the same time was consumed in making the two trips to which I referred. I have made the trip five or six times to the South and twenty or thirty times to the North. By way of the Seaboard Air Line I would leave Petersburg at 4:20 o'clock in the afternoon and I would make my connection at Jacksonville, Fla., at 9 o clock the next morning. I was charged $5 for a lower berth in a sleeper. I would leave Petersburg at 6:30 on the same afternoon, be delivered about 8 o'clock in the morning and be charged $2 for a lower berth in a sleeper. Those are the facts. The deduction from them, of course, may be varied by saying that the distance is to be charged for, and not the time you occupy the car. I have no particular object in this objection except that I do not see why one of these companies should be exempt from the operation of this law. Let us admit that no discrimination is made. If that be admitted the great base of the argument falls to the ground because if they do not discriminate this objectionable class can ride as well as anybody else. I do not see why we should not provide, as we are doing in a great many other cases, against the possibility of ill conduct on the part of this corporation. Iz there any complaint made about the express companies. Nobody has moved to omit them from the jurisdiction of the commission. Is there any charge that the car trust company is abusing its privileges and rights? None whatever. Nobody says to leave them out. I do not see why one of the most powerful corporations in this country which is certainly within our jurisdiction within State lines, as much as any other cor- poration is, should be exempted from the possible control of this commission. The amendment proposed by the chairman of this committee only proposes to put them under the jurisdiction of the General Assembly, that very body timidity as to the faith- fulness of which has been the groundwork and argument for the creation of this all- powerful bureau of the government, superior to all the other departments thereof. I do not care to press this point if the considerations which obtain as to all other corporations do not, in the eyes of the Convention, properly apply here. I am not the guardian of the interests of the State in this respect; but I do contend that in a great work like this we ought not make fish of one of the objects of our legislation, flesh of another and fowl of another. Mr. Braxton: I would like to correct a misapprehension on the part of the gentle- man as to the position I take. If I understood him he did not correctly state my posi- tion. He said that the effect of my amendment to sub-section C would be to merely relegate this sleeping car company to the jurisdiction of the Legslature. I want to correct that. The effect of it will not be merely to say that the Legisla- ture can regulate them and fix the rates, but that the Legislature can assign them to the jurisdiction of this commission and the commission will fix their rates. As to whether the jurisdiction of the commission shall extend to them or not, shall be left to the Legislature. I trust I make myself clear. Mr. Cameron: You make yourself clear, but I trust the gentleman will excuse me for saying that it is a distinction without a difference. I do not see why it should be left discretionary with the General Assembly with regard to the Pullman Car Company, when other companies of the same character are put directly under and into the juris- diction of the commission. Mr. Flood: Mr. President, I differ with the gentleman from Petersburg (Mr. Cameron). I think there is a distinction between this company and other companies, and because of that distinction I think this company should be exempt from the opera- tion of the law creating this commission. My objection to its being included is simply because it will prevent sleeping car companies from protecting the white travelling public from the colored people who desire to go into these cars. If the corporation DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF YIEGIXIA. 2779 commission can cite these companies to appear whenever complaint is filed by a negro that he is discriminated against by not being allowed space in one of these cars or be- cause the price is raised to him, the commission would be bound to fine them, and so the companies could not afford to protect the white travelling public. Mr. Cameron: Is it or is it not a fact that this company does not discriminate be- tween individuals? Is it not a fact that a colored man applying for Pullman accomoda- tions at the station here in Richmond to-night will be charged the same as you or I? Mr. Flood: I believe it is a fact that he would be denied space in that car upon one excuse or another; but I do not believe the company could do it, if every time they denied space to a colored man they would be dragged up before this commission and fined. They could not afford to do it. The only recourse a colored man now has is to appeal to the courts on the ground of discrimination, just as he can now appeal to the courts against our separate car law on the ground that the cars furnished the negroes, as every man in the State knows is a fact, are not as nice as those furnished to the white man, Mr. President, we all have lady friends and families who use these cars and who are compelled to use them in their travel, and surely we do not wish to break down the barrier as to sleeping cars or Ptillman coaches which we have erected as to the ordinary day coaches. Mr. Garnett: Do you know they have discriminated against the blacks? Mr. Flood: I am informed upon the best authority that they have. Mr. Garnett: I know they have not done it down in my section of the country. The darkey rides in the Pullman car from here to Newport News just as well as I do. Mr. Flood: I do not believe the colored man can go to a Pullman car office and get a ticket. Mr. Garnett: I assert it as a fact. I do not know whether they get a ticket or not, but they ride on the car. I saw a great big buck negro on one of them three or four weeks ago. I do not know how he got there. He may have had a complimentary ticket. I did not. I had to pay for mine. Mr. Flood: I did not intend to question the gentleman's statement. That, however, was not one of the Pullman cars that this law would apply to. Mr. Garnett: It is a car that they spread beds on and sleep on. Mr. Flood: It was a through car. It is not a car that starts within the limits of this State, and your commission cannot control it. It is a car that starts in a city where the negro is nearer the attainment of social equality than will ever be the case in Virginia. \ery few negroes get in Pullman cars now. Some of them may get in. Under no system will you be able to prevent this occasionally, but they cannot go to a ticket office here and buy a ticket. By one excuse or another, the company has in the past kept them, as a rule, out of Ptillman cars. I do not mean, of course, that they have done it in every instance; but in the majority of cases they will be able to do so either by putting a prohibitive tariff upon them or by telling them there is no space for sale. I claim this provision would take it out of their power to protect the white people to that extent. I do not believe this Convention is going to subject the ladies of this Commonwealth to the indignity of having to travel in sleeping cars with negroes. It seems to me that is a reason which differentiates this company from every other company. I think the difference is sufficient to justify the adoption of this amendment. Mr. Braxton: I move that the further consideration of this matter be passed by. The President: That will be done, without objection. Section 2 was read and adopted. LIMITATION OF DEBATE. Mr. Thom: 1 move that debate arising on the subject of this report be limited to ten minutes. The motion was agreed to. 2?80 DEBxlTES OP THE CONSTITUTIOJvTAL COXVENTIOISr OF VIRGINIA. Section 3 was read and amended as to verbiage by the Chairman of the Committee (Mr. Braxton.) Mr. Withers: Mr. President, if the chairman of the committee is through, I desire to offer this amendment, which comes as two, because of the necessity of two changes being made right together. Insert the words "three members of" after the word " the." Strike out in lines 4 and 5 the words "appointed by the Governor, subject to confirmation by the General Assembly in joint session" and insert the words " elected by the qualified voters of the State." Mr. President, much to my regret I am afraid that I will be the innocent start of a good deal of oratory and eloquence; not that I am eloquent, but the motion causes it. As I closed within my ten minutes limit the other day, i was submitting some re- spectful observations to my distinguished friend, the chairman of this committee; and I think it is eminently appropriate, in view of a speech made and of certain events that have occurred since that time, that I should continue my remarks as started to be made upon that occasion. I called attention, Mr. President, to the fact that the distinguished chairman of the Committee on Corporations had not voted for election by the people of any of the officers, the method of whose election and appointment was submitted to the decision of this Convention. Since that time my distinguished friend has offended again three times. I believe he voted against the election of the Secretary of the Commonwealth, of the treasurer and of the first auditor; and these remarks are apropos because of the fact that my friend from Warren (Mr. O'Flaherty) while making an argument in favor of a similar resolution in Committee of the Whole, to elect the corporation commissioners by the people instead of appointing them by the Governor, subject to the confirmation of both branches of the General Assembly, called attention to the fact that this amendment which I respectfully offer here to-day is the original report of this corporation com- mittee, as published in the newspapers, for the commissioners were to be elected by the people, and further said that a second Saul of Tarsus had seen a second light. But I think my friend from Clarke and Warren made this one mistake. My recollection is that as the distinguished Saul of Tarsus went down in his journey to Damascus, he was struck blind by the overwhelming light that he saw, and that he was blind for some days thereafter. I am afraid the distinguished chairman of this committee has not recov- ered the sight that was accorded to Saul of Tarsus. He is still blind and wandering in the blindness of his error. Now, Mr. President, I call the attention of the Convention again to the fact that we have in this amendment exactly what this committee first agreed upon. Why this sud- den blindness? Why this sudden change? What is the reason for it? It has not been explained upon the floor of this Convention. In none of the many able defences made by that committee for this report, has it been explained. It has not been explained by any of the various and sundry and almost numberless amendments offered by the com- mittee itself to its report; and so many were they, that a distinguished gentleman upon the floor said that they (the committee on Corporations) met an argument or an objec- tion not with an argument or reason, but with an amendment; but the reason for this change remains to this day unknown to the members of the Convention, and I am frank to say that it does seem that we who advocate this method of election, instead of an appointment subject to confirmation, are ourselves in line with what was a part of the original recommendations of the Committee on Corporations. Now, I want to hear in the course of this debate reasons for this change. It seems there is a lightning change artist capacity for amendments for tentative propositions or for reversals and it does seem to me that when in as important a matter as the matter of choosing the commissioners there should be consistency and that is what we are contending for. Very few of us who advocate this method of choosing DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OE YIRGIXIA. 2781 these commissioners in any wise oppose the spirit and intention and purpose of this bill. We advocated and desired that this discussion which we urged the supporters of this measure should be put off to the last, in order that nothing mignt be done that should create anj-thing approaching a lack of harmonj^ or cause any friction. It was not assented to, and therefore we had to fight from our position and upon the merits of the question that we submit. Now, why the change? A\Tiat is the reason for it? Conservatism? Is it possible that we who are noted as the most conservative people in all these United States, that Virginia, who is the leader in conservatism and has always been, has lost all of that or will lose it under a purified and purged electorate; that this Convention proposes to give to the citizens of the Commonwealth? Is it not a fact that the main purpose, so often urged upon the fioor of this Convention that dictated its being called in many sections of Virginia was to purify the electorate? Therefore when that is accomplished and done, there will be absolutely no objection to such a method of choosing the officials because of the fact that the radical, unwise and illiterate part of the electorate is elimi- nated therefrom. Now, I want to call attention, because the inconsistency of the thing appeals so forcefully to me, again to what I have already once called attention to upon the floor of this Convention. That is, that many gentlemen who are the opponents of this measure, but who favored this method of selecting the commissioners by the people, are the Yevy gentlemen who have sustained the report of the Executive Committee as originally made, and retained from the Convention because it was said that if cer- tain officials of that department had to perform one of the duties now devolving upois these railroad commissioners, the people should have the right to select such officials, performing such duties. Now, they have voted consistently, for in every instance- they voted against selecting these officials by the people. So that. ]Mr. President, 1 say we occupy the consistent position. We stand where the committee stood before it had its blinding light that left it blind. We stand where the gentlemen on the Executive Committee stood in their recommendation that the board assessing the property of corporations for taxation should at least a majority thereof, be selected by the people direct. We stand where we have persistently and consistently stood, that a board so important, of such high dignity, with such responsi- bilities, duties and burdens upon it, should not be subject to the possibility of corrupt bargaining between the appointing power, the confirmatory power and the corpora- tions upon whose rights they should have to pass. We are still consistent in our position that the dangers in appointment for the corrupt practices and the building up of machines and the debauching of the politics and the corporations of Virginia are infinitely greater by the appointive than by the elective method. Mr. Keezell: Mr. President, I desire to offer a substitute for the amendment of the gentleman from Danville (Mr. Withers). It does not come into the section in the same line, but it is in effect a substitute for that proposition. It will come in at line 67, in place of the balance of that section, and would be in effect a substitute for the proposition of the gentleman from Danville. As the terms of office of the commissioners first appointed under this ordinance expire, their successors shall be elected by the State at large, and the General Assembly shall provide by law for their selection. Now. ;Mr. President. I am one of the members of this Convention who voted in most instances for the election of officers by the people, and I favor the election of this com- mission by the people: but at the same time I recognize the force of the argument which has been used upon this floor by various gentlemen in favor of starting this commission at once at as early a day as we can with people who have been named with special reference to the quahfication, as it was supposed might possibly be done by an ap- pointive rather than an elective power. 2782 DEBATES or THE CONSTITUTIONAL CONVENTION OF VIRGINIA. I offer this substitute now for the amendment of the gentleman from Danville, first, in order that this commission may become operative at as early a day as pos- sible; next, that having been appointed by the Governor and confirmed by the Gen- eral Assembly, if that has proven to be wise, the people will have some gauge of the character of men that shall continue to perform the duties of this important office. If, upon the contrary, they have not been wise, they need not re-elect these men, but they can take, of their own volition, such men as they see fit to take. This amend- ment simply provides that as the term of each one of these commissioners expires, his successor shall be elected by the people, and at the end of the terms of the first ap- pointed under this law and for all time afterwards, these commissioners will be elected hy the people. Mr. Mcllwaine: Mr. President, about forty years ago I read an old book, the first sentence of which was " My Uncle Toby had a hobby." I make my bow to the gentle- man from Danville (Mr. Withers). (Laughter.) If this Convention has not gotten sick and tired of all this talk about the people putting everything before the people, then they have a great deal stronger digestion than I have. (Laughter.) Mr. Withers: I thought there w^as something the matter with the distinguished gentleman. I did not know whether it was his digestion or his intellect. (Applause and laughter.) It appears now it is both. Mr. Mcllwaine: The idea that every officer that has to be elected in this State has to be elected by the people is to me impossible. I have had occasion before to say on this floor that it seems; to me it is as much our duty to save the people the worry of electing people as it is to give them the right of electing those persons whom they desire to elect. We have heard a great deal of representation upon this floor of what the people ^ant. Why gentlemen think the people want to be bothered with the election of all these different officers, is more than I can imagine. There are certain officers of State that they have been accustomed to elect, but that they desire to elect such officers as these I do not for a moment believe. There are good reasons why, as the gentleman from Rockingham (Mr. Keezell) has shown, that these officers ought to be chosen at the present time. It seems to me the committee has been very conservative in its recommendation and in its proposition that at the end of five years after the system of appointments has been fully tried, the Legislature has it in its power to change the mode. I do trust the Convention will not be carried off its feet by such appeals as we have had from the gentleman from Danville (Mr. Withers), and be made to do an imprudent and injudicious thing. Mr. Braxton: I move that the chair be now vacated until 4 o'clock this afternoon. The motion was agreed to, and the Convention took a recesa until 4 o'clock P. M. /- AFTERNOON SESSION. The Convention reassembled at the expiration of the recess. Mr. Davis: Mr. President and Gentlemen of the Convention,— I shall detain you but a moment in answering the gentleman from Prince Edward (Mr. Mcllwaine). I desire to say that he has greatly misstated the wishes of the people In my section of the State, and if the gentleman from Prince Edward were to visit my section of the •country he would hear a great deal more said about the members of this Convention who are continually talking about taking the election of officials out of the hands of the people than he will hear about the gentleman from Danville and the other gentlemen upon this floor who are contending that the people are to elect their officers. The people of this State know whom they want, and they are intelligent enough and capable enough to elect their own officers. I know of no class of officials more im- portant for them to elect than the members of the Corporation Commission. They ought to vote for them, and they desire to vote for them. I hope it will be the pleasure of the Convention to support the amendment of the gentleman from Danville. DEBATES OF THE COXSTITUTIOIs^AL COXVEXTIOX OF VIEGIXIA. 2783 Mr. Kendall: Mr. Chairman and gentlemen of the Convention, I had hoped that this matter, which has been so fully discussed, had been finally settled, not only in the minds of the members, but beyond any further debate on this floor. I have lis- tened, however, to-day to an arraignment not only of the report of the committee, but, as it seems to me, of the members of the committee. We were asked when it was that new light had dawned upon us in the matter of the selection of these Corporation Commissioners. I am unable to understand the meaning of that interrogatory. If the gentlemen mean that their impressions are always so wise that they need not take counsel of further consideration, if they mean that they are led by intuition rather than by reason or reflection, I will accord to them, especially to my friend from Dan- ville, who seems to occupy that position, a monopoly of such virtue. I understood the gentleman, however, to complain that our committee had changed our report upon this subject. When it did so is unknown to me. This report stands to-day in this matter exactly as it was first made. It may have been that measures of a different character were submitted to the committee for further consideration. I, as a member of that committee, was struck with the fact that members, individually, reflecting quietly upon the working of this part of the article, were led to the same conclusion, that it would be a fatal mistake to place in our article a provision that the members of this commission should be elected by the people. It was a conclusion that I suppose each member reached not after days, but after weeks of reflection and of the best consideration that they were able to give to the subject. But, Mr. Chairman, we do not undertake to settle the whole matter beyond peradventure and forever. We are willing to credit those who may differ from us upon this subject with some wisdom, which our friends are unwilling to credit us with. We provide that whenever, by ex- perience, it shall be ascertained that the selection of the commission under appoint- ment by the Governor shall be abused, then the people — the people — the people, through their Legislature, whom they elect, shall have the power to change that pro- vision and place it where they wish it to be placed. We have provided that we shall have the benefit of experience to see what is the best plan to be adopted in the settle- ment of this much disputed question. We have presented it to you so that if it shall be found in the future, that the Governor of the State is abusing his high prerogative, is becoming the tool of the corporations or of politicians, the Legislature may take from him this high power, which has been entrusted to his care. Why, sir, it seems to me that is one view of this plan which ought to commend itself to each member of this Convention beyond dispute, that not only the Governor will ever be aware that his action is to be considered by the Legislature in joint session and by those who are opposed to him in politics and seeking to defeat his ambition, but far more impor- tant is it that it will stand there as a restraining influence upon the railroads and other corporations to prevent them from undertaking to unduly and improperly con- trol the commission. It seems to me that that ought to be an argument sufficient to settle this question beyond cavil in the minds of every member of this Convention, no matter how much he is given to disputation. The gentlemen tell us there is nothing to be said on the other side of this ques- tion. Do they believe that the people never make mistakes? Do they not know that if these splendid salaries are held out to the politicians, there will be a multitude of them from all parts of the State seeking the positions. Are you, gentlemen of the Convention, unwilling at least to give this plan a fair and square trial, when it con- tains a provision that the people may take back to themselves the power, if they find it abused by the Governor. I understood the gentleman from Rockingham to offer an amendment which made it conclusive and fixed it beyond the power of the Legislature to decide otherwise that after a period of years this power of election should go to the people instead of remaining as it now is. Yet he undertook to argue that the first appointment should be made by the Governor, so that the appointment might be made and the commission launched under the most advantageous circumstances. Wh.y, Mr. Chairman, suppose 2784 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. it should be found that the operation of this plan is wise and for the best interests of the people, then, under the amendment offered by the gentleman from Rockingham, we cannot keep it where it now is, however well it may be found to work. I submit, as I said before, in discussing this question before the Committee of the Whole, it seems to me that you are now striking at the vitals of this great measure which we have passed after such long debate. It seems to me that our friends have gone blind and wild upon this question of election by the people. I do not believe that the people are flattered by such talk as this. They know their capacity and they know their fitness as well as you or I know it. They are ever willing to entrust to their representatives in the discharge of their duties as representatives, in a repre- sentative government. Gentlemen have talked upon this floor again and again as if we were a pure democracy. They seem to think that no longer have the people any power over the Legislature. They seem to think that nothing but an appeal to the polls or to the hurly burly of a political convention can settle any of these great questions. I undertake to say, here and now, that if it were submitted to any member of this Convention within twenty-four hours — the time he would have to act in a political' convention — to select the three commissioners, he could not do it. I under- take to say that there is not, within the sound of my voice, a man, unless he be more self-opinionated than he is stocked with common sense, who would undertake the job of selecting these three men within twenty-four hours, without further consideration. He might be able to select the member who should represent the legal part of the commission; but he would not be able to select the men, whO' by reason of their technical skill will require for their selection time, consideration and information from every section of the State. Nothing short of that, and no instrument of appointment short of that, is fit to do this work. For that reason I trust that the gentlemen will remember that we are now about to pass on one of the most important sections of this whole report, and I hope they will sustain the report. Mr. Flood: I disagree with the gentleman from Northampton. The gentleman wants to know if the people never make mistakes. I agree with him. that the people sometimes make mistakes; but. I think, Mr. President, the will of the people, w^hether of wisdom or folly, is the fundamental principle of free government, and any attempt to abridge that will is an act of usurpation and tyranny. This, sir, in my judgment, is an attempet to abridge the will of the people, in their desire to choose the officers to administer one of the most important departments that will be established by this Constitution. I heard my distinguished friend from Roanoke say this morning that in the last few weeks this Convention has been raising hell. It has done nothing more in that direction than this manifestation of a tendency to take from the people their right to choose their own officers, and to take from the Legislature, the representatives of the people, the right to choose other of those officers, and to concentrate that power, of which the people and the Legislature have been robbe'd, in the hands of one man, the chief executive of this Commonwealth. There has been instance after instance where the power of the Governor of Virginia has been increased at the expense of the Legislature and of the people. Why, sir, there is scarcely a function of govern- ment that is not to be exercised by his appointees. The enactment of general laws is still left to the Legislature, but the carrying out of those laws is now put into the hands of gentlemen of boards or of bureaus, who derive their power from the Governor. It is a dangerous tendency. It is a tendency that no Commonwealth in this country can stand. It is a tendency that no community in this country has ever stood v^rithout building up a political machine, which has, time after time, defied the people to wrest the power from it, machines which have held the governments against the will of the people. Mr. President, the Governor, under this Constitution, has the power to suspend every executive officer of this Commonwealth except the Lieutenant-Governor. Of course, it follows that he has the power to fill, ad interim, the vacancy which is thus created. And thus it is this Convention confers upon the Governor a power, the ex- DEBATES OF THE CONSTITUTIOJsTAL CONVENTION OF VIRGINIA. 2785 ercise of which by one President of the United States, caused an attempt upon the part of the House of Representatives to impeach him for high crimes and misde- meanors, and from which he escaped conviction before the Senate by one vote. Not only, Mr. President, are all the executive officers of the Commonwealth absolutely at the will of the Governor, but most of them are appointed by him. The Agricultural Bureau of this Commonwealth has been turned over by this Convention absolutely to the chief executive. It is true that you have thrown a sop to the people by saying they can elect the Commissioner of Agriculture; but, while they have done that, they have divested that commissioner of every bit of power he has heretofore had. Mr.Stuart: Do you think the people engaged in agriculture in this State are com- petent to judge of their own interests? Mr. Flood: I certainly do think so. Mr. Stuart: I am here to state that I have been in intimate communication with them, and the only objection they have shown in this entire Constitution is that the Commissioner of Agriculture is to be elected by the people. Mr. Flood: You have a peculiar agricultural constituency. I am now not sur- prised to know that there are 1,100 white men in Russell county who do not know how to read and write. (Applause.) Mr. Stuart: There are people in that county who cannot read or write that equal any member of j^our constituency. Mr. Flood: That may be true; but they do not show it in the communications, which they have made to you, because my people want a voice in the selection of the men who are administering their affairs. They do not want to be controlled by a one-man machine. We are building up a political machine by putting into one man's hands all the political power of the State. We do throw a sop to the people by saying that the Commissioner of Agriculture shall be elected by the people; but you divest him of every bit of authority he has heretofore had. You put all of that authority in a Board of Agriculture, which is appointed by the Governor, and you make this com- missioner, chosen by the people, a simple insignificant, contemptible secretary to the Board of Agriculture, with not even the power to appoint the clerks in his office. You have denied the man, who is chosen by the people, that right. And thus, here, in 1902, a Democratic Constitutional Convention is enacting fundamental laws on a par with those for which the people of Virginia hurled Mahone from power nineteen years, ago. I go to the Bureau of Labor. It is absolutely in the hands of the chief executive of this Commonwealth. The wrongs of the labor people can only be righted by an appeal to an officer appointed by the Governor. You have reversed the policy of the State since its foundation. In the early days of the Commonwealth, when constitutions were made in the wisdom of tho fathers, there were no constitutional provisions conferring powers of this character upon the executive. Even the penitentiary is in the hands of a board appointed by the Governor. Heretofore the people of Virginia have thought that they, through their General Assembly, were at least capable and honest enough to choose the superintendent of the Virginia State Penitentiary. This Convention has- said they will not trust them even to do that. You take the appointment of the super- intendent away from the Legislature and vest it in a board which !s to sit in the city of Richmond in direct touch and close communication with the Governor, with the power to appoint this officer. Every one of the seventy or eighty appointments in that institution at the farm and at other penal institutions which may be estab- lished, and the disbursement of all the money at that institution, is in the hands of that board. The same is true of the asylums. The patronage of those institutions are in boards appointed by the executive. And to make this iron grasp on them all the stronger, you have provided that there shall be one central board of twelve which may be in close communication and touch with the Governor, which controls the distribution of patronage and the expenditure of the large sums of money disbursed at this institution. Go to the great educational institutions of the State, and you find them controlled and dominated by the appointees of the executive of this Common- wealth. Not even, sir, did the free school system escape. The Board of Education, 2786 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. controlling the expenditure of the school fund, a board whose influence ramifies every section of this State, will indirectly be the creature of the Governor. The county and city superintendents, directly or indirectly will be appointed by that board. Five of them will be indirectly the appointees of the Governor, and those fi^e, with the Gov- ernor, constitute three-fourths of the board. The other one-fourth, or two members are elected by the people, but the Governor is given power to suspend them. I see that a gentleman has introduced a resolution to strengthen the grasp of the Governor upon the militia of the Commonwealth by fixing it as a constitutional provision that he shall also have the right to appoint the Adjutant-General of the State, regardless of what the people or their representatives, the General Assembly, may in future desire upon this point. And now, Mr. President, comes the Corporation Commission and a proposition to give the Governor the power to appoint that commission, so that he may wring, if he sees fit to do so, whatever campaign fund he may desire out of the corporate wealth of the State. I want it understood that my remarks have no personal application. They apply to any man who, in the past, may have filled, and to any one who now fills, or in the future may fill, the chief executive office of this State. We hear a great deal of discussion about political machines in some of the cities and States of this Union. Those machines have been built up by the concentration of the patronage of those communities in the hands of one or a few men, backed by the laws which enable the coterie to draw on the corporate wealth of the communi- ties for the campaign funds. Here you are putting into the hands of one man the patronage of the Commonwealth, and you give him further power to force the rail- road companies and other corporations, as a matter of self-preservation, to supply whatever he demands in the nature of campaign funds. In the name of the people, I protest against it. In the name of the agricultural people of this State, in the name of the brave free people everywhere who wear no man's, collar, and are unwilling to wear any, I enter my solemn protest against this policy. I protest aganst the at- tempt to take away from the people the powers they have the intelligence and the capacity to discharge. Why, sir, this very bill here indicates, if it indicates anything, and I believe it does, that the people of Virginia know they have not been treated right by the corporations of this State, and therefore they have demanded this com- mission for the purpose of adjusting their rights, and remedying their wrongs. They have had that intelligence, and we must admit they have it, because they sent men to this body for the enactment of this measure. Then, surely you cannot say they have not the intelligence and the integrity to choose the men to administer this law. I believe, Mr. President, it would be a serious blow to the Constitution to incorporate this provision in it. I agree with the gentleman from Northampton that it is a vital issue. The question here is between the rights of the people on the one hand and concentrated power in the hands of one man on the other. The public oflSces belong to the people, and should be chosen directly by them, or indirectly by them, through their servant, the General Assembly. We are accustomed to regard and speak of the Governor as the most prominent citizen of the State; not only the Chief Magistrate, but the chief citizen — the head of the body-politic. But if the head becomes unduly enlarged the political fabric will become top-heavy, and will tumble to the ground. The English kings used to hold to the theory that the people had no rights which the sovereign were bound to respect, but the Barons gave a dose to the doctrine of Runnymeade which kept it asleep for seven hundred years. The report of this com- mittee has awakened it to life with the idea that the people have no rights which this Convention may not take from them and concentrate in the hands of one man. Keep this provision and this idea in the Constitution and when it is submitted to the people — and in one form or another it will go to them for ratification or rejec- tion — they will give it another dose from which it will be impossible to arouse it for another seven hundred years. (Great applause.) DEBATES OE THE CONSTITUTIOI^AL COXVEXTIOX OF VIRGIXIA. 2787 Mr. Braxton: Mr. President, this debate has proceeded, I think, like most of the debates we have had, with a great deal of temperance and a great deal of patience, and an absolute lack of personality, with one exception. The gentleman from Danville has seen fit to devote the entire time of his discussion, ten minutes in this case, to what seemed to me to be a veiled intimation that the Committee on Corporations were influenced by some unworthy and improper motives, in changing, as he says they did, their views on the question as to how this commission should be appointed. Mr. Withers: Why, Mr. Chairman, it was a mere bit of raillery, that I thought the gentleman would understand. There was nothing in the world veiled in it. WTien I want to make an intimation of improper influence I will do it directly. It was just ridicule of the proposition, and it was perfectly fair criticism. Mr. Braxton: Mr. President, I am very glad to have afforded the gentleman an opportunity to state what he has stated. I think, Mr. President, that this matter should be discussed on its merits. I think that the method reported by your committee and adopted by the Committee of the Whole is the wisest method; but I have the utmost respect for gentlemen Avho differ from me on that subject, and I think we should discuss that thing on its merits and not as to the personnel. However sure I may be of my ground, I concede I may possibly be mistaken. I think in reference to this matter we should look at it absolutely impersonally. Here is a proposition which has been carefully considered by this body and passed on by the Committee of the Whole. The considerations which governed us were these: This is a new office, untried, one w^hich requires the capacity and experience of business men, men taken from private life, and not public men. There were two methods which we thought worthy of con- sideration, election by the people and appointment by the Governor. I am free to admit that either one of them is capable of abuse. The first appointments under this would have to be made for two, four and six years. Mr. President and gentlemen of the Convention, I wish every man here would ask himself if he knows of a man in this Commonwealth who, if he were Governor, he would be willing to appoint one whom he regards as fit for it, whom he believes could be induced to abandon his business and enter into a political career and canvass the State from one end to the other on the possibility of getting an office to hold for two 3'ears. There are men who will do it, I am perfectly willing to concede, but I ask every man present here to ask himself if he knows any man who would do that whom he thinks would probably be a proper man for the position. Mr. Flood: It would seem to me that the better the man is the more apt he would be to do that, because the more certain he would be that he would succeed him- self for a six-year term by giving satisfaction. Mr. Braxton: What my friend says sounds very well, but it is unfortunate that in political campaigns it is not always true that the best man wins. We all know that the man who is trained to public life, who is a skillful public debater, who is familiar with the ins and outs of politics, who knows how to play upon the prejudices of the people, has a great advantage, and that every other man who has not that experience has abso- lutely no show with him in a popular election if he is an unknown man. Now, Mr. President, in these similar institutions that are spoken of — I do not say all of them, but all I have been able to hear of — the institution was started and put upon its feet by the method of appointment, because the men could be by that method selected and not merely elected. The State could be looked over, and the man best fitted for the position that the people are not familiar with, as they are with the judiciary, could be selected, and if the Governor abused his. power, there was the Legislature behind him to check him in it. Then the institution having been estab- lished and put upon its feet, the people had some guide to go by, something to govern them; and my excellent friend from Rockingham (Mr. Keezell) recognizes that fact when he suggests that this commission should be started by appointment, and can then go to a general election afterwards. 2T88 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. I think any man who will ponder on this thing must conclude that it would be absolutely fatal to the efficiency of this measure to start off by throwing it out into politics and having this place, which should be filled by men of affairs, and men of experience, filled only by professional politicians and office seekers. When those men have been selected and put into office, then, if you choose, say whether they shall be elected by the people or whether you shall continue the method you have adopted. The only difference between me and my friend from Rockingham is this: He agrees with me that at first the method of appointment should be adopted, but he thinks after that we should make it obligatory to go to election. I say that when we have started on that plan the people should be left the power of saying whether they will adhere to it or depart from it, according to the experience they shall have had with it, so that if they want it they can keep it, and if they do not want it, they can abandon it. Your Committee on Corporations have had this thing earnestly at heart. We have had no personal motives to subserve. We will not hold the office ourselves. We have no friends who are candidates for it. We have but one earnest wish, and that is that this victory we have won after so much labor and so much effort shall not be made a fruitless one, and that this institution we have established here shall not be made a mere football of politics, but shall be made an efficient institution that will do justice and carry out the just hopes and expectations of its friends; and we earnestly ask the Convention not to come forward now, after this method has been carefully considered and twice passed upon, and engraft upon this provision a plan which those of us who have spent so much time in the consideration of it earnestly believe will impair the efficiency of this body at least fifty or seventy-five per cent. Let us start in on the method we have agreed upon; then, if it should transpire that that method is not satisfactory, I, for one, will do all I can to adopt the method which my friends here think is wisest; but if you attempt to start in on your method, and it should turn out to be a disappointment to you, although you might lament the day you advocated it, you can never depart from it. Mr. Flood: I wish to ask the gentleman if he could not accomplish the result he has in view or avoid the danger he suggests, by leaving it to the Legislature to fix the method of electing this commission? Mr. Braxton: I think not, sir. I think we would be playing more into the lion's mouth by that than by any other method we can get. I think one of the two methods, the appointment by the Governor and the confirmation by the Le2;is]atnre. or the direct election by the people, is the one we should adopt. I want to adopt a course that will give us the benefit of both of them, and the experience of both of theni. I know^that if we start with popular elections we can never leave it, though we may lament more than anybody else that we ever adopted it. If we start off with the other method and should be disappointed in it, we can leave it and go to the vote of the people. Mr. Keezell: Is it not true that if your plan of appointment is adopted, it will be impossible for the people to have control of that board for at least ten years from now? Two of the terms will have expired, and men will have been appointed for two full terms by the Governor, which would carry it over for about ten or eleven years. I have not made the calculation exactly. Mr. Braxton: After 1908 the other method can be resorted to. Mr. Keezell: It can be resorted to but you will have two men there who have been appointed for six years, and they will be a majority of the board. The first one who can be elected by the people will be the man wiio, under the appointment, will serve longest. Mr. Braxton: I think for a method of that sort eight years is a reasonable time to experiment either with the election by the people or the appointment by the Governor. The President: The question is on agreeing to the amendment offered by the gentleman from Danville (Mr. Withers). The question having been taken by ayes and noes, the vote was announced — ayes, 25; noes, '62. DEBATES or THE COXSTITUTIOls^AL CONVEXTIOX OF VIKGINIA. 2789 The amendment was rejected. Mr. Flood: I offer the following amendment: The Secretary read as follows: Strike out the words " appointed by the Governor, subject to confirmation by the General Assembly in joint session," and insert the words " elected by the General Assembly." At this point, Mr. Ayers took the chair as presiding officer. Mr. Braxton: Mr. President, I just want to say, on behalf of the Committee on Corporations, that so far as they were able to consider this matter, they thought the method of electing by the Legislature was decidedly the worst method of the three; that it had almost all of the disadvantages and none of the advantages of either of the other two. We trust the amendment will be voted down. Mr. Flood: Mr. President, I wish to submit one or two suggestions to indicate why I think the Legislature is the better tribunal to be entrusted wiOi this power than the Governor. What I said in connection with the election of the people does not apply with equal force, but it is to a degree applicable to the election by the Legislature. My distinguished friend from Staunton (Mr. Braxton) says that this is the very worst method of appointment. I think it is the next best. I think election by the people is best, election by the Legislature is next, and appointment by the Governor is the very worst method that could be adopted. Mr. President, by this Constitution, if it ever goes into effect, we have provided that the Legislature can elect the judges of the Supreme Court of Appeals. Certainly those positions require as technical knowledge as would be required of a member of this commission, and if the Legislature is competent to elect the judges of the highest court in the Commonwealth, it is competent to elect the members of an inferior court. The gentleman says you would have politicians. I should like to ask him if the complaint has ever been offered against the Court of Appeals of this State that positions on it were filled by politicians by reason of the fact that their appointment did not vest in a bureau of patronage to consist of the Governor of this. State. Why, sir, the Legislature has elected the judges of all of our courts for the last forty years, and there has been no complaint except in rare instances, of the exercise of that power on the part of the Legislature; and now, when we come to create a court, inferior to courts, that have been elected by the Legislature. I appeal to gentlemen on this floor to know if there is any sound reason why this power should not be entrusted to the Legislature. All of us, Mr. President, want to see this Constitution ratified by the people. Surely there are none of us here to-day who do not believe that in one shape or another it is going before the people for ratification or rejection. Can we afford, in this important matter, in the constitution of this commission which has been created, to answer a demand made by the people for a tribunal to determine their rights against the corporate powers of this Commonwealth, to say that the people or even the people's representatives are not intelligent enough, and not patriotic enough to select this tribunal. I believe the collective wisdom of 140 men, chosen by the people, is a safer repository of this power, than that of one man, though that man be one of the seven sages., instead of an ordinary Governor. The Presiding Officer: The question is upon the amendment of the gentleman from Appomattox (Mr. Flood). The question having been taken by ayes and noes, the result was announced — ayes 28, noes 33. The amendment was rejected. Mr. Keezell: I desire now to offer the amendment I undertook to offer as a substi- tute for the amendment of the gentleman from Danville (Mr. Withers), which was ruled out of order. Strike out, beginning with line 67, after " the first day of January, 1908, the Gen- 2790 DEBATES OE THE COXSTITUTIOJTAL CONVENTION OE VIRGINIA. eral Assembly may provide by law for the election of the said commission by the people of the State at large, instead of their appointment by the Governor, as hereinbefore required," and insert in lieu thereof the following: "As the terms of office of the com- missioners first appointed under this ordinance expire, their successors shall be elected by the people of the State at large, and the General Assembly shall provide by law for such election." Mr. President, I believe it has been stated here by the chairman of the Committee cn Corporations (Mr. Braxton) that it has been the custom, in almost every State of the Union where a commission of this sort was inaugurated, to put it in force by appointment. Later on these officers, in many instances, are elected by the people. That had been my idea of the proper method in which to start this matter in Virginia, and I believe that by adopting the amendment I have offered you would have the advantages of what is asked for in the report of the committee and the advantages to be gained by the purpose sought by the gentleman from Danville (Mr. Withers), and those who agreed with him; and if we leave this proviso here, that the Legislature may, after 1908, decide to elect these commissioners by the people, what is the result of it? You have taken away from the people the right to select a majority of this commission until 1911. That is the first time when a majority of these members may be chosen by the people. The plan proposed in the amendment I have offered would allow a majority elected by the people to take control of this board in 1907, four years earlier. It simply makes it obligatory that as the terms of these officers expire, the places of those first appointed shall be filled by election by the people. I believe that if there is any one set of officers that the people of Virginia ought to select or have the right to select, it is the members of this Corporation Commission. I have heard it stated here upon this floor that the people take no interest in this matter, as to whether these officers are appointed or elected, and care very little about it in any way, shape, or manner. I wish to state to you, Mr. President^ that so far as my section of the State is concerned, the people are interested in the creation of this Corporation Commission, and in giving it such power as will give them relief, as they think, from the ills which they suffer, more than they are in anything else this Convention has done. I do not want to undertake to cripple the commission, or to tie its hands, by allowing it to be appointed in such a way that after all the wishes of the people and their ex- pectations may be thwarted. I want to allow the people an opportunity at the very earliest day possible to undertake to elect these officers, and to elect such men as will carry out their wishes and do fairly right by them, as well as by the corporations in the State. Mr. Barbour proposed to amend the amendment proposed by the gentleman from Rockingham, so that it would read: As the terms of office of the commissioners first appointed under this ordinance expire, their successors may be elected by the people of the State at large, and the General Assembly may provide by law for such election. Mr. Braxton: Mr. President, I will deal frankly with the Convention, and state that in my opinion and in the opinion of those who signed the majority report of the Committee on Corporations, the amendment proposed by the gentleman from Rocking- ham (Mr. Keezell) is very much better than the amendment proposed by the gentleman from Danville (Mr. Withers), or the gentleman from Appomattox (Mr. Flood). We were earnestly of opinion that if we provided for election at the start, that if these people were not appointed at the beginning, it would be almost destructive of the measure; but as that matter has been disposed of, the question arises now, if the Gov- ernor shall appoint the first ones, how shall we elect the others? The difference between ourselves and the gentleman from Rockingham is this: The effct of his amendment will be that after we shall have experimented with the method of appointment and after we shall have the benefit of actual experience, where DEBATES OF THE COXSTITUTIOXAL CONVEXTIOX OE VIEGIXIA. 2791 we now have mere theory, notwithstanding the fact that our experience shall have shown that that is a most satisfactory method, and one that everybody will want to perpetuate, we will he obliged, nolens volens, to abandon one which has proven its effi- ciency by experiment, and adopt one which remains entirely in theory. Now, Mr. President, I will not detain the Convention long, if they will indulge me with their attention a few moments. There are undoubtedly advantages and disad- vanges attending either the election of these people or their appointment. In some of the States the appointment has been found defective, and the people have adopted election. In other words, the election has been found disastrous and the people have been unable to let it go. In California it was required that they should be elected by the people, and my information is that that has been the most inefficient, the most dis- appointing corporation commission in the United States. In Georgia the method has been by appointment, and their experience is, and I believe it is generally conceded, that they have the most efficient and the most satisfactory Corporation Commission in the United States, and they have had appointments here for nearly twenty years. So that we say that as to whether the appointment or the election will be best de- pends upon the experience we may have with it. The effect of the report as it now stands is that, having experimented with one system, we shall be set at liberty either to retain it or to abandon it, according as that experience will show us. The effect of the amendment of the gentleman from Rockingham would be to say that when we have experimented with it, when we have tested it and found that it has measured up to all of our expectations and we want it, we shall be obliged to abandon it whether we wish or not, and embark upon a field of untried experiment, and even if experience has shown that it is satisfactory by election by the people, we cannot let it go. It seems to us it is best to give us the advantage of testing both methods, and of taking either one of the two, not that which your theory may say is best, but that which in the light of actual experiment shall have proven itself to have been the best. The amendment offered to the amendment by my friend from Culpeper (Mr. Bar- bour) removes this difficulty. The effect of his amendment is to say that they may abandon it, or they may adhere to it, as their experience shows best; and that I think it is certainly a great advantage over the obligatory words used in the amendment of the gentleman from Rockingham. The only objection I have to the amendment in the form in which it will be as amended by the amendment of the gentleman from Culpeper is that it will take effect before we can have the opportunity of experimenting with it. We can experiment with this matter under the first form for five years, and if in that time it has proven itself inefficient, we can abandon it, in 1908, and in 1909, the very next year, we can have an officer elected by the people, and in 1911, two years after- vx^ards, the next officer elected by the people, and in 1913 and so on, and so on. So it does seem to me, Mr. President, and gentlemen of the Convention, that in the interest of stability, so that we can have a long enough time to make the experiment of any value to us, we should at least let this thing stand for five years. You have an untried method of taxation which you are going to experiment with for ten years, and yet we ask you to give this whole thing a test of only five years. Then you can abandon it, if you choose, and immediately go to the other method. We ask that when you have tested it, you leave yourself in a position to either retain it or abandon it as you may choose. The Presiding Officer: The question is upon the amendment offered by the gentle man from Culpeper (Mr. Barbour) to the amendment of the gentleman from Rocking- ham (Mr. Keezell). The question having been taken, the result was announced — ayes 46, noes 16. Mr. Eggleston: I offer the following substitute for the amendment offered by the gentleman from Rockingham. DEBATES OE THE CONSTITUTIONAL CONVENTION OF VIRGINIA. In line 69, Section 3, after the words " State at large," insert the words " or by the joint vote of the two houses of the General Assembly," so that it will read: After the first day of January, 1908, the General Assembly may provide by law for the election of said commissioners by the people of the State at large, or by the joint vote of the two houses of the General Assembly, instead of their appointment by the Governor, as hereinbefore required. Mr. President, it seems that even the committee have been compelled to acknowl- edge that in one respect they may possibly have made a mistake. They undertake to provide for that emergency by saying that after the year 1908 the General Assembly may provide for the election of these commissioners by the people. Now, Mr. Presi- dent, they, top, might be a mistake. If the Committee on Corporations could possibly make a mistake, and I just want to enlarge the alternative, so as to provide that in case both the people and the Corporations Committee are mistaken, you may leave the election of these commissioners to the joint vote of the two houses of the General Assembly. It just gives future generations more latitude in the method of electing these commissioners than is given by the committee. Mr. Braxton: Mr. President, I hope this amendment will not be adopted. The Committee on Corporations not only admit that they may be wrong in one respect, but they may be wrong in many respects, and nobody is more sensible of their shortcomings than the Committee on Corporations. But, Mr. President, after having given this the most careful thought we are capable of, we were as far as I know of unanimously of opinion that the election by the Legislature was the most undesirable method. If it should ever become necessary to do that, it can be done by a Constitutional amendment. The danger of putting in the amendment that my friend from Charlotte offers, is that it would put it in the power of the Legislature to take to themselves the right of appointing or electing these officers. Now, if it is a question between letting the appointment remain with the Governor or transferring it to the people, we thought the Legislature could act in an impartial manner, but if it came to be a question of whether the Legislature would leave it with the Governor or take it hemselves, we thought they were not safe judges in a matter of that sort; and I submit to this Convention that it would be dangerous without any inethod of Constitutional amendment, to say to the Legislature " you can take this power from the Governor, and not give it to somebody else, but take it from them, and take it yourself," The inducement, the temptation to do that would be very great, and just as it is a maxim that we all recognize that no man should be judge in his own case, so do we think it would be unwise to invest in any body the power to take away from any other person the appointment or election and assuming it for themselves. If the question comes whether it shall be conferred on the Legislature, then let it be done by Constitutional amendment, and not by the Legislature themselves. They are but men, like we are, and the temptations to aggrandize themselves by taking this power from the Governor would inevitably bias their judgment. It seems to me it would be a dangerous thing to allow them to change this in any way except by chang- ing it from the Governor to the people. If they had had any controversy with the Governor, if they had by any means any jealousy with him, if they wanted to defeat him, there would be every tendency on their part to assume this power themselves, and not to act in an impartial, judicial and disinterested manner. Mr. Eggleston: I desire to ask the gentleman if he is aware of the fact that the Legislature has not exhibited such greed heretofore in the question of taking to them- selves power; that since 1887 they could at any time have changed the law and taken to themselves the election of the Commissioner of Agriculture, and they have not done so; that only four years ago, when they created the position of Labor Commissioner, they gave the appointment to the Governor. Now, I submit that to fair minded men such an argument as that, in The light of the past, should have no weight. The Legislature has not done so in the past and the gentleman from Augusta has DEBATES OF THE COXSTITUTIOXAL COXTEXTIOX OF YIEGIXIA. 2793 no right to assume that they are going to do such a thing in the future, in defiance of the wishes and interests of the people of the State. Mr. Braxton: I Avill say in reply to my friend's suggestion, that I am not attribut- ing any unusual greed to the Legislature; but I am merely treating them as human beingS; like other people are, subject to the same impulses and the same ■vi'eaknesses. As to T^-hat they have done with the Commissioner of Agriculture and the Commissioner of Labor, I submit to the Convention that the temptation to elect these officers is noth- ing compared to the temptation to elect three railroad commissioners, with salaries of $4,000 a year apiece. There is no comparison, and I do think it would be a dangerous thing to put into their hands the sole question of saying whether they shall assume and take away from the Governor this important function. Mr. Barbour: I call the pending question. The pending question was ordered. The Presiding Officer: The question is upon the amendment offered by the gentle- man from Charlotte (Mr. Eggleston). The question having been taken by ayes and noes, the result was announced — ayes 15, noes 45. The amendment to the amendment was rejected. The Presiding Officer: The question recurs upon the amendment offered by the gentleman from Rockingham (Mr. Keezell), as amended by the amendment of the gen- tleman from Culpeper (Mr. Barbour). The question having been taken, the result was announced — ayes 23, noes 27. The amendment was rejected. Mr. O'Flaherty: I move to strike out the word "'may," in line 68, and insert the word "shall," so that the section will read: '"'After the first day of January, 1908, the General Assembly shall provide by law," &c. The amendment was rejected. Mr. Blair: I offer the following amendment: After the figures " 1908 " in line 67, insert the following: As long as the Governor shall have the appointment of said commissioners, not more than two of them shall be appointed from the same political party. The amendment was rejected. Section 3 was adopted. On motion of Mr. Braxton the Convention adjourned until to-morrow. Saturday-, March 1, 1902. at 10 o'clock A. M. SATURDAY, March 1, 1902. The Convention met at 10 o'clock A. M. Prayer by Rev. J. D. Langley, of Richmond. TAXATION AND FINANCE. Mr. Turnbull: I offer the amendment I send to the Secretary's desk. Amendment to Section 16 of report of the Committee on Taxation and Finance. Add at the end of sub-section B the following: "But the exemption mentioned in this stib-section shall not apply to. any industrial school, individual or corporate, not the property of this State, that contracts for work of any kind, establishes workshops, print- ing establishments or factories of any kind, that do work for compensation or manu- facture articles for sale in competition with like workshops or factories in the com- munity in which such school is located." 176 — Const. Deb. 3794 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. Mr. TurnbuU: I ask that the amendment lie on the table and be printed. The President: So ordered. CORPORATIONS. The President: The unfinished business is the report of the Committee on Cor- porations. Section 4 was taken up and considered by sub-sections. Sub-sections A, B and C were read, amended with a view of making the sense clearer, and adopted. Sub-section 3 was then read. Mr. Thorn: In line 206, is there not a consequential amendment due to one of the amendments made this morning? The clause in reference to the appeal bond, " shall first have been executed, filed with and approved by the said commission " should have this amendment after the word " commission " " or on review or on appeal " " from the Supreme Court of Appeals." You have given an appeal this morning from the action of the commission in refusing to approve an appeal bond. Mr. Braxton : I would like to ask my friend if the language now used does not sub- stantially accomplish the purpose? Mr. Thorn: The judgment of the Court of Appeals is not the judgment of a lower court. Mr. Braxton: Not after it has been corrected? Mr. Thom: Not unless you require the commission to enter the order of the Court of Appeals as its own order, and I think that is shown from the fact that this is the language you had in your article prior to giving this appeal on the subject of the bond. At any rate, it would do no harm, and I think it would make it very much clearer. Mr. Braxton: I would state it v^^as always our idea that the ruling of the com- mission in this matter might be made subject to the appeal, because we provide that the Legislature can grant an appeal from any action. It was also our idea that if an appeal was granted from such decision by the commission and the court reversed it, the court would direct the commission to make the proper order, so it would be the order of the commission approving it after all, although entered upon the requirement of the Court ot Appeals. Mr. Thom: There is nothing in the article to require the commission to enter as its own order the order of the Court of Appeals. As it stands now the order of the Court of Appeals takes the place of the orders of the commission. Mr. Braxton: I will state to my friend that those of the Committee on Corpora- tions whom I have been able to confer with think the amendment made by the gentle- man is not necessary, and that the clause as it now reads would cover the point he w^ants, that if the Court of Appeals reverses, upon appeal, the decision of the com- mission, refusing to approve the bond, they will require the commission to enter that order and it will be entered as the order of the commission, although required to do so by the court. Mr. Thom: I do not at all agree with the gentleman, Mr. President, and if the committee will not adopt this very plain amendment which can have nothing in it except to m,ake legally clear what is intended, I shall have to ask the Convention itself consider the amendment. I dislike exceedingly to take up any of the time of this Convention on this matter. I should not do so if I were not forced into the position. I have no desire and I think I can appeal to the sense of justice of this body that I have thrown in the way of this report to which I am greatly opposed no captious or improper opposition. My effort, since this Convention has shown its purpose to adopt the policy indi- cated in this report, has been to do everything that I could possibly do to perfect its DEBATES OE THE COXSTITUTIOXAL COXYEXTIOX OF TIKGIXIA. 2795 Tv-ork. and to give to the Constitution of tlie State an article as perfect as the policy ^^•hich has been adopted ^'ould permit. In that spirit I proposed to this committee this morning an amendment made absolutely necessary by another amendment pro- posed by the committee itself, and about vhich I feel that I am not met in the same spirit ^\-ith which I have approached this committee. This morning, in addition to the appeals which have been given heretofore by the article as printed, this right of appeal is given, in plain terms. In section D on page 13, line 163, in addition to the printed right of appeal embraced in that article, this right is given: Or refusing to provide a suspending bond or requiring additional security on this f bond, or an increase thereof as provided in stib-section E of this section. So that now. in special terms, in addition to the appeal permitted by this printed 8.-rticle, in order to make clear that among the appeals provided for by this printed article is the one which I now hold in my hand, in the handwriting of the chair- man of this committee. So that a party decided against by this commission has the right in the event a bond is tendered, to suspend the operation of the commission's .order, which bond is refused by the commission to take that refusal to the Court of appeals and to present tc- it the bonds and ask its approval of the bond, the approval of which has been withheld by the commission. Xow I ask the candor of the gentle- men of this Convention if when that order approving in the Court of Appeals the bond rejected in the court below is given, whether the effect of the bond thus ap- proved on appeal should not be the same as this originally approved by the commis- sion itself? Thus far, there will be no difference between the committee and myself, but the singular attitude of mind is presented by these gentlemen in response to a friendly suggestion of an amendment, that their language in reference to the effect of this bond on appeal shall not be changed, so as. certainly, to be made broad enough to permit the approval by the Court of Appeals itself. And the suggestion is made in response and in opposition to that, that approval by the commission is broad enough to cover not only approval by the commission, but approval by the Court of Appeals on appeal from the commission. Xow, gentlemen, lawyers may differ about the effect of that. The Court of Appeals may or may not be driven to gi"e that interpretation to the language provided by the committee, but I ask the lawyers of this Convention and the laymen, too, whether or not it is good draftsmanship to leave that question in the region of litigation and controversy, or to make it plain by the introduction of a single word. It will not do for gentlemen to contend that a law may properly be passed directing this commis- sion to enter as its ovtl order an order of the Court of Appeals. That may or may not be done. That ma^' or may not be overlooked. That these matters may occur in the vacation of the General Assembly where there could be no relief. You have already provided there for an appeal. We are now providing for the bond. I want to make the bond become effective not only by approval of the com- mission disapproving the bond and that appeal is successful, to make the bond become effective upon the approval of it by the Court of Appeals. Xow, is that right, or not? I call the attention of the gentlemen of this Convention to the fact that there has been no attempt made upon the policy of this article. I have surrendered my firm and unal- ' terable conviction on the subject of this policy in good faith, and I hope with good grace, to the majority purpose of this Convention. Yet, in a mere matter of perfecting a method of procedure, in a mere matter of making this program work out in the ends 01 justice. I am met by these gentlemen of the committee with the firm unbroken purpose to stick to the dreftsmanship of an article which, as I have heard said upon the floor of this Convention this morning, only needs to be read over for the committee itself to get up and amend it at every line. Yet whenever a word or a sug- gestion is made by gentlemen in the minority in regard to the policy, they are met by an obstinate refusal to listen to their voice on any matter, even of perfecting a detail. 2796 DEBATES OF THE CONSTITUTIONAL COXYEXTION OF VIRGINIA. Gentlemen, I appeal against the justice and equity of that position. However much members of this Convention have from time to time differed, I have never seen them v/illingly, knowingly, to do injustice, and I ask that this appeal now granted in so many w^ords in this article shall he perfected as to its details in such way as to permit the bond to take effect upon its approval by the Court of Appeals. I will modify my previous amendment somewhat, by making the language read thus: After the word "commission" at the end of line 206, add the words: "or approved on review by the Supreme Court of Appeals." Mr. Braxton: Mr. President, it seems to me that my excellent friend from Norfolk in his zeal for his proposition has done us, unwittingly, I am sure, a great injustice. This unfortunate Committee on Corporations seems to be caught between the upper and nether millstone of criticism. If we adopt an amendment our friends jump up all around us here and say we have no confidence in our report, and if we oppose an amendment, we are twitted about that. My friend from Norfolk v/as the one who, the other day, twitted us with having adopted no amendments, and he said — Mr. Thom: I should like to suggest to my friend that I have never criticised him for amending this report. I think that every amendment he has made has shown at least a mind tending toward repentance. (Laughter.) What I have done is to use the necessity of amendment as an argument against putting an article of this sort in a permanent form into the Constitution. Mr. Braxton: I have replied, Mr. President, that there is no article in this Con- vention, from the preamble to the schedule, that has not been amended again and again from the time it was first drawn. I call attention to the fact that every amend- ment that has been adopted to this report was an amendment of form and not of sub- stance, and I refer my excellent friend to the report of the Committee on Suffrage, v.'hich has been amended again and again, and on which subject he has himself changed his views radically and materially since the time he first started in. I think it is correct and proper to change your mind whenever reason demands it. Mr. President, whenever an amendment has been offered, the Committee on Cor- porations has carefully considered it. They have not shut their eyes to argument or to reason and they have been willing and anxious to adopt any suggestion that could commend itself to their reason after they had heard it. They recognize the fact that some men sometimes change their opinions, and that there is another class of men who never do, and they have no hesitancy in adopting suggestions when they meet their approval. But, Mr. President, we cannot say that because we do that, wc must accept every suggestion made to us if it does not commend itself to us. It may be that we are wrong in our judgment, but we must be controlled by our own judg- ment. Every suggestion that has been made to the committee has been carefully considered by it with the desire to adopt it if they thought they could possibly do so. Although we may be wrong about it, we are of the opinion that the amendment is not necessary to accomplish the purpose the gentleman wants, and we cannot, at this time see the entire effect which it might have, when he uses the word " review," and when there are two things that may be reviev/ed, how far it mav confuse the idea. We provide that where a decision of the com.mission is entered fixing a rate that that decision shall not be suspended until a suspending bond is given and has been approved by the commission. Now, out of abundance of caution— it v,as not in the report before and, we simply allowed the Legislature to give an appeal from the decision of the commission refusing to approve the bond — out of abundance of caution and of generosity to the side advocated by my friend from Norfolk, we say that we ourselves will provide that there may be an appeal from that decision of the commission refusing to approve the bond. Now, I will ask any man here present if we give that appeal how the court could come to any other conclusion possible DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE YIEGIXIA. than that when the appeal is taken and the decision of the commission has been reversed, that reversal shall have the same effect as if the same judgment was arrived at by the commission before. If what my friend from Norfolk says is true, then the court construing it would have to read out of this article entirely the provision for an appeal. The suspending bond v\-e say shall not have effect until approved by the com- m.ission, and from the action of the commission refusing to approve it there shall be an appeal unless when the appeal is taken and the decision is reversed that shall have the same effect as if the commission had entered that judgment at the start. In the Code we have this proA'ision, in Section 3490: The court from which any case may have come to the Court of Appeals, shall enter the decision of the appellate court as its own. Mr. Thom: Read on what comes after that. Mr. Braxton: "And execution may issue thereon accordingly." If the decision is one which does not involve the issuance of execution, of course, no execution is issued, but when the decision of the Supreme Court of Appeals has been entered it is entered with all the force and effect as if that decision had been en- tered by the court below. If it does not have that effect I ask you what reason, what meaning, what effect can be given by that provision which says that there may be appeal from the decision of the question. Mr. Thom: I should like to know whether this kind of order was not in exist- ence at the time that statute was passed in the first place? Mr. Braxton : No, sir. Mr. Thom: In the next place, if that statute does not confine the orders which are to become the orders upon which an exectition issues? ^It. Braxton: I do not think so. I should like to ask my friend this question. If his contention be true that when the decision of the commission refusing to appeai the bond has been appealed from as provided here, and the Court of Appeals has re- versed it and says the bond otight to have been approved, if that does not have the effect of a decision of the commission approving it, what effect does it have? Mr. Thom: It has the effect and power of the jurisdiction of the Court of Ap- peals in approving it. Mr. Braxton: Well, if the Court of Appeals approving it does not have any effect at all, would it not amount to a reductio ad absurdum, and would not the court have to sa3' that in giving an appeal from the commission on that subject, we did a per- fectly vain and futile thing by providing that you shall have an appeal, but when the appeal was taken, and the court has reversed it, it shall not have any effect what- soever. It is mere brutum fulmen. Mr. Thom: And that is the very purpose of my offering this amendment. It is to prevent a reductio ad absurdum in the work of this committee in not covering the case. Mr. Braxton: I will not detain the Convention longer than merely to say that after as careful a consideration as we can give it. we have not the slightest doubt in our minds that the language as it stands now will affect all the purposes desired by my friend, and that if his amendment is adopted it may accomplish the ptirpose he wants and it may mean something else. Mr. Thom: ]\Ir. President. I desire to ask the chairman of the committee to sug- gest what other effect than that which I am trying to accomplish, the words "or ap- proved, on review, by the Supreme Court of Appeals," could have? 'Sir. Braxton: I can simply say, Mr. President, that there may be two appeals. There may be an appeal and a review by the Court of Appeals from the decision fixing rates, and there may be a subsidiary appeal from the decision refusing to approve the bond, and which review you refer to may be a question of dotibt. We have not been able to study the matter since the gentleman offered it to satisfy our minds that that 2T98 DEBATES OF THE CONSTITUTIOiTAL CONVEXTION" OF VIRGUvTIA. ambiguity does not occur. It seems to us it is possible it may occur. We are merely of opinion that the present language is beyond all question sufficient to accomplish what the gentleman wants, and we are not clearly of opinion that the language he suggests may not accomplish something else which we do not want. Therefore we are compelled, much as we regret the necessity of differing from our friend, to say that we cannot accept his amendment, and we think it ought not to be adopted. Mr. Thom: I wish to ask the gentleman on which of those two reviews he al- ludes to it is possible for the question of the approval of the bonds to arise, and if it is possible for it to arise except on one of these appeals? Mr. Braxton: An appeal is an appeal from the decision of the court fixing the cliarges. It is not necessary to give a suspending bond when an appeal is taken. When the commission fixing its charges, the railroad can appeal from it, without giv- ing a suspending bond, if it chooses. The only effect is if it does not give a suspend- ing bond it must abide by the decision of the commission pending the appeal. The President: The question is on agreeing to the amendment. The question having been taken, the result was announced — ayes, 32; noes, 24. The amendment was agreed to. Mr. Braxton: Mr. President, in line 217 I ask that the words "such action be not reversed" be stricken out, and in lieu thereof there be inserted the words "such charges made by the company pending the appeal be not sustained on such appeal." The amendment was agreed to. Sub-section E was adopted, as amended. Sub-sections F, G, H, I, and K were read, and after being slightly amended were adopted. , Sub-section 1 was then read. Mr. Wise: I move to amend sub-section L by inserting in line 320 the w^ords "a, b, c." Mr. Chairman, I wish to say that I have submitted this question to the chairman of the committee and he will speak for himself. If I could have my will in this matter I would give to the Legislature of Virginia as to the year 1905 complete control of this matter. I do not propose to discuss that proposition and state why I would do so. I do not wish to take up the time of the Convention, and I am well aware from the action of this body, both in Commitee of the Whole and in Convention, that such a proposition would not meet with any favor; but it does seem to me that if you are going to give to the Legislature the right to amend sub-sections D, E, F, G, H, and I upon the recommendation of the commission, there cannot possibly be any reason for making that applicable to the other sub-sections in Section 4. If you are satisfied that you have reached the proper solution of this problem, if you are satisfied you have made a perfect article on this subject of transportation, about which the ablest men in this and other countries have differed, then of course you will refuse to have any change made in your work. The members of the Convention will understand that I have not in this amend- ment proposed that the Legislature, upon its own motion in 1905, may change any provision in these sub-sections. I simply provide that if experience shall demonstrate the necessity for or the wisdom of a change in the future, it may be done by the Legislature on the recommendation of the commission. Surely it seems to me, the gentlemen of the committee ought not to refuse such an amendment as this. Surely they will not be unwilling to trust the commission which they have clothed with such great legislative and judicial powers. It will be observed, Mr. President, that my amendment simply provides that if at any time after 1905 there shall be the concurrence of the will of the commission which you have created and of the Legislature, who are the representatives of the people of this Commonwealth, there may be changes made in any of the sub-sections of this Section 4. DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIEGIXIA. 2799 I say I have submitted the amendment to the judgment of the ctiairman of the committee, and I hope it will be his pleasure to accept it. Mr. Braxton: Mr. President, the Committee on Corporations, after considering this matter do not desire to object to the amendment. On the contrary, we are rather inclined to approve it, and I was about to offer the same amendment that my friend offered. The situation is simply this: It is absurd for anybody to say that anything in this Constitution, from beginning to end, is so perfect that it cannot possibly be wrong. Anything on earth that we can write may by possibility be wrong. The choice of dan- gers we have to take is this: If we make these three provisions so that they cannot be amended except by the regular ordinary method of amendment, there is a possi- bility, in spite of all the care we have taken, that the court may find some defect in it that will nullify the whole. On the other hand, if we adopt the amendment of the gentleman from Richmond, the only way we can be hurt would be when the com- mission itself and the Legislature and the Governor were all three corruptly banded together to go to work and destroy this safeguard. The chances of its being injured through the courts is much greater than the chance of it being injured otherwise. Mr. Quarles: Sub-sections A, B, and C confer the powers upon the commission, I believe? Then by including sub-sections A, B, and C in the section, as proposed by the gentleman from Richmond, that will put it in the control of the Legislature to strip the commission of its powers. Mr. Braxton: No, sir. Mr. Wise: If the gentleman from Augusta (Mr. Quarles) will permit me, it is upon the recommendation of the commission. There must be, as I say, the concur- rence of the will and the judgment and the General Assembly. Mr. Braxton: I will state to the gentleman from Augusta (Mr. Quarles) just along the line of the explanation of the gentleman from Richmond (Mr. Wise) that before any amendment can be made under this, two of the three commissioners and two- thirds of the Legislature will have to concur. Now, while it is true that it is possible that all of them might unite together to deliberately emasculate this commission, we think the possibility of such a thing is very remote, and nothing like so much a proba- bility as there is of the court finding some flaw — I do not mean improperly — but there may be some defect which, in spite of our vigilance, has slipped into this, which the court would be obliged to decide against us, and if it did, the effect of the amendment of the gentleman from Richmond (Mr. Wise) would be to give us this quick and speedy method of remedying such a defect in the fundamental essentials necessary for the existence of the commission. We think, therefore, upon reflection, that it would be wisest to adopt the amend- ment offered by the gentleman from Richmond. Mr. Robertson: Mr. President, I do not want to argue this matter. I simply desire to say that my friend from Augusta, the chairman of this committee, seems to think I have unnecessarily prodded him with his unwillingness to amend this section. I want to say from the bottom of my heart, that I admire the courage and sincerity of the gentleman from Augusta which has led him to go as far as he has done in agree- ing to this amendment. What I have said with reference to amendments was not in criticism at all of the attitude of that committee or of the chairman of it. All that I ever meant to say was that the fact that they themselves have recognized the necessity of amending until they have increased it from twenty-six pages to thirty-one pages already, shows that the argument that some of us made here with reference to making this a permanent part of the Constitution did have some foundation in common sense, though the charge has been made upon this floor that it was absolutely lacking in common sense. I, for one, thank the gentleman for even going as far as he has gone. The amendment w^as agreed to. 2800 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. The President: The question recurs on the adoption of sub-section L as amended. Mr. Hamilton: Mr. President, I move that the words "upon the recommendation of the said commission" in lines 318 and 319 be stricken out, and that the section be so amended, so that after January, 1905, this article or this section may be amended by the concurrent action of the General Assembly and the Governor. It will then have been in force for four or five years, and as I understood the argument of the chairman of the committee here in opening this subject in Committee of the Whole, it was that there could be no harm if affirmative action was to be obtained by corpora- tions through the Legislature. It was only that the corporations could block action, that they would have negative power, but would not have affirmative power enough to do anything. I think it is inconsistent with practically all our ideas of government that a commission of three people should be made to consent to any change in their powers. They, of course, are not going to make recommendations which will reduce their powers in any way or which will materially make them less important people than they otherwise are. I think the words "upon the recommendations of the said commission should be stricken out and the section so amended. Mr. Braxton: Mr. President, I most sincerely trust that the Convention will not adopt the amendment offered by the gentleman from Petersburg (Mr. Hamilton). I am sure it would be a grave mistake to do so. It would take this commission, which w^e have established with so much difficulty and labor and have attempted to make as permanent an institution in this States as the courts, a large, important branch of the government, and put it in the hands of any Legislature that comes along to abso- lutely destroy it and wipe it off the face of the earth. Some misapprehension has .heretofore existed, and I have tried in a former remark that I submitted to this Convention to explain it, but lest I have failed to do so to the satisfaction of some members, and as this matter is so important, I will repeat it. The right of the Legislature to make any rules, regulations or requirements for any railroad company, outside of fixing rates, is left unimpaired, in full force and virtue, as it is to-day — absolutely so. It does not require the concurrence of the commission. The only thing that requires the concurrence of the commission is to amend this Constitution. Now, there is a way provided for amending the Constitution which takes several years for its accomplishment. There must be a vote by one Legis- lature, ratified by a vote of a subsequent Legislature, and further ratified by a vote of the people. For reasons that were already known and that have been repeated again and again, it was thought best to provide with reference to this fourth section, which necessarily goes greatly into detail, a shorter method of amending the Constitu- tion, but to bear in mind that after all it was an amendment of the Constitution, and not the enactment of an ordinary statute; and in order to enable us to do that the more readily so that it would not take two or three or four years to accomplish it, the second vote of the Legislature and the vote of the people was substituted by the concurrence of the commission itself. Instead of restricting the power of the Legislature, it is enhancing the Legisla- ture. It is enabling them to amend the Constitution by a method that they did not have before. No matter if the commission is unanimous in its recommendation, it cannot amend it. It requires the concurrence of the Legislature and the commission, instead of the concurrence of two Legislatures and the people. I submit, gentlemen (and I do this with the utmost earnestness, because I tell you gentlemen who are the real friends of this measure that small and apparently unimportant amendments of this sort will slip in here that will absolutely destroy all the work you have done), that if you adopt this amendment, all that is necessary is to capture one Legislature, and all the work you have done will be destroyed absolutely. You are giving to the Legislature, by the enactment of an ordinary statute, without any safeguard whatsoever, the power to amend the Constitution. I repeat that this is not a restriction upon the power of the Legislature, but is DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 2801 an enlargement of its power; that but for this section they could not amend this thing at all; and we have provided here that if we find this section is defective in any particular, so that our work does not accomplish what we want, if the Supreme Court of the United States or our own Supreme Court can find some defect in its constitutionality, we will not have to wait four years to amend it, but can amend it by this method; but if you leave it absolutely to the Legislature to amend it, you have surrendered yourself into the hands of the very body which you wish to make this commission independent of, so far as its existence is concerned, and the Legis- lature should not have the power of abolishing or destroying this commission any more than it should have the power of abolishing the Supreme Court. They are left to-day the power to prescribe rules and regulations for it so long as those rules and regulations do not go to the extent of abolishing the institution or destroying its efiiciency; and I call now upon all the friends of this measure who are really the friends of it, to rally to its support at this time, because if this amendment is adopted the work you have done here is largely of the Convention not to adopt this amendment, but to vote it down. If the proposed change is one that will make the body more efficient, you can count upon the commission endorsing it. If it is one that unduly aggrandizes the power of the commission, you can count upon the Legislature refusing to adopt it; and it is only when it is a meritorious one and one which strengthens rather than weakens this institution, that you can get the concurrence of both these bodies for it, I do trust, Mr. President, that it may be the pleasure of the Convention to vote down the amendment. Mr, Hamilton: Mr. President and gentlemen, I shall not detain you long. To my mind, it is not right to give three men as commissioners — I do not care what kind of commissioners you call them — greater pov\^er than you give the Governor of Vir- ginia. In matters of legislation the Legislature of Virginia can overrule a veto of the Governor by a two-thirds vote. The Legislature and the Governor both together, by unanimous vote of the Legislature, cannot make any change in section 4 of this article unless two-thirds of the commissioners approve the action of the Governor and the General Assembly. Now, gentlemen, I do not believe any railroad commissioner or corporation com- missioners are going to be any higher or any better in the long run than the representa- tives of the people and the Governor of the Commonwealth combined. It is folly to think they are ever going to recommend anything which is not an increase and an aggregation of their power. It is a most wonderful power to give to people. I be- lieve more power is given to them with respect to this matter in the Constitution than exists in any body in the world; more than exists in any portion of the govern- ment. The General Assembly, representing the people, may by unanimous vote, the Governor may with heartiness approve that, and yet they cannot make any kind of an amendment even in the matter of detail with respect to the procedure under this thing unless it is concurred in by these commissioners. No body of men, no tribunal, sliould ever be established with absolute self per- petuating powers, practically with the authority to say there is no power known to the State of Virginia, except a constitutional amendment or a Constitutional Con- vention, that can make us agree to a change in minute detail in this matter, except with respect to certain things here not connected with rates or charges, for instance, I say, if the Governor and the General Assembly concur by any majority of the Gen- eral Assembly that you choose to name, that is sufficient to make the changes. I do not claim it is sufficient to destroy the commission. That is not in Section 4. That is is provided for in prior sections; but Section 4 merely states the powers of this com- mission with respect to rates, and deals with all this matter of repeals, method of pro- cedure, and so on. It does not give the Legislature and the Governor the power to destroy this part of the Constitution, but merely the power to vary that portion of it embraced in Section 7. 2802 DEBATES OF THE CONSTITUTIONAL CONVENTION OP VIRGINIA. I think the pov/ers are too great. You seem to be more willing to trust this com- mission than you are your Governor and your Legislature combined. Mr. Flood: It is not a fact that the effect of this provision now in this measure would be to give the three gentlemen who are to constitute this commission the power of amending this Constitution with the concurrence of one Legislature, or, in other words, to give to these three gentlemen the power that, in order to amend the Con- stitution, would have to be exercised by another Legislature, and a popular vote of the people? Mr. Hamilton: That is the way it seems to me. Mr. Meredith: You gentlemen are objecting to this provision. Will you vote for a proposition that it shall not be changed. Mr. Hamilton: I v^^ill not vote for it. Mr. Meredith: I thought not. Mr. Hamilton: I think that is not a fair question on the point. You all admit, everybody admits, who sees what goes on here, that you cannot make this thing so perfect that you can afford not to provide for some sort of a change; and yet you say the change which shall take place shall be absolutely dependent upon two of the men in this commission. It is not even the full commission, but two of the men of this commission would have more power than the Legislature of Virginia and the Gov- ernor combined, and would have the power to change this Constitution in a way which it would take two General Assemblies, with their action approved by the Governor, unless the vote was two thirds, plus a vote of the people, to do. It seems to me not right. I submit the matter with great deference to you gentlemen. Mr. Meredith: Mr. President, it looks to me as if we were going over the same ground w^hich we discussed in Committee of the ¥7hole, but as it has been brought up to-day, you see that by the motion made by the gentleman from Richmond (Mr. Wise), the power to change this has been very much enlarged, and while the gentle- man from Petersburg (Mr. Hamilton) is correct in his statement that to allow the I^egislature to change it does not abolish the commission, he must see that while the commission would remain, it would remain simply a name. It would have no consti- tutional protection. Nothing except its name and its existence would be protected by the Constitution. All that would be left would be such powers as the Legislature might see fit to give it. If it is worth any constitutional provision, it is worth con- stitutional powers. There is no use putting this in here if you are going to make it simply the creature of the Legislature, and when the gentleman says it gives a power here that it does not give as to any other provision, he is not prepared to say he will allow it simply to be changed like any other provision. He is not prepared to say he wants this thing to be submitted to two votes of the people. Therefore, instead of limiting the power, we are giving further power to the Legislature as to this, than it has as to any other constitutional provision. The gentle- man who has been the earnest advocate of the people in his speech yesterday cen- suring us for what we have done here, and worked so hard, sometimes in his absence, will find that under this provision we are giving the people, through the Legislature, power they do not have as to anything else. So instead of censuring us about this Diatter, he should approve of it. There is no power in this commission to change anything. They cannot give one bit of power, nor take any away. In order to change it or take it away, it must be with their consent, and with the consent of the Legislature. Therefore, I say instead of giving them the power, we are giving it to the Legislature, because they cannot move without it. It has been said on this floor that gentlemen want to take the railroads out of politics. My friend from Petersburg (Mr. Hamilton) has been especially desirous that the railroads should be gotten out of politics, and that ten years should be given for the operation of the taxation report. Now, when it comes to the question whether DEBATES OF THE COis^STITUTIONAL COXVENTIOX OF VIRGINIA. 2803 we shall take them out of politics, it is proposed here that this thing shall be left for the Legislature to have a fight over it every time the railroads get a chance at it. It is all very well to take the railroads out of politics when you give them protection for ten years, but when you want to protect the people, of whom my friend from Appo- mattox claims to be the champion, we find it is to be given them every year, and that every time the railroads can effect the Legislature they will come and knock at the door and demand that some restriction be put upon this commission, and the people's hands are tied; in other words, that this thing that we have deemed proper to put into the Constitution, and proper to be given constitutional powers, shall be changed at the will of the Legislature. I respectfully submit the danger is immense, so far as this provision is con- cerned, and that it virtually destroys it by allowing the Legislature to have any chance by itself to pass upon a matter of this kind. The object of the constitutional provision was to put it beyond the power of the Legislature to change this thing at its svv^eet will, but there should be some other safeguard, so- that the people may be pro- tected as to what they deem necessary in having this corporation commission. Mr. Flood: Mr. President, the proposition I submit is to give to two gentlemen upon the commission the power that is now exercised by a majority of 140 members of the General Assembly, the imprimatur of the Governor and the vote of the people amending the Constitution. It will give to those two gentlemen — and I challenge any- body to contradict it — the power that the Constitution now requires should be exercised by one General Assembly of this Commonwealth, backed up by a vote of the people of the CommonweaR'h ; now, to amend the Constitution an act must pass two General Assemblies and be approved by the people under this provision if it receives the sanc- tion of this commission, it need only pass one General Assembly. I do not agree with the gentleman from Richmond (Mr. Meredith) that this would affect in the slightest degree the effectiveness of this measure. I do not believe the Legislature is going to be so careless of the rights of the people that they will put changes in here after 1905 that will affect the efficiency of this measure; but I do think it is a dangerous power to invest in two men, the powers that always in this Com- monwealth, have been exercised by the concurrence of two Legislatures and a vote of the people. Not only that, Mr. President, but my friend from Richmond seems to fear that the Legislature will cripple this measure. To do this it would have to be derelict in its duty to the people. I do not believe the General Assembly will ever betray its trust. But, in order to do so, you must have two-thirds of the Legislature or the Governor must be in collusion with the General Assembly. It is not to be presumed that the Governor who appoints this commission is going into collusion with the Legislature to destroy the powers of the commission; the Governor will understand too well the power this commission will give him to desire to lessen those powers. If the Legislature undertakes to destroy the powers of the commission by its enactment, the Governor can veto the measures intended to accomplish this result and to carry those measures over his veto, a two-thirds vote is necessary. So I say it is safe to allow the Legisla- ture to change the powers here conferred — far safer, sir, than forgetting the teachings and principles of Democracy to allow these two men to exercise powers that have never before in this Commonwealth been exercised except by the approval of the vote of the people of the State. I think this is one of the most dangerous suggestions I have heard during the pro- ceedings of the Convention. Being for this report, I am not willing to see incorporated in it a provision that will drive votes from it. I am not willing to see Incorporated in it a report that will perpetuate its provisions, whether they are determined to be wise or not, unless they meet with the concurrence of two men whose powers may be less- ened by that concurrence. I think it is unwise to give this judicial tribunal, the highest powers of legislation 2804 DEBATES OF THE COJ^STITUTIONAL CONVENTION OE VIRGINIA. against this provision of the report and for the amendment offered by my distinguished friend from Petersburg. Mr. Braxton: Mr. President, all of the argument that has been used by the gentle- man who has just preceded me (Mr. Flood) and the gentleman who offered this amend- ment, is based upon the idea that we are depriving the Legislature or the people of some power which they have heretofore had. Mr. Flood: I beg the gentleman's pardon. My argument is based upon the idea that we are depriving the Legislature or the people of some power which they have heretofore had. Mr. Flood: I beg the gentleman's pardon. My argument is based upon the idea not that you are depriving the Legislature of the power, but you are vesting power in two members of the commission. Mr. Braxton: I will try and answer that question. I submit the Legislature never has had power to amend the Constitution; that this sub-section L is a section which annuls the powers of the Legislature and because we want to enlarge it, some of our friends say if we do not absolutely surrender to it, we are curtailing their power. In this provision Mr. Chairman, we do not vest these people with any power over the Legislature, as the powers of the Legislature exists to-day. We do not enable them to amend this Constitution one iota. If the amendment offered by the gentleman from Petersburg is adopted, the Legislature, without any check whatever upon them, have the right to amend this Constitution. We say that is unwise, that it is dangerous, that if this measure is deserving of being placed in the Constitution, it is deserving of hav- ing some more stability given to it than an ordinary statute. Mr. President, in this provision we make the commission paramount over the Legislature in the matter of fixing rates and changes and yet you are going to turn around and say that the Legislature, from whom that power has been taken, because they were incapable, in our opinion, by reason of their organization, to execute it, shall have the unrestricted power of their own will to resume it, without any check upon them whatsoever. What power have these men, except a check upon the Legislature, in lieu of another check, to-wit, the second Legislature and the vote of the people? We are enlarging their powers instead of curtailing them. If they seek to agrandize them- selves, they cannot move an inch without the concurrence of the Legislature, and it is only when the Legislature seeks to weaken them and to destroy the work that we have done that we give them a veto power and enable them to say " If it be true that our powers should be taken from us, then let it be done by the vote of the people," like any other amendment of the Constitution can be adopted. Why put this in the Constitu- tion if it is to have no more stability than a statute? I will tell the Convention this: I do not think the Legislature will ever abolish this commission, but that the Legislature, composed of gentlemen frequently who have never been in public life before, who are unfamiliar with the workings of this body, many of whom are not lawyers, in a short session of three months, may be induced with the best motives to vote for an amendment something like this amendment offered now, which apparently may strike them as an unimportant one, but which will have the effect of absolutely undoing all we have done to-day. If such a thing should be offered, the commission would be there to prevent it being done except by the regular method of amendment. We are extending the powers of amendment, where amendment is desirable, but we are making it impossible to de- stroy this work where the amendment is not desirable. Mr. President, if there be a friend of this measure here, I appeal to him to vote this proposition down, because we might as well not put this article in the Constitu- tion, if we are going to make it amendable exactly like a statute, and are going to sur- render to the Legislature the powers which we by our very act here have taken from the Legislature and vested in this body. I trust, therefore, most earnestly, that this DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 2805 dangerous and destructive measure will be voted down; and I give warning now to those gentleD_ien who vote for this measure, if it has the effect of destroying the work we have done, they are doing it with their eyes open, because I tell you we are going right in the teeth of what we have tried to avoid. We have tried to give this com- mission the facility of a Constitutional enactment. We have tried to make it a per- manent institution in the State. We have tried to make it paramount on the question of fixing rates; and if this amendment is adopted, we will turn around and surrender the whole thing and put it down on the par of an ordinary statute, which by the inser- tion of small and apparently harmless amendments can be killed by pin pricks year after year by the Legislature, and the very men who vote for the amendments will not appreciate the damage that is to be done. At this point Mr. Ayers took the chair as presiding officer. The Presiding Officer: The question is on the amendment of the gentleman from Petersburg (Mr. Hamilton). The amendment was rejected — ayes 10, noes 14. Mr. William A. Anderson: Mr. President, I desire to offer the following motion, that I think ought to be considered before the amendment proposed by the gentleman from Richmond, that has not yet been acted upon. I offer the following amendment, which is not inconsistent with that at all: After the word " may," in line 819 of sub-section L of section 4, page 20, insert the following words: "Or without such recommendation by a two-thirds vote of both houses of the General Assembly." Mr. President, the effect of that would be to permit the General Assembly, even without the concurrence of this comission to adopt any amendments of section 4 which the General Assembly may find to be necessary and proper for protecting the interests of the people of the Commonwealth. Before submitting the very brief remarks to which I desire to ask the consideration of the Convention, I wish to express my sincere thanks to the gentlemen of this com- mittee for the amendments which they have already engrafted upon this measure and ■^hich, in my judgment, greatly strengthen it and improve it from the standpoint of the most earnest advocate of the principle embodied in the measure. I understood the chairman of the committee to say that they had adopted no amendments that went to a matter of principle. In my judgment that article as it came to this Convention vested arbitrary power in this commission. A number of amendments have been engrafted upon it which entirely, in my judgment, remove that objection and confer upon this commission only judicial discretion in dealing with this subject, reviewable as the decree or judgment of any other court would be by the high- est court of the State; and in other particulars, most fortunately, this committee has made valuable amendments and greatly improved the efficiency of this article. But is any gentleman on that committee so confident of his infallibility as to be- lieve that that measure is now perfect? Why, Mr. President, I have such admiration for the judgment and ability of the chairman of that comimitee that I believe if he would study this measure for twelve months to come in all of its bearings, in all of its details, with the earnestness which he has devoted to it for the last three months, he would find each day that some improvement could be made upon the text of that measure as it now stands; and that can be said of any other act, especially any other empirical act like this, which is the product of any human brain. Now, Mr, President, able as the members of this Convention are, anxious as we are to take a perfect law, it will be exceedingly phenomenal if defects, omissions and im- perfections are not developed in less than two years after this act shall have gone into operation; and the power should be placed with the representatives of the people to give the necessary relief, if such a condition of things is developed by the practical ex- perience of the Comjmonwealth under the operation of this law. 2806 DEBATES OE THE CONSTITUTIONAL CONVENTION OE YIEGINIA. It is proper that this should be done, because this is legislation. I have the greatest admiration for the ability, sincerity and patriotism of the gentlemen of that committee and of this Convention, but I do not believe we have the monopoly of all the wisdom, and we ought to permit the representatives of the people, by a two-thirds vote, to give relief, even without the recommendation of these three commissioners. Mr. President, I am opposed to establishing a triumvirate in Virginia which shall be absolutely independent and superior to the representatives of this State when they shall express their judgment by a two-thirds vote. There was a great deal in the argument used by my friend from Augusta (Mr. Braxton) in opposing the amendment of the gentleman from Petersburg, that, perhaps, by a misadventure, the General As- sembly v/ould sometimes do something that it did not intend to do, and mar or cripple this measure in its efficiency; if it was given an unlimited power to change its pro- visions; but that objection cannot be urged when you require a two-thirds vote of both houses of the General Assembly, and I am willing to add, also, the approval of the Governor of the Commonwealth. So guarded, it is impossible that any injustice shall be done or that the efficiency of the operation of your measure can be impaired by any action of the General Assem- bly; but it may be impaired if you do not give that power. It may be developed by the operation of this measure certain defects in it which the commissioners themselves or a majority of them, for some reason, would not care to change, but which the representatives of the people of Virginia would desire to change and which the interests of the Commonwealth would demand should be changed; a.nd I would not remand the people of this State to the cumbrous and expensive pro- cedure of either calling a Constitutional Convention or adopting an amendment to your Constitution in order to obtain such relief in reference to some matters of the detail of the legislation of this Commonv/ealth. It is a legislative act that we embody in our Constitution. Guarded as it has been, I would be willing to vote for it if I were a representative of the State of Virginia in the General Assembly and I am willing to vote for it as a member of this Convention; but I do not think that we should deny to the legislative body of the State the right to exercise its proper functions under restrictions which would make it impossible for that power to be abused. Mr. Braxton: Mr. President, I do not desire to repeat any of the arguments I have made on the amendments offered by the gentleman from Petersburg, which it seems to me differs very little from this amendment, and I can only say that for the same reasons that the Convention overwhelmingly voted down the other amendment, I trust they will vote down this one also. The question having been taken by yeas and nays, the result was announced — ayes 12, noes 38. The amendment was rejected. Mr. Barbour: Mr. President, under the doctrine which seems to be pretty well supported, that the mentioning of one mode of amendment is exclusive of any other mode, and in order to obviate any doubt that might be raised under this clause, that the effect of this is to prevent the mode of amendment provided in the article of amend- ments adopted a few days ago, I propose that in front of the first word of this section the following language be inserted: "In addition to the mode of amendment provided for in article ." At the suggestion of the chairman of the committee, I ask that those words be inserted after the figures 1905, instead of at the beginning of the article, so that it will read: "After the first day of January. 1905, in addition to the modes of amendment provided for in article , the General Assembly may," etc. Mr. President, the committee accepts that amendment and hopes it will be adopted. The amendment was agreed to. Sub-section L was adopted. Section 4 was adopted. DEBATES OE THE COJs'STITUTIOis'AL COXVEXTIOX OE VIEGIis^IA. 2807 Mr. Braxton: Mr. President, I suggest that we now return to Section 1, so as to enable the gentleman from King and Queen (Mr. Jones) to introduce his amendment which, in view of the amendment of Section 4, which has been adopted, will be un- objectionable so far as I know. I do not know what objections others may have. Mr. Claggett B. Jones: Mr. President, as I understand the matter, the amendment was offered on yesterday and passed by by the Convention until Section 4 could be amended as proposed by the committee, so I ask now that Section 1, page 1, line 13, be amended by striking out " sleeping or parlor-car company." The amendment was agreed to. Mr. Braxton: I move that Section 1 be adopted as amended. Section 1 was adopted. Section 5 was then read. Mr. O 'Flaherty: Mr. President, I wish to renew the motion I made in Committee of the Whole, to insert after the word " State," in line 7, the words " except charitable, religious or educational corporations." The Presiding Officer: The question is upon agreeing to the amendment offered by the gentleman from Warren. The amendment was rejected — ayes 12, noes 36. Mr. Robertson: Mr. President, I desire to offer an amendment to that section, and I do not care very much whether it is defeated or not. I desire to offer an amendment,- striking out in the eighth line of Section 5, the language " or not less than $5,00." I should like to state to the Convention, if the members will listen to me for a minute, the object of my amendment. The distinguished chairman of this Committee on Corporations, when this matter came up before, opposed the resolution of the gen- tleman from Warren on the ground of " de minimim non curat lex." In other words, that the courts and the legislatures do not care about small matters; but that this Con- stitution should provide even for the amount of that fee you are going to charge these companies for the making of these reports to this commission, I respectfully submit it is too small a matter for this Convention to go into. He has provided, in this section, that the Legislature may provide for fees. Now, it does seem to me that we ought to leave to the Legislature the amount of the fees which they will require these people to pay. Some of the gentlemen say five dollars is a small matter; but, since I have been in this Convention here for eight months, five dollars has assumed tremendous proportions to me. (Laughter.) Five dollars is not a small matter in these hard times. These charitable institutions, these eleemosynary institutions, have some right to be heard in this matter. I would have voted for the proposition of the gentleman from Warren except that I was prevented from doing it by reason of my pair with the gentleman from Prince George. It does seem to me, Mr. President, that we ought to leave the Legislature free to fix these things. If they want to except anj-body from the operation of it let them do it. It is absurd to say that the cost of filing one of these reports will necessarily amount to $5.00. Some of these charitable institutions may not have that $5.00 to pay. The business they do in the nature of monej'- transactions may be very small, and it would probably not cost a quarter to file the report they desire to make. And yet we propose, for the purpose of raising revenue here, as is wise, of course, and to pay the cost of this commission, to create a tax on every incorporated company v/hatever, whether for the purpose of making profit or not, of not less than $5.00, which the Legislature may make greater than $5.00. The principle he invoked here of de minimis non curat lex, certainly ought to prevail, and this thing ought to be stricken out of the Constitution. We ought not to go into the petty detail of saying exactly how much everybody shall pay for the purpose of making a report as to their private affairs. My proposition is to strike out the words in line 8, " of not less than $5.00." Mr. Braxton: Mr. President, I will ask the attention of my friend from Roanoke to a suggestion in the way of a substitute for his proposition, that at the end of this section this be inserted: 2808 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Provided that the General Assembly may relieve from the payment of the fee herein provided for, any purely charitable institution or institutions. Mr. Robertson: I will accept that, for the simple reason that I do not expect to get anything unless the gentleman from Augusta says so. I know perfectly well the Convention will vote down any proposition I offer unless I get the consent of the gen- tleman from Staunton, and therefore I accept it. Mr. Braxton: I am sorry the gentleman cannot accept it in better grace. Mr. Robertson: I thank you sincerely for giving me that much. (Laughter). The question having been taken, the result was announced — ayes 35, noes 14. The amendment was agreed to. Mr. Eggleston: On page 21 of this report, beginning with line 18, I find the follow- ing provisions: The failure by any corporation for two successive years to pay its annual franchise or license fee, or to make its said annual reports in connection therewith shall, when such failure snail have continued for ninety days after the expiration of the said two years, operate as a revocation and annulment of the charter or license of such corpora- tion, as the case may be, and the General Assembly shall provide additional and suitable penalties. Now, Mr. Chairman, it seems to me that this provision, which enforces the forfeit- ure of the charter of a home corporation, whereas it only imposes upon the outside foreign corporations a penalty of forfeiting its license to do business in the State of Virginia, is a discrimination against the home corporations. When you provide a penalty under which the charter of a home corporation is forfeited, you may put in jeopardy a large amount of property that is invested in your home corporation. In the case of a foreign corporation you cannot make such a provision. You can provide for a forfeiture of the license of a foreign corporation to do business in the State of Vir- ginia, but its franchise, its corporate existence, remains untouched. And what will be the result of that? The point I wish to make is that the force and effect of this provision is a direct discrimination against home corporations. Now, what will be the result of that? If a set of men wish to go into business in the form of an incorporated company, you offer them an inducement to go beyond the limits of the State of Virginia in order to get their charter, because when they take their charter from the State of Virginia, they are liable to forfeit it as a penalty for failure to comply with that law. If they get it from West Virginia or some other State, a failure to pay that tax or make that report, will merely work the forfeiture of their license to do business, and upon com- plying with the law the license would be restored. But when they have forfeited their charter, their corporate existence has to go, and you will peopardize a large amount of property invested in these private corporations. Now, sir, we ought at least to put our home corporations on an equal footing with foreign corporations, and not offer any inducements to business men to go beyond our State limits to get their charters, thereby placing the determination of all their litiga- tion beyond the reach of the State courts, and in the Federal courts for decision. Be- sides, there are other objections to it. I would suggest, therefore, Mr. President, that in line 23, the words " and annulment of the charter, or " be stricken out, and in line 24, the words " as the case may be " be stricken out. Then it will remain in this way: That the annual license, the right to do business, is forfeited, but the charter, the cor- porate existence of the company, is not forfeited. It leaves with the Legislature the right, and the positive mandate on them, to require such other penalties as may be necessary to enforce a compliance with the law requiring these reports to be made. I cannot see the matter in any other light, than that the enactment of this clause wull put a home corporation at a great disadvantage, and force great many of these com- DEBATES OE THE COXSTITUTIOXAL COXTEXTIOX OE VIEGIXIA. 2809 panies to go outside of the State of Virginia to get their charters. There is no necessity for it, because here is a provision requiring the General Assembly to put other and additional penalties on these companies, to require a compliance with this law. and a mandate on the corporation commission to see that all these laws are enforced. TVe ought not to undertake to forfeit the charter of a company. Suppose the com- pany is in court and in the hands of a receiver, it is beyond the power of the stock- holders to see that this law is complied with. The parties at whose instance it had been put into court and into the hands of a receiver may be inimical to the very ex- istence of the company. The persons whose property is invested there are powerless to protect themselves by making these reports and paying these fees, and yet tmder this provision their corporate existence would be wiped out entirely and the property in- vested in such companies put in jeopardy and there is no alternative. There is not even power in this commission to renew or revive that charter under any circum- stances. It is wiped out of existence. They must wind up their business, no matter what loss that may incur. I hope it may be the pleasure of the Convention to adopt this amendment so as to put home corporations at least on the same footing with foreign corporations. I\Ir. Braxton: Mr. President, as it is so near the time for adjourning, it will be impossible for me to reply to the gentleman and for the Convention to take a vote on this matter this afternoon. I simply say now that this matter has been carefully con- sidered and the objections and dangers that the gentleman refer to do not exist; that this provision exists in the constitutions of a great number of other States, States that deal most liberally with corporations. When I come to reply to him I think I will have no difficulty in satisfying the minds of the members of the Convention that the dangers my friend imagines may result from this will not restilt. On motion of Mr. Braxton the Convention adjourned tmtil Monday, March 3, 1902, aL 12 o'clock M. MONDAY, March 3. 1902. The Convention met at 12 o'clock Prayer by Rev. Alfred Bagby. D. D. " _ - ' ^ LEGISLATIVE DEPARTMENT. Mr. George K. Anderson: I\Ir. President. I desire to present the following resolu- tion, which I ask may be referred to the Committee on the Legislative Department. Resolved. That Sections 2 and 3 of the report on the Legislative Department, as adopted by the Convention be. and the same are hereby, rescinded, and that the follow- ing be substituted therefor: The House of Delegates shall consist of not more than one hundred and not less than ninety members; the Senate shall consist of not more than forty and not less than thirty-three members. Members of the General Assemblj' shall be elected quadrennially for the tenn of four years, on the Tuesday succeeding the first Monday in November, by the voters of the several cities and counties constituting the respective legislative and senatorial districts. For the election of members of the House of Delegates and members of the Senate the cotmties, cities and towns shall be divided into districts. Referred to the Comimttee on the Legislative Department. The President: The unfinished business is the report of the Committee on Cor- porations. Mr. Braxton: If there are no amendments to be offered at this time, I move that, without disposing of Section 5 until the gentleman from Charlotte shall return, we pro- ceed with the consideration of Section 6. The President: That will be taken as the sense of the body unless objection is made. 177 — Const. Deb. 2810 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIEGINIA. Section 6 was read and adopted without amendment. Section 7 was then read and adopted. Mr. Thom: I move that we pass by the consideration of Section 8. The motion was agreed to. Section 9, with slight amendment, was then adopted. Section 10 was read and adopted. Section 11 was temporarily passed by. Section 12 was read. Mr. Ayers: I would call the attention of the chairman of the committee to the Louisville and Nashville Railroad Company, running in this State from Cumberland Gap to Norton, and which has developed all that coal section. It would be impossible under this provision for that road to acquire rights of way to build branches which they have been so far authorized to build; and there ought to be given the right of exten- sion, because they are public benefactors to that extent. I know now of projects of the same kind, that will require the building of several branch roads by the Louisville and Nashville railroads, and it will be impossible for them to acquire rights of way under thfs provision. Mr. Braxton: If I am not mistaken — and if I am, I should like to be corrected by the gentleman from Wise — the Louisville and Nashville road crosses the State line; and Section 12 says: But this section shall not affect any public service corporation whose line or route extends across the boundary of this Commonwealth. But any such foreign public ser- vice corporation, so engaged, shall not be authorized to hereafter acquire, lease, use or operate, within this State, any public or municipal franchise in addition to such as it may own, lease, use or operate when this Constitution goes into effect. My impression is that it has been held that when one State recognizes the charter of a railroad granted by another State, and allows it to extend within its boundaries, it becomes to all intents and purposes a domestic corporation, so far as that State is concerned. I know it is the policy of many States to require railroad companies build- ing lines within their limits to take out domestic charters. These railroads cannot build their new lines, as a rule, without the exercise of the right of eminent domain, and it was the opinion of the committee that the right of eminent domain being a right of sovereignty which the State, for the good of the public, grants to a corpora- tion, it should not be granted to nor exercised by foreign corporations where it could be vaided, if in any case, and where a railroad seeks to extend its lines or to build a new line of railroad, where it has to exercise the right of eminent domain, we thought it was nothing more than reasonable, and very desirable, that that road should be re- quired to take out a State charter for the construction of that road, and for the exer- cise of the right of eminent domain. Under the provisions of Section 2 of this article there would be no difficulty in obtaining railroad charters. Heretofore they had to be obtained by special act of the Legislature, and were more or less difficult to get, the granting of the charter frequently being fought by other companies. Under the law as it will be if this article is adopted, railroad charters, like all others, will be granted as a matter of course, under general laws, to anybody who applies for them, and who will comply with the requirements of the law in such case. There will be no diffi- culty, therefore, in the company taking out a Virginia charter, and if it undertakes to exercise the right of eminent domain, we think it proper that it should take out those charters. In this connection I would like to explain to the Convention the evils we sought to reach by this section. For some reason or other, sometimes for good reasons and sometimes for bad reasons, or for no reason at all, many corporations doing busi- ness in this State and doing business exclusively in this State, obtain charters from foreign States. Many people seem to think a foreign corporation means foreign capi- DEBATES OE THE COXSTIirilOXAL COXVEXIIOX OE YIEGIXIA. 2811 tal and foreign people; but if you reflect for a moment you will know that is not true. ]\Iany foreign corporations are doing business in this State wbich are organized and owned absolutely by residents of this State, and in which there is not one cent of foreign capital. On the other hand, people who live outside of the State, and foreign capital, are frequently represented in a domestic corporation. Xow, instances of this sort have frequently occurred. The initial fee charged in some States, notably in West Virginia and New Jersey, is very much less than the charter fee charged in Virginia, and many corporations go to Xew Jersey and West Virginia and obtain charters to do business in Virginia — companies composed of Vir- ginia men, and stocked entirelj^ by Virginia capital — thereby defrauding the State (if I do not use too broad a term; that is hardly a proper term, and I withdraw it, be- cause it is a legitimate thing), but preventing the State from obtaining the fee which it ought to have for such a charter. In other cases, in order to be able to take their litigation into the United States courts in every case that involves two thousand dol- lars or more, on the ground that they themselves are citizens of a foreign State. In- stances of this sort have occurred. Local companies, whose entire operations are vrithin Virginia, street car companies, whose entire operations are limited to some one municipality, gas companies, electric light companies, and so on, are operating in this State under foreign charters. Under the law of New Jersey it' is provided that if a company fails to pay any taxes for two years it forfeits its charter. Our information is that there are a number of companies doing business in this State to-day and claim- ing to operate under a foreign charter, when that foreign charter has long since been forfeited by non-payment of taxes. They pay no taxes there, because they do not live there, and have no property there, and they have forfeited their charters, and yet they have paid no taxes here, because they are operating under a foreign charter. This policy of requiring all companies wherever feasible to do so, to operate under a local charter, is one that is recognized throughout the United States, and unless it has been recently passed, there is now pending before the General Assembly of the State of Xew York a provision recommended to the assembly by the present Governor of New York, and endorsed. I understand, by a considerable majority of the assembly, having in view the prohibition of this same abuse, and requiring companies to take out domestic charters unless engaged in business extending beyond the limits of the State. It was with a view to doing that that we provided that banking companies and companies engaged in the public service, such as street car companies, gas companies, electric light companies, tramv%-ays, and things of that sort, unless their lines cross the boundary of the State, should operate under domestic charters, and even in those cases where we could not effect them now, if they seek to extend their lines, especiallj^ if they use the right of eminent domain, in order to do so they must take ottt a domestic charter for that purpose. I think, for the reasons I have stated, the ease, cheapness and certainty of their being able to get a domestic charter will prevent any of the embarrassments and delays suggested by my friend from X'orfolk and my friend from Wise. All that would be necessary wotild be for them to apply to the railroad commission just as they now apply for a railroad charter to build a branch line, and they could extend their line, if necessary, and it could be done within twenty-four hours. After the word "effect" in line 18, insert the following: "But this section shall not prevent any foreign railroad company, operating a railroad in this State, from building branch roads, not exceeding 20 miles in length, from any point on its present line, as now authorized by law." Mr. Ayers: IMr. President, the Louisville and Nashville Railroad Company, since it built its road into Virginia has been held to be a foreign corporation, and so has the Baltimore and Ohio; and yet the State of Virginia has permitted the Louisville and Nashville to come and build in this State, and it is one of the most valuable trans- 2812 DEBATES OE THE COiNTSTITUTIONAL CON^VEI^TIOl^ OF VIRGINIA. portation lines to that great mineral section in Southwest Virginia that we have. I know it is now engaged in the construction of and will construct during this year, branch lines, and it will constantly need to build these branch lines to develop the coal properties of that section. In answer to the argument of my friend the chairman of the committee (Mr. Brax- ton) I would say that this foreign corporation, although it might get these charters, would not want to have a separate corporation organization for every branch coal road of from three to five, or eight miles, which it should want to build in the State. It would have a dozen separate and distinct corporations before it got through if it obtained a charter every time it wanted to build a branch line. I think with him, that no foreign corporation ought to be permitted now to build into the State under a foreign charter, but that it ought to obtain a domestic charter; but the roads that are now operating under foreign charters in the State ought to be permitted to exer- cise the same authority that you give to domestic corporations to build branch lines not exceeding twenty miles in length, for the purpose of developing industries along the line. I think really that this is so manifestly reasonable and just that my friend should accept this amendment. Mr. William A. Anderson: Mr. President, I desire to ask the gentleman from Wise ( Mr. Ayers) if he remembers what are the corporate rights of the Louisville and Nashville Railroad, as to the terminal points of its line in Virginia? Does it extend east or north of Norton? i Mr. Ayers: Yes, sir; it is Norton. I think it was left slightly indefinite, because at the time the permission was granted they had not definitely decided upon Norton as the junction point. My recollection is it was at some point in the coal fields of Wise county, and that it is now fixed at Norton. All I want to do by this amendment is to retain for that road from Cumberland Gap to Norton the right which has been given every other railroad in the State, to build branch roads not exceeding twenty miles in length, and for the purpose of building those roads, to exercise the right of eminent domain that was granted it in building nearly 100 miles of road that it did build in Virginia. Mr. Green: Mr. President, I trust the amendment of the gentleman from Wise (Mr. Ayers) will not be adopted. We have had some experience with the Baltimore and Ohio Railroad in the State of Virginia, and the case which the lawyers of the State will recognize as Noel vs. The Baltimore and Ohio Railroad Company. The Supreme Court of the State supposed it v/as liable to the laws of the State, and the decisions of the courts. They so held, and that railroad was held to a responsibility from which the Baltimore and Ohio Railroad imagined the court of a foreign jurisdiction, the United States court, which I call a court of foreign jurisdiction, would relieve them. They moved the court to transfer that case to theFederal Court, and it was refused on the ground that they were liable in the State courts. The railroad company took an appeal in that case to the Supreme Court of the United States, and that court re- versed the decision of the State court of Virginia, and we had to enter up a judg- ment in the State here that we had no jurisdiction over that railroad whenever it chose to go away from the jurisdiction. Now, although the section provides that it shall not interfere with them as they stand now, if they wish to extend their road, if they wish to acquire new priviliges, if they wish to adopt some improvement which will benefit them in Virginia, they can- not do it without taking out a charter in this State; and when they take out the charter for the purposes that the gentleman from Wise has indicated, that very minute they will become subject to the decisions of the Supreme Court of Virginia. Now, no Vir- ginian ought to object to that. Why should not our State administer her own laws, and compel people and corporations who are doing business in the State to conform themselves to the laws of the State of Virginia and the decisions of its courts? Why DEBATES OE THE COXSTITUTIOXAL COXTEXTIOX OE VIEGIXIA. 2Sld sliould any corporaiion be encouraged lo go abroad and gei corporaie chariers and come down into Virginia and do business, and escape ihe responsibility iiere wlieneyer ii thinks some other State or jurisdiction has decided in its favor, and deliberately go over there and have its case tried and decided? That is manifestly improper. It is clearly right that if these people come now into Virginia and further — and desire any more privileges, we should require them to subject themselves to A'irginia's laws and the decisions of her courts. So much for the Baltimore and Ohio Railroad, I know nothing particularly against them; but as to the Louisville and Xashville Railroad, which the gentleman from VTise is championing, I beg to say that with some knowledge of that road, by a careful examination of the cases before the Interstate Commerce Commission, it is the most infamously unjust and oppressive railroad that has ever afflicted the world. It has no toleration for the people, no desire to assist any country through which it goes, but it is a grasping monopoly of the very worst kind. It does now, and has had. I believe, more cases of appeals from the decisions of the Interstate Commerce Commis- sion, trying to correct its oppressions, than all the other railroads in the United States. It fights every decision. It seeks in every possible way to avoid any sort of just rule that can be applied to it, and it ought not to have any privileges what- ever in this State. If it wants to build a mile of road, it ought to be required to sub- ject itself to the laws and decisions of the State of Virginia. I do tiTLSt the Convention will not change this provision, which I think is a very moderate rule. If I had had the drawing of it. I would have required these very people, before they could go over this land, to get corporate powers from the State of Virginia and subject themselves to it; but I did not have the drawinffs of it. and I submit to it as it is. I do not believe there ought to be any citizen or corporation in the State of Virginia which is not required to submit to its laws and the decisions of its courts. Mr. Ayers: Mr. President, I am perfectly familiar with the case the gentleman has quoted, in which it was very properly decided by the Supreme Court of the United States that the Baltimore Railroad, as a non-resident corporation, had a right to re- move its cause to a Federal court. That was denied to it and it went on through the courts in Virginia, and went to the Supreme Court of the United States, where that question was made and the case was reversed. The question was not raised in our Supreme Court at all. It was made in the court below. The railroad assigned as error the refusal to remove the cause, and it was very properly decided to be error. I have also had some experience in litigation in behalf of the State against the Baltimore and Ohio Railroad in the Federal courts. The Federal courts finally main- tained the right of Virginia tmder properly constructed tax law to tax the property 01 the Baltimore and Ohio Railroad, movable and real, in the State oi Virginia. I am not here as an apologist for either the Baltimore and Ohio or the Louisville and Xashville railroads, but I am here to ask that we shall not blindly strike at non- resident corporations that have been invited to come into this State and put their money down here and build a railroad to develop, as they have developed, large sec- tions of this State, and to ask on behalf of the people who have to ship over that road, and who want to ship over it, that it shall not be denied the right to build these smaU branch roads, or coerced into becoming a domestic corporation as to the other rights the State has granted them, after the State has invited them to come here. I do not think the State should say: "We will hold yon up like a highwayman, and make you become a domestic corporation, although we passed an act inviting you to come into the State of Virginia and expend your money, before you shall have the right that we extend to all the other corporations in the State." It is unjust. It is unreasonable. It is a burden that will be placed upon our people, because the Louisville and Xashville is not dependent upon that seventy-five miles of road for its profits, and before it would come in and ask for a charter to 2814 DEBATES OF THE COi^STITUTIONAL CONVENTION OF VIRGINIA. build a road a mile or five miles long, and subject to a domestic charter the seventy- five miles which it has come in and built under the invitation of the State of Vir- ginia, through laws passed for that purpose; they will not build, and you check devel- opment of that country. It does not interfere with the general principle contained in this article, that they should not be permitted to go on and extend their line to Norfolk or Lynchburg, or to any other point without obtaining a domestic charter. It simply gives them the right they exercise to-day, which you gave them when they came into the State. I am not certain that they have not a vested right that you cannot take away; but be that as it may, it is unjust to the people who are shippers over the line to adopt this provision. I wish to say to my friend from Danville (Mr. Green) that I do not know of any railroad that does not get about everything out of the traffic and the people who ship over it that it can get. The first question is, how much will It bear? That is really the rule, and the Louisville and Nashville is no better and no worse than most other roads. If the gentleman would go along the line of the Louisville and Nash- ville Railroad if he had to deal with the traffic department of the Louisville and Nashville Railroad, as I have had to do, he would say that the Louisville and Nash- ville comes as near granting what is fair and living up to it as any of the other rail- roads. I have had experience with it for the last twelve years, ever since the road has been built in the State of Virginia, and while it has been hard at times to get them to do what I believed to be fair in regard to development, I find that if you finally negotiate with and bring them up to the point, the company lives squarely up to it. I wish to say to the gentleman that I will join him to-day in giving the Inter- state Commerce Commission full power to enforce its decrees and laws, and full powed to make rates; but as long as it has not full power, you need not expect any railroad in the United States to sit down and submit to what it believes to be an imfair ruling if, by resistance, it can avoid it. It is begging the question,, to attack that railroad. What I ask here is for the interests of my constituents directly and indirectly for the interests of all the people of the State. I say it would be manifestly unjust to cut off this railroad, which you have invited to come in here, and which has expended probably $2,000,000 in build- ing its lines and branch lines, and which is to-day hauling an immense tonnage of coal and coke to the west from that region of country. There are a number of lines to be built this year, and if they have no right to exercise the right of eminent domain, these roads will not be built, because they are not going to come in, subject to being held up in pursuance of this provision. They will go on developing as far as they have built, and let that be the end of it. They will not surrender their rights in the part of the road they have already built and become a domestic corporation as to the road from Cumberland Gap to Norton, in order to condemn the land to build a branch road out to a factory I might build 500 yards off the line of the road. I do not ask anything but what is fair and should be granted. Mr. Thom: Mr. President, I shall make no motion about the matter to which I am about to allude; but I ask at the hands of the chairman and members of the Committee on Corporations a calm consideration of the suggestion that, beginning in line 14, at the word "but," everything be stricken out down to the word "the," which is the last word in line 18. I shall take advantage of the motion which the gentleman from Wise (Mr. Ayers) had made to give my reasons for this suggestion. I, personally, am not in accord with the policy which would require every corpora- tion doing business in the State to become a domestic corporation. I believe the best interests of our people will be protected by free trade among the institutions of this country who desire to do business with us. I believe that any other policy will result in circum,scribing the volume of business which will bring employment to our people and invite wealth among us. I say that merely to put myself upon record upon that position. I am not attempting in any practical way to antagonize the policy to the DEBATES OE THE C0X5TITUTT0XAL COXVEXTIOX OF YIEGIXIA. 2815 contrary which has found favor with this body; but, waiving that, we find a condi- tion of affairs already existing among us under which there are two great lines of railroad extending across our borders, and which have for years been doing business among us. They have obtained from the representatives of the people the rights v/hich they are enjoying; and, in a word, those rights are that as to those two roads they may retain the charter of the State which gave them birth, and that they should operate here among our people under an enabling act, instead of a different charter of incorporation. Now, those railroads have, just as others have, increased our taxable value.?. They have built up our communities. They have furnished means of transportation to our people. They have brought business among us. The question is whether it is sound policy on the part of the State to say to those two railroads, 'Tf you extend a foot of your line within our borders, if you go and knock at the gates of any other city of Virginia, you will be obliged to do so under another and a domestic corpora- tin." Suppose, for example, the people of Danville were to have an opportunity of getting the Baltimore and Ohio Railroad to extend to that city, and it should want a municipal franchise for the purpose of entering it, is it necessary either to the liberty or to the interest of our people that an impediment should be thrown in the way of the people of Danville having that facility. Suppose the Baltimore and Ohio Railroad should do as is suggested, and extend its line to the city of Norfolk — Mr. Braxton: What foreign corporation owns any railroad in the State outoide of the Louisville and Nashville? :Mr. Thorn: The Baltimore and Ohio. Mr. Braxton: I do not think the Baltimore and Ohio owns any road in the State. Mr. Thom: My recollection is that it does; that it has been decided by the Court of Appeals to be operating in the State under an enabling act. Mr. Braxton: My impression is that the Valley Railroad owns the road from Har- risonburg to Lexington, and operates it in its own name, and the Winchester and Potomac road owns the road from Winchester to Harper's Ferry. ]\Ir. Thom: Then if the Baltimore and Ohio operates it. it is doing it by lessee? If it should build a road, every mile of road it would build would be to the advan- tage of our people. Suppose the Baltimore and Ohio should be willing to extend its line to the seaboard at Norfolk, is there any just public policy on the part of the State or its people that would prevent it, under its present corporate form, and sub- ject, as it is now, to our courts^ whether they be State or Federal? Now, to obtain a theoretical policy of Constitution, is it wise in us to go so far as to say that as to these companies that have come in here under a policy of our law heretofore established, no further public franchises by the State and no municipal franchises by the cities shall be granted to them? That is the question; and I want here to say that, while I have the highest admiration and the warmest affection for my friend from Danville (Mr. Green), who presented his views to the Convention a moment ago, I must most earnestly dissent from his suggestion that the Federal courts of the L'nited States are foreign to the State of Virginia in any patriotic or proper sense. I regard those courts as much my courts as the courts of the State of Virginia. l^^T. Ayers: ]\Ir. President, I suggest to the gentleman from Norfolk that if our sister States should adopt the same measures with regard to our corporations as we propose to adopt with regard to theirs, we would not have, as we have to-day, cor- porations in Virginia operating roads in every Southern State. Mr. Thom: Yes, sir, I merely wanted to say, Mr. President, that, speaking for myself, and, I hope, for my people, the sentiment which would regard any institution of our couiitry, whether Federal or State, as foreign to Virginia will never gain acceptance in the State of Virginia, and as I started out to say, I make that state- ment with the deepest feeling of affection and the highest sentiments of admiration for my friend from Danville, whose remarks caused me to enter upon this line of 2816 DEBATES OF THE CONSTITUTIOi^AL COiSTVENTION OF VIRGINIA. thought. I shall not enlarge upon these views. I merely want to enter my protest, itiasmuch as they have been uttered upon this floor, so that at least it will not be considered as the universal sentiment of this Convention. Now, as to the matter directly in hand. As was suggested by my friend from Wise (Mr. Ayers), every one of the great railroad systems of the State of Virginia is operating in from two to ten States of this Union. Take the Chesapeake and Ohio; it operates outside the State of Virginia. Take the Southern Railway Company; under a charter of the State of Virginia it is operating in ten States of tnis Union. Now, where can we expect liberal treatment in other States of the Union if we deny it to them? We have only two short roads chartered by foreign States doing business in the State of Virginia, and yet all of our great systems have their rights recognized by States south of us, and the whole of their transportation facilities are furnished to them under charters granted by other States than their own. Would it be liberal, would it be good policy to invite the Constitutional Conventions of other States south of us, as they gather to deal with this suffrage question, to take the narrow view of this question that no railroad of Virginia shall extend a foot within the States of North Carolina, South Carolina, Georgia, Alabama, Mississippi, Kentucky and the other States of the Union; and yet if we do it as to the Baltimore and Ohio and as to the Louisville and Nashville, how can we complain if a Constitutional Convention is held in the State of Georgia, and they say that the Southern Railway Company, char- tered by Virginia shall not build a twenty mile branch without giving up its Virginia charter and taking out one under the laws of that State. So with the other matter. Every impediment that we throw in the way of the cor- poration of another State may be repaid to us by a similar impediment thrown in the way of our corporations in other States. We are in a more vulnerable position than any other State of the Union, because we furnish, under Virginia charters, more rail- roads to the South than any of the other States furnish to us. I ask at the hands of this committee that they will take this matter under con- sideration until after recess, and determine whether they cannot see their way clear to reverse their policy in so far as I have alluded to it. On motion of Mr. Braxton the Convention took a recess until 4 o'clock P. M. AFTER RECESS. The Convention reassembled at fhe expiration of the recess. The President: The pending question is upon agreeing to the amendment offered by the gentleman from V/ise (Mr. Ayers). Mr. Braxton: Mr. President, with the consent of the gentleman from Wise and the gentleman from Norfolk I wish to ask the Convention to permit this matter to be passed by for the present. The motion was agreed to. In line 6, I ask that the word "similar" be inserted before the word "domestic" so that it will read "or be relieved from compliance with any of the requirements made of similar domestic corporations." The President: The amendments will be made, without objection. Mr. Braxton: Mr. President, at the end of the sentence, in line 9, ending with the word "corporation," I desire to ask that the v/ords "without discriminating against them" be inserted; but before asking that, I would like to have an amendment put at the end of the section; because unless this amendment at the end is adopted, I would not be willing to have the words referred to, put in at the end of the sentence in line 9. As it is written now, it provides that "no foreign corporation shall be re- lieved from compliance with any of the requirements made of similar domestic cor- porations by the Constitution and laws of this State, where the same can be made applicable to such foreign corporations." DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIEGIXIA. 2817 Tlie idea the committee had in that language was that they would not be held applicable to a foreign corporation, when the effect of appljung them to a foreign corporation would be put to it at a disadvantage to the domestic corporation. It has been suggested to us, however, that that will not necessarilj- be the construc- tion, and we have been requested to insert the words "without discriminating against them" so that it would not be made obligatory to apply to foreign corporations the requirements of similar domestic corporations, unless it could be done without dis- criminating against foreign corporations. We are perfectly willing that that amend- ment should be made, provided that at the same time it be made perfectly clear that the Legislature, while not required to discriminate against the foreign corporations, shall be left free to discriminate against them if they choose. Therefore, I shall first ask that at the end of the section these words be inserted: "And nothing in this section shall restrict the power of the General Assembly to dis- criminate against foreign corporations whenever and in whatsoever respect it msLj be deemed expedient or wise to do so." If that is inserted we have no objection to the insertion being made, in line 9, of the words "without discriminating against them." In other words, it is not our purpose to require the Legislature ever to dis- criminate against the foreign corporations, but it is equally not our purpose to pro- hibit the Legislature from discriminating against them should they ever deem it proper to do so. In many States, notably in Xew York, the policy has been adopted, in certain cases, where it can be applied wisely, to discriminate against foreign corporations by making a slight change in the tax on them, or otherwise. Your committee does not know and does not wish to be understood as saying that in any particular case it will be vrise to discriminate against the foreign corporations; but we are very particular that no language be used which might have the effect of prohibiting such a discrimination if the Legislature should ever deem it wise to make it. I will state for myself that I think it is very possible the Legislature may sometimes think it wise to make such a discrmination, in later years, certain of the States, notably Dela- ware, Xew Jersey, and West Virginia, have adopted such a policy tov^-ards the char- tering of companies certainly on a very liberal, and as some people think, a loose- jointed method, that many of the States have deemed it wise to pass laws, and as I stated this morning the State of Xew York, if it has not already done so, rs engaged now in the consideration of a bill which will doubtless become a law, discriminating against charters from those and other States, the policy being that wherever a cor- poration can act under a domestic charter, it is to the interest of the State that it should so act. Fuliy recognizing that that policy of discrimination might be carried to an unwise extent, we still do not think it would be wise to put anything in here that would fetter the Legislature in making such discrimination whenever and in whatsoever respect they choose. That part of the section which ends in line 9 is obligatory in that it requires — not permits, but requires — every provision, restriction or regulation appli- cable to a domestic charter to be applied to a foreign charter, and where it is appli- cable to it, and. as we would like to put it in, where it can be done without discrimin- ating against them, but where such application would amount to a discrimination against the foreign charter, it is our purpose not to make it obligatory, but to make it permissive, that the Legislature may apply it or not. as it may see fit. I trust I make myself clear to the Convention. Mr. Thorn: Before my friend gets further in his remarks I wish to ask him whether there is anything in his opinion in the language of the section down to line 3, to which he alludes, to suggest any discrimination against foreign corporations, or vrhether it is not the purpose, as clearly expressed there, to simply put foreign cor- porations and domestic corporations on the same footing. ^Ir. Braxton: I am inclined to think that is true, and that was the understand- 2818 DEBATES OF THE CONSTITUTION-AL CONVEl^TION OF VIRGIMA. ing of the language, when it was adopted by the committee, but some gentlemen inter- ested in such matters have called our attention to what they think is a possible con- struction; and while we do not think that is a correct construction, we are perfectly willing to put it beyond all peradventure by the insertion of the language proposed in the amendments. Mr. Thorn: What is it these gentlemen think might be done antagonistic to for- eign corporations? Mr. Braxton: I will give my friend an illustration thut was given to us. In the case of insurance companies, they are charged a license doing business. At pres- ent that license is the same on domestic and foreign corporations, and amounts to $200 a year and one per cent, of the business done by them in the State, and there- fore it can be applied without burden indiscriminately to domestic and foreign cor- porations. It was suggested to us that the time might come when the Legislature in its wisdom would think it best to tax domestic insurance companies a license tax based upon the entire amount of business they do everywhere or upon their capital stock, and that if such a provision was applied to a foreign insurance company, if it was made obligatory to apply to foreign insurance company, it might have the effect to put them to such disadvantage, they being possibly subject to a similar tax where they are, that it would drive them out of the State, or else compel the Legislature to forego what they miglit think to be a desirable method of taxing domestic corpora- tions. Mr. Thorn: What I am getting at is that the language you are suggesting at the end of the section is paying a very severe penalty, and unless it is absolutely neces- sary to change the language contained in the first part of the section, I think a very distinctly dangerous policy is being suggested in the Constitution by the last lan- guage proposed. Therefore, if there is any way to avoid that, I should think it best in the interest of our people to suggest on the face of the Constitution that discrimi- nation may be made against foreign corporations in terms which may be considered to be expressive of an exceedingly hostile sentiment, and would J)e to my mind very dan- gerous and hurtful, and unless there is some absolute reason for thinking you have run upon some difficulty in the first part of your section which it is necessary to re- lieve, I should greatly prefer and think it much wiser to have the first part of the section remain unchanged. Mr. Braxton: I desire to ask my friend in that connection if he has any doubt in his mind that the Legislature has now the right to discriminate? Mr. Thorn: None whatever; but my position is this: There are a great many powers that exist in a State, and must exist in a State, and yet to flaunt them unneces- sarily in the eyes of the public will suggest a sentiment on the part of oun people which might be very hurtful to them, and put on the face of our Constitution a sug- gestion of a purpose or a policy which might mean discrimination against foreigners doing business in the State, although the power exists to discriminate, would be in my mind exceedingly unwise. I want to avoid the expression of that sentiment, if possible; and unless this Convention is assured that some difficulty exists, which the chairman does not think exists, and which I do not think exists. I believe it would be hurtful to try to clarify the language of the first part of the section by putting upon the face of our Constitution the declaration, as it might be construed, of a purpose hostile to foreign corporations doing business in the State. I hope, therefore, that unless there is some very good reason for adding those words "without discriminating against them" in line 9, the whole idea of the amend- ment will be abandoned. Mr. Braxton: Mr. President, I can simrply say, in reply to my friend's suggestion, that I hope he and the Convention will always bear in mind the difference between discriminating against foreigners and discriminating against foreign corporations, be- cause as I stated a little while ago, a foreign corporation may very well consist en- DEBATES OF THE COXSTITUTIOXAL COXVENTIOX OE VIRGIXIA. 2819 tirely of domestic men and domestic capital, and foreigners doing business in the State may very well do business under a domestic charter, and that discriminating against foreign corporations is by no means and in no sense discrimination against foreign capital or foreign people. I think the right of the Legislature to discriminate against foreign corporations iis a matter so plain and so well known to everybody that we would not be making any suggestions or scaring them away by simply saying that we do not by this lan- guage intend to change the law in that respect as it exists to-day. In regard to the other matter I will say to my friend, as I said just now, that per- sonally I do not think the language in question means what some gentlemen seem to fear it might be construed as meaning. The language as it now stands is that "for- eign corporations shall not be relieved from compliance with any of the requirements made of similar domestic corporations by the Constitution and laws of this State, where the same can be made applicable to such foreign corporations." My own idea and the idea of the committee was that the language should not mean where it was conceivable or possible to apply to it, regardless of consequences, but where the application could be made without discrimination. The only purpose and object of this amendment is to make clear a matter which some gentlemen think is obscure. I am perfectly willing to leave that to the judgment of the Convention, without pressing it upon them. If the Convention thinks that the language as now used is obscure, and does mean what it was intended to mean, as I have explained it, I will not press the amendment, but if it is thought that it can by possibility be intended as a hard and fast line, compelling the application of for- eign corporations of every provision applicable to domestic corporations, and regard- less of the effect it may have, then I think it would be better to insert the provision we offer, and I do not think this provision would be obnoxious to the suggestion made by my friend, that it would be held out as an intimation of hostility. It simply says that nothing herein contained shall be regarded as a restriction upon the power which the Legislature now has, and which everybody knows it has, of making any discrimina- tion against a foreign corporation it chooses, without undertaking to suggest that it shall make that discrimination. Mr. Thom: "Would your committee not be willing to insert in line 8, the word "reasonably" after the w^ord "can" so as to read "where the same can reasonably be made applicable to such foreign corporation"? Mr. Braxton: I will say to my friend that those on the committee with whom I ■^ave been able to confer say they prefer the language suggested here in the amend- ment, as it would make it plainer. I am sorry I cannot agree with the gentleman. I will have to leave that to the Convention. I do not know what they will think of it. The President: The question is on agreeing to the amendment. The amendment was agreed to. Mr. Braxton: I ask that the further consideration of this question be passed by until we can take up an amendment offered by the gentleman from Wise (Mr. Ayers), and that w^e go on considering Section 13. ~ The President: That will be taken as the sense of the Convention unless objec- tion be made. The Secretary will read Section 13. Sections 13, 14, 15 and 16 were read and adopted. On motion of Mr. Braxton, Section 17 was temporarily passed by. Section 18 was read and adopted. The consideration of Section 19 was temporarily postponed. Section 17 was then read and adopted. Mr. Braxton: On behalf of the committee, proposed to amend by inserting at the beginning of the section, these words: The exclusive right to build or operate railroads parallel to its own or any other line of railroad shall not be hereafter granted to any company. 2820 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. In explanation of the amendment, he said: I will endeavor to explain to the Con- vention why it was we offered the amendment we did offer. While it would seem that the idea of the purpose of this section is a very simple one, and one which could be grasped very readily, when we came to put it into language we found a good deal of embarrassment, and it was almost a puzzle to work it out. As the language now stands it is this: The free right to build and operate railroads, parallel to any other railroads pre- viously established, shall never be abridged nor denied to any railroad company here- after chartered by this State. It has been suggested by some of the members of the committee, since we have been considering this matter, however, that that might have the effect of enabling a railroad corporation on its own charter to build parallel roads to any other road, al- though it is in an entirely different part of the State; so that if we charter a railroad to run from Big Stone Gap to Bristol, that railroad would have the right by that same charter to parallel the Southern Railroad from Richmond to* West Point. Of course, that was not our purpose, and in order to negative that we propose to strike out the words "hereafter chartered," which we thought were unnecessary in view of this amendment, and insert "but no such company shall build or operate any line of rail- road not specified in its charter"; so that while it might get a charter to parallel another line of road, it should not have the right to parallel it unless the charter speci- fied it, and it could not get a charter to run a road from A to B, and on that same char- ter parallel another road from C to D. If the amendment is adopted, the section will read in this way: The free right to build and operate railroads, parallel to any other railroads pre- viously established, shall never be abridged nor denied to any railroad company, but no such company shall build or operate any line of railroad not specified in its charter. Mr. Meredith: Could you not leave in the words "chartered by this State"? Mr. Thorn: Would you put in the words "the main line of which is not specified in its charter"? Mr. Braxton: If that amendment is adopted it will necessitate the amendment which I offered a few minutes ago, because if a railroad could not build a parallel line to som,e other road unless that was specified in its charter, it occurred to us the Legislature might, by general law, provide that no railroad charter should be issued to run from a certain specified point, from A to B, and therefore, as no charter could be gotten for it, and no road could be built without a charter, the residue of the sec- tion would be nugatory, and in order to exclude the possibility of both of those things, we offered the amendment which I proposed a few moments ago, to be followed by one which I just read, so that as amended the entire section would read as follows: The exclusive right to build or operate railroads parallel to its own or any other line of railroad, shall not be hereafter granted to any company. The free right to build and operate railroads parallel to other railroads previously established, shall never be abridged, nor denied, to any railroad company chartered by this State; but no such company shall build or operate any line of railroad not specified in its charter. We thought if those two amendments were adopted it would prevent the possi- bility of the section being evaded or its purpose diverted in either of the ways I have suggested. Mr. R. Walton Moore: In order to reach the purpose you have in view, would not this be a simpler course — merely to provide that the general laws which are con- templated by Section 2 of this ordinance shall not be framed in such a way as to pre- \ent the parallelling of railroads. Mr, Braxton: I would say to my friend that I am not prepared at this moment to DEBATES OF THE COXSTITUTIOXAL COXTEXTIOX OE VERGIXIA. 2S21 study through the language he suggests. It may he thai it ^rould meet the case; hut inasmuch as vre have thought through, as vre believe, the language we propose, and as ve think it vill meet the case we would prefer using that to adopting a new form of expression which we have not had a chance to reflect upon. The President: The question is on agreeing to the amendment proposed by the gentleman from Augusta (Mr. Braxton). The amendment vras agreed to. 3Ir. Braxton: I ask that the word '"'Hereafter" in lines 3 and 4, be stricken otit, snd that after the word '"'State" in line 4, the language I read a few moments since, be inserted: "Btit no such company shall build or operate any line of railroad not specified in its charter." Mr. Robertson: I desire to offer a resolution striking out that whole section. I do not think any argument along the line that has already been made by the gentle- man from Xorfolk will do any good in this Convention, btit I do consider this an ex- tremely important matter. Green: Has not the Legislature T^•ithout any provision of this sort, a right to parallel or not parallel other roads, as it sees fit. Mr. Robertson: In reply to what the gentleman from Danville has asked me, I think there can be no question that the power of the Legislature is complete and full to either parallel or not parallel lines of railroad in this State. The object of this pro- vision, however, like the object of this entire report, is to tie the hands of the Legis- lature, and say that hereafter, whenever a company is organized, whose object it is to parallel any of the lines of railroad we have in the State, or the Legislature, or whoever grants these charters will be absoltitely prevented from refusing to grant a charter of that kind. That is the effect of it, that this committee of eleven, who have absolute control of a majority of this Convention will say to the people of Virginia that hereafter the representatives of the people in Legislature assembled can- not say to any company that comes into the State and asks for a charter parallelling any of the trunk lines of railway in the State "We refuse to grant you that charter," whatever may be the effect upon the public interests of the Commonwealth. Are we so wise, do we know so much about the future, about what the effect of that may be, that we are going to put a permanent provision in our Constitution saying tliat no discretion can be exercised in reference to that matter? I respectfully desire to call to the attention of the Convention the idea that was suggested in the very able speech of the gentleman from Xorfolk (Mr. Thorn) when he was speaking on general principles with reference to this report. What he said about that certainly struck me ■^'ith a great degree of force — that too much competition may sometimes defeat the very object which people have who try to bring about competition; that bringing into effect that kind of competition against a railroad line in this Sfate, forcing the Legis- lature or whoever grants these charters to grant charters to people to parallel the lines of the road may, in the future, become absolutely injurious to the interests of the people of the Commonwealth; and how will that happen? It will happen on the principles that where competition is fierce and is carried to too great an extreme, these companies do not have the efficiency and do not have the safeguards that they would otherwise have. If you injure one of these railroad companies to such an extent that it cannot keep up its roadbed, for instance, it cannot supply the kind of engines and cars to haul the passengers and the products in Virginia, and if the roadbed gets in such a condition that they cannot keep it safe for the use of the ptiblic. you can very readily see how that may seriously injure the public. I am not going to appeal to the Convention for any sort of justice towards these corporations. I have seen here from day to day that the majority of the Convention is influenced by a spirit of hostility to these people, who have certainly, in my opinion, never done harm in the Commonwealth, any more than any other business people have. 2822 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. but on the contrary, have built up the Commonwealth and developed it to the extent that it has been developed; but I will not appeal to any sort of feeling of justice to them. I do appeal to you, however, in the interest of the people of the Commonwealth. Do not tie the hands of the Legislature so that even though they may see plainly that the paralleling of one line of road by another may injure the interests of the people of the Commonwealth, yet they will be precluded from denying it, under this section. I am not making any charge against individuals here. I am not making any cjiarge against their known feelings and motives, but I say that men have been wrought up in this Convention to such a feeling of hostilty to these corporations that they sometimes forget the interests of the people of the Commonwealth. You cannot injure these people to any great extent without injuring everybody. You ought to look at both sides of this question and not put into our Constitution something that we have never dreamed of having in it before, that wherever one company comes and wants to parallel a line of road, it shall do so, if it complies with the law in every respect, and that there can be no power in the Commonwealth to prevent that. I do not care to say anything further on the subject. My friend from Norfolk pointed out the danger of that so plainly and fully in his speech that I do not think it is necessary to do more than remind you of the general line ol thought he sug- gested. It may be said that my opposition to putting this provision here is due to my general opposition to putting any of this article in the Constitution. I respectfully submit that is not true, that this has nothing to do with respect to a commission. This ir^ an independent principle. It has nothing to do with the general idea of this report at all. You can have your railroad commission and give it all of these powers which you have given it, and yet you can vote against this part of the article without affect- ing one iota the principles you are claiming and contending for here. It does seem to me the Convention ought to pause and consider this matter care- fully before it votes to put something here that in its nature may do a great deal of harm to the people of the Commonwealth. Mr, Braxton: Mr. President, the gentlema,n from Norfolk (Mr. Thorn) very kindly made a suggestion to insert a word in the amendment which I last offered, but I regret to say I caunot agree with him as to the wisdom or the necessity of inserting it. I do not think the language as now used is objectionable. Mr. Thom: Mr. T'resident, I will explain my purpose in making the suggestion. The motion of the £entleman from Augusta is to add, in line 4, the following lan- guage: But no such company shall build or operate any line of railroad not specified in its character. That language is broad enough to require a railroad company to foresee at the time it gets its charter every branch line that thereafter become convenient either to the public or to itself. The present statutory law of the State permits a railroad com- pany to build under any charter a branch not exceeding twenty miles at any point that it may see fit. It is very essential that that right should exist. I will take the coal country as an illustration. A company might be chartered to penetrate the coal region of the State. At the moment it could not be foreseen exactly every branch that it might become necessary for it to construct in connection with its work, and, in fact, in practical experience of railroad matters, railroads are constantly building these branches not exceeding twenty miles in length, which at first they never had any idea there would be a public demand for them to build. Now, it cannot be necessary every time a railroad wants to build a branch of twenty miles, for it to get out a separate charter, to have a separate corporate exist- ence, with different directors, or the same directors, with different records, with dif- ferent reports, and with different accountabilities. All that can be reasonably re- DEBATES OE THE CONSTITUTIONAL CONVENTION OE VIRGINIA. 2823 quired of it is that the company, when getting out its charter, shall specify its main line of road, giving it the same right it has now, to build under such charters as are thus obtained the branch lines that they have under similar legislation. Mr. Kendall: Does not the amendment of the chairman have reference to parallel lines, not to branch lines. Mr. Thom: A branch line might parallel. Mr. Braxton: I will state to my friend that it has reference to all lines, parallel and otherwise: Mr. Thom: -But a branch line might parallel. The question is whether it is necessary, under this new constitutional policy, to require these companies to foresee every branch that may be necessary in the devel- opment of their business, and more than it is now necessary, when you go to the Gen- eral Assembly and get a right to build a road from Richmond to Alexandria, to specify all the branch lines it may be found in the future a necessity to construct. I therefore suggest that all that should be necessary for such a company to specify ill its application for a charter would be its main line of road, leaving it with the same rights as the branch lines that it has under the present statutory policy of the State. Therefore I move to amend the language suggested by my friend by insert- ing the word "main" before the word "line," so that it will read: "But no such com- pany shall build or operate any main line of railroad not specified in its charter." Mr. Braxton: Mr. President, the first objection I have to the amendment as offered by my friend from Norfolk is that the words "main line" are of such vague and uncertain import that no man can say what they include and what they exclude. The Convention will remember that at as early a stage of these proceedings, when in Committee of the Whole we were considering another part of this article, it was gravely contended and insisted upon this floor, in the matter of freight rates, that the South- ern Railway from Danville to West Point was a branch line, nearly 170 miles long, and that the rates on that line could not be properly compared with the rates on a main line, because that was a branch line. I mention that merely to show the Conven- tion that there is no way of telling what is a main line and what is a branch line, and if a branch line, as was contended in that case, can be 175 miles long, it can be 400 miles long, and so we would absolutely destroy the amendment, if it is intended to have any effect, by limiting it to main lines when the branch line may be as long as J have indicated. I would suggest, further, Mr. President, the difficulties suggested by my friend from Norfolk do not in fact exist. He is mistaken in his construction of the effect of this article. I take it, when you say "you shall not build a line except that specified in the charter," that does not mean you shall specify every siding in the charter, nor that you shall specify every small branch of three or four miles long, so short thafc it practically consists of only a sprig or branch of one other line, but I am reasonably certain that, for small branches of five or ten miles in length, a specification of the main line of which they were branches would be broad enough to cover any such branch as that, but would not cover any such branch as one 150 or 175 miles long. I will go further, though, Mr. President, and call the attention of the Convention, and also that of my friend, to a grave error that he makes in the construction of this statute. He seems to think, if I caught his argument correctly, that, as to those branches not included in the general line, whether it be a five mile or a fifty mile branch, it would be necessary to get out another charter and organize another com- pany, I beg to call his attention to the fact that that is not true. It would simply require an amendment of the charter already existing, if necessary, to say that they could build a branch from A station to B. Now, Mr. President and gentlemen of the Convention, I beg you to bear in mind that the attaining of charters and the amending of charters under this Constitution will be a very different thing from what it was before. It would be, under the state 2824 DEBATES OF THE CONSTITUTIONAL CONVENTION" OF VIEGINIA. of affairs which has heretofore existed and which exists to-day, a very unwise thing, and a great hardship on the roads, to require them to get an amendment of their charter to build a branch line, because such an amendment could only be obtained by act of the Legislature, and, in the first place, they might have to wait two years to accomplish it, and in the second place, when they got there, besides the expense of the lobby, they might be met with the objection and the fight of some other company that did not want them to get it, and it would be a matter of uncertainty. So that as the law stands now, for a railroad company to amend its charter, it involves delay, expense and uncertainty; but under the provisions of this article, there is neither delay, expense nor uncertainty, but such amendment, if it be necessary to obtain an amendment, to indicate the other line, can be obtained in two hours and a half for probably five or ten dollars, or whatever the Legislature chooses to charge for such a small thing, and with the absolute certainty that there is a possibility of anybody, corporation commission or anybody else gainsaying your getting it. Therefore, Mr. President, and gentlemen of the Convention, to sum up, I will say in the first place, the use of the words "main line" is uncertain. Nobody knows what they mean, and it would involve a definition. In the second place, it is probable the courts, will construe the language now used as covering a small line of three, four, or five miles. In the third place, if they did not do so, all that the corporation has to do is to get an amendment to its charter specifying this main line, which they can do at practically no expense, with no delay and with absolute certainty. So that every railroad charter will show on its face where that company has a right to build its road, and that will be the end of it, I think, therefore the difliculties suggested by my friend do not, in fact, exist. One word more. My friend refers to the building of these branch lines as if it was almost a daily occurrence. I venture to say there are not twenty branch lines in the State of Virginia, after fifty years of railroad building. It is the rarest thing that they are built, and when they are built, the provisions now in here will not involve a delay of two hours and a half. I ask, therefore, that the Convention reject the amendment. I think, for these reasons, it is unnecessary to make the insertion, and that by put- ting in the word "main" you would inject an element of absolute uncertainty by using a word of vague and unsettled import, and practically destroy the amendment as it now exist. Mr. Thom: Mr. President, my friend is mistaken about there being so few branch lines in the State of Virginia. They are of constant occurrence. I can name a great many myself; and nearly every branch line that is suggested is not suggested by the railroad company, but by som^e industry that desires that it shall be established for the purpose of development. There is nothing in the motion I have made to indicate that when a siding is placed, there is required, even under the suggestion of my friend, additional legislation: but he admits that the result of the provision as suggested by him is to cut off rail- road companies from the right they have had from time immemorial in this respect, to build branches not exceeding twenty miles in length, and those branches are protected by a general statute of the State. Nor is there any difficulty in defining what is the difference between a main line and a branch line. There is a statutory policy of the State, well defined and well understood, on that point. Mr. Braxton: May I ask my friend what the definition of a main line is under which the line from Danville to Richmond would not come? Mr. Thom: There would be none whatever, and it never was called a branch line except in the loosest kind of talk upon this floor. That was the short expression for "subsidiary line." It would not be a branch line under any definition ever suggested or ever understood under any railroad policy on the face of the earth. The ques- tion under debate then was the difference in rates on the main line of railroads, on DEBATES OE THE COXSTITUTIOXAL COXYEXTIOX OE VIPtGIXIA. 28.25 that part of the road that v/as carrying the densest portion of the railroad traffic; and it was stated that where railroad commissions existed a different rate was per> mitted on the main line of railroad from that on a subsidiary line. When they were called branch lines, it was not with the idea of making a definition or a distinction be- tween main and branch lines, but between the most important and the less important lines of railroad; and my purpose in asking that the word "main" be inserted before the word "line" is to facilitate the establishment of these institutions in the State the effect of which is to buy people's property, to develop people's property, and to give employment to the labor of the State, so that when a railroad has once gotten out its charter for its main line of railroad, it can listen to Mr.^ Jones or Mr. Brown, or any- body else who owns a coal mine, an agricultural interest or any other matter he de- sires to be developed, and can give him transportation facilities, provided the branch required is not over twenty miles in length, and I submit there is nothing unreasonable in it. Mr. Braxton: Mr. President, I just want to say a word. I understand that last year there were built in this State, branch lines and main lines all combined, about twenty miles of railroad. If I am not mistaken, the Chesapeake and Ohio road in thirty years has built two branch lines, as far I can recall, or may be three; and I think that is about on a par with the number of branch lines built by other roads. Some of them have never, in their existence, built any branch lines. Mr. Thorn: I will ask my friend if he is acquainted with these roads that run through lumber district and the constant necessity of building branch lines to develop forests, lying ten to fifteen miles from the main line? Mr. Braxton: I can simply say that so far as I know there are not twenty branch . lines in the State of Virginia after fifty years. But, Mr. President, and gentlemen of the Convention, if there vvas a branch line built every day in the year, the provisions here would not delay It five seconds. All the railroad has to do when it gets its charter, if it has in mind any branch lines, is to specify them, ad infinitum, and if it does not have them in mind, whenever it does want to build a branch line, it can obtain an amendment to build that line, as I have explained to you, without the expenditure of more than two hours of time, with abso- lute certainty, without the slightest danger of impossibility of getting it, at a cost of possibly $5; and that is only done in order that the State can keep a record of where the lines are that are to be built, so that you cannot charter a road to run from Bristo^ to Abingdon and undertake under that to build a road on the Peninsula or in the eastern part of the State. I think the argum^ent of the gentlem.an shows for itself that there is no restriction here, no requirement in the world, except that when a railroad wants to build its line it shall say what line it wants to build, and if it afterwards wants to build any other line, it shall say so, that is all. No man can gainsay that. They can get charters every day if they choose, and amendments of charters. It will not involve getting a new charter, but simply an amendment, specifying that, this charter, is amended so as to enable them to build a branch line from A to B. I hope the Convention v/ill vote down the amendment, as the effect of it. if it should be adopted, would be to destroy the amendment proposed by the committee. The President: The question is on agreeing to the amendment proposed by the gentleman from Norfolk city (Mr. Thom) to the amendment proposed by the gentle- man from Augusta, the chairman of the committee. The question having been taken, the result was announced — ayes, 15; noes, 41. "The amencment to the amendment was rejected. The President: The question recurs upon the amendment offered by the gentle- man from Augusta, chairman of the committee. The amendment was agreed to. ITS — Const. Deb. 2826 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Mr. O'Flaherty: Mr. President, before the substitute is put, I wish to move to strike out the word "free" in line one, Section 17 — "The free right to build and operate railroads." I do not think that word "free" ought to be in there, becaiTse it is ambig- uous. If they have the right to build the railroad, the right cannot be more than free, and the question might arise as to whether the Legislature could impose any burden upon them at all. Therefore I move to strike out that word "free." The President: That will be taken as the sense of the Convention, unless objec- tion be made. The question recurs on the motion of the gentleman from Roanoke City (Mr. Rob- ertson) to strike out the entire section. The President: The question is on the motion of the gentleman from Roanoke city (Mr. Robertson) to strike out Section 17. The motion was rejected. Mr. Braxton: I move that Section 17 as amended, be adopted. On motion of Mr. Braxton the Convention adjourned until to-morrow, Tuesday, March 4, 1902, at 10 o'clock A. M. TUESDAY, March 4, 1902. The Convention met at 10 o'clock A. M. Prayer by Rev. I. M, Mercer, of Richmond. CORPORATIONS. The President: The unfinished business before the Convention is the report of the Committee on Corporations. Mr. Braxt 'n : I suggest that we proceed with the consideration of the amend- ment offered ly the gentleman from Wise (Mr. Ayers) to Section 5, and I will ask the Secretary to read the amendment. After the word "effect" in line 18 of Section 12 insert the following: But this section shall not prevent any foreign railroad company operating a rail- road in this State from building branch roads not exceeding twenty miles in length from any point or points on its present li^ie as now authorized by law. Mr. Braxton: Mr. President, I have been considering as carefully as I can, the amendment offered by the gentleman from Wise with a view of agreeing to it if I coula see my way clear to do so, but the more I reflect on it and the more I look into it, the more I am satisfied that it would be an unwise provision. The building of branch lines is a thing that is hardly controlled by that name. If you authorize a railroad to build a branch line twenty miles long I see no reason to prevent their adding another twenty miles to that, and another twenty miles to that, and so on indefinitely, until it can build a road clear across the State. Mr. Ayers: Do you not see my reason in having it limited, as I limit it, from any point or points on its present line? Mr. Braxton : I think the effect of that would be to start from some point or points on its present line, but that, however, is not the important ground. As I at- tempted to explain to the Convention yesterday, it is always desirable that corpora- tions doing business in this State should operate under State charters if they can; but where that corporation is a public corporation the reasons for its having a domestic charter are very much greater. It is hard enough to regulate and control our domestic public corporations, and it is doubly so if they are foreign corporations; and when you add to that the fact that a railroad company in building even its branch line can exercise the right of eminent domain, it seems to me there is every reason why it DEBATES or THE COXSTITUTIOXAL COXYEXTIOX OF TIEGIXIA. 2827 should be required to do so under the State charter only. This right of eminent domain, as we all know, is a high prerogative of sovereignty, and if it is to be sur- rendered to a private corporation at all it should be surrendered only to a private corporation of the State itself, which it can control absolutely, as it can alone, its domestic corporations. Mr. President, this is no new idea. The fact is, as far as we know, there is not a foot of road in the State of Virginia that was ever built by foreign railroad cor- porations except the short line which the gentleman refers to, that of the Louisville and Nashville road. Not one foot, as far as I am aware, has been built by foreign corporations, and if I am mistaken in that I am sure I am not mistaken to any material extent, if at all. I find, so far as I have been able to investigate, that the rule is throughout the United States that whenever a railroad company enters a State either to build a railroad or to operate a railroad, it is required to become a domestic cor- poration. I\Iy learned and able friend from Norfolk referred to Virginia railroads operating in the South, under Virginia charters, and spoke of the great courtesy and comity that was shown to us by the Southern States. I have not, with the time at my disposal, been able to investigate the law in each of these States, but I know that in a number of them — my impression is that it is in all of them — those very corporations are re- quired to become domestic corporations when they enter that State. In South Caro- lina and Mississippi the provision is in the Constitution of those States, that whenever a railroad company enters a State to build or operate a road it shall thereby become, ipso facto, a domestic corporation. In others that provision is made by statute. In others, again, it is not provided that they shall by the mere act of coming in there become corporations, but it is provided that they shall take out a domestic charter and become incorporated under the laws of that State. So you will find in the great majority of cases, if I am correctly informed, that interstate railroads passing through the several States become domestic corporations in each State through which they pass, and the great object and purpose of that is to prevent their hauling the citizens of those States into the United States courts for matters which they wish to litigate. In order that the Convention may have the benefit of some of the authorities which I have looked up on this question, I will take the liberty of reading shortly from the last edition of Cook on Corporations, Section 910, and notes: An interstate consolidated railroad corporation is a separate corporation in each State, although it has one capital stock, board of directors, and name — this is now an established principle of law. The question has been involved most frequently in cases turning on the jurisdiction of the Federal courts. For the purposes of jurisdiction a distinction is made between a corporation char- tered by two or more States and one that is chartered by but one State, and merely authorized by the laws of other States to do business in them. Vv'here it is chartered by two or more States, it is considered a citizen of each of the chartering States. And there is a long line of authorities: A consolidated railroad running into two States is a separate corporation in a State, and, being sued in one State, cannot remove the case to the Federal court on the ground that it is a citizen of the other State. A consolidated corporation running into two States is a separate corporation in each State. A consolidated company running into two States is a separate corporation in each of the States. A consolidated corporation running into three States is a separate domestic cor- poration in each of those States. It may turn back its corporate business in one State for all. As regards the jurisdiction of the Federal courts, an mterstate corporation Is treated as a citizen of the State in which the suit is brought and into which it runs. A corporation which is created by the joint act of two or more States is considered. 2838 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. to consist of as many corporations as there are States which have joined in creating it. The relation of these constituent corporations towards each other is the same as though they were different corporations having the same name. Where a corporation created in one State is merely authorized by statute to tran- sact business in others, it is a citizen only of the State which chartered it. Now, Mr. President, the question for this Convention is this: Shall we do as is done in most of the other States, require these railroads operating in this State either to go through the form of becoming incorporated here or to provide that the mere act of extending their branches shall have the effect of making them domestic cor- porations; or shall we do as was done in the Louisville and Nashville case, merely authorize a foreign corporation, without becoming incorporated here, and without be- coming a domestic corporation, to exercise the right of a railroad company, and par- ticularly to exercise the right of eminent domain? Shall we say that these companies, which can come here and take a man's land away from him, nolens volens, and exer- cise in this State the absolute right of sovereignty, can then turn around and defy the courts of the very State whose sovereignty it is exercising, and haul its citizens into the United States courts? It seems to me that to merely state the proposition is also to state its answer. The Committee on Corporations thought best to provide as they have done, that where these railroad companies wish to build more roads, where these street car companies wish to get more franchises, they must become in- corporated under the laws of this^ State. It does not interfere with their operation. It does not embarrass them. Three-fourths of the interstate roads in the United States are doing that to-day. Other States require it of them, and we thought it was unreasonable to say that they must become incorporated under the laws of this State, so as to be State institutions and be under the absolute control of the State and State laws, and amenable to the State courts. That is not an unreasonable requirement. It is one that is met by all, or a great majority, I believe, of the other States. The wisdom bf it is recognized. It is not a burden upon them, and it is a safeguard for our people. I venture to say, Mr. President, that it will not impede or delay the build- ing of one inch of road in the State of Virginia. As I stated yesterday, roads are built because of trade conditions and geographic conditions, and no road that would have been otherwise built is abandoned because the company will have to spend $5 or $10 in taking out a domestic charter. If we do what is asked to be done by the gentleman from Wise, the effect of its provision will be that the Louisville and Nashville Railroad — and without making any criticism of that road which my friend refers to as one of the best and most liberal roads in the State, if the statements made in public press are to be relied upon, it was the cause very nearly of producing a civil war in Kentucky — the effect of this provision •will be that that road or any other railroad, or corporation chartered by another State over whose internal affairs we have absolutely no control, will be authorized to come into this State, condemn property under the right of eminent domain, exercise a part of the sovereignty of this State, and then when our citizens sue it or it undertakes to sue our citizens, to defy the courts of this State and take them into the United States court for their litigation. I think, with that jingle exception, there is not a mile of road in the State of Vir- ginia ever built under such circumstances. I am convinced that that provision will not prevent or delay the building of one mile more in this State. It is but right that we should put this provision upon them. It is but due to our citizens that railroads should not be allowed to come into the State, operate and build their roads, and then drag them into the Federal courts; and this is the only way in which we can prevent it. I trust, therefore, that the Convention will vote down the amendment offered by the gentleman from Wise. I very much regret that I cannot agree with his views on it. This is a matter which we have looked into carefully and we have considered DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. 2829 that for the reasons which I have attempted to state to you it would be a grave mis- take if we did not adopt the provision substantially as it is now, and vote down the amendment of the gentleman from Wise. As the article stands now, it simply pro- vides that no foreign corporation now doing business in the State shall hereafter acquire, use. lease or operate any public or municipal franchise in opposition to what it now has. We thought it was useless to say that, while no foreign corporation can do it, they could do it by becoming incorporated under the laws of the State; but in order to put the matter beyond peradventure it is my purpose as soon as the amendment of the gentleman from Wise is disposed of one way or the other, to ask that the words "without having become incorporated under the laws of the State" be inserted, so that the section will then read: But such foreign service corporation, so engaged, shall not be authorized to here- after acquire, lease, use or operate within this State any public or municipal franchise in addition to such as it may own, lease, use or operate when this Constitution goes into effect, without first becoming incorporated under the laws of this State. As I have tried to explain to 3'ou, such corporation does not interfere with them in the least. The company can do business under the same organization and with the same directors and with the same officers as before; but will be just like the other roads which run through other States, become incorporated either ipso facto by enter- ing the State, or b3^ taking out a charter to operate under the same organization in the State. I will read, in this connection, from the recent Constitution, dated 1895, of the State of South Carolina — and similar provisions are in those of other States, I remem- ber particularly in that of Mississippi, and in the statutes of many others. I think ii is the general rule: The General Assembly shall not grant to any foreign corporation or association a license to build, operate or lease any railroad in this State; but in all cases where the railroad is to be built and operated, or if it is noAV being operated in this State, and the same shall be operating in this State or other States, the owner of the charter thereof shall first become incorporated under the laws of this State. The object of this provision now is to say that, while they can continue their pres- ent operation unimpaired, if they seek to get other franchises or further public or municipal franchises, they must become incorporated under the laws of this State. It is a mistake to talk about our having invited these people to come here and that there- fore we ought never to change our law. I venture to say that no public invitation was ever extended to them to come here, and if it was, they would not pay any attention tc it unless it was to their interest. They came because they wanted to come, because they thought it was to their interest to come, and it is absurd to say that they came as the guests of the State because they were invited here. It is absurd to say that because, a law exists, when a railroad company or anybody else comes here to do busi- ness, that it is a duty on our part never to change it again. It is no burden on them. T hope the amendment of the gentleman will be voted down. Mr. Ayers: Mr. President, a good portion of the time of my friend has been occu- pied in announcing propositions that no one will deny, that no State should grant to foreign corporations the right of domination and to exercise the right of eminent domain. That goes without saying. But the State of Virginia has done that. It has induced a railroad company by granting the right to it, to come in, and it has induced a very large sum of money in the State — two millions of dollars and over — to be put into it. My friend, the experienced railroad man, characterizes it as absurd that the fact of having invited a railroad company to build in Virginia for the purpose of de- veloping the mineral section, having granted them the right to build branch lines twenty miles in length, and other lines, according to this act, longer than that — that 2830 DEBATES OF THE CONSTITUTIONAL CONVENTION OP VIRGINIA. after you have gotten them to come into the State, after the line is completed, that you shall, by a constitutional provision, cut off the right to get into one of the mines or places or collieries that you have invited the railroad company to come in and develop. Mr. Braxton: Will the gentleman be so kind as to state what this invitation was and how it was given? Mr. Ayers: It was given by an act of the General Assembly of the State of Vir ginia. Mr. Braxton: Was not that act proposed by the railroad itself that you say was an invitation for them to come here. Was it not an act which they asked themselves should be passed instead of an invitation from us? Mr. Ayers: It does not matter at all. I am speaking of the legal effect of it. Do you suppose that if the Louisville and Nashville Railroad Company had been told twelve years after they had built this road one gentleman from Augusta would organ- ize a corporation commission that would at one fell swoop take away from the road any right to get at the traffic for which it built its main road, it would have come here at all? I say it is bad faith. It is not that I challenge the principles which you announce and in which I agree with you fully, but I say that the State of Virginia has always, in good and in bad times, attempted to keep her faith, as far as she could with States and with individuals as well as with corporations. Mr. Braxton: Does my friend claim that it would be bad faith for the State to change her laws in reference to corporations chartered outside the State? Mr. Ayers: I claim that to take away from a company which you have permitted to come into the State of Virginia and to develop certain traffic, absolutely the right tu develop and to go into any of that traffic without surrendering the right you gave it, in order to induce it to come here, is an act of bad faith. The General Assembly of Virginia was at that day and time as much the repre- sentative of the people of Virginia as is the Constitutional Convention now, and the faith of the State is pledged to these people that they shall not be deprived of these necessary rights to utilize what they have already done. I do not ask that you shall give the power to build a road to the North Carolina or to the Maryland line or to the Seaboard. I simply ask that you shall leave the company in the possession of those rights and franchises for the purpose of utilizing the road which they built and the money which you induced them by this act to come into the State and expend. I ask that those rights should be left to it and that no further rights as a foreign corporation shall be granted to it. Now, Mr. President, I will say for twelve years this railroad has been in opera- tion in Virginia. The gentleman lays stress upon the right of that road as a foreign corporation to go into the Federal courts. I agree fully with what my friend from Norfolk (Mr. Thom) yesterday said upon that point. That "I will never consider the Federal court as foreign court to Virginia." But I do that for twelve years, with con- siderable litigation, suit after suit, that company has never as yet removed one of these cases, but all have been tried in the State courts, and in more than one case have gone through the circuit court to the Supreme Court of Appeals. Never once has it exercised its right, which, according to the Federal court, it clearly has, to re- move its cases, notwithstanding the provision in that statute itself into the Federal court. But I want to say that it is violative of no general rule. If this is the only road, then the exception will only apply to this road. If the Louisville and Nashville is the only road that has been built in the State of Virginia under these circumstances, then the exception here will only apply to that, and the general principle will apply to all foreign corporations hereafter seeking to enter the State of Virginia. By refusing to put this in, you wipe out, if subject to repeal, and this act of the General Assembly is made subject to alteration or repeal by the General Assembly, you come here and you repeal absolutely every provision that would enable these people, absolutely sub- DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. 2831 jectlng themselves to the law of the State of Virginia, to develop the resources for which the line was built. Now, it is an exception. The good faith of Virginia requires that this company shall be left with the power, without holding it up as a highwayman and saying: "Yes, you can build, but you can build only upon the terms of becoming a Virginia corpora- tion." If the General Assembly of Virginia had said to the Louisville and Nashville Railroad when it was coming in here, "These are the only terms upon which you can come into the State of Virginia," I agree with the gentleman that it would have been proper and right and the proper thing to do. And it is the proper thing to do for any other foreign corporation seeking to come into Virginia and seeking to operate a railroad. But the State of Virginia did not do that. The State of Virginia permitted it to come in under an act passed by its General Assembly granting it certain privi- leges; and now, after it has come and has expended its money and is operating its road and developing and making the State wealthy, the State comes in and says, "Although we have done this, although we have held out to you the same privileges granted to other corporations of the State, we are going to take it all away and force you to be in this State a different corporation from that which you were when we granted you the right." There is no justice in it. There is no reason why that line of the Louisville and Nashville, from Cumberland Gap to Norton, Va., should not exercise the same privileges which are granted to other roads in the State by general law, the right to build branches of twenty miles in length. Mr. Braxton: Mr. President, I should like to say just one word more. The gen- tleman admits that the policy of this section is a wise and proper policy for all other roads that hereafter may come into the State. If it is not right and proper, then we ought to throw it out; but if it is proper to provide that no other railroad shall build lines without becoming incorporated under the laws of this State, why should we except the Louisville and Nashville from it? If it is good for everybody else, why is it not good for them? My friend says it is bad faith. My friend says we induced them to come here; and you would imagine that we went after them and asked them to come here and that we voluntarily' adopted this act and held it out to them with the promise that if they would come we would never change the law in that respect. The fact of the whole business is that they invited themselves to come. We were very glad to have them come, it is true, but it is idle to say that they are here merely as a guest of the State, and that we were deriving all the benefits. I venture to say as a matter of fact that the Louisville and Nashville Railroad Company has made as much out of Virginia as Virginia has ever made out of the railroad. I venture to say that no such idea ever entered the head of that company as that they should come here to benefit us. They came to benefit themselves, and incidentally to benefit us. T am very glad they did come, but they did not come from any motive but a selfish one. I say that any right which has been given to that road by that act, which was probably drawn by the company itself, if I am any judge, were acquired by proceed- ings which have been adopted in similar cases. They had their lobbies to put it through. If they have any right there which we have no right to withdraw from them the Federal Constitution provides for that, and we cannot hurt them; but if they had any contract right or other rights other than those which belong to them, and which we cannot violate, we have every right, and it is our duty, in the interest of the peo- ple of this State, irrespective of the Louisville and Nashville Railroad, to legislate along the line which the gentleman assumes is a wise one. to legislate along the lines which this State has always legislated along for years, because it is the only road which ever came in under these circumstances. But I take it that there is a grave doubt as to whether the Louisville and Nash- ville Railroad is not to-day a Virginia corporation. I think under the act under which it came in there is a grave doubt as to whether that act did not constitute them a Vir- ginia corporation. If not, I fail to see in reading the act wherein they are not already 2833 DEBATES OE THE CONSTITUTIONAL CONVENTION OF VIRGINIA. a Virginia corporation. They are given the right of eminent domain; they are pro- hibited from going into the United States courts; they are made amenable to our courts and to our laws and all the laws that operate here on any other corporation. If that does not make it a domestic corporation I ask you what does? But if it does not, and if it be true, as contended, that it is not a Virginia corporation, then I state as a proposition that I do not believe can be refuted, that a provision which pre- vents their going into the United States courts is absolutely of no avail, because the courts have held again and again that you cannot prescribe that as a prerequisite to a foreign corporation coming into the State; and the only means by which you can keep them out of the United States courts is on the ground that they are domestic corporations already, they will not be hurt. If they are not, they are here under an act which they drew themselves and which they know cannot be enforced. We do not say they shall not build roads. We lea^fe every road to build as many railroads and branch lines as they see fit; but we simply say that before that road is built they shall comply with a reasonable requirement, not difficult, not embarrassing, not bur- densome, one which the gentleman admits every other railroad in the State will have to comply with, one which the majority of the States of the Union now prescribe. I think they have utterly failed to show any reason why they should be made an exception to the rule that every railroad in the State has and that nearly every other State in the Union requires of its railroads, and that is that they shall become domestic corporations, and as I have shown you by the authorities, that does not interfere v/ith or embarrass them in any way in the performance of their duties. The President: The question is on agreeing to the aniiendment of the gentleman from Wise (Mr. Ayers). The amendment was rejected. Mr. Braxton: I move that after the word "effect" in line 18, these words be in- serted, "without first becoming 'incorporated under the laws of this State." That is the amendment I referred to when I was speaking just now, so that the section will then read: But any such foreign public service corporation, so engaged, shall not be authorized to hereafter acquire, lease, use or operate, within, this State, any public municipal franchise, in addition to such as it may own, lease, use, or operate, when this. Con- stitution goes into effect, without first becoming incorporated under the laws of this State. The amendment was agreed to. Mr. Braxton: I move that Section 12, as amended, be adopted. Section 12 was adopted. Mr. Braxton: Mr. President, I am informed by the gentleman from Pulaski (Mr. Wysor), who offered a resolution yesterday to reinsert Section 8 that he will not press that motion. Tha.t leaves us to dispose of the amendment offered by the gentleman from Charlotte (Mr. Eggleston) to Section 5. I will ask the Secretary to read the amendment proposed by him. The Secretary read as follows: Strike out, in line 23, Section 5, the words " and annulment of the charter or," and insert the words "of the," so as to read: "The failure of any corporation for two sucessive years to pay its said annual franchise or license fee, or to make its said annual reports in connection therewith, shall, when such failure shall have continued for ninety days after the expiration of the said two years, operate as a revocation of the license of such corporation," and strike out, in line 24, the words " as the case may be." s The President: The question is on agreeing to the amendment proposed by the gentleman from Charlotte (Mr. Eggleston). The amendment was rejected. Section 5 was adopted. DEBATES OE THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 2833 Mr. Braxton: Mr. President, in view of the disposition that has been made of that amendment, I ask, on behalf of the committee, that Section 19 be stricken out for the reasons that I stated yesterda3\ We do not think it necessary to have it in there DOW in view of the provisions of Section 5. The motion was agreed to. Mr. Wysor: Mr. President, I withdraw my motion to reinstate Section 8 in the report. Mr. Braxton: Mr. President, I believe that disposes of the entire report, except the employers' liability bill, in Section 11. This is a matter which has attracted a good deal of attention. It is a matter of very great and immediate importance to the railroad employees whom it affects, and it is very important that it should be prop- erly worded. Since the report of the committee Vv-as made, I, together with some of the more prominent friends of the measure, have recast that section and made some changes in the language, in order to meet some possible difficulties, which it occurred to us might possibly arise under it. The section as recast, I desire now to offer as a substitute for the section as it appears in the report. In doing this I speak only for myself. I am not authorized to offer it as such by the committee. There is some dif- ference of opinion among the members of the committee as to which is the most de- sirable section, and I merely offer it for what it is worth. I am constrained to think that it is more satisfactory and certainly more reliable shape than it appears in the report. I have conferred with a number of the more prominent friends of the measure, and I think the majority of them agree with me in this. The only point on which there is a difference between the members of the committee is in connection vvith one sentence, which reads as follows: Knowledge by any such employee injured of the defective or unsafe character or condition of any m.achinery, ways, applances or structures, shall be no defence to an action for injury caused thereby. Some of the members of the Committee on Corporations do not approve of that language, and in this connection I wish to make this explanation. The article as re- ported in the report of the committee was based upon a resolution introduced some time ago in the Convention by the gentleman from Danville (Mr. Withers), and which was practically, and I think literally, a transcript of the provision in the Constitutions of Mississippi and South Carolina. This ssntence, as it now appears in the substitute, is an exact transcript, so far as it goes, of the constitutional provision of Mississippi. I am free to say, Mr. President, that if I were drawing this matter as an original propo- sition without any guide, I probably would not have used this exact language at this point. It so happens, however, that that language was the subject of judicial investi- gation and construction by the Supreme Court of Mississippi in the case of Buckner vs. the Railroad Company, decided In 1895, and reported in 72 Mississippi reports. Mr. R. Walton Moore: I desire to ask the gentleman for information, whether he means to say that the language as reported here, is the language employed by the Mississippi Constitution, or the language that is offered as the substitute? Mr. Braxton: The language in the substitute. In construing that particular lan- guage, the Supreme Court of Mississippi gave it the exact construction that the Com- mittee on Corporations and the friends of this measure wish it to have. Now, Mr. President, if it had never been construed, I personally would not have used that language exactly, but having been construed, and the construction put upon it being so exactly the construction which we wish it to have, we thought it would be best and safest to use that identical language in the light of that construction, with the understanding that it shall mean in this State exactly the thing which the Su- preme Court of Mississippi said it meant in that State; and in order that there may be no mistake about this, I will read in this connection what the Supreme Court of 2834 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Mississippi said it does mean. I read from pages 878 of 72 Mississippi report. In referring to this provision to which I am addressing myself now, this sentence which appears in Section 193, of the Mississippi Constitution, the court says: The effect of this is not to destroy the defence of contributory negligence by a rail- road company, but merely to abrogate the previously existing rule that knowledge by an employee of the defective or unsafe character of the condition of the machinery, ways or appliances, shall not of itself bar a recovery. The law was. that knowledge by an employee of defective appliances which he voluntarily used, precluded his recovery for an injury thus received. The Constitu- tion destroys that rule, and the mere fact that the employee knew of the defect, is not a bar to recovery; but knowledge by an employee of defects, is still an element or factor, and a very important one in determining whether with the knowledge he had, he used that degree of caution required in his situation with reference to the applances causing the injury. The Constitution did not have the effect to free exployees of railroad companies from the exercise of ordinary caution and prudence. It does not license recklessness or carelessness by them, and give any claim to compensation for injuries thus received. They, like others, not employees, must not be guilty of contributory negligence if they would secure a right of action for injuries. The fact of knowledge shall not be, as heretofore a presence or absence of contributory negligence, which is yet a defence, as it was before, but is not to be made out against the employee by the mere fact of his. knowledge. Mr. Thom: Will my friend accept this provision, to make certain his meaning? Add at the end of the section, "Provided that nothing herein contained shall be construed to impair the defence of contributory negligence." Mr. Braxton: The only objection I could have to that would be this, Mr. Presi- dent, that the the exact language we use has been construed by the court in the light that we give it here, and if the language was inserted, it could not mean more, and it might mean something that we do not wish to put in. My point is that whether language is apt or not, when it has once received a judicial construction, and the court has said it means exactly the thing you want it to mean, then the safest thing to do is to adopt that language, whether you would have originally taken it or not, and for that reason and that reason only I would object to the insertion of the language suggested by my friend from Norfolk. Mr. Thom: I wish to call my friend's attention to the fact that in the decision which he has read the first sentence of the extract was that the effect of this is not to interfere with the defense of contributory negligence. My friend has said his purpose in reading that decision is to be certain that our Court of Appeals will put upon this article the same construction put upon the article in the State of Mississippi by the Mississippi court. Now, that cannot be made cer- tain in any other way except to put in the article itself the interpretation of that article as given by the Mississippi court, and all I am asking at the hands of the com- mittee is that inasmuch as that is the construction put upon the article by the Missis- sippi court, we shall express that on the face of this article, and if that be true, can tliere be any legitimate objection to the suggestion that this explanation should be added? Mr. Braxton: Mr. President, I suppose when my friend says that we can have no certainty that the court will construe it as the Mississippi courts construed it he has in mind a recent case from Kentucky in which, in construing language used by the Interstate Commerce act, the Supreme Court of Kentucky gave a different con- struction from what had theretofore been given by the Supreme Court of the United States in construing the same language. In reply to that, I can simply say that you can find precedents occasionally for some very extraordinary rulings, to which prece- dents we must apply the maxim that one swallow does not make a summer. The over- whelming weight of authority in the matter of the doctrine of construction is that when a statute or constitutional enactment of one State is adopted by another, it is DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIEGIXIA. 2S35 adopted in the light of the construction that is put upon it by the State Yrhich origi- nally adopted it, unless there is something else in the statute to indicate the contrary. Now. ^hen we state on the floor of this Convention in the debates, which are published not merely for the gratification of the individuals to see their names in print, but for the purpose of enabling the court hereafter to read our enactments in view of the construction that is put upon tnem m debate, and when it is stated that if this thing is adopted it is adopted expressly with the understanding that it shall have the construction put upon it in Mississippi and that construction is read, it seems to me utterly inconceivable that a court, in view of that state of affairs, would fail to give it the construction which the body which enacted it said it intended it to have Even if we had said nothing about it. in spite of the case from Kentucky. I think there would not be one chance in a thousand of their failing to give it that construction, because the court would impute to us the knowledge of that r^Iississippi case and would be bound to hold we had adopted it in view of that construction. That being the case, ]\Ir. President. I cannot agree with my friend that there is any possibility, that we can reckon with at all, that the courts of this State in constru- ing this section would fail to give it the construction which we say ourselves it must have. In view of that, the safest and wisest thing for us to do is to adhere strictly to that language, saying at the time we adopt it that we adopt it in view of and with the construction put upon it. which constrtiction we adopt at the time we adopt the language. If we do not do that, then I say the best thing is to abandon that entirely, and use different language, and draw this section de novo. The disadvantage of that is that however plain we may think the language is. we run the risk of a different con- struction being put upon it. whereas here we have it already construed to our hand, and we had better adopt it. I think. I will not detain the Convention longer. I will ask the Secretary to read the sub- stitute which I again state I do not offer as a committee substitute, but on my own responsibility, although it was drawn after careful conference with the friends most Interested in the measure, and I think it meets their approbation. I should be very glad if any of those gentlemen present would take occasion in the course of the debate to indicate whether or not they approve of the substitute, if they do so. The Secretary read as follows: The doctrine of fellow servants, so far as it effects the liability of the master for injuries to his servant resulting from the acts or omissions of any other servant or servants of the common master, is. to the extent hereinafter stated, hereby abolished as to any employee of any railroad company engaged in the physical construction, repair, or maintenance of its road-way. track, or any of the structures connected there- with, or in the physical operations of its trains, cars, engines or switches, and every such employee shall have the same right to recover for every injury suffered by him from the acts or omissions of any other employee or employees of the common master, that a servant would have (at the time when this Constitution goes into effect) if such acts or omissions had been done by the master himself in the performance of a non- assignable duty; provided, that the injury so suffered by such railroad employee results from the negligence of a superior officer or agent of the company or from that of a per- son employed by the company and having the right, or being charged with the duty, to control or direct the general services or the immediate work of the party injured, or the general services or the immediate work of the co-employee by whom he is injured, and also, when the injury results from the negligence of a co-employee engaged in another department of labor from that of the party injured or engaged on another train of cars, or who is in charge of any switch, signal point, or locomotive engine, or is charged with dispatching trains or transmitting telegraphic orders therefor, and whether such negligence be in the performance of an assignable or non-assignable duty. Knowledge, by any such employee injured, of the defective or unsafe character or conditions of any machinery, ways, appliances, or structures, shall be no defense to an action for injury caused thereby. TlTien death, whether instantaneous or otherwise, results from any injury to such an employee, received as aforesaid, and which would have entitled him to recover for such injury under the above provisions, had death not occurred, then the personal 2836 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. representative, surviving consort and relatives of the deceased shall respectively have the same rights and remedies for such death of the deceased as they respectively would have had, if his death had been caused by the negligence of a co-employee of the com- mon master while in the performance, as vice principal, of a non-assignable duty of the company. Any contract or agreement, express or implied, made by any employee, to waive the benefit of this section, shall be null and void. This section shall not be con- strued to deprive any employee, or his legal or personal representative, surviving con- sort, or relatives, of any rights or remedies that he now has, or that they now have, by the law of the land, Nothing contained in this section shall have the effect of restrict- ing the power of the General Assembly to further enlarge, for the above named class of employees, the rights and remedies hereinbefore provided for, or to extend such rights and remedies to, or otherwise enlarge the present rights, and remedies of, any other class of employees of railroads or of employees of any person, firm or corporation. Mr. Wysor: Mr. President, I desire to offer this amendment to the proposed sub- stitute. In the first part of the last line on the first page, strike out the words "shall be no defence to an action" and insert "shall not of itself bar a recovery," and at the foot of the ordinance offered by the chairman of the committee I desire to add this language: "Nothing in this section shall impair the doctrine of contributory negli- gence." I wish to say to the Convention that I do not agree with the chairman in the posi- tion he has taken. He says he does not voice the views of the committee at all, and he is correct in that. He has offered a new provision in its wording to the one which is found in the report; but there is only one difference in substance, and that is that he uses this language in the resolution offered by him: "Knowledge by any employee injured, of the defective or unsafe character or condition of any machinery, ways, appli- ances or structures, shall not be a defence to an action for an injury caused thereby." ' In the original report, it reads as I have amended thus: Knowledge by any such employee injured of the defective or unsafe character or condition of any machinery, ways, appliances or structures, shall not of itself bar a recovery for an injury caused thereby. As a rule, I have very great respect for the opinion of the chairman of the com- mittee on questions of this kind, but his views on this particular question have no vveight with me, and I should say they should have no weight with the Convention, because he has occupied at least half a dozen different positions on It. We had that very question up before the Committee on Corporations, and it was argued time and again before the committee, and we finally adopted the provision which I am now asking the Convention to adopt. I know the chairman's views have Deen different from the views he has voiced here to the Convention, and I do not think they are entitled to much weight. I know further that he made this change not by the recom- mendation of his committee, but by the direction and influence of others who were associated with him in trying to get this measure through. I am as much interested in the employees of railroads as anybody. I have been interested in this measure from the beginning and have advocated it. I advocated it before the Committee of the Whole in a speech. It was adopted iu its present form by the Committee on Corporations. It was adopted by the Com- mittee of the Whole, but when you give some men an ell they are certain to try to take a rod, and that is what is the matter now. Men who want drastic provisions against corporations will not stop at getting a fair provision, but when they see an opportunity to get something that is unfair, they will take that position. What are they asking you to establish in the amendment that the chairman has offered. That knowledge of defective machinery shall be no defense to an action; that when a man sues a railroad company for an injury, the fact that he knew that the implement he used was defective shall not be taken into consideration at all in a defense; in other words, if I am an employee of a railroad company, I may go and DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGINIA. 2837 use machinery that no prudent man would use, and when it would be my duty not to use it, but to report it to the company; and if I am injured, the fact that I knew of that defective machinery will be no defense to the company. I submit that we only need to state that doctrine to show it is very unjust to the railroad company, and I certainly hope the committee will retain the language which we adopted in the Committee on Corporations, and that the Committee of the Whole adopted, which says that knowledge of itself shall not bar recovery. That means that you may take into consideration other things, that the mere fact that the employee knew the machinery was defective and used it alone shall not prevent a recovery, but if he used it negligently, if he used it when he ought not to have used it, if he used it when no prudent man would have used it, you may take all those facts together in con- nection with his knowledge of defective machinery and may prevent a recovery for an injury, sustained by him, and you can readily preceive that there will be circumstances where he ought not to recover where he uses defective machinery. Why, the railroad companies have rules that men must not use defective mach- inery. I recall the rule now in the book of rules of the Norfolk and Western Rail- road Company which provides that when machinery is defective, they must report it before using. Well, under this substitute an employee could go on and use it, and not report it, and the fact that he had knowledge of it might not be any defense whatever to an action brought by him against the company for recovery. Take this decision that the chairman has read. The language we have in the report which has been adopted by the Committee of the Whole is copied from the opinion of the judge in that case, construing the language of the Mississippi Constitu- tion. The Mississippi Constitution used the same language. I believe, that the gentle- man has used in this new resolution, but the Mississippi court, in construing that lan- guage said: The effect of this is not to destroy the defense of contributory negligence by a rail- road company, but merely to abrogate the previously existing rule that knowledge by an employee of the defective or unsafe character or condition of the machinery, ways, or appliances shall not of itself bar a recovery. This is the language of the opinion cited by Mr. Braxton construing the language of the Mississippi Constitution which was put in our original report; and notwith- standing that the gentlemen from Staunton wishes to get rid of the language of the Mississippi court construing its Constitution, and to throw our courts upon a construction of the language. Why do that? How do we know the Virginia courts, in construing the language he has here, will follow the Mississippi courts? In the amendment offered by me to his substitute I do not take the language of the Mississippi Constitu- tion, but take the language of the Supreme Court of Mississippi, in construing the language of the Mississippi Constitution, which is to the effect that knowledge of de- fective machinery shall not of itself bar a recovery. That is the language we have put in the report, and the decision he quotes sustains it. Why should he wish to put in the Constitution a thing that will need construction by our Supreme Court? What is his reason for it? Why, he says the Supreme Court of Virginia will follow the con- struction put upon the language by the Supreme Court of Mississippi. Well then, why not take the construction of the Supreme Court of Mississippi and be done with it. He says our court will follow the Mississippi court. The Mississippi court has con- strued it, and instead of taking the language which it has construed, take its construc- tion and put it in your Constitution, and then we will have no difficulty about it. Then our Supreme Court will not have to resort to a Mississippi court for a precedent. Mr. Green: Would you be willing to add to your amendment "such knowledge shall not be construed to be contributory negligence"? You and I seem to be seeking the same object. It might be said that knowledge could be construed to be contributory negligence, in itself. All I want to do is to provide that the court cannot so construe 2838 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. it. I want to know whether you will add the language: "Such knowledge in itself shall not be construed to be contributory knowledge." Mr. Wysor: I think the amendment I have offered meets the case. I do not think it is necessary to put in the Constitution that it should not be construed to mean con- tributory negligence, because there are circumstances where it might be. Suppose the machinery is so defective that no prudent man would use it, and then a servant did use it. It would be negligence itself which might bar a recovery. I think the language ought to be left in the article just as we orginally had it, that knowledge of defective machinery shall not of itself bar recovery. There must be something else than mere knowledge. There must be something in the use of that machinery which is negli- gence. The fact that he knows it and uses it will not bar a recovery, but if he sees he cannot use the machinery with prudence, and knows that if he does use it, in all prob- ability he will be injured,and he does use it, the master is not responsible to him in law or in justice. We have already gone a long way for the employees in this article. We have also provided that the Legislature may enlarge these rights if it sees proper to do so. There is a stopping point in the modification of the doctrine of fellow ser- vant. We ought to put a provision in the Constitution about the meaning of which we are doubtful. We ought to express our meaning clearly and unmistakably, so that our language will not need construction. Employees do not want you to adopt doubtful provisions. Both employees and employer want to know their rights clearly. The fact that we are dealing with corporations does not influence me one way or the other. I want to do what is right and proper about it. I want to get a proper pro- vision in the Constitution — one that is just to employer and employee. I am hoarse to-day and have a sore throat, otherwise I would argue the question more at length. Mr. Meredith: Mr. President and gentlemen of the Convention, I hope it will be the wish of the Convention to adopt the substitute that is offered by the chairman in place of the one that was reported by the Committee of the Whole. The chairman has been somewhat censured by the gentleman who has just taken his seat (Mr. Wysor) for his change of position and change of views in regard to it. I think it is but fair to the chairman to say that in drafting this section he was very much guided by the sug- gestions made by those of us who claim to be very much interested in this question and have been so interested for years, deeming it only a fair and proper relief to give to this class of citizens. He somewhat followed our suggestions; but the committee undertook to change the language of the Mississippi Constitution as to the class of employees to whom it is to be given, and the change of the language affected a change in the sense. For instance, if you will take your report you will find that it gives them the same rights and remedies as are allowed " by law to other persons, not employees or passengers." It allows the same rights and remedies as to running a locomotive, as to changing a switch, allowed by law to other persons not employees or passengers. Now, what rights are allowed by law to a person not an employee as to such work? So you see the language used was very unfortunate. Under those circumstances we went to the committee and asked them to make a change, so as to make it clear as to what was intended by the language used. I do not twit anybody with a change of views, especially when it is simply a change of language; but my friend from Pulaski (Mr. Wysor) has accepted a change of some dozen or more lines, down to the word " knowledge," and very wisely accepted it. Mr. Wysor: It was only a change in language. Mr. Meredith: Of course it was a change of language, and this is a change of language, and an intentional change of language, I presume; but the question is what is the effect of the change of language. I do not propose to twit him with change of position, because any sensible man will change his position, even as to ideas and senti- ments, when it is proper to do so. Let us see what is given by the substitute. My friend speaks as if it were a very DEBATES OF THE COXSTITUTIOXAL COXYEXIIOX OE VIRGIXIA. 2839 liberal thing to give to this class of people. Let us see whether that is so. This is claimed to be a democratic country. England has a monarchical goYernment; and 3'et in England to-day all classes of employees — it is not confined to a few of one class like railroad employees — all classes of employees in England to-day have far gi^eater pro- tection as to matters of this kind than is given now in democratic America. Yet England is said to be the birthplace of this doctrine of fellow servants. Indeed, under the late English act the doctrine of contributory negligence is abolished in certain cases. That is surprising to you. What do we ask in this substitute? AYe do not ask for anything of that kind. Y'e do not ask for any extreme doctrine of that kind. Here in democratic America we are willing to get what you gentlemen are willing to give us, and what we have been fight- ing for for years before the Legislature. At every session we have been met by the attorneys for the railroads insisting that these people should not be protected in their lives and limbs; holding that the property of the railroad should be protected in pre- ference to the lives and limbs of our fellow-citizens. You may smooth it over by calling it a contract, if you choose. You may use soft language. You may undertake to express it so as to give some salve for your own consciences, but the question is a ques- tion of life and limb on one side and property on the other. That is the bald, naked fact. We are asking for protection to-day, as far as we can get it. I say this does not go as far as we would like to have it go. We are simply demanding justice for these people. Xow, let us come down to the question at issue. If you have in a Constitution language which has been construed by the Supreme Court of a State, will you take the language that has been construed as a safe guide or, will you take the language of the court, which is new language, and which can be differently construed? That is the proposition before us. We are asking you to accept language that has been construed. On the other hand, these gentlemen are asking you to take the language of a court, in different words, which has not been con- strued. V\'e say that if you want safety, if you want what you claim you v-ant, if jo\i want something by which you can be guided, take the language that has been con- strued in preference to that which has not been construed. Is not that a fair proposi- tion to anybodj' who wants clearness and safety and a guide? That is the proposition we make to you. We say this language, which we offer you here to-day, is in the Constitution of Mississippi and has been construed by the Supreme Court of that State. ^ly friend from Pulaski (Mr. Wysor) says that as it has been construed that way, we should take the words used in so construing, and not the language that has been construed. But the language of construction has never itself been construed. We do not know what will be the construction put upon that language. So we say. he is undertaking to put in language here, the exact meaning of which we do not know. He is asking us to accept new language, when we tender you old language — construed language — accepted language. T\Tiat do you lose by it? Mr. Thorn: Is the language construing the language in the Mississippi article clear — the language used by the Supreme Court? Mr. Meredith: The language used in the Constitution of Mississippi is clear to me, and the language used in the opinion of the court is clear to me; but the language in the opinion of the court of Mississippi cannot be clear to you, if the language in the Constitution of ^Mississippi is not clear to you. That is the difference, 'Mr. Thom: If the committee had to refer to the construction given by the Supreme Court of ^Mississippi to make clear the language of the Mississippi Constitution whicli of the two is more reliable in the way of clearness? :\Ir. Meredith: I have never said it was necessary to refer to the opinion of the court of Mississippi in order to get clearness; but I have said that the language is clear, and that we add to the clearness of the language, the safety of construction. 28^0 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Where can you give me a situation as strong as that. I put clearness plus construc- tion against your simple clearness, as you call it. Which is the better to take? That is what we are asking for here, that you will take language that has been construed, clear language, and language that has been accepted, the full force and effect of which has been defined nd stated exactly. Suppose we take the suggestion made by the gentleman from Pulaski that it shall not be " a bar." I am not going to undertake to criticise the courts, but surely we believe, and we have the right to believe that the tendency of the judicial mind, rightly or wrongly, is against the rights of the employees, as we claim them to be. I say, without criticising the courts, I am justified in saying, that the judicial mind of this country is against the rights of these people, as we regard them. They say they have no right to the extent to which we claimed them. We say that the judicial constructions from the Supreme Court of the United States down, all the way through all the States, are against any liberality for the benefit of this class of people. Now, gentlfemen, you have that in favor of the corporations. My friend from Pu- laski has that clear fact, which he must recognize, that the tendency of the courts is to so construe language, as to limit the rights and remedies which these people have. They have from time to time differentiated away the rights these people have to such an extent, that to-day those of us who have studied this matter with some care, find it hard to tell what is meant by an assumed risk, and how far the doctrine of assumed risk applies, and what is meant by a safe place, and how long the place has to be safe, and when it may be rendered unsafe, and by whom it may be so changed. These cross-currents of decisions have come in to destroy the main stream of justice to such an extent that there is hardly one of us to-day who can say what is the right of a man upon whom the doctrine of assumed risks is applied, and to whom the doctrine of contributory negligence is applied. Those of you who are not lawyers, I ask you to bear in mind this fact: There are in the decisions of the courts two principles, which are recognized as lines of defence by these corporations in suits brought for personal injuries. One is what is called assumed risks; the other what is called "contributory negligence." The as- sumed risk amounts to this, that where a man sees a piece of machinery is defective and he still goes to work, or where he sees the occupation in which he is engaged is dangerous and he continues to work, he assumes the risk, that is naturally attendant upon it, and assumes all the risks that may come from defects that are patent and obvious. That is the doctrine of assumed risk. On the other hand, the doctrine of contributory negligence is th'at where a man has been injured by the negligence of an employee, if that injury has been assisted — not caused, but if it has been assisted — by his own want of care, by the lack of per- formance of his own duties, by what we call his negligence, that is contributory negli- gence; that is, he has assisted or contributed to that extent. Those are the two doc- trines. They are kept separate by the judges, who recognize those distinctions, but they are not always kept clear by some of the judges. They speak of acts of assumed risk as being contributory negligence. They sometimes^ confound these two doctrines, and it is our desire that they shall keep these things separate. The gentleman from Pulaski has said that a man with full knowledge of a piece of defective machinery can go on and work under this proposed substitute, and if he gets injured, although he does not tell the master about the defect, he can recover. By no means; and the gentleman cannot sustain that position. In opposition to it I offer the decision of the Supreme Court of Mississippi. If he is not willing to accept that, I will offer him his own knowledge of these principles.. Does he not know that it is the duty of a man, and that the rules, to which he refers, require, that when he is acquainted with the fact that a piece of machinery is in bad order, or defective, he must report it? What is negligence? Negligence is nothing but the failure to perform a duty: DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF YIPvGIXIA. 28^1 and when that man fails to perform his duty of giving notice, and calling attention to the defect, and giving the master an opportunity to remedy it, he is guilty of what is called contributory negligence. He fails in his duty, he is guilty of an act of negli- gence, and he contributes to the accident. So we see that the Mississippi decision is, according to what i;^ w.»ll recognized in the profession, that when a man is guilty of an act of negligence himself, he can be held responsible for it, and that the master is released thereby. I would be willing to accept the, amendment made by the gentleman from Norfolk (Mr. Thom) but for the fact that I know the courts do confound the doctrine of contributory negligence in their decisions, with the doctrine of assumed risks, and that the danger would be that the courts would say, if its tendency was at all against us, "You have under- taken to give relief here; but you have destroyed it, because the continuance of the performance of the duty with knowledge of the effect is contributory negligence." We say mere knowledge shall not be a defence. Why? Does not every one of us know that if you put a man in a position of danger, if you give him a defective piece of machinery with which to work, and behind them there is the necessity of his family support he must, he will go on with his work? If the cry of the child made the great orator of England become the orator he was, the cry of the child behind him makes the humble laborer give up his life. Is it fair that you should put a man in that situation? Is it fair that you should take advantage of the necessi- ties of human nature? Is it fair that you should take advantage of the necessities of human nature? Is it fair that you should encourage brutality and inhumanity in man, or is it fair that you should say to the master, "You, who furnish the machinery, you who can give better machinery, you whose duty it is to furnish better machinery shall not give this man bad machinery simply to save your own pocketbook, and then when he gets hurt by this injustice of yours, you shall not turn around, and say to him, 'You saw it, and you had the opportunity I gave you; the opportunity to go out, even if it should be to starvation.' " That is the doctrine, gentlemen, we are opposing here to-day — a doctrine that we submit ought never to have been recognized in the law. In Massachusetts, which is said to have been the home of this doctrine, in England, which is also said to have been the birthplace of it in South Carolina, to which it has also been ascribed, all three of them have refused to recognize any longer this doctrine, except as one to be discountenanced, if not denounced. All I ask of you gentlemen is to say that knowl- edge shall not be a defence, but that the fact, that it is not a defence as an assumed risk, does not affect the doctrine of contiibutory negligence, because when the doc- trine of contributor}^ negligence comes in there is an act of the employee himself, which is outside and additional to mere knowledge. The doctrine of contributory negligence cannot be affected by this substitute. It was not affected by these words in Mississippi. Under such circumstances, gentlem.en, ^-ou are giving to these people some re- lief at least; although not as much as we think you ought to give them. You are putting it in your Constitution, just as properly and with just as high a motive, as vrhen you say a man's property shall not be taken for public purposes without due compensation. Surely, if it is necessary to put in the Constitution some provision to protect a man's property, if you find the whole tendency or doctrine of the courts Is to allow a man's life to be taken without due compensation, it is necessary to have a Constitutional protection to stop that evil also. We ask that you will accept the language that has been offered here by the chairman of the committee, because it fairly and clearly defines the rights of these people. r^Ir. Thom: Mr. President, the policy as expressed in this modification of the fellow-servant doctrine is one which I fully recognize this Convention has accepted In doing this the Convention has departed greatly from the original principles which govern the relations between man and man. The great principle of law and justice 179 — Const. Deb. 2843 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. is that no man is responsible except for wrongs committed by himself. He is not in law or in justice responsible for ^^'rongs committed by someone else. That funda- mental principle is in a measure recognized in committee because they have made the modification of it only partially applicable. It still remains the law of this land that I am not responsible for somebodys else's wrong. It still remains the law of Virginia that the farmer is not responsible for the negligence of one of his em- ployees as against another. It still remains the law that the manufacturer is not re- sponsible for a wrong done by one of his employees to another. It still remains the Jaw that the car builder is not responsible for the wrong done by one of his em- ployees to another. In other words the fundamental doctrine of justice and of right, that a man is responsible only for his own wrongs, finds its exception and its modifi- cation only when you are dealing with railroad companies. Mr. Meredith: Does the gentleman announce the fundamental doctrine that a man is. responsible only for his own wrong, and not for that of an agent? Mr. Thom: I do. Mr. Meredith: That is a fundamental doctrine? Mr. Thom: Yes, sir, and it i{5 so laid down by the highest authorities in law in this country, recognized as universally applicable and as finding its exceptions only where a statute or a Constitution comes and takes that fundamental right away. I do not refer to that principle, Mr. President, for the purpose of attempting to prevent the assertion of that exception in this Constitution. I fully recognize it is the purpose of this Convention to make that exception, but I refer td it as a foundation principle which we should bear in mind and which should guide us as to the direction which this exception should intelligently take in this article, which we shall ultimately agree upon. Starting, then, with the idea universally recognized by the writers on law that a man is responsible for his own wrong, that a company is responsible only for its own wrong, and recognizing that we are about to make an exception to that law and that principle as applied to railroads, let us find out how far that exception should go. The proposition on which gentlemen are deboting on this floor is one about which they do not differ. On the one side the gentleman from Pulaski (Mr. Wysor) presents the proposition that the doctrine of contributory negligence should not be interfered with, and that that fact should be expressed upon the face of the article. The gentlemen of the other side take the position that the doctrine of contributory negligence should not be interfered with, but that proposition should not be expressed upon the face of the article, and there is the issue: Whether or not you shall express upon that article exactly what you all mean, or whether you shall leave that as a question of judicial construction and interpretation. My friend from Augusta (Mr. Braxton) and my friend from Richmond (Mr. Mere- dith) argue against expressing on the face of the Constitution the proposition that the defence of contributory negligence shall not be considered as Impaired. My friend from Pulaski argues in favor of putting upon your Constitution exactly what you all say upon the floor it means. Now, what is the objection to pursuing the course suggested by the gentleman from Pulaski? Is it best in drawing your Constitution to express upon its face exactly what it is agreed on all hands it should mean, or is it best to leave that in the region of litigation and of controversy? No lawyer of experience can for a moment sustain the position that he can be certain as to the result of legal interpretation. I beg to call your attention to a most distinct expression of this uncertainty found- in the recent judicial history of this country. It was alluded to a moment ago by my friend from Augusta, but I wish to call your attention to it a little more in detail. The State of Kentucky adopted into its law the exact language of the Interstate Commerce law. The Interstate Commerce law had been construed time after time DEBATES OE THE COXSTITrTIOXAL COXYEXTIOX OE TERGIXIA. 2843 "by the Supreme Court of the United States, which was the court or the jurisdiction vrhich gave it birth. That court had decided that the words contained in a statute of the United States in reference to the long and short haul, which permitted a dif- ference of rates under substantially different circumstances and conditions, a lower rate for a longer distance under substantially different circumstances and conditions, as embracing competition and making competition, and as competition making sub- stantially different circumstances and conditions. Now. with that interpretation by the Supreme Court of the United States, the State of Kentucky adopted the exact language of the Interstate Commerce law, and its court construed this adopted statute of the United States as excluding competition instead of including competition, as held by the Supreme Court of the United States. That decision of the Supreme Court of Kentucky went again to the Supreme Court of the United States, and although it was in the direct teeth of its previous construction of its own statute, th.e Stipreme Court held itself to be bound by the construction of the Kentucky court, and is now in the position of construing that language at one time as including competition, but, as used in the Kentucky Constitution, as excluding competition. With that fact staring us in the face, with the uncertainty of our being able to forecast what a court may determine, how can it be safely relied on that the Vir- ginia Court of Appeals will follow the ^vlississippi Court of Appeals in making this interpretation, and if it does not, where will we be? If the Supreme Court of our State says it is not bound by the construction given to this law in the State of Mississippi, and construes it as destroying the doctrine of contributory negligence, where will my friend from Richmond and my friend from Augusta be? They will have put into the State a doctrine which they are repudiat- ing upon the floor and which they are declaring to be unjust.. The language suggested in this amendment merely writes upon the face of the law the interpretation which the Mississippi court has given it. It merely carries out what my friend from Augusta is here saying is the proper policy in regard to this matter. The very first sentence he reads from this decision is as follows: Thie effect of this is not to destroy the defense of contributory negligence by a rail- road company, but merely to abrogate the previously existing rule that knowledge by an employee of the defective or unsafe character or condition of the machinery, ways, or appliances shall not of itself bar a recovery. That is what is intended to be put in this law. and my friend from Richmond rises upon this floor and deliberately argues before this intelligent assembly that it is safer to put into the Constittition of this State language which required interpretation in Mississippi, which was argued for and against before the Supreme Court of that State, which one set of people was contending meant one thing and another set of people was contending meant another thing, and with the power still in our court to take either horn of that dilemma. Now. gentlemen, is it the proper and just and wise course on the part of the Con- vention to take language which was uncertain in :\Iississippi, which was once put in the region of legal controversy there, which required deliverance of their Supreme Court to interpret, and to place it here in the laws of A'irginia, where it will still be open to litigation, to legal controversy and dispute, or is it best to define it here upon the face of this article and to say that nothing that we do here is intended to interfere with the principles of contributory negligence? That is the simple ques- tion. Vv'e are all agreed that it should not interfere with the defense of contributory negligence. V^e all say that that would be unjust. It reduces itself at last to the simple question of whether it is best for us to write out what we mean on the face of our Constitution, or shall we depend upon the uncertain reliance of our Court of Appeals following the doctrine announced by the Supreme Court of Mississippi? Mr. Harrison: Has not our Court of Appeals held that knowledge of itself is 2844 DEBATES OF THE CONSTITUTIONAL CONVENTION OP VIRGINIA. contributory negligence? If you put that language in, then you contradict in terms what you have said above, that that knowledge itself shall not bar recovery. Mr. Thorn: By no means. My friend here has argued that it is a confusion of the two ideas of assumed risk and contributory negligence; that when you say knowl- edge shall not of itself bar recovery, but this shall not interfere with contributory negligence, of course it only makes that distinction clear; but I would be v/illing to meet the very point suggested by my friend. I would be willing to say that knowledge offered by itself should not be construed to be contributory negligence. What I want is to make this matter clear upon the fact of the Constitution, and for us not to rely upon a mere decision of another State; because what my friend from Winchester (Mr. Harrison) implies by his (iuestion is met by the position of the chairman of the committee that what he means by what is written here, is that the effect is not to destroy the defense of contributory negligence. If that be true then, this same contradiction created by the decisions that my friend referred to in Virginia and by the language of this Constitution, exists whether you leave it in is present uncertain and ambiguous form, or whether you put it in the clear language suggested by my friend from Pulaski, because if the interpretation of the language already used is not to impair the doctrine of contributory negligence, and the language already used is that knowledge shall not be a defense, then there is your contradiction just as clearly as if it were expressed upon the face of the article. What I am anxious to do is to have mere knowledge not contributory negligence, and that the doctrine of contributory negligence shall still exist in the State of Virginia. Mr. Meredith: You have repeated that idea tv^^ice, that you would be willing to put in there — Mr. Thorn: I am glad my friend recognizes it, because he seldom thinks I agree with any idea suggested, and I had been in hope he had not understood it. Mr. Meredith: I understood it, but I did not agree with you. What I understood you to say twice was that you would be willing to put in there that knowledge shall not be contributory negligence. Mr. Thom: Not by itself. Mr. Meredith: And then at the bottom: "Nothing in this section shall impair the doctrine of contributory negligence." Then the court would say that knowledge Is an assumed risk. You have excluded it as a doctrine of contributory negligence, T3ut you leave it in as assumed risk. We had better stick to the language we have. The suggestions you make are too dangerous. Mr. Thom: Perhaps so, and I am arguing for the other position, where you will separate the doctrine of assumed risk and the doctrine of contributory negligence, and have it declared upon the face of this Constitution that the doctrine of contribu- tory negligence is not destroyed. Did I not understand my friend from Richmond to say that is right? Mr. Meredith: Undoubtedly; that it is not destroyed. Mr. Thom: Exactly. My friend from Richmond then admits that the doctrine of contributory negligence ought not to be destroyed, and he says it is not destroyed. Mr. Meredith: Provided, of course, the court does not undertake to confuse an assumed risk and contributory negligence. We do not desire the doctrine of con- tributory negligence abolished. Mr. Thom: Just there, to divert one moment, I want to ask the gentleman why it is so safe to rely on the distinctions to be drawn by a court with reference to whether or not they will follow the doctrine of Mississippi, when he is accusing the same courts of mixing these two doctrines of assumed risk and contributory negli- gence. Why leave us to a decision of a court upon a litigated and disputed question? Why relegate this subject to a litigated and confused and uncertain condition in the decision of a court when we can take our pen now and write out what we mean in the Constitution itself? DEBATES OF THE COXSTITUTIOXAL COXTEXTIOX OF VIEGIXIA. 2845 Mr. Meredith: I simply say you misunderstood me and misstated me, because you said I had said the Mississippi court had misconstrued the doctrine. I have not said that. I have said the Mississippi court put a proper construction on the language that was very clear. Mr. Thorn: I have never said you said the Mississippi court misconstrued the doctrine. I say what you have said is that the courts — and I assume you mean the courts of Virginia — have mixed the doctrine of assumed risk and contributory negli- gence; and if I am mistaken in that being the understanding of the gentleman's re- marks, I wish he would correct me. If that be true, if the Court of Appeals of Virginia or any other court has confused those doctrines, my proposition is it is not safe in a matter of this kind simply to leave this great question to judicial determination, when we can now write out an article about which there can be no ambiguity. If these gentlemen mean that, let us say it. Let us be brave enough to interpret it and brave enough to write into this Constitution what we mean. If we do not mean it, then let us fight out the question on the principle of understanding that they mean one thing and we mean another, but do not let us, as lawyers capable of making an intelligent draft of this section, dispute over whether we shall put into the Constituion vrhat we mean or leave it in. the region of judicial interpretation. I hope the amendment of the gentleman from Pulaski will be adopted. Mr. George K. Anderson: Mr. President and gentlemen, I hope the amendment offered by my friend from Pulaski (Mr. Wysor) will not prevail. This matter has been under discussion and consideration by the committee having it in charge for a long time. It has not only engaged the attention of that committee and all of its members, but it has engaged the attention also of a number of gentlemen, members of this body, and deeply interested in this question. My friend from Pulaski proposes to strike out the language " shall be no defense " and insert " shall be no bar," and the question is what is the difference between those two expressions. Mr. R. Walton Moore: Before my friend enters upon the discussion, I am not a member of the committee to which he has alluded, and I wish to ask whether he is able to state hov.- the committee stands upon these two competing propositions, both of which emanate from the committee. :Mr. William A. Anderson: As I understand, the committee did not prepare this substitute. It was prepared by one member of the committee. Mr. R. Walton Moore: I understood the gentleman from Alleghany (Mr. Ander- son) to appeal to the Convention to sustain the work of the committee. It struck me that he was assuming that the work of the committee was represented by the resolu- tion that the chairman of the committee has offered as a substitute this morning. Then it became vital to inquire what is the work of the committee, whether it is the original report, or whether it is this substitute resolution. Mr. George K. Anderson: I understand, Mr. President that the majority of the members of the committee were in favor of the use of the language employed by the Constitution of Mississippi, because that language has been construed by the Supreme Court of the State of Mississippi, and meant exactly what not only every member of the committee but the opponents of this measure think it ought to mean. Mr. President, however that may be, I am satisfied that those gentlemen, if they will carefully consider this question, will come to the conclusion that there is here practically a distinction without a difference and that the language which it Is safest for us to use in this Constitution is the language which has been construed by the court. My friend from Russell (Mr. Stuart) asked me, while in my seat, what was meant by the language " shall be no defence," and I should like to have the attention of the gentlemen to this question, because it is one of very great importance. If this employers' liability bill means anything, if it is to mean anything to the employes ot 2846 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. the railroads of this Commonwealth, it is enough to demand your consideration and protection. What does this word "defence" mean? Does it mean that when an action is brought by an employe against a railroad company no evidence can be introduced to the effect that the injured employe had knowledge? It has been so contended, but it does not mean that at all. It simply means, as the Supreme Court of Mississippi says it means, that it shall be no bar to a recovery, but that the court may consider the fact of knowledge as one element in establishing the fact of contributory negligence, which is a complete defence in the hands of the defendant; and that is the entire difference between the two expressions. I ask any lawyer in this body, has knowledge ever been a bar in Virginia, as we speak of a bar? Does knowledge on the part of the plaintiff in an action for damages against the master bar recovery like the statute of limitations, when pleaded? Is it a complete defence in itself? It has never been so held in this State or any- where else that I know of. Then if it is not a bar, vv^hat do you mean by using the language " shall not be a bar." What will our courts say? The Supreme Court of Appeals of Virginia, in construing this section, if we write it as my friend from Pulaski would have us write it, would say that the Constitutional Convention of Vir- ginia did not intend to adopt the Mississippi construction of this law, but intended to leave the doctrine of knowledge just where it is to-day, to-wit, an assumed risk that meets the employe on the very threshold of his case; and the court will not reacfi into or inquire into the field of contributory negligence at all. Why, contributory :negligence, Mr. President, is a defence to be set up by the railroad company. When ah employe is hurt, under the doctrine of Jackson's case, laid down by our Supreme Court, the employe must allege and prove that he did not have knowledge, as an affirmative proposition. Mr. Wysor: If you are opposed to the language which I have offered as an amendment to the chairman's present ordinance, why did you vote for my language in the Committee of the Whole? When you voted in Committee of the Whole you voted for the section I am offering. Mr. George K. Anderson: There was no amendment offered in Committee of the Whole, and I will say to my friend, and it will be no breach of confidence to say so, that it was understood between the friends of the measure that we would have to discuss this matter, that we would offer no amendment, but would wait until the matter came up in the Convention. That is my reply to my friend on that point. Now, Mr. President and gentlemen, I say there is not a lawyer on this floor who does not believe the construction put by the State of Mississippi upon the language used in the Constitution of Mississippi is the fair and proper construction. We offer you the language of the Mississippi Constitution with the court's construction upon it. We say upon this floor that is what we want, and that is what we think the lan- guage means; and if the Convention adopts it, it adopts that language as construed by the Supreme Court of Mississippi. Under those circumstances, can it be supposed for a minute that the Supreme Court of this State will adopt any other construction? Put if you deviate from the language of the Mississippi Constitution, then this de- cision will not be worth a nickel. The Court will not feel itself bound by it, even as persuasive. It will say you have not adopted the language of the Mississippi Con- stitution, and this case is not applicable to it. We ask you, therefore, to adopt the language which has already been construed and about which there can be no dispute. I want now to call your attention to some significant figures. My friend from Norfolk (Mr. Thom) says it is a fundamental principle that a man is responsible only for his own acts. My friend from Richmond (Mr. Meredith) seems to question that as a fundamental principle. I do not. Originally a man was only responsible for his own acts; but with progress, men were held responsible for the acts of their servants, and out of that grew the doctrine of "respondeat superior." DEBATES OF THE COivrSTITUTIOXAL COXVEXTIOJ^ OF VIRGINIA. 2847 Then the further doctrine grew up that a man was not responsible to his servant for the negligence of another servant, and that was Priestly vs. Fowler. Enlarged and great numbers of men were engaged in the service of one common master the friends of an enlightened public policy put in force the doctrine of fellow-servant, and the liability of the master for the acts of a fellow-servant. At first it was held that if a servant occupied a superior position to the servant injured, the master should respond. I say in the beginning that began to be the doctrine, and it was the doctrine in Virginia up to twelve years ago, and that as to a servant in a different department, not in touch, a perfect stranger to the servant injured, the master should be responsible for his carelessness and his negligence. And so the doctrine has grown from year to year until some few years ago, in this Stale, our Supreme Court savv^ fit to take a step backwards, over fifty years, and iv establish as a part of our Virginia law the doctrine of Priestly vs. Fowler. ^^^ow, let us see why an exception should be made against railroads in these cases. My friend from Norfolk says the doctrine will remain the same as to farmers, the doc- trine will remain the same as to car builders, the doctrine will remain the same as to all other classes of people except railroads. Why. Surely there is some reason for this. The Supreme Court of the United States says it is lawful and fair and right. Why? I vrill tell you. Year before last, gentlemen, there were employed in this country nearly one million men by the railroad corporations of this country, from president down, including officers and agents and servants in all capacities in all the departments, and one out of every twenty-five of them v/as hurt or killed. ] may as well be accurate. I have the exact figures, and I am giving these figures not bec-^use I have anything against railroad companies; they have always been very good to me, but I am very much interested in the great army of employes who are working for the railroad companies. I said that in 188 there were nearly a million. To be exact, in 1899 there were 9l'S,!»24 employees of railroads in this country. The number killed and injured was 36,033 that year, 1 in 26. Do they need protection? In 1896, v/hich was the j^ear, I believe, in which the case of Railroad Company against Houchins was decided there were 4,469 miles of railroad operated in the State of Virginia, and there were 784 people killed and injured, 1 for every 5.7 miles of railroad operated in Virginia. In 1897 there were 4,500 miles of railroad and 966 people were killed and injured, or 1 for every 4.6 miles. Notice the increase. In 1898 there v/ere 4,555 miles of railroad and 1,072 people killed and injured, or 1 for every 4 1-3 miles of road. In 1899 there were 4,589 miles of road, and 1,261 people were killed and injured, or 1 for every 3.7 miles. In 1900 there were 4,700 miles of road, and 1,610 people killed and injured, or 1 for every 2.9 miles. If this thing keeps on, they will kill or hurt one next year for every mile. There- fore I say an enlightened public opinion demands that there should be some legisla- tion upon this subject to require of the railroad companies a greater degree of care than they have exercised heretofore towards these employees; and all this measure does is, not to abolish contributory negligence, but to re-establish the doctrine in Vir- ginia as it was established some twelve years ago, and that is all. I hope the Convention will not adopt the amendment offered by my friend from Pulaski, which I believe will have the effect of allowing our courts in this Common- wealth to say that knowledge on the part of an employee of a defect is an assumed risk in the future, as it is now; and I believe our courts will say it if you use the language "shall not be a bar," because our courts will say it is not a bar to-day, it never has been a bar, the Constitutional Convention knew it was not a bar, and therefore the Constitutional Convention did not intend to interfere with the doctrine of assumed risk. 2848 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Our purpose is to abolish the doctrine of assumed risk in this case where the employee has knowledge — abolish it as the doctrine of assumed risk and allow the railroad company to set it up as a doctrine of contributory negligence. As my friend from Richmond has observed, the courts have, frequently confounded the doctrines of assumed risk and of contributory negligence; and I trust the Convention will vote down the amendment offered by the gentleman from Pulaski. Mr. Wysor: Mr. President, I will not detain the Convention but a moment. I am not in a condition for speaking. The gentleman from Richmond stated that I censured the chairman of the com- mittee. I do not think my remarks were subject to that construction. I do not mean to censure him at all. I simply stated he had taken different positions on the subject now before the Convention. As a rule I have great respect for his judgment, but when he goes first one vv^ay and then the other, such vacillation impairs the weight of his judgment. I am simply asking the Convention to do what the Committee on Corporations did. 1 say there is no question how the Committee on Corporations stood. Here is its report. The chairman when he offered his resolution did not pretend to say that his committee was for it. I like to agree with the chairman, but when the chairman abandons his committee the committee will abandon him. His committee had sup- ported him in making that report. He was for it. Why does he abandon his com- mittee? Now, gentlemen, the gentleman from Norfolk argued this m^atter very clearly to you. The provision in the Mississippi Constitution was of a character that needed construction. The court had to say what it meant. The Supreme Court of Mississippi said it meant that knowledge of defective machinery should not of itself bar a re- covery, and we took that language construing the Mississippi Constitution and put it in our report. Now, in order to go back to the Mississippi Constitution, which needs construction what do they tell you? They say when the Virginia courts come to construe it they will turn to the Mississippi decision and see what it means. Then why not put the language of the Mississippi court in the Constitution, and our courts will not have to turn to this Mississippi court decision to see what it means. It will have its meaning right there in the Constitution, but they want to adopt the lan- guage of the Mississippi Constitution and by an indirect method incorporate a de- cision of the Mississippi Supreme Court into our Constitution. We do not know that our Supreme Court will examine the Mississippi decision, or that it will be bound by it, if it does examine it, and if we put the language of the Supreme Court of Mississippi into the Constitution it is bound by the language because it is there in the Constitution. There is no construction about it. I submit we are only asking this Convention to stand by what it has previously done, and put this just provision in the Constitution. I say the language offered by the gentleman from Staunton (Mr. Braxton) means that knowledge of defective mach- inery shall be no defence at all. That is what it says. The Mississippi court has put a different construction upon it, but we cannot say that our court will put that same construction upon it. Mr. George K. Anderson: Do you think the Supreme Court of Virginia would put any other construction upon it when the Convention that makes the law has put that construction upon it? Mr. Wysor: I think that when I am going to make a provision to go into the Constitution, I am going to know what it means. I am not willing to put a provi- sion in the Constitution that needs construction. Mr. George K. Anderson: I wish to ask my friend whether the Supreme Court will not be called upon to construe the language he proposes to put in, "a bar." Mr. Wysor: No, sir; I think not. Mr. George K. Anderson: Will you tell this Convention what that word means? DEBATES OE THE COXSTITUTIOXAL COXYEXTIOX OF TIRGIXIA. 2849 Mr. Wysor: The provision means exactly what it says. I have argued that here at length, that it shall not of itself he a bar, but taken in connection with other facts and circumstances, might bar recovery. That is what it means. Mr. George K. Anderson: Why do you not put it in in that way? Mr. Wysor: There is no necessity to do it. YVe take it from the decision of the Mississippi court construing the language which you want to put in here. In other words, you put doubtful language in the Constitution. You' admit what that language means, and we take the meaning and put it in the Constitution instead of the lan- guage itself. Mr. George K. Anderson: You do not take ail of it. Mr. Wysor: That is exactly what we are doing. You v/ant to put doubtful lan- gruage in. "You say a court has construed it and construed it properly. Then we take the language of the court instead of the doubtful language of the Mississippi Consti- tution, which had to be construed before its meaning was ascertained. Now, gentlemen, are you going to do Vv'hat you have already done? That is what I want to know. Are you going back on the Committee on Corporations and on the Committee of the Whole. My amendment simply restores the original, which the Committee on Corporations adopted, and which the Committee of the Whole adopted, and which the chairman supported. I know his views have been in favor of it. Are we to follow the chairman? He is a good leader, but when a man goes one way and then wheels around the other way, and then back again, how are you going to keep up with him? I cannot keep up with him. I submit we ought to sustain the origi- nal report which is in effect the amendment I have offered. I think we ought also to put that second amendment in I have offered, that the doctrine of contributory negligence shall not be impaired. They admit it does not destroy contributory negligence. Well, why do they not say it in so many words? They do not give you any reason for not saying it. They simply get up and argue that this provision does not affect the question of contributory negligence. If it does not, then I submit to the Convention that it does no harm to say that it shall not impair that doctrine and leave no doubt or question whatever upon that subject. Before I close I want to say that I am as much in favor of getting a good article for the employees as anybody. This, as is well known, has been my position all the time. We have a good article and the Legislature can enlarge it if it sees proper, but I do not intend to go too far with the matter. I think other gentlemen are as patriotic, and just as I am, but I know that sometimes when men get started against corporations they will go just as far as possible. They have seen that the temper of this body was to support this report from beginning to end. Seeing how strong the sentiment was in favor of it, they thought they might get a more drastic provision ou this question of knowledge or defective machinery. The chairman, flushed with previous victories, which his committee aided in achieving, thinks he can carry any- thing before the body, and these gentlemen who are supporting him, believe the same, with their aid and help. I submit they ought to be turned down a little, and it will be good for them. Mr. Withers: We have heard a great deal about assumed risks, and contribu- tory negligence and a defense to an action. I want to submit to you gentlemen who are not lawyers, that the utmost that this language can mean is this: If I am em- ployed in the running of a railroad train, or in its physical construction, and I go to my employer and say, "Mr. Blank, this brake is out of fix," and Mr. Blank tells me, "You go ahead and work on it; we will fix it," and he does not fix it, my knowledge of that brake being out of fix shall not prevent my recovering for an injury against that railroad company if, after I have such knowledge, I use a proportionate care that keeps up with the rate of knowledge that I have; and that is common justice and common equity. I say, therefore, to you gentlemen who are not lawyers, all this talk about as- 2850 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. sumed risk is in regard to fine legal distinctions. We are considering giving justice to people who have not had it in this Commonwealth for many a long day; to the man who is turned loose upon the carelessness of any incompetent employee to lose his life or limb and to he maimed forever, if not killed; and we want to provide that whenever a man has knowledge of a defective machine or instrument with which he has to work, that knowledge shall not be a defense, provided that after he got that knowledge he used due and proper care, with the knowledge of the defect before him; but it, on the other hand, he does not use such car as that knowledge should make him use, then he is guilty of contributory negligence, and the corporation has its full defense. Now, carried out to its farthest extent, that is all these words may mean, by the farthest possible construction the court may give them, and our court has not seen fit to construe other than strictly the^remedies afforded an employee. One other point and I shall sit down. They say "If you mean this, why do you not say it"? Simply because when a clause in a bill or an act of a Constitutional oidinance has been construed, the proper thing in order to get that same construction is to copy the language of that clause, and not to copy the language of the opinion construing it. A change in language means a change in construction. An addition that this shall not be so and so will give the Court of Appeals the opportunity, should it be hostile to the measure, and I do not say it will, to confound and confuse and obliterate the difference between an assumed risk and contributory negligence, and practically nullify this knowledge clause of this provision. Every party in the State of Virginia has demanded that these people shall have relief. This Convention is practically unanimous, by three or four to one, that they should have a reasonable relief, and I submit to the Convention that because of the fact that this fight was not brought up in Committee of the Whole, it should not emasculate the protective provision of this measure by making it what it now is, not a bar to bringing an action — everybody knov/s we can bring it and the court says we can bring it — but when we get in the court its opinions practically preclude us from establishing a case under any declaration we can draw whereby the man can recover, if he has knowledge, no matter how careful -he has been, even if his case was more than proportioned to his knowledge of the defect. Mr. Braxton: Mr. President, I thank the Convention for indulging me to close this debate, and I will try and be as short as possible. The principal argument that seems to have brought to bear upon this question is that we are inconsistent. Consistency is a very good thing; but a man had better be right than be consistent. If we can improve this language; if we can put it in such form that it is beyond all doubt, it is the safest thing to do. I have tried to deal with great frankness in this r^atter. I have saif" to this Convention that if T hid to draw this without any guide I would not use the languaga now used in the substi- tute. I am free to say that, as an original proposition, I would prefer the language used in the amendment offered by my friend from Pulaski (Mr. Wysor). But there is the difficulty. That language has never yet been construed. In place of it the substitute now offers language which has been construed. In construing that lan- guage, the court has said it means, identically and exactly, the very thing we want it to mean, without a shade or shadow too much or too little. Now, sir, we might ex- haust ourselves for the balance of our lives in seeking for other language, and we could not find any that would mean any nearer the exact thing that we want it to mean than the Court of Mississippi says this does. I think everybody here agrees with me in that. I do not believe there is a man within the sound of my voice, who wants an employers' liability bill, that does not want it to mean the very thing that the Mississippi Court says it means. The only objection to the use of this language is that gentlemen say, if they had to construe it they might say it meant something different from what the Mississippi Court says it means, and that they have no assur- DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF YIEGIXIA. 2851 ance that our courts will construe it as the Mississippi Court did. In reply to that, gentlemen of the Convention, I submit to you that it is a canon of construction that has been recognized so long there is no doubt about it that a court of Virginia in construing this language, will give it the construction that the court of Mississippi gave it, whether that is the construction that they themselves, would have given it had the question arisen as res Integra. My friend from Norfolk cites you a case in Kentucky in which that rule seems to be departed from. I want to cite you a case in Virginia decided by the present court, within the last twelve months, in which it is laid down as the law of Virginia to-day, that when we adopt an enactment from an- other State vve adopt it with the construction that State has put upon it. I refer to the case of Norfolk and Western Railroad Company against the Old Dominion Bag- gage Transfer Company, decided Ijy our presen'c court in January, 1901. The ques- tion was as to how far cur court i.^ boimd by tho const'-uctlon put upon <-:]iactments taken from other States. It was c )nven(lfMl that the language did not mean what the opposite side contended it did mean. T!io opposite side says: It does not make any difference what you say about it, it is taken from the statutes and enactments of another country and it means v/hat that country has said it means. Now, let us see whether our court recognizes that principle as the law of this State. The court said: This law was originally passed by the Legislature in 1867 and has been continually in force until the present time. It was taken from and is in the words of Section 2 of the English Railway and Canal Traffic Act. 1874. The Legislature having taken from the English Act the language used in Section 3, of the act approved March 3, 1892, adopted therewith the construction placed upon that language by the English courts. In Doswell vs. Buchannan, 3rd Leigh, Carr J. said: It is admitted that when the construction of an English statute has been settled by a series of decisions and our Legislature enacts that statute in totidem verbis, the construction must be considered as adopted along with the statute." In Danville vs. Page, 25 Graft.. Judge Staples said: " It is not to be supposed that the Legislature incorporated into our lav/s an important statute of another State in ignorance of the interpretation given to it by the courts of that State. It must be presumed, rather, that the Legislature in adopting the precise phraseology, intended to adopt along with it the interpretation also." In Magnus vs. McClelland, 93rd Virginia. 786, Judge Keith said: "It is a familiar rule of construction that when a statute has been construed by the court and is then re- enacted by the Legislature, the construction given to it is presumed to be sanctioned by the Legislature and thenceforth becomes obligatory upon the court. This rule of construction has been applied by the supreme Court to the same section of the English traffic act now under consideration, from which was also taken the third section of the Interstate Commerce act." In I. C. C. vs. B. & O. R. R. Co., 145th United States, 263, Justice Brown said: "But so far as relates to the question of undue preference, it may be presumed that Con- gress, in adopting the language of the English acts had in mind the construction given these words by the English courts and intended to incorporate them into the statute." And finally our own court about twelve months ago, in the case of the Norfolk and Western Railway" Company vs. The Baggage Transfer Company, said: In view of this settled rule of construction we must look to the interpretation that has been put upon the English act by the English court, at the time of its adoption by the Legislature in 1867 and be guided by these decisions in interpreting the legislation In question Inasmuch as the construction put upon the statute in question by the English court prior to our adoption of it is conclusive of the case at bar. we have deemed it unneces- sary to cite numerous decisions of the American courts placing the same construction upon statutes similar to our own. Now, Mr. President and gentlemen of the Convention, can there be the least lin- gering shadow of a doubt that when we adopt this provision of the Mississippi Con- 2852 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. stitution we take with it the construction which the Mississippi court puts upon it? I say there cannot be the slightest possibility of the court giving it any other than the identical construction that was put upon it in the State from which it was taken. What is that construction? It is identically and exactly the thing that all of us admit we want to put here. If it had not been construed I tell you frankly I v/ould have preferred the language of the gentleman from Pulaski. But that language, how- ever I may personally like it, remains to be construed and is ready to hand. Why do we not use the construction of the court? Because it would take a page or two, and we cannot insert pages here. By taking a page or two out of the opinion of the court and inserting that, rather than the section v/hich the court undertook to con- strue, we are not adopting the language the court constiued. bat we are adopting, as my friend says, unconstrued language, ard wo leavo it to this cou.t to bay whether they will construe it to mean the very thii.? wn w^^nt it to mean or romething else. Having a certainty shall we take an uncertainty? Nov/, gentlemen of the Convention, this is the last thing to be considered in this report. All of us, I believe, with practical unanimity. We want an employers' lia- bility bill. We want an employers' liability bill that will do the thing it purports to do. We want one that has no holes or leaks in it. We want to get one from which will be removed, as far as possible, the danger and the possibility of unfavorable con- struction, I hope I do not press my views offensively upon you, but I ask you, if you wish to accomplish this purpose and do it in the best and wisest way, if it is not the safest things to use language which the courts have already said means identically the thing that you admit you want, rather than to go oft" into the field of untried experiment, which we are bound to do sometimes., but which we need not do in this case. The doubt as to whether the courts of this State will adopt the decision of the court of Mississippi I think is set absolutely at rest by the decision in the case I have just read. I trust, therefore, gentlemen, that in order to assure ourselves of accomplishing what we want to accomplish, we should go along the beaten path which we know will lead us there, and not venture on any road in the hope that it may be a better road but which possibly may not take us there at all. I thank the Convention for its indulgence. The President: The question is upon the first proposition of the amendment of- fered by the gentleman from Pulaski. The question having taken the result was announced, ayes. 26, noes 89. The first proposition of the amendment was rejected. The President: The question recurs on the adoption of the second proposition of the amendment proposed by the gentleman from Pulaski. The yeasi and nays were ordered, and being taken, resulted, ayes 19, noes 42. The amendment was rejected. Mr. Robertson: Mr. President, I desire to offer an amendment to this section by providing that the language of this section shall be construed in the same manner that similar langauge was construed in the case of Buckner against the Richmond and Dan- ville Railroad Co. et al, reported in 72d Mississippi, page 783. Mr. President, if the Convention will permit me I will read this amendment and I would be very glad if the gentlemen would listen to me. I am not offering this amend- ment simply as a criticism on the action of the Convention and I think I am entitled to be heard. This is a very serious question and it does seem to me that it ought to be given some consideration. The amendment which I offer is to come in after the word " thereby," in the fol- lowing sentence: "knowing by any such employee of the defective or unsafe character or condition of any machinery, ways, appliances or structure, shall not of itself be a bar to recovery for an injury caused thereby." To that I add "provided, however, that the language here employed shall be given the interpretation put upon it by the Supreme Court of Mississippi in the case of DEBATES or THE COXSTITUTIOXAL COXTEXTIOX OF YIEGIXIA. 2853 Buckner vs. Richmoiid and Danville Railroad Company ei al, reported in 72d Mississippi Reports, page 7S3. Mr. Thorn: What does my friend think would be the effect of the rejection of that amendment by this Convention? Of course it is understood by all of us that \\'e hope the court will follow that decision. Suppose the Convention rejects the proposi- tion that it must follow it. Would it not be a dangerous thing for us to put the matter in such a position as that? Mr. Robertson: Xo, sir; I don't think so. Gentlemen have argued here that the Court of Appeals will necessarily follow the decision of the Supreme Court of Miss- issippi in regard to this matter. I cannot agree vrith the gentleman about that. I am perfectly willing to agree that courts do, ordinarily, put upon a statute taken from another State the construction that the courts of that other State have put upon it. I think, however, that there is some Qualification to that rule. It must be a long continued construction which is well known and observed by the courts of the State from which that statute is taken, or that provision of the Constitution is taken. The Constitution of Mississippi was only adopted in 1S90. The decision that these gentle- men rely upon as showing what our courts would say about this matter was made in the year 1595. Every lawyer in this body knows I am right when I say there is no principle which binds the Supreme Court of Mississippi to adhere to that construction of the language in the case cited here in argument. That case is a precedent, and the ■court will, in all probability follow it; but every member of the bar that has any experience knows that courts reverse their own decisions and adopt different views as to the construction of language. The courts have decided again and again that if, upon review of a matter that has already been decided, they are of the opinion that the former decision was clearly wrong, in the face of the principle of stare decisis, they reverse the right to take a different view of the matter. This Convention has refused to use plain language about which there can be no doubt in this provision. There is no dispute amongst us as to what we want here. I do not think there is any man in this Convention who is opposed to giving to the railroad employees the relief this article calls for. I. for one, certainly am not opposed to it. I have stated, time end time again, that I am opposed to putting these things into the Constitution because I do not believe it is in the interest of the emplo^'ees of the railroad companies any more than it is to the interest of the railroad companies to put into our permanent law, that which, in its nature, is a legislative enactment. But the majority of this Conven- tion has decided otherwise, and, we are agreed upon that point. The simple question here is what language we shall use. These gentlemen say we ought to use the language that the Mississippi Constitution contains because there is a decision of the court in Mississippi which gives it the construction we desire. Xow, if they want the con- struction put upon it that the Mississippi court has put upon it, if they are unv.-illing to take the language that gentlemen have suggested here, which is a parapharse of the language of the Mississippi courts, then I can see no reason on earth why they should be unwilling to put in a provision stating what kind of construction they want our Court of Appeals to put upon this language. My friend from Norfolk (Mr. Thom) has suggested to me a difficulty about the matter. I do not understand that the Court of Appeals is going to look at what we say here, or how we vote here, in order to construe this law. I hope it is not, I hope the Court of Appeals is not going to read our debates in this Convention in order to determine anything on the face of God's earth. I think that would be abandoning every cannon of construction. The language used by us is what the Court of Appeals is going to go by, and not by what the gentleman from Augusta or the gentleman from Richmond or the gentleman from anywhere else says the language means. ]\Ir. ]^vleredith: Would you not be ashamed to see that language in the Constitu- tion of the State of Virginia? Mr. Robertson: Xo, sir; I would not. I would prefer to have it there. ^ly idea, and yours, as to what is shameful may be different. Mr. :\Ieredith: Decidedly. 2854 DEBATES OE THE CONSTITUTIONAL CONVENTION OE VIRGINIA. Mr. Robertson: You have voted to put language in this provision that is admit- tedly capable of two constructions. You say you put it there because the Mississippi court has construed it in a certain way, and in the way that you want it to be con- strued. Now, if you are sincere in that, what objection can there be to saying that our court shall construe it in the same way that the Mississippi court did? I do not want to say anything more about this matter. I have offered it in good faith, because it does seem to me that we ought to use language in this Constitution that means what we say we want it to mean. If the gentleman wants to invoke the construction of a foreign court in a foreign State and put language here that has been construed, in a limited sense, by that State, let them put it here so as to remove all doubt. If they are acting in good faith; if they have not been expecting to get more out of this language than the Mississippi courts give them, what reason can they have for not voting that the Mississippi construction shall be put into it. Gentlemen have said something here about this matter not having been voted on. I remember that the gentleman from Louisa asked a question about this very matter when it was up in Committee of the Whole, and for some reason he was induced to abandon the matter at that time. We thought this matter was settled and here it comes, with a change of front, in Convention, with limited debate, upon a proposition which goes far beyond what the original proposition was. I do not want to be in the attitude of fighting that matter. I would not do it for anything in the world. I am in favor of these laboring men having their lives and limbs protected; but it does seem to me there ought to be some protection to the other side. There ought to be some protection to the people who pay out their money for the purpose of employing these laboring men. The laboring men cannot get this employment, dangerous though it may be, unless the people who employ them have some protection under the law. The President: The question is on agreeing to the amendment offered by the gentleman from Roanoke. The ayes and noes were ordered, and, being taken, resulted ayes 7, noes 53. The amendment was rejected. The President: The question recurs on agreeing to the amendment in the nature of a substitute offered by the gentleman from Augusta, the chairman of the committee. The amendment was agreed to. On motion of Mr. Braxton, the Convention took a recess until 4 o'clock. AFTERNOON SESSION. The Convention reassembled at the expiration of the recess, the President in the chair. The question of order, as stated by the Chair was agreed to. The President: The judgment of the Convention is that the independent section as offered is in order. The question recurs on the adoption of independent section No. 20. The Secretary will read the section. Sec. 20. No member of this Convention shall be eligible to the position of corpora- tion commissioner, created by this body, at the first appointments, Mr. Braxton: I want to say one word in this connection. I hope this resolution will be voted down. I took occasion the other day to state, as far as I am personally concerned — if the Convention will pardon me for referring to myself in this connec- tion — that, having been the chairman of the committee that brought in the resolution to establish this commission, under no conceivable circumstances, either after the first appointments or any subsequent ones, as long as I live, shall I ever be induced to serve upon that commission; and if ever I change my mind in that respect, I hope that I will be drummed out of this State as unworthy of the respect, of decent men. I do not DEBATES OE THE COXSTITUTIOXAL COXTEXTTOX OE VIKGIXIA. 2855 make this statement for effect; but I mean it to the full extent. I think, however, :*Ir. President that the position I occupy in connection YN'ith this matter is different from that occupied by other members of this Convention vho happen to favor this report, and is different, even, from those vho voted against it. I do not think they would be open to the criticism to which I would be subject if I should accept a position on this body which I have been so prominent in forming. I think it would be imworthy of thi? body, and it would be a reflection upon it to pass a resolution of this sort. There are many good and excellent men in this body. I do not know whether any of them are candidates for these positions. I do not know whether any of them would accept the office if it is was given to them; but it does seem to me that it is a degree of self abnegation for which there is no call to undertake to say that no member of this Con- vention shall serve upon this commission. Why not say that no member of this Con- vention shall serve in any other office? Why not say he shall not be a judge or be elgible to any other position that exists under this Constitution? My friend who intro- duced this resolution says that we are just taking the medicine we have given to the Legislature. He does not use that language; but that is his idea. Mr. President, the Corporation Commission is very different. If this body had to elect the members of this commission I would say by no means should any member of it be elected to the office. But the members of this commission cannot be elected by this body in any way. shape or form. I do not think it is anything other than a reflection on this body to pass a resolution saying that, although the Legislature should be unanimous and the Governor should be favorable and the people at large should agree, that a member of this body should fill one of these offices, yet that he should not be allowed to fill it. I do not think there is any occasion for this. I do not see what reason there is for it. Knowing, as I do, and as I stated to this body, that in no event can it affect me in any way. shape or form, I feel free to express my earnest hope that this resolution will not be adopted by this CouA-ention. :\Ir. Hubbard: :\Ir. Chairman. I think we would be in a most inconsistent attitude if we should say. as my distinguished friend who has just taken his seat seems to think we should say, that the members of the Legislature of the State of Virginia should not be allowed to be elected to offices that they create, but that the members of this Con- stitutional Convention should be permitted to be elected to offices which they create. So far from agreeing with him in thinking that this twentieth section will put this bodv in an improper attitude, I think it v>-ill put us upon a high pinnacle; it will say to the V, orld and to the State that the majority of these gentlemen in this body have decided that under no circumstances will they accept appointment from the G-overnor to posi- tions which they, themselves, have created. Consistency. Mr. President, is a jewel, but it will not be a jevrel that will deck the diadem of this Constittitional Convention if we adopt one line of policy for the Legislature of Virginia and another line of policy for the members of the Constitutional Convention. There can be no reason for it. There can be no justice for it. There can be no propriety in it. For my part. I wish to put myself upon record as advocating election by the people. I Avoiild. however, in any event have voted for this independent section. If the people had had the election of these officers I shotild have been opposed to any member of this body being eligible for election, after the first appointments. At that time the Legislature, as I understand it, may deal with the subject. It does seem to me that if the members of this Convention wotild consider the matter they wotild not want to be ptit in the attitude of objecting to this provision. So far as I know, there is no candidate for the position in this body. I say that I do not know a man in the body who has the least aspiration in that direction. I am aiming at nobody. I am taking a conscientious position as a representative of the people I have been sent here to serve, and I am taking it upon the high plane of equality, and upon the plane that the gentlemen have undertaken to fix for the Legis- lature, There are, ;Mr, President, in the General Assembly gentlemen who are the 2856 DEBATES OE THE CONSTITUTIONAL CONVENTION" OE VIRGINIA. equal in ability to other gentlemen on this floor who have never served there. If we say that the Legislature of Virginia ought not to do this improper thing, then it is proper, eminently fit and eminently right that we should put ourselves on the high plane we have declared the Legislature should occupy, by adopting this independent section. The President: The question is on agreeing to the independent section offered by the gentleman from Buckingham. The question having been taken, the result was announced — Ayes 23, noes 35. Ayes: Messrs. Allen, W. A. Anderson, Ayers, Bolen, Brooke, Carter, Earman, Flood, Hamilton, Hooker, Hubard, G. Y/. Jones, Lindsay, Mundy, Pedigo, Phillips., Pollard, Quarles, Robertson, Summers, Thom, Wescott, Withers — 23. Noes: Messrs. George K. Anderson, Barbour, Thomas H. Barnes, Boaz, Bouldin, Braxton, Brown, Chapman, Crismond, Epes, Fairfax, Garnett, Gilmore, James W. Gordon, R. L. Gordon, Hancock, Hardy, Hunton, Keezell, Loveil, Meredith, Moncure, R. Walton Moore, O'Flaherty, Parks, Richmond, Rives, Stebbins, Stuart, Thornton, Waddill, Willis, Wise, Yancey and the President — 35. The following pairs were announced: Mr. Cameron with Mr. Mcllwaine; Mr. Vin- cent with Mr. Tarry; Mr. Green with Mr. Brown. The first named gentleman in each instance would have voted in the affirmative. The independent section was rejected. Mr. Braxton: I move that the article, as amended, be adopted. The motion was agreed to. Mr. Braxton: Mr. President, with unaffected gratitude to this Convention for the faithful consideration and support it has given to the Committee on Corporations in considering this article, I now move that the article as adopted, be printed and referred to the Committee on Final Revision and Adjustment. The President: The question is upon the motion of the gentleman from Augusta that the article just adopted, be printed, and that it be referred to the Committee on Final Revision and Adjustment. The motion was agreed to. (Great applause.) TAXATION AND FINANCE. Mr. Fairfax: I move that the Convention now take up for consideration the report of the Committee on Taxation and Finance, as amended and reported from the Com- mittee of the Whole. At this point Mr. Thorn took the chair. The Presiding officer: If there is no objection that will be considered as the sense of the Convention. Mr. Fairfax: As there are some members of the Convention who wish to speak on Section 1 and 2, if it is the pleasure of the Convention, the committee will be pleased to pass by those two sections for the present, and to take up for consideration Section 3. Section 3 was then read. Mr. Harrison: I move to strike out the words beginning with "and whenever a franchise tax shall be imposed upon a corporation doing business in this State, or when- ever all the capital, however invested, of a corporation chartered under the laws of this State shall be taxed, the shares of stock issued by any such corporation, the same representing the business or capital so taxed, shall not be further taxed." It seems to me, Mr. President, that this is drawing an invidious distinction between people who are not incorporated and those who are incorporated. It may be double taxation to say that the property of a corporation shall be taxed and that the shares of stock shall be taxed; but it is the double taxation that exists on every kind of property we know of. If I sell a piece of real estate and give a deed of trust for the DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF VIEGIXIA. 2857 purchase money, the real estate is taxed and the bonds are also taxed. They are taxed upon the theory that the tends are as productive as the real estate. The bonds pay interest and the real estate bears its crop. The same may be said of the sale of personal property, where credit is given. The personal property sold is taxed, and so is the credit taxed. Yvliy should the shares of stock of a corporations be exempt? Shares of stock produce dividends just like bonds bear interest. It is property owned by a corporation and not by an individual, but the individual owns the stock. A tax is laid upon the property of the corporation and then it is proposed to exempt the stock- • holder as an individual, and to exempt property held by him. I do not think that ought to be done. We do not know what effect upon the revenues of this State such a course will have. It has never been done in the past. The stock of a corporation has always been taxed just as bonds, notes, and every other chose in action is taxed. It is pro- ductive of revenue just as every chos.e in action is. Because the property of the cor- poration is taxed, it does not seem to me that we ought to exempt the shares of stock in the hands of the individual, any more than we should exempt bonds and notes and other choses in action. Mr. Meredith: Mr. President, we hope it be the pleasure of this Convention to leave this language as the Committee of the Whole left it. It is true that there is a difference between a tax upon a franchise and a tax upon capital. A franchise tax may embrace all the capital or it may embrace only a portion of it. The system which we hope to see adopted in this State would be a system of franchise taxes by w^hich all the property and capital of a corporation would be gotten at; and if it is not done it will be for the Legislature — Mr. Barbour: Under this provision that the State should impose a franchise tax upon corporations, would we not relieve ail of its capital stock even from local taxa- tion? Mr. Meredith: It releases its shares in the hands of individual holders. Mr. Barbour: Then it would release all that property from local taxation? Mr. Meredith: That would not amount to very much. I will say to my friendThat there is no portion of the State that v/ould be more interested in getting a tax upon stock tha^ the city of Richmond would be, because of its peculiar situation just at the present time. In this city to-day are large owners of stock in the American Locomotive Company, the Virginia and Carolina Chemical Company, the Continental Tobacco Com- pany and others, and yet I do not hesitate to say that it would be to the interest of the State and to the interest of the city that this system of taxation should be adopted. I call your attention to the fact that it is our desire and hope that the Legislature will ■see fit to levy a system of franchise taxes by which the entire property of a corporation will be gotten at, and that it will levy a tax on the entire property. If that be done, if you get at all of the property, its personal property and its real estate, its. intangible, invisible property, like franchises, then you have gotten at every dollar of value that the corporation owns. When you have arrived at that, you ought not to put another tax on the same property. We are suggesting a system of taxation by which the entire property of a corporation would be gotten at and that being arrived at, we say it would not be fair to tax the stock of the companies in the hands of the individual owner. Why? You know that a share of stock is not a debt. There is nobody from whom you can collect it. You are entitled to no interest on it. It is simply your title deed to your share in the corporation. It simply represents the interest which you have in this property which we propose to tax under the franchise system, if the Legislature does its duty, which we suppose it will. It is true that I may get a dividend from my stock, but do I not get rent from my real estate? Do you tax my deed to real estate? And yet from real estate I derive rent. There is no more reason why you should tax a share of stock, provided you get at all of the property of the corporation in some way, than there is why you should tax the title deed to my house, for which I receive rent. ISO— Const. Deb. 2858 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. There is another thing to which I ask your attention. The idea of taxing this invisible property by trying to get at it in the hands of individual owners has failed, time and time again, and will continue to fail. It will be simply useless for you to' attempt it. It is idle for us to say that we can do what others have tried to do and failed. To such an extent has this matter gone, in the line of trjdng to get at the invisible property in the hands of individuals, that there is a system now in the State of Massachusetts which they call the "dooming" system. That system is this: As the assessor is supposel not to be able to get at your personal property and as it is supposed that you a're not goipg to be honest and return it, he puts in your personal . property as worth $10,000. You stand it, and the next year he says that you have stood this and he will put it at |15,000, and as long as you will stand it he will climb up on you. To such an extent has this become an absurdity and a failure that every conceivable effort that the ingenuity of man can suggest to avoid it has absolutely failed. We know that the Legislature of Virginia recognized this a few years ago and passed an act saying that the shares of stock in the hands of individual ov/ners should not be taxed, wherever the capital was otherwise taxed. Let us add to that a provision saying that wherever the franchise is taxed the capital stock in the hands of individual owners shall not be taxed, believing that if we tax the real estate and personal property and franchises, we get at all the value of the property. You may not see fit to tax the franchise of a company. Take, for instance, a mercantile com.panj^ The franchise of that company is worthless. You could not sell it for a dollar in the market. There are stores here on Broad street that are run as corpora,tions and their franchises are not worth a cent; but their capital is. In that class of corporations we get at their capital. When you come to another class of corporations you will find that their franchises are valuable. When you put a fran- chise tax on you are certain to get at all the value of the property, no matter whether you let it take the place of all taxes or whether you let it to be m addition to other- taxes. The shares of stocl& that are held by individuals are simply evidences of title, of the interest the stockholder has in the company and they are not a bit more valuable than the title deed to your house. Mr. Harrison: Mr. President, let me see if I get that right. You say that where the franchise is valuable the tax would, of course, be laid on the franchise, and that Vv^ill exempt the shares of stock in the hands of individuals. Mr. Meredith: Yes, sir. Mr. Harrison: Take one of these Broad-street corporations that you speak of, where the franchise is not worth anything. In that case of course the franchise amounts to nothing and the shares of stock will have to be taxed. Mr. Meredith. There you tax the capital stock. Our hope is that this Convention will adopt the first section of this report, which will allow the Legislature a free hand in classifying property. Then, when you come to a mecantile corporations, you will treat it in one way and tax its capital stock and itsi visible property. The failure here- tofore has been to get at ail the property. The object of the committee is to get at the value of this property and having once taxed it, to provide that it shall not be subject to double taxation. A share of stock is not worth anything except what the com- pany may make. It may be worth $1 or it may be worth $100. It is simply a repre- sentative of my interest somewhere else. A mortgage is a debt that another man owes, and that he is obliged to pay. That is property that I can sell upon the market. I may sell the stock, or I may not sell it. It simply represents my interest, either in a m.ercantile business or in a mine or in a railroad or in some other enterprise. Look- ing at the present condition of affairs in this country we do hope that you will adopt a system of taxation by which you will get at the value of the property and not dis- courage our people from investing in our own enterprises. Suppose you undertake to tax shares in the hands of individual ovvuers. Any man who knovv^s anything in the world about taxation, knows that it is almost impossible to get at it. Suppose you take DEBATES OF THE CO^s^STITUTIOXAL COXVEXTION OF VIRGINIA. 2859 the Massachusetts system that is called the " dooming " system, what is the result? When you look around and see the condition of affairs in this country to-day, you find that men in California ovv^n interests in the coal mines and steel works of Pennsylvania. You find men in Maine interested in the tobacco raised and manufactured in the State of Virginia. That is because the stock of these enormous corporations is so large that it has floated all over this country. Everybody who is able to invest money looks for some investment of that kind in industrial corporations. Take the United States Steel Company, which has a capital stock of 11,300,000,000. The stock of that company is scattered all over this country. If you get at the shares of stock that I own in the Locomotive Works, by requiring the treasurer of the company to give you a list of it, w^iiat is the result? I will simply sell out that stock and take an investment in the United States Steel Company, or the American Tobacco Company, which you cannot get at. If you adopt this system we vv'ill have a proper system of taxation, by which all property will be gotten at, and people will be encouraged to invest in our own enterprises, because of the fact that they will know the stocks in local enterprises are not going to be taxed. If they believe that it is going to be taxed you must expect that our own citizens will not invest in property which can be gotten at. Mr. O'Plaherty: I know this is very dangerous ground. But suppose a man had $100,000 in money. That would be taxable as I understand it. Mr. Meredith: Yes; it would be taxable if you could get at it. Mr. O'Flaherty: Could he not put that in the stock of some concern that had its existence outside of Virginia and did business in the State of Virginia and paid a franchise tax, would it not be possible for him to invest his money in that stock and the stock not being taxable under the Constitution, v/ould he not go free? Then, if taxes are levied upon it, he could transfer that stock and continuously avoid the pay- ment of any tax to the State of Virginia. Mr. Meredith: They do do it. Mr. O'Flaherty: Was it not the idea, in obtaining this corporation commiSiSion, to have the commission require all stock helcl by any one in the State to be listed, so that the commission would know just where it v/as? I understand that is the object of this commission — to keep track of stock. Mr. Meredith: Not that I ever heard of. I think that if they have to do that you had better increase the corporation commission. Mr, O'Flaherty: I do not object to your taxing franchises. I think you ought to do that. But it seems to me you ought to leave the Legislature the pov/er of taxing franchises and also leave it to the Legislature to look after this other property which ought to bear its fair share of taxat^'on, vv'herever it is right and necessary. Mr. Meredith: I do not suppose the gentleman differs from other men. He thinks he can do v/hat a good many other people cannot do. It has been the effort of Ihe world for centuries to get at intangible personal property for the purpose of taxation, and they have simply failed to do it. If the gentleman has read at all on the subject he will find that the only difference between the persons who discuss this question is with reference to which can use the most denunciatory terms in regard to it. Some call it a premium upon d'shonesty and others a burden upon honesty, and they all recognize the fact that you do not get at the value of such property, and that you are wasting your time and making those people who are honest and return their stock pay taxes for those v»'ho desire to avoid taxation, and will not make returns. We do not propose, under this system, to any longer follow that useless line of conduct. We will have a system of taxation by which the entire property will be gotten at, and we provide that v/hen once the property isi taxed we will not tax the title to it, the piece of paper that he has in hie hand shov>^ing his interest in it. We know that system never has succeeded. We know that the condition of affairs in this country is such that if you press this too far you simply drive out investments from your own State. You may say that you want to tax a thing twice. You may say you believe a thing 2860 DEBATES OF THE COXSTITUTIO^TAL CONVENTION OF VIRGINIA. ought to be taxed twice; but the man who knows is going to say tliat you shall not do it, and if you push him too far he simply sells his property and invests somewhere else. Why should we drive away investments when we have gotten at the property to be taxed and have taxed it fairly and to its full extent. I hope the gentleman from Winchester will not press his resolution alter the ex- planation that hasi been given. Mr. Allen: I offer, as an amendment, to insert in line 18. Section 3, after the word "paving" the words "then existing," so that it would read "then existing alleys, or construction of sewers." The Presiding Oincer: Without objection, the amendment will be agreed to. Mr. Fairfax: I wish to offer an amendment in line 18, after the word "construc- tion," to add "or use," so that it will read "construction or use of sewers." Mr. Hamilton: Before that is put, Mr. President, I wish to say that I do not think people ought to be required as abutting property owners to pay something for the construction of the sewer and subsequently for its use. Mr. Meredith: The idea is that some cities charge for the construction, and they allow you to pay for it immediately, and then there is no further burden on you. Others allow you to pay so much a year for the use of it, and if you choose to redeem it at any time you may do so, and you get rid of the burden. Mr. Hamilton: I suggest that some words be added there which will go to show that if you pay for the construction, you shall not, in addition, pay for the use. If you say "either for the construction or otherwise for the use," that would answer. The Presiding Officer: The Secretary will read the amendment as it is now re- corded. The Secretary read as follows: In line 18, after the word "for" insert the words "either the" and after the word ^'construction" insert the words "or otherwise the use," making it read "and for either the construction or otherwise for the use of sewers." The amendment was agreed to. On motion of Mr. Barbour the Convention adjourned until to-morrow, Wednesday, March 5. 1902, at 10 o'clock A. M. WEDNESDAY, March 5, 1902. The Convention met at 10 o'clock A. M. Prayer by Rev. W. T. Derieux, of Richmond. TAXATION AND FINANCE. The President: The unfinished business before the Convention to-day is the report of the Committee on Taxation and Finance. Sections 4 and 5 were read and adopted. Section 6 was then read. Mr. Harrison: Mr. President, I wish to offer an amendment here to strike out the words "but said capitation tax shall not be a lien upon nor collected by legal process from the personal property which may be exempt from levy or distress under the poor debtors' law." ^ 4. i 4f Mr President, if that remains in this report and becomes a part of this law ii will cost the State of Virginia in revenue something over $100,000 every year. It is the only tax of any consequence that the negroes pay in this State. They pay $65,000 a year as a capitatiin tax when the capitation tax is only a dollar a head. I have here the report of the Auditor of Public Accounts for the year 1899-1 have not got it for DEBATES OF THE CONSTITUTIOIsTAL CONVENTION OF VIEGINIA. 2861 1901 — and it shows that the taxes paid by the negroes, as a whole, is on real estate, $39,000 in round numbers, and on personal property, $10,000 in round numbers: and by way of capitation tax, $05,000 in round numbers. One-fourth of that, $49,000, goes to the free schools, being 10 cents on $100, making as a total all that the negroes pay towards the support of the free schools something like $10,000 on all the real and personal property of this State. The $65,000 that they pay by way of a capita- tion tax, and which is collectable only out of property that would be released by this provision as a general thing, is the great bulk of the money which they contribute to the support of their free schools and to the education of their children. They draw from the treasury something over $2io0,000 in the shape of funds for the education of their children in the free schools. Now, it does seem to me to be a wrong principle to release these negroes from the payment of the only fund that they contribute to the education of their children. I understand it is done for the purpose of not en- couraging them to vote. I think we ought to leave our suffrage laws to themselves and our finance laws to themselves. I am not in favor of having a provision put intoi this finance report by which the revenues of this State will derived from the negroes will be almost entirely released. We have had a report from the Auditor which shows that out of the 126,000 ne- groes assessed with capitation taxes there are only about 32,000 of them assessed with as much as $100 worth of property. If you release that portion of it which is exempt from levy by distress it will take up nearly the $100 with which they are assessed by way of personal or real property. Every dollar that these men are re- turned delinquent is made up by the tax on property. Wherever they are delinquent the money is paid out of the other general funds in the treasury; so that all the taxes that are returned delinquent are made up by taxes on property. The tax is little enough; anybody can pay $1 a year to the free schools. To release virtually the only money that we collect out of this class of people for the education of their children and to educate their children at the expense of the property owners of this State — who are, as a rule, the white people — is intensely objectionable to the people of the white sections. There has been considerable demand in this State that the negro should receive only those taxes which they themselves pay, towards the educa- tion of their children. I v/as glad that the report of the Education Committee turned that idea down, because I thought it was a cruel and a harsh one. But I do demand in the interest of the people who pay the taxes of the State, tliat we shall not release them from the taxes they now pay. The great bulk of this money is collected out of them in the shape of wages, and in the shape of work, and in a levy upon the property they would be entitled to hold as exempt under this poor debtor's law. They would be entitled to hold their horses, cows, furniture in their houses, and nearly everything they own exempt from levy for capitation taxes. I think we ought to strike that out, and vv^hen we come to the consideration of the suffrage matter we can consider what ought to be done in that direction. I therefore move to strike out the words which I have read. Mr. Hamilton: The committee hopes these words will not be stricken out. It is a matter which was fully gone over in the Committee of the Whole, and the object of it is entirely plain to you. It will be necessary to have a capitation tax in any scheme of suffrage that is devised, and it was not thought desirable to compel the collection of that tax by legal process. We have got to look at this thing all around. We cannot treat it as a matter separable from other matters. This is the provision exactly as recommended by the Suffrage Committee, without any dissension in that committee, so far as I recollect. Mr. Harrison: Not without dissension in the Suffrage Committee, I do not think. Mr. Hamilton: I do not recollect that there was any controversy about it. I know it is exactly the proposition that was recommended by the Suffrage Committee to the Taxation Committee. I suppose the gentleman from Frederick objected to it. 2862 DEBATES OF THE COXSTITUTION'AL CONVENTION OF VIRGINIA. I did not know about that. I thought it was unanimous. At any rate the reasons for it are good. It was suggested that it should not be collected from anyone by legal process.. We thought the people who had ample money to pay it ought to pay it, but that we should not compel its collection out of what is called the poor debtor's exemption. I therefore hope the motion to strike out will be voted down. Mr. O'Flaherty: Mr. President, I hope the motion of the gentleman from Win- chester will prevail. I realize the argument that is applied to this matter; but I want to call the attention of the committee to this fact, which I suppose they have thought of, but which to my mind completely gets around the view they take of it. You are going to find that when you make the payment of the capitation tax a pre- requisite to voting, the negro knows — and this is aimed at the negro — that he does not have to pay this capitation tax, and he will simply shift the burden to the man who is a candidate, and he will not pay it, and the candidates will have to pay it. In other words, you are giving a greater chance for fraud. Here is a man who knows he is going to vote, because somebody will pay his capitation tax, and there is no way on earth to collect that capitation tax from him. He is absolutely immune. Whereas the poor white man who has a tax to pay on his horse, and on his cow, and on his little farm, will have to pay that, and the property he owns under the poor debtor's law will not be exempt. I say this is a discrimination against the white man. Every body Imows the negro Is going to vote, and he will simply put the burden on the can- didate. The payment will not prevent it, but payment ahead of election will. Now, I say it is not fair to the property owners of Virginia, Mr. President, to shift the burden of $100,000 of taxes and put it on the property of the whites, or put it on the property owners of Virginia, while these people who do not pay anything for the support of the schools, who do not pay anything for the support of govern- ment, are going to be exempt from the payment of their taxes. We are putting them on a higher plane than we do the poor white widow or the orphan of this State. And this is in the interest, we say, of suffrage. I doubt the propriety of it; I doubt the wisdom of it, and I do not believe it will be practicable. I think the gentlemen who come here from the Black Belt will find hereafter that they have made a mistake. I know in my county this capitation tax is partially collected, and all that is col- lected from some delinquents is collected because of the fact that they know their property will be taken unless it is paid. The gentleman from Petersburg, for whom I have great respect, says the Suffrage Committee reports this. Well, so far as I know anything about the matter, the Suffrage Committee has never reported any- thing. I did not say it was in that report. I stated that this was a recommendation which the Suffrage Committee sent to the Taxation Committee, with the request that they adopt it. Mr. O'Flaherty: I did not understand you to say that. But I say, as far as this Convention is concerned, there is no such recommendation before it, and I do not wish to mix up this question with the suffrage; and I do protest against the fact that the white people of the Valley of Virginia must pay the taxes that go to educate the negro, and that you gentlemen from the Black Belt are not willing to put a burden upon him and help us. You will lose hundreds of thousands of dollars yearly, and that burden will fall upon the property of the State. The negro does not pay this tax, as is shown by the distinguished member from Winchester. According to what he has just said, they pay the pitiful sum of about $10,000 into the treasury of Virginia for school purposes, collected from real and personal property tax. I doubt the pro- priety of taking the money of the white people to educate the negro. I, as a tax- payer, myself, know that you are taking the burden off of these men and putting it upon me. I have got to pay my tax, and I know that every dollar of the negroes' capitation tax which you relieve, puts the burden upon somebody else. This com- mittee found that it was impossible at the present time to separate the subjects of taxation in the counties from those of the State, and put it upon general subjects, DEBATES OF THE COXSTITUTIOXAL COXVENTIOX OF VIEGIXIA. 2863 showing that Virginia is yet poor; showing that the counties must bear a greater bur- den than they ought to bear, and yet you are striking down one of the means of reaching the goal the honored chairman wants to reach, certainly in 1913. I hope this will be accepted, and voted favorably upon. Let us not discriminate against the poor white man and the poor white woman of Virginia in favor of the negro. I want to treat him fairly; 1 want to treat him justly; but when we are willing to go down in our pockets and educate him we have done all that we ought to do. Let the gentle- men in favor of equal and uniform taxation, as my friend from Petersburg is, come here and make it equal and uniform upon the negro as well as upon the white man. Mr. Hamilton: Is this not equal and uniform? Mr. O'Flaherty: No, sir; you say yourself that it is for the purpose of disfran- chising him that you are taking the burden off. Mr. Hamilton: No, sir; it applies as well to the white as to the black. It may have such a bearing as my friend suggests, but I made no such statement. Mr. O'Flaherty: I think it is understood that is the object of this report, and I say that any man who is not willing to pay something toward the support of the government ought not to be permitted to participate in that government. If you are willing to let the negroes vote by paying a certain amount of tax on personal prop- erty and on real estate why not let them in for paying the tax in this way? I do not make that argument, but I do say that you are putting the burden where it does not belong. I am trying to take care of myself now, and of my people. I am willing to help as far as I can, but God helps those who help themselves. I say again the negro will vote, and will not be able to pay this tax, and somebody else will have to pay it, and it v/ill fall at last upon the man who is a candidate for office. Mr. R. Walton Moore: Mr. President, this section as has been stated here, came from the Suffrage Committee. It is true it does not appear in the competing plans that have been presented by the Suffrage Committee, but almost by unanimous vote the Suffrage Committee recommended it to the Committee on Taxation and Finance, the idea of that committee being that any suffrage plan that we are likely to adopt will embody the prepayment of a capitation tax as a feature. If there is one thing that is. a concession up to this point in respect to the settlement of the suffrage problem, that is the thing, and this section comes to us, I repeat, with the endorse- ment of the Suffrage Committee, given almost unanimously. If it should appear here- after that the prepayment of the capitation tax is not a feature of our suffrage plan, we can eliminate what is proposed now, but for the time being it is certainly wise to adopt this provision, and I will take the liberty of going a point further and sug- gesting that when we do ■ this we proceed in the line that has been taken by other Southern States. The State of Mississippi, I believe, has been very careful to pro- vide that it is desirable that a certain class of citizens shall not be encouraged to pay this capitation tax because they shall be encouraged to vote. The aim is to dis- courage them from voting. Mr. Flood: As for myself, I want to say that I have always been opposed from the very beginning of this Convention, to the payment of a capitation tax as a pre- requisite to the right to vote. I do not believe in giving a man a right to vote and then taxing him for the exercise of that right; but in deference to the other members of the committee I yielded my views and signed a report which makes the pa^'ment of the capitation tax a prerequisite to the right to vote. But this is a different proposi- tion. As a revenue measure it is a distinct disadvantage; as a suffrage provision, I do not regard it as being worth a snap of your finger. The suffrage report requires that the capitation tax should be paid six months before the electors can vote. That will do as much to prevent a man from voting as the fact of the tax being. non-col- lectible by legal process, because a man who pays this tax six months before election day in order to preserve his vote will pay it without coercion. The fact of its not being collectible is not going to help the suffrage of this Commonwealth at all. The 2864 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. people who will escape the payment of this tax are those who have lost their right to vote under the six months' provision. I would support such a proposition as tne one suggested by the gentleman from Prince William a few moments ago. You can collect it after the beginning of the six months. Your officer need not undertake to* collect it before the six months prior to election day began to run. Mr. President, this provision will result in bringing about or rather intensifying just what this Con- vention was called to prevent. The people of Virginia have been restless, for years at having to divide their school funds with the negro. They have been tired of seeing their taxes appropriated to run negro schools, and of having none of those taxes got- ten out of the negroes, except a paltry sum, beyond what comes from the capitation tax. You now propose to relieve the negro of the capitation tax which lie pays for the support of the public schools, and thereby relieve him, practically, of all burden for the support of public schools. Instead of making the white man's burden easier, you propose to make it harder; instead of giving him the relief for which he sent you here, you relieve the man who had no part in your existence as a Convention. I do not believe in dealing with the suffrage in this way. I believe in more strenuous suffrage provision, but I am willing as a com.promise to have a poll tax as a part of it.. Let us put a capitation tax in, if you will. Let us make the payment of ft six months^ prior to the election a prerequisite to the right to vote; but do not let us relieve from the payment of that tax this class who novv pay so little to the support of the public schools, and yet get so much benefit from them. The people in the county, as a rule, pay their capitation taxes. It is in the cities they do not pay it. In the city of Richmond out of 19,000 people assessed for capitation taxes, nearly 1G,000 of them were returned delinquent. I think we ought to put in motion the machinery that v/ill enforce the collection of this tax and m^ake these people, who have not been bearing their share of the burden of the public schools, come up and do so, instead of reliev- ing them by constitutional provision. I trust the amendment of the gentleman from Frederick will be adopted. Mr. R. Walton Moore: Then the gentleman proceeds upon the idea that prepay- ment of a capitation tax should not be a feature of the suffrage plan. Mr. Flood: I say that is my individual view; but I surrendered that view out of deference to the members of the committee. Mr. R. Walton Moore: If it is to be a feature of the suffrage plan, would the gentleman favor a compulsory process in order to make the negro pay that tax? Mr. Flood: I would, because I have no confidence in the theory that the prepay- ment is going to affect our suffrage one way or the other. I have always maintained and believed that more white people will be stricken from our registration rolls than negroes, by such a provision. Mr. Davis: I offer the amendment now, and give notice that I offer it as a sub- stitute for the section. Mr. Meredith: We can only take the report the committee made to us. Wnether one gentleman was present or absent, we do not know, but we understood it was the unanimous wish of the Committee on Suffrage that we should have a non-compulsory feature in regard to the capitation tax in this report. It does not require much argument to show that if you are going to have a pre- payment of the poll tax as a prerequisite to the right to vote, you have got some object in it. It must be either that you think you will have a source of revenue or that you will keep some people from voting. The requirement as to its being col- lected before voting would hardly have been justified upon the idea of collecting rev- enue, because it would not be necessary. If you are anxious to collect revenue you could do it by having the payment of it compulsory without any prerequisite as to the right to" vote. But having adopted the plan that you shall have it as a prerequisite to the right to vote, you must have the idea of keeping certain people from voting. Now, if that is your object, carry it out and do not go half way and fall when you DEBATES OF lEE COXSIITUIIOXAL COXTEyilOX OF VIEGIXIA. 2S65 are about to reach the resulrs of your efforts. We all knoTr that if you make the collection of this tax compulsory you Trill simply defeat the real object you have in vie^. The very prime thing that brought this body into being was to affect the suf- frage of this State, and we are here new for the purpose of affecting that in the best way we can. so that this State may be relieved of the systems that have been carried on in elections during the last few years. You are simply face to face with the proposition as to whether you do not be- lieve you had better give up a little revenue than to have what you have had in thia State for the last ten or fifteen years. Xow. you take your choice. You know we are called here to get rid of that state of affairs, and the simple proposition we have before us to-day is whether we shall take an effective measure by which we can over- come it, although we may have to bear a little burden in addition, so far as revenue is concerned. If the gentleman from Appomattox (Mr. Flood) wants to carry out his idea of getting a means of support and revenue, it can be done by the suggestion that was made by the gentleman here on my right the other day, that the counties should be allowed to levy an inaependent capitation tax to be used for school purposes, if they see fit: but when you come to the question of voting, you ought to make the restric- tions such as will accomplish the object you have in view. There is no use talking about the prepayment of a capitation tax, and then turning around and telling a man that if he does not pay it in six months voluntarily, yoti will collect it. That would be simply extending the time of payment. The cry has been raised on this fioor and elsewhere that the negro will always pay this tax, no matter whether you have it voluntary or not. I do nor believe that, but surely if you tell him that if he does not pay it now he shall not vote, and if he does not ray it now it will be collected six months from now, he will sa.y, '"'If I can pay in six months, and then I can vote, I will do so." You will have defeated one of the objects for which this Convention was called. 2-Ir. George K. Anderson: I desire to offer the following amenament, Mr. Presi- dent. After the word "but"' in line 12, insert the words ''"'the G-eneral Assembly may provide that"' so that the section would read: "But the General Assembly may provide that such capitation tax shall not be a lien upon nor collected by legal process."" Mr. President, I do not want to discuss this matter, but simply to say this: ""The object of the amendment is to lodge with the General Assembly the power and the authority to say that the capitation tax shall not be collected by legal process out of the poor debtors' exemption. That is all there is of it The whole matter, as appears from the discussion which has occurred here this morning, is an experiment. Nobody knows what it may lead to. As a matter of fact, the poll tax prerequisite is almost an experiment, except for the few years of experience we had with it twenty years ago. when every gentleman upon this floor acquainted with the political history of the Commonwealth knows that it grew to be so off'ensive to the people of the State that they rose up as one man and demanded the repeal or an amendment of the Constitution. Mr. Carter: "VTas not that because the capitation tax was to be paid up to the very day before the election? Mr. George K. Anderson: Tnere is no doubt of the truth of the statement made by my friend from Hanover (Mr. Carter) that that was in large measure the reason why the tax became so obnoxious to the people of the State of Virginia; but I tell you now, gentlemen, while I know it is a hopeless thing to argue against a poll tax prerequisite in the State of Virginia, that thing will rise up to give us trouble in the years to come. Mr. Carter: Could there be any more fruitful source of trouble than to leave it to the Legislature and let the issue be made at every election, whether it is to be re- pealed or not ? 2866 DEBATES or THE COJ^STITUTIONAL CONVEXTIOISr OF VIRGimA, Mr. George K. Anderson: I think if the issue is to be made, if the people of Vir- ginia want the issue to be made, the people ought to have the right to have the issue made, and they ought to have the right to have it made and passed upon by their representatives in the General Assembly, and ought not to be required to resort to the slow process of a constitutional amendment in order to get rid of that tax. I say, gentlemen, this question is one of experiment. It involves the question of the right of citizens of this Commonwealth to vote, and it involves In large measure the revenues of the Commonwealth. If this capitation tax, by a Constitutional amend- ment is abolished, you will be compelled to abolish this provision also at the same time. For those reasons I think it is wisest to leave that question to the General As- sembly. Mr. WalKer: Would not the effect of the adoption of the amendment proposed by the gentleman be that the Convention could not fix on any complete and definite suffrage provision? We would not be able to know what kind of suffrage plan we had adopted until the Legislature had acted on this matter of your amendment. We could not calculate what the effect would be, because we could not tell for certain what the Legislature would do about it, and besides that, the Legislature would be able at any time to change it, and it would be a shifting thing. Mr. George K. Anderson: I would suggest to my friend that thw power proposed to be given to the Legislature is not to take away the capitation tax as a prerequisite to voting. But it is for the Legislature to say whether or not the six chairs, the six plates, the six forks, the six knives, the one horse of a man, or the two horses if he is a farmer, shall be taken to pay a capitation tax of only a dollar. My friend from West- moreland (Mr. Walker) suggests that the Convention would not know how to com- plete a suffrage plan in the Constitution unless it knew whether or not this capita- tion tax could be made out of the poor debtor's exemption. I say, Mr. President, and gentlemen of the Convention, that if you make it a prerequisite, it will be safe to enable the man to vote, and any man who has that much property will pay the tax. The negro you are trying to reach is not the married negro with a horse and wagon and a cow and household property, but he is the single negro who' floats about from one part of the Commonwealth to another, upon whom you cannot lay your hand, whose name you do not know, and all of them are alike. The people you will hit by this amendment will be the poor white people of the Commonwealth. The treasurer will go to their homes and collect upon their personal property, and every time he cannot collect the capitation tax, the common schools of the Commonwealth will suffer. It does seem to me this matter ought not to be passed in the shape it is,, but that this amendment or some other amendment ought to be adopted. The President: The question is on agreeing to the amendment offered by the gentleman from Alleghany (Mr. Anderson). The amendment was rejected. The President: The question is on agreeing to the amendment proposed by the gentleman from Winchester (Mr. Harrison). The ayes and noes were ordered, and being taken, resulted — Ayes, 21; noes, 46. The motion to strike out was rejected. The President: The question recurs now on the adoption of Section 6. Mr. Epes: Mr. Chairman, I desire to offer an amendment, that I started to present to the Convention a few days ago. It is an amendment to Section 6, by inserting after the word "said" in line 12, the word " State," which will leave the present provision in regard to State capitation taxes non-collectible out of the poor debtor's exemption. I then propose to add at the end of the section the following: DEBATES or THE COXSTITUTIOXAL COXVEXTIOX OF VIKGIXIA. 2867 And the General Assembly may authorize the board of supervisors of any county or common council of any city or town, to levy an additional capitation tax not exceed- ing $1 per annum on each of such persons, which shall be applied in aid of the public schools of such county, city or town, or to such other county, city or town purposes as they shall determine. The idea is to require the negroes to pay a more equitable proportion of the burdens of the public school system, and of the local expenses of the counties, cities and towns, than they do now. As has been repeatedly said here, they pay a very small portion of the taxes which go to support the public schools. The white portion of the Black Belt of the State feel very keenly the fact that the* school taxes which they pay go to support the negro schools. This proposition, if carried, will require the negroes to pay a greater proportion of that tax, which is applied to the public schools and local purposes. At the same time it can be added by the Suffrage Commfttee in the suffrage ordinance, by simply inserting a provision that all capitation taxes assessed against them shall be prepaid six months before the election. I did not put that in as it is not a part of my amendment. I simply mention the fact that the Con- vention, if it thinks proper, can include this suffrage ordinance hereafter. The object of this amendment now is to raise an additional fund for free school purposes and for local purposes, and to make the negro vrho pays no part worth mentioning to that fund pay a more equitable proportion of it. Mr. Stuart: Mr. President, I trust the members of the Convention will pardon me for a few minutes and permit me to give some suggestion^ which occur to me in the consideration of this amendment. It may be recalled by some of the members of the Convention that I offered a suffrage scheme which embodied in part the prin- ciple proposed by the gentleman from Dinwiddle (Mr. Epes), that is that the capita- tion tax should be adjustable in amount to varying conditions as they were found to exist throughout the State, so that counties which felt that it vrould be proper to have a considerable capitation tax might avail themselves of the opportunity of doing so, through their boards of supervisors; all those counties which felt that the capita- tion tax already in force and levied by the State of $1.50 was sufficient should confine their tax to that amount. As an original proposition, representing as I do a constitu- ency beyond the Alleghanies, I would not be prepared to give my adherence to the proposition of the gentleman from Dinwiddle. I am one of those who believe that the obligation of educating the masses of the people rests properly upon property; and yet when I consider that the proposition suggested by the gentleman from Din- widdle carries with it some possibilities in the solution of our suffrage problem, I feel that it is my duty to support his amendment. The liberty is given through the Legis- lature to the boards of supervisors of any county to increase the capftation tax from ^150 levied by the State, by the amount of $1, which additional $1 is to be levied by the board of supervisors of that county. I dislike to refer to the provisions of the suffrage scheme which I have already referred to. The members of the Convention who recall any of the salient features of that proposition will remember that upon that one point turns, very largely, its efficiency. The whole of the.' provision as to capitation taxes is presented by the Taxation Committee as a result, I may say. of a suggestion of the Suffrage Committee, and they adopted practically waat the Suffrage Committee thought was best in dealing with this question. I would like to have the memlDers of the Convention deal with it further on the line suggested, with regard to the proposition made by myself on suffrage. I only wish to make this personal explanation, that whereas I should dislike to give my adherence to such a principle as an original proposition, yet, under the circumstances which confront us, and under the difficulties which surround the solution of the problem of suffrage and the prob- lem of making the negro bear his just proportion of the burden of educating his own race, I feel that it would be only the proper thing to do. Looking at him from the standpoint of the greatest good to the greatest number and considering that it entails 2868 DJEiSATES or the CONSTITUTIOJiTAL CONVENTION OF VIRGINIA. no burden upon the white districts of the State except such as they may willingly assume, through their boards of supervisors, and we all know that no white county will ever increase the capitation tax, I think it is the duty of the members of this Convention to give their full and cordial support to this proposition, and adopt th© amendment as presented. Mr. Keezell: Do I understand that it is contemplated that the payment of this additional dollar should be a prerequisite to voting? Mr. Stuart: Under my scheme it is, but not under this amendment. This com- mittee does not deal with that feature. Mr. Meredith: May I call your attention to the fact which possibly may have some bearing upon your position in this matter? The committee had before it a resolution something like this; but on reconsideration it vv^as voted down by a very narrow majority. I want to call your attention to the fact that this does not give the power that the resolution did which was passed by the committee. It does not give the power to the board of supervisors to determine this thing for themselves, but it provides simply that the General Assembly may authorize any county to pro- ceed in that vv^ay. So you have got to get first the consent of the General Assembly before any county can proceed to assess this capitation tax. Mr. Keezell: I object to this amendment for the reason that I do not believe it is proper or right to undertake to impose a heavier head tax upon the people of this Commonwealth than $1.50. You are, by this resolution, giving authority to the Gen- eral Assembly to impose by the action of the board of supervisors of a county or com- mon council of a city, an additional head tax of $1, making the tax $2.50. What is the effect of that? Evidently what is intended by this resolution is that if you go to a certain county or to a certain section where the people are relieved of paying the $1.50 as imposed by the State as a prerequisite to voting, which is distributed to the public schools of the State according to school population, they may levy this additional tax, which they may use the process of the law to collect, and keep it for their own use. What is the effect of that? Take a section like the one which I represent on this floor, where they always have paid the capitation tax and where I have no doubt they always will. You will find that their money is taken and dis- tributed to the sections of the State where the capitation tax is not paid, and they get no more credit in the method of distributing this capitation tax than they would if they did not pay the tax. Take a city like Norfolk or Richmond, or a county like Prince Edward and other counties of this Commonwealth, where a very small per cent, of the capitation tax is paid for free school purposes, and the public schools of those counties get the same amount of money for their schools that they would get if they had paid up every dollar of the capitation tax, while those cities which now pay practically all that is assessed against them get no more advantage, so far as the distribution of the public money is concerned, than if they did not pay it. You propose by this proposition, to accentuate that condition. Mr. Stuart: Do you think, under this provision, it would be possible to levy an additional tax of one dollar per head in the county of Rockingham? The representa- tive of the county in the General Assembly may ask for it, the Legisiature must grant it and the board of supervisors must be elected to give it. All of these conditions must meet. Mr. Keezell: We have had agitation in our county for years as to whether or not, if you elect certain men to the General Assembly, they would not favor some process of restoring the compulsory system of labor upon the roads which is in fact nothing but an additional capitation tax. Take it for as far back as I can remember, and there has been a capitation tax of $1.50. The people are satisfied to have that tax, and there is no opposition to it; but if you make it possible that another dollar shall be levied, every time you come to elect a member of the Legislature you are going to have that issue. I do not pretend to say that there are not people in the county DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF VIRGIXIA. 2869 who would favor it, but you will have that question raised, and you will have agitation upon that subject, v/hich I think you ought not to have. Therefore 1 am opposed to this amendment. So far as my section of the State is concerned, you have nothing to gain by it except the probability of causing agitation every time you elect a mem- ber of the General Assembly. You have nothing to gain by it because if you pay all of your capitation tax now you get no more credit for it than the section does that pays none. Not only is it distributed to those counties who do not pay their proportion of the tax, but you go into the revenues received from other subjects of taxation, and take that money which has been paid by sections of the State where taxes are really paid and make good to the school fund all or practically ail of the money which is lost to it by the default of the taxpayer in paying his head tax. I, for one, do not think we ought to encum- ber this article by putting in this provision which is going to be, in my opinion, a source of dissatisfaction throughout all the sections of the State, by making it pos- sible to put a burden of $2.50 upon a head, when you now only have a burden of $1.50. Mr. Robertson: Mr. President, as I am the representative of what is generally known as the white part of the State, I desire to say a few words in regard to this amendment offered by the gentleman from Dinwiddle. I agree with every word the gentleman from Russell (Mr. Stuart) has said about this matter. It does seem to me that there are two reasons why this amendment is a good one. One is that the people in the Black Belt of Virginia certainly have a great cause of complaint with refer- ence to the burden that is put upon them in educating negro children in that part of State. They can get relief to some extent if the people of the counties in that part of the State choose to put it upon themselves. I take it for granted that the Legis- lature will pass any law that the people of those counties want passed, because it is a local matter. Those of us who do not need any law of the kind, like the county of Rockingham, from which the gentleman who has just taken his seat comes, will not be disturbed by it. But the people who live in that part of the State have gof to consider, to a great extent, in my opinion, the people in the eastern part of Virginia. It will not do for us to talk here as though we were in a different State from those people. Our interests and their interests are combined. I cannot see, for my life, how it can hurt anybody in our portion of the State, where we have no idea that any such additional tax will ever be imposed, because we do not need it there, to let those people, if they choose to do it, impose this additional tax upon themselves for the purpose of raising a larger revenue from the benefit of these schools or for the pur- pose of restricting these people in their right to control elections. I think the suffrage question does cut a figure in it; but I think we ought not to let that suffrage question cut too much figure. The main question is one, of education the gentleman from Dinwiddle suggests. The only argument I have heard made against this proposition is that it will agitate the people, that we will have issues raised before the people, and that the men who are running for the Legislature will be met with the question: Are you in favor of voting for this law or not? There has been a great deal of argument on this floor along that line that we ought not to have issues raised before the people of Virginia, and that we ought to allow these slick politicians to slip into the Legislature without any issues being raised. I respect- fully submit that is exactly what the people of Virginia need. When a man goes to the Legislature the people ought to know how he is going to vote on economical ques- tions as well as on political questions. Heretofore we have been compelled by our circumstances to send men here for political reasons, when everybody knows that nine-tenths of the questions that come up before the Legislature are economic ques- tions, on which men are bound to differ. I cannot see any harm In this provision. The county of Rockingham cannot be injured by this provision, because as the gentle- man from Richmond has pointed out, it requires two bodies to impose a tax of this kind. You have got to get a majority of the Legislature to adopt such a law in the 2870 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. first place, and then the law has no operation whatsoever unless the board of super- visors of the particular county choose to impose this additional capitation tax. How can it hurt the people of Rockingham or the people of my county, or the people of the county of the gentleman from 'Russell to have that question raised before them? I cannot see. There is too much talk here about our trying to keep everything av/ay from the people that we must, in this Convention settle every question for all time and never allow the people of Virginia to have questions of a practical nature raised and discussed before them. I respectfully submit that what our people ought to have, and v/hat they have needed ever since the war, and what, if it had not been for the curse of universal suffrage, they would have been able to have, is to divide like tEe white people in other States on economical questions, and questions of taxation, and those questions v/hich involve the interests of our people. This is a local matter. These people in the eastern part of Virginia appeal to us for relief. They say they are having a burden put upon them which is too heavy for them to bear, that they are being compelled to educate a race which is getting no benefit from the education they give them. If these people are vv^illing to put an additional burden on themselves for the purpose of accomplishing that object, I cannot see, for my life, why we should prevent them from doing it. 1 have heard it suggested here that this thing ought not to be done because it is only an attempt to get a certain suffrage clause into this Constitution. I, for one, vvant to state here that I did not come here with any suf- frage clause in my pocket. I have got none now, i did not, from my standpoint, consider that suffrage was the most important question to come before this Conven- tion. It seems to me that is simply an argument in the air. This cannot affect the suffrage question. The gentlemen who advocate the majority plan that has been in- troduced here, v/ith the permanent understanding clause, make no suggestion that a capitation tax will be effective in this matter. They, themselves, say that it does not cut any figure in the plan, and that it has just gone in as a sort of make v/eight. If that be true, I cannot see how they can claim that an increase of this capitation tax is going to have any effect on that question. It v/ould not affect my vote one iota. I do not think it will affect a single member in this Convention on the suffrage ques- tion, for us to let the people in the various counties of this State impose local taxes upon themselves, which will enable them to carry on their public free schools at their own expense, if they see proper to do so. I, for one, hope this Convention v/ill vote for the amendment offered by the gen- tleman from Dinwiddle. Mr. R. L. Gordon: As one of the representatives of that section of the State that is cursed by this unfortunate vote, I desire to say only one word in upposition to this proposition, which I am very much surprised to see, comes from that section of the country. I am one of those who do not believe that we can separate this question of of capitation tax from the suffrage question. In every plan that has T3een advocated here the payment of this capitation tax is made a prerequisite to the right to vote. That tax must be either a revenue or a disfranchiser. If it operates as a disfranchiser it cannot operate as a revenue producer. The two things are absolutely inconsistent. Mr. Hamilton: I do not understand that this optional tax v/hich the gentleman from Dinwiddle proposes, has anything to do with the suffrage questionT* Mr. R. L. Gordon: Not necessarily; but actually it has; because there in r_ot a gentleman within the sound of my voice who does not believe that, in any permanent scheme of suffrage which this body may adiopt, the prepayment of the capitation tax will be a prerequisite to the right to vote. One of the objects of the suffrage plan proposed by the gentleman from Russell (Mr. Stuart) is to give the localities the power to levy this additional tax for suffrage purposes. I am one of those who do not believe in the efiicacy of the capitation tax, of itself. I firmly believe that the proposed capitation tax in this State, so far as the suffrage is concerned, will dis- qualify as many white people as it will colored people, and in some sections of the DEBATES OE THE COXSTITUTIOXAL COXYEXIIOX OE VIEGIXIA. 28 Tl State it will, in my judgment, disqualify more. I am perfectly satisfied that no capi- tation tax we may impose 'will disqualify the colored men in my section of the coun- try, or any considerable number of them. I am in favor, Mr. Chairman, of the capitatioa tax. an-d 1 do not hesitate to say so, because I believe it will disqualify* some white men in Virginia who ought to be disqualified. But, sir, as a proposition to strike at the race that we are seeking to disqualify the race that ought to be disqualified, I do not believe that it will ope- rate._ My main objection to the proposition is that we have been laboring in this body to reduce the taxes in this State, to reduce the expenses of the State and give it a more economical government. I am opposed to a proposition to levy upon the poor- est, the weakest part of the people of the State an additional tax at the same time you are taking the taxes off of property. What is a head tax but property tax? It is a tax upon the man who has no property, but it takes property to pay it. I do not believe, sir, that it is wise to leave this question to be agitated before the General Assembly of Virginia. The gentleman from Roanoke says that these great questions ought to be agitated, and that such agitation would prevent slick politicians from getting into office. Then, why do we fix the limitation of the suffrage provision in our Constitution? VvTiy have any provision about it at all? VTiy not let the Legisla- ture determine the question of suffrage and relieve this body from the consideration of that onerous question? V^Tiy, sir, it is because we know that in every community in this State that question would be continuously agitated, and there would not be an election of a Legislature in the State of Virginia where this question as to an increase of the capitation tax, indirectly affecting the right of suffrage, would not be raised in every county of the State. If there is one great question that ought to be settled by a constitutional limita- tion, it is the right to vote. It ought not to be left to the continual uncertainty and continual agitation of politics, vrhere every demagogue in the community would be seeking to arouse one class against the other, and in every way possible seeking to break up the peace of and stir up strife in the community. If there is one question that ought to be settled by our Constitution it is the amount of this capitation tax, and it ought to be settled for every county in this State. The Constitution which we are now seeking to amend fixed that tax at SI. 50, and your able and learned commit- tee have determined that $1.50 is a proper capitation tax. I say if it is proper for one county in the State, it is proper for all the counties in the State. To the gentle- men of the white section of this State who talk about the Black Belt, and say the^^ want to leave us out of the suffrage question by tendering us the right to levy an additional capitation tax, which must be levied on the white man and" colored man alike. I say I cannot thank them for that sort of medicine, for, in my humble judg- ment, it will do no good. but. on the contrary, will keep us in a continual state of agi- tation, which will destroy the peace and happiness of our community. Mr. Keezell: Would not the effect of it be that you would not get it from a man who did not pay SI. 50,' and that you would put an additional burden on the poor man who does now pay his tax? Mr. R. L. Gordon: Exactly; you increase the burden of the man who now pays, and you do not get an additional cent from the man who does not pay. Mr. Stuart: If you did not get a cent from the man who did not pay. I want to know whether or not you would lose his vote. Mr. R. L. Gordon: Certainly you do; but I contended that if SI. 50 does not keep a man from voting. S2.50 will not keep him from voting. The man that will pay $1.50 for the privilege of exercising the right of suffrage is going to pay whatever tax is necessary in order to permit him to exercise that right. But it will increase the burden on the good men that are now bearing more than their just share of the bur- den of taxation in this State. It will increase the burden upon the weakest men in your State. That is the difficulty about it. You are decreasing the tax on property and increasing the tax on poverty. 2872 DEBATES OF THE CONSTITUTIOA^AL CONVENTION OF VIRGINIA. Mr. Barbour: I will state that in the town where I live now we levy a poll tax every year that everybody knows is unconstitutional, and still there is no objection to it. Mr. R. L. Gordon: I am glad to hear the gentleman arise in this Convention and say that he represents a constituency that pays taxes voluntarily. I did not know there was such a county in the State; and I congratulate Culpeper. I want to say, Mr. President, that I read an article in one of the Atlanta papers the other day, in which that paper vv^as appealing to the white men of the State to come up and pay their capitation tax. It was cited as an historic fact that the young men around the cities would spend dollar after dollar in all sorts of folly when they would not go up and pay the assessor $1.50 capitation tax, and if they did not pay it In a very short time they would be deprived of the right to vote. That is the actual condition of things where it is working. I want to say to the gentlemen of this body that when they undertake to put an additional capitation tax on the people of Vir- ginia and then provide that it shall be a prerequisite to voting, instead of disfran- chising the African, they are disfranchising the Anglo-Saxon. Mr. Mcllwaine: Mr. President, I do not want to make any protracted remarks In regard to this matter. I desire to say, as a representative of the Black Belt, that it seems to me there is very great merit in the amendment offered by the gentleman from Dinwiddle. It has been discussed, it seems to me, too much from the point of suffrage, and has not been sufficiently considered from the point of view stated by the gentleman from Dinwiddle (Mr. Epes) when he offered it, namely, with reference to education in the counties. There is a great need of an amount, in addition to what we have at our command in our counties, for school purposes, and if it can be gotten with the consent of the people, it seems to me that no movement could be carried through that would be more fraught with good. I do hope that the members of the Convention will vote for and adopt this amendment. No county is bound to levy the additional tax unless it wants to. If it wants it, it ought to have the privilege of obtaining it. Mr. Garnett: I want to say that I heartily endorse what has been said by the gentlemen from Prince Edward in support of this proposition. The main feature of it is to give the people a fund for education in the public schools. I am not like my friends from Rockingham and Louisa. I want this question agitated in my county. We are looking forward to a time when we will have more than four months in school in the year for our children. I want it agitated so that when we do send a member to the Legislature he will come here directed by the people to give us the privilege of adopting this additional head tax in order that we may have school carried on for a longer term. I want to say that I would oppose any additional capitation tax as a prerequisite to the right to vote. I understood the purpose of it to be to help the free schools in the various communities and that it was not to be a prerequisite to the right to vote. Mr. Hamilton: Mr. President and gentlemen, I want to say that I think this is a meri- torious amendment. I think there has been a misapprehension on the part of some gentle- men as to its object or purpose. It is well known that I do not favor the suffrage plan of the gentleman from Russell (Mr. Stuart) because I signed the majority report of the Suffrage Committee, and yet I think this is a proper amendment. It has noth- ing to do with suffrage, and it is not intended ever to have anything to do with suf- frage, unless this body adopts the suffrage plan of the gentleman from Russell which I think is improbable. It has no bearing upon the question. The whoie of it is simply this: If the member of the Legislature from any county or city secures permission from the Legislature for the local tax body of that county to put this tax on for school or other purposes, the local tax body may impose the additional tax. Then if the people want it, they may be permitted to elect their councils or their supervisors to do it, and the object of that is exactly that stated by the member from Dinwiddle (Mr. DEBATES OE THE COXSIITUHOXAL COXTEXIIOX OE VIEGIXIA. Epes) and none other. Ii is to enable the voters and no one else to levy an additional capitation tax, v;-hich will have nothing to do with suf- frage, which will have no bearing upon suffrage, to be applied either to school purposes or other proper local purposes, and it cannot be done unless the voters in each county or city which chooses to adopt it practically approve it at two elections, one when they elect their supervisors or members of the city council. It is really local self-government in the highest degree, and the object of it is to make that great class of people who now constitute a burden upon these localities contribute something in a very small way to the bearing of those burdens. Nothing is put upon anybody. It has no bearing upon the question of whether the taxes collected in Rock- ingham are not evenly distributed there. It does not make any portion of the poll tax that is collected in Rockingham go to Dinwiddle. It has no bearing on the State capi- tation fund. It is purely a local tax, and it is practically saying, -'VTe will permit these localities, if fhey choose, to have a dollar capitation tax for their local purposes, provided their people want it, and not otherwise. 1 think this is one of the most meritorious amendments that has been offered, and I hope that gentlemen who cannot be hurt by it will allow those parts of the State which need it very much to have it. The Presiding Officer: The question is on the adoption of the amendment pro- posed by the gentleman from Dinwiddie (Mr. Epesj. Mr. Garnett: On this question I am paired with the gentleman from Augusta (:\Ir. Quarles). If he were present he would vote nay and I should rote yea. The question having been taken the result was announced — Ayes, 44; noes, 27, as follows: Ayes: Messrs. Allen, Ayers, Barbour, Manly H. Barnes. Thomas H. Barnes, Bouldin, Brooke, Brown, Cameron, Chapman, Epes, Fairfax, James W. Gordon, Gregory, Hamilton, Hardy, Ingram, Ciaggett B. Jones, G, W. Jones. Kendall, Mcllwaine, Meredith, Miller, Moncure, R. Walton Moore, O'Flaherty, Parks. Pollard, Portlock, Rives, Robert- son, Stebbins, Stuart, Tarry. Thornton. Turnbull, Walker, Wescott, Willis, Wise, with- ers, Woodhouse, Wysor and the President — 44. Xoes: Messrs. George K. Anderson, Barham, Blair, Bolen, Carter, Crismond, Daves, Earman, Fletcher. Gilmore. R. L. Gordon, Gwyn, Harrison. Hooker, Keezell, Lincoln, Lindsay, Lovell. Marshall, Mundy, Pedigo, Phillips, Richmond, Summers, Thom, Waddill, and Yancey — 27. :\Ir. James W. Gordon: I wish to offer this amendment, ]\Ir, President, I know well when I have gotten enough of a thing, and I should not offer this amendment now except that I believe the members of the Convention, a while ago in voting down the amendment I offered to this section, did not really get the gist of the matter. There- fore I beg leave to off>r this and to explain in a few words what its eft'ect is. The Secretary read as follows: Amend Section 6 in line 14 by striking out the words " levy or distress " and sub- stitute therefor the words levy, distress or garnishment " and by adding to the sec- tion the words " or the laboring man's exemption," I\Ir. President, I hope I may have the attention of those members of the Conven- tion who believe that poll tax should be imposed in order to deter people from voting. A while ago. by an overwhelming majority, the members of the Convention decided that they did wish to impose a poll tax in order to deter certain classes of the com- munity from voting. If you will turn to the Code of Virginia you will find that the chattel property which is exempted under the poor debtor's law is set out in Sections 3650 and 3651. In these sections the language levy or distress " is used, the very language which the Com- mittee on Taxation and Finance have used here in regard to the poll tax. When you go to Section 3652 you find this language: " There shall also be exempt from levy, distress or garnishment " the wages of the laboring man not exceeding S50. If we ISl — Lonsi, Deb. 2874 DEBATES OF THE CON-STITUTIONAL CONVENTION OF VIRGINIA. adopt this language here limiting it to levy or distress, as reported by the committee, it can be very forcibly argued that we did not intend that it should apply to the wages of the laboring man, which are mentioned in Section 3652, because we have not used the words " garnishment " and have not referred to it. As a matter of fact, when we speak of the poor debtor's exemption, we refer to the chattel property which is exempted under Sections 3650 and 3651. If I am correct about that, then it would be impossible, even in the face of the overwhelmingly expressed opinion of the Convention as to the purpose of poll tax, to have the poll tax collected in large numbers by the process of garnishment and thereby defeat the avowed purpose of the Convention. If it is proper that this poll tax should not be enforced out of the poor debtor's exemption, the very same reason applies in regard to the laboring man's exemption of $50. There are hundreds of thousands of $50. There are hundreds of thousands of laboring men from v*^hom this poll tax could be collected by garnishment who would hardly have sufficient property under the poor debtors exemption to make it. My friend from Northampton (Mr. Kendall) told me there were hundreds of poll taxes collected from the negroes in his county by a process of garnishment just in this way. If the Convention wants to collect a poll tax as a prerequisite to voting and wishes to say that that poll tax should not be enforced by legal process, so as to keep the negroes away from the polls, then certainly v/e ought also to include in this language the laboring man's exemption of $50, so that the officer will not be able to turn away from the man's door and away from his chattel property and go right down to his employer and collect a dollar. I trust, for these reasons, this language will be adopted. The presiding ofiicer: The question is on the amendment of the gentleman from Richmond (Mr. Gordon). The amendment was rejected. The Presiding Officer: The question now is on the ^adoption of Section 6 as amended. Mr. Parks: I offer the following amendment: After the word "but'^ in line 12 strike out all the baiance of the section down to and including the word "law" in line 15, and insert in lieu thereof the following: "But the General Assembly may provide by general law for exemption from the payment of such tax all persons who because of physical disability or indigency, are unable to pay such tax." I will state that that does not affect the amendment of the gentleman from Din- widdle (Mr. Epes). The amendment which he offered and v/hich was adopted would follow the amendment I offer. Nov\^, Mr. President, I ask the attention of the committee for a fe^\^ minutes. It is with a great deal of hesitancy that I oppose the report of this committee. Gentlemen of the Convention will bear me out in the statement that it is very seldom that" I have risen to oppose the report of any committee, and I have only done so where I believed it is my duty in the interest of the people of the State to do it. When a matter is referred to a committee composed of gentlemen of intelligence and acknowledged ability, for whose ability, intelligence, honesty and patriotism I have the very highest regard, and when they give that matter, month after month, their careful, calm, deliberate consideration, I feel almost persuaded at all times to fall in v\^ith them, believing that they have marked out the proper course for the Convention to pursue. But, Mr. President, I cannot agree to the provision in this report which provides that the capitation tax shall not be a lien upon property that is exempt under the poor debtors' law, not because I would have the capitation tax levied out of the property exempt under the poor debtors' law at all, but, like the gentleman from Frederick (Mr. Harrison) I come from a section of the State that, so far as this Constitutional Con- vention is concerned, was influenced very little by the question of suffrage. We are DEBATES OE THE COXSTITUTIOXAL COXYEXTIOX OE VIEGIXIA. 2875 very apt to be influenced to a very large extent by our environment, and to look at the condition of our neighbors and their environment, and feel that because we are safe we will protect ourselves and let others do the same. I do not feel that way; but the question before my people v/as not the question of suffrage. It was the question of an economical administration of the government and a distribution of the burdens of government so that each man would bear his part. We say in this provision that a dollar and a half capitation tax shall go to the education of the people, and yet by the latter part of the section it seems to me we are educating in the wrong wa3^, I believe, Mr. President, that when I accept the benefits of government, it is my duty to bear the burdens and the responsibilities of government. I know it is said and will be said, as was stated when we had the capitation tax as a prerequisite to voting before, that if this country gets in trouble you do not go to a man and ask whether he has paid his capitation tax and, if he has not, re- fuse to call upon him for military. That is a false idea. It is a man's duty to shoulder arms and protect the government that protects him, whether he pays a capitation tax or not; but I repeat we are educating the wrong way, and this matter will go a great deal farther, in my judgment, than we now imagine. We exempt pensioners. I do not like that. I do not like it for the reason that you exempt from the payment of this tax persons who are now pensioned by the State for military service. In my county you will find thirty-odd pensioners, and in another county in the State, with no m.ore population than my county, you will find three hundred and fiftj'-seven pensioners. In that county three hundred and fifty-seven men are exempt from the payment of the capitation tax, because they receive a pension for military service, while in my county, with an equal population, there are only thirty-odd ex- empted. But I am willing to pass that by, knowing that all those pensioners, like myself and like all other Confederate soldiers, will soon pass over the river to answer roll call on the other shore, and in that short time I am willing to let that go by, although I do not like it but when you come to say that a man shall be exempt from the payment of this capitation tax and that the capitation tax shall not be demanded by legal process out of the poor debtors' lav,% what do you exempt? Mark 3'ou, in my judgment — I may be wrong, but I am honest in it — this $50 a month to the labiring man is a part of the poor debtors' exemption, and yet you cannot take that. Here is a man working and getting SoO a month, $600 a year, and yet you exempt him from the payment of a capitation tax. Is it right? Is it just? How far will it affect the revenues of the State, :'n the first place, and in the next place, how far will it affect the proper standing of the citizens of the State, when you teach them that they shall be exempted from the discharge of their duty as citizens to the govern- ment that protects them in the enjoyment of life, liberty and property? Not only that, but here is a man who is exempt because of the poor debtor's law. He does not want to pay his tax, and you cannot make it. Around him are others, one or more citizens in the same condition, so far as property is concerned. You cannot make the tax. Yet heretofore they have felt the obligations of government bearing upon them, and they have come forward as good citizens and paid their capitation tax; but when they look around and see that their neighbor, having as much tangible property as they have and in addition to that in some instances making largely more money than they are making by their labor, because of his physical ability to do so, is not paying his tax, what will be the effect on them? Seeing that their neighbor enjoys this immunity from the discharge of the obligations of good government they will say " He is better off than I am.; he is better able to pay than I am. Though I have here- tofore paid because of the obligations resting upon me, I will disregard those obliga- tions, and I will not pay either." In addition to the fact that it is educating the people the wrong way, instilling into them improper principles, how far will it go towards destroying, reducing and cut- ting down the revenue of the State, and where is it to stop? 2876 DEBATES OF THE CON"STITUTION"AL CONVENTION" OF VIRGINIA. Mr. President, I propose to relegate this matter to the General Assembly and let the General Assembly provide by general law that where a man is physically unable to earn the money with which to pay, where his circumstances are so indigent that he cannot pay, the Legislature may provide by general law for the exemption of all such persons. I ask you, in the name of Heaven, in the name of justice and right an^ common sense, in the name of patriotism and good citizenship, ought there be any further exemption than this? When you come to the question of suffrage and consider that, I am willing to meet you there. I am willing to go just as far as it is possible for me to go to lift the bur- den from the people who live in the Black Belt. You all know what my opinion is on that question, and what my opinion is as to the race that is inflicted upon them. I hope the Convention will adopt this amendment. The amendment was rejected. Mr. Wescott: Mr. President, I wish to offer an amendment to Section 6 as follows: In line 7, before the word "in" insert the following words: "Within counties and cities whence derived," and after the word " population " and before the word " and " in the same line insert the words " of the respective school districts therein,'' so that "the section when amended would read: "One dollar of which shall be applied exclu- sively in aid of the public free schools within the counties and cities whence derived, in proportion to the school population of the respective school districts therein " I wish to say before discussing this matter — which I shall do in the most abbre- viated manner, resting with merely pointing out the inherent justice involved in the proposed amendment — that I have submitted it to the chairman and to every member of the Finance Committee who is present upon the floor, and while one or two of the gentlemen have said that something might be suggested in argument which would con- stitute an objection to the amendment, but insofar as they were then able to consider it, it had their unqualified approval. Further than that, I have suggested it to the chairman of the Committee on Education, and I believe I am authorized to state that insofar as he has been able to give it consideration, such consideration being neces- sarily cursory only, it has his approval, with the reservation that there is some con- flict between this provision and a provision bearing upon this subject heretofore adopted by both the Committee of the Whole and the Convention. That conflict, I wish to say, however, as suggested to the chairman of the committee, is one that can be easily adjusted and reconciled by the Committee on Revision, and constitutes, I think, no serious objection, certainly no barrier, to the favorable action of the Convention upon the proposed amendment. Mr. President and gentlemen, I do not wish to detain you for any length of time to discuss this proposition. The unanimity with which the suggestion has found favor in the minds of the membership of the committee is a proof conclusive, as it appears to me, of the inherent merit of the proposition itself. Its only significance, gentlemen, is that: It provides for a basis of distribution of this capitation tax among the several sub-divisions of counties and cities of the State in the exact proportion in which those several sub-divisions have contributed to the payment of that tax. There is no design to break in on the recommendations of the Committee on Education of the policy of the attitude of the State towards the free schools as a general question, but to limit it only to the question of a capitation tax. In conclusion, I submit that no one can for a single moment, as it appears to me, undertake to controvert the inherent justice and righteousness of the provision that every local sub-division of the State of Virginia shall enjoy the proceeds of its one dollar capitation tax appropriated to the public schools and in the exact proportion to the extent to which they contribute to it. I submit this one further consideration, gentlemen. It will give an interest in the payment of this poll tax in certain constituencies of the State which it might be invidious to mention, and I believe will have a beneficial result in that respect. DEBATES OF THE CONSTITUTIOXAL COXVEXTION OF VIKGINIA. 2877 Mr. R. L. Gordon: Mr. President, I wish to ask the proposer of the amendment a Question. Would not the effect of your amendment, within a county having 99 per cent, of white people, we will say, who are paying taxes, be to distribute the entire fund in that county, and as to the people who do not pay taxes in the more unfortunate counties of the State where the negro vote predominates, to compel them to bear the education of the white and the colored people also? Mr. Wescott: I think the amendment is susceptible of no such construction. Mr. R. L. Gordon: Mr. President, I hope the amendment will not be adopted. The effect of the amendment, unless I misapprehend its import, is that the capitation tax collected in each county shall be distributed in that county. If you take a county that is so unfortunate as to have three or four thousand negro majority, the people of that county will have to bear the burden that the white people of the State are now bearing and that the white people of the State ought to bear, because the counties that are afflicted with these people ought not to be more afflicted with them than they are now. If the education of the children of the State is a State matter, it does seem to me the gentlemen who are located in the more favored sections of the State ought not, by such an amendment as this, to throw the whole burden of negro education upon that portion of our community that is already afflicted with that race. It must have that effect, Mr. President, and it seems to me it is unjust and unrighteous. The Black Belt of Virginia is now bearing a tremendous burden, and I do not believe that even the gen- tlemen who represent the white sections of the State will willingly vote to increase that burden. Mr. Stuart: Is not your argument based upon the idea that the white man will pay the capitation tax and the negro will not? Mr. R. L. Gordon: My idea is based on that to a large extent, Mr. President. Mr. Stuart: I understood you to deny that proposition this morning and to say that you thought as many white men as negroes would be cut out by the capitation, tax. Mr. R. L. Gordon: I did make that statement, that as many white men as negroes would be cut out by the non-payment of the capitation tax, by the non-property holders of the State. I believe more of them will be, but the gentleman from Russell knows as w^ell as I do that the property holders of this State are white men, as a rule, and that you are laying an additional burden upon the property-owners of the Black Belt of the State, where a white man's property is already depreciated by the presence of the negro, and where the conditions of life are harder on account of his presence. You want to put upon him the entire burden of educating that number of white people, and I say the people of the white sections ought not to do it. Mr. Mcllwaine: Mr. President, the only objection I can see to the amendment offered by the gentleman from Accomac (Mr. Wescott) is that it seems to be invading the idea of the State's duty to carry on the education of the children of the State. After consulting a number of gentlemen in Eastern Virginia and reflecting on the fact that the amendment is offered by a gentleman from this part of the State, and after having been told by a number of gentlemen that poll taxes in our part of the State aro' paid about as regularly and n as large proportion as in many other parts of the State,, I can see no injustice in the adoption of the amendment that has been offered; and as I began to say, the only objection I can see is that it seems to strike out the State sys- tem which has been hinted at by the gentleman from Louisa (Mr. Gordon) ; that is to- say that it is the duty of all parts of the State combined together, and especially for the- stronger parts to help the weaker in educating all the children of the State. Mr. R. L. Gordon: Does not the gentleman think' it would be wiser to have the law so perfected and administered as to prevent this condition of things rather than try to prevent it by Constitutional amendment? Mr. Thornton: I think one of the reasons why there is this large amount of delinquent taxes, is due to the fact that the officers in the delinquent counties fail 2878 DEBATES OP THE CO^s^STITUTIONAL CONVENTIOivr OE VIRGII^IA. to discharge their duty for the reason that they know these taxes are paid into a general State fund, and then distributed in proportion to population, thus offering no induce- ment to the officers to collect, or the people to pay, as the amount received by a county does not depend upon the amount paid. I say this is unjust and wrong, and exceed- ingly unfair to counties like mine that pays its taxes. It is this inequality we wish to correct. There is a disposition all over the world, when it comes to a general scuffle to get what you can, and the laws should be so made, as to dispense with this necessity. Take the little county of Northumberland, that has a large colored population, and yet you will find there are only 126 delinquents in the entire county and yet in other coun- ties close by (I do not mind naming those which are doing well, but I do not care to mention by name those that are not doing well) we find with equally as many colored people, the delinquents run into the hundreds showing conclusively that the delinquents vary in the Black Belt as well as elsewhere, and hence the contention of the gentle- man from Louisa (Mr. Gordon) is not correct. When you come to the cities, you Yvill find that but a small percentage pay. As has been stated here, in a city of 19,000 inhabitants, 15,000 of that number are delinquents. You will find a city in this State which I could mention, where there are 3,600 polls, anci only a few hundred have paid — worse than the city of Richmond, that has been referred to here so often. And so it is throughout the entire list. You take the county of the gentleman from King and Queen (Mr. Jones) and there are only a little over 100 delinquents in the entire county. Mr. Claggett B. Jones: And with 1,000 more negroes than white population. Mr. Thornton: Yes, sir; with 1,000 more negroes than whites, is it right and just to take the money that these people pay and give it to those who do not pay. I know the gentleman from Louisa (Mr. Gordon) is as fair and honest and honorable, and wants to do right as much as any man , on this floor, and I ask him whether it is right and just that money shall be taken from this county with a negro majority of 1,000 and give it to other counties similarly situated, who pay so little? The people throughout the State are complaining of it, and justly so. They say " You are sending our money to educate people in other portions of the State. "Why should we try to pay . our taxes and do what is right when other people do not?" I say it would be far better for my county, because my county pays a good deal more than it gets back, not only in schools but in every other way. We get but little from pensions and pay largely. I will state that if you will examine this report, you will find that the condition of the tax on personal property is just about as bad as the capitation tax. Mr. Kendall: W|e have been discussing this question here from two opposite irreconcilable standpoints, this whole morning. In the minds of some gentlemen it is desirable that this capitation tax shall be collected. In the minds of others it is desirable it shall not be collected. In the minds of some gentleraen the fact that it may be collected by levy or distress will operate in the interests of the white people of the State. In the minds of other gentlemen on the floor, and I am one of them, that very thing will operate to the contrary. I have been amazed to see how generally accepted has been the theory of that proposition that it shall not be collected by levy would operate in the interests of the white people of the State. In my opinion there are from three to five times as many white people in Virginia who have the poor deb- tor's exemption, and nothing else but the poor debtors' exemption as there are negroes; and the inducement therefore, will be offered to very many more white people not to pay the capitation tax as a prerequisite to vote than will be offered to the negroes. We have gone ahead here, hov/ever, and we have discussed this question, some- times assuming that the fact that it may be levied will be a good thing for the white people of the State, and sometimes assuming that it will be to their injury. Now, the gentleman from Prince William (Mr. Thornton) rises and argues with his ingenuity and his learning that we ought to enact some kind of legislation which will induce its DEBATES OE THE COXSTITUTIOXAL COXVE^'TiOX OE VIRGIXIA. 2Sid payment, and that its payment ought to be encouraged to the fullest extent by making it a local matter. i say ail this but illustrates the fact that this Convention ought first to decide, in the discussion of the suffrage feature, "\vliat is to be done upon this matter of capita- tion tax, first, last and all the time, before the minds of the members of the Conven- tion are committed to any one proposition about it. Yet we are here to-day committing ourselves upon this ciuestion by at least a tentative vote, whatever may be done with it after it is adopted. We are here to-day endorsing, to a certain extent, and perhaps one which will operate to control the final action of the Convention, as to what the policy of payment or non-payment of this capitation tax is to be. 1 say the whole thing shows the unwisaom of proceeding here at all. I have urged gentlemen privately to lay this matter by, and 1 now only rise to say that I hope no member will permit himself to be bound by any vote that he shall cast upon this section as to what we may do in the future. I do say, though, that if the Convention does adopt the course which shall induce the payment of the capitation tax by the white man and not by the negro, the amend- ment offered by the gentleman from Accomac will operate in the black counties very greatly indeed to take from those counties that portion of the tax which has hereto- fore been accorded them, and the question you are to decide is whether or not that is the part of justice and wisdom. I am fully willing to admit that much may be said on that side of the question; but I thinii this great question is one in which the whole State is interested. I, for my part, v/ould be unwilling to see the free schools in any of the black counties, my own or any other, hampered or injured by a policy which would not give them a full part of the public funds, at least to the extent which they have heretofore derived. Mr. Keezell: Mr. President, ■ 1 think there is no question but that this matter ought to be passed by until such time as we knov/ what is going to be the decision of the Convention with reference to suffrage. I must confess my vote will be very much influenced upon this section vvith reference to what may be done by the Suf- frage Committee. I am one of those who hold vievv's very much in favor of making everybody pay taxes who ought to pay them. I have served so long upon the Finance Committee of the General Assembly of Virginia that it is always a little against the grain with me to let up v\^hen it comes to a question of taxation; and yet I concede that there may be reasons why v/e should let up, in order to benefit and to help some sections of our State. I do not know what is going to be done by the Suffrage Committer or by this Con- vention with reference to the article on suffrage. I do not know whether or not the prepayment of this capitation tax will be adopted in the shape that many of us think it will be adopted. I know there is a great deal of difference of opinion about it. If allowing this money to be distributed as it is now would help some of the black sec- tions of this State, I would be willing to vote differently from what I would vote under other circumstances. I recognize, and have recognized for j'ears the injustice of the present method of distribution of this money. Mr. Hamilton: T\liat you say about that is true, if you take localities as the basis of the division of tax; but is it right to divide this capitation money, when you divide nothing else, on the basis of locality? There are certain counties that get a great deal more money out of the treasury of the State than they put in, connected with criminal expenses, judiciary work, etc. Are you going to apph- this rule only to the capitation tax and nothing else? Is that right? Mr. Keezell: I would say that it is. You tax him so much upon his head, and the supposition is that the head of a man is worth as much in one section of the State as it is in another. Mr. Meredith: Is it not a fact that the ability of that head to pay depends upon property? 2880 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Mr. Keezell: The idea is that the tax should be put low enough so that every man, who is not physically disabled from earning a dollar by his labor, can pay it. The question of how much a man may own is a different one. You take the more favored sections of the State, where the people own more property, and you levy upon that favored section certain amounts that are not levied upon the people of the less favored section, where they do not own money or property; and yet you take that money and distribute it all around over this State so as to give the poorer sections the same advantages in the distribution that you do the richer ones. I think there is a s:reat deal of difference between a tax levied on a man's head and a tax levied upon property. The capitation tax is so small, comparatively, that if there are any people in any section of this State who cannot pay it, it is because they do' not want to pay it. If you take adjoining counties, where the conditions are exactly the same, you will find that in some of them they pay up almost to a head, and In others they do not pay. 1 do not think it is right that those counties where they do pay the tax should be put at a disadvantage as compared with those that do not pay it. 1 say that my inclination is to vote for this resolution, because I believe it is equitable and right. And yet I might be induced to vote dilferently if certain things were to be accomnlished alons the line of suffrage. For that reason I think the discussion of this question at this time is imprudent, and that we ought to pass this section by until we i^-^ow what the suffrage plank is to be. Then we can vote more intelligently 'in this proposition. Mr. Harrison: Before the gentleman passes from his point I want to ask him a question. Why snould the people in our section of the country, who can be com- pelled to pay their taxes, be required to pay and send the money to other counties, when the principal object of this provision is to release them from paying their taxes? Mr. Keezell: I say there is another proposition in this report. We men all recog- nize that if we take the pensions that have been granted on account of services in the war we will find that they are most unequally distributed over this State. In the part of the State which the gentleman from Prince William represents, we find that there are very few persons upon the pension roll. You may go to another section and you will find that, in counties of the same size as his, there are ten or twelve times as many people on the pension rolls. Under the provisions of this clause, you are going to relieve these people, who are on the pension roll, from being charged with tnis $1.50. You relieve them from it absolutely. And yet because the people of Prince William have, for one reason or another, not forced themselves upon the pen- sion rolls, they are to oe charged with $1.50 capitation tax; because they have paid Zip their money fully, it is to be taken and sent into these other counties where we have reason to beneve, from much evidence that has been adduced, that men are upon the roll, dozens and hundreds of them, who are not entitled to be there. I believe this is an equitable provision, and one that this Convention ought to adopt, unless the adoption of it would interfere In some way with the suffrage pro- vision that is to be enacted by this Convention. The Presiding Officer: The question is on the adoption of the amendment, pro- posed by the gentleman from Accomac. The question navmg been taken by yeas and nays, the result was announced— Yeas, x8; nays, 47. The amendment was rejected Section 6 was adopted. Section 7, with slir at amendments, was adopted. The Presiding Officer: The question is on the adoption of Section 7 as amended. Motion was agreed to. The Presiding Officer: The Secretary will read Section 8. Section 8 The natural oyster beds, rocks and shoals in the waters of this State, as at any time defined by law, shall not be leased, rented, or sold, but shall be held in DEBATES or THE COXSTITUTIOXAL COXVEXTIOX OE YIEGIXIA. 2881 trust for the benefit of the pecnjle of this State, subject to such regulations and restric- tions as the General Assembly may prescribe. Mr. Eggleston: — Mr. Chairman, I beg to call your attention to a provision in line 2 of this section. The section reads: "The natural oyster beds, rocks and shoals in the waters of this State, as at any time denned by la'^, shall not be leased, rented, or sold." I think I know what the committee wishes to do with regard to these oyster beds; but the effect of this language seems to me to be this: It at any time, certain oyster ground has ever been, or may ever be defined as an oyster bed, that would prevent that land from being rented out. That is certainly the effect of this language as it stands now. You will observe that at one time under the Baylor survey, certain oyster beds were laid off as natural rock, and certain others as plant- ing grounds. Afterwards they found they were mistaken about it, and they had to take in some that was planting ground and leave out other that was natural oyster bed. Under this language, if at any time it is defined as a natural feed, it cancot be rented out. It seems to me that language ought to be changed to make provision for that objection. I would suggest an amendment by striking out in ilne 2, Section S 'he words "as at any time defined by law," and insert "and such natural oyster bed.-., rocks and shoals may be ascertained by law from time to time. On motion of :s1t. Fairfax the Convention took a recess until 4 o'clock. AFTER RECESS. At the expiration of the recess the Convention resumed its session, the President /n the chair. ^Iv. "Westcott: Mr. President, as a substitute for the amendment proposed by the gentleman from Charlotte CMr. Eggleston) to Section S, with a view to the acconiplish- £ieB.l of the same object by which the gentleman was actuated I offer the following amendment, which is acceptable not only to the gentleman from Charlotte but to members of the committee, so far as we have been able to confer with them. In line 2 of Section S strike out the words "' as at any time defined by law " and at the end of the section strik*^ out the period and insert a semi-colon and add these words: " but the General Assem'jly may from time to time pruvide by law for surveys to define such natural beds, rc^-Ks and shoals." I wish to sa^- this amendment is designed to render the section imobnoxious to the objection raised by the gentleman from Charlotte, and has the concurrence of all the members of the committee and those especially interested in this matter with whom we have had an opportunity to confer The amendment was agreed to. The President: The question recurs on the adoption of Section 8 as amended SectioD S was adopted. Section 9 was slightly amended and adopted. Section 10 was then read. Mr. R. L. Gordon: I move to amend Section 10 by adding at the end of the sec- tion the words "'provided, the Legislature may increase the amount of such "franchise fax at any time the public vrelfare may so require." The President: The question is on agreeing to the amendment proposed by the f^entleman from Louisa. The yeas and nays were ordered, and being taken, resulted — Yeas, S; nays, 51. The amendment was rejected. Section 10 was adopted. Sections II. 12 and 13 were read and adopted. Section 14 was read. Mr. R. L. Gordon- 'Mv. President, I desire to insert the words "190S" in lieu of the words "1913" in line 7, Section 14. 2882 DEBATES OF THE CONSTITUIIOIsTAL CONVENTION OF VIRGINIA. I simply desire to state to the Convention that the effect of this amendment will be to reduce the ten-year limitation to five years. It will keep the present system of taxation in operation for five years, and after that time leave it to the General As- sembly. I shall not press the amendment further than to make this statement. The amendment was rejected. Mr. Meredith: Mr. President, the committee desire to ask leave to add at the end of the section (making the period a semi-colon, the following: Provided however that if for any reason the said system shall become inoperative, the General Assembly shall have power to adopt some other. Section 14, as amended, was adopted. The President: The Secretary will read Section 15. Sec. 15. Until otherwise prescribed by law, trust or security companies chartered by the state, and incorporated banks, shall be taxed in the same manner in which incorporated banks are now taxed: Provided. That from the total assessed value of the shares of stock of any such company or bank, there shall be deducted the assessed value of its real estate otherwise taxed in Virginia, and the value of each share of stock shall be its proportion of the remainder. Mr. Meredith: I move to amend that as follows: By striking out the word " now " in line 4 and inserting after the word " taxed " the words " by law in force January 1, 1902." The amendment v/as agreed to. Section 15, as amended, was adopted. Section 16, relating to property exempt from taxation, was then read and amended slightly by the committee. Mr, Turnbull: Mr. President, I move to amend by adding at the end of Sec- tion D these words, which I will ask the Secretary to read: But the exemption mentioned in this sub-section shall not apply to any industrial school, individual or corporate, not the property of this State, that contracts for work of any kind, established workshops, printing establishments, or factories of any kind that do work for compensation, or manufacture articles for sale in competition with like workshops or factories in the community in which such school is located. Mr. President and gentlemen of the Convention, I would like to nave your atten- tion for a short time while I attempt to explain the importance of this amendment which I have just offered to Sub-section D. In 1888 there was an industrial school for colored people established in my town under the auspices of the Episcopal Church. That school commenced with very small proportions. In 1890 the school was incor- porated by the General Assembly of Virginia, and I was appointed one of the trustees. And I am still one of the trustees. I mention that fact in order that the position that I take in reference to this matter may be fully understood. At the time this school was established it was in a small building in the town in which I live, and, from time to time, I assisted the principal, as did the other trustee in acquiring property to advance the interests of the school. I v/ant it understood that I am heartily in favor of this system of industrial education for the colored people, because I believe it is the only line in v/hich they can be useful, and that there will be less opposition to their education in that line, in this Southern country, than in any other. Prior to the v/ar there always had been mechan- ics, and there was little friction between tlielr people and ours on that subject. That school has now grown to large proportions. It owns, inside the corporate limits of my town, from $75,000 to $100,000 worth of property. It has some buildings there that cost cost over $100,000 a piece, and they have not only established a saw-mill. DEBATES OE THE COXSTITUTIOXAL COXTEXTIOX OE YIEGIMA. 2883 but they have bought something like 1.700 acres of land for the purpose of getting timber to be sawed and worked up in competition with other saw-mills in the county. They have one or two head carpenters, who are employed regularly by the institution, and the}' work the scholars of the institution under them. They not only contract for all the buildings that are erected inside of the town, but they contract for buildings anywhere else in the county. In fact, they come in direct competition with every- body else that is in business in that county. Not only that, but they have a wheel- wright establishment that does work for compensation. They have u shoe shop that does the same thing. They have a printing establishment that does the same thing. They have got an ice plant established, but this is not in competition with any ocher industry, because there is no other industry of that kind. By the employment of one or two competent men at the head of these young men, who are there as students in the school, they can do work at a less figure than anybody who comes in competition with them. This fact has created great animosity to the school, and I think rightly £0. Xot only that, but inio competition in the town of Lawrenceville with respect to every species of property. TMienever a piece of real estate is put up for sale in our town, you will find the principal of that school bidding against our own people for everj- lot within the corporate limits of the town; and that property is rented out for the benefit of the school and is exempt from taxation. As far as I am concerned, I am a member of the board of trustees, and have at heart the interest of the school, because I believe it is doing a good thing; but I think that this opposition to the school ought to be broken down by not allowing them to come into competition with other people without paying taxes to the State of Virginia as they ought to do. >7ot only have schools of this kind been established in my county but in an ad- joining county, and I understand, in other parts of this State. If this system continues and the money comes in from other portions of the United States, and they are allowed to come into competition with other people in every way, you will have no other workshops i nthis country, and no other kind of manufacturing establishments besides those managed by these schools. I say the principle at the bottom of this is vrrong. Xo such class of people ought to set up in opposition to the people who pay taxes to the State of Virginia, when they pay no taxes. It gives them an advan- tage they ought not to have. Xot only that, but I say it creates friction. It creates ill-feeling in the community in which the school exists, and it does it naturally and properly. Therefore I hope that it will be the pleasure of this Convention to adopt this amendment, and to require schools of this kind, when they go outside of the legiti- mate limits for which schools of that sort are established, to pay taxes when they come into competition with other people who have to pay taxes. I do hope it will be the pleasure of the Convention to adopt this amendment. Mr. Vysor: That industrial school of which you speak, is not exempt by this section. Air. Turnbull: I think it is. I so construe the language. The school is not run for -nrofit. It is run for the advantage of the scholars of the instittition. It is all risrht to have these industrial enterprises; but when they come into competition with people who are required to pay taxes they ought not to be exempt from the payinent of taxes, but ought to be required to pay. I want it understood that I am not offering the amendment because I am opposed to this institution, for by an examination of the catalogue you will find that I am one of the trustees, and a member of the executive committee. VTiile I am not au- thorized to say so by the other members of the executive committee. I believe the^- are heartily in favor of this amendment. I want to show you the size of this school and how it has increased. The gross receipts of that school last year were $34,416.02. and the income from these industrial enterprises was S3.145.76. These enterprises, as I say. were thrown into direct conflict and competition with every enterprise of 2884 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA, like character in my town and in the county. I say that is wrong. I think it would be better for these schools, and for other schools of like kind to do away, as far as possible, with the friction on account of the fact that they are exempt from taxa- tion, and are therefore able to contract for work at a lower figure than anybody else can. They are able to do blacksmithing at a price less than anybody else. They are able to sell timber at a less price than anybody else. They are able to repair shoes at a less price than anybody else, and to do printing at a less price than anybody else. Mr. O'Flaherty: I agree with you in principle; but I do not see what language here would exempt them. Mr. Turnbull: The whole system there shows that we want to exempt schools that are not run for the profit of individuals. This school is not run for the profit of any individual. It is a corporation, and the profit goes into the school, for the benefit of the school itself. Mr. Mcllwaine: Mr. President, I am not prepared to oppose that amendment, but still it seems to me that we ought to go slowly in adopting it. It ought to be the policy of the State to encourage industrial institutions, and where those industrial institutions are conducted, not for profit, but in order that they may carry on their work more successfully, and be of enlarged benefit to the people of the State, it seems to me that it is legitimate for them to sell the product of their labor in competition witjh other people. If they work like other people, trying to make a profit for the benefit of individuals, then it would be perfectly proper to put them upon an equality with other people. But when they are exerting their energy and are doing all their work in order that they may bestow large benefits upon the people of the State, it seems to me to be a matter of very doubtful propriety to put taxes upon them. In- stead of discouraging we ought to encourage every effort that is made to benefit the young people of the State. It seems to me, from what I can understand that this is the effort which these and other similar institutions are making. Mr. Boaz: I would like to offer the following amendment to the amendment offered by the gentleman from Brunswick: Add at the end of his amendment the followmg: "Unless the work so done or the article so manufactured shall be done or manufactured by students at such institu- tions.'' The object of my amendment is to allow the students of these industrial institu- tions to sell the articles which they occasionally make. The provision of the gentle- man from Brunswick would apply to the Miller School in Albemarle, but to a limited extent. They do not go into the business of manufacturing; but occasionally the boys there make some article of furniture and sell it. I think I have seen a few desks that have been made in the school. I do not know what the extent of the business' is. If the gentleman will put an exemption in in favor of the Miller School I will be satisfied, as that seems to be the only one that is affected, outside of the school in his county. I think that this would be doing an injustice to these institutions. The object of them is to teach industrial pursuits, and the only way they can be taught is to have them practically do the work and to actually manufacture the articles they are being taught to manufacture. What on earth are they going to do with the manufactured articles unless they sell them? I hope that my amendment may be accepted. Mr. Willis: Mr. President, I wish to say a word or two in support of the amend- ment offered by the gentleman from. Brunswick. The condition of things which he says exists in his county exists in mine, but to a much greater extent and in a much more oppressive extent than in his. The Hampton Normal and Agricultural Institute owns about a million dollars' worth of property which is exempt from taxation. That practically means that Elizabeth City county contributes to that school in the shape of local exemption from taxation at least $3,000 or $4,000 a year. That school not DEBATES OE THE COXSTITrTIOXAL COXVEXTIOX OF VIEGIXIA. 2335 only does not confine its pupils and benefits to Elizabeth City county, but it does not confine them to the State of Virginia. It takes pupils from all over the South and from other parts of the country, They have there one of the largest and best equipped lumber mills in the State of Virginia, vrhich competes directly with every similar in- dustry in that town. They take contracts to furnish everything that goes into the building of a house anyvhere on that lower peninsula. They have a large establish- ment there for the manufacture of harness. They have a wheelwright and black- smith shop business. They have one of the best equipped printing establishments on the entire peninsula, and almost as good as any in the State. They compete with local establishments, and do work all over that section. They have between 700 and SOO acres of land exempt from taxation, both State and local. Some of it is the most valuable land in the county. They have so much more than is necessary for the pur- pose of teaching agriculture that some time ago they leased forty acres or more to the United States government for the purpose of a soldiers" home there. I submit, Mr. President, that if that school was for the benefit of the children of the community, thereby relieving the county of a large part of the burden of edu- cating its negro children, there might be some reason for permitting this local indus- trial competition to go on, or there would not be such ground for opposition to it. It does seem to me that, under all the circumstances, the proposition of the gentle- man from Brunswick is fair and equitable. Further, Mr. Chairman, if some such amendment as this is not adopted, they can increase this competition to an almost unlimited extent. If the report of this committee goes through we will be powerless to get any relief at the hands of the Legislature. At this point Mr. Thom took the chair as presiding officer. Mr. Hamilton: Mr. President, I think the principle of the amendment offered by the gentleman from Brunswick is good; but I do not think the amendment as offered is quite accurate. It is too broad. The true distinction is this: You exempt an educational institution because of its educational qualities and properties. The minute you allow that educational institution, whch you exempt, to undertake to go into business and compete with other people who are not exempt from taxation, you do a wrong thing. The true distinction is that these people ought to be exempt from taxation as long as the institution confines itself to education, but the minute they sell the products of their workshops for a profit that is at more than cost, then you are doing an injustice to the community where they are located. If the gentleman from Brunswick will amend his amendment so as to say that when this work is put upon the market at more than cost they shall pay taxes, and not be exempt, I think it will cover the ground. Mr. WilFis: It occurs to me, without having an opportunity to consider it very fully, that such a proviso would be worse for the community than if they were to sell at a profit, because then they v^ould compete more actively with the local trade. :Mr. Hamilton: Then the logical effect of that woufd be that you could not have an industrial school unless they paid taxes. But if you make them pay taxes on their property, if they sell their work for a profit, they have either got to sell it at cost, which they are not going to do, or they will pay taxes, which they will do. That is what you want. That is the true principle of distinction, and if the amendment of the gentleman from Brunswick is corrected to that effect, I think we ought to vote for it. :Mr. Turnbull: I have given the matter of the amendment suggested by my friend from Albemarle and my friend from Petersburg as much consideration as it has been possible for me to, in the limited time I have had. I do not think their propositions will meet the necessities of the case. I think the amendment, as I offered it. ought to be adopted by this Convention, and if that language is not right, it ought to be rejected. I vant to call your attention to this fact. If this system of industrial edu- cation is carried out in the manner in which it is now being carried out. in my sec- 2886 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. tion of the country it will close up all of our institutions and enterprises hy reason of competition. Mr. Willis: Mr. President, this same thing may be done all over the State, and we would be powerless to get any relief from the Legislature. Mv. Turnbull: Mr. President, you have got nothing in the world to do but to go up North and make the statement that our people are not treating the colored people properly dov/n here, and you can get any amount of money you want to estab- lish a school of this sort and set up competition in the community. It has been done time and again, in other counties besides my own. If anything can fee done to help the people, it is in this line, and I submit that when these schools are established in this country they ought not to be allowed to come into competition w^ith the honest industrial people of the State in the sections where they are established, and shut those people out from business altogether. That is the whole thing in a nutshell. It is just simply a question whether you are going to do that or whether you are not going to do it. I want you to feel that I am not not opposed to these schools. I am one of the trustees, and I have done everything I can to advance the interest of the school. That school has 300 scholars to-day, from every section of our State, and some from outside the State. They have been taught to do all kinds of industrial work, and they are put in competition with the honest people of our section. Do you not see at once that they can destroy, by competition, any kind of a workshop that is established there. They have any amount of money they want. You have got nothing to do but ask for it in a certain way, and you will get it. I say if this sys- tem continues the friction will be so great that the work of these scbiools will be seriously interrupted by the people in the sections where they are established, in my opinion. I am in earnest about this matter. I have given it careful attention. I have no doubt that there are many people who contribute to these schools who will think it is strange for me to make these remarks. I know that some remedy must be given to correct this condition of affairs, and the correction that is required is that these people should pay taxes as other people do. In other words, this school property occupies about one-third of the property in my town. The other people of that tov/n are taxed to keep the streets in order and taxed to keep this school in proper condition, but not a dollar's worth of tax do these people pay. Yet they come into competition with every solitary man who has an occupation. Do you wonder that there should be opposition to a school of this kind? We put a 'license tax on some of the people there who do work in the tov/n, and the school, which is doing the same work, refused to pay it. They were justified in refusing by the authorities, because they said the school was exempt from taxation. I admit that this report will check this trouble in a measure, because you can stop them from buying any prop- erty that is not to be used directly for the school; but I think they ought to be re- quired to pay taxes, whenever they are engaged in business which brings them into competition with the established trades of that section of the country. I do not think anything but this amendment v/ill accomplish the purpose and I do hope it will be the pleasure of the Convention to adopt it. Mr. Boaz: I ask leave of the Convention to withdraw my amendment. Mr. Meredith proposed the following amendment: But the exemption mentioned in this sub-section shall not apply to any industrial school, individual or corporate, not the property of this State, which does work for compensation or m^anufactures and sells articles in the community in which such school is located. Mr. Meredith: Mr. Chairman, the idea, of course, is to prevent local competition. Where they manufacture goods and sell them elsewhere, they have the right to do it just as anybody else has; but where they enter into competition with the daily labor of the people they ought to pay taxes. The amendment was agreed to. DEBATES OF THE COXSTITrTIOXAL COXTEXTIOX OF TIEGIXIA. .2887 ]\Ir. James Vr. Gordon: At the bottom of this section, beginning with line 6-i, I want to offer an amendment. The whole discussion seems to me to illustrate the lack of wisdom, so to speak, if I may use the term, of attempting to make any of these exemptions at all. I wish it understood that I am ophposed to all of the; but I realize that the committee and the ConTenticn are not willing to strike out all of these exemptions except churches. They have already taken a vote on that CLuestion in Committee of the "V^Tiole, and they have voted it down. If we are going to have exemptions it seems to me we ought to have them fair and equitable, and that we ought to show no partiality. 'Mr. President, may I read the amendment. There is an interlineation in it, which makes it difficult to read. I want to amend Section 16 in line TO by inserting after the word "person"' the words "except those fraternal secret orders, existing at the time this Constitution goes into effect, whose entire property and assets are dedi- cated' to and used exclusively for charitable and benevolent purposes. The Presiding officer: The question is upon the amendment just read. The amendment was rejected. Mr. James Gordon: I have another one, ^Ir, President, and I am going to make an appeal to my distinguished colleague from Richmond (l\Ir. ^Meredith). Amend Section 16 by striking out all the words beginning with the word "' then," in line 73, and by inserting in place of the language stricken out the following words: "■ Then so much of such building land as is leased or produces revenue or profit shall be subject to taxation as other land and buildings in the same county, city or town." The amendment was rejected. Z\Ir. Brooke: Mr. President, I desire to offer the following amendment to come in at line 75. page 13, after the word "town."" In line 75. add at the end of the section, the following: Except that nothing herein contained shall be construed as authorizing or re- quiring any county, city or town to tax for county, city or town purposes any violation of the rights of the lessee thereof existing under any lawful contract heretofore made in real estate owned by such county, city or town and heretofore leased by it. ]Mr. President, I wish to sa^' to the Convention that this amendment has been submitted to the Committee on Taxation, and has undergone examination by them. Whether or not it will be accepted, I am not informed, but whether it be accepted or not, it seems to me it is not improper for me to say a few words in explanation of the purpose of the amendment. The city of Norfolk, in respect to some land in that citj*, occupies a somewhat anomalous position. The city of Norfolk was founded about 16S0 in pursuance of an act of the House of Burgesses. After fifty or sixty years after that, and hence about a hundred and fifty or a hundred and sixty years ago, the House of Burgesses passed an act which you will find in Henning's Statutes at large, which act recited that it appearing that certain lands adjacent to the city of Norfolk, and on the water front of the city of Norfolk were wearing away by the action of the water, and whereas it was desirable that they should be protected, the act organized was known as the Fort Land Company, authorizing tEem to take possession of these lands, to reclaim and protect them from the effects of water, and thereafter to sell them to the city of Norfolk or to the county of Norfolk — the Borough of Norfolk, as it then was. This company* refused to accept the provisions of that act unless it was so amended as to strike out the coimty of Norfolk, and leave to the Borough of Norfolk alone the right to acquire this property. The act was so amended, and in the course of a few years the city of Norfolk did acquire this property by purchase from the Fort Land Company, who owned under the circumstances and for the purpose I have stated. 2888 DEBATES OF THE CON-STITUTIONAL CONVENTION OF VIRGINIA. In course of time that property, which was quite an area, was laid off into streets and town lots, and the fee of it was owned by the city of Norfolk. In about 1780 or 1785 the property having become to some extent valuable for city purposes, the city of Norfolk began to lease out these town lots by leases running ninety-nine years and renewable. These leases had provisions in them with regard to the taxes. Many of these leases fell in between 1885 and 1895, and were renewed. Some changes were made in the renewal leases with regard to the question of taxes. I could not under- take to say to the Convention how many of these leases there are. I should imagine there are not less than fifteen or twenty. I have in my hand a copy of a lease in which the property leased is referred to as being adjacent to lot No. 10, which was leased in the same way. I have been informed there is some controversy or some possibility of controversy between the city of Norfolk and the holders of these leases as to whether or not, under the terms of the leases these properties are liable to city taxation. The whole purpose of this amendment is to leave that question in statu quo as between the city on the one part and the lessees on the other. The Presiding Ofiicer: The question is on agreeing to the amendment proposed by the gentleman from Norfolk (Mr. Brooke). The amendment was adopted — ^Ayes, 50; noes, 2. On motion of Mr. Green the Convention adjourned until to-mdVrow, Thursday, March 6, at 10 o'clock A. M. THURSDAY, MARCH 6, 1902. The Convention met at 10 o'clock A. M. Prayer by Rev. H. A. Bagby, D. D. The President: The unfinished business is the report of the Committee on Fin- ance and Taxation. Mr. Fairfax: Mr. President, the committee would like to offer an amendment in line 7, page 10: At the end of line 7, after the word " purposes " " all obligations issued by the State and exempted by law and obligations issued by counties, cities or towns may be exempted by the authorities of =iuch localities from local taxation." Mr. President, that is to prevent the effort that may be made to tax the securities of the State which are exempt under the contract by which they are issued. Bonds, or anything of that sort, issued by towns, cities or counties should be exempt from local taxation. This simply clears the matter up. Mr, Meredith: Mr. President, under this provision the local obligations are simply exempt from taxation. That is the custom now. Wie felt confident that State obliga- tions were secure under the contract they had; but as the language was very broad, we thought it would not do to raise any issue that would affect the market value of securities of that kind. Of course, the usual course is for cities and counties not to tax their own securities. No government is going to tax its own securities, because thereby it would depreciate them in the market. The amendment was agreed to. Mr. R. L. Gordon: I offer an amendment to Section 16, in line 3, after the word "local"" to add "but the General Assembly may hereafter tax any of the property hereby exempted, except that mentioned in paragraph A." I desire to say, Mr. President, that this amendment is offered for the gentleman from Culpeper, and is not precisely the amendment he desires. His amendment is as follows : Except as otherwise provided in this Constitution, the following, and no other property, may, in the discretion of the General Assembly, be exempt from taxation. State and local. DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. 2889 I consulted with all of the members of the Committee on Taxation and Finance that I could reach, and they suggested this change, which I think accomplishes the same purpose, and, as I understand, it is acceptable to all of the committee. I desire to say to the Convention that the effect of the amendment is simply to give the Legis- lature the power, if it should deem it wise in the future, to tax any of the property mentioned in all these sections, except Sub-section A. In other words, if in the future it should be demonstrated that any of these exemptions are abused, the Legislature will have the power to correct that abuse and remedy any trouble which may grow out of it. The amendment was agreed to. Mr. Parks: Mr. Presideilt, on yesterday I proposed to amend Sub-section G, on page 12, the object of the amendment being to exempt from taxation the Confederate Museum. I did not know at that time how the property was held, and the matter was passed by for the purpose of getting that information. I learn now that^ the property is held by the Confederate Memorial Literary Society, which is an incor- porated institution. I want to amend by inserting in Sub-section G, in line 76, after the word "antiquities," these words: "The Confederate Memorial Literary Society," so that the section will read: "Property belonging to the Association for the Preserva- tion of Virginia Antiquities, the Confederate Memorial Literary Society and to the Mount Vernon Ladies' Association of the Union." The amendment was agreed to. The President: If there are no further amendments, the question recurs on the adoption of Section 16 as amended. The section was adopted. Section 17 was read and adopted. Section 18 was then read. Mr. Brown: I desire to offer the following amendment. Insert in line 10. after the word " improvement," the words " except public roads." Mr. President, I desire to state that this amendment is offered to obviate any difficulty that might arise in the judicial construction of the words "internal improve- ment." VThen the matter was brought up in committee it was the opinion of lawyers, members of the committee, that the words "internal improvement" did not refer to the public roads of the State. But there seems to be a difference of opinion on that subject. If the words "internal improvement" by no possible construction could refer to the roads of the State, this section would mean, exactly what I would want it to mean. But there is a difference of opinion in this body on that matter. I want to make it absolutely clear that the words "internal improvement" cannot refer to the public roads of this State. It has been suggested that if these words are added it will allow the State to go into a general system of State improvement of roads. I do not wish to deny that if it is the wish of the Legislature to go into such an extended system of public road work, but I do not believe that can ever be the case. Even should it be the case, I think the Legislature ought to be free to do what the people of this State want to be done. The other provisions of this article provide against any abuse. In Section 17 it is provided that no debt shall be created by the State except to meet casual de- ficits in the revenue, to redeem a previous liability of the State, to suppress insurrec- tion, repel invasion or defend the State in time of War. It was stated on this floor the other day when the matter was up in Committee of the Whole, that there might be a casual deficit created year after year by the action of the State Legislature in maldng appropriations for public roads. It does seem to me that if there was such a set purpose on the part of the Legislature to defy the Constitution the courts would step in and say it was in contravention of the Constitution. I do not think there is any possibility of this resolution leading the State into the issue of bonds for the purposes of public roads. In Section 18 it is provided that the State shall not be- 182— Const. Deb. 2890 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. come interested in any corporation, and that the State shall not subscribe to or be- come interested in the stock or obligations of any company, association, or corpora- tion, for the purpose of aiding in the construction of or maintenance of its works. It would be impossible, therefore, under the amendment which I offer, for the State to become interested in any turnpike company, or any company of that character, and sink the money of the people in that way. It is further provided, in the last part of this section, that the State shall not assume any indebtedness of any county, city or town, or lend its credit to the same. It would be impossible, therefore, for the State to become interested in a system of roads and lend its credit to the counties. The purpose of this resolution is to clear up the meaning of the words "internal im- provement," so that there shall be no doubt on that subject. Its adoption will leave the Legislature free to make such appropriations from the current revenues as it may deem wise. It may create and maintain a bureau of public roads, with a capable head, and enable the State to adopt a systematic plan of instructing and aiding the several counties of the State in the best methods of road construction. I do not advocate build- ing or maintaining roads at State expense, as I think it should be done by local taxa- tion, but I do not want any provision incorporated in the Constitution that will prevent the State from making such advances in the improvement of the roads of the Common- wealth and from taking such part in said improvement as experience may show to be desirable. I think the General Assembly should not have its hands tied. It seems to me, too, that an adverse court might interpret the wording of the report as it stands to mean that the State could not employ convicts of the State in work upon the roads of the counties. I hope it will be the pleasure of the Convention to adopt the amendment which I have offered. I beg to say I have submitted it to the Finance Committee and a large mfejority of the members of that committee are willing to accept the same. Mr. Boaz: Mr. President, when this amendment was offered in Committee of the Whole, I gave my reasons for my opposition to it. I still have those objections. The gentleman says he desires to except roads. What does he mean by roads? He does not define what he means. He may mean railroads or anything else; but taking it that way he means only public roads of the State, it may mean the incurring of a large debt on the part of the State notwithstanding what the gentleman says. What good is it going to do to put in it here, if it does not mean that the State is going to expend money on the roads? We cannot get roads without money. In Committee of the Wliole I called attention to the fact that our present public debt was built up in this way. The State first incurred its debt by becoming a party to the improvement of the roads. They commenced to build turnpikes, to which the State subscribed three-fifths. They went from that to canals and then to railroads; and we now have this large debt on our hands, which costs us gome $800,000 of annual interest and this is just the beginning of the same process over again. It certainly cannot be any benefit to the roads unless some money is spent by the State. If the amendment does not mean the spending of money by the State on roads, I do not see what good it is to put it in here. This question of roads is a very extensive one. I do not know now many miles of road there are in the State, but I was talking with the gentleman from Amherst county (Mr. Cam^pbell) a few days ago and he told me that some years ago they measured all the roads in Amherst and there were some 500 miles of road in that county. Amherst is rather a small county, certainly not above the average, and taking that as the average, that would be 500,000 miles of road. The authorities on the subject of road making say that the cheapest price at which you can build a good macadamized road of only 9 feet width is $3,000 a mile. If you multiply 500,000 miles by $3,000, you get a billion and a half dollars. If it is proposed to build roads of this kind all over the State, you see what an enormous liability can be incurred. It is true there is a pro- DEBATES OF THE COXSTITUTIOXAL CO>^VEXTION OF VIKGINIA. 2891 hibition on the State from incurring any debt except to meet casual deficit in the revenue; but as was pointed out by the gentleman from Petersburg, this casual deficit may occur every year. The money of the State may be directly appropriated for roads and the cash on hand will be consumed for roads and a deficit will be incurred to pay ordinary expenses of government, I do hope the Convention will not, by adopting this provision, incur the risk of piling up another tremendous debt to v/orry us for generations to come, and to en- courage the idea that this can be done. We will never get good roads by agitation and talking about it. It simply means money. The money has to come from some source or other, and there is no species of legerdemain by which you can get around that fact. The President: The question is on agreeing to the amendment offered by the gentleman from Bedford. The ayes and noes were ordered, and being taken, resulted — ayes 42, noes 29, as follows: Ayes: Messrs. George K. Anderson, W. A. Anderson, Barham, Bouldin, Bristow, Brooke, Brown, Epes, Fairfax, Fletcher, James W. Gordon, R. L. Gordon, Green, Hooker, Ingram, Claggett B. Jones., G. W. Jones, Lincoln, Lindsay, Lovell, Marshall, Meredith, Miller, Moncure, R. Walton Moore, Mundy, Parks, Phillips, Pollard, Quarles, Richmond, Rives, Robertson, Stebbins, Stuart, Summers, Thom, Waddill, Walker, Willis, Yancey and the President — 42. Noes: Messrs. Allen, Manly H. Barnes, Thomas H. Barnes, Boaz, Cameron, C. J. Campbell, Carter, Cobbs, Crismond, Earm-an, Garnett, Gilmore, Gregory, Gwyn, Han- cock, Hardy, Harrison, Kendall, Mcllwaine, O'Flaherty, Pedigo, Pettit, Tarry, Thornton, Turnbull, Wescott, Withers, AVoodhouse, and Wysor — 29. The amendment was agreed to. The President: The question recurs on the adoption of Section 18, as amended. Mr. R. L. Gordon: Mr. President, I desire to offer, for the gentleman from Culpeper (Mr. Barbour), the following amendment at the end of Section 18: Provided that this section shall not prevent the perfecting of subscriptions by a city or county to the capital stock of a railroad company heretofore authorized under existing charter, conditioned upon the affirmative vote of the voters and freeholders of such city or county in favor of such subscription: Provided, such vote be had prior to July 1st, 1903. I desire to state to the Convention that this amendment has been submitted to all the members of the committee who are on the floor this morning, and I understand it is not objectionable to them. The occasion for it is simply to protect the gentlemen who have expended a con- siderable amount of money in getting these charter rights in the counties of Culpeper and Rappahannock. They desire to have the right up there in those two counties to vote a subscription to a proposed road, and the object of this amendment is simply to avoid cutting these people off from that right if they desire to exercise it. The amendment was agreed to. Mr. Stuart: Mr. President, I move to amend Section 18 by adding at the end of the section this languge: Nor shall the board of supervisors of any county create any bonded indebtedness on said county or borrow money on the credit of the county, except under authority first obtained therefor by the concurrent vote of the majority of the qualified votei^ of the county, which majority shall include a majority of the freeholders voting in the county. Mr. President, I wish to say briefly, in support of this amendment, that it is in substance the sam^e as the one offered by the gentleman from Tazewell (Mr. Gillespie) during the consideration of the report of the Committee on Legislation. I supported the ^b\)2 DEBATES OF THE CONSTITUTIOJ^AL CONVENTION OE VIEGINIA. amendment at the time, and it was on the assurance cf the chairman of the Committee on the Legislative Department that it should properly be considered in connection with the report of the Committee on Taxation and Finance that it was abandoned at that time. I do not Imov/ that any argument I may present to this body will change the opinion of any gentleman on a subject which is so plain as that suggested by the amend- ment. It does seem to me that this is a very v^rholesome and proper restraint upon the taxing power, v/liich at times may become, and has, in some cases in Virginia become, an irresponsible taxing power. I do not reflect upon the boards of supervisors, and particularly not upon my own board of supervisors, which I consider an admirable one. But it seems to me to be a very proper and conservative measure that their power to lay burdens upon the tax- payers of a county should be, in some way, limited. I hardly think it necessary to dwell on the importance of that subject. It seems to me to be manifest from the standpoint of conservatism and good local government. Mr. Gillespie: Mr. President, I think the amendment suggested by the gentleman from Russell (Mr. Stuart) is a desirable one. Boards of supervisors are often elected by the county without any thought of creating a bonded indebtedness, and vv^ithout the people having an opportunity to consider the question as to their power to create a bonded indebtedness, which may involve the county in debt for years. This does not prevent the people of the county from borrowing money. If the people of a county want to borrow forty or fifty thousand dollars to improve the roads, this does not pre- vent them from doing so; but it requires that before any such indebtedness shall be created the board of supervisors shall first obtain authority therefor by the concurrent vote of the majority of the qualified voters of the county, which majority shall include a majority of the freeholders. I think the proposition is a good one, and one that ought to be adopted by this Convention. Mr. Fairfax: Mr. President, I think there is merit in the amendment offered by the gentleman from Russell. It is a matter, however, which is sprung upon us here to- day for the first time, and in order that the committee may thoroughly understand the matter and properly frame the verbiage of this amendment, I respectfully request that it be passed by for the present. The President: That will be understood to be the sense of the Convention unless objection is made. Sections 19, 20, 21 and 22 were read and adopted. Section 23 was read and adopted. Mr. Thorn moved to reconsider the vote by v/hich Section 22 was adopted. Mr. Thorn: Mr. President, I v/ant to point out, in connection with the amend- ment suggested, the danger is the language used by the committee. I think the com- mittee will understand, and I trust the Convention will also, that this suggestion is not made in any captious or fault-finding spirit, but because of what seems to me to be a danger lurking in the present language. Let us see how this language stood historically. It was first used in the present Constitution of Virginia when the status about the public debt was that there was a debt of the whole State of Virginia, a part of which it was proper that the State of West Virginia should bear. The language, " the public debt of Virginia " as used in the Constitution was apt for the purpose of defining a public debt, all of which was the obligation of Virginia, but a part of which in equity should be borne by West Vir- ginia and the balance by Virginia. That status is changed, when Virginia's attitude on this question is that the mat- ter has been settled, and she has assumed, by a settlement with her creditors, a debt all of which is hers and that she is no longer bound for the portion laid off for West Virginia; but by the use of this language "public debt of Virginia part of which to be appointed to West Virginia and a part to Virginia;" you still recognize that there DEBATES 01 THE COXSTITUTIOXAL COXTEXTIOX Ox TIRGIXIA. 5893 is a debt for all of vrMch Tirginia is bound but for part of vbicli West Virginia sboTild acknowledge herself bound; and if the language is left as it is, the State of Virginia, in tbe highest form of Constitutional expression, is aclmowledging that there is a debt for which the State of Virginia is bound but a part of which ought to be laid on to "West Virginia. Mr. Flood: Is it a fact that the 815,000.000 of West Virginia securities is an obligation on the part of the State of Virginia either to pa^' those certificates or to see that West Virginia pays them? Mr. Thom: Xo; it is not esactly in that form; but the gentleman from Albemarle (Mr. Boaz) has pointed oul to the Convention this morning that there is a part of the old debt of Virginia held by the United States goYernment on which litigation against the State of Virginia is threatened, and that part is contained in the West Virginia portion. Suppose that litigation is submitted to the Supreme Court of the United States, the United States Claiming that on the debt thus held the State of Virginia is still bound, and as an evidence of that fact a new Constitution is presented showing that the State of Virginia still holds herself bound not only for the portion which has been laid off to her and accepted, but also for that portion which is proper to be borne by the State of West Virginia. Mr. Flood: I should like to ask for information what the obligation is in the West Virginia certificates? V^hat obligation West Virginia assumed when she issued those certificates and when they were taken by the holders of them. Mr. Thom: My understanding of that obligation is this: To pay to the holders of those certificates such amount as the State of Virginia received from West Virginia. That is my understanding. Mr. Flood: That is not it. Mr. Thom: I should like to have the gentleman, who has been familiar with the legislature of the Sta.te for seme years, tell me exactly what is in that certificate. I am only stating it from general knowledge. Mr. Flood: I cannot tell you exactly. I cannot recall it with accuracy: but my idea is that those certificates bind Virginia to pay to the certi5cate_ holders the entire amotmt of those certificates: or rather such amount as they do not receive from West Vir^nia. That State now refuses to pay anything, and Virginia, by Section 22 obli- gates herself in this Constitution to bring about a settlement between the West Vir- ginia certificate holders and the State of West Virginia vrhat ever is ascertained, upon an accounting, to be due by the State of West Virginia goes to those certificate holders, and the balance of it. is to be paid by the State of Virginia', or she must repudiate it. ^1t. Thom: I do not understand that my friend's information on the subject is correct. If it is. it greatly strengthens the necessity for a change in this Constitu- tional language. But I shall argue it on the basis that Virginia has not assumed as to the holders of the West Virginia certificates any obligation except that of paying what amount of money she receives from West Virginia. I say I shall argue it on that basis, and I shall call attention to the statement made here by the gentleman from Albemarle this morning that a part of that debt still remains unsettled and in the hands of the United States; that litigation is under consideration now by the United States against the State of Virginia to enforce the payment of that debt. In that condition of affairs, is it wise for this Constitution to say that there is still a public debt of Virginia for which Virginia is still liable, a part of which should be laid off to West Virginia and the balance borne by the State of Virginia? By the use to-day of the language which was appropriate thirty years ago, we run the risk of acknowledging to-day that there is a public debt of the State a part of which should be borne by West Virginia; in other words, that the State of Virginia is still liable for the West Virginia portion. The language I propose simply obviates that difficulty. Instead of the public DEBATES OF THE CONSTITUTIOJsTAL CONVENTION OF VIRGINIA. debt of Virginia being left indefinite as it is in the expression suggested by the com- mittee, the public debt of Virginia is defined to be the original public debt of Vir- ginia existing prior to the creation of the State of West Virginia." Now, that is the debt which Virginia is to use its good offices in trying to have apportioned between the two States; not any part of the present debt of Virginia; not anything for which Virginia is now bound; but the original debt of the State existing prior to the crea- tion of the State of West Virginia, and that is defined in the amendment which I suggest to the original debt of Virginia and the subject matter about which Virginia, is to use her good offices. I go on, after defining what it is that Virginia is expected to use her good offices about, and provide that such sum as shall be received from West Virginia shall be supplied to the payment, not of the public debt of the State, as the committee states it, (again a recognition that it is a public debt of the State of Virginia) but to the payment of the West Virginia portion of the original public debt of the State of Virginia; so as to avoid the recognition, again, that what is laid off to West Virginia is a part of the public debt of the State of Virginia. And to guard it further, I suggest that " nothing herein contained shall in any way affect the settle- ment already made by the State of Virginia with its creditors." I was in hopes that my friends, the members of the committee, would accept this language. My purpose is that there shall not be a recognition by this Convention of a different public debt of Virginia from that which she has assumed in her recent settlement; and if you say that what Virginia receives from West Virginia shall be paid upon the public debt of the State of Virginia, no lawyer upon this floor will deny that that is a recognition of the fact that Virginia is still bound for a portion of the debt, v/hich we have all understood has been laid off to West Virginia. If you say in the first part of your provision that the General Assembly shall provide by law for adjusting with the State of West Virginia the proportion of the pubic debt of Virginia proper to be borne by the State of Virginia and by the State of Wlest Virginia, you still make a recognition tliat there is a public debt of Virginia, a portion of which should be borne by West Virginia. Now, are you willing to do it? In other words, are you willing to take a debt here,the only effect of which, according to its terms, is to upset and disturb the settlement made between Virginia and her creditors, and put into the region of controversy and doubt again the question whether Virginia is or is not bound for a proportion to be laid off to West Virginia? Mr. Cameron: Has not every step in the settlement of the Virginia debt been taken under the provision of the Constitution as reported by the Committee? Mr. Thom: Yes, sir. Mr. Cameron: Would the adoption of that provision, in totidem verbis by this Convention add any force, effect or meaning to that provision? Mr. Thom: I think so, and that is the object of getting at it. I cannot say I think so. I will accept the suggestion of my friend here from Rockbridge (Mr. Ander- son) and say that I fear so, for this reason. The public debt of Virginia mentioned in the old Constitution was one for which Virginia was bound, and when you use the same words in the present Constitution, it may be that the same words will mean that the public debt of Virginia is one of which she is still bound. As suggested by the gentleman from Roanoke (Mr. Robertson) this Constitution will speak as of the pres- ent, and when you speak of the public debt in the new Constitution, you mean a public debt by which the State of Virginia is still bound. Mr. Hancock: I wish to inquire whether in your opinion the State of Virginia is not bound for all of the debt to those creditors who have not accepted the terms con- tained in the West Virginia certificates; and is it not true that everything that Virginia may derive from the State of West Virginia upon the basis of those certificates must be applied by her in paying the creditors who have accepted those certificates. In other words, does not the State of Virginia owe the whole debt, and that arrangement about West Virginia's portion of the debt is an armngement simply binding upon those credi- " tors who have accepted it or who may hereafter accept it. DEBATES or THE COXSTITUTTOXAL COXVEXTIOX OE VIEGIXIA. 2895 Mr. Thorn: My friend has given upon this floor an absolute necessity of vrhat 1 am now doing. He is contending that Virginia is still bound for the West Virginia por- tion. That has been negatived by the attitude of Virginia for the last twenty-five years. That was the contention in the days of the readjusters; and when my friend finds reason to arise upon this floor and claim that Virginia is still liable for the Vest Vir- ginia portion, I say to hm that the language of this Constitution as presented by the committee recognized what he states to be the law and is a recognition on the part of Virginia of a continuing liability for that whole sum. Is this Constitutional Convention ready to make that admission of liability? Is it ready to say what my friend from the county of Chesterfield (Mr. Hancock) claims, that Virginia is still liable for the whole forty-five millions of debt as it existed prior to the war? Mr. Hancock: I did not say that Virginia owed the whole debt but I asked the gentleman if he thought, as a lawyer, that the State of Virginia owed this debt to the original bond-holders, those who have not accepted the West Virginia certificates, if so. are not such bond-holders entitled to receive the full amount of their debt from the State of Virginia, and must not A'irginia look to West Mrginia for the payment of her equitable share of such debt? Mr. Thorn: Whatever may be the primeval right of that proposition, the State of Virginia has said, in a revolution of political sentiment, that equities have been intro- duced into that question which relieve her of that obligation. Whatever may be my view and whatever was my vote on the original proposition, I am not willing in this Convention to upset what was done in 1SS2 and to put upon Virginia an obligation for an excess of what is upon her to-day, or to do anything that will tend in that direction. My very criticism of this language is that there is danger of there lurking in it an acknowledgment on the part of this Constitutional Convention for and on behalf of the State of an obligation for a part of the debt which has already been laid off to the State of West Virginia and for which the State of A'irginia now acknowledges no liability or responsibility whatever. There can be no doubt that when you speak of the public debt of Virginia proper to be divided between A'irginia and West Virginia, you will claim it is the public debt of Virginia still and that she is liable for it, if she does not get the State of West Virginia to share her part of it. Mr. Cameron: I will have to put a preamble to it. As to the bonds which have been surrendered to the State of Virginia for which the holders have received no evi- dences of indebtedness in the shape of bonds or certificates referring to the West Vir- ginia portion. I say to him that the language of this Constitution as presented by the case of the United States government, referred to by the gentleman from Albemarle. They hold the original bonds issued by the State of Virginia for the whole amount. They have never recognized as binding upon them any settlement that has been had, either that of 1871, 1881-1882, 1885-1886. Now, holding the original claim with its origi- nal expressions by bond have they not the entire claim against the State of Virginia, including that portion which would be set aside to West Virginia if they accepted the process through which the majority of the creditors have passed? Mr. Thorn: Let me explain. The gentleman from Petersburg (Mr. Cameron) has called attention to the holders of the original bonds of Virginia and is speaking of their rights and I suppose he is speaking of the impossibility of Virginia speaking with their rights. My proposition is that the United States, as the holder of those original bonds, is ex- actly in the position of the holders of bonds which were afterwards readjusted by Vir- ginia under the funding bill or under the readjuster movement. Now. if the policy of the State of Virginia is not to pay the whole of that debt to the United States, where is the wisdom of our recognizing our obligation for it in this Constitution? If the United States has no greater equities than the individuals who surrendered a portion of their debt in the readjustment of the State debt, why should the Constitution give them a firmer ground to stand upon than they did have under the legislation of the 2896 DEBATES or THE CONSTITUTIONAL CONVENTION OF VIRGINIA. State and under the offer to the creditors of the State as it is held out to them under the act of the Assembly? My desire is to do nothing to weaken the position of the State of Virginia which it has held for the last twenty years in reference to its public debt. I think the language here used, as proposed by the committee, unwittingly has the effect of strengthing the position of the holders of Virginia's original obligation and of weakening the position of the State of Virginia in respect thereto. Mr. Turnbull: As the State debt of Virginia has been settled, what use is this section in here at all? Mr. Thorn: I do not see that it is of any use, but it is in, and I want to amend it before you strike it out, because after you strike it out I will have no opportunity of amending it. I desire to call the attention of gentlemen here to exactly what changes I propose. There are three. The first defect in this report is to define the public debt of the State of Virginia as something which the State does not now acknowledge, because it has defined it as something which West Virginia ought to pay in part, and therefore says that Virginia is liable for it. I propose to define the subject matter about Y/hich Vir- ginia shall use her good offices as the original public debt of Virginia, existing prior to the creation of the State of West Virginia. That relieves the uncertainty about what the subject matter is and puts it exactly where it ought to be. In addition to that I provide that the proportion of that debt, the only thing which Virginia is to adjust v/ith the State of West Virginia, is the amount of that original debt which Virginia is to pay. At this point Mr. Turnbull took the chair as presiding officer. On the next page, where the public debt of West Virginia is referred to as some- thing which West Virginia does not now acknowledge, I again define that to be the West Virginia portion of the original public debt of Virginia, and to make sure that the rights of the present bondholders are not interfered with, I provide that " nothing herein con- tained shall in any way affect the settlement already made by Virginia with her creditors." That is the purpose of my amendment. I desire to amend the section before the motion to strike out is made, because after that motion is made, if it fails, you can no longer amend it. I shall have no objection to striking it all out after it is amended, but I consider it extremely dangerous to leave it in its present form, and I predict as a lawyer, that if the United States sues the State of Virginia on the bonds it now holds this language of your new Constitution will be used as evidence as to what Virginia still continues to acknowledge. Mr. Meredith: What is the difference, in speaking of the debt, of adjusting the debt and of adjusting with West Virginia the proportion of the original debt? Do you not recognize the debt just as much one way as you do the other? Mr. Thom: No, sir. Mr. Meredith: Do you mean to repudiate it? Mr. Thom: I mean to take the position which Virginia has taken, whatever that may be, of not acknowledging in this Constitution any more debt than the people of Virginia have acknowledged by their vote. Call it repudiation, call it readjustment, call it what you will, I think if the people of Virginia ever had an idea that we Vt^uld come in this hall under a call for a new Constitution and acknowldege a greater liability on the State than that which they established in 1882, they would have pre- vented our entering here by force of arms, and I am unwilling to do it. Mr. Cameron: Mr. President, it is not a proper expression of my feelings to say that I wish to speak on this subject, but after the forcible speech made by the accurate and learned lawyer from Norfolk (Mr. Thom), I think it right that something, at least, should be said by those who hold a different view, and who believe that it would be exceedingly dangerous to alter the language under which we have proceeded in regard to our public debt for all these years. DEBATES or THE COXSTITUTIOXAL COXYEXTIOX OE TIEGIXIA. 2897 I think, further, that to rush to a conclusion of this matter just sprung upon the attention of this body, Y/hen we have not even accurate knowledge as to the language of any single element entering into the decision of this question, is unwise.The acts of readjustment are not here. The acts of the final settlement of 188(5-87 are not here. The form of the Virginia certificate is not here; and yet all those matters of form and substance enter definitely into any intelligent verdict upon the same issue raised by the gentleman from Norfolk. I wish briefly to ask you to bear in mind that there are two classes of creditors. Beginning with the idea of forcible readjustment, the matter of settlement came finally to be one of friendly agreement between the State of Virginia and the great body of her bondholders. As to that body who surrendered their bonds voluntarilj', they have no claim whatever against the State of Virginia, except such as is expressed in what- ever bond or certificate, or both., they received in return. As to that class of bond- holders holding the new bonds of Virginia, having surrendered every other evidence of claim against the State, and having done so voluntarily, there can be no question that nothing we do can add to the legal rights of those people unless, by an unfor- tunate error in changing the language of this Constitution, we would present them with rights which they have not had heretofore, and have not now. I repeat that every step in the settlement of this debt, so far as it has gone, has been taken under the constitutional language contained in the Underwood Constitution. All the litigation against this settlement in its various stages has been based upon and has taken consideration of the language of that provision. Hardly can there be anything new raised along the line of the rights of the creditors under the provision of the Underwood Constitution, and certainly no lawyer on this floor will claim that anything we say can take away any legal right that now belongs to any class of the creditors; but we may, an ill-matured change, give to all classes of them some rights which they do not now possess. I said there are two elements, two classes of these creditors. I sa.y as a matter of law that the status of an original bondholder who has not surrendered his bond or accepted the terms of a settement, is precisely what it was prior to the enactment of the first act of readjustment. The United States Government for instance, holds all the original claim against Virginia that it ever did, evidenced by the bond or bonds which were given it when that debt was incurred, and nothing — I speak from a legal standpoint — that we have dene since has affected that claim and nothing can affect it unless they should come forward and conform to the plan of settlement which the State has adopted and which has been concurred in by the great majority of her credi- tors. I mention this to show that we cannot give any new rights; that no new rights can accrue to that class of our creditors by retaining the language we have here. Now, as to the other class, the man who is a creditor under the bonded debt of the State; who holds the bond or other evidence of debt. The man who has come forward and made voluntary surrender of his evidence of debt and taken something else in its place has no further claim against the State than vras given him under this language in the present Constitution, the continuance of which is recommended by the Finance Committee. Now, gentlemen, I claim that we run no risk as to that class in retaining this language, and that as to the other class nothing that we say here could affect in one way or the other their legal rights already- matured and resting upon foundations which we cannot disturb. Mr. Flood: Does the language of the setUement of 1871 and of the certificates require Virginia to compel a settlement on the part of Vest Virginia of the part of the debt that was set aside as West Virginia's equitable share? Mr. Boaz: If the gentleman will allow me to interrupt him a moment, I have here the very language in which those certificates are couched. 2898 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. This certifies that dollars are due to or his associates, being one-third of bond No. — , surrendered under the act approved March 30, 1871, and payment of said one-third, with interest, will be provided for in accordance with such settlement as shall hereafter be had between the States of Virginia and West Virginia in regard to the public debt of Virginia at the time of its dismemberment; and Virginia holds said bonds, so far as unfunded, in trust for the holder thereof or his assigns. Mr. Flood: The question I want to ask the gentleman is this: Does not this certificate, under the act of 1871, bind Virginia to bring about a settlement between West Virginia and the holders of these certificates? Mr. Cameron: It binds Virginia to pay to certain persons holding these certifi- cates certain moneys recovered when the settlement has been made by West Virginia. Mr. Flood: TTo{e gentleman says '"certain moneys recovered." How are you going to recover those moneys? Mr. Cameron: Exactly. The State of Virginia could not enter into a compact to compel West Virginia, because there was no way for her to do it, and there is no way. Mr. Flood: Why could not Virginia sue West Virginia in the Supreme Court of the United States and force a settlement? Mr. Cameron: There is no such compact here, as the gentleman will admit. Mr. Ayers: If the gentleman from Petersburg will indulge me, I will read the section. The funding bill provides, first, that two-thirds of the interest and principal of the debt shall be funded in new bonds and then: Upon the surrender of the old and the acceptance of the new bonds for two-thirds of the amount due, as provided in the last preceeding section, there shall be issued to the owner or owners of the other one-third the amount due upon the old bonds, stock or certificates of indebtedness so surrendered, a certificate bearing the same date as the new bond setting forth the amount of the bond which is not funded, as provided in the last preceding section, and that payment of said bond, with interest thereon at the rate prescribed in the bonds surrendered, will be provided for in accordance with such settlement as shall hereafter be had between the States, of Virginia and West Virginia in regard to the public debt of Virginia existing at the time of its dismemberment, and that the State of Virginia holds said bond, so far as unfunded, in trust for the holder or his assigns; and provided, further, that until such final settlement with West Virginia, there shall be paid upon what are known as funding bonds, etc. Mr. Flood : The gentleman says " upon a settlement." That would take place if West Virginia refused to pay any part of this debt by the State of Virginia suing West Virginia in the Supreme Court of the United States. Is not that a fact? Mr. Cameron: That could be done. Mr. Flood: Now, is not Virginia, if we put this matter in the Constitution under an obligation to force a settlement, either a friendly settlement, or a settlement by a suit? Mr. Cameron: I think Virginia is under a moral obligation to do what she can to make West Virginia pay something to these people who hold these certificates. I think Virginia should take whatever legal remedies she has against the State of West Virginia in their behalf, but I also say, which is the point of the matter, that when these certificates were accepted in lieu of one-third of the face of the original bond, the acceptor took only that which is expressed on the face, and nothing more, and that carries with it no obligation of the State of Virginia to pay one cent to the certificate holder, unless or until a settlement has been had with the State of West Virginia; and then he is to be paid what is determined by that settlement. I go the length, for instance, of saying that under the language of that certificate, even if the State of Virginia were to bring suit against the State of West Virginia, and that suit was cast by the Supreme Court of the United States, that then and still no payment could be demanded by the holders of the certificates, if It was said that the suit for that amount was not proper, if the Supreme Court held it was not able to DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. 2899 ascertain on the evidence before it that the amount sued for by the State of Virginia was equitable as her shai^. Mr. Flood: L-et me ask the gentleman this question. I ask it because I Imow he is better informed about it, probably, than any one else in the hall. Suppose Virginia should sue West Virginia for the $13,000,000 bearing interest from the date of these certificates, and the Supreme Court of the United States should hold that the conten- tion of West Virginia, to-wit, that West Virginia was only liable for that portion of the public debt which was expended in her borders, together with certain expenses of government, less the amount she paid in taxes after the year 1821, amounting, as her commissioners have ascertained, to two millions dollars instead of fifteen million dollars, was correct, would not the court enter an order or decree against the State of Virginia for the balance of the thirteen million dollars without interest? Mr. Cameron: I think not, when the proceeding originated under a certificate and that certificate was accepted voluntarily by a bondholder in consideration of such facts, and one of those facts was that the State of Virginia would issue to him its own bonds for two-thirds of the face amount of the original bond, and accumulated compound interest due, on the contrary, would take from her a certificate framed as has just been read to you, relieving Virginia of any responsibility or accountability until a settlement had been had with West Virginia. Mr. Flood: Until a settlement has been had; but it does not relieve it beyond the time that a settlement has been had, and if that settlement is had in the Supreme Court of the United States, and it is ascertained that West Virginia does not owe this thirteen million dollars, but only a small portion of it. then the residue of it is due by the State of Virginia. Mr. Cameron: It might be. Mr. Flood: If that is the case, does not the gentleman think it is dangerous to incorporate any language in reference to this matter in our new Constitution? Mr. Cameron: I think the best answer to the gentleman is that we have been living all these years under this provision, and all the litigation had has been based upon this language. Nothing of the kind has developed. You have just been told that the holders of a great majority of these fifteen million dollars of certificates have already agreed formally, authoritatively, with the commissioners of the General As- sembly that if a suit be brought to compel West Virginia, they will only claim from the State of Virginia what can be recovered from West Virginia. Mr. Flood: That is undoubtedly true, but suppose Virginia does not bring the suit, as she has not done, and as her commissioners have not done, and they make an arrangement with the State of West Virginia by which West Virginia sues Vir- ginia in the Federal courts for a settlement of this matter, or suppose the United States should sue Virginia on the bonds she holds and the question of West Vir- ginia's share of the debt was brought into court does not the gentleman think Vir- gimla might be liable for the excess over the amount that the court ascertained was due by West Virginia and that this provision would help fasten that liability upon her. Mr. Cameron: I think morally we might be held accountable for not using due promptness in exercising the remedy we hold in our hands for the benefit of these people, Mr. Flood: We would have to pay it or repudiate it. We do not want to have to do either. Mr. Cameron: But if we are going outside of the direct issues here into collateral matters, let us inquire into the position of the United States Government. The United States Government cuts off West Virginia from us by what Governor Wise declared to be a Caesarian operation and provided, as a part of the legality of the existence of that new Commonwealth, that she should assume and pay certain portions of this debt. Now, when the United States Government, at any future time, appears as a claimant for the whole face of a bond or bonds that she holds against 2900 DEBATES OE THE CONSTITUTIONAL CONVENTION OF VIRGINIA. this State, and comes -with the force of her bench and with the sword thrown into the balance, to exact not only the pound of flesh but the blood that flows with it, why should we not say to her "You did this thing. You made this State; you left us with this new responsibility; you ordered them to do something in order to show their worthiness of statehood and twenty years have passed and you have not used your authority in one degree to have equity done to those States which you have dismem- bered." Mr. William A. Anderson: I will remind him that Virginia, in the event of a suit by the United States Government against this State upon the million dollars of bonds of the old State of Virginia, which that government holds as a part of the Indian fund — Mr. Cameron: Yes; I know of that. Mr. William A. Anderson: Against any such suit Virginia would have a much more efiicient and satisfactory defense even than that indicated by the gentleman from Petersburg. The United States Government owes the State of Virginia from a million to twelve hundred thousand dollars, with interest now for more than ninety years, or about ninety years, on account of contributions made by the State of Virginia for the military expenses of the United States Government in the war of 1812, and upon other accounts, and that sum with interest would amount to far more than any claim that the United States Government can ever have against the State of Virginia on account of this debt. Mr. Cameron: I will say to the gentleman from Rockbridge (Mr, Anderson) that I am familiar with those facts, and I simply alluded to this as collateral to and bearing on this subject. Mr. William A, Anderson: If the gentleman will excuse me, I will mention another fact, that within the last few days an act has passed Congress providing for the adjust- ment of the debt due by the United States government to the State of Virginia on account of the war of 1812 and on other accounts, and the set-off against thos^ demands would be the bonds of the State of Virginia held by the United States government; so that I hope any question on account of those bonds will be eliminated in the course of the next twelve months. Mr. Cameron: I simply wish to add to what has been said by the gentleman from Appomattox (Mr. Flood) that in the course of this long debt settlement, while the question of West Virginia's indebtedness was never directly considered by the Supreme Court of the United States, it did express the opinion, in treating of one of the coupon killers, that one-third was not an excessive or inequitable amount for Virginia to have set aside for the State of West Virginia. I will also say, to quiet the apprehensions of those who fear the compulsion of us by the United States government in regard to any portion of this debt, that the Supreme Court of the United States declared repeatedly, positively, that it had no power to enforce its judgments against the State. Now, gentlemen, I will not tax your patience further. I only wish to say that I v/ould a great deal rather see this section stricken out than, with the amount of con- sideration we have been able to give it, to see this language changed from that under which every step of the operations of our dealing with the debt has occurred. Mr. Flood: Mr. President, I move that this matter be passed by for the present. It is a very serious matter and I do not think the Convention has information enough to decide it now. Members of the Convention, within the course of two or three hours, can get hold of the facts in connection with this matter, and I move that it be passed by, certainly until this afternoon. Mr. Carter: I suggest to the gentlemen that it is within a fev^ minutes of adjourn- ing time, and you might go on with the discussion until then, and it will then pass it- self by. Mr. Thorn: Mr. President, I have changed my amendment slightly in view of the Vvest Virginia certiflcate, the form of which I hold in my hand, and I think those cer- tificates demonstrate the absolute necessity of such a change as is here proposed. I DEBATES OF THE COIs"STITUTIONAL CONVENTION OF VIRGINIA. 2901 hold Iieie a form of the certificate issued under the settlement of 1871, and also the form of the certificate issued under the Riddleberger settlement. The form of a certi- ficate Issued in 1871 defines the public debt with which it was dealing as " the public debt of the State of Virginia existing at the time of its dismemberment." If those v/ords were appropriate in 1871, when there has been no change in the public debt, how much more appropriate do they become when the public debt has infinitely changed and an entirely new public debt exists to-day. The effect of this provision of the cer- tificate of 1871 was to still retain the liability of Virginia for the West Virginia propor- tion, except in so far as West Virginia made a payment. Now, when the Riddleberger settlement came, Virginia was no longer willing to retain that secondary obligation, but added the words that what it received from West Virginia was to be accounted for by the State of West Virginia without recourse upon this Commonwealth, so that I have changed that portion of my amendm.ent to read: But no recourse shall be had against the State of Virginia for such proportion and nothing herein contained shall in any way affect the settlement already made by Vir- ginia with her creditors. Mr. Ayers: Mr. President, I do not desire to detain the committee with any lengthy discussion of this question, but I do believe that the language which provided for the settlement with the bondholders, setting apart to West Virginia the one-third, should not be longer continued in the Constitution. I believe the amendment offered hy the gentleman from Norfolk (Mr. Thom) ought to be adopted if the language is left there; but I believe the provision ought to be stricken out altogether. This is really to-day a practical question, when you look at it from a business standpoint. These certificates are not held by the original holders, but they were acquired at a value that amounted to a bagatelle compared to their par value. The General Assembly of Virginia — I have not the statute by me — ^has passed an act by which it provided that all these certificates that have been issued to be desposited under an express agreement not to hold the State of Virginia responsible for any amount in excess of v/hat she should recover from West Virginia, and authorized suit to be brought. That is dealing with the matter in a practical manner, and I do not believe we ought to incorporate in the Constitution any provision in regard to it that might be construed into a recognition which we do not as a matter of fact claim and which business men do not claim. If a,ny man to-day were to set up such a claim ft would be a mere speculator seeking to make something, because it is recognized by all business men that Virginia is only responsible for the two-thirds she has bonded and agreed to pay; and all these people recognize that Virginia is only responsible on these certificates for the amount she can recover against the State of West Vir- ginia, as the General Assembly has so wisely provided that all these certificates shall be deposited under an absolute agreement, taking away all room for construction that in consideration of the State of Virginia bringing suit against the State of West Vir- ginia they relinquish any possible claim they might have to a recovery over against Virginia for the amount paid by West Virginia. I think there is every reason why we should put nothing in the Constitution, but if we do I believe the language of the gentleman from Norfolk will preclude any con- struction that by incorporating this section in the Constitution we intend to recognize the liability of this State for any other than the two-thirds assumed in this set- tlement. Mr. Meredith: Mr. President, I wish to say as one of the members of the com- mittee, that, although I have not had a chance to consult with the chairman, I shall ask him to move that this matter be postponed until this afternoon, and I also wish to request him to give notice that his committee will meet, if it is agreeable to him, directly after the recess is taken, for I see very grave difficulty in adopting the lan- guage proposed by the gentleman from Norfolk, even if we afterwards strike it out. 2902 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. AFTERNOON SESSION. Mr. R. Walton Moore: I move that the chair be now vacated until 4 o'clock this afternoon. The motion was agreed to, and the Convention took a recess until 4 o'clock P. M. AFTER RECESS. The Convention reassembled at the expiration of the recess. The President: The pending question is upon the amendment offered by the gentleman from Norfolk city (Mr. Thom). Mr. Fairfax: Mr. President, in view of the discussion had before recess upon Section 22, the committee has thought proper to offer the following suggestion, which they hope the body will accept. I will ask the Secretary to read the recommendation. The Secretary read as follows: To the Convention: The Committee on Taxation and Finance recommends that iSection 22 of the article as heretofore proposed be omitted. Such omission will not deprive the General As- sembly of the power to give ample protection to the State as well as to individuals whose rights may be involved, and will in no way impair any moral or legal obligation that may exist. Mr. Fairfax: Mr. President, the committee thinks it much more desirable to strike out the whole section than to leave it there with any of the amendments pro- posed. Mr. Thom: Mr. President, I do not agree with the chairman of the committee that it is better to leave this article in its present shape than to amend it. I would greatly prefer to have the section stricken out; and I gave notice before recess that, even if it was amended, I should move to strike it out. If I can have an understanding, as I presume I can, that in the event the motion to strike out fails, I may move to reconsider in order to amend, I will withdraw the amendment for the time being. If the motion to strike out prevails, it will accomplish the purpose which I have in mind, which is not to change the present status with reference to the State debt. The President: The question is on the motion of the chairman of the committee to strike out Section 22. ^ The motion was agreed to. Mr. Fairfax: I now move that we take up Section 1 of the report of the Committee on Taxation and Finance, for further consideration. The President: That will be done unless there is objection. Section 1 was read and adopted. The President: The Secretary will read Section 2. Sec. 2. Except as hereinafter provided, all assessments of the value of real estate and tangible personal property shall be at their fair market value, to be ascertained as pre- scribed by law. The General Assembly may allow a lower rate of taxation to be imposed for a period of years by a city or town upon such land as may be added to or taken into the corporate limits of such city or town than is imposed on such property with the limits of said city or town at the time such land is added. Nothing in this Constitution shall prevent the General Assembly, in its discretion at any time after the 1st day of January, 1913, from segregating for the purposes of taxation, the several kinds or classes of property so as to specify and determine upon what subjects State taxes, and upon what subjects local taxes may be levied. Mr. Cameron: Mr. President, I offer the following amendment. Amend Section 2 as follows: DEBATES OF THE COXSTITUTIOXAL COXYEXTIO^ OE YIEGIXIA. 2903 By striking out the period in line 4, after the word " law," and insert the words " and the rate of taxation on the value so ascertained shall be equal and uniform, within the territorial limit of the authority limiting the tax." Mr. President, I ask the calm and impartial attention of the Convention for a few moments, in the consideration of the amendment which I offer to feection 2 of this report. I do so in the belief that it is not inconsistent with any purpose which the advocates of this report, as a whole, have advocated upon this floor. If I thought it militated against the accomplishment of those objects, in favor of which the majority of this body has so positively announced itself, I should not offer the amendment. But, believing that it is not inconsistent with any of those objects, and that it does not conflict with any purpose as to which this committee has taken this hody into their confidence, I shall trespass on your time long enough to explain this amendment, and give a few of the reasons which constrain me to lay it before you. Section 2 provides for the assessment of " all real estate and tangible personal property at its fair market value." Here I would pause to ask what is the reason for ascertaining the fair market value of these classes of property. If it is intended not to put an equal rate of taxation upon them after this value shall have been so ascer- tained? The ascertainment of this value simply means, when put into other words, the expression of the value in hundreds or thousands of dollars. To repeat what I said on a former occasion, when property can be reached under the ad valorem system, and the value has been ascertained and expressed in hundreds of dollars, one $100 cannot be worth more than another SlOO, and, that being so, should bear no different burden. Authorities have been quoted here with which, I may say without affectation, I have a long acquaintance, and whose conclusions I do not at all dispute. But it is important to get at the rationale of financial theory, just as it is important for lawyers and courts to get at the rationale of the law. There never has existed but one reason for the departure from the time honored doctrine of equality of rate, and that is that commercial and industrial conditions in the world have so changed that, if you apply the old rule to all conditions, you get inequality of burden, instead of equality of burden. That is the theorj- and doctrine of Wells, of Ricardo, and of other writers upon this subject. Undoubtedly, when you cannot reach the value of any class of property by the ad valorem system, there must necessarily be. in order to obtain fair results in taxation, applied to such classes of property a system of taxation which will have arbi- trary features. So, as we all know, for a long time under our system various kinds of business in our Commonwealth have been taxed by licenses instead of under the ad valorem system. As industrial enterprises and public transportation lines have grown up, it has been found difficult to arrive at equality of burden by any system of valuation yet discovered, and therefore it has been felt, as this body has concluded, that in taxing them you must adopt a system more or less arbitrary. But your hope and your purpose must be, hr the application of the principle you have declared and which has been main- tained by this Convention, to come as closely as possible to what would have been the result if you could have taxed that property under the ad valorem system. Now, having accomplished all that was set out to be accomplished by the commit- tee and the advocates of this measure — and I say here that I have no objection to the result reached — having provided that the commercial business interests of the Com- monwealth should be reached by the license system, what else remains that cannot be reached under the plain old rule of equity and honesty, which is as old as self- government, as old as representative government? When you get to property which can be valued, which can be reached under the ad valorem system, what remains to be done, except to apply an equal and uniform rate of taxation. Now, mark you, in offering this amendment, I have confined its operation altogether to those classes as to which the committee has recommended that the assessment should be at their fair market value. Provision is made for everything else, even as to property lying under the surface of the earth. The committee has, in another section, provided that shall 2904 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. be assessed by a different method. Having arrived at the value of the real estate and the tangible personal property by assessment, at their fair market value, there is no other honest way, there is no other reasonable way, there is no other wise way of taxing it except by an equal and uniform rate. Turn to Section 9, and you will find that the gentlfemen who oppose my views have, so far as this report goes, left themselves little ground upon which to antagonize me. It is provided, beginning in line 11, that "such property shall be taxed for State and for county, city, town and district purposes in the same manner as now authorized by law." That property which it has already been provided is to be assessed at its fair market value, shall, even if it belongs to railway corporations be taxed "in the same manner as authorized by law;" and that same rate of taxation as may be imposed by them, respectively, from time to time, upon the real estate and tangible personal prop- erty, of natural persons. When this amendment is confined in its application to real estate to tangible personal property, is confined in its application to these two classes of property as to which the committee has provided that the assessment shall be at the fair market value, what reason, in the name of the rights and interests of the masses of the people of Virginia who own the real estate and the tangible personal property, can we advance why one hundred dollars over here should be taxed at 40 cents, and one hundred dollars yonder should be taxed at 20 cents. I said, in my argument before the Committee of the Whole, that I had heard no reason advanced by the advocates of this scheme why or for what purpose this amendment should be rejected. Of course, if there is any reason which has not been stated, it belongs to this body, in the decision of this matter, I have heard but two suggestions. One was made by the gentleman from Culpeper, for whose opinion and for whose political principles I have a high regard, to the effect that, in theory, I seemed to be right, but that he shrank from restricting the legislative powers in regard to taxation; and I said to him, "If that be your position, abandon every line of this report, for wherever you have laid down an inflexible line of duty, under a mandate not to be mistaken and not to be violated, you have, to that extent, restricted the power of the Legislature on the ques- tion of taxation. Another gentleman, for whose personal worth and for whose mental ability I have equal admiration, has suggested to me that perhaps at some future d^y it might seem wise to the Legislature or other taxing authority to take, for instance, the farming land of the State, and to say in regard to it that where a mortgage exists upon a piece of property in the hands of a farmer, it shall pay one rate of taxation on that portion of the property which lies under the equity of redemption and another rate of taxa- tion on the residue. As to that, I say that unless the doctrine is applied to every class of real estate in the Commonwealth, unless you decided that every piece of property that is mortgaged shall be taxed according to the same principle, you would be committing spoliation, under the guise of law, of those who are not included in the allowance. The practical difficulty against your making equal application of such a rule would be that when you came to tax the property of railroads, if you made allowance for the bonded debt, which is the mortgage on that property, you would have nothing left to tax. I do not wish, Mr. President, to detain you. I wish to lay down, in the first place, the proposition that what I propose does not militate against co-operation with every- thing that this committee has provided for. Secondly, I lay down, as the result of my observation and judgment, that no writer on this subject deniei* the proposition that where the value of property can be reached, equitably and fairly under the ad valorem system, then equality of the rate of taxation should apply. The only reason this principle has ever been departed from is because experience shows that under conditions there are numerous classes of property the value of which cannot be so reached. Perhaps I show unwonted regard for things that have been and needlessly occupy your time in the hope of saving something of the past from the grasp of revolu- tion and empiricism. When I say empiricism, I mean it in no invidious sense. Em- DEBATES OE THE C0X5TITUTI0XAL COXVEXTIOX OE VIEGIXIA. 2905 piricism is that noble spirit vrhich has done more than aught else for the progress of the world for the last two centuries. It was empiricism which drove Columbus to seek these shores. It is empiricism to-day that is driving on the leading lights in the world of surgery to dig out from hidden nature those secrets which will serve to prolong life and to relieve pain. It is empiricism which is leading Marconi and Tesla to the wonderful developments in the physical world, of which we are experiencing the benefits and the results. Empiricism of the true kind follows old principles to new developments, and statesmanship of a high order applies old principles to changed conditions. I do not apologize if I have taken up thus much of your time in making an appeal that those classes of property which are held by the great masses of our own Virginia people, which threaten no harm by their use or occupation to any inter- est, should be put beyond the possibility of discrimination by any power which might control our legislation. I heard my friend the other day allude to an aphorism of the Sa-ge of Twickenham, the first line of which I do not endorse, but the second of which, is good, sound and true. "That which is best administered is best." There is another aphorism of his v/hich ma3' be applicable to some — A little learning is a dangerous thing; Drink deep or taste not the Pierian spring. I shall not presume further on the indulgence and good will, which I knoT.' I have, of this body. I was about to sb.j that, perhaps, as years are added to me and I drift along, I have too much reverence for what has been and for the past; but it is well in these days of change, it is well in these days of longing after the new and searching after strange gods, that some one should cling, no matter how feebly, to the fervid wheels of revolution and ask for one moment, that you should pause and think upon those old first ancient faiths, old as the truths they cherish, and young as the youngest heart that holds them true. (Great applause.) Mr. Meredith: Mr. President and gentlemen of the Convention, I shall not attempt to follow the line which has been pursued by the gentleman from Petersburg. I could not be as eloquent as he is if I should try, and I certainly would not try to be eloquent upon the subject of taxation. Poetry and taxation do not go well together. If you are going to add up a sum in arithmetic the best thing you can do is to do it quietly and coolly. I recognize the wonderful power that eloquence has upon a Virginia audience; but when you come to consider a serious question of taxation^ I think you will find that poetry is a little out of place. In the first place, gentlemen, you will recollect the fact that the gentleman who now offers this amendment, has allowed Section 1 to be adopted and yet that was the bete noir he had two days ago. That was then the horrible thing in his mind. That was the section that he thought was going to destroy our liberty and take away our property from us. He was just as earnest, and just as full of knowledge, on that sub- ject as he has been on this; and yet he has allowed that to go unchallenged; and thinks now that all the danger lies in the second section. The reason for that is this: The first article cannot be attacked. It cannot be attacked upon principle; it cannot bo attacked upon experience; it cannot be attacked by citation from writers on eco- nomics; political writers, or tinder judicial decision. Hence my friend abandoned it. The next reason was that he thought he could make a direct attack upon this prin- ciple, that we announced in the first section by directing his amendment to real estate and tangible personal property. This is simply an effort to defeat in part, what he attempted to entirely defeat by making an amendment to the first section. It is simplj^ a change of place with the hope that he can succeed here although he failed there. "What earthly difference does it make, gentlemen, whether this is put into the second section or the first section. The other gentleman from Petersburg offered the same provision and proposed to confine it, as far- as he could, to real estate and personal 1S3 — Const. Deb. 2906 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. tangible property. I want to say to you that it is absolutely impossible for us to stand here and tell you exactly what would be the harm in doing that. I cannot point out all the harm, simply because I cannot fortell it. My friend talks about the well-settled principles of taxation. There are some principles of taxation; but if there is anything in doubt and unsettled, it is to what is the best system of taxation. The general theory that the burden of taxation should be equal is correct; but when you come to apply that theory you meet with the difficulty. It has been determined and held, repeatedly, by text writers, by courts, by constitution makers and by statute makers that the only true principle is to announce that the authority, whatever it may be, levying taxes, shall make them uniform upon classes. That is announced as the true principle. My friend thinks there should be some exception to that rule, and yet he is unable to produce a single authority that justifies an exception. There has been none an- nounced by anybody that I know of. That general rule is the only safe one to follow; one of the reasons being, that you cannot foretell what changes will take place in sys- tems of taxation. I do not know whether, after the expiration of ten years, as pro- vided in Section 14, the State of Virginia may not see fit to lay all her taxes upon railroad property upon the roadbed and personal property of the railroads. She can- not get at the market value of such property. Wliat then is she to do? Do not expect me, gentlemen, to stand here and give you a dozen or two illustrations in order to show the danger of this amendment, because I cannot do it. I am going to show you the danger by one or two illustrations. Suppose that at the expiration of ten years the State of Virginia should say: "I prefer to tax the roadbed and personal property of the railroads." She cannot get at the market value. What Is she to do? She will get at the value by putting a rate of tax on it that she thinks will fairly compensate her. The system that is provided here, of a percentage tax on gross earnings, is a variable thing. It may be that in times of depression the receipts from taxes will be seriously affected. It may be that a road that is now earning a million dollars a year gross receipts may drop to half a million or seven hundred and fifty thousand dol- lars, and one that is now earning five millions a year may drop to four millions. The value of the personal property and real estate of the individual remains about the same in times of depression as well as in times of prosperity. It is a very serious question whether the taxing of gross receipts is a proper system of taxation. The State may, hereafter, discard it and say: 'T am not going to have my revenues going up and down according to these changes in the market. I propose to have a system by which I can definitely fix the amount I will receive and you shall bear the burden just as individual owners bear theirs; that is to say, I v/ill have a fixed rate of taxa- tion, and I will ascertain the value of your property as well as I can, and I will impose a tax that will give me a fair revenue. I prefer to tax your real and personal prop- erty in that way, rather than to have a separate tax upon your franchise." What could she do, under circumstances of that kind? If you adopt this amendment you will find that her hands are tied. Yet we are told to try it. We have listened to illustrations of a man in the country being taxed on land at one ratt?, and another in a city at another. Yet not a single instance has been produced, in which that has been done. It is a question of very grave doubt as to whether such a classffication would be recognized by our own courts, or by the Supreme Court of the United States, which would also have to pass on the question as to whether the classification made was a proper one. If there was no reason to justify such a classification it would not be sustained by the court. But when you come to property like railroad property, the market value of which you cannot ascertain, if you want to tax its real estate and personal property, you have to increase the rate of taxation in order toi get a fair return, yet under this amendment your hands would be tied in that respect. There is another class of property to which, for the purpose of illustration, I want to call your attention. Suppose the State should determine that she wanted to impose a tonnage tax upon coal, or iron, or manganese? Would you contend that a pound DEBATES OF THE CONSTITUTIONS AL CONVENTION" OF VIRGINIA. 2907 of coal gotten out of the mines, ready to be carried away, which had destroyed a part of the capital of the State should be taxed at the same rate at the mouth of the mine that it would be taxed in some coal yard? Do you not know that every ton of coal gotten out of the earth and taken away is so much destruction of the wealth of the State? Mr. Cameron: I would say that it should be taxed at its value where it was as- sessed. Mr. Mered^ith: A pound of coal at the mouth of the tunnel could not have any larger market value that it would have five miles from there; but the State would have a right to put a higher rate of tax upon it, in recognition of the fact that it has taken away from the State some of her mineral wealth. The same would be true of iron and of the other minerals of the State. These are illustrations that occur to those of us who have not "drunk deep of the Pierian spring." I have given you two illustrations. I have told you that I cannot stand here, and attempt to give any lengthy catalogue of illustrations, because I cannot recall them, but you can readily understand that the true principle of taxation is to tax by classifi- cation, and that uniformity should be as to class. I respectfully submit to you that any attempt to abridge that principle is a violation of that which my friend himself recognizes as the true and correct principle. Mr. William A. Anderson: "Would not the effect of the amendment proposed by the gentleman from Petersburg be simply to classify the tangible personal property and real estate, and to classify them in the same class? Mr. Meredith: No, sir that is not what he proposes. He proposes that real estate of every character shall be taxed alike. Mr. Cameron: I simply say that the property which you say, in this section shall be taxed at its fair market value, shall be taxed on the value so ascertained. Mr. Meredith: One further remark and I will close. My friend called attention to the fact that we had recognized, in Section 9, the propriety of taxing real estate be- longing to the railroads just as other real estate is taxed, and at the same rate at which other real estate is taxed. To what extent do we do it? We do it for ten years. Did we not explain on this floor that it was done^ siniiply as a test, to see whether that is a proper system of taxation? Did we not distinctly refuse to tie the hands of the Legislature for a longer period than ten years? The reason which he cites as being contradictory to the true principle is one which shows that we recognized that principle, because we refused to tie the hands of the Legislature for a longer period than ten years. We thought that, under that system, by putting a tax of one per cent, on the gross receipts of these corporations we would get a fair return from the corporations in the way of revenue. I earnestly hope that the committee will not undertake to make any exception to the principle stated in the first section. The question having been taken the result was announced — Ayes, 15; noes, 47. The amendment was not agreed to. Mr. Fairfax: I now move that Section 2 be adopted. The motion was agreed to. Mr. R. L. Gordon: At the suggestion of the chairman of the committee, I desire to offer an independent section, which I will ask the Secretary to read: The General Assembly may confer upon the proper county authorities of any county the right to levy and collect a special tax in addition to the ad valorem tax upon all vehicles used on county roads having tires less in width than the standard width of tire, which may be prescribed by such county authorities, or by law. The President: The question is on agreeing to the amendment offered by the gentleman from Louisa (Mr. Gordon) as an independent section. The amendment was rejected. 2908 DEBATES OF THE COi^STITUTIONAL CONVENTION OF VIRGINIA. Mr. Waddill: Mr. President, I offer the following substitute for the amendment offered by the gentleman from Russell (Mr. Stuart). We have conferred, and we agree upon this substitute. The General Assembly shall not, by general or special laws, authorize boards of supervisors to create any interest-bearing debt binding any county except for the pur- chase of a county farm, of sites for county buildings, or for the reconstruction, enlarge- ment or repair of such buildings, or for expenses incurred in times of epidemic or of want, unless by vote of a m.ajority of the qualified voters of such county, which shall include a majority of tlie resident freeholders of said county entitled to vote, and who shall vote in said election. The amendment was rejected. Mr. Withers: Mr. President, the chairman of the committee tells me that the committee is now ready to consider the amendment I offered by v/ay of an independ- ent section, No. 24. I offered that amendment seriously. I offered it oecause I believe it is a proper subject for the consideration of this Convention; and in order to avoid the discussion of the same question twice, it was agreed that it should come up in the Convention for consideration, and there be once and finally decided. I submit, Mr. President, that it is a matter worthy the consideration of the Con- vention. I can appreciate, from my own physical and mental condition, the difficul- ties which all the members of this Convention labor in their effort to listen to speeches or argument of any kind. I sincerely hope that this is the last occasion upon which I shall have to tax that courtesy and kindness which you have so generously extended to -me on so many occasions. But I do submit, Mr. President and gentlemen of the Convention, that it is a matter worthy of your consideration. It was offered, as I say, in all seriousness and in all sincerity! It was offered without any idea of cater- ing to popular clamor, or throwing a sop to the minds of the thoughtless. It was offered because of the fact that I believe it can be proven to those who will listen, that this Convention, if it has accomplished the work that it started out to do, and which it claims it has in part accomplished, is entitled to credit for that work and entitled to see that that work has a fair trial in order that its efficiency and effect- iveness may be properly tested. I submit, therefore, Mr. President, that the first reason why we should give this matter proper consideration is that if we have constructed a proper system of State government, that system of State government should have a proper and fair test before the people before it is condemned. If we have not, the opponents of our method and system of government should have the benefit of a fair test before the people in order that they may show to the satisfaction of a fair minded public that the Constitution which is the result of this Convention's work should be condemned. Before proceeding further, I wish to call attention to the fact that the only things sought to be affected by this amendment are lands and lots and the improvements thereon, and tangible personal property, and the importance of that will be seen as I proceed. Why do I say, then, that the work of the Convention ought to have a fair test before it is condemned? I say so, Mr. President and gentlemen of the Convention, because nearly every article of this Constitution, as proposed and practically adopted by the Convention, can be nullified and destroyed by a hostile Legislature. Do not understand me to say that there v/ill be a hostile Legislature. Do not understand me to intimate that the present General Assembly is in any wise hostile to this body; but I make the statement, and I challenge successful contravention or denial, that there is hardly an article of this Constitution that has to do with our actual government, and the administration of our respective State, county and municipal governments, but what can be nullified by a hostile Legislature. Suppose, for instance, there should be, to put this Constitution into effect, a Leg- DEBATES OF THE COXSTITUTIOXAL COXVEXTION" OF YIRGIXIA. 2909 islature hostile in political opinion, or hostile because of the acts of this body. With- out tiring you to enter into details, I can by one illustration substantiate, as I respect- fully believe, my contention. By the simple power which the flexibility of a judiciary system ought to give to the Legislature, a hostile Legislature can render ridiculous in two years the entire judiciary system as proposed by this body, by creating forty-five circuit judges, with minimum salaries of not less than $2,000 per year; so that, under the system proposed by this Convention, under the supposed increased efficiency and economy of our judiciary system, as we or some of us believe we have framed it, not only can the system be rendered ridiculous from the point of view of a single judiciary system, but a hostile Legislature, should such exist, can absolutely overburden this State with judicial salaries and say, with every appearance of a half truth, that it is the result of this Convention's work. They can increase very materially and fo a very great extent the judicial burdens of this State by increasing unnecessarily the judges of the towns and cities of the Commonwealth. And so by a simple act, which the flexibility of the judiciary system requires, and the wisdom of which no lawyer will question, to-wit, that a judiciary system shoula be so flexible and capable of expansion or contraction as to meet the needs and neces- sities of an hour or a day, an epoch or a condition, a hostile Legislature — hostile either in political or economic opinions to the work of this Convention — can nullify and render ridiculous the article on the judiciary; and not only will there not be money saved, but the burden of the judiciary of Virginia will be enormously increased by that act. Therefore I say, before we throw this aside as being possibly an attempt to meet mere popular clamor, before we throw it aside as a demagogic appeal to the voter, we should have consideration for it as a very great brake and restraint upon the acts and the injuries that can be done by a Legislature, hostile, either in political or eco- nomic beliefs, to the acts of this Convention. Without entering into further details on that score, I beg leave again to say that the work of this Convention is entitled to a fair trial before the people of the State ere it can be nullified by hostile opposition or by those who differ from us in political or economic faith and doctrine. Nor is that all. Mr. President and gentlemen of the Convention, we are entitled, or rather I should say we ought to give those whom we represent the benefit of that system, if it is a wise one. We ought not, after coming here and spending nine months in earnest deliberation and hard work, if we have accomplished aught that is good or beneficial to the people of this State, permit that work to be nullified by the possibility of a mere political change in the complexion of the body that may have an indirect, if not a direct, effect in putting into execution the instrument that we shall adopt. Now, if we have reduced expenses, if we have increased the revenues of the Com- monwealth without putting more burdens upon the people of the Commonwealth, they are entitled to the benefit of those acts. They are entitled to whatever good and v/hat- ever profit may be derived from them, just as we are entitled to have them fairly and honestly tested and tried before the people of the Commonwealth, ere the chance to condemn them is offered. I say, therefore, Mr. President, if we have accomplished, as we believe we have, good in this Convention, if we have done that which will redound to the benefit of the property o^mers and holders of this Commonwealth, and to the benefit of the citizens thereof, they are entitled to the benefit of whatever there is of good or wisdom in this document; and the only way to give them the benefit, as it is the only way to give us the benefit of a fair test and trial, is to see that such a brake is put upon the possibility of evil as will enable the people to judge for themselves, without prejudice or passion, and with full information and fair tests before them, as to the benefit of our work and ae to its wisdom or unwisdom. 2910 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIKGINIA. Then I say thirdly, Mr. President, that our work justifies the giving to the people of the State the benefit of a tax reduction for a period long enough to give to them the test and trial of the Constitution, and long enough to give them an opportunity tO' judge fairly, impartially and dispassionately its merits or its defects. It shows that we have confidence in our own achievements, it shows we are willing to submit our work upon its merits; and these three reasons will nullify any opposition, I respectfully submit, on the ground that the tax rate is purely legislative. That I willingly concede, except that when, by reason of the fact that the organic government of the State is changed, and new conditions are brought into existence, if those conditions justify a reduction in that rate pending the actual putting into effect of that instrument and that changed organic goveimment, then the reduction ought to be made during that period of time. Then I say, gentlemen of the Convention, that our financial condition justifies this reduction of the tax rate. It justifies it from every point of view. It has been con- tended upon this floor again and again by gentlemen who have familiarized themselves with, the facts, and we can give them credit because of their able support and advocacy of the reports of communities of which they were miembers — and I do not say this by reason of any attempt to prejudice the case in advance — that in their opinion the cor- porations of the State have not been bearing their proportion of the burdens of taxation as compared with the individual and the citizen. Now I submit it is a fair and proper proposition to say that for a period, at least, of the time in which we have changed the method of taxing corporations,, those great organizations of industry should, for a part of that time, pay somewhere near or even up to the very point of their just proportion of the burdens of taxation of this State, while the citizen who, all along has contributed more than his share, should have for a part of that period of ten years, at least, a reduction, so that he may have the benefit of the increased income from the other source, which, up to the time of this Conven- tion, it is maintained had not borne or paid its proportionate share or portion of taxa- tion. I say, Mr. President and gentlemen of the Convention, that that justifies this; that if our theory that the increased revenues from corporations will result in a per annum income of $59,000 and that will afford us a surplus year by year — and we alde/ady now have a regular annual surplus — of over $300,000, according to the last year's reports, based upon the increased or proposed increased taxes upon corporations and excluding increased pension appropriations the people of this Commonwealth who own the lands and the lots and the improvements thereon, and the tangible personal property are entitled to a benefit by way of reduction in their taxes while this experiment, a franchise tax upon corporations, is being tried. I say our condition justifies this proposal to the people of Virginia. I want to make a statement that has been questioned in private and which will doubtless be questioned again; that after the assessment of realty in 1890 went into effect, the income of Vir- ginia up to 1900 has varied but very little from year to year; that the reason of the accumulation of the surplus that is now in the treasury is due, not to the increase of income, but to the decrease of expenditures; that the surplus we have now in the treasury of the State of Virginia is due, not to an increased income, as some gentlemen Tiave maintained in speeches upon the floor of this Convention, but to laws passed by the friends of the Constitutional movement in the Legislature of 1895-96, 1897-98, where- "by the useless expenditures of the Commonwealth of Virginia were cut off and the sur- plus funds were allowed to accumulate in the treasury; that these men who had sought Constitutional reform and had been unable to get it, who had urged that a Convention was necessary to give the people of the State a proper government, when they were defeated did not seek to put the responsibility of their defeat upon their opponents, but met every suggestion of their opponents by amendments to the laws of the State of Virginia, whereby her expenses v/ere reduced, and the surplus allowed to accumulate. That ought to be a known fact, because it has been urged upon this floor again and DEBATES OF THE CONSTITUTIONAL CONV^INTION OF VIRGINIA. 2911 again that everything this Convention has done or could have done, could have been accomplished by amendment. That is not a sound contention; and every eflovt was made by the friends of the Convention movement, by meeting the objections of the opponents of that movement, to amend the laws so that the people of the Common- wealth might get the benefit of the very things that their opponents suggested could be done, or of other things which the friends of the movement brought forward of their own motion. I am prepared to substantiate that statement. I want to call the attention of the members of the Convention not merely to these figures but to what they show. I want the Convention to know that we have had surpluses in the State treasury before. I want tliem to know we have had larger surpluses in the State treasury than Y7e have now, and that concomitant and coincident with the existence of those surpluses, there came as there is to-day a perfect howl and clamor from every section of Virginia, to do what? Not to economize, not to give the people the benefit of an ever-increasing surplus, but to spend the surplus; and that is the remedy proposed to-day. Not to do anything that would tend to lighten the burden of the citizen, but to get rid of the money. Not to spend it in buying bonds, though some of it has been spe^t in buying bonds, but to get rid of the money. It is said if you reduce the tax rate it will destroy the State's credit, it will incur the danger of repudiation, and all the other phantoms of the imagination that can be brought up to oppose lany change in the law and Constitution, or ,even a statute of morals. Let us see which is the wiser course, to have an efficient and economical admini- stration of your affairs whereby taxes can be reduced, or, by reason of the fact that because of a prior efficient and economical administration of your affairs a surplus has been accumulated, and then to save the State from repudiation and ruin, by getting rid of the surplus. I want the Convention to know that on September 30, 1892, the State had over $1,100,000 of surplus in the treasury. On September 30, 1895, it only had $61,000 sur- plus, and on December 1, 1895, when the Legislature came here, there was not a dollar in the treasury to pay the salaries of the members. On September 30, last, we had $826,000 in the treasury, and out of the funds that had been expended prior to that date was nearly $53,000 of the costs of this Convention. It has been stated the Convention has cost a great deal more than anybody thought it would cost. That just shows the innocence of some people. Prior to the calling of the Convention I had never seen an estimate of its cost of less than $150,000 to $250,000, including an extra session to call it, and the costs of the extra session was less than $39,000, which was as much engaged in legislation and in elections of judges as it was engaged in preparing a call for this Convention. Nobody who examined the costs of Conventions, or who knew the costs of a legislative session, had ony idea that a new Constitution could be put into effect in Virginia for less than $150,000 to $250,000. I stated just now, and I am prepared to substantiate that statement, that as soon as the real estate assessment of 1890 went into effect up to the year 1900 there has been practically no average annual increase im the income of the State of Virginia, but that the surplus has accumulated by reason of the fact that there has been a decrease in the expenditures of this State. To make my contention clear, I want gentlemen to listen at these figures. In 1890 our income was $2,887,527.35, our outgo $2,695,659.66. In 1891 our income was $2,902,- 424.97, our outgo $2,491,177.35. Then it was, and I call your particular attention to this, that the readjustment of land values was made, and there was a great increase by reason of the tremendous boom in the Southwest and all the section from Lynchburg to the Tennessee and Ken- tucky and West Virginia lines, that more than counterbalanced, by far, the loss in assessments in the Valley and in other sections of the State. In 1892 our income was $3,738, 599.72, our outgo $3,350, 123.32. That assessment did not go into effect until 1892. It was assessed in June, 1890, 2912 DEBATES OF THE CO:^STITUTIONAL CONVENTION OF VIRGINIA. the citizen did not make his return based upon it until February 9, 1891, and the Auditor's book closed on the 30th of September, 1891, two months before the taxes for 1891 were due; consequently the increase shows in the next year. But of that increase of over $800,000, $442,000 was due to the direct taxes refunded by the United States government to the State of Virginia, of which that year, $434,000 were distributed to the people to whom they were due. So that the fair and equitable increase is seen in the return of the next year, 1893^ when the income was $3,303,326.69, and the outgo $3,754,629.05; and thjon it was that the surplus had accumulated from $303,233.69 in 1890 to $714,481.31 in 1891, and to $1,102,957.71 in 1892, and had decreased in 1893 to $651,655.85. In 1894 our income was $3,083,151.11, our outgo $3,602,570.97, and our surplus had decreased to $132,235.99. In 1895 our income was $3,333,257.57, our outgo $3,404,097.92, and our surplus was $61,395.64; and when the Legislature came here in its regular session on the first Wednesday in December, 1895, there was no money in the treasury to pay its members, and the money had to be borrowed from another fund and replaced Legislature, and you will see their beneficent effect upon the outgo of Virginia, was lying in the treasury of Virginia $1,102,957.71 surplus. Now, come in the measures that the friends of this Convention brought into the unanimity resolved that a new method of taxation should be tried for a fixed period In 1896 the income was $3,499,301.58, the outgo $3,347,399.17, and the surplus had increased to $213,298.05. In 1897 — the various and sundry acts had begun to get in their work — the inconje of the State, though reduced to $3,131,255.35, nearly met the outgo, which had been reduced to $3,151,282.09, and the surplus was $193,271.31. In 1898 our income was $3,230,410.24, our outgo of $3,200,257.92 and our surplus was then $223,423.03, an increase steadily going on from that time, as you will see. In 1899 our income was $3,475,404.87, the outgo (still decreasing) $3,111,430.80, and the surplus had increased to $587,897.20. In 1900, mainly by reason of the delinquent tax laws, known as the " land grabbers' law " going into effect, the income of the State took another big jump to $3,739,267.92, and with it the outgo of the State likewise took a large jump to $3,53^,343.28, but there was then a balance in the treasury of $791,321.84. And last year, when the beneficent effect of those much-abused laws had to some extent spent its force, and people paid more promptly their taxes, the income of the State diminished to $3,633,156.89, while the outgo, ever increasing, had gotten up to $3,597,881.17, and left the balance as of last September, of $826,i597.06. So now, gentlemen, I call your attention to the fact that in Virginia to-day a sur- plus is treated as a disease, as a danger, and not long since there appeared in one of the papers of the city of Richmond a four column article in which it was said that the attempts to reduce the tax rate would be accompanied by repudiation and ruin, that our honor was involved — of course, I do not attempt to quote it, though I have it here in my pocket; the substance is what I am endeavoring to state — that our credit was involved, but that in view of the fact that the surplus was there and apparently a great menace to our welfare, there was scheme after scheme suggested whereby it could be gotten rid of, and not one of them suggested the reduction of the State debt. I say, Mr. President, that there can by no possibility be a greater wisdom in spend- ing unnecessarily money that you happen to have accumulated by a splendid admini- stration of your affairs, than in reducing the taxes that put the surplus in the treasury. I cannot think that gentlemen on this floor would for a moment suppose that I would intentionally advocate anything that would destroy Virginia's credit, I cannot think that gentlemen upon this floor would believe that I desire a policy of repudiation and ruin; but I say that as a choice and alternative between spending the surplus and getting rid of the surplus by reducing taxes, infinitely the preferable and better way is to reduce the tax rate. DEBATES OF THE CONSTITUTIONAL CONVENTION" OF VIRGINIA. 2913 Now, we can do it. The other day the gentleman from Fairfax (Mr. Moore) filed as a part of the record a statement from the Auditor in which he said that the proposed reduction of 10 cents in the $1C0 for the State purposes alone would cause a reduction in the revenue of hetween §514,000 and ?515,000 per year. In order that those who oppose this contention may have the benefit of every possible doubt and that the unwisdom of this proposition may have the strength of every possible argument let us take the Auditors' figures and call them in round numbers $515,000. On motion of Mr. Turnbull the Convention adjourned until Friday, March 7, 1902, at 10 o'clock A. M. FRIDAY, March 1, 1902. The Convention met at 10 o'clock A. M. Prayer by Rev. J. B. Hawthorne, D. D. Mr. Summers proposed a resolution relating to the Elective Franchise. The President: The unfinished business this morning is the report of the Com- mittee on Taxation and Finance. The pending question is on the independent section offered by the gentleman from Danville (Mr. Withers), and the gentleman from Dan- ville has the floor. Mr. Withers: Mr. President, on yesterday 1 gave notice of an amendment to the Section as originally drawn, which was not offered then in the sense that it was actually written out, because I hoped to have a conference with my friend from Richmond (Mr. Meredith). Having failed in that, I will offer the amendment and he can then have the opportunity of an examination of the same, and if he desires to amend it, I think it is more than probable that we can agree on the amendment which he suggests. The proposition is to add at the end of the section the following language: Provided, hov/ever, that the General Assembly maj^ during such period of four years levy, in addition to the annual appropriation for pensions prior to September 30, 1901, a special tax for pensions on lands and lots and the improvements thereon, and on tangi- ble personal propertj^ not exceeding five cents on the one hundred dollars of the assessed values there of. I will say, in further explanation of the reason this amendment vv'as not on the original draft of the independent section as proposed, was due to the fact that confer- enceg about this matter had been held between myself and several other gentlemen, notably the gentleman from Lynchburg (Mr. Glass), and I expected him to offer the amendment. But, he being absent by reason of sickness, and the end of the committee's report on Taxation and Finance being reached at a point that was astonishing to me, I had to draft it then and there. So it is not an after-thought, but it is simply carrying out the original plan: Now, Mr. President and gentlemen of the Convention, I will endeavor, as rapidly as it is possible for me to do, clearly and intelligently, to explain the remainder of the reasons for offering this amendment, or this independent section as an amendment, and will endeavor further to substantiate my contention that the revenues of the State of Virginia justify the reduction in taxation proposed, and that such a reduction will not bring about any threat of repudiation or ruin, will not in any wise endanger or threaten the credit and honor of the State of Virginia, and will give no ground or justi- fication for an onslaught by its creditors upon the credit of the State. Furthermore, I believe that I lay down a principle of business conduct when I say that any creditor of any State, or of any institution that has to do with large credits and finances, will con- sider it an infinitely wiser and better policy to reduce the expenditure and outgo of that institution or State and to reduce the means of income if by that an economic and efficient administration of the affairs of that State or institution can be brought about, 2914 DEBATES OE THE CONSTITUTIONAL CONVENTION OF VIRGINIA. rather than to keep up an unnecessary income in order that unnecessary and useless expenditures may be incurred. Just as the Convention adjourned yesterday afternoon I was about to take up what data I had to offer as proof of the contention that the reduction could be made without Injury to the credit or to the honor of the State of Virginia; but I think it will perhaps be better, in the order of sequence, to call attention briefly to one or tv^^o other things, and then to take up the figures and the facts in support of the contention that we can make this reduction without in any wise impairing our credit, or the efficiency of our government or of our institutions or of our educational work. I submit, therefore, Mr. President, that those of us who have taken the position that undue and unnecessary burdens should not be put upon the corporations in the State of Virginia cannot con SiStently say that undue and unnecessary burdens shall be continued upon the citizens of the State of Virginia. If it is a hardship to impose a franchise tax upon corporations in excess of what is just and right, it is equally a hardship to continue an ad valorem tax upon the property of citizens in excess of what is needful and necessary; and he who occupies a position of opposition to the one, either because he thinks the entire franchise tax is excessive or because the percentage levied is excessive, is inevitably bound to face the difficulty of making consistent his position, if he opposes an attempt to discontinue an unnecessary ad valorem tax upon the property of the individual. Another point I respectfully commend to your consideration. As I suggested to you yesterday, following in the wake of the Republican party of the Union, it seems now to be the cry based upon an article in a certain Richmond newspaper of the 19th, and that is the gospel of our opponents, that the way to get rid of the surplus is to spend it. It is certainly the quickest and easiest way, but in order to get rid of a surplus by that method I would submit you will incur appropriations, fixed charges and expenses upon the State of Virginia that it v/ill be as hard to rid the State of as it will be to raise the tax rate, should it be lowered too much. I say that if we attempt to spend the sur- plus you can fix upon the treasury of the State such charges and such appropriations as v/ill be almost impossible to rid the treasury of, except by the dire necessity of either increasing taxes or meeting repudiation. If anybody thinks it is an easy task to cut off and get away from anytliing that is extravagantly, though with perfect honesty, managed, if anybody thinks it is an easy matter to get the hand of one solitary voter which has been fixed upon the treasury out of that treasury, I tell you you never made a greater mistake, nor undertook a greater burden. Legislatures of which I have been a member have attempted it, and a special committee appointed for the purpose recom- mended that the appropriations to every institution in this Commonwealth be reduced, with one or two or three exceptions, and it was like the task of Hercules to clean the Augean stables, and it was just as hard as to obtain the consent of the Legislature to give the necessary and needful increase of the tax rate. Can we, who have favored a Constitutional Convention, who have proclaimed that it could be of material pecuniary benefit to the citizens of this State fail to meet this question? The opponents of a Convention have ridiculed that idea from its inception. They have proclaimed triumphantly that that was the merest chimera, that there was no reasonable hope that such a thing could be accomplished and that, too, in the face of the fact that by legislative enactments brought about by the gentleman from Bruns- wick, then a member of the Senate of Virginia, by the gentleman from Rockingham, now a member of the Senate of Virginia, by the then representatives from the counties of Rockbridge, Campbell, Franklin and Albemarle, Messrs. Winbome, Featherstone, Saunders, Boaz and others, friends of a convention movement, and accepting a chal- lenge thrown down in the Legislature by our opponents that "if you are sincere in advocating this movement you will adopt such measures here as will bring about the reforms proposed," it was, I say, by their efforts and those who acted with them, that a surplus has again accumulated in the treasury of the State of Virginia. To them is the honor due, and to others, too — the gentleman from Page particularly, then a DEBATES OF THE COXSTITUTIOXAL COJs^VEIs^TION- OP VIRGINIA. 2915 member of the House of Delegates of Virginia. I esteem it but right and just that their names should be mentioned, because they have faithfully fought every contention of the opposition, and have, I respectfully submit, shown all of them to be errors. Now, the opponents of a convention, following up that line of attack upon the Legislature, or rather on the movement while it was in the Legislature, have persistently pro- claimed through this State, during the sessions of the Convention, that we have done nothing; that our work has resulted in no benefit, and yet when we say that we have, and they challenge us to shovN^ it and we propose to give the people a relief, they say it is a demagogic move, and but chaff thrown in the wind to tickle the fancy of the thoughtless and the unthinking. And lastly, this Convention has with almost practical unanimity resolved that a new method of taxation should be tried for a fixed period of years. If that method of taxation is found to be just it will be perpetuated. If that method of taxation is found to be unjust it will be corrected, or a substitute made in the stead thereof. But the passage of this resolution, gentlemen of the Convention, will insure at least one fact; that whether or not the particular method we have come upon is finally proved to be correct or not, there will at least this thing arise out of it, and that is, that by giving relief to the citizen who has borne more than his share of the burden, a guarantee will ever exist that the corporations of this State shall also bear their share of the burdens of taxation. I say, therefore, that before we throw this aside, we should consider the questions involved in it, and the effect which it v/ill have. Now, Mr. President, I want to try to sustain the position that this can be done, that it can be done with perfect safety, and without trenching upon the surplus in the treasury; that it can be done 'without injury to institutions, to education, to charity, or to benevolence, or to the efficiency of the administration of our State government. I want to repudiate any idea that this thing is brought here for buncombe or for effect. If anybody thinks that let him vote against it. If anybody can disprove the facts that I have managed to get at — and I have sought for the truth — and can show me that my calculations are wrong, and that I am in error, then I will vote against my own proposition. I have not hesitated upon the floor of this Convention to acknowl- edge when I was wrong, and I have no pride of opinion in a proposition of this sort. It is a mere business proposition, and it is a mere question as to whether or not v^^e are in a position to accept a business proposition. Now to the facts. You will observe that the resolution has to do with the tax rate only upon lands and lots, and the improvements thereon, and tangible personal property. Now, it originally said "choses in action, moneys, credits and capital," but it does not say that now, because those things are the things that have not borne their just proportion of personal property taxation, while the tangible personal prop- erty rarely ever escaped. The household furniture, the cattle horses, farming imple- ments, and so forth — the tools, etc., of the laborer, not exempt by law, are taxed, and the stocks, bonds, securities, etc, go untaxed, at least in part. The second reason is that this Convention has adopted the classification theory of taxation, and moneys, credits, capital, choses in action, etc., are not of the same class of property as visible tangible personal property, and therefore I did not want to do anything that would seem even to trench upon the idea of classification. Further- more, I have never thought that the holders of those forms of personal property had any just right to complain of the taxation upon it. Now, let us eliminate that question. The property affected, according to the last Auditor's report, the value of lands and lots and the improvements thereon amount to $323,738,088; the value of the tangible personal property of this State, which is the only personal property affected by this resolution is $46,403,481, while the intangible personal property in the nature of moneys, credits, capital and choses in action, etc., amounts to $68,919,711. So that now that to which this resolution purports and intends to apply, is lands and lots and the improvements thereon, amounting to $323,738,088, and tangible personal property amounting to $46,403,481. 2916 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Mr. R. Walton Moore: I simply wish to call your attention to the provision in Section 9 as reported by the Committee on Taxation and Finance. In speaking of the taxation of the visible property of railroad and canal corporations, this provision appears: , And such property shall be taxed for State and for county, city, town and district purposes in the same manner as now authorized by law, at such rates of taxation as may be imposed by them, respectively, from time to time upon the real estate and tangi- ble personal property of natural persons. If that provision should stand, and you should reduce the taxes laid there from forty to thirty cents upon the real estate and tangible personal property of natural persons, would not these corporations participate in that reduction? Mr. Withers: Unquestionably. Mr. R. Walton Moore: And do you include that feature in your calculations? Mr. Withers: Unquestionably you do. If you choose to classify it you can meet it, and if you do not choose to classify it you cannot meet it. But I am going to include that in the calculation which I will give you. Now, Mr. President, I wish the members of the Convention would listen to these items. If they are erroneous you can show it. The income for State purposes from taxes on real estate, of course, the school taxes are not intended to be touched — accord- ing to the last Auditor's report for the year ending September 30, 1901, was $806,080.69, and the reduction that will be brought about by this section, if adopted, will be $288,693.56. All personal property affected by this proposed reduction, that is tangible personal property of the individual or of the corporations yields an income of $139,- 210.44, and the reduction thereon will be $46,403.48. Railroads paid for State purposes to the State of Virginia last year the sum of $202,403.52, and the reduction, if this independent section is adopted, v/ill be on this property $67,467.84. It will, of course, not affect the franchise tax, nor will it affect the reassessment of railroad property by the Corporation Commission. Next we have the delinquent land taxes. They are not separated by the Auditor, and, therefore, I may, and do very probably include more than justly belongs within the scope of this reduction resolution; but I take it in order to give every benefit of doubt to the opposition to this proposition, because this is a serious proposition, and if it is an error it should not be passed. The delinquent taxes amounted to $76,662.38. Presuming that all of them, delin- quent, were on this item of taxation for State purposes, the reduction would be $25,- 554.12. Then express companies paid on their personality — I do not include their licenses, because this resolution has nothing to do therev/ith — last year $118.74, and the reduction thereon would be $39.58. The Pullman Car Company last year paid on property they have now in the State, $962.93, and the reduction will be $320.98. Then the 5 per cent, imposed for the non-payment of taxes on the 1st of December, the differ- ent items of which are not shown by the Auditor's report and consequently I have in- cluded them all — another inclusion against me — was $19,748.99, and the reduction there- from would be $6,583.00, The steamboat companies paid on their tangible personal property, fee, $2,488,67, and the reduction there would be $816.22. The telephone and telegraph companies paid on their tangible personal property and real estate, if they own any land, $3,662.12, and the reduction, if carried into effect, will be $1,220.71. Remember that on such things as telegraph and telephone companies, express compan- ies, etc., I have not and do not profess to affect the license tax. I am simply giving you the figures of taxation returns as they will be affected on the real estate and tan- gible personal property in the State, whether belonging to individuals or to corpora- tions. The total reductions, therefore, on the subjects mentioned in this independent section, proposed by v/ay of amendment to the articles of taxation and finance, amounts to $437,099.49, It will be said that the Auditor addressed a letter to the distinguished member from Fairfax, dated February 24th, in which he says that a 10 per cent, redue- DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF YIRGIXIA. .2917 tion in the taxes would cut down the revenues of the State by the amount of $514,- 198.99. I make it §437,099.49, because I do not touch the revenue derived from banks for State purposes, nor does this resolution touch the revenue derived from choses in action, moneys, credits, capital, etc. So that the effect of the resolution offered here is to reduce the revenues of the State for State purposes exclusive of schools by $437,- 099.49. That is what we have got to confront. That is what we have got to provide for. That is what we have got to meet in order that the government, institutions, &c., of Virginia may not be ineffectively administered or impaired. Let us see if we are are prepared to do it. I want to meet the opposition fairly, and I want to be fairly met. I mean, not that the gentlemen want to do me an injustice, but I want the facts to be fairly known to you. Therefore, when the letter of the Auditor to the gentleman from Fair- fax is cited in opposition to this movement,- as involving a reduction of $515,000, I want you to remember that it includes the two subjects of banks and the very important subjects of intangible personal property amounting to nearly $69,000,000, according to the last Auditor's report, and that I do not propose, by this resolution, to touch or affect the returns from either. Now, ?Ir. President, how do we propose to meet this reduction of $437,099.49? It has been stated upon the floor of this Convention and has never been controverted — because the members of the Committee on Taxation and Finance have proven them- selves so well equipped and so capable that its report has passed through this body without a solitary amendment, except by their consent — and I take their estimate as correct — that this report will yield this State approximately or fully $250,000 a year by reason of the change in the franchise tax on corporations, etc. That is the first item wherewith to meet the $437,000 that will be needed. I think we will find that it will yield more; but I v;ill base it on their estimate. The second is the annual sur- plus revenue of Virginia, for how long? If I should have said for last year, some gen- tlemen would say. "Why, he takes figures for one jesiv and argues from them." I am going to take figures for six years, and I take them for six years for this reason, that the law that the framers of this Convention movement, enacted, began to go into effect six years ago, and the conditions now existing are practically the same as they were then, except that the new assessment on real estate and new laws for the compelling of the payment of delinquent taxes have increased the income of the State, but the outgo, has kept pace with it. The annual surplus revenue of the State of Virginia, beginning wath and including the year 1896, and coming up to and includ- ing the year 1901, is $125,000. Therefore, it is fair to say, with conditions of income and outgo remaining approximately the same that we can bank upon a like surplus revenue as long as similar conditions and circumstances exist. We have, therefore, to start with $375,000 to meet this proposed reduction. That leaves a balance of $62,000 to be accounted for. Let us see hov: we are to account for that. I say we will account by the effective putting into effect of this Constitution — for every dollar of it. I see my friend smile — I say that every dollar of it will be met by the effective putting into effect of this Constitution, and should I be mistaken in the calculation that the legislative, judiciary and other departments of this government, administered prop- erly under this Constitution will meet the possible deficit of $62,000 caused by this reduction, there is another perfectly just and equitable way of meeting it; and that is by a properly graded liquor license tax. It is an absurdity, as it strikes me, to put upon a bar-room or a saloon in a village of 200 inhabitants the same burden you would put upon one in a city like Norfolk, Richmond or Danville. It has been esti- mated that under a proper system of liquor license taxes from $200,000 to $400,000 of increased revenue could be derived without putting undue oppression upon the busi- ness. Is it a reasonable proposition that the same license tax should be imposed upon a man in a city like Norfolk or Richmond or Danville or Lynchburg, that is imposed upon one in a small village? Therefore, I say that, if I am in error in my supposition 2918 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. that the supposed reduction in the cost of administering the State government should not fully meet the $62,000 lacking to make up the $437,000, after you have taken into consideration the increased income from the tax on corporations, and the annual sur- plus revenues of the State of Virginia, you have your remedy direct, simple and plain and upon a traflBc and business that ought to bear what it reasonably will bear. But I submit, Mr. President and gentlemen of the Convention, that the comparison I have made is not a fair test. I have taken the annual surplus revenues for Virginia for six years back, in order that there might be given to the opposition of this move- ment the benefit of every possible doubt as to the surplus revenue. Three years back is the proper criterion, because while similar circumstances and conditions existed as to the outgo of the State, the reduction measures having been put into effect by the friends of this Convention movement, similar conditions did not exist as to the col- lection of taxes. Mr. Barbour: In your estimate here of the average surplus for the last six years, have you taken into consideration the increased interest rate? Mr. Withers: Yes, sir; I added that in. That is included in one of the estimates. As I started to say, the conditions as to outgo have been nearly similar for the last six years, but not as to income, because the act known as the "land grabbers" act, prepared mainly by a distinguished member of this Convention, has been elective, not merely in bringing about the prompt payment of taxes by individuals who had let them go by year after year, but also in bringing about the payment of taxes on lands owned by corporations that had not paid taxes for years and years, and that never intended to pay them until it became necessary to do so in order to sell them. There is an instance in my town where $700 was collected from a man named Green, trustee, and he had apparently owned the land for ten years. Nobody knew who Douglas Green, trustee, was, and nobody could collect the taxes. When this law went into effect they were at once paid. Therefore, I say, that the proper criterion as to the annual surplus of this State would be to take it for the period of the last three years. During that period the annual surplus has amounted to $201,000. Let us take the increased amount brought about by the franchise tax proposed by the committee, add the annual surplus revenue of $201,000, and you have $451,000 of revenue wherewith to meet this reduc- tion of $437,000 per annum. So you can take either horn of the dilemma you choose, and estimate on the six year surplus or on the three year surplus. But it will be argued that the capitation taxes are going to amount to nothing. If that is true, then the question of suffrage is settled. We are now losing one to two hundred thousand dollars a year by reason of capitation taxes, I would call the attention of the mem- bers of this Convention to the fact that last year they did not amount to but betv/een $254,000 and $255,000. Let us see v/hat the facts are as to capitation taxes. The white polls, in the State of Virginia, as reported by the Auditor, amounted last year to 260,016. The colored polls amounted to 125,788. The total amounted to 385,804. capitation tax collected amounted to $254,819.99; so that, according to the returns, not a negro paid a capitation tax in the State of Virginia in the year 1901. If you take the mere number into consideration. Not a negro paid a capitation tax or a poll tax in the State of Virginia last year, if you consider it from the mere point of view that less capitation taxes were paid than there were white capitations to pay them. There- fore, unless the people of Virginia have decided to quit voting and are going to quit voting entirely, except the few who want to manage the affairs of the State and hold the offices, I say there is no real menace in this imagined reduction of the capitation taxes. We all know that a good many negroes did pay their capitation taxes, w^ all know that the white people who do not pay them now will more than prob- ably not pay them hereafter, and that those who do pay them now will probably pay them hereafter. But, even if they do not pay them, I say that the liquor license tax, if properly graded, will meet any deficit, whether you make your estimate on the basis of the annual surplus revenue of the State for the last six years or upon the annual surplus revenue of the State for the last three years. DEBATES OE THE C0X5TITUTI0XAL COXVEXTIOX OE VIEGIXIA. 2919 Now, Mr. President and gentlemen of the Convention, I submit that this is a prac- tical business proposition; that it is offered with a view of a practical business result; that it has not in view any idea of repudiation or ruin, but has in view a reduction of taxation on lands and lots, and the improvements tnereon, and on tangible personal property, because we believe that it is justified, and that those people who have paid their portion of the burdens of taxation for years are entitled to the benefit of what- ever, good we may have done by this Convention, and those who have escaped taxes, whether corporations or individuals should be made to keep up their share, in order that the burdens of the others may be lightened. It will appeal to every interest in the State of Virginia. It will appeal to every business man in the State of Virginia. It will appeal to every citizen, it is practical, reasonable and just, and it ought to appeal to them. It ought to be adopted, furthermore, because it will prevent the put- ting upon the State of Virginia of many an appropriation that ought not to be passed. It will prevent the expenditure of many a dollar that ought not to be expended. It will prevent the committing of many an extravagance that ought never to be committed. In what I have to say I have no comment to offer and no criticism to make on any measure pending before the General Assembly. It would be improper and indecorous to make them. I have no desire to make them. I am not in a position to make them intelligently, and to make them unintelligently would be to make them unjustly; but I do submit that this is worthy of your consideration, that it Is offered with a serious intent and purpose; that it is offered in pursuance and in furtherance of the intelligent plan which the friends of this Convention had before them when they asked that it be called, which they had before them when it was called, which they had before them during its entire session. It is the capstone of the building they would fain erect. It is the finishing touch of the proposed reduction of unnecessary officials and unneces- sary expenses, which had not been attended with any astonishing results. It is the intelligent and fitting conclusion to that theory of Virginia government which says that you have too many people to pay and too many appropriations to make. Reduce it to a business basis. Make your appropriations effective. See that they are properly and well spent. Cut off all that are unnecessary and then give the people the benefit of these reductions — do not give the people the benefit of more appropriations, do not give the people the benefit of unnecessary expenses, do not give the people the benefit of anything except what they are entitled to, to-wit, the benefit of lightening the burden of those who pay the taxes and have paid in the past more than their just proportion thereof. So, Mr. President, if I may be permitted to sum up in conclusion, I believe that this is justified and sustained by these facts and reasons: First, it will give the work of this Convention a fair test before the people. The reduction of the tax rate will prohibit even a hostile Legislature .from trying to discredit the work of this Conven- tion. Mr. Meredith: You have given so many figures that I possibly may have missed some of them. What is the balance, after your calculations? Mr. Withers. Taking the annual surplus revenue for six years, and including the increase from the franchise tax on corporations, as contained in the report of the Committee on Taxation and Finance, it would amount to $375,000, as against $437,000 reduction of taxation, leaving a balance of $62,000 to be accounted for, which I submit will be met by the reduction in the expenses of the government under the new Consti- tution, or by a graded liquor license. I have not calculated those reductions, and I have not calculated the graded liquor license because it is a matter of detail as to one and a matter of calculation purely as to the other. We ean get the reports on the judiciary and legislative branches of the government and get, almost to a cent, what the reduction will be as compared with the past. But I contend the past is not the pro- per criterion, because the new system will bring about such an administration of both departments of the government as to produce a larger saving than would appear from 2920 DEBATES OF THE COIsTSTITUTION"AL COlNrVENTION OF VIRGIJ^IA. past history. For instance, a legislative session costs about $101,000. It will be cut off one-third. That includes the increased cost of printing. I contend that the item of printing will be decreased more than one-third, because the bulk of our legislative reports are private acts. The answer may be that everybody pays to have his own act printed. I know that, but I know that the State pays for putting that act into the reports of the General Assembly, and I believe that two-thirds or three-fourths of the printed acts will be eliminated by excluding private incorporations and private relief bills. If you take the three years' surplus revenue as a criterion you will have $451,-000 of revenue and surplus, as against $437,000 reduction. Mr. Keezell: Did you take into calculation, in estimating the average surplus, the fact that during the last three years the State has purchased out of the current revenue $500,000 of securities, which are now to the credit of the sinking fund? Mr. Withers: I knew it had purchased a large amount, $292,000, at one time, but I concluded that as regular outgo. Mr. Keezell: I thought I would call it to your attention so that you might take it into consideration if you had not done so. Mr. Withers: Undoubtedly. I intended calling attention to it, and I am exceed- ingly grateful to my friend from Rockingham, that he has enabled me to call this fact to the attention of the Convention, that out of this outgo for the last six or three >ears, during which ever period you choose to calculate it, there are bond purchasers of half a million dollars, $292,000 purchased at one time, in 1899 or 1900, I do not recall which, and I have included that as an annual expense, so as to make the calcu- lation of the surplus annual revenue by no possibility too large. You can see, if you take $500,000 and divide it by six or by three that you will increase the surplus annual revenue by just exactly that proportion, in the one instance $80,000 and in the other instance $166,000. Mr. R. Walton Moore: Does not the gentlem.an think that we should retain that policy? Mr. Withers. Undoubtedly, sir. I do think we should maintain that policy but I do not observe, in the hue and cry to get rid of the surplus, a solitary suggestion to purchase bonds out of it — not one. It may be argued — and I am glad my attention has been called to it by the gentleman from Richmond (Mr. Pollard); and I will say this before I sum up — that the school revenues will be affected by reason of the provisions of the report of the Committee on Education. I do not think so because of the fact, first, that intangible personal property and banks are not affected; secondly, that if it Is affected a two and a half per cent, rate can be permitted to be taken from the pen- sions, because two and a half per cent, will pay all the pensions in excess of the annual appropriations already made that are proposed to be paid under the new bill and meet the demands of the Confederate soldiers; or you can make it two per cent, for pen- sions and leave a three per cent, special tax for schools; but my idea in providing for special taxes for such purposes is to let the people of Virginia know for what purposes their taxes are levied, and when they know exactly what they have to pay for pensions they will say how much they want to pay. There is no use in talking about the Confederate soldier. My father was a Con- federate soldier and my childhood was hard upon the verge of those tremendous times. My most thrilling recollections are the tales that Confederate soldiers have told me of the immortal heroism and glory of the men who fought in gray. No man can stand ahead of me in admiration for that thin gray line whose continuity is forever broken. No man will be more ready to bear a heavier burden of taxation in order to relieve the survivors of that war which has put a new page of glory in the records of history; but I do not believe that under the guise of increased appropriations to pen- sions, unnecessary burdens should be kept upon the people. I think they should have the opportunity to say how much they are willing to pay, and they will deal most gen- erously with those who put their lives in danger and were maimed for life for the sake of their country and their State. DEBATES OF THE COXSIITUTIOXAL COXYEXTIOX OE VIRGIXIA. 2921 Let me say also that on the subject of education I yield to none in the recognition of the necessity for it, in the recognition of the dire need for it. I yield to none in my earnest desire to promote all sorts of proper education for the youth of this land. I make this statement without fear of successful contradiction, that while I believe it is a fact that Virginia appropriates more to her public schools in proportion to her wealth and ability than any other State of this Union, she gets as poor a return therefor as any of them, and that what is to be done is to make the public school appropriations more efficient before they are rendered unnecessarily larger. Then if there is any need for Ejore, prepare to give it to them. So that, Mr. President, I respectfully beg leave to sum up the justifications and reasons for this motion. First, it will give an opportunity for a fair test of the work of this Convention. It will give an opportunity to its friends to show the wisdom of it and it will give an opportunity to its enemies to show its unwisdom, if such there be. You have observed that throughout the Commonwealth of Virginia before the Constitution v/as a perfected instrument, and before many parts of it were agreed upon, there was a systematic howl, from whom? The men who fought it to the death and got whipped before it was called, and who now, without even knowing what it is, want to discredit it. Nothing will be a more splendid play into their hands than to put it into their power to dis- credit it without a trial, because they are afraid to give it a trial. What they seek and desire is to have the work of the Constitutional Convention, the perfected instrument, discredited, nullified and rendered absurd before an oppor- tunity is given to the people to see it tested and tried, and to see whether it has the mer!t we claim, for it. Therefore, I say that as a first reason we should put such a brake upon these gen- tlemen who have never admitted they were wrong or that we even approached the sus- picion of being right as will disable them from discrediting the work of the Conven- tion by hostile legislation, by extravagant appropriations, by unnecessary burdens fas- tened upon the people, and then to turn and say: "Why, there is your Convention's work. Your expenses have not been reduced, your taxes have not been reduced, but both have been increased." Secondl3^ it will give to the citizens of the State the benefit of our work, if the work is good. It can do them no harm if it is bad. If we have put the burden of taxes vshere they belong, or rather if we have made corporations pay a just pro- portion of taxes which we claim they have not done before, and we have a large annual surplus revenue in the treasur3^ year by jbry, why then we should give to those citi- zens who have borne more than their share of the burden at least relief therefrom and we should give, if we have confidence in our. work, a substantial assurance to the citizens of Virginia that that work is good. Thirdljs it will give to those who have borne more than their share of the bur- dens of government an opportunity to be equalized with those who have not borne a just proportion of the burdens of government. It is a perfectly just proposition that if I, owning property by the side of and of equal value with my friend from Culpeper, have for years and years escaped a proper assessment thereof, while he has had to pay upon a just assessment, we should be equalized, if such could possibly be done, by allowing mine to be kept up and his to be decreased. Now, under the classification theory and under the report of the Committee on Taxation and Finance, exactly that thing can be done between those who have paid more than their just share and those who have paid less than their just share, and, therefore, it will relieve to some extent the burdens of those who have borne more than their share and make those who have borne less contribute a due proportion thereof. Fourth. Whether or not the plan of the Committee on Taxation and Finance, which I heartily and cordially supported, is wise or unwise, !t will insure just corpor- ate taxation. It will insure at the end of this period of ten years either a continuance 184 — Const. Deb. 2932 DEBATES OF THE CONSTITUTIONAL COasrVENTION- OF VIRGINIA. of the system we imposed or it will insure a substitute equally effective and equally just. Therefore, I say, Mr. President, that reason should commend itself to you who do not want to do corporations an injustice, but who do want to deal justly as be- tween citizen and citizen, be he natural or artificial. Fifth, it will prevent— and this is a weakness of human nature and not of the Gen- eral Assembly — many reckless expenditures and will prevent fixing unnecessary appro- priations upon the treasury. That is as human a thing to do as for a secret order to be not too discriminating in the charity that it . deals out to those who claim they are the worthy objects of it. It is the hardest matter in the world for even a man with iron in his soul to stand in a Legislature or General Assembly and refuse requests from many worthy and excellent institutions, organizations, societies and for many admirable purposes, though they may be totally at variance, so far as a State appro- priation to them is concerned, with every principle of sound government. It will cause a wise analysis and examination of such requests, and it will prevent fastening on Virginia unnecessary appropriations, to get rid of which will be a heavier burden than to obtain the consent of the people to an increased tax rate to meet it. We stand in no danger from the intelligence of the people of this State. They will understand that this is a brake upon any attempt to unfairly discredit this Convention's work before it has had a fair test; and if this Convention's work is what we believe it to be, this reduction of taxation will not need to be restored to its former rate. Lastly, it will confuse and confound the opponents of the Convention and its work, who have never contributed thereto, who have stood out howling against it as of some monster let loose in the land to seek and devour all whom he might find, and it will show them that we have not only done something, but that we know we have, and having confidence in it, are willing to show the fruits thereof. ft, therefore, Mr. President, commends itself to me as a practical business proposi- tion, without sentiment, without emotion — I have tried to discuss it as such—without dragging into it the questions of charity and benevolence, the questions of the unfor- tunates in the hospitals, the Confederate soldier, and the child who is ignorant and un- educated. We all recognize the necessity for the proper support and maintenance of every one of these particular charities. We acknowledge it, but there stands out this principle of government, that all unnecessary appropriations and wasteful extrava- gances are not merely unwise, but tend to corruption. When there was a surplus in the Federal treasury the Republican party adopted the principle of getting rid of it, not by alleviating the burdens of the people, but by spending the surplus; and I would respectfully submit that when there is a surplus in our treasury it is not a burden, not a danger, not a disease, but it is the means whereby we can reduce the burden of our interest by retiring more of our debt, and it is a guarantee to our creditors of the wis- dom and soundness of our administration and managemenmt of our affairs, and will further promote the financial credit and standing' of the State. Whatever else may be said of this proposition, so long as we can protect our interest, meet our other obliga- tions and administer our government efficiently and economically, only to that extent should we wring taxes from the people, and from all amounts in excess thereof they should be relieved. I thank the Convention for their attention. Mr. R. Walton Moore: Mr. President, as a member of the Committee on Taxation and Finance I desire to occupy the attention of the Convention for a few minutes in order to refer to some figures that have been given by my distinguished friend from Danville (Mr. Withers). If I were a member of the General Assembly I would vote for this proposition if it were submitted there, or for some similar proposition, but it does not seem to me it is a proposition that ought to be entertained by a constitutional con- vention. It certainly is a thing without precedent in the State of Virginia, for a constitutional convention to fix a tax rate either for five years, or for ten DEBATES OF THE COXSTIT UTIOXAL COXVEXTIOX OF YIEGIXIA. 2923 3^ears, or for an indefinite period. I believe it is a thing almost without prece- dent in any of the States of this Union for a Constitutional Convention to attempt to do a thing of that sort. It has been considered proper heretofore everywhere to leave the matter of the tax rate to be fixed by the General Assembly, composed of the repre- sentatives of the people in the legislative department of the government. What is the proposition? It is that we shall make a reduction of the revenue by a rigid reduction of the tax rate, that provision to last for a period of at least five years. That will result how? It will admittedly cut down the revenue of the State at least $437,000. The revenue is to be diminished $437,000; but the cut may be even greater, for in the sections already adopted we have declared that when we impose a franchise tax upon the railroad and canal corporations the stock of these companies shall be exempted in the hands of individual owners. Who can tell to what extent that exemption may add to the cut of $437,000? So in the very outset it is impossible for any member of this Convention to accur- ately say what will be the loss of revenue if this proposition carries. But anyhow it will be necessary to cover this reduction of $437,000, even if it is limited to that amount. How are Vve to cover it? My friend from Danville says v/e will meet it in part by the surplus of about $175,000 a year. But here is another doubt. What member of this body, when he considers the growing needs and demands of a State like Virginia, the increased expenses that are naturally and legitimately from time to time imposed upon the treasury can say that we are going to maintain an average annual surplus of $175,000? Are not expenses multiplying? We look to the penitentiary and we recog- nize that there must be a heavy expenditure. We look to the Williamsburg hospital and we find a demand there that must be responded to. In various other directions there are calls for money that cannot be allowed to go unheeded. There is nobody, I repeat, who has enough foresight to be able to assert that for the next five years we can count upon an average annual balance of $175,000. I am talking about the doubts that environ this matter. So, Mr. President, we cover the $437,000 partly by a shift- ing and uncertain annual surplus. Then the gentleman asks us to rely on a saving under the new judiciary plan. I meet him with the statement that so far as fixed charges are concerned, there will be a heavier burden upon the State treasury under the judiciary article we have adopted than there is under the Constitution and laws in force. Under the judiciary article we have adopted a good deal of the expense is transferred from the cities and counties to the State. The gentlemmen of the Judiciary Committee will tell you, I think, that so far as the fixed charges are concerned, the State will be required to pay from $6,000 to $10,000 more hereafter than now, and this estimate does not reckon with the possibility of the organization of new circuits. So there is nothing in the judiciary article that will help us out on the loss of $437,000. The gentleman predicts that we will save in the Legislative Department. I hope and believe he is correct, but a.t this time we cannot be certain. He predicts that we will save in other departments of the government. I trust so, but it is largely conjectural. So it seems that against the $437,000 leaving out of view the estimated annual surplus, that we have nothing definite at all to count upon except the increased revenue from the railroad and canal corporations. What is that? About $250,000 we estimate. But are we sure of it? In what shape is it? It is in the shape of a tax of one per cent, upon the gross earnings of those corporations which now amount in the aggregate to something like $2G,000.000 in this State. But when the earnings fall off the treasury will suffer. That in. two or three years the wave of prosperity we have had flowing upon us recedes, and that the earnings of these corporations are much less than at present. Then we will not be able to apply this entire item of $200,000 to $250,000 that is now set off against the $437,000 in reduction. Now, what more is needed to show the doubt that environs this whole subject, when you have upon the one hand a cut of $437,000 and you have upon the other hand only a conjectural annual surplus of $175,000, a conjectural increase from the rail- road and canal companies and a hoped for increase in other lines. 2024 DEBATES OF THE COXSTITUTIOXAL COITVEiS'TIOX OF VIRGINIA. Mr. President, I do not find that there is anybody v,^ho is now charged with the responsibility of conducting the affairs of the State government who thinks it wonld be safe for the Constitutional Convention to adopt this proposition. We have figures from the offices in the library building, but no word of approval from that source. r.Ir. Withers: Did you ever know any State or National Government executive officer who thought his budget should be reduced? Mr. R. Walton Moore. Yes, sir; I have. Tiie General Assembly some time ago reduced the tax rate, and did it, I think, v/ith the approbation of the basement officers. Those who have a thorough familiarity with the financial condition of the State are admittedly people v\^hose opinion is entitled to more or less respect. Again, Mr. President, this committee, whose report my friend has done us the honor of commending, has unanimously opposed this, proposition. It was considered in the committee, and what does the report say? Here is the language: "It has been suggested that the article should provide for the reduction cf the present rate of taxa- tion for State purposes, namely, 40 cents on the $100" — but the committee has de- clined to thus invade what it regards as the legitimate province of the General As- sembly. The committee, however, desires to state with emphasis that the increased revenue provided by the article nov/ proposed, and the saving to be made in several directions hj the new Constitution, will enable the General Assembly to very mate- rially reduce the tax rate and lighten the burdens which rest upon the mass of the people." When I signed the report I believed, and I belie^^ now, that the General Assembly will be put in the position by the work of this Convention to reduce the tax rate; but the General Assembly'' is one body, and this is another body. If we make a mistake by adopting this proposition there is no correction and no redress until the period of its operation expires. If the General Assembly makes a reduction there is the oppor- tunity for correction at the regular session of that body, or at an extra session in the event that a reversal or correction becomes necessary. Mr. President, I am not an opponent of the Constitution. My ardent desire is that our work shall succeed and bring blessings to the people of the Commonwealth, but I do not conceive that it is our business to electioneer for the acceptance of the Constitution by doing a thing which is so obviously outside of our jurisdiction. What a,re w^e here for? We are commissioned to revise the organic law, to frame a new Con- stitution embracing fundamental principles and embodying permanent policies which we think will be beneficial. Having done that, our duty is discharged; we have per- formed the task entrusted to us, and the final verdict is with others. Mr, President, it seems to me that no amount of elaboration could show how very inexpedient and injudicious it v^ould be to adopt this proposition. I do not claim it would bring ruin. I do not claim it would necessarily bring discredit upon the State by involving a repudiation of either principal or interest of our obligations; but I do claim that we enter upon a dangerous experiment when, depending upon estimates and conjectures and guesses, we propose to write it into the organic law that the tax rs^te shall be reduced. I know there is a charm in any proposition to reduce the tax rate. There are various considerations that press upon representative m_en v/hen that proposition is made, inclining them to support it. It is a thankless thing, on the other hand, to resist a proposition of that character. But whatever the consequences, I protest against writing in the organic law such a declaration as our fathers never dreamed of writing into the Constitutions of 1776, 1829-80, or 1850-51. I bass my protest upon experience, and upon the reasons that spring from the very doubtful case pre- sented by the supporters of this measure. Mr. Barbour: What is the difference in principle between fixing the income tax in Section 11 and this proposition to fix the tax on general property in the article pro- posed by the gentleman from Danville? Mr. R. Walton Moore: So far as theory and principle are concerned, there is not DEBATES OE THE COXSTITUTIOXAL CONVEXTIOIT OF VIEGIXIA. 2925 one man in this body who has acted strictly upon any theory in framing this Consti- tution. The justification for adopting this ten-year plan was that we immediately get from the railroad companies, without waiting upon the action of the Legislature, from $200,000 to $250,000; and there cannot be any conjectures about it; there cannot be any danger about it. It is. upon the credit side of our account. It is that much money that we bring back into the treasury; but when we say vv^e v/ill reduce the tax rate by a constitutional provision, we are unY^^isely experimenting with the finances of the State and the interests of the people. Mr. Barbour: Then I understand the distinction in principle which the gentle- man makes to be that it is all right to increase the tax rate in the Constitution, but not to decrease it. Mr. R. Yv^alton Moore: I do not say so. I say that, as far as the railroad com- panies are concerned, in order to insure an increase on the return it was determined, as has been stated time and time again here by the gentleman from PJchmond (Mr. Meredith) that we Y/ould put this plan in as a sort of compromise; but it would be an entirely different thing to put a reduction of the tax rate in the Constitution. Mr. Withers. In a statement with reference to the cost of the judiciary, I do not think that the minimum salaries of the circuit judges had been decreased. Mr. R. Walton Moore: Yes, sir, I did. I am not a member of the Judiciary Com- mittee, but I think I am safe in stating that the judiciary sj'stem will inevitably cost the State treasury under the new Constitution more than the present judiciary system costs. Mr. Meredith: In so far as the salaries of the judges are concerned, but not the incidental expenses, which are what the gentleman from Danville referred to. Mr. R. Walton Moore: We all know when v/e come to the matter of incidental ex- penses that we are in the clouds. Yv'e cannot tell what incidental expenses will be gotten rid of by the new Constitution. We ought not to found a reduction of the tax rate upon possibilities or probabilities. We should ,not take this step if there is any uncertainty. Mr. Keezell: Mr. President, I do not desire to detain the Convention but a very fey/ moments in reference to this proposition. I must confess when I look at it I necessarily have to look at it from two standpoints. I believe it is more properly a legislative matter than a constitutional one; but when I bring into consideration my experience as a member of the General Assembly, and know what is almost sure to be the result in that body, then my faith as to v/hether it ought to be a matter of legis- lation entirely is very much shaken. I had occasion once before in discussion upon this floor to state that I did not think there was a more dangerous thing that could confront the State than a plethoric treasury. If gentlemen of this Convention had the time and the inclination to attend the meetings of the Finance Committee of the present General Assembly, I think they might be convinced of the dangers which do attend a plethoric treasury. From almost every section of this Commonwealth, from every interest, there comes a clamor for increased appropriations, for increase of salaries, for money out of the treasuiT; and my experience is that vvhen this clamor comes to the representatives of the people from their immediate constituents, it is an exceedingly hard matter to turn down those requests, if the money is at hand with which to meet them. The danger is and has always been that from a small beginning, apparently, just like starting a snov/ ball roll down a slope, these appropriations increase year by 3'ear, ever growing larger and larger. It is almost an impossibility, in my opinion, and w-ill be very difScult,, to get any General Assembler that will have the nerve to vote for a reduction of taxation in face of and in opposition to the clamor that comes up from all sections of the Com- monwealth to the representatives of the various constituencies and by influential con- stituents in favor of increased appropriations, increased salaries, new offices, and all that sort of thing. 2926 DEBATES OF THE COJs^STITUTIONAL CONVENTION OF VIRGINIA. I say I believe it is truly a legislative function, but at the same time I believe it is one of those functions which it is more difficult for a General Assembly to perform than any other one it has. I have had some information, possibly, with reference to the fin- ancial condition of the State, and I do not believe there are any men or set of men in this Commonwealth who have any exclusive knowledge about matters of that sort. Our finances are public property. We can go to the records of our State officials, and any man of intelligence and research can find out just as much about those conditions as can the Auditor or the Treasurer or any other official. You can go back and search for years, and if you are a man of intelligence, you can come to just as safe a conclu- sion as can these officials, when you take the official records and reckon with them year after year. The figures given by the gentleman from Danville are taken from the official rec- ords of the Commonwealth, a,nd, so far as my information and knowledge concerning those figures go, they are as absolutely correct as any figures which will be submitted here by any official this State. There can be no question but that the figures which he has given you, so far as the revenues of the State are concerned, so far as the expenditures of the State are concerned, during the years which he has enumerated, are within the realm of conservatism, and are certainly warranted by the reports of your fiscal officers. Now, as to the wisdom or unwisdom of engrafting this provision into your Consti- tution. There is a question which I think the members of the Convention ought to weigh and decide for themselves. So far as I am concerned, I think that in the amend- ment which he has proposed to his resolution he has guarded the only point about which much criticism could be made. He has provided not for a reduction of ten cents on the $100, or a reduction of from forty to thirty cents absolutely, because he has given permission that in case the requirements of the State may demand it, there may be an additional tax of five cents on the $100 levied for the purposes of the needy Confederate pensioners. The only apprehension this Commonwealth need have, in my opinion, is from that very source, and there can be no question on earth about the con- servatism of his estimates, so far as the receipts and expenditures of the Common- wealth are concerned, under all the conditions which we have gone through with for the last ten years, except that one item; and as to that one item he makes a provision which, under the present law, and under the proposed addition of five cents (assum- ing that it would be one-half of the reduction of $437,000 which he contemplated) would leave a total expenditure for pensions of $353,547.75 per year on present valuations. Mr. Marshall: That includes the increase, though, of five per cent. Mr. Keezell. Yes; that includes the increase of five cents on the $100. As I un- derstand, his provision now says that if there is any increase over and above the amount paid now, which is $135,000, it may be provided by an additional tax of five cents on the $100, and that additional tax of five cents on the $100 would be just one-half of the reduction of $437,000 v/hich he got by his reduction of ten cents, and would bring it up to $353,547.75. What is the condition of the State now, so far as your finances are concerned? It is true we have had during the last three years a surplus of $1,095,174.33. It is not true that all of that money is in the treasury for the reason that during that time $492,000 of it was taken to purchase securities of the State, amounting to more than half million dollars face value. Those securities are in your treasury. The commis- sioners of the sinking fund have charge of the securities of the State to the amount of $1,115,000, which are not dedicated to the sinking fund under the provisions of th© settlement, until 1910. You had, in addition, on the first day of last October, $826,597.96 of cash in your treasury, and you had it there after you had paid the expenses of an extra session of the General Assembly, and after you paid the expenses of the Consti- tutional Convention up to the first day of October. After having paid those extraordi- nary expenses during the last fiscal year, which amounted to $91,000 in round num- £)EBATES OF THE COXSTITniOXAL COXVEXTIOX OF TIEGIXIA. 292r bers, you had $327,276.12 of surplus out of the current revenues of last year, making, all together, in round numbers more than $400,000 of surplus revenue that you would have had the last year if it had not been for the extraordinary expenses of an extra session of the General Assembly and the expenses of the Constitutional Convention. It is true that there commenced, with the first of last January, or the first of July, possibly, an extraordinary expense over and above what we have had in the years passed, and that is the increased rate of interest of one per cent, on some eighteen mil- lion dollars of our debt, which incurs in round numbers an increased cost to this Com- monwealth of $180,000 — not of $180,000 necessarily, because a considerable portion of that $1,115,000 that we hold of our own securities is a part of that eighteen million dollars, and you are collecting each year, if you see fit to do it, the interest and pay- ing it upon a debt we own ourselves. I ought to have the exact amount, but I have left it at my room. I think, however, something like half of that $1,115,000 of the bonds held by the State are century bonds and that increase of one per cent, on that amount comes to the State, and the interest that you are allowing each year on the whole of the $1,115,000 all of it comes to the State, if you see fit to pay for it or you can reduce your appropriations by that amount, as you may see fit. The increase of one per cent., instead of amounting to $180,000, is about 169.000 on the debt in the hands of the public. It is true that under the action of this General Assembly there has been set aside an increased amount for Confederate pensions; btit the amendment of the gentleman from Danville guards that point, so that cannot embarrass you, because if it becomes necessary yoti can increase your levy above the 30-cent mark in order to provide for whatever the General Assembly may do with reference to that matter. So that it occurs to me, with, in round numbers, two million dollars of assets that are available in case of an emergency, there can be no danger in the amendment pro- posed by the gentleman from Danville to the credit of our State or impugn the inten- tion of the Commonwealth to carry out in good faith the payment of the last dime of interest due her creditors. If there is no danger from that standpoint, then it re- solves itself back to the mere question whether or not you are going to put the General Assembly of Virginia in a position in which they will be able to stand off the persons who come clamoring to their doors for increased appropriations, as they stood them off in 189 5, 1896, and along in those years, so that they can say, "We have not the money, and, therefore, we cannot yield to your importunities." or whether you are going to subject them to the importunities which, as I said before, it is almost im- possible not to yield to. Mr. Braxton: Has the present Legislature disposed of any material part of this surplus of $800,000 on hand that you refer to? Mr, Keezell: I would say that, so far as that is concerned, I think it is the policy of the General Assembly, and I believe it is going to be their act, not to in any way, shape or form countenance any continuing appropriations that will take any more than the current revenues to be expended each year. There are necessary some improve- ments to public buildings, and matters of that sort, which will require appropriations out of this $826,000. of revenue on hand at the beginning of the fiscal year, and, in my judgment — and I only give it as a matter of my judgment, because all of that matter is yet unacted upon — the State ought to appropriate possibly half of that $826,000 for certain improvements that ought to be made in this Commonwealth. Some of them have been mentioned here on this floor by the gentleman from Fairfax (Mr. Moore). The question of the penitentiary improvement, the question of the Eastern State Hos- pital, the question of repairing your Capitol, and needed improvements in a number of these other institutions might possibly take anywhere from $300,000 to $400,000 of that surplus. Mr. R. Walton Moore. May I ask the gentleman if that $826,000 was not simply 2928 DEBATES OF THE CONSTITUTIOjSTAL C02n YENTIOIsT OE VIRGINIA. the balance that happened on that day to be in the treasury? Can he say that none of that balance was subject to the operation of the appropriation laws then in force? Is it not true that that just happened to be the balance at that time? Mr. Keezell: Yes; it is true that that happened to be the balance just as it is true in regard to what happened to be the balance of all the first of Octobers before that. On the first of October, 1899, we had a surplus of $791,321.84. On the first of October before that we had >?587,397.20; and it is just what happens every year so far as the first day of October is cuncerned. Mr. R. Walton Moore: If my friend will allow me one minute further, as show- ing how that so-called surplus varies, I find that whereas in October it was $826,000; on the 4th of March, three days ago, it was only $724,000. To-morrov\^ it may b'e a good deal less. Mr. Keezell: That Is easily explained. Nobody contends that there shall be in the treasury the same amount every day. There is money being continually checked out, and money continually coming in; but I say the history of the last number of years has shown that we have an increasing surplus each first day of October in the treasury, and that it is the policy of the General Assembly, and I believe it vvdll be carried out, not to- undertake by permanent appropriations or continuing appro- priations, to take away one dollar of thnt S8'^f^.n00 that was in the treasury on the first day of October, but that they will keep their appropriations within the estimated receipts for the next twelve months. At this point Mr. Flood took the chair as presiding officer. Mr. Withers: I desire to call the attention of the Convention to the fact that the $100,000 difference between the first of October and the fourth of March, I believe, is accounted for by the payment of the expenses of the Constitutional Convention and of the session of the Legislature. Mr. Keezell: I was going to come to that. We have spent some extraordinary money since the first day of October, for the expenses of the Constitutional Convention. The expenses of the General Assembly are really an ordinary expenditure, because they come at stated intervals, and the only extraordinary expenditure during that time, has been for the expenses of the Constitutional Convention. I think I can say with perfect safety that the only reduction which will be made on that $826,000 which was on hand on the first day of October last v/ill be such money as is appropriated for permanent improvements for buildings in the Commonv/ealth and possibly what the Constitutional Convention may take out. Mr. President, so far as I am concerned, recognizing the fact that the people ex- pect us to give them such a Constitution as is going to enable the General Assembly to reduce the taxation. I am going to take the risk of voting to do it here, because I think there are safeguards enough around it so that there can be no possible danger in doing so; and vv^hen I do it, I say that as a member of the General Assembly I had ten thousand times rather stand up with an empty treasury and have to look around for economies than to stand there with a plethoric treasury and undertake to ward off what, in my judgment, are improper raids upon the money belonging to the peopie. It is very much easier to protect the money of the people when you do not have it in abundance than it is when you have it in abundance, and I think it has been well said that there can be no greater danger to the State than an overfiowing treasury. I think that the General Assembly instead of considering the putting of some such limitations upon them as this, is a reflection upon them, would rise up and call you blessed, because you would be protecting them from importunities which, as was said by the gentleman from Danville, few of us even with iron in our souls are able to withstand. Yooi would be protecting them against themselves to a very great extent, and I know that I, as a member of the General Assembly would thank you for putting us in a position to be saved from ourselves in the way of taking care of the public money. Yet if I believed that in doing this I was going to attack the credit of the DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF TIEGIXIA. 2929 State in any way, shape or form, or prevent a proper amount of money teing appro- priated to every worthy institution in the State, I would not vote for it. But I think you are only providing really for a 5-cent reduction under this provision, and that there can be no question in my mind, hut that when this Constitution goes into effect, you cannot only reduce it five cents, but you can reduce it much more than five cents with perfect safetj'. I^,Ir. Turnbull. Mr. President, and gentlemen of the Convention, I will not occupy much of your time in the discussion of this proposed independent section. I want to say, in the outset, that, as stated by my friend from Danville, we were together as members of the Senate of Virginia for four years, at a period of time, when it became necessary that every institution of this State, every branch of the government and its manage- ment should be carefully investigated, in order to stop the raids upon the treastiry that were then being made, in order that the expenses of the State might be reduced. I had the honor to be appointed upon the committee vrith the gentleman from Danville and the gentleman from Albemarle to do that work. We made a thorough investiga- tion into this whole matter and became thoroughly familiar with the affairs of the State and every possible institution connected with it. And with the aid of those gentlemen and of the investigation made, we undertook to, and did, institute reforms in the affairs of the government, and caused bills to be passed that put a check upon the outgo of the revenue that came to the State. I agree entirely with the gentleman from Rockingham that, as a member of the Legislature and a citizen of Virginia, I would rather see a deficit every year than see an overflowing treasury such as we have now. There never was a time in the history of the State of Virginia when a rigid economy in the affairs of the government would show^ a surplus in the treasury that you did not have raiders standing at the door for the purpose of getting it. Just as soon as the fruits of these measures of reform, that were adopted by the Legislature, became apparent, the raids began again upon the treasury, and the laws, that we worked so hard to put in force, which were not intended to work an injury to the State, but were intended to enforce proper and economical administration of the government which the people had a right to demand, began to be repealed at the instance of those people who wanted to get out of the treasury what, in my judgment, they were not entitled to get out of it. I want to call attention to the fact that when you make appropriations it is, in nine cases out of ten, for the benefit of the few and at the expense of the many. No appropriation ought to be made out of the public treasury until it is properly scrutin- ized, and they will never be properly scrutinized as long as you have a surplus in the treasury, because of the importunities and annoyances that the members of the General Assembly are subjected to. No man, who has not been a member of the General Assembly, has any idea of the extent of that annoyance. I have seen mem- bers of the Senate of Virginia stand up in their places and undertake to protect the interests of the people against these importunities, and I have seen them hissed in the Senate by the crowd of lobbyists standing around making applications for appro- priations, that those members who opposed them did not think they were entitled to. The investigations that this committee made satisfied me that Ave could stand a reduc- tion of taxes prior to the time of the assembling of this Convention, by a proper ad- ministration of the State government. I came to this Convention, Islv. President, for two purposes. One was> to try and enforce, by measures that we would inaugurate here an economic administration of the government. I have gone over the meastires that have been introduced; I have examined carefully the changes that have been made, and 'I think that purpose has in a great measure been accomplished by what we have done. But that is not all, gentlemen of the Convention. I intend to show my faith in what I believe we have done and in what we have done, by voting for the amendment offered by the gentleman from Danville, to show to the people of AMrginia that I came here to try and fix it so the taxes could be reduced and, not only that, btit 2930 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. I am going to show my faith in what we have done, and let them understand that I have faith in it, by voting for this amendment. Gentlemen say that this is a legislative measure. It is not the only legislative meas- ure that we have adopted in this Constitution. When I came here I did not ask the question whether any measure I advocated was a legislative measure or whether it was a measure strictly belonging to a constitutional convention. I came here to put it, in order that they should have proper protection. I am going to put in here any measure that I think is necessary, so far as my vote goes. I am going to vote to put in every one that I believe is absolutely necessary. That is where I stand upon this subject. I have said, in the beginning, that I was not able to discuss this matter and go over the figures that have been introduced here; but I have examined them care- fully enough to know that they are correct, in my judgment, in the presentation of this matter. I am going to vote to try this experiment. I am going to show my faith in the work we have done by putting the stamp of my own approval on it. I am going to show to the people I represent, that I, at least, believe in what we have done, I have no more doubt than that I stand here to-day that when we do that there never will come a time when a single member of this Convention will regret what we have put here. I believe that we will receive the applause and the good-will of the entire people of the State, and that no one will thank us more than the representatives of the people in the General Assembly, because it will put them in a position of being able to say to those who are now knocking at their doors for appropriations which, in my judgment, they are not entitled to, that the tax rate has been reduced and they cannot consider such propositions. Now, Mr. President, these are my views in reference to this matter. I am going to support the amendment of the gentleman from Danville, and I am going to do it with pleasure, because I believe it is the proper thing for us to do, to show that we have not only done the work the people sent us here to do, but that we have confidence in our work and that we are going to see that it has a fair show. Mr. Smithers: Mr. President, some of the members of the Convention have sug- gested what I think is a technical objection; but to meet it I want to move that the words in line 4, "there shall be a tax" be eliminated, and that there shall be sub- stituted therefor the words, "rate of taxation shall be no more than." Mr. Harrison: Mr. President, I was very much in favor of the resolution that was introduced by the gentleman from Danville, until I found out that the Legislature had made certain appropriations which rendered it almost impossible for this Con- vention to adopt such a resolution. I think it would be a great mistake for this Con- vention to go before the people, when they submit this Constitution, with anything that cannot be demonstrated to be true. I believe it can be demonstrated by anybody who will look at the figures, that in view of the action we have taken in regard to the capitation tax and in view of the action of the Legislature in regard to appropria- tions, that it is absolutely impossible to reduce taxes. It is a question for the people to say whether they are going to vote for the reduction of taxes when it is shown that the revenues of the State are unequal to meeting the appropriations that the Legisla- ture has made. I have said, again and again, before this Convention, that so far as the people I represent are concerned, they are more interested in the question of the reduction of taxes than they are in the question of suffrage. You will not gain a vote in my section when you show that it is impossible to reduce taxes without a proper reduction in the expenses of the State. I cannot see that we have made any reduction in the expenses of the State, so far as I have been able to investigate. Therefore, I am opposed to this resolution. The Presiding Officer: The question is upon the agreement olJered by the gentle- man from Danville as an independent section 24 to the report of the Committee on Taxation and Finance. At this point the President resumed the chair. DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIEGIXIA. 2931 The ayes and noes having been taken, the result was announced — Ayes, 41; noes, 32, as follows: Ayes: Messrs. Ayers, Barham, Bamam, Manly H. Barnes, Boaz, Braxton, P. "W. Camp- bell, Davis, Epes, Flood, Gilmore, Gillespie, James W. Gordon, R. L. Gordon, Gregor^^ Gwyn, Hardy, Hooker, Keezell, Lawson, Lindsay, Lovell, Marshall, Miller, Moncure, Mundy, Parks, Pettit, Phillips, Pollard, Rives, Stuart, Summers, Tarry, Thornton, Turnbull, Wal- ter, Withers, Woodhouse, Yancey, and the President — 41. Noes: Messrs. Allen W. A. Anderson, Thomas H. Barnes, Blair, Bouldin, Bristow, Brown, C. J. Campbell, Carter, Crismond, Fairfax, Fletcher, Hamilton, Hancock, Harrison, Hatton, Hunton, Ingram, Claggett B. Jones, Mcllwaine, Meredith, O'Flaherty, Pedigo, Quarles, Richmond, Robertson, Stebbins, Thom, Waddill, Wescott, Willis, and Wysor— 32. The following pairs were announced: Mr. Garnett with Mr. Brooke; Mr. Green with Mr. Cameron; Mr. Glass with Mr. R. Walton Moore; Mr. G. W. Jones with Mr. Kendall; Mr. George K. Anderson with Mr. Portlock; Mr. Earman with Mr. Lincoln. The first named gentleman in each instance would have voted in the affirmative. The independent section was adopted. Mr. Fairfax. Mr. President, I move that the report of the Committee on Taxa- tion and Finance, as amended, be adopted as a whole and be referred to the Committee on Final Revision and Adjustment. I ask unanimous consent that this be done without prejudice to Section 6, which relates to the capitation tax, in which some changes may have to be made after the Suffrage Committee's report has been considered. I trust that will be taken as the sense of this body. The President: Without objection that order will be made. On motion of Mr. Turnbull, the Convention adjourned until to-morrow, Saturday, March 8, 1902, at 10 o'clock A. M. [From the 8th of March to the 29th the Convention did not engage in any delib- erations. On each day, immediately after roll-call, the Convention adjourned, and the Democratic members, who, with the exceptions of eleven members, constituted the body, went into conference upon the Suffrage question. For these twenty-one days there is an intermission of the stenographic report of the proceedings of the Con- vention, as nothing of interest occurred during that period. — Editor.] SATURDAY, March 29, 1902. The Convention met at 10 o'clock A. M. Prayer by Rev. Jere Witherspoon. AMENDMENT TO RULES. Mr. O'Flaherty: I offer the following amendment to the rules: After a motion to rescind has been carried, the Convention shall have the same control of the matter under consideration as if no action had been taken. Mr. President, if the Convention will give me its attention a few minutes, I think members will agree that this amendment to Rule 9 should be adopted. In the first place, I wish to call attention to the fact that this change of the rules does not open up any question. I will read it. I wish to insert at the end of Rule 9 the following language : After a motion to rescind has been carried, the Convention shall have the same control of the matter under consideration as if no action had been taken. 2933 DEBATES OF THE COXSTITUTIOXAL CONVElTTIOlsr OE VIEGHSTIA. Now, a motion to rescind will have to be carried, and if a majority of the Conven- tion does not wish to reconsider or rescind a matter, they can vote it down; but I do not want the Convention to be put in the position of saying that if we have made mistakes, we cannot correct them. I think we ought to be in the position of a court before it adjourns. Whatever is done in the bosom of the court, and can be corrected, I think that was the meaning of the word "rescind; " but under the ruling of the Chair, which is technically correct, perhaps, that has not obtained. If I am right, the Chair has ruled that after a reconsideration of a matter there could be no rescision. I find that the meaning of the word "rescind," as given by Webster— The President. The gentleman does not correctly represent the ruling of the Chair. The Chair intimated, without deciding, therefore, that after a resolution was carried to rescind, it might not be in order to reinstate in the place of v^hat had been rescinded the proposition voted upon by the Convention, and voted down, when a motion had been made to reconsider, and then that motion failed. Mr. O'Plaherty: The Chair is correct. That is what he did state, and that is what I wish to correct. I meant to convey that idea. I think we are wrong in pen- ning ourselves up. The meaning of the word "rescind," as given by Webster, is "to vacate an act by the enacting authority or by a superior authority." Now, If we have the power to va- cate this act, Y/e ought to have the power, if we have made a mistake to correct it; but I wish to call the attention of the Convention, specifically, to the fact that if they do not want to rescind any matter, they v^^ill vote down the motion to rescind. I want to state frankly that there are no things I want to open up myself except the one question of the Senate of the State of Virginia. I was not here when the vote was taken on that matter, but I am frank to say I would have voted with the majority of the Convention; and yet I think v^e made a mistake there. Still, if the Convention, when a motion is made to rescind that action, thinks differently,we can' vote it dovm without any debate, and it will take very little time. I do not want to be put in the ridiculous position, however, of going back to my people and saying we made a mistake, and before we adjourned v/e found it out, but we could not correct it. I think everything that is done should be in the bosom of the court, so to speak, and can be corrected by the Convention. My motion is simply that after a motion to rescind has carried, then the Con- vention shall have it in its power to, insert other matter; not simply to rescind it and leave a blank'. For instance, if a motion to rescind the action of the Convention in regard to the election of State senators carries, then I want to be in a position to move that they be elected for four years instead of two. I think that is a sensible position and a sensible position for the Convention to take. That is all I have to say. I hope the resolution will be carried. Mr. Blair: It might be that every other member would have something he would like to get in the Constitution in the same way. Mr. O'Flaherty: Then we will vote down every motion to rescind. Mr, Flood: Under the rules of the Convention we now have the right to offer a resolution to rescind anything. The amendmemnt of the gentleman from Warren does not propose to interfere with that. The only thing he proposes to do is to pro- vide that where the Convention decides to rescind its action, and leaves a hiatus in the Constitution, then this Convention may unquestionably have the right to fill the blank that it left. It seems to me it is the only common-sense view to take of it. It V70uld be absurd for us to say, for instance, that the action or this body pro- viding for two-year senators could be rescinded, and nothing could be provided for the election of senators at all — that you can rescind the two-year provision for senators, but you cannot supply it by having the senators elected for four years. I do not know that the Chair will rule that way, but the Chair has intimated that he might rule that way; and the resolution of the gentleman from Warren is simply designed DEBATES OF THE COXSTITUTIOXAL CONVENTION" OF VIRGINIA. 2933 to meet that phase of the question. If you decide to rescind, and anything is left out of the Constitution that ought to be put in, this resolution gives you the power to put it in. it does not invite motions to rescind, because the Convention can rescind now under the rules just as it could rescind under the resolution offered by the gentle- man from "Warren. It seems to me, therefore, it is the part of wisdom to adopt this resolution, and not have our hands tied, if we choose to rescind an action, so that we cannot supply the vacancy in the Constitution that would be left by that rescission. Mr. James Y7. Gordon: What distinction do you draw between the terms "recon- sider" and "rescind" in the rule as it now stands? Mr. Flood: The distinction I draw is this. "Rescind," I think, means the same to this body as the povrer of repeal to the Legislature. You can reconsider within cer- tain bounds. You can rescind as long as this body is in existence, just as the Gen- eral Assembly of "Virginia can repeal any act that is enacted at any time while it is in session. I take it that the word "rescind" in our rules gives us the same power over what we have done as the power of the General Assembly to repeal any act it has enacted during the session. Mr. YValker: Mr. President, v,dthout any reference whatever to any proposed changes In any action which has heretofore been taken by the Convention, I think the proposi- tion of the gentleman from Warren (Mr. O'Flaherty) is a sensible and wise one if it will have the effect as, it certainly will, of removing any doubt as to the power of the Convention to express its own will as to any matters which may come before it, and in which we may desire to make a change, v/ithout the cumbersome method of first re- scinding the action taken, and then afterwards changing a rule in order to carry out that intention. It has the effect simply of untying the hands of the body, and allowing it to express its will in regard to any measure; and it seems to rne It would be a wise and proper thing to do, Mr. Lindsay: I move that the whole matter be laid on the table. I do that for the reason that I do not think it is fair and just to members who are absent to-day to vote upon this question at this time. There is barely a quorum here, and it Is a very serious matter, in my judgment, to pass upon a resolution of this kind, which will open up every question. There should be a full vote upon it. Mr. O'Flaherty: I call the gentleman's attention to the fact that I gave notice yesterday I vmuld bring this matter up to-day, so that there would be no snap judg- ment. The President: The question is upon the motion of the gentleman from Albemarle (Mr. Lindsay) that the pending proposition be laid upon the table. The question having been taken, the result was announced — Ayes, 16; noes, 35. The motion was rejected. Mr. Mcllwaine. Mr. President, I voted against laying the motion on the table, because I thought we ought to settle this matter here and now. I view with the very greatest concern the idea of opening up any of these questions which have been settled; and I must say that, take it as a whole, I am opposed to rescinding anything v,re have done so far. There are things that personally I should like to see corrected. I use the word "corrected" from my point of view, but there are many other things which other gentlemen, from their point of view, would like to see corrected which I should greatly det)lore. And so it seems to me that if we open this matter at all and allow the fiood-gates of oratory to be spread before us, there is no telling where we are going to or to what conclusions we will come. Most of these questions have been amply de- bated, both in the Committee of the Whole, and in the Convention; and now for us to go back upon the deliberate conclusions of the Convention, looks to me as if it were childish. Therefore, I do trust that anything looking towards rescinding will be voted down. Mr. Wysor: Suppose there were some matter in the new Constitution, as adopted. 2934 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. that the Convention would unanimously desire to rescind — some error that should be corrected? Mr. Mcllv/aine: If it were unanimous, I would be found among those voting for rescinding. Mr. Wysor: But you could not do it. That is the very point. Mr. Robertson: Mr. President, I am as much opposed as the gentleman from Prince Edward (Mr. Mcllwaine) to staying here and losing money and wasting time; but it seems to me that the question that the gentleman from Pulaski (Mr. Wysor) asked him has a great deal in it. Here we are, a body of men, making a Constitution that may last for thirty years. He talks about our doing everything with great delib- eration. Everybody knows that a number of very important questions have been passed on here when we did not have a full attendance, largely due to the whip and spur that has been put upon this body by gentlemen who continually say, "We must keep on at work." I remember one occasion when there were only fifty people j^resent when one of the most important questions that came before the Convention was decided; and under the whip and spur of gentlemen who said, "We must attend to business; we must not give people time to deliberate." It is not so much a question of argument, because nobody listens to anybody's argument here (laughter). It is a question whether we shall have time to know what we are voting on. We sometimes come here in the morn- ing and vote for one thing, and after dinner, after we have gotten something to eat, we come back here and vote another way. I do not think ft is as childish to change what we have done if, after due deliberation, and after thinking over the matter, we see that we are wrong, as it would be to stand by some hide-bound rule simply because gentlemen want to get away from here. My own idea is that we ought to trust to the common sense of the convention. To say that you open the flood-gates here simply because we change that rule and enable ourselves to correct errors, if we think they are errors, it does seem to me is going too far. I There are a number of things we have had big fights over and that have been thoroughly discussed, and I doubt whether anybody will attempt to get them up again; but there may be others that the Convention will, as the gentleman from Pulaski says, unanimously desire, or certainly by a very large majority desire, to change, and it would be foolish, as long as we are in session, to tie our hands so that we cannot change something that we are satisfied is a mistake. I do not believe we are going to open any flood-gates here. The disposition of the Convention will not be to reopen very many matters. There may be a few, but most of them will be voted down in the first jump, because as far as I can see, the temper of this Convention now is to rush through with everything and get home. The President: The question is on agreeing to the proposed change of rule offered by the gentleman from Warren. The amendment to Rule 9 was agreed to, there being, on a division — Ayes, 33; noes, 18. Mr. O'Plaherty: I move to reconsider the vote by which the amendment was adopted. Mr. Withers: I just want to call attention to the status of the matter, and I start by saying that I am not opposed to the amendment of the gentleman from Warren in itself; but the gentleman from Roanoke (Mr. Robertson) and one or two other gentle- men, in arguing in support of this resolution, have made the point that we have carried important measures through here by a bare quorum; and yet exactly and all we have here to-day is a bare quorum of this Convention, and they not only propose to change the rules, but they make a motion to reconsider that change, so that if the majority of the members who are away — and I have no apologies to offer for their being away — should at any time desire to reconsider this very action of the Convention, they are hampered from so doing except by a rescinding resolution. DEBATES OF THE COXSTITUTIOXAL COXTEXTIOX OF VIEGIXIA. 2935 In regard to the very motion the gentleman from Roanoke referred to, there was a bare quorum voted that day, hut It was afterwards sustained by three or four to one. It was on the questions between judges^ of county courts or a double or single system. The vote was 41 to 9, and the absence of the member from Richmond (Mr. Newton) on account of sickness made a 50 an exact quorum. There are but 51 here to-day. On the very motion that this amendment of the rules is intended to pave the way for, to-wlt, the question of hold-over Senators, the vote was 45 to 28, and yet nothing is accepted as the sense or sentiment of this Convention that does not happen to accord with the majority of it. So far as I am concerned, I have no objection to the amendment of the gentleman from Warren; but it is railroading through here a measure In the Interest of a part of the Convention that has hitherto ever been in. the minority. Mr. Flood: I wish to call the attention of the gentleman to the fact that this cannot be spoken of as being railroaded through, because It has been pending a month. Mr. Withers: We all understand. The fight was made by the gentleman from Halifax and the gentleman from Rockbridge to force this resolution and all rescind- ing resolutions ahead of the suffrage discussion, and it was overwhelmingly voted down. It was started three or four weeks ago. All I ask of the gentleman from War- ren is this: As I say, his resolution of itself is not objectionable to me, but I do not think that a mere majority of this Convention, by a vote of 33 to 18, should make it impossible to amend' or reconsider that rule if the other members object thereto. You are assuming the very position you criticise the Convention for having assumed in the past. I have no earthly objection to the change in the rule, but I do object to paving the way to a change in what we have done by a change in the rules. The only thing I desire to ask of the gentleman from Clarke and Warren is that he will let the consideration of this matter go over until a full Convention can con- sider it. Mr. O'Flaherty: The only reason I do not is that it will simply take up time. The same reasons that have addressed themselves to the gentlemen here will appeal to others. I do not want to take up the time. Mr. Wysor: Mr. President, I hope the Convention will vote down the motion to reconsider, and clinch this matter. In my humble opinion, with all due respect to the other members of the Convention, I say the question is not at all debatable. The idea of a great Convention of the people undertaking to tie its hands, so that it can not open up any matter! We are told by the gentleman from Prince Edward (Mr. Mcllwaine) that you might open the flood-gates and let in all kinds of motions to undo what we have already done. I suppose we are a sensible body of men, and we can take care of ourselves in that respect. Nobody anticipates that we are going to raise any flood-gates. There will not be over three or four questions opened up again. Mr. Mcllwaine: I have seen the statement in one of the papers of twenty ques- tions. Mr. Wysor: It is ridiculous for us to say we cannot open up a question. The gentleman from Danville (Mr. Withers) says the main purpose is to open up the ques- tion as to whether we shall have holdover senators. Did not the gentleman from Ap- pomattox (Mr. Flood), more than a month ago, make a motion to rescind, and tell you he was going to open up that question? It seems to me it has been six weeks, or maybe two months ago, that he made that motion, when we were in the hall of the House of Delegates, and that motion has been pending ever since. Under such circum- stances it is perhaps proper to reopen that matter. What is the matter with the gentleman from Danville? He succeeded on one occasion in getting a provision put in the Constitution, reducing the rate of taxa- tion on real estate and tangible personal property, and he is afraid somebody will make a motion to rescind that provision. I do not suppose the Convention will ever rescind it. Several of the ablest men in this body did not know five minutes before 2936 DEBATES OF TflE COXSTITUTIOXAL COXYEXTIOX OF VIRGIXIA. they voted how they were going to vote on that important question j they s-aid they wanted to hear Mr. Keezell, and Keezell came over from the Legislature and made a speech; and he and Mr. Boaz said the Legislature was going to waste all the money; and the convention passed the Withers resolution, reducing taxation on real estate and on personal property, and leaving bonds, money, and all invisible property taxed 40 cents on the $100. Mr. Lindsay: Will the gentleman permit me to correct him? Mr. Boaz was not present on that occasion. Mr. Wysor: I know he was not here, but he was in 'for it. He and Keezell run in the same groove and trot the same gait. It is the only occasion in history, I reckon, where a provision was put into an organic law saying v/hat is perhaps the lowest rate of taxation should be the maximum rate. It is unequal, too. Lands, it is claimed, are now assessed only about one-third of their value, and tangible personal property is also assessed at less than its value, and the rate is reduced to 30 cent& on real estate and tangible personal property, and left at 40 cents on bonds and other in- visible property; and when they want to make up the deficiency, Keezell and Boaz go over to the Legislature and try to increase, instead of reducing, taxation on telephones. (Laughter.) I am for reducing taxation. Before I came to this Convention I vvrote a letter to my constituency, saying that was a thing I hoped would be done; but I did not con- template putting the reduction in the Constitution. I wanted to fix it so the Legisla- ture could reduce taxation. When we set about to make people bear the burdens of government unequally, it can hardly be said to be a wise course of action. That is, however, not quite germane to the question. I say we ought not to tie our handsi. I was making the point that the gentleman from Danville was afraid we might move to rescind his tax-reduction provision, because there is some talk about making such a motion Mr. Flood: I would like to ask the gentleman whether, if this resolution is adopted or not. a motion to rescind that cannot be made, in any event? Mr. Wysor: I suppose it could, sir; but the resolution says further the matter shall stand as if nothing has been done on the subject. I think certainly the Con- vention ought not to tie its hands. There is no use in waiting for anybody to come back to vote on this question. Those members who are absent would not vote to put hickory switches which they could not break around their arms if they were here. I submit that the motion of the gentleman from Warren (Mr. O'Flaherty) is right, and should be sustained. Mr. James W. Gordon: Mr. President, it is impossible for this body to tie its hands, but it seems to me, that all of .this talk, about our tying the hands of the Con- vention and placing it so we cannot correct anything is not germane to this question. The whole thing hinges upon the present vote, which a majority can carry. The rules can always be changed in the proper way; and therefore, as it takes only a majority to change the rules, a majority can control the will of this body always. The simple question is whether the members of this Convention believe it would be more politic and wise to accept the work as it has already been done, and stand on it, rather than, by changing the rules, to open up all the line of discussion which we have gone over for the last ten months. There are some respects in which I disagree with the action which has been taken in the Convention, and I presume every member of the Convention stands in exactly the same relation to the v/ork that has been done; but viewing the whole matter, Mr. President, I am willing to accept it and to let it go through and be adopted. It seems to me the question every man here has to present to his own mind is: Whether or not the work of this Convention as so far adopted, as a whole, is suffi- DEBATES OF THE CON"STITUTIONAL COXVEXTIOX OF VIKGIXIA. 2937 ciently satisfactory to my mind to let me be willing to stand by it, and to refuse to allow all of these questions, to be opened up, as they could be under the resolution offered by the gentleman from Warren? The President: The question is on agreeing to the motion to reconsider the vote by which the change of rule proposed by the gentleman from Warren was adopted. Tlie motion was rejected. LIMITATION OF DEBATE. Mr. Ayers: I offer the following resolution: Resolved, That debate upon every proposition to rescind shall be limited to fifteen minutes for and fifteen minutes against for proposition; and upon every proposition to substitute other matter instead of that rescinded, debate shall be likevvise limited to fifteen minutes for and fifteen minutes against such proposition. The resolution was adopted. On motion of Mr. Robertson, the Convention adjourned until Monday, March 31, 1902. at 12 o'clock M. MONDAY, March 31, 1902. The Convention met at 12 o'clock M. Prayer by Rev. W. F. Dunaway, D. D. Mr. James W. Gordon: Mr. President, I offer the following resolution: Resolved, That on and after Thursday, April 3, 1902, the place of meeting of the Convention be changed from the Mechanic's Institute Hall to the hall of the House of Delegates, that the Secretary of the Convention be instructed to make the necessary arrangements for the change. The resolution was agreed to. ELECTIVE FRANCHISE. Mr. Daniel: I ask leave to offer the following resolution and to ask its immediate consideration by the Convention: Resolved, That the follov\ang article, relating to the right of suffrage, be adopted as a part of the Constitution: ARTICLE. 1. Every male citizen of the United States, who shall ha.ve attained the age of twenty-one years, and who shall have been a resident of this State for at least two years, of the county or city in which he shall offer to vote one year, and of the precinct in which he shall offer to vote thirty days next preceding the election at which he shall offer to vote, who shall have been registered as may be prescribed by law, and who shall have paid in person to the State at least six months prior to the election at which he shall offer to vote all poll-taxes assessed or assessable against him for the preceding three years, under the provisions of this Constitution, or laws made pursuant thereto, shall be entitled to vote for members of the General Assembly and all officers elected by the people; provided, that no person otherwise qualified to vote under the provisions of this Constitution shall lose his right to vote in the precinct from which he has removed to another precinct in the same city or county until after the expiration of thirty days from the time of such removal; and provided further, that the payment of a poll-tax, as a prerequisite to voting, shall not be required at any election held prior to Januar3' 1, 1904, after which time the voter shall be required to pay, as a pre- requisite to the right of suffrage, the poll-tax for the next years preceding, not exceed- ing three, for which such tax shall have become due or payable; but the collection of l^o — Const. Deb. 2938 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. said poll-tax shall not be enforced by distress or otherwise until it shall have become three years past due; provided, that no person who, during the late war between the States, served in the army or navy of the United States, or of the Confederate States, or of any State of the United States, shall, at any time, be required to pay a poll-tax as a prerequisite to voting. 2. Prior to the first day of , 1902, and again prior to the first day of , 1902, and again prior to the first day of January, 1904, there shall be a general regis- tration of voters in every county and city of the State, at which general registrations no person shall be listed as a voter unless., when he offers to register, he shall be: First. A person who, prior to the adoption of this Constitution, served in time of war in the army or navy of the United States or the Confederate States, or of any State of the United States; or Second. The son of a person who, prior to the adoption of this Constitution, served in time of war in the army or navy of the United States, or of the Confederate. States, or of any State of the United States; or Third. A person who shall have paid to the State for the year preceding that in which he offers to register, taxes amounting to as much as one dollar ($1) on property owned by and assessed against him; or Fourth. A person who is able to read any section of this Constitution which may be submitted to him by the officers of registration and give a reasonable explanation of the same; or, being a person who cannot for himself read such section of the Con- stitution, shall be able to understand and give a reasonable explanation thereof when read to him by the officers of registration. All persons properly registered under any provision of this section shall remain permanently enrolled as electors, unless subse- quently disqualified by some other provision of this article; and a copy of this permanent roW, sv/orn to by the officers of registration, shall be certified to each county and city clerk for preservation in his offi-ce. Any person who shall be denied registration shall have the right of appeal to the Circuit Court of the county or the Corporation Cpurt of the city, or to the judge thereof in vacation. On January 1, 1904, the foregoing require- ments as to registration shall expire by limitation. 3. After January 1, 1904, every male citizen of the United States who has acquired residence in this State in accordance with section one (1) of this article, and not prev- iously registered under the foregoing provisions of this Constitution, shall, as a further condition precedent to registration, have paid all poll-taxes assessed or assessable against him for the next preceding three years, or, if he come of age during the year in which he offers, to register, shall have paid to the treasurer of his county or city, to be accounted for as other poll-taxes, one dollar and fifty cents ($1.50) ^in lieu of the first year's poll-tax to be assessed against him, and shall, unless he be physically dis.qualified, make application for registration in his own hand writing, without aid or suggestion or the use of memorandum, in the presence of an officer of registration of the precinct in which he resides, setting forth the names and residence of his parents, his own name, age, place and date of birth, his occupation and place of residence at the time and for two years prior to the date of his application; and if he has previously voted, then to s.tate in what Sta.te, county or city, and voting precinct he last voted; and he shall answer, on oath, any and all questions propounded to him by the registration officer affecting his qualification as an elector, which said questions and answers shall be reduced to writing; having done which and made oath to his statement, he shall be duly listed by the registrar of election. Every person registered under this provision, who is not blind or otherwise physically disabled, shall prepare and deposit his ballot without aid from another, on sucn printed form as may be prescribed by law; but any voter registered prior to January 1, 1904, may be aided in the preparation of his ballot by such officer of election as he may himself designate. The General Assembly shall, prior to January 1, 1904, provide by law for such a registration of voters as is thus set forth in Section 3 of this article, to be held at least once in every year, and shall enact such other laws as may be necessary to carry into effect all the provisions of this sec- tion. 4. The following persons shall be excluded from registering and voting: (a) Idiots, insane persons and paupers. (b) Those who have been heretofore disqualified from voting by conviction of crime, either within or without this State prior to the adoption of this. Convention and whose disabilities shall not have been removed. (c) Persons who have been convicted, either within or without this State, of treason, or of any felony, bribery, petty larceny, obtaining money or property under false pretences, embezzlement, forging, perjury. (d) Persons who, while citizens of this State, after the adoption of this Constitu- tion, fought a duel with a deadly weapon, or sent or accepted a challenge to fight a duel, either within or without the bounds of this State, or knowingly conveyed a chal- DEBATES OF THE COXSTITUTIOX AL COXYEXTIOX OF VIEGIXIA. 2939 lenge, or aided or assisted in any way in the fighting of such a duel; but the General Assembly may, by a two-thirds vote of each house, remove the disabilitj^ incurred by any one under this paragraph ' d.' 5. No officer, soldier, seaman or marine of the United States army or navy shall be deemed to have gained a residence in this State, or in any county or city thereof, by reason of being stationed therein; nor shall any inmate of a charitable institution, or any student in any institution of learning, be regarded as having either gained or lost a residence by reason of his location or sojourn in such institution, 6. All elections by the people shall be by ballot, and all elections by representative bodies shall be viva voce, in which event the vote shall be recorded in this journal of the proceedings of the record of the election. The ballot-box shall, during all elections, be kept in view, nor shall the same be opened or the ballots be canvassed or counted in secret. 7. The General Assemibly shall provide by law for ballots without any distin- guishing mark or symbol for use in all State, county, city, and other elections by the people. All ballots shall contain the names of the candidates and of the officers to be voted for, in clear print and in due and orderly succession; but Emy voter may erase any name and insert another. The General 'Assembly shall provide by law for the bal- lots to be used in all elections, and the form thereof shall be the same in all places where the election is held. 8. No voter, during the time of holding any election at which ne is entitled to vote, shall be compelled to perform military service, except in time of war or public danger; to work upon public roads, or to attend any court as suitor, juror, or witness; and no voter shall be subject to arrest under any civil process during his attendance at election or in going to or returning therefrom. 9. Any person who, in respect of age or time of residence, wxuld be qualified to vote at the time of the next election, shall be admitted to registration, notwithstanding that at the time thereof he is not qualified with reference to age or time of residence, and shall be entitled to vote if qualified at the time of election under the provisions of this Constitution. 10. Electors in county, town, and city elections shall possess the qualifications and be subject to the disqualifications heretofore prescribed by this article; but the General Assembly may prescribe a property qualification of not exceeding two hundred and fifty dollars for electors in any county, town, or city of the State as a prerequisite for voting in any election for officers' to be wholly elected by the electors of such county, city, or town, other than m.embers of the General Assembly. Such action, if taken, to be had upon the initiative of the representatives in the General Assembly from the city, town, or county immediately affected; provided, that the General Assembly in its dis- cretion may m.ake such lawful exemptions from the operation of said property quali- fication as shall not be in conflict with the Constitution of the United States or the State of Virginia. 11. There shall be in each city and county an electoral board, to be appointed by the Circuit Court of the county, or the judge thereof in va,cation, or by the Corpora- tion or Hustings Court of each city, or the judge thereof in vacation; said board to be composed of three members. Vacancies which may occur in said board shall like- wise be filled by said courts or the judges thereof in vacation. Said electoral board shall appoint the judges, clerks and registrars of election, and in the selection of judges of election representation, as far as possible, shall be given to each of the two political parties which, at the general election next preceding their appointment, cast the highest and next highest number of votes. No person nor the deputy of any person holding any elective office of profit or trust in this State, or in any county, city, or town thereof, shall be appointed as a member of the electoral board or as registrar or as judge of election. The General Assembly shall enact such lavs's as may be necessary to carry into effect the foregoing provision. For such registrations as may occur prior to January 1, 1904, this Convention shall make provision by suitable ordinance, which shall provide for the appointment by this Convention of the necessary boards of registration. 12. The General Assembly shall provide by law for an appeal by any person denied the right of registration, and shall also provide for the correction of illegal and fraudu- lent registration. 13. Every person qualified to vote shall be eligible to hold any office of the State, or of any city, county, or other local subdivision of the State, except as otherwise pro- vided in this Constitution. Men and women eighteen years of age and over shall be eligible to hold the office of notary public, and shall be qualified to execute the bonds required of them in that capacity. 34. The General Assembly shall provide by law for the fair and orderly conduct 2940 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. of all elections by the people in accordance with the provisions of this Constitution. lio. No person shall vote at any legalized primary election for the nomination of any candidate for public office unless, he is at the time a registered voter and qualified to vote at the next succeeding election. IG. The General Assembly shall enact such laws as are necessary and proper for the purpose of securing the regularity and purity of general and primary elections and preventing and punishing any corrupt practices in connection therewith; and shall have power, in addition to other penalties and punishm^ents now or hereafter prescribed by law for such offences, to provide that persons convicted of them shall lose the right to vote and hold office. 17. The treasurer of each county and city of the State shall, at least five months before any election, file with the clerk of the Circuit or Corporation Court of his county or city, lists by magisterial districts or wards, of white and colored persons separately, in alphabetical order verified by his oath, who have paid, not later than six months prior to such election, the capitation taxes required by this Constitution or the laws passed in pursuance thereof. The clerk, v/ithin ten days from receipt thereof, shall make out as many certified copies of the list so furnished from each magisterial district or ward as there are voting places in such districts or wards and deliver the same to the sheriff of the county, or serge?.nt of the city, whose duty it shall be to post one of said copies, v/ithout delay, at each voting place is said district or ward. And within thirty days after such notice has been posted, any person who shall have paid the capitation tax, but whose name is omitted from said certified list, m^ay after five days' notice to the treasurer, apply to the judge of the Circuit or Corporation Court of his county or cit5^ to have said list corrected and his name entered thereupon. The clerk shall also, within sixty days after the filing of said list by the treasurer, forward a certified copy thereof, with such correction as m.ay have been made by order of the courts, to the Auditor of Public Accounts, who shall charge the amount stated in such return against s.uch treasurer in the settlement of his accounts, except such part as may have been previously accounted for. And a reasonable time before such election the clerk shall forward to the judges of election of each precinct of his county or city a like certified copy of the list of those in the magisterial district or ward in which such precinct is located who have paid the capitation tax for the previous year, which shall be deemed conclusive evidence of that fact for the purpose of voting. Further evidence of the prepayment of the capitation taxes required by this Con- stitution as a prerequisite to the right to register and vote shall be Siuch as shall be prescribed by lavf. Mr. Turnbuli: Mr. President, this is jeally the question of suffrage. The reports of the majorit}^ and minority of the Committee on Elective Franchise are now pending before the Committee of the Whole undei- the rules. I think we should proceed in order with reference to this matter. I therefore move that the rules be suspended and that the matter of suffrage be taken up in Convention. It will require a two- thirds vote of the members present to vote in the affirmative to susipend the rules. I think, if v/e do that, we will then proceed in order in reference to this matter, and v/ill not have any question raised as to the parliamentary status hereafter. Mr. Brov/n: I would like to offer as a substitute for the motion of the gentleman from Brunswick, that the Convention resolve itself into Committee of the Whole for the Consideration of the suffrage matter. It does seem, to me that after all the elab- orate discussions which have been had on every other question it would be strange pro- cedure for the Convention presumably called mainly for the consideration of the suf- frage question to deal with that question in a different way from other questions. It seems to me that the proper procedure is foT this body to resolve itself into Committee of the Whole. Then the suffrage m^atter can come up, and this resolution can be offered as a substitute for the matters before the Committee of the Whole. It seems to me that is the proper v^ay, and I offer that as a substitute for the motion of the gentleman from_ Brunswick. Mr. Hamilton: Mr. President and gentlemen of the Convention, I want to endorse the motion of the gentleman from Bedford. It is, not right for us to practically under- take to cut off debate on this question, no matter v/hat we may think. Even if there were only two or three people who differ from us, they ought to be heard in the Com- mittee of the Whole. We ought to give them a fair hearing on the matter, and carry it through the Committee of the Whole, just as we have done v\^ith every other impor- DEBATES OF THE COXSTITUTIOXAL CO^VEXTIO^ OF YIEGIXIA. 294:1 tant question. If we choose to make rules to govern us in Committee of the Whole different from what we hare had. and which are reasonable and proper, let us make them before we get into it. But it is not right to railroad this matter through, and not give these people a fair chance to be heard. Mr. Daniel: I agree in all the gentleman from Petersburg has said. There is no idea of trying to railroad this matter through, cut anybody off or to crowd any- one. It was only thought this subject had been so much debated that it was not nec- essary to go through the ordinary formalities which have been pursued as other mat- ters. No other subject before this Convention has been treated as this has been. I will, however, in view of the objections which have been made by the minority, I ask leave to withdraw my motion. Mr. R. Walton Moore: I renew the motion. I think we 'ought not to spend time unnecessarily in Committee of the Whole, in the consideration of this subject. I think the assurance given by the gentleman from Campbell, the chairman of the Suffrage Committee, that no effort v:ill be made to unduly restrict debate in Convention ought to be satisfactory to all of us. Why should we go through the mill of the Committee of the Whole when we have already discussed this matter up and down. We will have to repeat in Convention what we do in Committee of the Whole. 'Vrh.j not go into Convention now with the understanding that the debate on the matter will be carried on in a reasonable way and the end reached as soon as possible? Mr. Pedigo: I wish to ask if you would be willing to miake this compromise? If you will agree that this thing shall take its regular course through the Committee of the Whole and give us a fair chance to examine it, amend it if we can, and point out its defects, we on our side will agree that when it comes into the Convention we will have not one word to say; that what the Committee of the Whole reports we will make no further debate over in Convention. Mr. R. Waiion Moore: Does not the gentleman think he will accomplish his pur- pose if we have an understanding that debate shall be without unreasonable restric- tions in Convention? Mr. Pedigo: I do not think it will. I think the Committee of the Whole should consider it as has been done with every other matter. I have no idea that the mem- bers of this Convention, even those in the majority, are entirely satisfied with this thing; and I think by converting a few of them we can get them to consider and im- prove this resolution a little. I think almost anything we could do to it would make it better. I do not doubt btit that we may do some good, and I ask that it may go through the Committee of the Whole. Mr. Walker: Mr. President, I cannot see the necessity for considering this ques- tion of suffrage in Committee of the Whole and afterwards in Convention. The mem- bers of this Convention, except those representing the minority party in the State have been considering this question in conference for many weeks. They have had an opportunity to amend it in any way they saw it. They have had all the bene- fit that could be desired from the consideration of it in Committee of the Yv^hole The only purpose mentioned, which vrould make it desirable to consider the mat- ter in Committee of the Whole is that debate on the report will not be re- stricted. That could be very easily accomplished by adopting a resolution in Con- vention that as to this particular matter the pending question, or the previous ques- tion is not to be called. The whole thing could then be settled without any difficulty, by giving the fullest freedom of debate, and avoiding the clumsy proceeding of going first through the Committee of the Whole, and afterwards through the Convention I call attention further to the fact, Mr. President, that, under the rules, this resolution would not be referred to the Committee of the Whole. Unless the Convention, by a separate resolution, should determine to take it up for immediate consideration the proper disposition to make of it would be to refer it to the Committee on Elective Franchise. I see no reason why this Convention should not proceed immediately to 2942 DEBATES OE THE CONSTITUTIOIs'AL CONVENTIOIsT OE VIRGINIA. the consideratioii of this resolution, and, if it is necessary to do so, adopt a rule that will allow the fullest freedom of debate in Convention. Mr. Summers: Mr. President and gentlemen of the Convention, I will state that I have read something in the newspapers about this matter, but never, until this morning, did I read this resolution now presented here. I know, gentlemen, that I am talking and speaking to 100 liberal, honorable gentlemen, who have considered this matter fully. I can conceive of no reason why this article on suffrage should not go to the Committee of the Whole. We can then proceed with it in regular order. I would prefer not to go into Committee of the Whole until Wednesday or Thursday; but we are at your mercy. I am not one of that chivalric crowd who would die before asking a favor. If I only represented 50,000 men here I would raise no objection to considering this in Convention at once. But I represent, as I conceive, in this body, the liberties and rights of 200,000 men, and I v/ould be recreant in my duty to the country from which I hail if I did not insist upon giving proper consideration to this question. The most honorable man, the most noble of the C^sars, has told us that we shall have our rights without limit, and I knov,^ we shall have them. It is mere im- pudence upon the part of a Republican to say that he is ready to go into the discus- sion of a matter where the rights of 200,000 nien are to be considered and adjusted, within twelve, tw^enty-four, fortj^-eight, or one hundred hours, or one hundred days. Now, gentlemen, the siege of Troy has commenced. It has commenced at this hour and moment. The people from my country will never withdraw from this con- flict until Helen is restored and the invader vanquished from this land Of freedom. The tocsin has already sounded in my county, where there are Democratic manhood suffrage men, who are raised above the objection of the hour and the day. They will resist, as will others in every district in the State, any attempt to invade what they conceive to be their rights. I ask you, gentlemen, to see to it that the people in niy mountains, and the people of my valleys may have a full opportunity, through their representatives, for the dis- cussion of this most important matter. I appreciate the wisdom of my Democratic comrades. I believe they are v/ise, but God has so created human beings that men of wisdom have, at times, become misguided, especially in the heat of passion. I ask you, gentlemen, to submit this matter to the Committee of the Whole, and I ask you further that the discussion of it may be postponed until next Wednesday. I believe I represent 200,000 voters of one party and 100,000 in the other to-day. It would be impudence upon my part to say that I know anything about your discussions in conference. I know nothing about them. You may convince me that this measure is right and proper, and is the only proper one on earth, and if you con- vince me that it is for the good of the Commonwealth I am with you heart and hand. Do not consider us as being the ignoramuses of the State, but give us the benefit of your learning, and of the light that you have had here during the past nine months. I ask of you, gentlemen, this favor. The fact that you have granted to the minority this privilege, will only make you greater and mightier among your OYm people. I ask only that this matter may be taken up in Committee of the Whole, and that it may not be taken until next Wednesday or Thursday. The President: Yes, sir; the question is on agreeing to the amendment offered by the gentleman from Bedford. The ayes and noes were ordered, and being taken, resulted — Ayes, 30; noes, 31. The amendment v/as rejected. The President: The question is on the motion of the gentleman from Brunswick, accepted by the gentleman from Fairfax (Mr. Moore) that the Committee of the Whole be discharged from the further consideration of the reports on suffrage. The ayes and noes were ordered, and being taken, resulted — Ayes, 29; noes, 30. The motion was rejected. DEBATES OF THE COIs^STITUTIOXAL COXVEIs^TIOX OF VIEGIis^IA. 2943 Mr. Glass: Mr. President, I now offer this article, and move that the Convention proceed to the immediate consideration thereof. The ayes and noes were ordered, and being taken, resulted — Ayes, 31; noes, 29. The motion was agreed to. Mr. Daniel: Mr. President, the resolution which I had the honor to offer a short while ago is a resolution prepared by a conference of the Democratic members of this body. It is a composite, compromise scheme of suffrage, which is the result of their deliberations; and on Friday last the delegate from Lynchburg and myself were in- structed by that conference to present it to the convention, and asks its immediate consideration. I will state, in order that it may be a matter of record, that this con- ference was not a caucus. It v/as simply a body of consultation, and no one is con- strained or forced to vote for this resolution by any action of that body. It rests only upon such moral force and influence as their collective judgment may give it. The subject which is embodied in this resolution has been discussed in this Com- monwealth for nearly a year, and in this body it has been accurately discussed for five or six months. The members of this Convention have become saturated with the details, and I speak modestly when I say that they are satiated with the discussion of it. I shall not, therefore, Mr. President, enter into any general discussion of the subject of suffrage; but shall feel that I best perform the task which the action of the Demo- cratic conference devolved on me by stating, as clearly and as briefly as I may, what this scheme of suffrage is and the considerations which led the majority of that body to recommend it. This scheme of suffrage, Mr. President, has been commonly called the Glass amend- ment, being the amendment, in large measure, offered by that distinguished gentleman to the minority report of the Committee on Suffrage, which was submitted to this body in September last, and it follows also in large measure, its fundamental lines. It is also true, however, that many of the features are common to the majority report, which was also submitted in September last, and that some of the provisions as to elections are also taken therefrom. The first proposition of this scheme of suffrage is to provide for residence in the State of two years, in the county, city, or town in which he shall offer to vote for one year, and in the precinct where he shall offer to vote for thirty days next preced- ing the election in v^'hich he shall so offer to vote. This provision as to residence was recommended in the Constitution in order that the voter may be thoroughly identified with the community and may have common lot with the people of the State, by a fixed residence for a definite period. It is next provided that he shall be registered as may be prescribed by law, and then that he shall have paid, six months prior to the election at which he shall offer to vote, all poll-taxes assessed or assessable against him for the preceding three years, under the provisions of this Constitution or the laws made in pursuance thereof, I deem it proper to call attention to the fact that it does not concern nor deal with the poll-tax which is now levied upon each male citizen of 21 years of age. It has to do only with the poll-tax which is imposed by the terms of this Constitution, which will not go into effect until this Constitution is adopted. The original minority report, as at first framed, did not accumulate the poll-tax at all. As afterwards amended, in consultation with these gentlemen who joined in the minority report, it was accumulated altogether in the hope that it might be a fair basis of compromise for the Democratic members of this committee to meet upon. There are a number of us who are opposed to the accumulation of the poll-tax; but this provision, embodied at the recommendation of the conference, struck a medium line which found the approval of its general judgment. It provides only for its accumula- tion for the limited time of three years. The next provision to which I call attention is that no person otherwise qualified to vote under the provisions of this Constitution shall lose his right to vote in the 2944 DEBATES OF THE CONSTITUTIONAL CONVENTION" OF VIRGINIA. precinct from which he has removed to another precinct, in the same city or county, until after the expiration of thirty days from the time of such removal; and the fur- ther provision that the paymment of a poll-tax as a prerequisite to vote shall not be required to pay as prerequisite to the right of suffrage, the poll-tax for the years preceding, not exceeding three, for which such tax shall have become due and payable. The next provision is that the collection of the poll-tax shall not be enforced by distress or otherwise until it shall have become three years past due. There is then an exemption of those who have served in the army and navy of the United States, or of the Confederate States, or in any State of the United States, from the payment of this poll-tax, as a prerequisite to voting. The second section of this scheme of suffrage provides that "prior to the first day of ^ 1902, and again pior to the first day of ' , 1902, and again prior to the first day of January, 1904, there shall be a general registration of voters in. every county and city of the State. The dates are left out until it may be determined what shall be done with this Constitution, and they will be filled in either by the Com- mittee on Final Revision or by this body, before this subject is finally dealt with. This section contains a statement of those who shall hereafter be entitled to the right of suffrage in this Commonwealth. Those v.^ho are put on the permanent roll must be registered prior to 1904. After that time a new and different basis of suf- frage is adopted. This is known as a temporary scheme of suffrage. It is, intended to apply to the present electors and those who may be elected prior to 1904. Those per- sons who are thus given the right of suffrage are: First. A person who, prior to the adoption of this Constitution, served in time of war in the army or navy of the United States or the Confederate States, or of any State of the United States. This provision was originally in both the majority and minority reports. It has found no disfavor that I am aware of, and I believe the Convention will take pleasure in adopting it. Second. The son of a person who, prior to the adoption of this Constitution, served in time of war in the army or navy of the United States, or of the Confederate States, or of any State of the United States. This provision was inserted in this article as a matter of compromise. There were a number of suffrage schemes, some of which seemed to be upon the eve of find- ing approval in the conference, which provided that soldiers and their descendants, for any generation, should be entitled to suffrage. It was strongly antagonized by many on account of the hereditary principle which it involved, and because "descendants' were considered to be too remote from the service which was thus honored. As a matter of compromise, the "son" of soldiers was inserted. That compromise was deemed by those who favor it to rest on a sound basis. In no State, Mr. President, could that basis be sounder than in our own, where so many of our people were in the military service. The whole State was ravaged by the presence of two armies, by reason of its being the battlefield of the Civil War to a greater extent that any other section of the country. The sons of those who are now put upon the roll were, in large measure, those who were denied the benffits of education and the advantages in life which others could obtain, because their fathers were engaged in the war, and many of them are the sons of fathers who fell in the war, and who, of necessity, became, themselves, householders or heads of families in their fathers' stead. It is not thought that this violates any principle of the Constitution of the United States. It has no color in it, and is, therefore, not amenable to any of the amendments of the Constitution of the United States. It is believed that we can fairly and justlr embody it in this Constitution. DEBATES OF THE CONSTITUTIOI^AL CONVENTION OE VIRGINIA. 2945 Third. A person who shall have paid to the State, for the year preceeding that in which he offers to register, taxes amounting to as much as one dollar ($1.00) on property- owned by and assessed against him. This provision was not in the original draft of the minority report. It was in- serted in that report, and is inserted in this report, as a matter of compromise. It is not a property qualification for the right of suffrage, or rather to speak more accur- ately, it is not a property prerequisite to the right of suffrage. It was felt that some who could not come up to the conditions of this scheme of suffrage and were yet to such a degree identified with the permanent interests of the State as to be entitled to a vote in the administration of her affairs might be fairly and properly included in this roll. This is an enfranchising clause which may properly be termed a collateral qualification. The fourth provision for this temporary scheme of suffrage is as follows: Fourth. A person v/ho is able to read any section of this. Constitution which may be submitted to him by the officers of registration and give a reasonable explanation of the same; or, being a pers^on who cannot for himself read such section of the Constitu- tion, shall be able to understand and give a reasonable explanation thereof when read to him by the officers of registration. This clause, Mr. President, is based upon what is known as the Mississippi Con- stitution, although it has been amended in some respects, and is also an amendment to the recommendation of tjie report of the minority of the Committee on Suffrage. It is an amendment in that it requires that a person who reads the Constitution shall also be able to give a reasonable explanation thereof; but it is lilve the Missis- sippi Constitution and like the recommendation of the report of the minority of the Committee on Suffrage in respect to the provision that, although he may not be able to read, he shall be qualified to vote if he is able to understand, and give a reasonable explanation to the* officersi of registration of any section of the Constitution. So that any person in this Commonwealth, whether he can read or no, whether he be a prop- erty-holder or no, whether he be the son of a soldier or no, whether he shall have been a soldier or no, shall be entitled to the right of suffrage if he has sufficient intelligence to understand and give a reasonable explanation to the officers of registration of any section of the Constitution of his country. This clause in the suffrage plan, Mr. President, has led to much controversy. It was recommended and adopted by the conference out of the necessities of the case. Originally, I believe, but a single member of the Committee on Suffrage and but two members of this body were willing to recommend an understanding clause. But upon reflection, and after comparing it with other clauses they have fi.nally, both in commit- tee and in conference, preferred it to the others: I shall not take up your time in stating what may be the objections to this clause. Upon its face it is ideal. These things, however, may be said in its favor. First, it is an historical clause of suf- frage in the basic principle which attaches to it. It embodied in this measure for but a brief period, and is applicable only to the present electorate. It is in no sense invasive of any constitutional right of the English-speaking people, and it does not trench, in any particular, upon the Constitution of the United States. This test of suffrage has, at least, publicity to recommend it. It will be tested, not in the corner, but in the full blaze of the midday sun with the whole public as witnesses. Public opinion and publicity are, after all, the greatest of all human guarantees of fairness, honesty and freedom. Whatever criticism may be pronounced upon this suffrage clause, it has, at least, these recommendations in its favor. I will state here, Mr. President, that the very gravity of the condition of affairs in our Commonwealth and the very great diversification of condition led to the adoption of the clause. There is probably no State of the American Union that is environed by more difficulties in this regard than is the State of Virginia. 2946 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. If any one in this body had been called upon to prepare a suffrage scheme which would renovate and elevate the electorate for the three or four States, North, East, South or West — they could not have encountered greater difficulties than were pre- sented to this body. There was the difficulty of the Constitution of the United States, which required that there should be no color in any provision to be adopted. There were the platforms of the Democratic party and the promises of those who represented it, which confined your action within certain limits. There was a greater diversity of local interest and local situations than in almost any other State. There was the general tendency to universal suffrage in the country, an atmosphere into which this object had to be admitted. The curriculum of qualifications which might be properly required for suffrage were few — property, education, the payment of a capitation tax — these and a few others, comprehended the whole list. There were many who were opposed to any hereditary principle as a qualification for the exercise of the right of suffrage. The collision of those forces evolved the disposition which was was made of it. We have heard, Mr. President, very many objections to the constitutionality of this clause. So far from being unconstitutional, it is the single clause respecting the right to vote adopted by any State of the American Union which has been dissected by the Supreme Court of the United States and come from trial before that tribunal with its unanimous and unhesitating approval. I will call the attention of the Con- vention to the case of Williams against the State of Mississippi. It is to be found in the 117th volume of the United States Reports, at page 213. I will read first from the syllabus of that report: The provisions in Section 241 of the Constitution of Mississippi prescribing the qualifications for electors; in Section 242, conferring upon the Legislature power to enact laws to carry those provisions into effect; in Section 244, making ability to read any section of the Constitution or to understand it when read, a necessary qualification to a legal voter; and of section 264, making it a necessary qualiflcaMon for a grand or petit juror that he shall be able to read and write; and sections 2358, 3643 and 3644 of the Mississippi code of 1892, with regard to elections do not, on their face, discriminate between the white and negro races, and do not amount to a denial of the equal protec- tion of the law, secured by the Fourteenth Amendment to the Constitution; and it has not been shown that their actual administration was evil, but only that evil was pos- sible under them. There is no suffrage clause whatever invented by the wit of a man, either in ancient or modern days under which fraud is not possible. Even the old property clause, which was in fashion in this State generations ago, was often made the basis of fraudulent operations. The ballot system, which has found favor with the whole English-speaking people, and which has not been antagonized to any great degree in this body by any one, is acknowledged to have been more fruitful of fraud than the system which it displaced. If we have to contemplate the fact, which we shall not blink, that there is some possibility of fraud under this provision, I have to say as there was no other suffrage provision we could adopt which would not also have been open, in some degree, to fraud, and as those which were recommended and were possibly less open to fraud were more offensive in the principle, we felt that, not- withstanding fraud might arise under this provision, we should adopt it. I think that the opinion of the Supreme Court of the United States as to the ad- ministration of this clause has been often extravagantly stated. While I do not wish to prolong my remarks, further than may be essential to the presentation of this scheme, yet I may be pardoned, I hope, if I read briefly from some portions of this opinion. The President: The hour of two o'clock having arrived, the Convention will now stand adjourned until to-morrow at ten o'clock A. M. DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 2947 TUESDAY, April 1, 1902. The Convention met at 10 o'clock A. M. Prayer by Rev. C. D. Waller. HOURS OF MEETING. Mr Glass: Mr. President, I offer the following resolution: \ Resolved, That commencing with to-day, the Convention hold two sessions daily, from 10 o'clock A. M. to 2 o'clock P. M. and from 3 P. M. to 6 o'clock P. M. The resolution was agreed to. The President: The unfinished business this morning is the consideration of the article on suffrage. The gentlemon from Campbell (Mr. Daniel) is entitled to the floor. Mr. Daniel: Mr. President, on yesterday when the convention took a recess until this morning I was about to read certain passages in the case of Williams against Mississippi in the 170th volume of the United States Reports, page 222, with a view of showing the lucid opinion of that tribunal as to the constitutionality of an understanding clause similar to that now^ before us in an article on suffrage. In the course of its opinion the Supreme Court quoted the following language from the case of Radcliffe vs. Beale, in 20 Southern Reports, 865, as follows: Within the fields of permissible action under the limitations imposed by the Federal Constitution, the convention swept the field of expedients, to obstruct the exercise of suffrage by the negro race. After quoting this language and certain other language of that sort (the Supreme Court of Mississippi) the Supreme Court of the United States said. But nothing tangible can be deduced from this. If weakness w^ere to be taken advantage of it was to be done within the field of permissible action under the limita- tion imposed by the Federal Constitution, and the means of it were the alleged charac- teristics of the negro race, not the administration of the law by officers of the State. Beside, said the court, the operation of the Constitution and laws is not limited by their language or effects to one race. The weak and vicious white men, as well as the weak and vicious black men, and whatever is sinister in their intention, if anything can be prevented by both races by the exertion of that duty which voluntarily pays taxes and refrains from crime. This is the sedate and luminous opinion unanimously given by that high court. It further said: It cannot be said therefore, that the denial of the equal protection of the laws arises primarily from the Constitution and laws of Mississippi, nor is there any suffi- cient allegation of an evil and discriminating administration of them. The only allega- tion is * * * by granting a discretion to the said officers, as mentioned in the several sections of the Constitution of the State, and the statute of the State adopted under the said Constitution, the use of which discretion can be and has been used by said oflicers in the said Washington county to the end here complained of — to wit, the abridgment of the elective franchise of the colored voters of Washington county, that such citizens are denied the right to be selected as jurors to serve in the Circuit Court of the county, and that this denial to them of the right to equal protection and benefits of the laws of the State of Mississippi on account of their color and race, resulting from the exercise of the discretion partial to the white citizens is in accordance with, and the purpose and intent of, the framer of the present Constitution of said State. * * * To this a.ssault upon the constitutionality of this law, the court responded: 2948 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIEGINIA. It will be observed that there is nothing direct and definite in this allegation, either as to means or time as affecting the proceedings against the accused. There is no charge against the officers to whom is submitted the selections of grand or petit jurors, or those who secure the lists of the jurors. There is an allegation of the purpose of the Convention to disfranchise citizens of the colored race, but with this we have no concern, unless the purpose is executed by the Constitution or laws by those who administer them. And then the court held that a similiar clause in the Constitution of Mississippi was constitutional if fairly administered. No law which does not give appeal protection to all classes is constitutional, in so far as it is fraudulently, false, and evasively administered. With this class of cases I have had some experience at the bar. Twenty years ago, in the United States Court at Lynchburg, before the Hon. Alexander Rives, judge thereof, I had the. honor to defend three judges of Virginia — Judge Hill, of Buckingham; Judge Simmons, of Bote- tourt, and Judge Griffin of Roanoke. They were charged with a violation of the fourteenth amendment to the Consti- tution, in that they had not put colored men upon juries. It was a fact that they had not done so, and the deduction was attempted to be drawn that they had not respected the constitutional amendment, but had violated it in not so doing. The court, in its instruction, took an adverse viev- to the defense oi these judges and yet not a single one of them was convicted, and one of them was acquitted by a jury which was largely composed of the negroes themselves — much to their honor. I refer to this case to show that in so far as the law is falsely administered, and so far only, is it constitutional. The court, in maintaining the validity of this law, maintains that it is a law cap- able of fair administration. That is, indeed, the very gist of its opinion, that upon its face it is a fair and just law, and one capable of fair administration. So that no general allegation of fraudulent intent, no general allegation of fraudulent execution, nothing but the specific showing of a particular act which was violative of its intent and spirit can impair any proceedings under it. Mr. Summers: This case, the Williams case, this great body is familiar with; but I suppose I am more familiar with the case, as I have a brief of the counsel in the case. I would like to ask a few questions of the gentleman, just for information. The first question is: If the allegations of counsel in that bill had prevailed, would not the decision of that court in view of the California cases have been different? That is the first question. Then, if the counsel (Mr. Jones) for the prisoner, had prepared his case and proved that this lav\^ had been enforced for the purpose of illegally keeping from the right of suffrage the negroes and a certain class of whtes, would not the decision have been otherwise? Third, has there ever been any decision or intimation of a decision but what if the attorney, Jones, or Williams, the negro, who was hung, but what the decision of the court would have been entirely different. And then, fourth, and this is the last question, was it not a thing that was ever dreamed of by counsel on the other side, and was it not love of talk upon the part of the court that gave to the v/orld the benefit, or rather the curse, of that decision? Mr. Daniel: Well, I will not attempt to answer all those questions at once. I will get the stenographer to read them one by one and answer them in their turn. My answer to the first question is that I think not, in view of what the court says: " It vrill be observed," says the court in this case, " that there is nothing direct and definite in this allegation either as to means or time as affecting the proceeding against the accused. The court itself has answered that question. Mr. Summers: I do not think so. Mr. Daniel: I have already stated that if there is a specific allegation of a specific fraud, such as a court can take congnizance of it, it will hear that allegation, and if it is sustained by proof the court would set aside anything that rested on that fraud. " If your right eye offend thee cast it out." If it affected a precinct it would cast out DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 2949 the precinct. Now, furthermore, I will meet the gentleman's inquiry in its breadth. If it were shown that the law were such that it were absolutely incapable of reasonable fairness in its administration of it the court might conclude, as it did in the case of Mississippi against Williams, 118 U. S. Report to set aside the whole act if there was a charge of fraud in its administration and the fraud could not be prevented. But the court in this case discriminated it from the Chinese case, and said that they were not analogous. So. that, if the delegate from Washington had read this opinion he would have seen that the court in that opinion especially differentiated such a proposition as we are maintaining from the one in which was set aside the law in the Chinese case, and did hold that this was a law capable of fair administration. Mr. Summers: If it had been proven as plainly as the cases in California, that there was fraud in the administration, what v/ould have been the result of it? Mr. Daniel: It would depend upon the nature and extent of that fraud. If that fraud affected a single precinct the court would set aside the precinct in any election that turned upon the action of that precinct. This case is very similar to the ballot system. We all know the ballot system is capable of maladministration. Out of the ballot system grows the stuffing of the ballot-boxes before and after the election; out of the ballot system grow all the frauds which take place in fooling a voter as to marking his name; but that does not make the ballot system invalid, and neither does some fraud which might happen in this system or in the ballot system or in any sys- tem, invalidate the system itself unless the system is proven to be such that it cannot be fairly administered. That is my answer to the question of the gentleman from Washington. I hope it is satisfactory. Mr. Thom: The distinction which has always appeared as conclusive to my mind in this connection is this, and I would like to know whether it meets with the endorse- ment of the gentleman now addressing us. That if there is a lav/ fair and constitu- tional upon its face which is administered improperly and that adminstration deprives a citizen of the United States of the constitutional right, then the judgment of the court will be not to hold the lav/ unconstitutional, but to rectify the unconstitutional administration of it. Mr. Daniel: Unquestionably; that is just what I have been contending in different language, and I v/ould refer to this further language in the case, that in the Chinese case it was shown that the lav/ in its breadth was so unequal and oppressive as to operate differently upon one class from its operation on another class, and amounted to a practical denial by the State of that equal protection of the laws which is secured by the Constitution. In other words, the court held in the Chinese case that the " denial of the equal protection of the laws was a denial to all other persons." and that such was the neces- sary operation of it by the fact disclose'd. It also shows that such a constitutional provision as this does not operate as a denial of the equal protection . of the laws to any class of persons, but especially says in so manj^ words that the provision of this constitutional provision reaches weak and vicious white men as well as weak and vicious black men. So that it differentiated the two cases in a most luminous elucida- tion of them, and showed by a unanimous judgment thereupon rendered that this was a constitutional and fair enactment. Now, Mr. President, if such an opinion could be rendered upon the Mississippi case that went before that tribunal, all the more would it be rendered upon such an article of suffrage as that whch lias been prepared and is now before you, for in the Mississippi case the right of the voter was tested only by the registration officers. The rejected suffragan had no right of appeal. His case began and ended at the registration before the final officers of the State who presided over the registration. Mr. Wise: Senator George distinctly stated in the Senate of the United States that this Constitution gave the right of appeal. That point was made in the Senate, and he called attention to that clause of the Constitution in Mississippi in which the right of appeal was given. 2950 DEBATES OP THE CONSTITUTIONAL CONVENTION OE VIRGINIA. Mr. Daniel: I am very glad, indeed, to be corrected by my friend, if he is not mistaken in his information; but I have the speech of Senator George, and I have looked at it within the last twenty-four hours, and it v/as with a view to ascertaining that very fact. I also heard the speech of Senator George when it was delivered. Now, I do not pretend to have read it all over. It is a very voluminous speech — a book turned into a speech — but I looked at it last night with a view of finding that statement but I could not find it. However, I do not contradict the statement of my friend. This article which we are now considering is all right. There is no question as to its giving the right of appeal, for it provides that any person who shall be denied registration shall have the right of appeal to the Circuit Court of the county or to the city or the Corporation Court of the city or to the judge thereof in vacation, and I understand that in the ordinance which is proposed to be passed by this Convention that there are also elaborate provisions securing the integrity and the promptness of the right of this appeal. So that you may look at this case from any standpoint according to these precedents which we have before us from which to anticipate any difficulty as to the constitutionality of this provision. With these reflections, gentlemen of the Conven- tion — Mr. Wise: I dislike very much to interrupt you in the course of your remarks, but I' have the Constitution of Mississippi before me. The clause in the Constitution on this subject is as follows: Remedies by appeal or otherwise shall be provided by law to correct evil and improper registration, and to secure the electing franchise to those who may be illegally and improperly denied the same. Mr. Daniel: I think perhaps the state of facts is this: That at the time Senator George made his speech the Legislature had not perfected that system of appeal. Mr. Wise: You are right. It had not then been perfected. Mr. Daniel. So this case then differs from the Mississippi case in this, that the Constitution which is here gives the right to appeal and does not mean it to rest on any provision of law. It operates proprio vigore, and gives to the court the right to take cognizance of any case of wrong in registration, and turns the rejected voter in a precinct immediately into the presence of a high and honorable court to set him right if he has been wronged. With this provision ends !he temporary scheme of suffrage provided by this article. The capitation tax does not attach to this temporary scheme. It simply consists of the right to vote of all the present electors who are duly registered, who have been soldiers of sons of soldiers, who have paid one dollar tax, or who can understand and explain a section of the Constitution. These provisions expire on January 1, 1904, but all who have been registered under thfem become perma- nent electors. Now, as to the permanent scheme of suffrage: After January 1, 1904, every male citizen of the United States who has acquired the proper residence in this State, and who- has not previously registered, shall, as a condition precedent to regis- tration, have paid the poll-tax assessed or assessable against him for the next preced- ing three years, and in addition to the poll-tax, an educational qualification is imposed, which appears in two different aspects. The one is that of registration. He must, apply for registration in his own hand-writing without aid or suggestion or the use of memorandum, in the presence of an officer of registration of the precinct in which he resides. That application in his own handwriting must set forth, first, the names of his parents; second, their residence; third, his own name; fourth, his own age; fifth, the place of his birth; sixth, the date of his birth; seventh, his occupation, eighth, his place of residence at the time; and, ninth, the place of his residence for two years prior to the date of his application, and then he must state if he has previously voted, in what State, county, city, or voting precinct he last voted. In addition to these ten items of information which must be given by the applicant to the registrar he shall answer on oath any and all questions propounded to him by the registration officer affecting his qualification as an elector, which said questions and answers shall be DEBATES OE THE COXSTITUTIOXAL COXTEXTIOX OE TIEGIXIA. 2951 reduced to writing; having done which and made oath to his statement, he shall be duly listed by the registrar, Mr. Thorn: What qualifications are referred to there? Mr. Daniel: The qualifications to make application in writing and to state these facts. Mr. Thorn: What I am getting at is whether that is in addition to the capitation tax and to the application for registration which is required to state specific things. Mr. Daniel: That is all, Mr. Thom. Then there is an obligation to answer questions on oath as to quali- fications as an elector, Mr, Daniel: Yes, sir. Mr. Thorn: What does that refer to? His capacity to understand the duties of citizenship of anything of that sort, or merely to those legal qualifications — Mr. Daniel: Merely to those legal qualifications required by law, as to poll-tax, residence, or anything of that sort, of course. Mr. Parks: I would like to say that when the amendment was offered it was stated by the gentleman who offered it that it was the purpose of the amendment to trace up parties. In a floating population, a party offering himself for registration might not be known, and it might be that he is not qualified for voting by reason of a conviction of crime somewhere else; and this was for the purpose of tracing up a voter. ]Mr. Daniel: I would say that it refers to legal qualifications as to a voter, and his right to be registered. I shall speak with entire candor about this provision. It might be contended that it was a mandatory provision by which I mean a provision in default of compliance with every term of which the party might be properly rejected as a voter. It might also be contended that it was a directory provision intended as a formality, and that it was not absolutely essential to the right to vote. It seems to me that if it is not directory, unless the voter has a very long memory, it is apt to produce confusion and differing opinions on the part of the administrators of the law. I did not vote for this proposition for these reasons. I state it as a part of the judgment of the conference which I have the honor in this particular to represent. In addition to this qualification as to applications for registration it is provided that every person registered under this provision, not blind or otherwise physically disabled, shall prepare and deposit his ballot without aid from another, on such printed form as may be prescribed b^' law but any voter registered prior to January 1, 1904, may be aided in the preparation of his ballot by such officer of election as he may him- self designate. It is also provided that the General Assembly shall prior to January 1, 1904, pro- vide by law for such a registration of voters as is not set forth in Section 3 of this article, to be held at least once in every j^ear, and shall enact such other laws as may be necessary to carry into effect all the provisions of this section. It will be perceived, gentlemen, by this statement, that education in a double form is made the permanent basis of suffrage, associated with and plus an accumu- lated capitation tax. I am one of those who believe that this is an all-sufficient article of suffrage. There are two classes of critics who have attacked it. One class says that it is nothing — a plaster, a bread pill, a placebo. Another class declares that it is the most drastic and offensive article imaginable. I am disposed to believe that where the opponents of a propositon represent such great extremes of opinion, the true line is apt to lie exactly where the conference has placed it, in the middle way between them. Mr. Thom: As I understand the statement made by the gentleman from Camp- bell (Mr. Daniel), it is this, as applied to the voter registered after 1904: That that voter has a prerequisite to the right to vote the payment of this cumulative poll-tax, 2953 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. with the requirement to make out an application for registration in his own hand- writing and without assistance, and with the requirement to make out his own ballot. Mr. Daniel: That is correct. Mr. Thorn: But that the advocates of this proposition realize that the proper interpretation of this act is to make the application for registration directory and not mandatory, and that the liability to make it out will not prevent the voter from being registered. Am I right? Mr. Daniel: Those are all of the requirements. The article itself answers that question. As to the question of law, which the gentlemen propounds to me, he is as capable of answering it as I am, and I am not particularly clear in my own mind about it. Otherwise, I would give him a perfectly frank and unreserved answer. Mr. Wise: It is in connection with the subject you are now considering . You are debating the constitutionality of our article in all of its particulars, and it is well that we should look carefully. You have just called attention to the fact that all the voters upon the permanent roll can be aided in the preparation of this ballot, but those registered after January 1, 1904, cannot receive aid or suggestion from any- body in the preparation of their ballot. Thus, it appears that we will have two rolls one demoninated the permanent roll, and the other made after January 1, 1904 Those who are upon the permanent roll can receive aid. In other words, they are not subjected to the educational test required in the preparation of their ballot; but those who are registered on the permanent roll can receive aid. Now my question is: Suppose in the administration of this law it so happens that the permanent roll shall contain almost exclusively the white voters of this Commonwealth, and that the roll which is made after January 1, 1894, shall contain principally the colored voters? It would thus appear that the whites will receive aid in the preparation of their ballots and that the blacks will not. Suppose that question were to come before the Supreme Court of the United States, and it should be developed that such was the result of this administration v/hat would be the decision of that court as to the question as to whether that race had been been discriminated against on account of the race, color, or previous condition of servitude? Mr. Daniel: Mr. President, it is impossible in an address intended sim.ply to set forth plainly to the mind what is provided, to follow all the speculations of fancy as to Y/hat might, could, would, or should happen thereafter. I have no doubt, how- ever, that my learned friend from Richmond has pondered over that question, for it was one presented, and much more closely presented, by the permanent under- standing clause which he recoijimended than by any clause which we now recom- mend. There are conditions which it is possible in the course of human events to arise, which might perplex and dash maturest counsel, but it is utterly useless for us to attempt at this time to follow out in our fancy all the eccentric courses which events map possibly take if this matter is adopted. Dealing with it as it stands now we should be content to know that we are adopting a constitutional provision * which has the imprimata of the decision of the Supreme Court of the United States behind it. Furthermore, if I may answer the gentleman in a general w^ay, I would say that there is no possible test of suffrage, whether it be that of service to the country, of intellectual superiority, or v/hat not of personal attribute or property attachment which would not admit more white people than it would colored people, because the one is a long enduring and civilized race of history, which has accumulated to itself the virtues of refinement, culture, and achievement, and advancement; while the other is yet an infant in the theatre of action. It does not follow that any man can give an answer to the question which the honorable gentleman has propounded to me as to what would be the decision of the court. In the cases of the judges who were tried in Lynchburg, not a single negro had been put upon a jury, and yet the negroes themselves held upon their oaths that they had not been unfairly and par- DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. 2953 tially dealt with, and in one of the cases which has gone before the Supreme Court of the United States that tribunal adverted to the fact that although there was no^: a single man of the colored race on the jury it did not follow that by necessity colored men were excluded on account of their race. And so, in any question of suSrage which may hereafter come before any tribunal in the land, any question as to its constitutionality and integriiy and of the propriety of the particular proceeding in question, cannot be considered or answered until all the circumstances of the cases are taken inio consideration, and a mere statement that so many men of the white race fell on one side and so many of the colored race fell upon the other side is not in itself a presentation of a full case, capable in that attitude of judicial determina- nation. Xovn-, :\Ir. President, I go into another branch of this proposition. It relates to those who are excluded fiom suffrage. It is of the usual character as to idiots, insane persons, and convicts. It absolves those who have formerly fought duels from dis- franchisement under the new Contitution. In other words, it is a year of jubilee as to all past offenses of duelists. It otight to be. And so it v;as. if I remember aright, in the former Constitution of this State, of 1850, I believe that this is right. There have been few duels which were not fought by men of honor and character. They have been sufficiently punished in the past, and I would absolve them now and let them participate in the suffrage without asking for pardon or appealing to the General Assembly. Then. Mr. President, follow detail provisions which relate to the' machinery and to the fairness of the election. The fifth section is one that provides that no officer, soldier, seaman, or marine of the United States army or navy shall be deemed to have gained a residence in this State or in any county or city thereof, by reason of being stationed therein; and so on. And then come the provisions as to elections: All elections by the people shall be by ballot, and all elections by representative bodies shall be viva-voce. Then as to the fairness of elections: First. The ballot-box shall, during all elections, be kept in public view, nor shall the same be opened or the ballot be canvassed or counted in secret. That is a wholesale provision. Then again, the General Assembly shall provide by law for ballot without any dis- tinguishing mark or symbol for use in all State, county, city and other elections by the people. And then there is a just provision to prevent ballots being made inscrutable by the voter. All ballots shall contain the names of the candidates and of the officers to be voted for. in clear print and in due and orderly succession; but any voter may erase any name and insert another. The General Assembly shall provide by law for the ballots to be used in all elections, and the form thereof shall be the same in all places where the election is held. Then it goes on and says that no voter shall be compelled to perform militry duty except in time of war. or public danger, at the time of holding an election. Then, that any person who. in respect of age or time or residence vrould be qualified to vote at the time of the next election, shall be admitted to registration, etc. Then there is inserted a provision of local self-government. It provides that electors in county, town and city elections shall possess the qualifications and be subject to the disqualifications heretofore prescribed by this article. 186 — Const. Deb. ^yo4: DEBATES OF TELE CONSTITUTIONAL CONVENTION OF VIRGINIA. The article provides further that the General Assembly may prescribe a property qualification of not exceeding two hundred and fifty dollars in any county, town or city of the State, as a prerequisite for voting in any election for officers to be wholly elected by the electors of such county, city or town, other than members of the General Assembly, such action, if taken, to be had upon the initiative of the representatives in the General Assembly from the city, town or county immediately affected; provided, that the General Assembly in its discretion may make such lawful exemptions from the operations of such property qualification as shall not be in conflict with the Constitution of the United States or the State of Virginia. It is believed confidently, indeed no doubt is entertained by the advocates of this proposition that it is entirely constitutional. Some such system as this has already existed in the old Commonwealth of Virginia without any question as to its constitutionality. Towns and cities have had differentiated systems of suffrage, and that there may be such differentiated systems of suffrage is settled by a decision of the Supreme Court of the United States to which my attention was called by the gentleman from Northampton, (Mr: Kendall). It is not conceived that the insertion of this proposition in the article on suffrage can lead to any great confusion or trouble. It could not be begun in any county or city unless that county or city send to the General Assembly representatives to stand sponsor for it and to advocate it. There is not the remotest possible danger in any of those districts, counties or locations of the State which do not want any such qualification that it would ever be imposed upon them. After the county itself or the city itself has appealed to the General Assembly in the person of its representative, who alone can take the initiative to establish this system, the General Assembly itself must see and declare that it is wise and just, and in pursuance of that condition adopt it. There are some counties in this State in which it is possible that such a system as this may be needed. It is so safe-guarded that I cannot see that there is any reasonable or sound objection to it. The next proposition that ths article deals with is the subject of electoral boards. The formation of these boards is taken away from the General Assembly and away from the focus of political agitation. The right to appoint these boards is given to the Circuit Courts or to the judges thereof in vacation, and to the Corporation or Hustings Court of cities. These boards are to consist of three members, and are to have the right to appoint the judges, clerks and registrars of election. More than this, the judges, clerks, and registrars of election, the officers who deal with the people and who pass upon their qualifications, are to be composed of different political parties, and in the selection of the judges of election as far as possible they shall be given toi each of the two political parties which at the general election next preceding their appointment cast the highest and next highest number of votes. No person nor the deputy of any person holding any elective ofiice of profit or trust in this State, or in any county, city or town thereof; shall be appointed as a member of the electoral board or as registrar or as judge of election. There is also a provision as to the appointment of officers by the Convention, to act prior to 1904. There is also an additonal assurance of the right of appeal. In Section 12 it is provided that — The General Assembly shall provide by law for an appeal by any person denied the right of registration, and shall also provide for the correction of illegal and fraudu- lent registration. That is as a permanent scheme of suffrage, to take place after 1904, the right of appeal as to proceeding voters being already secured by another provision. Then com.es eligibility to office, and it is provided that every person who has the right to vote should be eligible to office, and no distinction is made as to race, color, or previous condition of servitude. ^ Then there is a provision which provides that men and women of eighteen years of age and over shall be eligible to hold the office of notary public. DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIEGIXIA. 2955 We believe this to be a ^'ise and just provision. The women of the Common- T\-ealth during the last thirty or forty years have been compelled by the exigencies of our situation to look out for themselves. They have most nobly responded to that exigency, and I am glad to be the- member of a Convention which shows that the men of Virginia honor and appreciate the characteristics which have been disclosed in Virginia vromen and are prepared to help them help themselves in all worthy and proper ways. (Applause.) Then comes a provision that the General Assembly shall provide by law for the fair and orderly conduct of all elections by the people in accordance with the provisions of this Constitution. Then comes a provision which I did not favor, but which the conference did, that — No person shall vote at any legalized primary election for the nomination of any candidate for public ofnce unless he is at the time a registered voter and qualified to vote at the next succeeding election. Then comes the sixteenth section, that — The General Assembly shall enact such laws as are necessary and proper for the purpose of securing the regularity and purity of general and primary elections, and preventing and punishing any corrupt practices in connection therewith; and shall have power, in addition to other penalities and punishment now or hereafter prescribed by law for such offences, to provide that persons convicted of them shall lose the right to vote and hold office. Then this article closes with the seventeeth section, which provides elaborately for the printing by the proper officers of the names of those who have paid their capitation taxes, and for the posting of the same in public places; of its certfication to the officers of election, and also that proper evidence of the prepayment of the capita- tion tax required by this Constitution as a prerequisite to the right to register and vote shall be such as may be prescribed by law. I have thus occupied, gentlemen, a considerable portion of your time, in order to put clearly before you in, your conventional character the whole scheme of suffrage which the Democratic members of your body hy a decided majority have recommended. It is in our opinion a schedule of suffrage v\^hich, while it may contain something here, something there, that each one of us opposes or did oppose, is the best solvent that we can devise for the critical and burning issue which we have come here to meet. That it was not devised to secure white supremacy has been conceded by the most determined and enthusiastic advocates of white supremacy. In the confidence of our race we have not questioned that the white man would rule in Virginia what- ever were the conditions of suffrage and hov^ever few might be his number as coin- pared to those of any other race. We have 155,000 white electors registered in Vir- ginia, and that fact would disabuse the mind of any such apprehension if any one at any time entertained it. Under an educational qualification comparing the illiterate of both races that majority would be increased to 195,000. So that even those of us who are the warmest advocates of this suffrage plan do not propose or advocate it from any apprehension in our minds that any but the white man will ever rule this Commonwealth. But those of us who advocate it want him to rule in its supremacy of decency and with the association of that law and order which will command the respect not only of himself but of the whole civilized world; and if we are doing a thing which must in its nature be ungracious to many of our white citizens who reside in sections which do not feel the pressing nature of this problem as to those who lie in the darker regions of the Commonwealth, we may content ourselves at least with the reflection that we have not gone half as far, nay, not a third as far as the Republican party of this country has itself gone under circumstances not half as afflicting as our own. You have only to look across the Potomac to the Capital City of this nation, where I .2956 DEBATES OF THE CONSTITUTIOXAL CONVEXTIOX OF YIKGIXIA. the Republican party with the exception of eight years has dominated the policies and drawn the statutes of the country ever since the Civil war. You have only to go to the Capital of this country to ascertain how they have dealt with such a ques- tion when it came home to them. In the boyhood days of many of us the city of Washington was a great municipal government. It had its Mayor, it had its Coun- cil, it had all of its officers as the city city of Richmond, of Baltimore, of Norfolk has to-day. It chose them in such manner as it had the right to do, by the vote of the people. Colored suffrage came, and presto, change, the Republican party found the city of Washington in such condition that it was compelled in decent respect for the opinion of other nations, and in decent protection of the property and lives and characters of her people who lived there to make a deep and fundamental change, and instead of prescribing a property qualification, or a service qualification, or a capitation qualification, it cut the Gordian knot by taking away all right of suffrage from white men and colored men alike. No oligarchy of citizens rule in Washington to-day; no aristocracy of citizenship rules in Washington. No citizen of any kind of Washington rules at all to-day; and the capital of this nation is the most complete exemplification of absolute government that anywhere exists upon the face of this earth. It only shows, gentlemen, the plain, naked truth, that whenever the Anglo- Saxon is brought to confront the real thing, and must submit either to social degrada- tion or the loss of liberty, they will accept tyranny rather than they will accept social degradation. (Great applause.) And here, in this State of Virginia, dedicated as it was to manhood suffrage fifty years ago, with many sections of it still permeated by the feeling tTiat the debate at that time engendered, it seems to me that it is far more manly to go forward and preserve all the liberty that we can in old Virginia to white men and to black men, rather than surrender to the inevitable consequences of a putrid electorate and an offensive administration of our laws. (Applause.) No body that ever assembled in the State of Virginia was animated by nobler or higher or worthier motives than that which is now assembled in this hall. No alloy of personal ambition entered into the heart and mind and aspirations of the people of Virginia who advocated this Convention. No taint of the greed of political aggrand- izement entered into the plans of the great body which took it up and has brought it so far toward its fruition. It was as devoid of all selfishness as any movement of the human race that ever took place. It had patriotism in it, for it required sacrifices and risk, and endangered alike personal ambitions and party supremacy, to attempt it; but we belong to a race and a people which never loses " the good they may win by fearing to attempt." I am glad that we have attempted, and I am glad to see the good omens of our success. We were inspired in coming to this Convention by thoughts as noble as those that animated the breast of the great commander of the army of Northern Virginia. Robert E. Lee (Applause), when on one occasion Stone- wall Jackson sent to him for reinforcements. He looked upon his thin line and for a moment reflected: and then he further thinned them and sent reinforcements to Jackson, saying, " We must go to the help of a gallant man if we perish." (Applause.) The white people of our State have been animated by such high and noble motives as this, and there are no more gallant, no truer and no worthier people to go to the relief of than those who have fought the battle of Virginia in the black region of this Commonwealth for the last thirty years. (Applause.) A Roman commander once said to his soldiers, "If the arrows of the enemy darken the sky, fight on in the shade." They have been for lo, these many days, in the shadow, to a certain extent, of the great civilization which is around them; but they have illumined that shade by the stirring virtues, and by the most resolute and indomitable effort that ever characterized the great race to which they belong in any clime, in any age or in any country. And confident that history loves the truth and will in time reveal it for the DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. 29or consideration and admiration of mankind, I have not a doubt in my own mind that the day v^ill come when the Northern people themselves will clap their hands in praise and will thank God that their Southern brethren were men of the type that they were to preserve the purity and honor and integrity and character of the neigh- bors with whom they will in future times be indentified. (Applause.) I have just one word more to say. I remember in my boyhood days to have looked at an illustrated history of Xapoleon Bonaparte. There was a picture in it which deeply impressed my childish mind, and which time has not effaced from it. It vvas a picture of the great emperor after his fall on the Isle of St. Helena. He was wiih an elegantly-dressed lady, and was slowly descending the cliff that led to the seashore. As they passed down upon the narrow path this fine lady and himself met a poor blackamoor, who, with his body bent was struggling tmder a heavy burden. The fine lady maintained the center of the path, and did not give way for him; but the great emperor stood aside and lifted his hat and said, " Respect the burden, madame.'' Gentlemen, we must respect the burdens of the people of Virginia. We must respect it in the black race, and we must respect it in the white race. We are not here as enemies of the colored man. On the contrary the good people of Virginia look upon him with deep interest, and with pity and compassion and friendship for the condition in which he is. We must not forget that he has been the plaything of the politicians of this coimtry. We must not forget that considering his untutored condition he has borne himself vrell during the civil war, and as well as the mean white men would permit him since the war. (Applause). The evils that have come out of him in these latsr days were not evils generate'd in him, but it came first from his projection into a theatre of action in which he was not prepared to officiate, and it came from the inspiration of vicious and designing men who desired him for their purposes. AVe must respect his situation and we must stimulate it and fortify it by those previsions of law which will not permit him to control when they know he has not the maturity of judgment, and character and learn- ing and experience to control and rule. There is no greater enemy of the colored man upon this earth than the white man who goes to him and misleads him to opposi- tion of the white race in their triumphal march of progress (Applause). Then, gentlemen, we must have respect for each other's burden. The mocking cries that reach my ears from political opponents and from some of my ov:ji party, neither disconcert nor discourage me in this great effort. I do not forget that there were even those who mocked at Christ as he carried the heavy cross upon Calvary where he died for the sins of m^ankind, and the burden which you are to bear in this campaign, and in gettmg this better Constitution for the people of Virginia is a burden which you should be encouraged to bear by the memory of the Master and those who taunted and perplexed him in His noble Work. (Applause). Respect the burden, gentlemen. e"er you utter idle and taunting speech; respect the burden before you point the finger of shame at him who fights for an understand- ing clause or for anything else which helps to take away from tis the body of his death. (Great applause). Mr. Glass: :\Ir. President, if no other member of the Convention desires to address this body, in a general wa^'. I move that we proceed to the further considera- tion of this article, section by section. The motion was agreed to. Section 1 was then read. Mr. Flood: I move to amend by -striking out in line 10, the words, ''three years."' and inserting in lieu thereof the word "year;" in line 21, on page 2. to strike out the words "years"" and insert the word "year;" in the same line to strike out the words " not exceeding three. "" Mr. President, I do not care to detain the Convention but a moment. I want to say that I do not want to have any members of the Convention under any misappre- 2958 DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIEGIXIA. hension as to what this amendment is. It simply provides that there shall be no accumulated poll-tax beyond one year, and that if a registered voter pays his poll-tax six months prior to the election in any year in v\'hich he offers to vote, he can vote, whether the poll-tax for the preceding two years has been paid or not. Mr. Glass: Mr. President, I do not care to say anything about the matter further than that vre have several times considered this proposition. I hope the section will be allowed to remain as it is. The question having been taken the result v/as announced — ayes 16, noes 57. The amendment v,^as rejected. Mr. Pedigo: Mr. President, I move to amend by striking out in line 3, the word "tY\'o" and inserting the word "one;" and by striking off the "s" at the end of the vv'ord "years," so that it will read year, so that the section as amended will then read: " Every male citizen of the United States, who shall have attained the age of twenty- one years, and who shall have been a resident of this State for at least one year." I also move to amend in line 4 by striking out the words " one year," and insert- ing in lieu thereof the words " six months." The object of this change in the present Constitution is no doubt to carry out that article in our bill of rights which provides that every citizen must show a per- manent interest in and attachment to the government before he is enrolled as a voter. It it unquestionably to the interest of the State of A^irginia and to all its people to increase the number of white people in Virginia, as compared with the negro race. There is not one man in this Convention who will deny that. All of the emigrants that are likely to come to the State and make their home here will be white people and not negroes. They will consist of citizens of other States. It has always been the policy of the great States of the West to encourage this immigration; and I think we could not do better than to receive them as fellow citizens, and accept them as the equals, in right, of all the citizens of the State. We ought to be glad to accept those citizens who come from Ohio, Illinois, Maryland, and Pennsylvania, into this State to make their homes here. It seems to me we ought to extend to them a liberal hand of introduction, and make them citizens as soon as they make their home here. I think one year vrould be ample and sufficient, and that is a provision of the present Constitution. I think we ought not to go back on that class of emigrants that may come into this State from other States. These are the grounds upon which I ask to have this change made. The amendment was rejected. Section 1 was adopted. The secretary read Section 2. Mr. Thom: I move to amend the Section 2, just read, by striking out beginning in line 20, on page 3, with the words "and give a reasonable explanation of the same;" and from there down to the period in line 23. In other words I move to strike out the temporary understanding clause. I think, Mr. President, that I may, with some confidence, appeal to the sense of justice of this Convention to support me in the statement that, while I have been opposed to many things which have been proposed as a part of this Constitution, I have contented myself with addressing the reason of the members of this Convention; and have never resorted to factious and factional opposition. It is my purpose to deal with this article in the Constitution in the same spirit. I feel that it is due to my life-long convictions on this subject that I should place upon the permanent record of this Convention the reasons which in this matter control my action. I had the honor, in the early days of last October, to present to the Democratic conference on the suffrage question the majority report of the Suffrage Committee. In doing so I gave at length the reason which appealed to my own mind, and to the minds of my associates, in that majority, in favor of what is known as the permanent understanding clause. I shall not attempt to reiterate here in detail the reasons which DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE VIEGIXIA. 2959 I then gave; but. inasmucli as that permanent plan found no favor with the conference and, as any remarks which I then made can do no harm now if inserted in the record of this Convention, I ask that the stenographic report which I now hand to the steno- grapher may be inserted here as a part of the remarks I am now making and as a statement of the reasons which actuated me then and from whicli I have seen no reason, at any time, to depart. Mr. Chairman and Gentlemen of the Conference: Speaking for myself, personalh^ Mr. Chairman, and, I am sure, too, for every mem- ber of the majority of this committee, I desire to express my profound regret that the committee has not been able to submit to the Convention a unanimous report. This regret is intensified by the fact that the majority is deprived of the leadership of a gentleman whose uniform courtesj^ and consideration, during the progress of our deliberations have endeared him to every member of that committee, and for whose great ability and distinguished public service we all entertain the highest admiration. But we have considered, Mr. Chairman, that the issue that has been submitted to us is too great for any personal consideration. It is a matter on which each man on that committee has to speak out and stand for his honest convictions. It is a matter so far-reaching upon the destinies of the people of this State that no one has a right to "jtter a sentiment about it that he would not be willing to stand in the presence of his Maker and be responsible for. It is in this spirit of conviction that the various reports which are now before this conference have been agreed upon and submitted. They are not the product of acrimonious debate. The^- are not the product of personal differences. A.S honest and purposeful an effort was made by every member of that committee to reach a united conclusion, without reference to an3' mere personal opinion, with a per- fect willingness to sacrifice an^^ preconceptions, as it was possible for twenty patriotic men to make. It must be borne in mind, Mr. Chairman, that the question which the Suffrage Committee has been dealing with is the greatest problem in all the historj^ of mankind. It is the last sad trace of the greatest revolution in modern history. It is. the one thing that has come upon this people as the product and result of war from which the wisest men have not yet conceived any absolutely" perfect method of escape. It is the last act in the tragedy which put two unequal races together in the same land and gave birth to all the problems growing out of that unequal association. Without appreciating the immensity- of the problem which must grow out of such conditions, there has been exhibited in some quarters a spirit of flippant criticism of the time which has been consumed in considera.tion of this problem. Mr. Chairman, no time has been wasted in its consideration. If we can present to you a plan that will strike the shackles from the hands of the Virginia people the four months vvhich have been given to its consideration will be the most blessed expenditure of time and effort in the history of this State. We are met at the threshold with this supreme difficulty that we are making an effort to find, within the limits of the law, a method of escaping from a constitutional policy exactly contrary to the purposes and to the hopes of the Virginia people. If a method has to be adopted, which is not ideal in its character, some reference must be had In the mind of the critic to the conditions under which that result had to be reached. Not only would this problem be difficult in itself even if applied to a popula- tion entirely homogeneous in its character, but it becomes doubly difficult when we consider that we are living in a State where there is an immense diversity of popula- tion and an immense diversity^ of conditions. When you remember that we are living in a State where there are thirtj^-five coun- ties with a black majority^ and sixty-five counties with a white majority/; that we are living in a State where the negro population is practically condensed east of the Blue Ridge mountains and where there are altogether different conditions of affairs existing west of the Blue Ridge mountains; that on the border towards our sister State of Mary- land an entirely different condition of affairs exists from that which exists in our border counties next to our sister State of North Carolina; and. when you realize that the problem is to fimd a law universal in its character and in its application, that will suit and cover and give contentment to all these various conditions, you gentlemen of the conference, will perceive the immensity of the problem which has been before us. When, in committee we found a suggestion coming from one section of the State that vs-ould solve its problems, and presented it to the representatives of other sections of the State, we found in many instances that it was destructive of their interests. When we found from one part of this Commonwealth a suggestion that would entirely purify the suffrage there, we found that its operation in another section of this Common- wealth would be exactly the reverse. And so it is. Mr. Chairman, that the Herculean task which has been confided to us should rightfully relieA'e us from everything like 2960 DEBATES OF THE COXSTITUTIOXAL CONVENTION OF VIRGINIA. criticism in reference to the time that we have consumed in maturing the plans which we have proposed. Leaving for an instant the question of diversity of condition in the State, let us glance for a moment at the condition of our suffrage which it was our problem to solve and to relieve. Many gentlemen have thought that the question before Virginia to-day was the question of white supremacy. From that proposition I most respectfully and earnestly dissent. There is no question, Mr_ Chairman and gentlemen of the con- ference, of white supremacy in any part of tiie State of Virginia. That problem has been solved by the brave purpose and by the splendid genius of our people. There is no inferior race under heaven that can rule or remain supreme over Virginia for a period of thirty years. There is no danger in Virginia of what I may be permitted to call the physical domination of the negro race in any part of this State; but the strug- gle which has been necessary in order for us to relieve ourselves of that curse has left us in a condition which calls for relief. While the negro is no longer a dominant factor in the politics of this State, so far as the holding office is concerned, his influence is still a dominant factor here just as the poison of the Upas tree is a dominant factor everywhere its influence may reach. The methods to which it has been necessary to resort in order to eliminate him as a dominant factor have left their traces deep upon the moral and intellectual status of our people; and it is the high function of this Con- vention not to re-establish the supremacy of the white people, but to give to them moral and intellectual emancipation from this curse that is upon them. To an observer of political conditions in any part of this State where the negro is a factor, this condition of affairs will be observed, that, in order to rid ourselves of his domination in our domestic institutions, methods have had to be resorted to which can- not be justified on any ground except that of absolute necessity. With what result, Mr. Chairman! With the result that there comes up from the good people of this State a cry for a purification of the political conditions that surround them, which finds expression in the presence here of this Convention to-day. I shall cast no stone, Mr. Chairman, at the men who have used these objectionable methods. While we may not have personally participated in what has been done, we, in all parts of Virginia, have enjoyed its fruits, and we are not less culpable, even if less brave, than the men that have done these things in our interest, and with our approval. But the time has come, Mr. Chairman, when we are reaping the fruits of this condition. The time has come when the canker is eating into the hearts of this people, and the time has come when some method must be found of freeing us from it. There never was a more universal sentiment going up from any people of this earth than the cry which goes up from Virginia to-day for emancipation from the conditions which have absolutely enslaved us. What has it meant to Virginia, Mr. Chairman? Where is the man within the sound of my voice, where is the man within the broad limits of this State, who has felt in the last thirty years a.ble to think or to act v/ithout refer- ence to this great problem? In all that time there has been no vote cast in Virginia without being influenced and controlled by this domestic question. What then, Mr. Chairman, comes of the intellectual freedom of our people? If there is no intellectual freedom, where is the possibility of intellectual growth; — where is the possibility of intellectual leadership? One of the great curses that this thing has put upon our people is that it has reduced them from the position of intellectual independence and intellectual leadership, which they once enjoyed, down to the level of a people without influence in the councils of this nation. I am one of those, Mr. Chairman, who can find no satisfaction in the brilliant his- tory of the past if it is in sad and painful contrast with the conditions of the presenr. I never go in a gathering of Virginia people, where the name of Virginia is lauded, and listen to our orators recount our ancient glory, without a feeling of sadness and humiliation at the thought that our present is absolutely without achievement. Is that due, Mr. Chairman, to a degeneracy of our people or to a loss of power and greatne^^s among them? I do not believe it. On the contrary, I believe that it is due to the shackles that have been put upon their freedom and independence of action, which prevent them from becoming leaders again in the thought and in the action of tne nation. I think, then. Mr. Chairman, that it is our high duty and function to emancipate the intellect of the people of Virginia. But that is not all. The moral standards of our people as regards public questions have bpen degraded bv the conditions to which they have had to submit, and many things have been palliated and approved for which there can be no justification except the justification of necessity. In many parts of this State. Mr. Chairman, while the negro vote is no longer a menace as a negro vote, it is a fact, which m the confidence of a Democratic conference we must speak of and consider, that the vote, even if never cast is taken and counted in whatever direction the political exigencies of the moment may require What will be the end of a condition such as this? If permitted to con- tinue where will it lead our people, and what will be their destiny? An appreciation of DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OE VIEGIXIA. 2961 this danger is what made Virginia send this Convention into this hall, and we shall fail of the highest moral duty that could be placed upon us unless we uproot the con- ditions which surround us and make inipossible a repetition or continuation of this ruinous state of affairs. We people of the Black Belt realize all this, Mr. Chairman, in a way that many of you gentlemen from other sections of the State find it impossible to do. AVe know that we must find a remedy and an efficient remedy for this condi- tion. We shudder to think of the destinies of our people if we fail, and we shudder to think of the lost opportunity which would mean so much to their happiness and to their welfare if we fail to avail ourselves of this opportunity: and. therefore. Mr. Chairman and gentlemen knowing that this is the problem, and realizing that these are the conditions which surround us, the representatives of the Black Belt of Virginia have determined that their duty is to write the one word "efficient" on any plan of suffrage that is adopted, and to make everything else bend to the accomplishment of that high result. No plan can be favored by us that is not efficient. No plan can be favored by us that does not remove from us this great curse. Xo plan can be favored by us that does not restore to Virginia her moral standards and her intellectual free- dom. We have been wedded to no special plan. Each one of us has had his different view of how this problem should be solved. Each one of us has made suggestions to the Suffrage Committee of what it would be best to do. but each one of us has felt that it was an overwhelming, moral duty to sacrifice whatever preconceived ideas any of us might entertain in order to reach an agreement and to find a solution of this problem. We have not expected to find any- thing entirely ideal; but we have gone into this inqtiiry with this great, and, we think, this patriotic purpose, of finding an efficient remedy for the horrors of our present condition. Our objection, Mr. Chairman, to the plan proposed by the minority is that it is not efficient; that it will furnish no solution of this problem; that it is based upon an erroneous conception of what the problem really is; that it fails to realize where we stand and the necessities of our people, and relegates us again to the very condition which the fond hopes of our people believe we can relieve them from in this Conven- tion. Why do we say that? vrha.t justifies the earnest conviction of our hearts that the minority plan fails in this regard? It is because the problem is not the political supremacy of the black man. That Question, as I have said, has been settled in East- ern, as well as Western. Virginia forever. The evidence that it is settled exists right here upon this floor. Members of our race, of the same party s:.-mpathie5. and of the same personal and political principles, come to this convention from the black cotmtry. as those that come from the white country. But the problem is this, to take this black man out of the suffrage of Virginia as a factor and remove him as a disturbing and demoralizing influence. We do not fear his numbers. We fear his presence. As long as he is in the suffrage with us in any numbers, our curse is still upon us, we will still be in the grasp of moral and intellectual servitude — servitude to the idea that we cannot think, that we cannot act. with independence upon any of the great public questions that confront the citizens of this country, and he will still be a destroyer of the morality of our political standards, because there will always be a large faction among the vrhite people of Virginia that VN'ill continue to justify anything that will keep the black man out and put the white man in political control. The report of the minority of this committee is based upon the idea that all that is necessary for us to do is to give a white majority. That report by confession still leaves the black man with the balance of power in the State of Virginia. That report leaves the problem with which we are confronted as serious and as deadly as it is to-day; and it is the deliberate judgment of those men of this com^mittee vrho come from closest touch with this problem, that it would be as well for the moral and intel- lectual prosperity and happiness of this people for this Convention lo adjourn and do nothing as to adopt the minority report that is presented to the Convention. And why? I have attempted to show you. Mr. Chairman and gentlemen, that the question is not the creation of a white majority in the State, but the question is the removal of the black man as a poisonous factor in the politics of the State. What fault do v*e find with the minority's position as stated in their report? We find that the only obstacle that is put in the way of the negro suffrage by the minority report is in one shape or another an educational qualification. At first, and until 1904. that obstacle is expressed to be the mere ability to read any section of the Constitution, alternative with the understanding clause. After 1904 it is only the requirement of making out an application for registration in the voter's ovrn handwriting, and making out his ballot without assistance. That is all, except the poll-tax. Of course, in saying this. Mr. Chairman, I am not referring to those ordinary prerequisites such as age and residence. But, except the poll-tax. the only deterrent to the vote of an adult resident of this State proposed and favored by the minority of this committee is. after 1904, the ability to make out in the voter's own handwriting, both his application for registration and his ballot as a voter. 2962 DEBATES OF THE COXSTITUTIOXAL COJfVEXTIOX OF VIRGINIA. What do these gentlemen tell us in reference to that matter? They tell us that one of the advantages of their plan prior to 1904, is, that it removes from adminstra- tive operation of the understanding clause 334,242 citizens of the State who can read, of whom 265,000 are white men. The difference between that 334,242, the total admitted under the reading clause, and the 265,000 of them that are white, is 69,252 that are negroes, and these 69.252 negroes step into the suffrage the day after this proposition is adopted. That is one half of the total negro vote in the State of Vir- ginia. The whole negro vote in the State of Virginia is 146,000, and here are 70,000 of them that step into the suffrage the very day that this plan is adopted, and are entitled to registration. If the problem is to remove the negro as a factor and to emancipate morally and intellectually the white people of Virginia, then how is that accomplished when you leave half of the negroes entitled to suffrage the very day that you ad'^pt the Constitution, and hand over to them at once the whole balance of power in the State. Mr. Daniel: Before 1904' the poll tax and understanding clause applies to the present electorate under the minority plan. In the minority report the poll tax, the reading and writing or the understanding stand betw^een the voter of any kind and the polls. Nothing else in the majority plan stands between the voter except the capitation tax and understanding the duties of the offices, and to have worked three months. That would take in every negro farm hand, every negro laborer of every kind. What is the difference in that respect between them? Mr. Thom: I shall attempt to discuss the majority plan and its very great dif- ference from the minority plan as I proceed. I regard the difference as wide as the poles, I will say, Mr .Chairman, but I cannot stop at this moment to discuss it, because it will naturally fall in with another portion of my argument more appropriately. I am arguing, Mr. Chairman, to shov/ what the majority of this committee feel is the unsatisfactory remedy proposed by the minority; and I say that, by the very terms of this report, one-half of the present negro voters of the State come into the suffrage the very moment that this minority proposition is adopted. Will that even tend to solve our problem. Will that raise one finger's weight from the burden of Virginia? If the question was simply to reduce the negro numerically in the suffrage of the State, that would be a valuable suggestion, but if the problem is to remove the negro as a factor from the politics of the State, then it offers no shadow of relief. But that is not all. Here we have in effect (leaving out for the moment the question of capitation tax), throughout the whole of this minority plan, education in one form or another, and education alone. Everything else in the plan is alternative with educa- tion. Every applicant for suffrage has a right to go in at that gap of education. He may also go in at others, but, as this is an alternative, he has a right to go in at that. Sixty-nine thousand of them march in at once by the concession of the minority; and then what takes place? What is the condition of the negro, so far as education goes, in the State of Virginia? V/e are attempting with one hand to erect a barrier in his way to the ballot-box by saying he must be educated, and with the other we are furnish- ing him v/ith public school facilities, which will give him the very education which is made a prerequisite for him to become a voter. We are erecting a barrier with one hand; we are destroying it with the other. If our educational scheme succeeds, our suffrage scheme fails. That educational system has resulted already, under the minority plan, in placing upon us one-half of the negro vote in the State of Virginia td-day. We are told, Mr. Chairman, that such a plan as this is not a mere matter of experiment with our people; that it has already been tried and found successful in five of the other Southern States; that it has been tried in Mississippi; that it has been tried in Louisiana and in South Carolina, and that it has been approved in North Carolina, and lately in the State of Alabama. We are pointed to these States as illustrations and as demonstrations of the fact that what suits them and what is claimed to have given them a remedy must suit us and give us a rerqedy. I challenge both propositions. I allege it to be a fact that the experiment has not been satisfactorily tested in any one of the Southern States, and I further allege it to be a fact that their conditions and ours are entirely dissimilar in many essential particulars. DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF YIEGIXIA. 2963 When did these suffrage laws go into effect in the Southern States? In Missis- sippi in 1892, in Louisiana in 1898, in South Carolina in 1898, in North Carolina in 1902, and they have not yet been adopted in the State of Alabama. The race, Mr. Chairman, between the suffrage clause on the one hand and the educational system on tlie other cannot be determined in the series of years marking the longest period that has elapsed in any one of these States, namely in Mississippi. This question is not one to be solved in a day. It is one the development of which must be watched during the recurring years until both the educational system and the educational test of suffrage have had a fair opportunity of action. But not only that. I contend further, Mr. Chairman, that our brethern of the State of Virginia should take the conscientious convictions on this question of those of us who are closest in tou.ch with our actual conditions here, sooner than follow the example of another State, the actual conditions in which they cannot know. It is the earnest and the solemn, and, I believe, the unanimous conclusion of the men who are nearest to this problem in the State of Virginia, that our conditions are radically different from those existing in other Southern States of this country on this question of the negro; that the negro with us is a different man; that he is nearer to our civiliza- tion; that he is more easily trained and more easily educated, and that this expedient of an educational restriction upon his suffrage will furnish us no adequate relief what- ever. But that is not all. There are differences in conditions between us and the other Southern States absolutely lying upon the surface of this question. When the State of Mississippi in 1890 adopted its Constitution, to go into effect in 1892, the illiterate negroes in that State constituted more than 60 per cent, of the negro population, and to-day when we in Virginia are asked to adopt the same policy, the illerate negroes in the State of Virginia amount to less than 33 per cent, of our negro population. Mr. Daniel: In Mississippi the whole illiterates were 138,450, and the black — Mr. Thorn: What year are you talking about? Mr. Daniel: 1892. Mr. Thom: I am talking about 1890. I have verified these figures. I have the exact proportion. Mr. Daniel: It gives them a white majority in the State of 45,000 amongst the illiterates. Mr. Thom: I have the exact figures taken from the best authority that can be gotten. In 1890 the colored illiterates in the State of Mississippi amounted to sixty and ninety-one-hundredths per cent, of the negro population, and that was when Mis- sissippi adopted this plan of suffrage to go into effect two years later. Mr. Daniel: That is true; but it left ninety-odd thousand r-egro illiterates, because their population was so vast. It gives us 150,000 white majority above that of Mississippi. Mr. Thom: That may be true, but this is not the point I am endeavoring to make. To-da3^ I reiterate, if we are asked to adopt the same policy, we do it in a condition in our State where the illerate negroes number less than 33 per cent. — in exact figures, 32s2 per cent, of the negro population of the State — over 10 years old. But that is not the only consideration, Mr. Chairman. We are pointed also to the State of Louisiana — Mr. Daniel: The minority of the committee has not made any allusion to it. Mr. Thom: Not in the report. Mr. Daniel: Only to the two States that have preceded on these lines. Mr. Thom: Louisiana has done so also. I regard that Louisiana's system of suffrage is based upon that idea. In Louisiana, from 1880 to 1890, the last figures that are avail- able to me, the illiteracy of that State was reduced from 78, according to one authority, and 79 according to another authority down to 72, or 6 per cent.; while the same years from 1880 to 1890, Virginia's illiteracy was reduced from 73 and a fraction to 57 and a 2964 DEBATES OF THE COXSTITrTIOX AL CONVENTION OF VIRGINIA. fraction, or 16 per cent. Now, in the last decade, from 1890 to 1900, Virginia's illiteracy has been reduced from 57 and a fraction to 32 and a fraction, or 25 per cent.; and at the same rate of reduction another decade will bring down the proportion of negro illiterates in the State of Virginia to the figures which the white illiterates now show in reference to the white population; and in ten years we will be on the same basis of illiteracy as to the negro population that we are now in the State of Virginia as to white illi- teracy, or about 8 per cent. And why is this true? What are the influences that are doing this work in Virginia? It is the difference in our common school systems as will be shown by the money that is being expended on the illiterates of Virginia as com- pared with that which is being expended on the illiterates in other States. I ask the careful attention of you gentlemen of this conference to the figures which show the immense energy that is being put forth by Virginia to destroy illiteracy in her midst, overshadowing many times the efforts that are being made in some of the Southern States and altogether in excess of the efforts that are being made in any of the Southern States. Alabama was expending in 1899 on her illiterates $808,000. Virginia was expending during the same year $1,971,01)0. Louisana was expending in 1899 on her illiterates $1,126,000, as against Virginia's $1,971,000. Mississippi was expending in that year $1,165,000 against Virginia's $1,971,000. North Carolina was expending in that year $931,000 as against Virginia's $1,971,000, and South Carolina was expending then $769,000 as against Virginia's $1,971,000. Let us compare the illiterates, the num- ber in these States according to the latest data that we have. The latest data avail- able to me were only for the year 1890, but this will be sufficient to give their relative proportion. At that time Alabama had 438,000 as against Virginia's 365,000; and Alabama was therefore expending, according to this calculation in the relative proportion of $1.84 per capita upon her illiterates as against Vir- ginia's $5.39 per capita upon her illiterates. Louisiana had 364,000 illiterates and Virginia 365,000 illiterates. Louisiana was expending $3.09 against Virginia's $5.39 per capita. And so it goes on through the list, Virginia expending in actual money almost twice as much as any one of her sister States, with her illiteracy less than most of them — less, I believe, in actual numbers than any of them except the State of South Carolina, the State of South Carolina with 360,000 illiterates against Virginia's 365,000. Can it be wondered at then, Mr. Chairman, that -illiteracy is disap- pearing in the State of Virginia at a rate vastly in excess of that at which if is dis- appearing in other Southern States of this Union? Is it any longer to he marvelled at, that between the year 1890 and the year 1900, 25 per cent, of its illiterates have disap- peared, reducing the total number remaining to about 32 per cent.? If these same efforts are continued, and if the same purpose of this people is carried out in the mat- ter of education, then the illiteracy of the State of Virginia will be reduced so far in ten years as to absolutely destroy education as a factor in the question of suffrage. Mr. Daniel: May I call my friend's attention to the fact that for the last decade the figures show otherwise, as to white and colored illiteracy in the last decade. The whites from 1890 to 1900 increased in percentage of school population from 58 to 59 and the colored fell off from 47 to 43. Mr. Thorn,: (But, notwithstanding that, we find that within these ten years the illiteracy among the colored people was decreased at the astounding rate of 25 per cent. — from 57 to 32; and, with that as a fact, as it must be if my friend says it is a fact we find that illiteracy is an absolutely disappearing factor, and it is disappearing so fast that in ten years it will disappear as a matter of moment or importance — Mr. Hun ton: Do I understand that you deny the correctness of the minority report, which states that there are about half of the negroes illiterates? Do you deny the accuracy of that statement. Mr. Thom: No, sir; I do not. Mr. Hunton: The minority report states that about 50 per cent, of the negroes are illiterates. As I understand, you say it is about 32 per cent. I do not understand you mean to deny that fact. DEBATES OF THE CONSTITUTION' AL COXVEXTIOX OF YIRGIXIA. 2965 Mr. Thorn: No, sir. Both statements are true. The statement of the minority is based upon the illiteracy of the adult negro, 21 years of age, and allowable to vote. The illiteracy, the basis of which I am giving, is ten years old and over, of the whole negro population. I am taking that as a test of the way illiteracy is disappearing in the State of Virginia. All those who are now 10 years old will be 21 years old in ten or eleven years; and 1 am speaking now of the efficiency of the public school system of this State, and the result that is being worked upon the illiterate masses of the State. Mr. Meredith: Was your $1,971,000 the entire State contribution to the school fund or State and local. Mr. Thorn: I cannot tell you; I think it is State and local. Several Members: State and local. Mr. Thom: But that is what we expend. Now, what further inference is there to be drawn from those figures? That in 1880, which is only twenty years ago, three fourths of the negroes of this State were illiterate — 73 per cent, to be exact; and in 1900 less than one third are illiterate, or 32 per cent, to be exact. And I desire, Mr. Chairman, to make another point, and that is that, accord- ing to the experience in our part of the State the negro attendance on the public schools is vastly greater than the white attendance on the pub- lic schools, in the country districts. I have heard a gentleman whom I now see sitting before me on this floor make the statement of his own experience in the county of Nansemond since this Convention assembled, of how he was driving along the road and met three white children coming from a white school, and he was absolutely unable to pass through with his carriage the crowd of negro children that were crowding the road coming from the negro schools. And this is not left simply to the testimony of gentlemen on this floor. I read the following from a report made by Samuel F. Barrows, of Boston, and published in the Educational Reports of the United States of one of the recent years, 1890-1891: The interest of negroes in education is immense. , They have discovered that it is the ladder on which they must rise. Both children and parents are making great sacrifices to secure it. The enrollment of colored children in the schools has im- mensely increased. In some districts they literally fill the doors and windows of the school houses. Now I say, Mr. Chairman, that that is the condition more especially in the country districts than in the city districts; that the proportion of white children being educated in the white schools of the cities is larger than that of the negroes being educated in the negro schools, but, in the country, the proportion, in my judgment and in my experience, is not preserved, and the most defenceless portion of our population, the largest portion of our population, the country portion of our population, that which requires at our hands special and most earnest efforts at relief, is the one threatened quickest with the disappearance of illiteracy among the colored population. Mr. Chairman, it is this fleeting and disappearing qualification that we people of the Black Belt are asked to accept as the solution of our trouble. Can it be wondered at that we hesitate? Can it for one moment be wondered at that we are unwilling to surrender the first opportunity that we have had for thirty years to escape from under the burden of this curse? Our people have yearned and longed for this day of their deliverance to come. They looked forward to it as the day of their salvation. They looked forward to this as an opportunity for them to escape once more into the sunlight of intellectual and moral freedom. Can we go back to them, gentlemen of this con- ference, when they have asked of us bread, and give them this stone? Can we justify ourselves to our people in throwing away this opportunity? Gentlemen, this means something to us of the Black Belt, It means everything to us of the Black Belt. It means an opportunity for the future; it means the salvation of the present. Can we 2966 DEBATES OE THE CONSTITUTIONAL CONVENTION OF VIEGINIA. disappoint their hopes? Can we throw away this opportunity? As much as we would desire to reconcile our differences, as much as we would desire to come into harmony with the other members of this committee, as much as we would desire to remove every element of discord and difference between us, can we give up the chance of a life time and a generation; can we go back to the old conditions from which we are trying to escape, and can we go back to our people, bowed down with disappointment and humiliation because v/hat we have brought them amounts to nothing. Mr. Chairman and gentlemen of the Conference, I have attempted to outline the negro problem as it relates to the suffrage and to indicate how, in my opinion, the plan suggested here by the minority is constructed in utter disregard of the essential feat- ures of that problem. I desire now to enlarge somewhat and to explain more fully what I consider that problem to be. Lest I should be misunderstood, I desire to say that in my opinion there will never come a time in the history of this State when the Anglo-Saxon will again submit to the domination of the black man. No matter what it costs, no matter what the method, this one fact stands out supremely true, that the Anglo-Saxon race is now and will be forever master where- ever it exists. But the terrible consequence that the menance to white supremacy has left upon us remains, and that is, that we have upon us the curse of the method by which that supremacy has been achieved. It had to be achieved by bloodshed or by other means equally as effective. To my personal regret, it has been thought best by our people to adopt these other means; and now, after thirty years, the cry goes up from every part of this State, from the seashore and from the mountains, from the plains and from the valleys, for relief and regeneration from the conditions into which this thing has plunged us. The result has not merely wrought familiarity in our midst with corrupt practices at the ballot-box, but it has gone further. It has enchained and enslaved the activity and the intellect of our people. The Anglo-Saxon represents the very aristocracy of the races. It is proud of its position It is determined to maintain it. And, when its domination and supremacy is questioned by any race, and especially by an inferior race, it loses sight of every other question and of every other possibility, and stands with its face to the front until that question is solved and solved forever. That has been its history everywhere. As is said by the author of "An Appeal to Pharoah": Pour centuries have not elapsed since the v/hite man first set his foot upon the eastern shore of the New World. Every step westward has been marked by the blood of the race he found here and drove before him. The Indian has been nearly swept from the face of so much of the North American Continent as is especially con- secrated to the principles of the equality and brotherhood of mankind. And now, at the last, standing on the grave of the Red man, and shutting the Western gate of the Republic, without ceremony, in the face of the Yellow man, we turn and proclaim anew to ourselves and to the world that our destiny and the destiny of the Black man is one. It is very strange. It can never be true. That proposition is recognized not only by us here at the South, but it Is recognized everywhere among the civilized people of the earth. It was recognized by the earliest statesmen of this Republic; it is recognized by the latest statesmen of the Republic, and it is recognized and acted upon here and everywhere. In the October number of the " Atlantic Monthly," which has just been received from the press, I find this significant comment from one of the able professors and students of this country: During the two generations of debate and bloodshed over slavery in the United States, certain of our statesmen consistently held that the mere chattel relationship of man to man was not the whole of the question at issue. Jefferson, Clay and Lincoln all saw more serious facts in the background. But in the frenzy of the war time, DEBATES OF THE COX STITUTIOXAL CONVENTION OF VIRGINIA. 2967 public opinion fell into the train of the emotionalists, and accepted the teaching of Garrison and Sumner and Phillips and Chase, that abolition and negro suffrage would remove the last drag on our national progress. Slavery was abolished, and reconstruc- tion gave the freedmen the franchise. But with all the guarantees that the source of every evil was removed, it became obvious enough that the results were not what had been expected. Gradually there emerged again the idea of Jefferson and Clay and Lincoln which had been hooted and hissed into obscurity during the preva- lence of the abolitionist fever. This was that the ultimate root of the trouble in the South had been, not the institution of slavery, but the coexistence in one society of two races so distinct in characteristics as to render coalescence impossible; that slavery had been a modus vivendi through which social life was possible; and that after its disappearance its place must be taken by some set of conditions wnich, if more humane and beneficent in accidents, must in essence express the same fact of racial inequality. This is by Prof. William A. Dunning. So that I see, Mr. Chairman, something more in this problem than the mere fact of numerical equality or numerical superiority. I see there is something deeper and more far-reaching in what is before us than the mere question of whether we can carry an election. I see underneath it the fundamental problem of what is to be the relation of these two unequal races. I see to-day the first and the only chance that we have for a generation had to pass on and determine that question. I will not accept, Mr. Chairman, any solution of it w^hich is no remedy. I v/ill stand in my place and protest here before the representatives of my people that whatever remedy we find must be in the first place and always eflicient. This is no new view to me, Mr. Chairman. It has been the earnest conviction of my heart for many years. I expressed it, if I may be permitted to read a short extract from a letter that I wrote upon accepting the nomination to this Convention, in the following language: For a whole generation we have been patiently working at the problem growing out of the enforced legal equality of two essentially different and unequal races. The result of this problem upon our people has been most disastrous. In morals it has resulted in the lowering of our civic standards; intellectually it has dwarfed us on all public questions, for in the presence of a dreadful menace to our domestic and social institutions, we have not felt free to think independently on any great economic or governmental question. To the Convention about to assemble is entrusted the task of removing, as far as possible, this great burden from the manhood of Virginia. I am in profound S3^mpathy with this effort. I regard the purity of the ballot as the safe- guard of American institutions. When this is corrupted, the fountain is poisoned at its source. I realize that the necessity of ensuring control in the hands of the properly dominant race has caused offences against the ballot to be at times condoned, if not approved, by our best people. Every repetition of this offense, however, weakens the moral sense of the people a.nd is a blow at the safety of our institutions. Moreover, at no time during this generation have our people at home, or their representatives in the legislative bodies of the country, been able to cast a vote uninfluenced and un- trammelled by the menace of this great social and domestic problem. Being thus hampered in action, we have been unable to think with freedom and independence on any great national question, whether of economics or of governmental policy, and have thus forfeited that position of leadership, for which, during more than half of our national existence, we were so justly pre-eminent. No man who is not free in action can be free in thought, and no one who is not free in thought can permanently domi- nate or lead the thought of his time. I regard the present as an opportunity to ac- complish, in a large measure, the moral and intellectual emancipation of our people. I have said, Mr. Chairman, that in my opinion the people of Virginia and of the South have not been free in political action for the last thirty years. No matter what might be the problem of economics before them, no matter what might be the question that was affecting their national destiny, there was one question at their heartstone at home which they could never for a moment forget or disregard, and which absolutely pre- vented them from casting a vote on any question on its merits, but made them keep their eyes always, all the time, on this social problem that was pressing upon them. 2968 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. If that controlled the freedom of their action, then their minds could not get beyond the fetters which it imposed. If they had no freedom of action, they had no freedom of thought; and no people ever attained or maintained any leadership who are not free in thought to take whatever position the merits of the case before them might suggest. Therefore, while I believe that upon our mountain sides and in our valleys and along our sea-shores, we have men of the same intellectual capacity that in the early part of the history of this government illumined the pages of our history; while I believe that there are men within the sound of my voice, and on this floor, with the capacity to assert and maintain a new leadership of the people, I look around me upon men who, for thirty years, have been unable to take that position because they were not free to act and to think, and, therefore, they were not capable of leadership. It is the high province of this Convention to make a solution of this problem and to set our people free. To do that we must get rid of this domestic question, and to do that we must not merely have a numerical majority over these people: to do it we must remove them as a disturbing factor in our public affairs. And it is for this, Mr. Chairman, that I plead to you, I plead for a new emancipation, not now of the black man, but of the white man, whom the black man has enslaved in turn. I plead to you for an opportunity to assert our natural power and natural leadership among the States of this Union, and to come to the front once more in the glory of the earlier days. And I believe we can do it. I believe if v/e ever get rid of this question, we will spring to the front again. I believe that we will produce again men who can take our banner and carry it to the front in all the American nation. I know that our generation has been sacrificed. I know that none of us can ever attain the goal which we fain would seek, but I want to secure freedom for our children and our children's children, and to give to them that which has been denied to us of the present generation. Peeling that way, Mr. Chairman, I feel earnestly upon this point of having an efficient remedy for our troubles. I feel that it will not do to bring into our suffrage enough of the negro voters to hold the balance of power. I feel that that is no solution of what we are here to solve; I feel that any plan that admits that as its basis, starts out with a false conception of our problem; and, if it were adopted, it would leave a curse upon us forever, for now and here is our only opportunity — we have had no other, for thirty years, and will probably not have one again for thirty years to come. And, Mr. Chairman, we men of the Black Belt all feel this. It is not to be wondered at that you men of the white districts of this State — and by white districts I mean where your negro population is small, (and I make this explanation because it must be remembered that 65 per cent, of the white population of this State is east of the Blue Ridge mountans) I say it is not to be wondered at that you men where the negro population is small, do not understand our problem. You do not appreciate what it is we are standing here and fighting for. You think that the only thing you are called upon to do is to give us a white majority. Gentle- men, that is not what we want. We want freedom and independence. We want to be placed upon the same platform with the other free people of the earth. We believe we have the power and genius among our pople to give that account of ourselves which will be in keeping with the grand history of Virginia; therefore it is that we can accept nothing that is insufficient, and that we ask, almost in the form of a respectful demand, at the hands of our brethren of other sections, that you give us something that will be efficient to liberate our people. I have argued, Mr. Chairman, that the plan of the minority overlooked what we were after; that it was framed in disregard of the problem; that it at one fell swoop laid open the registration books to one half of the negro population; and that by the ratio of decrease of illiteracy, which had already been established, in ten years there would be as little illiteracy among the colored population of this State as there is among the white population to-day. Since last night I have seen an article from the pen of one of our Virginia citizens, DEBATES OF THE CONSTITUTIOXAL CONVENTION OF VIEGINIA. 2969 cast into the shape of an address and delivered recently in the city of Buffalo, in which he said that from all his study and all his investigation, he had found that Virginia was giving a larger proportion of its total receipts to education than any State in the American Union. With these Herculean efforts to destroy illiteracy, and, if that be the obstruction to suffrage, to destroy the obstruction that would exist between the negro and the ballot-box, can we as sane, as thoughtful, as patriotic men, be content with basing the whole of our future upon such a fleeting and disappearing factor. Now, Mr. Chairman, Inasmuch as we stand here face to face with the fifteenth amendment to the Constitution of the United States, when v\''hat we want to do is to write the one word " white," in the Constitution, and when we are prevented from doing that by this Constitution of the United States, it must be realized by every one that what we do in this direction must be at least an expedient; it cannot reach the dignity of the ideal; it must be simply the best thing that we can do under adverse conditions. If that be the case, then the proper way to arrive at a conclusion as to the best thing that is available for us is to reach it by the process of elimination. I have already attempted to eliminate the suggestion based on an educp^tional test. I shall now, with your permission, and as I suppose I should, endeavor to take into the confidence of the Democratic conferences of the Suffrage Committee the Democratic conferees of the Convention itself, and attempt to show the process of evolution by which this minority report and this majority report have been reached. When the field was first cleared for propositions, there were three competing sug- gestions before the committee. One was based on a property qualification with its m.odifications and exemptions; another was an effort to divide the people of Virginia into certain classes based on occupation, which would take in the white man and eliminate the negro; and the third was entitled: " Certain propositions which were printed for the consideration of the Committee on Elective Franchise, by its order." From this last I read these two alternate clauses, persons coming within either one of vrhich being entitled to vote: Any person who can understand and reasonably explain any section of the Consti- tution of the United States or State of Virginia, or who has paid taxes prior to the first day of February in the year in which he offers to register on property, real or personal, amounting to at least $300 — One faction of this committee was attempting to find an automatic test for the ballot. Those composing this section were insisting that there should be no plan Adopted that was not based upon a defi.nite and automatic test. Another faction of the committee was insisting that that was impossible; that the understanding clause in some shape must be accepted. It is not to be wondered at, Mr. Chairman, that those men upon whom the great burden of this problem rests heaviest have always been willing, from the necessity of their case, to make the most concessions as to what should be adopted. They were obliged to place themselves in the position that efficiency must at last be the only ditch which they would never abandon. I hold in my hand here a paper indicating what I was personally attempting — I hold in my hand a resolution which I personally offered twice before that committee: Resolved, That it is the sense of this committee that no plan of suffrage be adopted based on the understanding clause. At the instance of gentlemen more far-seeing than I, that motion, when twice pre- sented, was twice withdrawn; but the battle waged around it during all these months that we were in conference; it waged around that proposition as Its great storm center. That resolution expressed what we were attempting to do. We, of the Black Belt, knew the evils fast coming into the suffrage. We knew a,ll that has come upon our people; and an effort was made, then and all the time, to find some solution that 187 — Const. Deb. 2970 DEBATES OE THE CONSTITUTIONAL CONVENTION OE VIRGINIA. would make a recnrrence of these conditions absolutely impossible— beyond even a remote possibility. We proposed the property qualification. We proposed to exempt from it all those persons who had served in any war of the United States, and the descendants of all such persons. We argued that proposition for days, and we con- sidered it, all tv/enty of us considered it— with our sense of responsibility and of patriotism fully aroused, and with an earnest purpose to reach some solution that would be satisfactory to the State. But we found, Mr. Chairman, the fact to be that a property qualification for suffrage existed nowhere in the American Union. We found that it had existed in several of the Saates, notably in New England, and it had been, in one after another, abandoned there. We found again that it had existed once in the State of Virginia, and, when we read the history of her turmoil and her misundestanding, we found that, from the early days the light had been over that one question, and that in the Convention for 1829-30 it had been modified as a test for the elective franchise, and, the modification not bringing peace and tranquility among the people, the Convention of 1850 had discarded it forever. We found that in many sections of the State of Virginia the same sentiment exists now in reference to that question that existed in 1850. We found also, Mr. Chairman, that it was necessary for us to save the white vote of the State of Virginia. We listened to our friends from beyond the mountains. We heard them tell us that the grandfather clause would not save all their people. We had to recognize their claim upon our patriotic consideraton. Whenever the question of the sacrifice of the white votes of Virginia came before the committee, the com- mittee wheeled into line and determined that none of the white people should be sacrificed if it v/as possible to help it; and whenever we marched up against the probability of white disfranchisement, whenever we came face to face with that obstacle, we retraced our steps and tried to find some solution which would not have that result. I remember the patriotic stand taken by the gentleman from Russell. T remember his saying to us that he was willing to do everything that he could to help us in our section, but that he came to this Convention with a mandate from his peo- ple that this suffrage of the white man should not be interfered with; and, while he was willing to make some sacrifices even in that direction, his position before t^^e committee was so strong and so generous, that every man upon it determined to do everything that was possible to save his people. And we found from him and we found from others that what is known as the grandfather clause would not have that result. But we found more than that. We found that there were at least two cities in the State of Virginia that had been founded — had come into being — since the war; that the population of these cities was largely newcomers to the State of Virginia; that in these cities — in both Roanoke and Newport News — the large part of the population of whites had no relation to the war by birth, inheritance or other- wise, and that a property qualification, with the exception of the soldier and his descendants, would have the effect of practically disfranchising the largest portion of the present voting population of those cities. We found the same thing true, but not to the same extent, in the city of Richmond and the city of Norfolk, we found it true in every growing section of this State; and we found that property as a test would have to be abandoned or a large part of the white suffrage of Virginia would have to be destroyed. But we found more than that. We found that such a standard, such a test of suffrage as the one I am now discussing, would stand as an impediment to newcomers that might seek to make their homes among us, to the men who could bring to us only their labor and their Industry, who might, if they could, come here to cultivate our fields, to develop our mines, to help us in the great work of life; that such men as these might be kept away if we have here a system of suffrage which would prevent them from assuming the high obligations and privileges of citizenship. In this respect, and if the test of suffrage were property, the very thing itself would stand as an impediment to the progress DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OE VIKGIXIA. 2971 of the state. Under these crcumstances, Mr. Chairman, it is not to be wondered at that this committee, anxious to do equal and exact justice to all the citizens of the State, anxious to throw no obstacle in the way of its growth, anxious to promote in every way its development and prosperity, could not feel itself justified in bringing in and recommending the automatic test of property as a basis of suffrage, even with the exemption created by the soldier-and-his-descendant clause. These, gentlemen, are the considerations which prevented an agreement upon property. These are the con- siderations which prevented us from coming before you and presenting that as a test of suffrage. They were satisfactory to the minds of the Committee, and it was absolutely necessa.ry therefore, in its opinion, to eliminate property as one of the possible solutions of the question. Then we took up, Mr. Chairman, the question of the classification of the people. We thought we could properly divide them into the property-holder, who could be allowed to vote as one class, and the man that contributed to the State in the shape a license contribution as another class; the mechanic and the skilled laborer, the salesman and the clerk as the third, thus including everybody in the State of Vir- ginia, except the manual laborer. It was thought that speaking generally of the class, the manual laborer of the State of Virginia is the black man whom we want to exclude; but the representatives of the people from all over the section beyond the mountains and in the valleys, told us that the largest porton of their population, who are manual laborers, are white men. And, true to the principle of saving the white man's suffrage, that proposition had to be abandoned. Then another class was sug- gested to add to that, namely; the laborer employed for a designated time who should have the additional test of understanding the general nature of the duties of the various officers for whom he might be entitled to vote. But that classification was considered objectionable as drawing an invidious distinction between a skilled laborer, mechanic and artisan and the farm laborer of the State, and putting the former on a higher plane; and that had to be abandoned. And so we were brought dovm to these two things — property gone, classification gone — the tv\^o things that we had to consider were education and understanding. The whole field of expedients had been searched and every possibility examined, and these two possibilities alone remained. What was the controlling principle, what was the dominant idea potential with the men on whom this problem rested most especially. It was — no matter what might have been their previous opposition to a plan, no matter how much or how long they might have fought it — it was to accept the one thing of these two which would prove an efficient remedy for their trouble. They believe that one thing to be " understand- ing " in the way it is put in this majority report. They rejected education for the reasons that I have argued elaborately before this conference. They saw that educa- tion merely in the way that it is ordinarily understood (the reading and writing test) was not only ineffectual to-day, but that it was a disappearing test and would soon be gone forever as an obstacle between the negro and the ballot box. And so. ready to surrender anything for the deliverance of their people, and considering this to be the opportunity for their deliverance, they determined to turn from personal preference and predilection, and to present to this Convention as their solution of the problem the only efficient thing that was left to them. And so they have presented an article here, Mr. Chairman, in which they have allov/ed the soldier to vote without the poll-tax, without being challenged on his way to the ballot-box or to the registration-book. They have also considered that there Is another class that can safely be entrusted with the suffrage, and that is the man who contributes from his means to the maintenance of his State; and they have put the test for this class at the low figure of $1.00 per annum on property owned by and assessed against him or his vnie. They present to you as a sound principle, that the man who is thus tied to the soil of Virginia is a safe man to have a voice in its destiny. While there are a few negroes that will come in under that test, they not sufficiently 3972 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. numerous to be a menace to the welfare of the State. And, then, in order to bring in every other worthy citizen of the State, they have recommended that, in addition to the foregoing classes, any man shall have the right to vote, who has, for at least three months during the preceding twelve, been engaged in any useful and lawful occupation, thus giving a pledge to the State that he is neither a vagant nor a shiftless person, and who, in addition, has a sufficient conception of the duties of citizenship to be able to understand the general nature of the duties of the officers for whom he may be entitled to vote. Such a man is a worthy participant in the suffrage. The committee isliot blind to the fact that this is not an ideal test. The committee does not pretend that it has brought here to you a solution such as will meet their own highest aspi- ration, but they do say this, that after four months of earnest and patriotic considera- tion, they have brought forv/ard the only possible efficient remedy for their troubles in this proposition which they submit. Let us consider this test for a moment. In the first place, Mr. Chairman, we submit that this test is efficient to do this work. It is alternative with nothing in the plan that will admit the negro vote to any alarming or menacing extent. The two classes with which it is an alternative are the soldier class and the property-holding class, and through neither of these gateways will any large number of negroes ever be able to approach the ballot-box. So, that if any considerable number of negroes come into the suffrage, it must be through this understanding clause. Now, will it stop them? That is the first question which we ought, in justice, to consider. At the outset, gentlemen, you have the guarantee on that question, which comes from the unanimous approval of nearly every member of this committee who is in the touch with the problem,. When you examine the names that are signed to this majority report, you will see who the men are that giving you their assurance as to the efficiency of this plan, and that they are the ones that come from the parts of this State where the problem is the sorest and the trouble is greatest. But that is not the only reason for believing that it will be efficient. We think that it will be efficient because we do not believe that the negro can stand this examination. We think it is a vastly different question from his reading and writing. We believe that the negro greatly differs in the matter of understanding from what he is in the matter of the acquisition of knowledge. Dr. J. T. Searcy, in an address before the Alabama Educational Association says: In the acquiring department, as exhibited on the plantations and in the schools, negroes are very apt up to a certain age — that is, when they begin to reach adult life. In the pla7/s of childhood, and in the acquisitions of the primary schools, the negro children show abilities which compare very favorably, and. taken as -criteria of mental abilities to come, they are often misleading. The negro children who show some acquiring abilities in childhood, fall further and further behind, as a rule, as the activities incident to adult life come into play. They fall behind then in acquiring ability, further behind in judgment and reason, and still further behind in tenacity of purpose and decision of character. But it would not be frank in me, Mr. Chairman, if I did not say that I do not expect an understanding clause to be administered with any degree of friendship by the white man to the suffrage of the black man. I expect the examination with which the black man will be confronted, to be inspired by the same spirit that inspires every man upon this floor and in this convention. I would not expect an impartial adminis- tration of the clause. I would not expect for the white man a rigid examination. The people of Vir- ginia do not stand impartially between the suffrage of the white man and the suffrage of the black man. If they did, this Convention would not be assembled upon this floor. If they did, the uppermost thoughts in the hearts of every man within the sound of my voice would not be to find a way of disfranchising the black man and enfranchising the white man. We do not come here prompted by an impartial DEBATES OF THE COXSTITUTIOX AL COXVEXTIOX OT VIKGIXIA. purpose in reference to negro suffrage. We come here to sweep the field of exped- ients for the purpose of finding some constitutional method of ridding ourselves of it forever: and we have the approval of the Supreme Court of the United States in making that effort. When, in the Williams case going up from Mississippi, the point was made against the constitutionality of the Mississippi suffrage law, that the Supreme Court of that State had said, as to the purpose of the framers of the suffrage plan, that " within the field of premissible action, under the limitations imposed by the Federal Constitution, the Convention swept the field oi expedients to obstruct the exercise of suffrage by the negro race," what did the United State Supreme Court reply? It was this: If v,-eakness were to be taken advantage of. it was to be done within the field of permissible action under the limitations imposed by the Federal Constitution. So, in that high tribunal, it was said that, within the limitations of the Federal Constitution, it is permissible for this people to search for expedients to exclude the negro race. If. then, a rigid examination permitted by the Constitution excluded the negro; then, in law. he is excluded by virtue of his failure to attain a cert-ain standard, and not for the reason that he is a negro; and, therefore, the law itself is constitutional. But, again. I expect this clause to be efficient, because it will act "'in terrorem" upon the negro race. They believe that they will ha^-e a hostile examination put upon them by the white man. and they believe that that will be a preventive to their exei'ci ■-'■.g the right of suff'rage, and they will not apply for registration. They will know that they first have to pass an examination; that then they have to make out their appli- cation for registration in their own handvrriting; that then they have to make out theii ballot without assistance; and that then they have to pay a capitation tax. These impediments will be too great for the negro, and he will find himself, as a practical question, excluded from the suffrage. But, suppose, Mr. Chairman, that he does not want to be excluded, and that he is improperly excluded in any individual instance; then the machinery established here, by this very Constitution, is sufficient for his protection. If he in reality possesses the necessary- qualifications, there is no power under this Constitution to reject him, for the reason that right here is given to him by virtue of the Constitution itself, an appeal to the Judge of the Circuit Court, who. if he is wronged by the registration officer, can at once correct the wrong: for the negro, as well as for the white man.' We believe that all this will be an effective impediment in the way of the negro, because his tenacity of purpose will not be suffi- cient to bring him into the suffrage as a race. But there is, at the same time every opportunity provided by the Constitution itself for his absolute protection a? an individual from any wrong against his legal and constitutional rights. And again, we think. Z'-Ir. Chairman, that this clause will not exclude any worthy white citizen of this Commonwealth from the suffrage; for the white man is friendly to the white man's suffrage; and the white man will find a friendly examiner when lie goes to stand this examination. We believe, in addition to that, that, if it is not so, that here stands the Circuit Jugdge, with his chambers always open, to give the white man the right which might have been improperly denied him by the registration officer. But that is not all. We have the minority of this committee agreeing with the majority that this provision will not exclude the white man from the ballot-box. We have the representatives of what may be denominated as the white sections of this State, saying to the Convention that this provision is adequate for the protection of the white man. This is evident from the fact that the minority proposition also includes an understanding clause. They let in all the members of the white race that can read and write, by virtue of their alternative clause. They say all men shall come into this suft'rage who can read and write, or vrho can understand and explain the Constitution when it is read to them. The understanding clause is not intended as a disfranchiser of anybody in the minority plan. 2974 DEBATES OF THE COXSTITUTIOJn' AL CONVENTION OF VIRGINIA. It IS intended to open to the illiterate white men of Virginia an avenue to the ballot-box. it is intended to let into the suffrage the illiterate white men whom these gentlemen of the minority more especially represent, as they come most largely from their sections of the State, and when these gentlemen with the pledge upon their lips that they will not disfranchise their white constituents, come before you and recommend their plan as a solution of ihe problem, they say to you that the understanding clause is the place through which Illiterate white men must approach the ballot-box, if that protects the white man in the minority plan, then the understanding clause in the majority plan protects him also, and equally as well. This conclusion is not affected by the fact that the minority plan has the understanding clause only for two years, for the reason that within those two years they expect all the present white voters of the State of Virginia to be put upon the registration books again. This is what is the meaning in the minority plan of his undersanding clause— it means that the whole white voting popu- lation of the State of Virginia is to walk into this suffrage, either through the educa- tional test or through the understanding clause; and my friends expect to go back to their constituents and to justify their action towards the white illiterate voters of their counties and cities by the fact that they have provided this gateway to the suffrage for them through the understanding clause. They have demanded that under- standing clause of this Convention and of this committee, for the purpose of protect- ing their white men. We concede it to them,. We say v/e are hand in hand with you in the purpose of bringing your white men to the polls, but, at the same time, we say, forget not, gentlemen, the problem that is upon us, and concede the same thing to us for the purpose of excluding our black man from the polls. The difference between the minority and majority plan is not one of principle, because the minority have endorsed as efficient and proper an understanding clause for two years — they have endorsed it as efficient and proper for the purpose of saving their own people; they say it must be left as a part of the suffrage plan, so long as the exigencies of their people in the mountains and in the valleys require. We say you shall have it. We say we will not stand in the way of your people at the polls; but we ask in return this boon; we ask in return that you v/ill let us keep it for the purpose of bringing salvation to our people. You endorse the principle; you are ready to receive the goods; why stop short of the salvation of the suffering portion of the State of Virginia? I have attempted to show to you that, inasmuch as this is in the alternative, it seems nothing as an impediment to the ballot-box, except education, because one of the alternatives is education alone. The educated negro can always get in through that gap. You want to get in the uneducated white man, and demand the understanding clause. We say that the negro does not possess the necessary understanding of these matters, and if you give it to us vv^e will keep our negroes out by virtue of it; and you decline to let us have it. Is there any fairness or justice in that position? By it in your bill you enfranchise everybody that is white; you dis- franchise nobody that is black. The meaning of this Convention is that the great sore upon the body politic is the fact that the black man possesses the suffrage; and, if you are to do nothing in the way of throwing an impediment in his way, why is this Con- vention assembled? Your white men are voting now. If you are not to disfranchise our black men, why are we here? You need do nothing to enfranchise your white men. We grant to you in our plan everything you say is efficient for the purpose of re-enfranchising your white men. Why not put something there that will be sufficient for us and for our salvation? It is, gentlemen, a difference only in degree. It is a difference only in time of duration. Gentlemen, that difference in degree and that difference in time, is all the difference between a remedy and what is not a remedy. In two years from the time of the adoption of your plan, there will be nothing between the negro and the ballot-box, except merely the requirement as to reading and writing. There is nothing to-day between the negro and the ballot-box, according to your plan, except reading and writing. That we tell you does not keep him away. We ask you DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 3975 to strengthen this; we ask you to give us another impediment. We tell you what we will take. We do not demand property, though we in the East are willing to con- cede it, because we will concede anything for the freedom and emancipation of our people. We will not ask property of you, because we know it will bear hard upon your people beyond the mountain. We will not ask the classification idea of you, because you tell us it will bear hard upon your people beyond the mountains. But we ask something — we ask you to strengthen your plan; we ask you to give us something in addition, and something that will be a disqualifler for suffrage. You tell us that you will take the principle of the "understanding clause" for your own benefit, but you deny it to us for our salvation. Is that just and brotherly, gentlemen of the conference. Is that a recognition by you in a fraternal spirit of the burden that is upon us? I ask you to pause and to think in your hearts of what you are doing to this people east of the Blue Ridge Mountains. They want something to come out of this Convention. They are making to you a Macedonian cry for help. Will you hear it or will you remain deaf to their entreaties? Why do you reject the under- standing prerequisite after two years? Do you consider it fraudulent? If so, why do you adopt it for two years? How can you defend your position when you go before the people of Virginia stamping "fraudulent' upon your own device? How can you plead guilty to that charge and protect j^ourselves in debates on this quetion? Hov/ can you ask it as a temporary expedient, and then throw it away, because you say it is fraudulent? Rise up and defend the morality of that proposition gentlemen, by whatever argument you can! You plead guilty to the charge; can you defend it after your plea of guilty? In which attitude will you be worse off before the people of this State, in demanding and endorsing that principle for the purpose of getting what you want and in the same breath branding it as fraudulent, and casting it away at the end of two years, or in getting up before the people and saying that w^e have put this in our Constitution as a just, sound, and righteous principle for the purpose of emanci- pating the white race of the State of Virginia now and forever! Which is the greatest and strongest position? — to use it as long as you find it convenient and then to brand it as fraud and cast it away or to stand up and say to all the world that, under the curse of the Fifteenth amendment, in this only could we find the way to emancipate the white people of the State, and we justify it on the ground that it is sound in prin- ciple and is necessary for that high purpose. Can you say to yourselves, to your own consciences, and in your own hearts that this thing is just and right for the purpose of bringing into the ballot-box the white man — doing what is necessary for your own country, and not just and right for the purpose of doing what is necessary for ours. But, gentlemen this understanding clause is not the horrible thing that it is painted to be. In the first place, it liberates the ballot-box in Virginia; under it there is no further reason or opportunity for fraud at the ballot-box in this State. By purging your electorate and making it, to all intents and purposes, an Anglo- Saxon electorate, you liberate the honest heart of the people of Virginia to demand honesty in elections. Heretofore they had to listen, with more or less toleration, to the suggestion that fraud was necessary in order to preserve their civilization; but, when you have taken the black man off the registration book, then there is no reason why the pure heart of Virginia (and I believe that in hope, in aspiration, and in purpose it is still pure), there is no reason any longer why this people cannot rise up in its majesty and in its glory, and demand absolute purity in elections; and it will do it. Not only will the people demand it, but in this very article of the Constitution there is a guarantee that elections shall be honest, for the reason that the article goes on to provide that here- after the ballot-box shall, during elections, be kept in public view, that the ballots shall not be either convassed or counted in secret, and that the Legislature must sup- plement this article by everything that is necessary to insure the freedom and purity 2976 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. of elections in this State. The only chance for honesty in elections in Virginia is through the gateway of this very proposition. That is the only way of removing the negro from the suffrage, and there can never be either honesty or freedom in elections until he is out of the way. It is either thus or force, and all that force implies. The very thing that we are asking of you is to enable our people in the black belt of Vir- ginia to be able to realize their aspirations in favor of honesty of elections. But, more than that. Under the plan of the majority the proper administration of this clause is put in the hands of this Convention during all of the time that it will be in effective operation, in active operation. Under the suggestion that the majority makes, you by ordinance are to appoint the registration boards that are to register the whole present voting population of the State, thus enabling you, gentlemen, to choose the men who will pass upon the qualification of the voters of Virginia during all the time that the present voting population is in process of registration. The administration of the law will thus be, during all that time, exactly what you want it to be. What does it amount to to leave the understanding clause in the Con- stitution after that time? When the two years were over, during which you are to have charge of this registration, when the two years during which the understanding clause is to be in active operation are over, then there will be nothing left to do in the matter of registration except to take care annually as the years come of the annual increment to the population. Our understanding clause will be at work during the two years that your understanding clause is in operation; and, when your understand- ing clause expires by limitation, ours will have expired as an active agency by reason of the fact that its work will have been done on the present population. What then, in our judgment, is the advantage of leaving it in the Constitution? It should be retained in the Constitution as an impediment to the objectionable voter. But there is another consideration, gentlemen, which is controlling in this matter; it is that, inasmuch as the ballot-box will have been set free, inasmuch as there is to be honesty hereafter, by reason of the purpose of the people and the requirements of the Constitution, in all elections, then, if there is anything objectionable about this clause, that objectionable feature is transferred from the ballot-box to the registration book. And there is a vast difference between these two propositions. Suppose fraud to be perpetrated in the election. In the first place, it is secret, because the man on whom it is perpetrated never knows v/hen he loses his ballot; it goes into the ballot- box, and what becomes of his special ballot is something that no man can ever know. He does not know when he is defrauded. And, in the second place, when a fraud is committed at the ballot-box, its result is immediate. There is then, no adequate opportunity for its corrrection. The voter who is defrauded at the ballot-box does not realize it, and does not become an agency for its detection, its punishment, and its rectification. Being immediate in its character, there is no adequate opportunity for its correction. But, suppose, on the other hand, that a fraud is committed at the registration (it is proposed to make that registration at least four months before the flection), then the man who is denied registration knows it at the very minute and on the very spot. He knows then and there that he is wronged; and, under the majority plan, we throw open the courts of this State and put at his command the poYvers of this Commonwealth for its correction in time for him to enjoy and to ezerciBe the right of suffrage. Where then is the opportunity for the perpetration of fraud cr for the doing of wrong to the voter in the registration?^ If any wrong is done to him then, the thing is done to him in his very teeth and with his eyes open; he is served with notice of the wrong at the time of its perpetration, and is given four months' opportunity and the services of the judges of this Commonwealth for his protection. The situation, gentlemen, is a vastly different situation in the two cases supposed. Under our plan, I repeat that there will be a liberation of the ballot-box, and I say again, that there will be liberation of the honest purpose and heart of Virginia 10 demand and insure purity in elections now and forever. DEBATES OE THE COXSTITUTIOXAL COXYE^TIOX OE VIEGIXIA. 29rr The plan of the majority of the committee makes, in addition to the prerequisites of residence and age, the payment of a poll tax of $1.50 for theTprece'ding year, also a prerequisite, in every case except one, and that is in the case of any person who has served in time of war in the army or navy of the United States, or of the Con- federate States, or of any State of the United States. In addition to that, a voter must comply with one or the other of these three requirements — namely, he must have served in time of war in the army or navy of the United States, or of the Confederate States, or of some State of the United States, or, as an alternative to that, he or his v/ife must be sufficiently indentified with the community by the payment of as much as $1 in taxes on property owned by and assessed against him or her, the theory of that being that any one so situated towards the community has in that very fact a guarantee of his substantial interest in and identification with the community; or as a further alternative, he must be a person who, if physically able, has been engaged or employed in some lawful occupation for at least one-third of the previous twelve months, and who can give a reasonable explana- tion of the general nature of the duties of the various officers for whom he may be entitled at any time to vote. The voter is not required to comply with all of these qualifications; it is sufficient if he complies with any one of them; and these qualifica- tions remain; without addition, until the 1st day of January, 1904, except that no poll tax is payable for any election which o<;curs prior to the 1st of January, 1903. The theory of this last exemption, or rather, the theory on which the payment of this poll tax is postponed for one year, is that during that year it may be that this Constitution will be submitted to the people, or, if not, there w^ill, of course, be important elections of another kind, and, inasmuch as the payment of this poll tax must be six months in advance, it cannot be expected that the great mass of the Virginia people will become educated up to this requirement in less time than one year after this Constitution goes into effect. It was therefore considered v/ise that the time for the beginning of this poll tax should be postponed for one year. All persons registered prior to January 1, 1904, become lifetime voters. After the 1st day of January, 1904, there is super-added to the requirements which I have already mentioned the requirement that every person who shall register after that time shall make out his application for registration in his own handwriting, according to such form as the law may prescribe, and shall also make out and deposit without assistance his ballot at the election. By these provisions two things are attempted to be accomplished. The first is to throw some additional obstacle in the way of the negro who shall attempt to vote. But the second and most important is that, in the event this understanding clause were to be administered by a party hostile to white domination and partial to negro suffrage, there vvould still remain between the negro and the ballot-box every impediment which is offered at first by the minority plan — to-wit, the requirement that the voter shall make out his application for registration in his own handwriting, and shall make out and deposit his ballot without assistance. A suggestion has been made to me, Mr. Chairman, by one of the Democratic members of this Convention, about which I have had no opportunity to confer with those gentlemen who signed the majority report, nor, in fact, with any member of the committee, that it would be well to strengthen the plan after the 1st day of January, 1904, by adding this of some similar provision: That any person who has offered for registration at any time and has been rejected shall not offer again for a prescribed time, say, five years. The committee considered this proposition to make an application for registration and a ruling upon it exclusive, as well as inclusive, for all time— that is to say, that when a man prior to the 1st day of January, 1904, was accepted for registration, he should remain a lifetime voter, and if he' was refused registration he should be forever excluded from registration. The first part of that proposition was accepted by the committee, and is contained in this report. The man, who, prior to the 1st day of January, 1904, does register, remains then a lifetime voter, unless disqualified by some other requirement of the 297i DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Constitution; the matter of his registration has then been passed upon and passed upon finally in his favor; but, as to making it exclusive forever, it was thought that that would produce dissatisfaction among those men who, after being once rejected, should make themselves worthy voters, if for all their lives they were disfranchised! even though they had acquired the necessary qualifications. But the suggestion that 1" have alluded to is a compromise between these two propositions. It strikes me individually with favor. As I say, I do not know what the members of the committee would do about it, but it is at least worthy of our best consideration. It serves to strengthen this plan at a point where we have always believed it to be weak, and that is, if the administration of the understanding clause should get into the hands of a party, who would undertake to admit negroes to the suffrage by wholesale and contrary to the terms of the requirements, then there should be some- thing substantial and efficient still left between the negro and the ballot-box. All that there would be interposed between the negro and the ballot-box in that case, according to the plan as written, are two educational requirements. This suggestion, which comes from, one of the gentlemen sitting now within my hearing, seems to interpose an additional obstacle, and strikes me personally with great favor. Then the majority plan goes on and provides that the administration of this suffrage clause shall be in the hands of this Convention until the whole of the present voting population of Virginia has had two years opportunity to be registered. In other words, it provides that the commissioners of registration for that length of time shall be appointed by ordinance of this convention, thus giving to the Convention its own guarantee as to the propriety and the justice of the administration of this administrative clause until all the people of Virginia, who are now voters, have had an opportunity to register. We have felt that the motives of the members of this Conven- tion are pure and high; that in this provision, even if standing alone, there would be a guarantee, satisfactory to every one of them, that his ideal of the method of administering this provision shall be carried out, for it would be administered by men of his own selection. We have provided further, that, if any man is refused registration, he shall have, by virtue of the Constitution, an immediate appeal to the purest tribunal that exists in the State of Virginia — to-wit., the courts of the State, and that the appeal shall lie, nor only in term time, but in vacation. And we have provided further that the treasurer of each county shall return to the Auditor of Public Accounts five months before any election a list verified by his oath of the persons who have paid the capitation tax as long as six months before the election; and that a copy of that certificate shall be sent to the judges of election, and shall be proof conclusive as to the payment of this tax, meanwhile an opportunity having been provided for the tax-payer to have this list corrected if he should have been improperly omitted. And then we have provided that election sliall never be in secret in the State of Virginia; that the ballot-box shall remain always, during an election, in sight of the voter, and that the hand of no judge of election shall invade it, until he is surrounded by witnesses, and that all votes are to be not only counted, but canvassed in public. On the other hand, the minority plan throws between the ballot-box and the voter the capitation tax just as we do, except that it is by them made cumulative; they providing that the payment of it for one year is not sufficient, if there are other years in arrear, and requiring the accumulations of the capitation tax to be paid. They let the first two classes vote just as we do, and in addition establish a class of those who can read any article of the Constitution of the State of Virginia, or who can understand and explain it when read to them, making it possible from the start for every person in Virginia who can read to become a voter, and adding as an alternative an understanding clause, to remain in force until all the present voters in Virginia have had an opportunity to register. This opportunity is the same that we give them. DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE VIRGIXIA. 29T9 but ^^-e safeguard it by the registration to be made under the authority of this Con- vention itself, in which respect we differ from the minority plan. I have discussed before you, Mr. Chairman and gentlemen, whether that minority plan is sufficient. I shall not repeat that discussion, but there was one item of the plan to which I have heretofore paid no attention, and that is the matter of the poll tax. Many members of the committee, Mr. Chairman, look with apprehension upon this requirement. They feel that it is impossible to forecast the result of it. It is no longer a requirement of the prepayment of a poll tax up to the day of election, but the poll tax must be paid six months in advance, which requires the payment to be made before any of the enthusiasm or interest in the individual election has been aroused. "^Tiether that will strike harder on the white suffrage than on the black we do not know, but we know this, that there is danger of it, and we believe further that, if it is done, and the prepayment of the poll tax be made cumulative, if the arrears of the poll tax are piled up upon the white men of the State, it may become a most serious sore upon the body politic, and the source of unending agitation and unending dissatisfaction. We know further that it is characteristic of the negro race to value his suffrage in a different way, if not to a greater extent, than the white man regards his. The white man regards his suffrage as a right; the negro regards his suffrage as a privi- lege; and the negro will do a great deal to preserve it that the white man will be listless about. Evidence has come before this committee from various portions of this Commonwealth that the requirement of a pell tax prerequisite will be, at best, in those communities a hardship upon the white race. There are some portions of the State of Virginia in which ready money is handled to a larger extent by the negroes than by the white people. The negroes are the small wage-earners of the country; they are the people that in many communities receive the cash. They are section hands upon the railroads; they are day laborers upon the farms; they are workers in the fac- tories in the city; they are people who have ready money from day to day; and the report comes to us from large, and from diversified, sections of this State that in many of these communities it will be an exceedingly problematic matter as to whether the poll tax will not strike harder upon the white race six months in advance than it will upon the negro. There is another consideration which controls us to a certain extent in our view about this poll tax, and it is that the negro race is organized from one end of this State to the other in a way that is impossible among the white race. They are organized everywhere and controlled everywhere through the power of their church. You can give notice of anything that is to happen to-morrow night in almost any county in this Commonwealth, and it will before that time, be known from one end of the county to the other by the negroes. They can communicate with each other almost by telegraphy — wireless telegraphy, as the gentleman from Appomattox suggests — and it will be an easy thing, when the negro realizes that there is nothing except the poll tax between him and the ballot-box for the churches, to organize that race six months in advance, and, we fear, to make the negroes pay the poll tax in larger proportion than the white people will. So that this question of poll tax is not at all free from difficulty. The committee is unanimonus however (with the exception of the gentleman from Pulaski, who makes it sufficient as to the present voters of the State), in declaring that the prepayment of a poll tax alone is not sufficient to solve the suffrage problem. We think there is serious objection to making it cumulative. We think that the result is problematic upon the white vote of using it at all six months in advance, and we are not willing to depend upon that and that alone, for the reason that we do not know where it will strike nor what its effect will be; but we know this, we know that it has been in force in the State of Mississippi; we Imow that the white voters in that State number somewhere from 130.000 to 150,000, at the very least, and we know that in presidential elections, in the State of Mississippi, it is impossible to get more than DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 59,000 to the polls. We feel that this falling off in the vote may be brought about partly at least by this poll tax requirement. Mr. Portlock: How about Tennessee? Mr. Thorn: I don't know about Tennessee. I have tried to find out, but can't get the information. Now, gentlemen, these are the requirements of these two bills. I was discussing last night at the hour of adjournment the understanding clause as contained in them. I had called the attention of the conference to the fact that the understanding clause, as contained in our bill, is in the first place, efficient, I gave the reasons and invited attention to the fact that this conference has the guarantee implied by the signatures of those members of the Suffrage Committee who come from the sections most nearly interested in and most closely affected by the problem. I then called attention to the fact, that by this majority report the ballot- box is liberated from fraud; that this is done first by the purification of the electorate of the State; that, when you once remove the negro from the elec- torate of the State, the honest heart of the people will demand honesty in elections. It will be no longer cowed by the necessity to preserve their civilization. The one and the only thing which could possibly operate to make the people of Virginia condone fraud at the ballot-box will have been removed; and to say that we would not then have honest elections would be to question the honesty of purpose and the honesty of aspiration of our people. Honesty in elections is further guaranteed by the provisions of this bill for the publicity of all elections, and by a requirement that the Legislature shall pass all necessary laws to carry this provision into effect. Mr. R. Walton Moore: How do you contemplate that the ignorant voter who registers prior to January 1, 1904, shall be assisted in preparing his ballot? The plan, if I understand, does not touch that question. I want to ask for your view. Mr. Thorn: The plan, I think, does touch it. I think there is an express pro- vision on the subject; but, whether it does or not, he is to have a person of his own selection. I want now to discuss again for a few moments the vast difference that there is between a fraudulent election and any impropriety or partiality possible under this law in the matter of registration. A fraudulent election, as I attempt then to show, has this inherent vice, so far as discovery is concerned, that the man who deposits his ballot does not know whether he has been defrauded or not. There is nothing in the conditions which surround him when voting to give him notice that he is defrauded. Not knowing that he is defrauded, he does not become an active agent for the pur- pose of remedying the fraud; whereas, any person wronged in registration, is to his face denied the right to register, and knows it and knows it, too, long enough in advance to apply the remedy of an appeal. He cannot be defrauded; he cannot be defrauded without notice and knowledge. He has the notice served upon him on the spot, and, when it is served upon him, then the laws of this State throw open the doors of its courts for his protection. Now, in that, gentlemen, is a vast difference, a vast distinction. It insures to every man a vote if he wants it, and if he is worthy of it. Whatever in the way of obstacle is thrown in his way is thrown in it so far in advance that he can overcome it if he wants to, and that fact will have the effect of enabling the people of this State to see that the election itself shall be free from wrong. It will enable us once more to be honest in the matter of elections, and will remove from our people the reproach, as well as the degradation, of these fraudulent practices, whereas under the plan of the minority, that can never be accomplished. The plan of the minority condemns our people to a continuation of these methods; it leaves the negro in politics on the registration books as an efficient factor; it puts 69,000 of him, or 50 per cent, of the total number, on the registration books the morning after the adoption of this Constitution. It goes on with accelerated speed, and puts the balance of him on the registration books DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE VIRGIXIA. .2981 T^-ithin ten years; and, if it be true that the fact of the negro's presence in the elec- torate is a sufficient scarce-crow to the people in Virginia to cause them to engage in and to defend these evil practices, then that condition remains, without remedy under the minority plan. The hope that we entertain for fairness of elections is to get rid of the negro, to purify the electorate. I am hopeless of it if he remains as an efficient factor in our electorate after this Convention is dissolved — Mr. Hun ton: In those figures you leave out the capitation tax entirely? Mr. Thorn: Yes, sir. 3,Ir. Kunton: What per cent, of that vote do you believe the capitation tax will take off? Mr. Thom: Perhaps about the same proportion of the negro as of the white; I am afraid of it. Mr. Glass: Could I interrupt my friend to ask him if it is not a fact that there must be deducted from the poll tax application, amongst the whites, every person vrho has served in the army of the United States or Confederate States, or any State of the Union. Mr. Thom: Yes, but there are very few of them, unfortunately. There are prac- tically none under 50 years of age. If the consideration suggsted amounts to anything in respect to the comparative numbers of the whites and blacks who ma.Y participate in the suffrage, it leaves still the question unsolved, for it will affect merely the matter of majorities. It does not remove the problem; it leaves it still a sore upon us. It leaves us in the condition that whenever a man steps out of the ranks of his party, asserts his independence and his manhood, and claims the right to think and to act as he sees best upon economic questions before the country — it leaves him still in the position where he can be pointed at by the power and forces that are surrounding him, and told to get back into the ranks, for fear that the vote of that black man stand- ing over there will assail his domestic institutions. There never has been a time in my section of the State, I don't believe there has ever been a time in any section of the State within thirty j^ears, when there has been a possibility of political independ- ence; and no people can be great, no people can remain good, unless there is absolute independence of thought and of action to every man to serve God and his county according to his own views and accordng to his own conscience, I saj' no people can remain great; and I point to Virginia and ask, what has become of her greatness? I sajr no people can remain good; and I point to Virginia and ask, to what low estate has she fallen in the matter of frauds in elections? I ask what is the cause of it; and I find it in this verj- fact of mixed suffrage, which the proposition of the minority is to leave still upon us in the black countr3\ Gentlemen, my plea is for the liberties of my people, for liberty to be great, and for liberty to be good! I desire to call your attention to another thing, and that is to the fact, that, if there is anj^thing objectionable in the administraton of the understanding clause, it lasts as long and it extends as far for all practical purposes under the minority plan as it does under the majority plan. It lasts until the present electorate of the State of Virginia is enrolled under both plans; and, while then it ceases under the minority plan, its work, at the same time, ceases as an active factor under our plan, because after the present electorate is once more registered, it will as continued under our plan, operate only on the annual increment arising from persons coming of age and from the immigration to the State. Could we stop it after two years? Could we abandon it then? If we did ever3^ man that had been excluded under it during these two years, Vvould make a mad rush and get into the suffrage at the expiration of that time, and then there would be nothing between him and the ballot-box except this slender educational provision and the poll tax. We are obliged to keep it. We are obliged to keep it in order that it may operate in terrorem for the future, as we think it will have been efficient in the past. If we throw it away, if we stop it at the expira- tion of two years, why, the whole scheme will crumble into dust, the whole efficiency 2dS2 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. of the plan will be ruined, the whole opportunity of liberating this people will be gone. Ex necessitate rei if it is to be the guardian of the suffrage, it should be its guardian not only for two years, but as long as the danger to it remains. There is but one hope, I say, there is but one hope of getting rid of it, and that is the returning sense of justice of the American people, when the Fifteenth amendment will be repealed and the word "white" can be written into the Constitution; for you, gentlemen, must remember that there is one other thing on which this committee is unanimous about, and that is that there can be no plan of suffrage that is not based, some more and some less, but all in a greater or less degree, on some administrative expedient. Gen- tlemen of the minority come before you with an administrative expedient. Gentlemen of the majority come before you with an administrative expedient. They are unani- mous in bringing it to you ; they differ only in the kind they bring. We bring you one which we label as efficient to save our people, and we ask you this, which is better for the hope and happiness of our children — to let them remain in the filth of the present election methods, or to take this administrative clause to free them from it? What is the clause we present? We present this test of suffrage: The man whO' votes for one of the officers of this State shall know, in a general way, what that ofl!icer is intended to do. Is he or is he not a proper voter if he does not know that? What is required of a man authorized to choose an agent? The requirement is that the man shall know what that agent has to do; and, if he does not know what the agent has to do, he is not fit to choose liim. In other words, this understanding clause puts its finger directly on the point in the matter of suffrage. It saj^s to the voter, do you know what the man has to do that you say shall do it for Virginia? If you do not, you are excluded from the suffrage; if you do, you are admitted to the suffrage. Mr. Portlock: One question strikes me very seriously. It is how far any man knows the duties of an officer for which he is voting, and how far this provision is intended to extend in that direction; how far even the candidate himself knows the duties of his place? That is to my mind a very serious matter, and I would like to have you consider it. Mr. Thorn: If they do not both know in a general way, one ought not to be a candidate and the other ought not to choose him. It is not intended that there shall be, any minute knowledge about the question; it is intended that the voter shall have general information, reasonable information, as to the general nature of the duties. For Instance, if he is going to vote for the clerk of a court, he knows generally what the nature of that man's duties are. If he is going to vote for a constable, he will know generally v/hat those duties are; but it is not intended that the voter shall possess a minute knowledge of all the duties of the office, it is to be reasonable knowledge of the general nature of the duties, and this is expressed in the article. Mr. Harrison: I would like to ask the gentlemen how that clause protects the white vote. Why is it that administrative clause cannot be turned against the white vote of this State? Mr. Thorn: There are two reasons. The first is, the men who administer it are white men, and will be friendly to the white vote; and the second is, that, if this is not true, there is an absolute guarantee that men holding as high and as exalted a position, as my friend who asked this question, Judge of the Circuit Court, shall be at the service of that white vote, and say whether he had been improperly excluded. The clause provides that the circuit judges of this State shall at the call of that white voter say whether or not he has been improperly excluded. Mr. Harrison: I would like to ask the gentleman if he thinks the judiciary of the State ought to be brought into that matter and virtually to be made registrars of the State? He brings the judiciary into partisan politics of the State, you might say. Mr. Thom: I think that my friend signed the minority report. That does the same thing. Mr. Harrison: That is temporary. That lasts for one year; but there is a DEBATES OF THE CON-STITUTIOXAL CONVENTION OF VIRGINIA. 2983 Clause that may be turned against the white voters of the State, and by continuing it for a year or forever, you might say, you bring the judiciary virtually into partisan politics of the State. Mr. Thorn: It is unfortunate to bring the judiciary of this State into touch with political matters at all, but if you don't do that, what are you going to do? Suppose you alloY/ your Governor to appoint the boards. He becomes then what no Governor will want to be and what the people of Virginia will never w^ant their Governor to be — at the head of the most powerful machine, political machine, that could possibly be established. Suppose you leave it to agents appointed by the Legislature, then there would go up from one end of this State to the other the same cry against a public scandal that is going up to-day and that called this Convention into existence. There is nothing else to do. There is no other tribunal to decide these questions but a judicial tribunal, for they are judicial questions. Mr, Hunton: I dishke to interrupt you, but the suggestion of my friend is one of the horrors to my mind; you answer that there is nothing else, if one that makes us pause. Hasn't there been a suggestion in your own argument that might possibly meet it? I understand from your argument that you say the temporary understanding clause of two years is really v/hat does the work, in both schemes, and that the neces- sity for retaining a permanent understanding clause was because, at the end of that two years, all of the voters who had been excluded under it would pour into the regis- tration, after the temporary understanding clause passed away. That was your argument just now? Now, you have also said that, to exclude the voter for five years irom an attempt to register again, would be a great strengthening to this plan. Why would it not do to make the re-election at registration a permanent matter, and never let the rejected applicant apply again, relieve the judiciary of the horrors that have been pointed out by my friend? It seems to me that might be a bridge to bring together these differing members of this committee on the suffrage. Mr. Daniel: Do you mean to say that if a man is uneducated to-day that he should be cut off for life from ever being a voter? Mr. Hunton: I would infinitely rather do that than to put the judiciary of the State into the mire of election — Mr. Green: Hasn't the judiciary been in it ever since the war? Is there any State in the world where the judiciary isn't in it? Mr. Robertson: We have pretty tough judges on the bench also. Mr. Hunton: I don't think the circuit judges have been in it altogether, sir. Mr. Thorn: That suggestion made by my friend from Fauquier is one that has received very earnest attention on the part of the Committee on Suffrage. It has been agitated by some, it has been thoroughly considered, and it has been rejected for this reason, that in every tv/enty years the electorate renev/s itself entirely, and that during that twenty years the process of renewal is progressing so fast that you will be dealing only temporarily with the problem, even if you prevent those who have once been rejected from applying again. The future will not take care of itself, because the electorate is constantly changing, and is changing so rapidly that in a few years the problem will not be to purge the present electorate, but to keep pure the incoming electorate Mr. Flood: I would like to ask the gentleman if the idea of the delegate from Fauquier was carried out, if there would not be some tribunal during those two years to which the voter could appeal, and if the only tribunal is not the courts? Mr. Hunton: Still it would be temporary. Mr. R. Walton Moore: I am always sorry to differ from my friend from Fauquier, but, if his suggestion were carried out, would not the constitutionality of the plan be greatly weakened. Mr. Thorn: I don't think it would be as strong a plan as ours from a constitu- 2984 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. tional standpoint. But, outside of that, gentlemen, even if this be objectionable, even if the injection of the judiciary into the matter is objectionable (and I think it is — T have never thought otherwise), it is not so objectionable to me as a continuation of the status in which we find the population of the State of Virginia to-day and the question is between a continuation of this condition and permitting the courts to review the decision of the registration officers. Now, which will you take? Which will you take? Will you let your judiciary decide political questions, or will you let your children grow up in an atmosphere that is reeking with fraud and poisoning their honest natures every day of their lives? Will you take the chance of your judiciary falling somewhat from its high estate, if you think that may be a possibility, or will you make it sure that not only the judiciary, but the whole population of the State of Virginia, shall be poisoned and made fraudulent forever? Now that is the question. If there can be any other tribunal, I would welcome it. Mr. Meredith: I am groping in this matter for light. I am sorry to interrupt you. I would likci to ask you whether there is anything in this suggestion or whether it was considered by your committee, to get rid of the objectionable feature of putting an absolutely permanent understanding clause in the Constitution? Would it be feasible to specify that it should last for a certain time, and then let the Legislature abolish it, with power to reimpose it if necessary? Mr. Thorn: That was suggested, but it would always leave open the question of the control of the I^egislature. At any time the Legislature mJght in a few years be controlled in such a way as to destroy the very suffrage restriction which we are not finding it essential to impose. Gentlemen, the solution we offer is in itself unobjectionable; in itself it is ideal. I wish to read the estim^ate of it entertained by the Now York Evening Post: " The scheme by which it is expected to keep most negroes frora the ballot-box (referring to our majority plan) is the provision that any man who is not an ex-soldier or a tax- payer, in order to vote, must, v/hen he offers to register, be a.ble to give a reasonable explanation of the general nature of the duties of the various officers for whom he may at any time, under the laws then existing, be entitled to vote; and, if physically able, shall have indicated his substantial attachment to and identification with the State, by having been regularly employed or engaged in a lawful trade, profession, business, call- ing, v/ork, oir service, for at least one-fourth of the year next preceding tliat in which he' shall offer to vote. Any State would be benefited by an impartial application of the principle^ here embodied." Then it goes on and states the objections to it, which are patent to us all, and which we are now discussing. But in itself the suggested test is ideal. No man ought to be allowed to vote who does not know the general nature of the duties of the person for whom he is casting his ballot. Now, it is said, but you may under that provision impose such an examination as you v/111 unjustly exclude an applicant. So you may, under an examination under the Constitution of the United States or the State of Vir- ginia. You may ask catch questions about them, as you can ask catch questions about the duties of an office. You may ask questions which none of us can answer under either. But, gentlemen, we must have some test. The test here is an ideal one. It can be reasonably and honestly administered, and will be efficient; and no man need be de- prived of his suffrage; because, in addition to the judges of registration, he can go to the judges of the Circuit Courts and have his competency passed on. Mr. Meredith: What would be the effect if the 'first time this law went before the people it should be a single congressional election? Wouldn't it allow nearly every voter in the State? Mr. Thorn: No, sir. The: voter is not registered for any special election; he is registered for all elections, and he has to pass an examination on any ofilce about which he m.ay be questioned, from President down to Justice of the Peace. That is to DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIEGIXIA. 2985 b3 the registration requirement — any or all. The language is, "who may be able to explain, when he offers for registration, the duties of the various officers for whom he may at any time, under the laws existing, be entitled to vote," and it is put in that way to coxer the very matter that has been suggested by my friend from RiciL- mond. Mr. Dunaway. I could perhaps form a guess, as all other gentlemen here can, but I woi^ld like for you to say why the right of appeal is given from the Commissioners of Registration to the Judges? Might not your scheme remain without . that feature which seems to be objc?<;tionable to so many here? Mr. Thom: I think the constitutionality of it is very much strengthened by the appeal; I think the fairness of it is very much strengthened by the appeal. The appeal is given as a guarantee to the white man, and to the worthy man everywhere, that he shall hot be kept out of the suffrage by any partisan board, if the board should be- come partisan. It is done in the interest of honesty in elections and honesty in regis- tration. It is done for the purpose of making the plan invulnerable from any stand- point of constitutional objection. Mr. R. L. Gordon: Wouldn't it be a very easy matter for a sharp negro preacher or a sharp negro lawyer (and there are a great many of them vrho are very smart), who felt a great interest in the question of negro suffrage, to hold schools, and go around and train them up, and teach them enough to go and stand this examination; while the illiterate and ignorant white class would not have the same benefit, because there v.ould not be the same amount of interest felt by the white people who might be willing to instruct them as to the duties and obligations of the diffs^ent officers. The negro is quick at that kind of thing, and would feel a very lively interest in it. That is a difficulty that suggests itself. Mr. Thom: We must run whatever risk is involved in that suggestion. We think that wheh the negro understands that that provision is to be administered by people hostile to his vote; that in addition to that he has to make out his own application for registration : that in addition to that he has to make out his own ballot, without assist- ance, and in addition to that he has to pay the poll-tax, we think that that will keep him from the ballot-box; and, if it will not, we know nothing else practicable that will, and would welcome suggestions on the subject. The people in the black section are willing to take any plan that is efficient. They are not wedded to this. They will make any sacrifice of their preconceived ideas. They will take property, they will take anything: but they have been dr^en to this plan by the white sections of the State of Virginia. Mr. Daniel: There are four hundred and forty-odd thousand voters in Virginia. Under the bill of the majority the whole body of them, with the exception of the soldier and the man who has paid one dollar tax, has got to attend these examinations— the whole body of them now, and the whole body of them in the future. What would be- come of the Circuit courts under the appeals taken, if anybody were disposed to appeal from such an immense mass of people? Mr. Thom: Just what would become of them if he had registered under the pres- ent State laws. Mr. Daniel: But with the small number of Circuit courts and the great mass of people, who would have to go before them, perhaps 350,000— Mr. Thom: We do not expect there will be any such number of appeals as to be the least embarrassing. I want now to call the attention of the gentleman of the conference to this fact, that the objection that is made to this clause is largely an objection exaggerated by ihe verv discussion which we are now having. The principle of an indefinite suffrage qi-lification exists in a more intangible form than they suggested here in two of the >^orthern States of this country. It exists in thei State of Minnesota, where no man is allowed to vote unless he is capable of "enjoying the rights of citizenship," and the power to determine whether he is or not is left to the courts. 188 — Const. Deb. 2986 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Mr. Daniel: As to Indians. Mr. Thorn: That is in the Constitution of Minnesota; and in the Constitution of Vermont a man has to be of " peaceable behavior." We have exaggerated the objec- tion to this administrative clause by the very fact of what we are doing here, of dis- cussing it. I tell you more, and I ask you to listein to this: It has been exaggerated by the very efforts' of the men who come from the black belt to find some remedy of an automatic character. Prom the beginning of this Convention down to the agreement on this report, there was a fight made by the members from the black belt to have an absolutely automatic test of suffrage; and it was thei very desire that they had, com- ing from that section of the country especially abounding in objections to the present system; it was their anxiety, their prayerful hope, that they might find some automatic scheme that would remove the possibility of all administrative clauses forever; their effort to get away from that and to get away from anything except what would act absolutely automatically that has caused this very exaggerated fear of what this clause is going to amount to in actual operation. And why was that hope disappointed? Not because our men in the black belt were not willing to make sacrifices of their white votes in order to get an automatic system. They werd willing to take property, or to take anything, but it was because there came a cry to us from beyond the mountains that we must do nothing to interfere with their white vote. We thought it just, and we thought it right, that we should give them every opportunity to maintain their pres- ent status. In order to do it, v/e had to give up our cherished wish to get an abso- lutely automatic plan. That is the reason that we find ourselves here to-day, advocat- ing a clause with the administrative feature in it. We do it because we do not want to keep our friends from beyond the mountains and in the Valley of Virginia, where they are| not troubled with this problem from hav- ing their white people come to the polls. We are ready to make any sacrifice: we are ready to take anything. Are the white districts of this State ready to do the same? They tell us it is impossible. They tell us it cannot be done. Then, what are we to do? Are v/e to remain under this curse forever? Or are we to accept the best thing that we can get? We do not consider this administration clause half as objectionable as the conditions under which we arq suffering to-day. V/e take it as a choice between the condition which we are in now, and which it is impossible to endure, and the best prospect of relief we can get — in the hope that it will mean for us some relief and some escape and some opportunity to reach again a condition of public purity and high morality in the matter of elections. My friendsi around me kno\w that that is the his- tory of this clause. They know that we men of the black belt have stood as an assault- ing column upon it for three months in the Suffrage Committee. They knovv^ the reason that was given against our suggestions, which was that our plan would strike down tht? v^'hite vote of this State; and we had to respect it. And when we gave them, our brethren beyond the mountains, every opportunity that there was for saving the white voter, when they said that this was their scheme for saving the white vote, and they would take it temporarily for that purpose, wei said to them, we make to you, gentle- men, that concession, but we must have the concession from you of enough to save us in the black country; and the only way that can be suggested is that you concede to us the right to keep that still between the negro and the ballot-box. Now, that is the history of it. That is the history of this trouble. That is the reason you find all of us of the black belt here about-face and advocat- ing an understanding clause. We do it for the salvation of our people, and we do it because we have had to make concessions to the people from the white country in order to save the white vote of this State. Now, I want you to remember that, gentle- men. I want you to remember that that is the explanation of what we are doing. I want you to remember that the people in the black belt cannot see this Convention adjourn and give us no relief. This is their first opportunity for thirty years; this is DEBATES OF THE CONSTITUTIOXAL COXVEXTIOX OF VIKGIXIA. 2987 their last opportunity during this generation. Are we to insist on some other scheme — a scheme which the people from the white country tell us they will reject when it comes to an election; are we to stake our hopes on something that we can never realize? Are we to have an automatic system which they say their people will never be v/iliing to submit to? Are we to entertain for one moment the thought of losing this one opportunity for saving our people? We must have something practicable; we must present a plan that the people of Virginia will give us; and we say, that, if we give to them what theiv" ask of us, in order to save their v/hite people, we can expect their white people to give the same thing to us for the purpose of saving our white people. There the question with them is the problem of saving ths^ suffrage of their white people, and the question with us is the question of saving the destiny of our white people. It is no small issue. The whole hope of Virginia rests upon it; the whole future of this State rests upon it. If we do not get it, v/e are gone forever, so far as this generation goes. It is our one chance. We cannot get what we want, because it v/ill operate unfor- tunately upon our brethren beyond the mountains. Is it fair to deny to us for our people Y^^hat we concede to them for theirs; and ara these little suggestions — perhaps there will be this evil of administration or that evil of administration — are they to be weighed in the balance with the great question of saving the destiny of the 65 per cent, of the white people of the State, who reside east of the Blue Ridge Mountains? Now, gentlemen, that is the question. That is the sole question which must go home to every heart in this audience to-night. That is the question which you must answer to yourselves, because here and now on you rests the responsibility of saving our destiny for ages to come. I trust to God that you will not allow this opportunity to pass from you. It is our only hope. What means these differences from our best friends? What means the fact that after four months we cannot agree? It means that we of the east feel pressing down upon us the great, horrible, burden of this curse, and that they do not feel and cannot feel and cannot realize it, and that we want to get it off of us. Oh, gentlemen, do not press down upon us the mighty blight of this eternal curse! We are asking you for life, for liberty, for the sunlight. Don't say to us that we must go back once more to our wallowing in the mire! Do not tell us that we must return to the filth and darkness of our prison house again! Come and help us! Oh, it v/as an alien hand that put this burden on us; will it be a brother's that comes and takes it away? You have our destiny in your keeping. You can loosen the cords that bind this weight upon us and take* it away if you will. You can unstrap this giant race. We are no degenerate people. Our arm is not shortened that it cannot achieve! Our loins are not weakened that w.( cannot bring forth again the giants of the earth! We are the same people, with the same strength, the same hopes, the same possibilities as we were w^hen we made the history of this nation. Will you unloosen our energies and open for us again the paradise of achievement? If you will, if you do, then, Vir- ginia, with her present equal to her past and with her future well assured in the pur- pose and patriotism of her people, will stand ready, at God's command, with the other States of this Union to lend her aid in the work of developing His plans for the- puri- fying and upbuilding of the people,. Oh, gentlemen. I hope that my eyes m.ay see this consummation! I hope that this new light will break upon my vision! If it comes — when it comes, for I believe it will come — then a spirit of profound thankfulness to God will be heard throughout our borders, and as our people pause for a time from their labors in reverent gratitude, and watch the breaking of the new light, happy prayers will ascend from every heart, and they will realize that this Convention has estab- lished a new Angelus for the nation. (Applause.) These reasons that I gave in the conference for favoring the permanent under- standing clause involved also the question now before this Convention on this amend- 2988 DEBATES OF TPIE CONSTITUTIONAL CONVENTION OF VIRGINIA. ment, which is that the t.anporary understanding clause be stricken out of this article. As I have understood the purpose of this Convention it is not to enfranchise the white citizens of this State, but, by constitutional means, to disfranchise the colored citizens of the State. There is no reason for enfranchising the whites. They aue enfranchised now. If any provision be inserted in the plan of suffrage of the State, the effect of which is only to caifranchise the whites and not to disfranchise the negroes, then, in- deefi, have we done a vain thing, and our mission here is a failure. It is not pretended, even by the advocates of the plan now engaging the attention of this Convention, that the object of the temporary understanding clause is to deal with the negro question at all ; but merely that it shall be used as an instrumentality for enfranchising the whites. I wish it to be understood that the understanding clause, as put into this article, is no concession, either to the interests or to the views of the members of this Convention who represent the intensity and horror of this negro question. If there be nothing else in this article to deal with their afflictions, then why place on the pages of your Consti- tution a provision which does not touch that problem, but merely touches the matter of reinfranchising a race which is already enfranchised, as to every member of it, under existing laws. Mr. Daniel: Why does not this provision touch the probkm in just the same way that the understanding clause in the report of the majority of the committee touches it? Mr. Thorn: In answer to the question of my friend from Campbell I will say this clause extends only until 1904. That is but one year from this time. The permanent understanding clause, to which you allude would exist during the life of this. Constitu- tion. If it be the purpose of this Constitutional Convention to deal with this great negro question for one year, and for one year only, then it does affect the question during that one year in the way that the permanent understanding clause would. But I was not alluding to it in any such relation, because I did not suppose there was a man within the hearing of my voice w^ho would bet content with a remedy which lasted only over two elections in the State of Virginia — namely, the congressional election in the fall of 1902, and the legislative election in the fall of 1903. My feeling vv^as that the importance of the main subject would not permit me to pause in the path of my argu- ment to consider the effect of this understanding clause, which expires within one year after this Constitution will go into effect. I did not suppose there was an advocate anywhere of a constitutional change on the subject, who would be content with a remedy so transient and so short-lived as this temporary understanding clause — a remedy that would leave our people eixactly where they are at the present moment, after the expiration of one brief twelve months. So I say, regarding this short period, covering one election for Congress and one election of the General Asisembly, that there is nothing in this understanding clause which appeals as a measure of re/lief to the country, which I, in part, represent; and that if it is wanted at all, it is wanted by other sections — namely, by the white sections of the State. But those sections are not in ne^sd of it, because their voters are voting to-day. If there be objection to the way in which this clause may be administered, if it is not a proper or efRciemt method of dealing with this problem, why should it be adopted at all, when its only effect can be to maintain existing conditions as to the white vote and leave the great problems that we ard here to solve absolutely untouched? I shall, therefore, vote to strike out this temporary understanding clause. Now, I wish to call the attention of the gentlemen of this Convention to one further point. The answer to the argument that I have heretofore been making, if there is any answer, must he this: That there are other provisions of this Constitution intended to deal with the negro question after 1904. I shall now ask the attention of ths Conven- tion to the question of the value and dfRciency of those provisions applicable after Jan- uary 1, 1904. It isi proposed, after that time, to establish a qualification for suffrage of poll-tax cumulative for three years, and to impose the obligation upon the voter to make DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF YIEGIXIA. 2989 out Ms own application for registration, and, when voting, to make out his own ballot. Let us examine these requirements. First, as to ths^ poll-tax. The efficiency of this cumulative feature of the poll-tax is more apparent than real. It does not require a man when he proposes to vote, to pay as much as S4.50 at that time; but it merely requires that the proposed voter shall have kept up his arrearages of poll-tax for three preceding years. If he has paid them, year by year, he has satisfied the requirements of this cumulative feature. Now, what is the history of the poll-tax in the State of Virginia as to the negro race. The history of that tax is that now, when it is in no way related to the matter of sufi'rage, when there is no such obligation as that put upon the voter in respect to the poll-tax, 64,000 negroes are paying it year by year in this State. Only 126,000 of them are assessed with a poll-tax, and between 50 and 60 per cent, of this number are paying it year by year, and this, too, when it stands absolutely unrelated to the question of suffrage, and when there is no obligation on the negro in respect to it other than the obligation which rests upon every other citizen of the State of Virginia. So I say that when you consider the question of your poll-tax you find that more than 50 per cent, of the negroes are paying it now. TMiat next? The next requirement is the educational feature. Let me examine that. I ask the attention of those gentlemen of the Black Belt who have voted in favor of this proposition, vchile I refer to some of the things that are staring their people in the face. I wish to call th£ attention of this Convention to the fact that neither in the State of ilississippi nor in Louisiana nor in North Carolina, has there ever been a Republican vote for President since the year 1S7G, which amounted to as many as 57,000. I ask that these figures be borne in mind. Ail of the States referred to have held their Con- sticutional Conventions to deal with this question since 1S76. In other words, the problem which 'has called Constitutional Conventions together in the State of Mississippi, in the State of Louisiana, and in the State of South Carolina, was, in each case to deal with a negro vote of less than 57,000. The existence of 57,000 negro voters in those States was, in their judgment, a sufficient menace to their civilization and to the best interests of their people, to require the assembling of Constitutional Conven tions in order that the matter of negro suffrage might be dealt with by new constitu- tional enactments. VTiat is proposed by xhi article that you are now asked to favor in Virginia? It is proposed to put upon your registration books as soon as the year 190-1: comes, a negro vote of at least S4,000. That is a matter susceptible of mathematical demonstration. By the report of the minority of the committee, which I held in my hand, it is shown that in the year 1900 there were in A'irginia within a fraction of 70.000 negTo voters, who. by the United States Census, were literate. That fact was of such a large and controlling character that my friend from Lynchburg (Mr. Glass") made a change in the minority plan — and this change is now in his plan — requiring not only an educa- tional qualification, but, in addition thereto, an understanding clause. Ke saw the weight of this argument. He admitted it upon the floor, and. in order to keep from the registration books, on the first registration, thsse 69,000 negroes, he changed the propo sition from an alternative educational and understanding qualification, so as to make it cumulative and to require the persons offering to register to have both the' educa- tional and understanding qualification. But hou- far does cumulative qualification ex- tend? The necessity which drove the gentleman from Lynchburg to change the minority report, that necessity which niade him see that it would never do to have these clauses in the alternative only, is. by the suggestion now before you, made to extend for the brief period of one year, and, as I have said, only until two elections are held in the State of Virginia. I suggest, for your consideration, this proposition: If the presence of 69,000 negro 2990 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIKGINIA. voters is of controlling influence, if it has any substantial significance or importance, then the fact that these men are kept away from the ballot-box for ona brief year only, is absolutely at war with the policy, admitted here to be wise and patriotic, that these mem. of another race should, as far as our constitutional limitations will permit, be kept from the ballot-box in the State of Virginia. I say tiiat it comes to this, that although we are sent into this room to relieve Virginia of this burden, although the destines and happiness of our people di-rpend upon our properly performing that duty, yet we are asked to end our efforts in that regard with the year 1903, and, on the first day of January, 1904, to replace upon the registra- tion books of this State, not only the 69,000 negroes that were literate in 1900, but an additional number, to which I will now call your attention. The census, returns of the United States Government show that illiteracy dis- appeared among the negroes from 1890 to 1900 at the rate of 25 per cent, of the total numbeir, diminishing from 57 per cent., in 1890, to 32 percent, in 1900. That means that, during that period, it diminished at the rate of 2J per cent, a year. Take the four years from 1900 to 1904 and allow for a decrease of illiteracy of 21 per cent, a year, and you will have 10 per cent, greater literacy in the State of Virginia among the negroes in 1904 than you had in thei year 1900. There were 146,000 negroes in 1900. Ten per cent, of that number is 14,600. Add these 14,600 to the 69,000 and a fraction literate in 1900, and you have negro voters that will be placed on your registra- tion books on the first day of January, 1904, amounting to 84,000 in number. We are told, gentlemen, that this will give us a majority in the State of Virginia. We are told that we already have 155,000 white majority, and that when this plan goes into effect v/e will have 195,000 white; majority in the State. Gentlemen, that statement has no meianing to me. That doesn't touch the problem as it presents itself to my mind. We are not here in this Convention for the purpose of establishing and m.aintaining a white majority in the State of Virginia. We are, here for a higher and nobler and more perm.anent purpose. We are here for the purpose of relieving the State of Vir- ginia of this negro race question as a factor in our civilization; and for the purpose of liberating the intelligence of the State of Virginia from the serfdom which has bound it for the last thirty years. Many of us do not look with pride upon what Virginia has done v/ithin the last thirty years. We are tired of having to be' beckoned back to the records and achievements of a century ago, in order to find Virginians doing something in the history of their country for the purpose of advancing the destinies of civilization. We are longing for an opportunity to strike from our arms the shackles which these unnatural conditions have placed upon us. We are anxious for an opportunity to think free and speiak free and act free in the councils of the nation. We da not think there can be any effectual or permanent liberty among the people of this land while the minds of our peiople have upon them shackles which differentiate them from all other think- ing and acting people of this country. We are anxious to open to our young m.en the paths of high statesmanship an,d of true, untrammelled, patriotic action. We know that cannot be done when we have at home a cloud that is shadowing us even to the infinity of darkness, and a problem which is making every white man stand on one side of every question without regard to its merits, and eivery colored man is massed upon the other. We know that there can be no intellectual freedom; that there can be no in- telleictual achievements; that there can be no intellectual greatness among our people, until their minds are liberated and they are able to take their place as full-grown men in the councils of the people of this country. Why is it that we hear of Washington and Jeifferson and Madison and Monroe? It is because the atmosphere which they breathed was an atmosphere in which they could grow; it was an atmosphere in which they could think fearless thoughts; it vv^as an atmosphere in which they could do fear- less deeds, and thereby Virginia gave her sons, the possibility of a normal and intellect- ual expansion which made them the founders of this republic. Let us turn from that DEBATES OE THE COXSIITUTIOXAL COXTEXTIOX OE TIEGIMA. •2991 picture of a hundred years ago and think what we are to-day, TvTiere is the man, with- in the memory- of any one upon this floor, where is the man who, within this generation has been able to contribute anything to the statesmanship of the time? Gentlemen, it is for this freedom and this opportunity that we are yearning. It is to make this opportunity for freedom that we have assembled in this Convention. But, when you leave upon us more than one half of the present negro vote; when you leave upon us more than 80,000 ready to keep up the conditions that are now disturbing us; when you have 84,000 people that can be added to a small contingent of white men to keep us under subjection, intellectually and morally, what solution have you given of cur problem? What help have you brought to our people? How have you made it pos- sible for our sons to grow greater in the land of their birth and more useful in their day and generation? You have not touched the problem. You have left upon us the incubus of this thing, and when we go cut of this hall, having done nothing that will take away these 84,000 votes, we go out with a confession of imbecility and of failure to deal with the problem, and we will be left still enslaved, intellectually and morally, for the future. Gentlemen, entertaining these earnest convictions, not merely as the offspring of temporary consideration, but as the result of the thought of a lifetime, I hope that there is no patriotic man in this Convention that will not realize the sorrow that is filling my heart to-day when I see the high mission of this Convention about to be surrendered, and when I realize that the only hope for Virginia in this generation is gone. The proposition now under consideration is no solution. It stands before us with all the blight and curse upon it of the barren fig-tree of the Scriptures. You may dig around it; you may dung it, but at last the inexorable sentence must be "cut it down: why cumbereth it the ground?" Any proposition that leaves us face to face with more than one-half of the vote of the negroes, any proposition which does not realize the depth, width, and immensity of this problem, but leaves us to the same old battle, which leaves us in the same old conditions, that prevents us from knocking from our arms the shackles which have enslaved us, is to me a horrible confession of weakness and im- becility on the part of our people. Right here I want to thank the representatives of what is familiarly known as the white districts of the State for the sympathy and sup- port which, in the main, they have given to these hopes and aspirations of my oppressed people. If the gentlemen near our homes, if the gentlemen who are most nearly in touch with this problem, had given it the same support that has been given to it by those gentlemen from beyond the mountains we would not have been to-day in the humiliat- ing and hopeless condition which, in m-y judgment, confronts the people of this State. I know that these gentlemen from my own sections have been actuated by as high a purpose, by as patriotic motives as I, myself, have been. I do not believe that they have realized the greatness of this problem. I do not believe that they have known what they are doing. I do not believe for a moment that if they had thought that the problem was such as I think it is, and that this remedy was as ineffi- cient as it appears to me, they would have ever acted as they have acted. But let me say to them that this crisis in our affairs is so great that a blunder at this time is a crime against our people; that a mistaken thought, that a mistaken apprehension of what we need, that a mistaken conception of what we get. is so fraught with woe to the people we represent that no forgiveness can be found for them except in the tri- bunal presided over by that Savior, who, when He was crucified upon the cross, said to His crucifiers: "Father, forgive them; they know not what they do." I cannot but recall, as I stand here, that when that Savior was crucified it was the hands of His own people that nailed Him to the cross; that when Joseph was sold into slavery, it was the hands of his own brothers that created his servitude. My hope and prayer is that the time will not come, in connection with this suffrage matter, when old Virginia, in the mortal hour of her hopes, of her aspirations, and of her destiny, will have to realize that she has received the fatal blow from the hands of her own beloved sons. 2992 DEBATES OF THE COisTSTITUTIOiSTAL CONVENTIOI^ OF VIRGINIA. I have now registered my prote'st against this inefficient proposition, I have never been bent on any particular measure. There has never been a time v^hen I was not willing to accept any efficient solution of this question. But there was one criterion which I felt that I must insist upon so far as my own support should go, and that was, that when Virginia assembled together for the first time in thirty years her represen- tatives in a Constitutional Convention, its members ought to delal effectively and finally, so far as the Constitution of the United States would permit, with this great crime against our civilization and against our destinies. I feel that this has not been done in the, proposition which is presented, and I shall feel in honor bound to register my dissent from the proposition to place any such tem- porizing expedient in the Constitution of the Statei of Virginia. (Applause.) Mr. Robertson: Mr. President and gentlemen of the Convention, I do not believe there is any man on this floor that rises with more regret than I do on this occasion. I recognize as well as any man does the force of a majority and that force which grows out of the differences of friend from friend. There is no man who dislikes to differ with his friend more than I do; but I am placed in the imfortunate position of not only differing from my friend from Norfolk, who has just preceeded me, but also from the distinguished gentleman from Campbell who opened the debate on this oc- casion. While I feel compelled to vote for the amendment offered by the gentleman from Norfolk, I consider it due to myself and to this Convention to state my reasons for doing so. I am not a Republican, and I do not desire to be considered a Repub- lican. I believe that a great many assumptions have been made here — honestly made, because I give to every man credit for the honesty which I claim for myself — with reference to what we came here for. I do not understand that the people of Virginia, when they called together this Convention, told us in specific terms what we were to do. They commissioned us to come here and sit, in Convention assembled, to decide what was for the best and highest interests of this Commonwealth. There was no particular question, whether connected with the suffrage or economical, that we came here to consider. A suggestion was made here the other day which seemed to me to have a great deal of truth in it. It was made by my colleague from Craig. He said that we had been here for ten long months attempting to do an illegal thing by some legal method. I do not believe that the people of Virginia sent us here for any such purpose. I, for one, desire to enter my protest against the representation that the best people of Virginia sanction any such thing as this understanding clause, whether it lasts for a month, six months or a year. It is wrong in principle, and therefore it ought to be spewed out of our mouths. If we cannot get rid of the negro vote except by resorting to such methods as this, I say better, far better, \el us keep the negro vote. I am not going into the history of this question. It is easy to appeal to race prejudice. It does seem to me that the very fact that we recognize that we are the superior race ought to make us hesitate a long time before we decide to do an injustice to the inferior race. So far as I am concerned, throughout my life I have always felt more impelled to be just to the man who is beneath me than to the man who is my equal or my superior. Here we have this poor, dull, docile race of crea- tures, who certainly did not bring themselves here. We excuse ourselves for having them' by saying that somebody else brought tliem to this country. Whoever brought them, our ancestors purchased them.. They used them as slaves. During the terrible conflict of the Civil War we had these negroes, who were then in slavery, and they stayed by our women and children and defended our homes while our men were at the front. That certainly ought to make us hesitate and pause before we resort to doubtful means to get rid of their vote. I do not care to go into the merits of this matter. You can all see it as plainly as I do. Whatever we may say about it, we know perfectly well— and I do not care who hears me say it— that if the negro race did not exist this so-called understanding clause would never have been thought of. Now what does that mean? I do not believe there is any man on this floor who DEBATES OF THE COjSTSTITUTIOJs^AL CO^^VEXTION OF VIEGimA. 2993 himself would be willing to do dirty work for the purpose of keeping negroes off the registration books. You gentlemen know what this m.eans as well as I do. There is no use in trying to disguise it in oratory or by appealing to patriotism. We all know, in the depths of our hearts, whatever our motives may have been, that the reason we have put this understanding clause here at all is that we expect these registrars to favor the white man as against the negro. The gentleman from Norfolk complains of it because he says it has not the word "efficiency" . drawn across it. I intend to vote to strike it out, not because it is not efficient, but because I do not think it ought to be in the Constitution at all. Here is a body of one hundred Virginians in Constitution Convention assembled, and this is the poor, pitful result that we present to the world. The best thing we can do to get around the Fifteenth Amendment is to appoint men in every county who will use favoritism towards the white man as against the black man. There are thousands upon thousands of white men in our mountains who can neither read nor understand this Constitution, whom these gentlemen are willing to have vote, and who would not be eligible to vote under the provisions of this Constitution, if this temporary under- standing clause is properly administered. The very gentlemen who have gotten up on this floor and said that we should have more stringent laws v/ith reference to bribery say, in one breath, " for God's sake do not let us interfere with the exercise of manhood suffrage, and in the next breath they say, " We must have more stringent laws to keep these cattle from being bought. Now, gentlemen, that is all there is to it. I do not want to say anything further about this matter. I do not want to be considered as impugning or attacking the motives of any man who differs from me; but I would consider myself recreant to my duty as a man, I would consider myself recreant to my duty as a citizen, and to my duty to my children and my State if I did not say, in this public way, what I honestly believe about this measure. Gentlemen, although I know that nothing I will say v/ill change one single vote, 1 have said what I say because I want you to understand that I cannot vote for it, that I will not vote for it here now nor anywhere else. (Applause.) Mr. Wysor: Mr. President, the Convention will see that there is qute a difference between the tv/o gentlemen who have just addressed this body (Mr, TEom, of Norfolk, and Judge Robertson, of Roanoke). The gentleman from Norfolk (Mr. Thorn) moves to strike out the understanding clause, because it is temporary. He wants a perma- nent understanding cause. The gentleman from Roanoke (Judge Robertson) wants to strike out the understanding clause because he is against an understanding clause. The gentleman from Norfolk has at last come to substantially the plan I advocated in the Convention for a long time. I believe I originated the idea that a difference should be made between the present voter and the future voter. I wanted to put a capitation tax on the present voter and a capitation tax and an educational qualifica- tion on the future voter, and if the gentleman from Norfolk succeeds in striking out the .understanding clause that object will be accomplished. He v/ill have come sub- stantially to my plan then, which for six or eight months he has declared to be alto- gether inefficient. The gentleman from Norfolk will pardon *me if I say I think he has been very much enamoured of his original plan, which is called the majority plan. That was the plan imposing upon this State a permanent understanding clause a clause that lasts as long as the Constitution lasts, a clause which requires the voters to explain .the duties of every officer for whom they might be called upon to vote, a clause that was capable of the most fraudulent administration, a clause which the people of this Commonwealth repudiate from the mountains to the sea; and yet the gentleman from Norfolk (Mr. Thom) still urges that as the proper plan to be adopted. I stand here to say that the people of his own city do not endorse it, or advocate it. It is true that in the last gubernatorial election the Governor was elected, but his majority would have been larger if that plan had never been offered in the Convention. 2994 DEBATES OF THE CONSTITUTION'AL CONVENTION" OF VIRGINIA. I want to call your attention to the inconsistency of the gentleman from Norfolk city (Mr. Thom). He says he wants the permanent understanding clause, one that will last as long as the Constitution lasts, and that it is the only plan, in his judgment, that is efficient. He stands before this Convention and is unwilling to take the tetoporary understanding clause to relieve his people. If the permanent understanding clause will relieve them altogether, then certainly the temporary understanding clause will relieve them for a while. He describes his people as being in a desperate situation, and yet he will not hold out his hand to give them what he callsi efficient relief, a relief forever, he won't give them any relief. Is not that the positon he takes? Now, let us review this suffrage matter a little while. Three plans were reported by the Suffrage Committee, of which I had the honor to be a member, to the Conven- tion. The gentleman from Norfolk (Mr. Thom) headed the majority of the committee T\ith a permanent understanding clause. The gentleman from Campbell (Mr. Daniel) headed a large minority with a temporary understanding clause, and the gentleman from Pulaski was altogether by himself in his report without any understanding clause. After these reports got to the Convention the Daniel plan was amendeld by Mr. Glass. He made a material amendment to the understanding clause. It then became known as the Glass plan. The understanding clause was copied from the Mississippi Consti- tution. Senator George is said to be its author. All of these different plans were re- ferred to the Democratic conference, where they were discussed. After long discussion the Glass faction, as it might be called, and the Thom faction, as it might be called, adjourned the conference, and got together and appointed a joint committee, and that committee brought into the Convention a plan which was called the compromise plan. It was supporteid by Mr. Thom and his faction. It was supported by Mr. Glass and his faction. In this compromise plan the understanding clause extended to the year 1909. The Daniel plan as am.ended by Mr. Glass had an understanding clause ending in 1903, and in the compromise he extended the period to m.eet the views of the gentleman from Norfolk up to 1909. Mr. Thom: Inasmuch as there is no- record of the proceedings of the conference or of the committee in reference to that compromise plan, except the record that is now being made, I would like to have the gentleman a little more accurate in his statements. Mr. Wysor: I will state it accurately. Mr. Thom: You stated that the compromise plan provided for an understanding clause that would continue until 1909. That compromise plan also, however, contained a provision that in 1908 the Legislature should have the right to submit to the people a question as to whether it should be continued or otherwise. Mr. Wysor: I was just going to state that; you broke in on me right in the middle of a sentence. It had a provision in it that in 1908 the Legislature might submit to the people th^ question as to whether they should continue the understanding clause in force after 1909. I want to explain my position. I have never been in favor of an understanding clause. I think it is due to myself and the gentlemen who voted with me on that occa- sion to explain my position in this regard. Being confronted by what I thought was the greatest evil that could be inflicted upon this State, to-wit: the plan of the gentleman from Norfolk substantially, I made a motion in Convention to limit the operation of the understanding clause until 1904. I do not stand here to say that I am the author of the plan the Conve(ntion has concluded to adopt, but I do say that my amendment was the death blow to the compromise plan of the Thom and Glass factions, and I am glad I in-= flicted it. I have been against an understanding clause all the time. I have made argu- ments against it; but in order to prevent the passage of the compromise plan, which was substantially the permanent understanding clause, it was necessary for me to make that motion. If I had a list of their names at hand, I would be glad to embody in this speech the names of m^y compatriots who joined me in saving the State from the evils of a per- DEBATES OE THE COXSTITUTIOXAL COXYEXTIOX OF VIEGIXIA. 2995 raanent understanding clause; who took the present plan as the lesser of two evils, and prevented the combined Thorn and Glass factions from fastening the compromise plan upon the State, the evils of which would have been beyond calculation. I told the Con- ference that if it would adopt that amendment I would support the plan as amended, and I intend to support it in this Convention and before the p?ople. I am merely stating these facts because I want it to appear exactly how I stood in this matter. Mr. Glass: Mr. President, inasmuch as there appears to be a disposition h:re to tell everything that occurred in the Democratic Conference, in deference, to those gen- tlemen who stood with me in the advocacy of what was known as the Glass plan, I am sure my frie,nd from Pulaski will be willing to admit the accuracy of this statement — that not one of those gentlemen nor myself ever conceded anything to the permanent understanding clause until my plan was loaded down with a property qualification, and it was a choice,, as we conceived, between the property qualification and the permanent understanding clause. Mr. Wysor: Your time to object to what took place In the Democratic conference was when the gentleman from Norfolk (Mr. Thom) asked leave just now to incorporate into the proceedings a speech made by him in the conference, and which it took him three nights to deliver. Purtherm.ore, the conference abrogated the rule of secrecy, and took the aye and nay vote, and allowed the vote to be published. Everything done in the conference was made public througli the paper. Mr. Glass: My friend must not think that I am objecting to anything he said. I am not objecting to anything he has said, but I only want him to say a little more on that line. Mr. Wysor: I say to my friend that his time to object to disclosure of matters done in conference was when the gentlem^an from Norfolk asked leave and obtained it to in- corporate his three nights' speech in the conference in the proceedings of this Con- vention. I made a speech in the conference v/hich took me two nights to deliver, but I was not V7is9 enough to have a stenographer present to take it down, as did the gentle- man from Norfolk. If I had that "speech here I would have it incorporated into the proceedings and printed in the Dispatch, so that it might go down to posterity with the speech of the gentleman from Norfolk. The gentleman from Lynchburg says, that he yielded for fear of a property qualifi- cation. He may have done so; there is no doubt about his yielding; he made a speech in favor of the compromise plan, and therefore against the plan he now advocates along with others and myself; but I don't think there was ever any danger of a property qualification being put into the Constitution. There were a number of men using that as a means to accomplish some other purpose with reference to the suffrage question. It was well understood that members during parliamentary tactics that were taking place in the conference were not at all times voting their real sentiments. Now, hav ing come to that understanding clause under these circumstances I intend to support it in good faith. I want to say to the Convention that if the plan of the gentleman from Norfolk city had been adopted by the Democratic conference, while I cannot say what niy vote would have been, I would not have gotten up in Convention and made a speech against it, because the adoption of it by the Democratic conference would have great weight with me, though I do not consider myself bound by the action of the conference. I never did oppose an understanding clause t)ecause I thought it was unconstitu- tional on its face, but because I thought it might be unfairly administered, and that in its administration it might be held to be unconstitutional; I opposed it because I thought a simpler plan would accomplish the purpose. I thought a capitation tax on the present voter and a capitation tax and an educational qualification for the future voter would accomplish all that was needed in the Black Belt. The gentleman from Norfolk city (Mr. Thom) is mistaken in saying that this plan will not be efficient in cutting off the incompetent vote. Look at it just for one moment. It has first a residential clause of two years in the State, six months in the county, and three 2996 DEBATES OE TlIE CONSTITUTIONAL CONVENTION OE VIRGINIA. months in the precinct, so that the migratory and wandering classes will be excluded. It puts on the permanent roll the soldiers and their sons. It puts on the roll all persons who have $333 worth of property. Then it says that, as there are still a number of people out of the electorate, those people must read and understand any portion of the Constitution or if they cannot read they must be able to give a reason- able explanation of any portion of it when read to them. I want the Convention to understand that up to January 1, 1904. the plan under consideration is, substantially the same as the plan of the gentleman from Norfolk. I want to show you what posi- tion the gentleman from Norfolk city is in. Up to this point the plans are the same; yet he will not take the present plan because it does not in his judgment give com- plete relief. Then we have an educational qualification. The voter has to pay a poll tax, prepare his own application and cast his own ballot. The plan virtually elimi- nates the incompetent from politics. There is no question about it; and yet the the gentleman from Norfolk says he will not support this plan because it is not efficient, and because you do not continue the understanding clause, though it is a plan that is capable of fraudulent administration that might be used against whites as well as against blacks. I say that is the position the gentleman from Norfolk occupies before this body. His argument is that he wants to be liberated intelligently. He says that he is not able to think upon public issues at present on account of the negro vote. Well, I can think. The gentleman from Norfolk reminds me of the old woman who struck a man in the head with a brickbat and when asked why she did it the only explanation she would give for it was that she wanted to " ease her mind." That is the way of the gentleman from Norfolk. He wants to knock Vir- ginia in the head with a permanent understanding clause, and the only reason he gives is that he wants to " erase his mind." (Laughter.) I say that we have faithfully tried to ease his mind. We have given him a plan that will relieve the Black Belt, and we are as satisfied that we have done so as well as we can be about anything not yet actually accomplished. It is patent to every man that the Black Belt will be relieved speedily and the great majority of the men representing the Black Belt in this Convention have voted for this plan. The gentleman from Norfolk and those gentlemen who follow him constitute the minority of the representatives of the Black Belt. I want to say something about the white section. We have made a sacrifice for the Black Belt. I v^ant the Black Belt to be impressed with that fact. We didn't need any understanding clause, and we didn't need anything other than manhood suffrage. We have our people under this under- standing clause for the benefit of the Black Belt. Is not that making a sacrifice for you? I think you ought to appreciate it; that is what we have done, and I say it will relieve you. But nothing will ever get the gentleman from Norfolk away from his own plan. He became enamoured of it, and he is enamoured of it even after it is dead. It is beautiful to him even in deatli. It is his beautiful Annabel Lee, " And neither the angels in heaven above Nor the demons down under the sea Can ever dissever his soul from the soul Of the beautiful Annabel Lee." (Laughter and applause.) Mr. Mcllwaine: Mr. President, I differ very essentialy from both of the under- standing plans. I am thankful that, as we must take one of them., we have not got to take the permanent understanding clause. I regret, excedingiy, sir, that v/e have to take it at all. I have given my reasons in another arena. I intended to have spoken somewhat at length at this time; but if the Convention will allow me to furnish the stenographer with a copy of the address which I made before the confer- ence, and thus enable me to put myself on record I will forbear any further remarks. The remarks of Mr. Mcllwaine, above referred to, are as follows: DEBATES OE THE COXSTITUTIOXAL COXYEXTIOX OF YIEGIXIA. 299: Mr. Chairman: While I feel sure that the views I am about to present will meet with a cordial response from many members of the Convention and from the great mass of intelligent citizens of Virginia, I fear they may arouse the antagonism of gentlemen who have alrea.dy declared themselves hostile to the enactment of principles which I regard essential to the welfare of society and fundamental to the moral, educational and economic progress of the Commonwealth. I desire, therefore, at the beginning of my remarks to assure those v/ho differ with me that the viev%'s I entertain have been arrived at after large observation, careful investigation, and prolonged and profound thought, and to invoke their candid, patient and thoughtful attention to what I have to say. I shall endeavor to be entirely impersonal, and treat each question discussed with absolute fairness. If I err in either respect, it will be from oversight, and not with design. I have no object in appearing before you but the ascertainment and enforce- ment of truth, and to aid in the v/ise and just settlement of the suffrage question. I do not stand here, Mr. Chairman, as a theorist, but as a man of practical affairs, who has had large dealings vrith his fellow-men, and who looks with a keen eye at conditions as they actually exist, and with an earnest desire to see them improved. It will be readily granted by everj- member of the Convention that the purpose which has brought us together is to frame a Constitution adapted to the needs of the people of Virginia — an instrument which when completed and adopted as the organic law of the Commonwealth, shall embody those seminal principles which are fitted in their effective application to promote the welfare of every dweller within our bounds, and to restore and perpetuate the honor and glory of the old State. It will also, doubtless, be conceded, that in order to attain this high object, it is necessary to study the real conditions existing: not in any one locality to the exclusion of others: not merely with reference to one interest without regard for others; not with a narrow and sectional intent, but with a broad, enlightened and patriotic spirit, infused and dominated by an intense and supreme desire for the rehabilitation of our lost fortunes, the reestablishment of our ancient renov>-n, and the placing of our old Commonwealth on an enduring foundation of virtue, intelligence and economic strength. Let me recall your attention. :\Ir. Chairman and gentlemen, to the fact that we are here to legislate in the interest of nearly two millions of people, about two-thirds of whom are of Anglo-Saxon descent: that while with inconsiderable exceptions they are natives of the soil they inhabit and inheritors in common of an honorable history, they differ widely in many respects — some dwelling by the waters of the sea, and others in mountain fastnesses; some inhabiting cities and towns, and others the rural districts; some following agricultural, other pastoral, other mechanical, others mercantile, others professional pursuits, while a large portion of the population live by daily bodily toil. Some are educated and intelligent, others are ignorant and stupid; some are cultured and refined, others are brutal and immoral; some are well- to-do, a few wealthy, others are poor, and the majority possess but small means. Here, then, we have briefly and imperfectly the problem given us for solution. We are to legislate for all these classes, and to meet all these conditions, in such manner that every citizen, of whatever locality or circumstances, may not only receive even- handed justice, but find in the organic law of this State and the civic and political arrangements emanating therefrom incentive and inspiration to elevate his character, enlarge his views of life and improve his economic and social status. Any lower appre- hension of th? work before us is fatally defective, and destructive of the great end to be attained. Keeping steadily in view these high and noble objects in tlie construction of every portion of the instrument we are now framing, we will present to the people of Virginia a Constitution adapted to their needs, and which, in its operation, will prove a benediction to all parts of the Commonwealth. It will readily be gathered from what has now been said that I do not stand here as an advocate of any particular section, or of any sectional restrictive measures in re- 2998 DEBATES OE THE CONSTITUTIONAL CONVENTION OE VIRGINIA. gard to suffrage. Restriction in suffrage is demanded — imperatively demanded — by the exigencies of the situation in the Southside, from which I come, but no less in Tidewater and the Piedmont region and the Valley and the Southwest and Northern Virginia. The need is universal, not only in the country, but in the cities and towns; not only among the blacks, but among the whites, in order to deliver the State from the burden of illi- teracy and poverty and crime, which rests on it as a deadening pall, sapping its ener- gies, corrupting the sources of political and social vitality, and lowering it in the eyes of its own people no less than in the view of those who are without. Since the assembling of this Convention it has been acknowledged again and again by gentlemen from different sections of the State that politics in Virginia are corrupt; that there is a large purchasable element, especially in the white sections; that voters are bought and sold; and that generally there is no assurance that the will of the elec- tors is truly expressed by the election returns. In the contested election case lately ventilated before this Convention you have an object lesson of how things, are not in- frequently managed, not only in this, but in other sections of the Commonwealth. I am informed that in the Ninth Congressional district there has hardly been a national elec- tion in twenty years in which large fraud has not been charged. The same thing is perhaps true, or nearly so, in the Second district, the Ninth being in the extreme west- ern and the Second in the extreme eastern portion of the State, and each to a greater or less extent representing the condition of things throughout the Commonwealth. The Black Belt has no monoply of wickedness — political, social, or civic — but it prevails more or less throughout our borders; and this being true, the remedy to be applied must be adapted to meet conditions and bring about a cure wherever the evil is found. Let us make a more elaborate and thorough diagnosis of the existing state of things, that, understanding the disease, we may know how to adopt remedial agencies. I suppose that there is scarcely a member of this Convention who is not glad that it holds its sittings in our beautiful capital, the city of Richmond, of which we are justly proud, and as we meet its. citizens, and are welcomed into their hospitable homes, and sit with them in their houses of Vvorship, and visit their schools and colleges, and see what a great work is being done in education and charity, we are fain to exclaim: " Surely this is the abode of virture, of intelligence, of religion " and so it is s.een from the point of view most obvious to us, but let it be noted that Richmond, in common with other cities, has another and a darker side, not only a horde of ignorant and corrupt negroes, but no inconsiderable mass of depraved and vicious whites. Go down into the lower parts of the city, and you v/ill behold a different spectacle from that which greets, our eyes in our usual perambulations, for there you will behold not a few specimens of our white fellow-citizens that will awaken at once your pity and disgust. It is this element which constitutes a menace to society, which, under the manipulation of corrupt political leaders, constitutes the balance of power in elections, and by which the voice of intelligent and upright citizens is stifled at the polls, and in- comxpetent and bad men are put into office. It is not the negro vote which works the harm, for the negroes are generally Republicans, but it is the depraved and incompe- tent men of our own race, who have nothing at stake in government, and who are used by designing politicians to accomplish their purposes, irrespective of the welfare of the community. No one, therefore, is surprised to learn that at least one department of the city government is in an equivocal position, that certain of its. officials have been accused in the public prints of receiving bribes, and that some of its thoughtful and leading citizens are unwilling to trust its people with the poor privilege of electing their own magistrates. But Richmond is not alone in this condemnation. The state of things in Norfolk is said to be even and far worse, so that the city is now, and has been for years, dominated by a political ring or rings, which have contributed to the lawlessness and violence of the population to an intolerable degree. I do not wonder that the gentleman from that city (Mr. Thom) cries out with protracted utterance and in piteous tones for help, while DEBATES OE THE COXSTITrTIOXAL COXYEXTIOX OE TIEGIXIA. 2999 I think that he makes a capiial and destrucuTe blunder in supposing that the elimina- tion of the negro rote T=rill bring relief. He is aiming to heal the hurt of the daughter of his people slightly, for there is a mass of vicious and incapable ^vhites which must be debarred from suffrage before it will be possible for a better state of things to exist. TiTiat is true in this respect of Richmond and Norfolk doubtless finds its counterpart in other cities. If the concensus of opinion of delegates on this floor from cities of the first class were gathered, it would probably be unanimous in support of this view. Soon after my election to the position which I hold among you, I received a letter from a friend — one of my old pupils — now a prominent lawwer in one of our mountain counties, who wrote in substance as follows: TTe have, in county an ignorant and vicious white element in our population, which is as destructive of purity in politics, and as injurious to good government, as the negroes are in your section of the State. I was not unprepared for this specific information, having for the past twenty years spent a portion of every summer in this region, not at its health resorts, but among the people of its towns and counties, my personal observation coinciding with and con- firming the testimony of my correspondent. Moreover, coming nearer home, and re- ferring to statements made on this floor, before the committees and in private confer- ence, the conclusion is inevitable that in some of these counties there is a degree of poverty, illiteracy, and lawlessness among whites which must be reckoned with and pro- vided against if our organic law in its construction and administration is to promote and maintain the dignity of the Commonwealth and to accomplish the welfare of the people. TVe must prepare a Constitution equal and just in its provisions, impartial in its application, and which shall be effective, not only in curtailing the evils we deplore, but in enlarging the intelligence, the virtue, the prosperity, and the happiness of all the people. In my honest judgment, the bete noire which has confronted this Convention from the day on which it assembled up to the present hour, which has palsied its energies and made it comparatively inefficient for the purposes which called it together, is the contention that it is our duty, as far as possible, to disfranchise every negro, and, at all hazards to enfranchise every white man in the Commonwealth. This untenable proposition was evidently adopted as a truism by the Suffrage Com- mittee of this Convention, was made the basis of its conferences, and is the probable explanation of the unsatisfactory and divergent scheme proposed for adoption. Gen- tlemen have been trying to do what, in the nature of the case and under the Constitu- tion of the United States, cannot be done without fraud: and which, if the inhibition of the Constitution did not prevail, ought not. under existing conditions, to be attempted. This question of suffrage is broader and more far-reaching than the mere matter of curtailing the negro vote, imminent and imperative as this is. It concerns the honor, the welfare, the integrity of the State as a whole, and must be dealt with as such. I beg now, Mr, Chairman and gentlemen, to ask your attention to some specific facts, gathered not from personal observation or from authenic rumor, or from oral testimony, but based on authoritative statistical reports, compiled by State officials, most of which are in the hands of every member of this Convention, in support of my contention that in order to subserve the interests of the Commonwealth and to place its people on a basis of substantial and enduring prosperity, conditions must be met and provided for in no single section of the State, but as they exist throughout its borders. In order to show this conclusively and beyond contradiction. I have selected for comparison the Ninth Congressional District as a typical white district, and the Fourth Congressional District as a typical negro district. I propose to give you facts and figures, and let them answer the question whether some common, effective remedy is not needed for both, to cure the evils found in each. I find the following facts germane to this subject, in regard to the Ninth District: DEBATES OF THE COIsLSTITUTIONAL CONVENTIOJT OF VIRGINIA. Z^^^^ ^^^^ ^^^^^ ^^^y Whites as negro voters and write ^'^ ^^'^^ ^''^^''^ ^^"^ ""^^^ ^""^ "^""^^^ ^'^^^^t read and write ^^^"^^ ^""^ '^''^'''^^ '^^'^ '''''' ""^^"^ ^"""^ ''^'''^^ ''''^ ^^^^^^ read not read and^write^ ^'^ ^''^^''^ '"^''^^ '^^'^ '^^^"^ ^"""^ "^""'^^ "^^^ (5.) There was one felony for the year 1900 for every 105 voters (6.) Taxes are paid at the rate of $6.62 for every voter. (7.) Delinquent taxes are due at the rate of 44 cents for every voter (8.) Allowance for jurors paid by the State was 19.3 for every voter! (9.) Received into the penitentiary, 106; or one in every 489 voters (10.) Criminal expenses were $38,482.77, or 74 cents for every voter. Corresponding facts for the Fourth District are as follows: (1.) There are about 1-6 less white than colored voters — that is, for every 83-100 of a white voter there is a negro voter; or, for every 830 white voters there are 1000 negro voters. (2.) There are 10.8 white voters who can read and write for one who cannot read and write. (3.) There are 1.6 negro voters who can read and write for one who cannot read and write. (4.) There are 2.7 voters of both races who can read and write for one who can- not read and write. (5.) There was 1 felony case in 1900 for every 268 voters. (6.) Taxes were paid at the rate of $3.11 for every voter. (7.) Delinquent taxes are due at the rate of 28 cents for every \oter. (8.) Allowance for jurors paid by the State was 9.7 cents for every voter. (9.) Received into the penitentiary, 41; or, one in every 912 voters. (10.) Criminal expenses were $15,841.93, or 42 cents for every voter. Comparing these facts with one another, we find: 1st. That the Ninth District has greatly the advantage of the Fourth in the preponderance of white population; the proportion of the former beiag more than nine to one; in the latter, less than a half of the whole. 2nd. That the proportion of white voters who cannot read and vrite in the Ninth district is more than twice as great as in the Fourth district. 3rd. That the proportion of negro voters who can read and write in the Ninth district is 33 per cent, larger than in the Fourth district. 4th. That the number of both races who can read and write is 50 per cent, greater in the Ninth than in the Fourth district, in proportion to the voting population. 5th. That there are 2i times more felonies in proportion to voting population in 1900 in the Ninth district than in the Fourth. 6th. That 49 cents more taxes in proportion to voting population were paid per capita in the Fourth than in the Ninth. 7th. That the delinquent taxes in the Ninth district are in excess of those in the Fourth at the rate of 16 cents for every voter. 8th. That allowance for jurors paid by the State is twice as large in the Ninth as in the Fourth district. 9th. That nearly twice as many in proportion to the number of voters were received into the penitentiary from the Ninth as from the Fourth district. 10th. That criminal expenses were nearly twice as large per voter in the Ninth as in the Fourth district. Now, let us look at these facts squarely in the face and consider their significance. Remember, they are facts, and you cannot get away from them. You have the evidence on which they rest in your possession, and no quibbling or tergiversation or denial will avail. We must accept them, reckon with them, provide against them. There is a bad state of things in intelligence, in morals, and in economic conditions, in both districts, worse, on the whole in the Ninth than in the Fourth, and in the former it is chiefly among the whites, while in the latter mainly among the negroes. It is evi- dent that in both there are many who enjoy the privileges of suffrage who have no per- manent interest in the community and no intelligent apprehension of the duties growing out of it, and who are entirely unfit for its exercise. DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OE YIEGIXIA. 3001 In the Ninth district, as already shown, this is chiefly among the whites; while in The Fourth it is chiefly among the negroes; but whether- white or black, they are equally unqualifitd for this high function, and ought not to possess it. It is contended by some that voting is a right, and not a privilege; that it is in- alienable and indefeasible, and thai no man can be justly deprived of it. This posi- tion has been asserted on this floor; but it is evident from the history of governments — the American Republic in common with others — that it cannot be maintained. No man ought to be allowed to vote who has not sufficient intelligence to understand what he is doing, and besides has not some interest in the government which will induce him to vote aright. As a fact, paupers. Idiots, criminals, duelists, women and minors are dis- franchised, and the reason which underlies these exceptions is the reason on which I insist as the sufficient ground for the disfranchisement of those who have not some- thing at stake in the maintenance of law and order, whether they be of the Caucasian or the African race. A friend has furnished me some extracts from The Outlook," an influential jour- nal published in the city of New York, on this subject, which seem to me sound and incontrovertible. In the issue of May 24th last the editor says: No man has a natural right to share in the government under which he lives. He has a right to be protected in his person, property, family, reputation and liberty; and if the government afEords such protection, he has no ground on which to dem^and, as his right, permission to participate in it. Suffrage is a prerogative and responsibility, and who shall exercise that responsibility is to be determined by the existing govern- ment. That is a practice justified both by philosophy and history. In the issue of Juh' 27th he wrote as follows: The argument that suffrage is a natural right appears to be specious rather than sound. The argument may be thus stated: " Xo man is wise enough and good enough to govern his fellow-man; no class is wise enough to govern another class; therefore every man should share in the government of the State." That conclusion is a non sequitur. The fact that no man is wise enough and good enough to govern his fellow- man does not warrant the conclusion that every man is wise enough and good enough to share in governing his fellow-man. Suffrage is an artificial, not a natural right. It is created by, and dependent upon, law; a means and not an end; and the condition upon which it should be granted by those who have it not, to be determined by the consideration of the question. What conditions of suffrage will probably secure the more stable, just and free government? These principles appear to me unanswerable, and emanating from Xew York city, and the source from which they come, have special significance at this time. But it may be said in reply to this contention, that it makes no distinction between the white man and the negro; that the United States Government recognizes racial lines in the disfranchisement of Indians and Chinese, and that the negroes ought, as a race, to be deprived of suffrage. In reply I beg to say, that no member of this Convention, and no citizen of Vir- ginia, is more profoundly convinced than I of the intellectual and moral superiority of the Anglo-Saxon and the corresponding Inferiority of the African and American negro. I believe that they are separated by nature and the God of nature by an impassable gulf, and I view with horror anything looking towards breaking down the social and domestic barriers naturally and necessarily existing between them. On the other hand, I do not hesitate to say that there are few Virginians, if any, who, from childhood to mature years, in times of slavery, during the war between the States, and since that period, have lived on nearer terms of kindness and sympathy and confidence with the negroes than I. I know their good points; I appreciate their weaknesses; I have done, and shall continue to do, all in my power for their welfare. I am their friend, as I am the friend of the white man, devoutly desiring the prosperity and happiness of both, at the same time recognizing the disparity between them, 1S9 — Const. Deb. 3002 DEBATES OE THE COXSTITUTIO^TAL COXVEXTIO^t OF VIRGIJsTIA. and the absolute social and domestic separation which must continue to exist; but, so far as regards the matter in. hand, as to the right of suffrage, dealt with fairly and squarely under the domination of the fourteenth and fifteenth amendments to the Constitution of the United States, there is no difference. We may justly inveigh against these amendments. We may denounce them as the outgrowth of passion and hate and political corruption, but there they are, a part of the organic law of the land, recognized and sanctified as such by a section of the Bill of Rights already adopted by this Convention. This being true beyond contradiction, it is in order to ask, as I now do, for your candid consideration, who is the more injurious factor in a community, an ignorant, immoral, and lazy white man, or an ignorant, immoral, and lazy negro? Who of these goes most readily from vice to crime, and by his crime most frequently darkens the fair escutcheon of the Commonwealth? Who contributes less to the productive energy of the State, and is more apt to continue in poverty and degradation? Without paus- ing for a reply or consuming your time in fine-spun distinctions, which add nothing to the elucidation of this subject, I reply emphatically, and in view of what has already been said, both; both are "injurious factors in a community;" both "readily pass from vice to crime;" "neither contributes anything to the wealth and welfare of the State." and as, a corollary, I add, that both ought to be eliminated from the sovereign and controlling element of society, and have pressure and incentive brought to bear upon them to elevate themselves and fit themselves for citizenship, and to see that their children attain a higher plane of virtue, intelligence, and economic worth than they occupy. It is now time to consider what are the qualifications for suffrage which ought to be laid down for all classes of our people — in the east and the west, in the moun- tains and by the sea, for whites and blacks alike. What are the terms which are believed to be equal and just in their application, and which will probably prove effec- tive in eliminating the evils we deplore, and in promoting gradually, but surely, the permanent welfare of the people of the Commonwealth? This is the question which has been uppermost in the thoughts of many members of the Convention from the day of its assembling, and which impends at present and authoritatively demands a reply, and to which, in my judgment, the gentleman from King George (Mr. Moncure) has contributed the nearest approximation to a correct answer yet submitted to the Convention. If the facts heretofore stated be true, and the principles announced sound (and they seem to be incontrovertible), the answer to this inquiry is not far to seek, and it is this: Let those citizens of Virginia, not debarred by other sections of the Constitution, who are assessed with a poll-tax of $1.50 and a State tax on property of the value of at least $150, be registered and remain on the registration list permanently. Before they are allowed to vote, require a certicate to be presented to the officers of election, show- ing that these taxes have been paid six months before election. After January 1, 1904, require every applicant for registration, in addition to the above prerequisites, to pre- sent his application in writing, done with his own hand, in the presence of the regis- trar. Make no exemptions except of soldiers resident in Virginia who have actually served in time of war in the armies of some State of the Union, or of the Confederate States, or of the United States. And the viva voce vote, and stop. This simple prescription, equally administered, will give us a clean-cut franchise law, which will, at one stroke, lop off a large mass of the incompetent and corrupt voting population of the State, and put its government in the hands of the intelligent, taxpaying portion of its citizens. It will be effective in ridding us of the ignorant and vicious negroes, and of the abandoned and worthless whites, and will insure the vote being counted, and reported as cast. The chief objection that I have heard urged to this scheme of suffrage is that. DJlBATZS of IHZ COXSTIiniOXAL COXVZXTIOX or TIEGIXIA. 3003 along with many stupid and vicious whiles, some worthy and good citizens will be disfranchised. And this is doubtless true; but it must be remembered that this is one of the necessarj- incidents of organized society, and that no citizen has a right to complain of such abridgment or to regard it as a hardship, when it is essential to the welfare of the body politic. Every one of us has to yield many rights and privi- leges by reason of our relations to society, and whatever is necessary for the social well-being must be given up by the individual. I will not insult your intelligence and waste your time in arguing or illustrating this proposition. It is self-evidently true and universally recognized. It is also reasonably true that most of those fit by intelligence and character to discharge the duty of suffrage, and who are disfranchised, will not continue long in this position, but will be incited to go to work to accumulate something, and will soon enter the ranks of qualified voters, who contribute to the welfare of the State, to their own personal benefit, and to the exaltation of the dignity and prosperity of the Com- monwealth. Some of the grounds an which this simple and effective mode of dealing with this important subject are based are as follows: 1. It is honest and just and right. You need no "'understanding clause" or " grand- father provision/' about which thoughtful men everywhere not only doubt, but from which they shrink with moral aversion. You will not be afraid of the courts. Con- science will not torment you. You can look into the face of God and feel that you have His approval. As has already been shovN-n. no man is entitlid to the privilege of voting who does not value it and know how to use it. and who has no such interest in the community as will conduce to his using it aright. Xo injustice is done any one who has not character and industry- enough to accumulate the paltry sum needed to make him a voter, and if at first some worthy men are debarred, it is not injustice to them, but an incentive to put themselves in a position where they can be admitted to suffrage righteously. 2. The adoption of such a suffrage requirement will immediately add thousands and tens of thousands of names to the list of taxpayers within the State. AVTio can estimate the number in Virginia at the present time who exercise the right of voting and who have far more than S150 worth of property, but who never list or pay taxes on their property? Such men will be brought to the book, and if they wish to vote, will hare to come forward and bear some share of the burden of sustaining the govern- ment. 3. Another desirable end that will be accomplished is found in the incentive fur- nished the young men of the Commonwealth to save, instead of squandering, their earnings: to accumulate something, so that they may become and be recognized as independent and rightful voters, with all the privileges and immunities appertaining thereto. At present our young men have no such incentive and inspiration, and too many of them not only live up to but squander their means and acquire habits of thriftlessness. and instead of becoming productive factors, grow into bummers and incompetents and deadheads — an incubus on society. Xow, let our young men learn that in order to occupy a reputable position among their fellows, they luust be possessed of this modicum of prosperity, and they will go to work to acquire it, and having suc- ceeded, the desire of accumulation will be stimulated, and the number of thrifty and independent citizens will be largely increased. I verily believe that if this scheme be adopted more will be done for the financial progress of the State, for its economic strength, for its growth in moral power, than by any other means that can be devised. Who can doubt that within ten years the number of taxpayers in old Virginia will be at least doubled, and perhaps trebled; that capable men will be found for positions of importance in our cities and towns, and that our country regions, now being stripped of population, will gradually fill up with aspiring and earnest men, who will add to the resources of the Commonwealth by increasing its productive capacity, and found homes, which will be the abode of comfort and happiness. 4. The last ground on which I put the proposition I support is that it will do much to purify politics by purging and elevating the electorate. As at present constituted, the voting population in a portion of the State consists largely of ignorant negroes, who have no more intelligent interest in the result of elections than so many sheep. 3004 DEBATES OF THE CO^fSTITUTIONAL CONVENTION OF VIRGINIA. In Other portions of the Commonwealth there is by no means so large, but an appre- ciable, element of white voters more venal than the negroes, and in politics more corrupt. Both these elements will be eliminated, and, as a consequence, bossism and ring rule will be abated; honorable, intelligent gentlemen, who, under the corruption now existing, have withdrawn from the arena, will come forward as active and con- trolling factors in the government, to the manifest improvement of every interest held dear by intelligent people. Thus, instead of the rascality and fraud so commonly practiced, and the consequent choice of incompetent and sometimes of base men, for governmental service, we may expect to see the return of the day when Virginia's honored sons are among the foremost in the land, and the old Commonwealth shall take and hold her rightful place in the galaxy of States. But I will be asked, "What about the Norfolk Democratic Convention of 1900? Did it not promise that no white man shall be disfranchised?" To which I reply by asking, "Did the Norfolk Convention have authority to make such a promise? Was not its action in this matter ultra vires?" " If it had power to bind this Convention in this respect, does not its power to bind reach to any and every other point which it chose to handle?" This is a reductio ad absurdum, and I therefore assert, without fear of successful contradiction, that the dictum of that Convention has no more legitimate force on this body or on any member of it than the pronunciamento of the secret conclave of the Pope of Rome, or of a circle of mumbling Buddhist priests in India or China. We are here to obey the behests of r,o man or body of men, but to consult together and conclude v/hat is best for the people of Virginia, and to embody that in its organic law. " But what about the promJses made before the late election, on the hustings and in the newspapers, by certain members of this Convention, and other trustworthy citizens, to the effect that no white man of Virginia shall be disfranchised, as the result of our work?" To which I reply, as I have frequently replied to such inquiries, that the Con- vention has never made any such pledge, and that the promise rests on the responsibility ef those who made it, and only on that. It is far from my purpose to reflect on their action or to impugn their motives. All that I assert is that their action does not bind miQ or this Convention. They are intelligent, they are upright, they knew what they were doing, they are responsible for what they have done; but they cannot implicate me or any other person, for whom they were not specifically authorized to speak. But I am told that "the statements were made I that they were made by gentlemen of character and worth;" and, it is added, "that if they were not contradicted, any man who failed to contradict them became responsible for them!" Were there not such an element of Jesuitry and dangerous error in this contention as to render it destructive of good morals and of the very foundations of society, it is so silly as to be amusing and mirth-provoking; that I, forsooth, can give to the world an opinion in regard to some important matter within the province of this Convention, and an assurance that it will be done in order that certain conditions may be brought about, and that, as a consequence, any one or all of you, who become cognizant of the facts and fail to declare yourselves to the contrary, put yourselves under obligation when the matter comes before the Convention to sustain my opinion by your vote, and to bring to pass, the prophesy I have made, is too ridiculous to be considered. If moral absurdity can rise higher than this, I can recall no instance of it in the course of history or experience. We stand here, then, gentlemen, as freemen — intelligent freemen — with no shackles on our limbs or consciences; not to do what others dictate, but what our intelligent judgments indicate to be right and best for the interests of the great State we represent; and I beg you not to disgrace the " Mother of States and statesmen " by putting such equivocal and suspicious provisions into her Constitution as the " understanding " and the " grandfather " clauses. I assure you that neither of these provisions m.eets with the approval of the enlightened and God-fearing people of Virginia. I have talked to many citizens of Richmond, and of other portions of the State, and have met with none DEBATES or THE COXSTITUTIOXAL COXYEXTIOX OF TIRGIXIA. 3005 Vv-ho do not spev/ these things out of their mouths. The idea of enacting anything that may be repudiated hy the Supreme Court of the United States is abhorrent to them and to me. On the contrary, they demand that we shall resort to the same honorable and straightforward means used by the fathers and founders of the republic, in order to rid the electorate of the ignorant and incompetent classes. There is no other way of doing it that I have seen pointed out, or that I can think of, in accord with the main- tenance of the honor and dignity of the Commonwealth, or of our own personal integi'ity. But there is a knottier problem yet to be considered — a question of casuistry — which probably perplexes and rests heavily on the minds of some of the members of this Con- Tention. It may be stated thus: What is the man to do who in his canvass, or as a condition to his election as a member of the Convention, specifically stated that, so far as he is concerned, he would vote for the disfranchisement of no vv'hite man? How is he to get around this pledge? How is he to retain his self-respect and the confidence of his fellow-citizens, if he votes for a scheme of suffrage which, in the nature of things, must disfranchise some of this class? Suppose that there is a member of this Convention who stands in this attitude, who puts himself in it believing that it was possible to maintain it, and that it was for the welfare of Virginia that it should be maintained, but who has now become convinced that it is impracticable, that the best interests of the Commonwealth, its honor, and its dignity, the virtue and the well-being of its people, demand that, along with the great mass of irresponsible negroes, some irresponsible whites must be debarred from suf- frage; is he bound to be guided and governed in his actions as a member of this Con- vention by former and immature impressions, or by later and settled convictions of what he deems right and just and honest, and demanded by every interest of enlightened statesmanship, by every economic and moral consideration looking to the prosperity and happiness of the people? He is in a dilemma! V\liich horn shall he choose? He must take one or the other: If he acts on former and immature, though honest, impressions, formed and expressed prior to necessary investigation, he violates present intelligent convictions, casts his vote against vrhat he believes to be essential to the good of society, and, so far as in him lies, does what he can to perpetuate the degradation of his people, acting as a mere tool to carry out the ignorant and ill-considered wishes of his constituency. If, on the other hand, he follows the leading of his conscience and judg- ment, enlightened and instructed by 'a more thorough perception of the facts of the case and the demands of his situation, he acknowledges himself to have been guilty of error in making a heedless pledge, but fulfils his duty as a representative of the people by obtaining for them a form of government which shall promote their best interests, and in its wholesome and health-giving effects tend to crown the old Commonwealth with glory and honor. Mr. Chairman, all of us were probably told in our childhood, by honorable and soli- citous parents, that " two v/rongs never make a right." So far from its being true that because a man has been gtiilty of a wrong he ought to adhere to it, exactly the reverse is true. Just so soon as I am convinced that I am wrong in thought, in feeling, in action, I must forsake it. turn from it, and choose and do the right. " To thine o-^m self be true, and it will follow as the day the night, thou canst not then be false to any man." Some of you, I am sure, will remember that pregnant sentence which flowed from the pen of the immortal Robert E. Lee, in a letter to one of his sons, then a cadet at West Point: 'T3uty," says he, '-'is the sublimest word in the English langtiage." What we ought to do, it is our duty to do. Duty is present, pressing, imperative — what the great Kant called " the categorical imperative." It cannot be guiltlessly shirked, but must be unflinchingly met and discharged, and the obligation resting on every one of us is to meet our responsibility as we see it, knowing that we must give account to our consciences, to our fellow-men, and to our God. Rev. Lewis W. Green, D. D., who was well known in Virginia fifty years ago as one of its most learned, eloquent, and useful citizens, has left on record a sentence some- 3006 DEBATES OF THE CONSTITUTIOXAL COJfVENTION OF VIEGIJSTIA. thing like the following: "Honesty, honesty, honesty! Nothing but upright, down- right, straightforward honesty will avail as the basis of good character." And s,o I say that "honesty — and nothing but honesty, upright, downright, straight- forw^ard honesty " — will answ^er in the framework of the fundamental law of an en- lightened Commonwealth! I thank you, Mr. Chairman and gentlemen, for your kind and patient attention! Mr. Hancock: Mr. President and gentlemen of the Convention, upon the question of suffrage I have had nothing to say up to the present time. I shall vote for the amend- ment of the gentleman from Norfolk to strike out this understanding clause. I shall not vote for it, however, for the reasons which have been given by him. I shall vote for ir because I believe that any understanding clause is of such a nature that it can be easily administered in the interests of fraud, and that such a provision should not be incorporated into the organic lav/ of the Commonwealth of Virginia. I believe that we ought to have a suffrage clause in the Constitution self-executing in its character, so there can be no fraudulent administration of it by the agents who are required to administer it. I wish to say that when the question came up in the Democratic con- ference, I voted for the temporary understanding clause for the purpose of destroying the permanent understanding clause. When the property qualification and the grand- father's clause came up as an amendment to tlie temporary understanding clause, I voted for each of them for the purpose of destroying the temporary understanding clause. When the proposition came up to take away the property qualification and. the grandfather's clause, I voted to destroy thern both, because I did not consider property a. proper basis or foundation for suffrage, and I did not believe that a man should have any political right confoi^red upon him because of what his father or grandfather was or did. I believe that manhood suffrage should be maintained as far as practicable. There are, how^ever, unfavorable conditions, confronting us, and some other methods must be resorted to in order to preserve our civilization. But let us never resort to any ex- pedient that is doubtful, in morality, and let us never resort to any method that is not right and just in the public eye of man and in the light of Heaven itself. I believe that one of the greatest evils that has ever cursed this country, and one 01 the greatest crimes that has. ever been committed against the white people of this great southern country was committted when unlimited negro suffrage was placed upon her people by the Government of the United States. The history of the world from time immemorial will show that two races of people, one superior and the other inferior, cannot live together on term^s of social and political equality. It was therefore wrong and unwise for the Federal Government to place the fourteenth and fifteenth amend- ments, with all of their dire influences and results, upon the people of our southern country. But these amendments having been placed upon us, and we having accepted them and gone into the Union with the promise to maintain and to support them, I shall never cast my vote to violate the Constitution of the United States directly or in- directly. If any plan that is honest, any plan that is just, any plan that is within th3 scope of the fourteenth or the fifteenth amendments can be devised, by which the negroes will not disturb the harmony and happiness of the people of this Commonwealth, I will vote for it. I will vote for it because I belisve it will be betTer for the negroes themselves if the ignorant portion of their race are disfranchised. I will vote for it be- cause I believe it will be better for the white people of the Commonwealth. I believe that the prepayment of a poll-tax, and a reasonable educational and qualification tax is all that is necessary to accomplish this object. Now, Mr. President, and members of the Convention, as I conclude upon this sub- ject I wish to say that the remarks I have made have been made from an earnest and conscientious desire to do what I think is right, and to express the reasons which in- fluence me to vote for the amendment offered by the gentleman from Norfolk. In say- ing this, I wish no member of the Convention to feel that I question in the slightest degree the purity of his motive or the honesty of his purpose. DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIEGIMA. 30or Mr. Garnett: Will the gentleman explain what reliefs he proposes to give us from The troubles that surround us? Mr. Hancock: I have not undertaken to formulate any plan for the relief of the people of Virginia on this matter, because I did not come from that portion of the State that demands that kind of relief. I thought that those people who live in that part of the State where the relief was demanded and where the danger confronted them were the people to present the plans of relief, and I would vote for those plans if reasonable and not contrary to the Constitution of the United States. I would say, however, to the gentleman from Mathews, that requiring the prepayment of a poll-tax and reciulring every voter to prepare his own ballot would bring all the Telief that is needed. Mr. Watson: I would like to ask the gentleman if the county of Powhatan, which he has the honor of repres£nting in part, is not as badly in need of this relief as any other section of this Commonwealth? Mr. Hancock: I will say that the county of Powhatan is entitled to relief, and it would get relief upon the plan I have just suggested to the gentleman from Mathews. But I would say that if the people of Powhatan had ever resorted to such fraudulent election methods as have been adopted in some other counties of this Commonwealth and detailed upon the floor of the Convention perhaps my righteous indignation would have been raised to such an extent that I might have undertaken to prepare a plan that would give relief even to the people of Powhatan. But the people of Powhatan that I represent in part upon this floor, so far as I am informed, and I live near them and mingle with them, have never resorted to such fraudulent election methods as I have heard spoken of upon the floor of this convention. But so far as fraud is con- cerned, neither Powhatan. Chesterfield, nor Manchester, although they sent me here as their representative, wotild ever have sent me here to represent fraud. They never would have sent me here to originate fraud. They never could have sent me here to violate directly or indirectly the Constitution of the United States; and they knew it when they sent me here by a unanimous vote. (Applause.) Mr. Keezell: Mr. President, I do not desire to delay the Convention but a moment. I desire simply tO' state that my vote upon the question will be cast against the amendment of the gentleman from Norfolk in favor of this report as it has been presented in the Convention. I want to say just one word of explanation so that my position may be fully understood. As I have stated a number of times in Democratic conference and in Convention, that so far as the people I represent on this floor are concerned, they are not for themselves asking any change in the suffrage. They are not in the condition that many of the sections of this State are. They do not suffer from the illegal election practices that have been mentioned here. So far as those people are concerned, they did not send me here to clamor for any change in the suffrage laws. They were very much more interested in economic questions and questions of taxation and matters of that sort than they were in the question of suf- rage. Mr. Chairman, I recognized when I became a candidate for this Convention, and I so stated to the people, that I did not expect to get everything as I wanted it, that I recognized that legislation was more or less a matter of compromise. There are two propositions to which the people I represent are intensely opposed; one is the question of a property qualification, another is the permanent understanding clause. Believing in the first place that property is not a fair test of a man's capacity to exercise the right of suffrage because many of our best qualified electors may from the force of circumstances be unable to meet this qualification, and believing that if a permanent understanding clause were incorporated into our Constitution, the reprehen- sible practices which we have thus far, in my section, been able to prevent from creeping into our elections might, in that event, come to tempt our people to resort to unfair methods, both as against the opposing political party and against factions in our own party, and recognizing that we are up against one of two propositions — 3008 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIEGINIA. either to fasten the odious property qualification upon suffrage in this State, or as equally odious permanent understanding clause — I intend to vote for this compromise measure presented by the gentleman from Lynchburg, and adopted by the Democratic conference, and I intend to vote for it, not because of what it is, but because it gets rid of the property qualification which is so objectionable to me and my people, and because it gets rid of the permanent understanding clause which is equally or more objectionable still, and gives us a suffrage plan, which, in my opinion, will relieve those sections of the State that should be relieved from conditions that are now existing there, without imperiling the people that I represent upon this floor. I believe that under the provisions of this article practically every white man in the country from which I come, and a large majority of the colored ones also, will get on the roll, and there will be, I believe, not the least unfairness in the administra- tion of this temporary understandiug clause. I simply desire to make this statement in explanation of the vote which I pro- pose to cast. Mr. iBraxton: Mr. President, I will not detain the Convention more than a few minutes to explain my position in reference to the pending amendment. As is well known by all of my associates here, I have consistently and persistently opposed the insertion into our Constitution of an " understanding clause," either temporary or per- manent. Personally I was also opposed to a so-called "grandfather clause;" but T was willing to accept it in preference to any form of an understanding clause. I will not attempt to recapitulate the reasons why I regard both the grandfather clause and the understanding clauses as objectionable; or why I regard the understanding clause as by far the more objectionable of the two. I have already had the honor of laying my views on these questions fully before the conference of the Democratic members of this Convention. I have ever thought and I still think and believe that the only provisions which we should make in dealing with the negro question in this State are, in substance, the three following: First, that every voter should be required to prepay, not less than six months in advance of the election, all poll taxes assessed against him for the four years next preceding the election at which he offers to vote; such poll taxes, however, not to be collectable by any legal process— leaving the man to pay them or not as he chooses, providing only, that if he does not pay them, he cannot vote; second, that every man after, say, two years from this date, shall be required to fix his own ballot, without assistance, unless he is blind or physically disabled— it being my opinion that so long as the opportunity of having assistance in fixing one's ballot is permitted to remain, there can be no effectual prevention of bribery and fraud in elec- tion; and third, that negroes should be excluded from the right to hold office in this State. While I believe that these three provisions would suffice to solve the negro problem in this State, would be constitutional, and would tend greatly to purify our elections, yet I was willing, in deference to the wishes and views of my associates to so far modify this plan as to agree, first, that a small property qualification should be inserted; or, second, that an experiment with the so-called "grandfather clause" should be resorted to; but I did hope never to see the day when an "understanding clause," either temporary or permanent— with all of its possibilities of fraudulent administra- tion and other offensive and objectionable features— would enter into the fundamental law of this State. For a long time I believed that we had escaped the danger of adopting any such understanding clause as was recommended by the majority report of the Committee on Suffrage; headed by the gentleman from Norfolk (Mr. Thorn), or as was recommended by the minority report of that committee, headed by the gentle- man from Campbell (Mr. Daniel) ; but about a week ago, while the matter was bemg earnestly contended in the conference of the Democratic members of this body, the gentlemen representing the advocates of both the temporary and permanent under- DEBATES OF THE CONSTITUTIONAL CONVENTION OP VIliGINIA. 3009 standing clause, in a special conference, agreed upon a so-called Glass-Daniel-Thom compromise plan, in which there was embodied an "understanding clause" to remain in effect until 1909, with the right to be thereafter indefinitely extended in the man- ner referred to a few moments ago by the gentleman from Pulaski. Mr. President, I believed then, and I believe now, that such an arrangement was equivalent, in every respect, to a permanent understanding clause; in short, that it was nothing more nor less than a permanent understanding clause in disguise. I will not attempt to express the horror with which I was filled by the possibility, and the appar- ent probability, of the success of such a measure. Those of us who opposed any under- standing clause, either temporary or permanent, did what we could to prevent the suc- cess of this compromise measure, and two plans, one presented by the gentleman from Richmond (Mr. Meredith), and the other presented by myself, were laid before the Democratic conference in the hope that one or the other of them might be accepted in lieu of the "compromise plan" — neither Mr. Meredith's plan, nor my own having any " understanding clause " whatever in it. The result of ihe contest which then ensued satisfied those of us who were opposed to any understanding clause, that the so-called " compromise plan " was almost certain of success in the conference — many of the m.embers who were not at heart in favor of it having been driven to agree to it because of their despairing of the conference or of the Convention being able to agree upon anv other plan. It was then that the gentleman from Pulaski (Mr. Wysor) offered his amendment to the so-called compromise plan, the effect of which was to terminate absolutely the operation of the understanding clause on the first of January, 1904. Be- lieving, as I then did, that the only possible chance of defeating the permanent or in- definite understanding clause, as embodied in the compromise plan, was to effect the adoption of the Wysor amendment, modifying its operation by limiting its duration to 1904, and bringing it then to an absolute and final termination; and further believing that the only way, under the circumstances, to effect the adoption of the Wysor amend- ment was to agree to support the so-called compromise plan as amended by that amend- ment, if the amendment should be adopted; I stated then, in a speech to the conference, that if those members who were led to support the compromise plan for fear that no other plan could be adopted, and for fear that if this compromise plan was defeated it would mean the restoration of the chaotic condition of the entire suffrage matter which had existed for ten months past — that if these members would unite with us in the adoption of the Wysor amendment — I would withdraw the plan I had offered, and, in good faith, then, as a matter of compromise, support the " compromise plan " with the modi- fied understanding clause therein, limiting it in its duration to the first of January, 1904. Other gentlemen, holding the same views as myself, notably the gentleman from Pulaski, who offered the amendment, followed with similar statements; and I believe that it was largely due to this position taken by us that the proposition for the indefi- nite understanding clause was defeated. Having, however, obtained this result by reason of my promise to support the clause, as it now exists, I feel in honor bound to support it, and I will accordingly do so and vote against the amendment offered by the gentleman from Norfolk now pending before this Convention. Mr. President, I deeply lament the presence of the objectionable understanding clause in our Constitution. I cannot but regard it as a great defect in our work; but I know it to be an unavoidable defect. I recognize the great ability, the purity of motives, and the patriotism of my associates who differ from me on this subject. I have fought against any " understanding clause " in this Convention for nearly ten months, and until further resistance would not only be useless, but would be folly, and a wrong, as it has been clearly demonstrated that there is no other ground upon which the conflict- ing views of the members of this body can be reconciled. I feel that there was pre- sented to me, and to those of us who oppose any understanding clause, the choice of evils, between a temporary understanding clause lasting a year, and a permanent or in- definite understanding clause, exaggerating and perpetuating, as I verily believe, all of the worst evils of our present system. 3010 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. I believe we have chosen by far the lesser of the two evils; and however distaste- ful it may be to me to accept it, I believe that, after the long efforts we have made in this Convention, for nearly a year, to agree upon something more satisfactory, the interests which we represent and • the welfare of the State at large demand of us, as patriotic men, to aces'pt and adopt this present plan, as the best that can be gotten under all the circumstances that surround us. I hope, therefore, it may be the pleasure of this Convention to vote down the amend- ment offered by the gentleman from Norfolk, the adoption of which would, in my opinion, throw everything into confusion and again expose us to the imminent danger of having a permanent or indefinite understanding clause put upon us. Mr. Brown: Mr. President, I promise to detain the Convention only a moment. This seems to be an experience meeting and I desire to state my position briefly upon the matter now under consideration. I understood the gentleman from Pulaski to state that the gentlemen who voted for the property qualification as an amendment to the plan of Mr. Glass did so for the purpose of destroying his plan, and of aiding in the adoption of a permanent understanding clause. I desire to say that I, for one, did not occupy that position on that question. I came to this Convention with the determina- tion to vote for a suffrage clause that would be as nearly effective as possible to accom- plish the purposes for which we came and that would be as nearly automatic as possi- ble and as little dependent upon the administration of the law, and also for such pro- visions as would enable us to have in the electorate as few m-en as possible who were dissatisfied with their title as voters. For these reasons I have always been opposed to every form of understanding clause, because I believe that in a great measure, it depends for its effectiveness on the administration of it. I have alw^ays been opposed to the imposition of any poll-tax, as a prerequisite to the right to vote, because I brilieve the imposition of a poll-tax will be considered by the voter a tax upon his right to vote and I believe that it will cut out of the electorate of this State, at least in the moun- tain sections of the State, and in the cities, as many or more of our white electors as it will colored, and will be a constant source of dissatisfaction and worry. I have been from the beginning in favor of a property qualification with the broadest exemptions from its operation under the grandfather clause, that could be adopted under the Con- situation of these United States. I believe we should meet the whole measure of our responsibility and our duty here. It seems to me that such a provision as that practi- cally admits the whole of the white electorate of this State. It would admit thos'3 worthy negroes who have shown themselves to be identified with the interests of the Commonwealth, and would encourage enterprise and stability of purpose and uplift the whole negro race and at the same time protect the body politic from ignorance and vice. T feel that I have been defeated on all of these points. There is not one provision left in this compromisiO plan that fills my idea; but I am not going to try to destroy what is the composite opinion of this whole body, and I propose to vote for this provision as it stands. (Applause.) Mr. Gillespie: Mr. President, and gentlmen of the Convention, I do not rise be- fore you to make a speech on this occasion. It would be useless for me to do so. When we met here on the 12th day of June, 1901, we met, as I believe, for the purpose of ris- ing above party and partisanship and for the purpose of forming a Constitution founded on the great principles of justice and equity. I believed that was the purpose of the one hundred Virginia gentlemen here assembled. But later I found that was not the pur- pose. After a while the members of a certain party shut the door upon the members of the other party, and began to consider these questions behind closed doors. They have already settled it. Therefore it would be useless for me to say anything in this presence with a view of changing it or affecting it in the least. But I cannot let this question of an understanding clause pass me without my most earnest protest. We have heard gen- tlemen of the Democratic party stand upon this floor and arraign the understanding DEBATES OF THE COXSTITUTIOXAL COXVEXTION OF VIEGIXIA. 3011 clause. The gentleman from Roanoke has stated that he did not oppose it for the same reason the gentleman from Norfolk did, because it was not efficient; but he opposed it because it was potent for both fraud and evil. He struck me as a true Virginian when he stood upon this floor and said — belonging as he does to the superior race — that he did not have to resort to fraud and deception in dealing with an inferior race. Now, gentlemen, you cannot denounce in too unmeasured terms this understand- ing clause. What does it mean? The gentleman from Pulaski says that there have been only three reports filed by the suffrage Committee. I ask leave to correct him and tell him that there have been four reports filed by that committee. Mr. Wysor: I want to say to the gentleman that I did not know he had filed a report. The other report came in months ago. He was on the committee and did not file any. If I had known that he had filed a report I would surely have mentioned it. Mr. Gillespie: I want to say to the gentleman from Pulaski that if there was a man in this Com^ention of whom I would have said that under no circumstances would he have temporized with fraud, it would have been the gentleman from Pulaski. I was never more surprised in my life than when I heard him stand upon the floor this morning and say that he had gone over to the opposition and had accepted this proposition, temporizing with fraud. Mr. Wysor: Suppose the gentleman was confronted with two propositions, one the permanent understanding clause and the other a temporary understanding clause which lasted for one year, which would you expect him to adopt? Mr. Gillespie: I would not expect him to take either. I would expect him to stand upon principle and go down with it; I will never accept fraud. I desire now to read to the Convention something which I stated in my report as a member of the Committee on Elective Franchise: We do not think that any man who now has the right of suffrage should be deprived of that right. There is no right which a man has in a government like ours that can be dearer to him than the right of suffrage. It is the right preservative of all rights, and we most earnestly insist that we have no more right to take away his right to vote, than we have to take away his property. To take away his right to vote is in effect to take aw^ay his right to protect his property, his liberty and his life. We, therefore, must decline to lay upon any of the present voters of this Common- wealth a burden, as a prerequisite to voting, with which it is impossible for them to comply. Under the majority and one of the minority reports the voters of the State are divided into the soldier class, the property holding class and non-property holding class is fo be subjected to examinations and tests not laid upon the otliers. This dividing of the voters into classes and subjecting one class to burdens not laid upon the others is contrary to the nature and spirit of our institutions. The first class provided for is the soldier class. It is but proper to allow them to retain a right which they already have. Many of them are now, and doubtless were when they rendered military services, non-property holders. This suggests the thought, is it wise to discriminate against the non-property holders who furnish so many of our soldiers, and thus destroy, or at least lessen, their love of country? The second class mentioned in these reports are those who, or whose wife, shall have paid to the State taxes for the year preceding that in which he offers to vote amounting to as much as $1 on property owned by and assessed against him or his wife. At the present rate of taxation this would require the ownership of $250 worth of property. Under the proposed reduced rate of taxation he would be required to own $333 worth of property. If his taxes are reduced, as they should be, his ownership of property must increase under this plan. Mr. Glass: You do not really think so; do you? The property qualification, if it be a property qualification,which of course it is not, does not last longer than January 1, 1904. Mr. Gillespie: That is under your proposed plan. My reference, in my report, was to the original majority report. 3012 DEBATES OF THE CONSTITUTIONAL CONVEi^TiON' OF VIRGI^^IA. This property qualification would exclude perhaps two-thirds of the present voters of the Commonwealth. We submit that a property test is not a Just and proper test for suffrage. The property-holder does not bear all the burdens of the government. As above suggested, a great number of the soldiers who fight its battles are not property-holders. . The laborers in the fields and in the mines and shops, who do so much to create the prosperity and wealth of the State, often own but little property. It is their lot by hard labor to create the wealth of the State, yet they are to have no voice in the making of the laws, or in selecting those who shall administer them. Under the majority report the test provided for the third class of voters is that indefinite, uncertain, and immeasurable thing, " a reasonable explanation of the general nature of the duties of the various officers for whom he may at any time under the law then existing be entitled to vote." How many votersi will be deprived of the right of suffrage under that test no one can tell. It is as elastic as a rubber band and can be adjusted to any voter to suit the desire of a partisan registration board. This test has now been changed under the plan we are now considering, and the test now suggested is that the voter " shall be able to understand and give a reasonable explana- tion on any section of the Constitution when read to him." But it is equally as bad and elastic as that originally contained in the majority report. Under this provision the partisan board can deprive their fellow-citizens of their right to vote and then com- fort themselves with the thought that the supremacy of their party is necessary for the salvation of the country, and that their fellow-citizens vvere unworthy to vote because they were of a different political party. It will not do to claim that men will not take advantage of a law so loosely drawn. There will always be those who are ready to use any advantage that may be taken of the law. We were told of old that " The heart is deceitful above all things and desperately wicked. Who can know it?" Human nature has not changed. Yet it is proposed" by this law to put at least 250,000 of our voters at the mercy or a registration board. Under it the registration board can discriminate against one voter and in favor of another. It is needless to say that it is susceptible of fraudulent administra- tion. In our opinion it encourages and invites such fraudulent administration. Who can doubt that under it many voters will be fraudulently discriminated against and deprived of their right to vote. We cannot believe that we will make better citizens of any part of the people by unjustly discriminating against them. To deprive a man of his right to vote by unjust discrimination must of necessity turn him against the State and to that extent make a worse citizen of him. Again, a law so uncertain in its terms and so suspectable of fraudulent adminis- tration cannot command the respect and confidence of the people, and all upright men, jealous of their good names, v/ill refuse to take part in the administration of such a law. and the administration of it will fall into the hands of unworthy men. Men who can adjust their consciences to suit the emergencies of any case. That these are the kind of men selected to administer such a law has been abundantly illustrated in this Commonwealth by the men who have in recent years administered its election laws. Again, the men who administer such a law are made worse by administering it. In our government every man must necessarily be more or less a partisan, and in administering such a law the temptation to serve partisan ends is always before them. The Great Master taught us to pray " Lead us not into temptation." But under this law partisans are to be placed in a position which invites them by fraudulent discrimi- nation to advance the interest of their party. Every wrong that a man does tends to harden and make him a worse man, and every unjust discrimination that these par- tisan boards shall make will make worse men of them. Again, all classes of citizens, seeing that the law invites such fraudulent discrimi- nation, and seeing the officers of the law engaged in such fraudulent methods, will despise the law, and hold the law and those who administer it in contempt. On motion of Mr. Lindsay: The chair was vacated until 4 o'clock P. M. DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF YIRGIXIA. 3013 AFTERNOON SESSION. The Convention met at the expiration of its recess. Mr. George K. Anderson took the chair as Presiding Officer. Mr. Gillespie: Mr. President and gentlemen of the Convention, at the time we took a recess I was reading from my report. T would like to continue that reading: We conclude, therefore, that if the majority report should be adopted, it will demoralize the people, and work untold evil to the State, because: 1st. It will cause those who are discriminated against to despise and defy the law. 2d. It will cause honest and upright men to lose respect for the law and to refuse to take part in its administration. 3d. Its fraudulent administration will make worse men of those who administer it, and bring the law and those who administer it into contempt with all classes. We believe that every citizen of the State should be justly and honestly dealt with. The law defining who shall have the right of suffrage should be as plain and certain as it can be made, and, as far as the ingenuity of man can devise, it should be so drawn as to prevent any partisan or fraudulent administration of it. This will inspire confidence in the law and cause all men to take part in its administration — a result greatly to be desired. Now, gentlemen, under the plan which is now suggested and under consideration, the standard is different from the original plan but equallj- as elastic. According to this plan, the standard is to be the ability to understand, or give a reasonable explana- tion, when read to him by the officers of election, of any section of this Constitution. What kind of a standard of measurement is that to determine a man's capacity to exercise the right of suffrage? Will the registration board understand the Constitu- tion? Who knows whether they tmderstand it properly, or not? And yet the under- standing of the voter is to be measured by the understanding of the registration board. Do we not know, gentlemen, that the meaning and extent of this is to vest in the registration board the absolute and arbitrary power to register whom they please, and reject whom they please? Will such a measure as that stand under the Federal Constitution? In the case of Tick Wb vs. Hopkins, 118th United States, page 369, the court comments upon a similar power vested in a board, and says: When we consider the nature and theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself. Fran- chise, though not regarded strictly as a natural right, but as a privilege merely conceded by society according to its will, under certain conditions, nevertheless, it is regarded as a fundamental political right, because preservative of all rights. Though the law itself be fair on its face, and impartial in appearance, yet. if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution. So that if this law is to serve the purpose for which it is intended, it must be administered with an evil eye, and when administered with an evil eye it is in direct conflict with the Federal Constitution. On the subject of this being a mere temporary provision, I will like to say that my understanding of the Constitution is that it should be composed of fundamental prin- ciples, so as to insure good government for the people for years. But the measure that we now have under consideration is to be only a time server. 3014 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. It is to last only until the 1st of January, 1904. The measure is so fraught with wrong, so potent for evil, that even its authors are afraid to allovv^ it to hecome perma- nent. Under it they hope to enroll an electorate which will serve their purposes for years to come. The framers of this article should go down into history as time- servers, as makers of shifts for the time being, and not as framers of a Constitution which is to last for years. The question as to the necessity for passing this measure was referred to by me this morning in a reference made to the remarks of the gentleman from Roanoke (Mr. Robertson). Is there any necessity for a great race like ours, a superior race, to resort to such methods in coping with an inferior race? Is there any necessity for it, when we consider the vast majority of white people in this Commonwealth, the vast majority of intelligent white people, as compared with this inferior race? I have heard it urged that the reason for this provision is that as long as the negro has the right of suffrage there can be no fair elections in Virginia. It has been admitted by the Democratic press of this State, and by Democratic speakers almost all over the State, that the elections in what is known as the Black Belt are carried by fraud. The remedy by which they propose to correct this fraud is to destroy the negro vote. Gentlemen, I have been taught to believe that where a man was guilty of a fraud, or of cheating another man, the man who committed the fraud should be punished, that a man who steals a vote should be punished. But what is the remedy suggested here. The remedy suggested here is to punish the man who has. been injured. It is now proposed to right a wrong by punishing those who have been defrauded of their votes to the extent of destroying their right of suffrage; in other words, the negro vote of this Commonwealth must be destroyed to prevent the Demo- cratic election officers from stealing their votes, for it seems that, as long as there is a negro vote to be stolen, there will be a Democratic election officer ready to steal it. We are therefore urged to make this change in the fundamental law of the land for the purpose of correcting election abuses. My idea, gentlemen, is that the proper way would be to write into this Constitution an absolutely fair election law. I have added one, so far as I am able to, in my report. It is not worth while for me to argue this question further. I only want to enter my earnest protest against this provision as fraught with untold evil'. Mr. Dunaway: Mr. President, we are all, I suppose, desirous of reaching a vote upon this question. I concur in that desire, and I have made up my mind that I would not occupy any of your time before reaching a vote. I promise now that I will not occupy but a few moments. The reason why I take the floor is that I feel restive under the imputation that has been, as I think, cast upon me and upon many of my comrades here of th? prevailing party in this Convention. The language was not applied directly to me by the gentleman who has just spoken. It was applied to the gentleman from Pulaski. The gentleman from Tazewell expressed great surprise that the gentleman from Pulaski would temporize with fraud. Those were his very words. As I occupied in this matter precisely the position that is occupied by him, and by others here, I cannot feel content that his expression shall go unchallenged. T think that it comes with a very bad grace from the gentleman who is one of the minority party of the Convention, I suppose that he and the other Republican members of this Convention will vote that, hereafter, elections shall be by ballot. The gentleman knows as well as I do, that wherever there is a ballot, there is an opportunity for fraud, and if the gentleman is so afraid of it, he ought to vote to strike that provision out of the Constitution, and give us the old system of "viva voce" vote, for it is not only true in Virginia, but it is tiue in every State of the Union, and it will be true everywhere, that when the will of the people is to be made known by a secret ballot, there fraud will be perpetrated. Those who are occupying glass houses should beware how they cast stones. It is not only in the eastern portions of the Commonwealth that the negroes are in DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 3015 the majority, and that fraudulent practices are committed in regard to the counting of ballotsi. I think it is true in other portions of the State, in portions of the Southwest, for instance, that the ballot has not always been properly cast, and has not always been counted as cast. Temporizing with fraud! It is admitted on all hands that frauds are perpetrated in the elections held in the Commonwealth of Virginia. The grossest frauds are committed, and if any party in this State is responsible for these frauds it is the Republican party, which has sought to introduce manhood suffrage into the Commonwealth of Virginia, whereby, in many counties of this State, white men, if the will of the Republicans should be fulfilled, would be absolutely at the tender mercy of the negroes, and would be dominated by the majority of black men of those counties. It is idle to talk to us about the great white majority in the State. We are not here seeking for a white majority in the Common- wealth of Virginia. We want t^Le people, in their county elections), to be free from the risk of having their clerk's oflace filled by a negro, and from the risk of having a negro for Commonwealth's Attorney, and negroes filling all of the offices in the county. His remedy for fraud would be to punish those who commit the fraud. He would fix this black domination upon the people in the various counties of this State, and even upon my own county, where the negroes are in the majority. When the white men of those counties, under the force of indomitable racial in- stincts, have felt themselves compelled to resort to measures they have themselves abominated, in order to cast off this black domination, the gentleman from Tazewell would say that those who are attempting to get rid of that domination should them- selves be punished. Not only would- he put us in the power of the negroes, but, if by some means, we escape from that power, he would have some penalty of law imposed upon us for the sake of freedom from temporizing with fraud. If all of the negroes of the Commonwealth are to vote as they would vote, for the Republicans, the same state of things that at present exists will continue to exist in this Commonwealth; whether I justify it or not, whether I am able to prevent it or not, and whether the gentleman from Tazewell would punish the men who used these improper means in order to escape from that black domination. That is an established fact that every man knows. If this so-called temporary understanding clause was the only thing that was put here as a qualification for voting, it would be extremely obnoxious. It is put here rather for the purpose of enlarging the number of electors than for any other purpose; as an enfranchiser, and not as a disfranchiser. TherJ are many people in the Commonwealth who have not served in the army or navy in time of war, and whose sons have not served in time of war, who do not pay as much as $1 tax upon property, and we desire that these people — and it applies to the blacks as well as the whites — should have an additional opportunity of getting upon the registration rolls. There is no taint of fraud in this provision, and if there was, we could not be brought to support it, under any consideration whatever. It is a just and reasonable thing. It is an ideal plan, if it could be ideally administered, that people ought not to vote, who do not understand the form of government under which they are living. I am one of those who believe that it is going to be fairly administered. I call the attention of the gentleman of the other side to the fact that the registrars who are to administer this understanding clause will be appointed by the members of this Convention. I know enough about the members of this Convention, and about every one of them, to say that they will use every means in their power to insure the appointment of registrars from the most honest and capable men in their counties. I believe that the provision will be fairly administered. If it were to run for a long time, we might suspect that there would come a time when it would be fraudulently administered, not only against the black men, but against the white men, hut, as it is to continue only until 1904, and is to be administered by men to be appointed by the members of this Convention, I believe it will be fairly administered. On its face, it is capable of honest administration, and I believe it will be honestly administered. 3016 DEBATES OF THE COJ^STITUTIONAL CONVENTION OF VIRGINIA. Having said these things, let me say a word in regard to my position upon this subject. I opposed, as best I could, from first to last, any understanding clause whatsoever, and even after the two sessions of our conference had met in joint convention, and a committee of five from each side had brought in a compromise report, there were thirty of us members of this Convention who met in a room in this building, and combined to oppose that report. There was an organization among us for that express purpose. We came into this hall with our competing proposition, and we had no understanding clause in it. In the Convention, from first to last, we had free debate and untram- melled voting. We were in conference with our brethren. . It very soon become appar- ent that there was but one plan of suffrage upon which the majority of the Democratic members of this body could possibly compromise, and that was the plan which has been presented to this Convention. WHien I found that out, I determined that I would make no factious opposition. I battled against this understanding clause until I found that the majority of my brethren were in favor of this clausie as it is, and then I acceded to it. I am going to support this plan right through, and vote against every amendment proposed to it that in any material way affects it. I was not bound by the action of the conference. None of us were bound; but I do feel, standing here to-day, that, as a mem- ber of that conference, I should submit to the decision that was reached by it. We have had our opportunity for discussion and for debate, and I now feel that, having agreed as a body of brethren of the same party upon a specific plan, the best thing we all of us can do in the Convention is to stand by the result that was reached in conference. I forewarn you, gentlemen, that if this motion now pending prevails, and the tem- porary understanding clause is stricken out, some gentleman will propose to insert in place of it a permanent understanding clause. If that fails, another will propose to insert a property qualification, and then you will be just where you were in the beginning. Some members of the Convention will De- at sea and others, in the air and we will bs likely to fail to agree upon any plan whatsoever. I shall support this plan because I believe it is the only plan upon which this Con- vention can agree. Whether it be the best plan or not, I heartly accept it as a com- promise, for it is a compromise of compromises, a bundle of compromises. No gentle- man here can expect to get all that he wished for when he came to the Convention; and having fought for what he wanted let him take what the majority has presented to him. Mr. Watson: I would like to ask the gentleman whether when the gentleman from Lynchburg (Mr. Glass) was asking his catechism as to how the different gentlemen had voted on this proposition, my friend from Lancaster did not tell him that he preferred the permanent understanding clause to the temporary one. Mr. Dunaway: I said so in conference and I was beaten in conference. The per- manent understanding clause was knocked out, as the gentleman from Pulaski said, and I do not propose to try to revive it here. I state again that I accept the result that was reached by the conference. Mr. Hatton: Mr. President, I regret to have to say anything more to the Conven- tion on this subject; but I feel that it is due to myself and it is likewise due to my brethren from the Black Belt that I should at least say something by way of explanation, rot by way of defence, because I believe that their action in relation to the suffrage plan reported by the conference needs no defence. I have not favored an understanding cLause, except so far as the acceptance of an understanding clause might have been necessary to save us from something more distasteful; and, to me nothing which has been presented for our consideration is more distasteful, save those provisions which recognize certain hereditary privileges and exemptions, and which may be generally designated as grandfather clauses. I do not like to designate anything here as that which I like best. I prefer to take the contrary position and designate those things DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF YIEGIXIA. 3017 which I abhor most, and the first in that category may be designated as grandfather clauses — those clauses which give constitutional recognition to the idea that privileges or exemptions outside of and above the general laws can come to any man only by the the accident of birth. So far as it was necessary to take an understanding clause in preference to that species of constitutional provision, I was willing to take it, and to take it permanently, if necessary; but I was willing to take it only under those condi- tions, only as the drowning man catches at any flotsam that comes within his reach and which may buoy him up until something more substantial may come within his reach. Mr. Chairman, my distinguished friend from Norfolk (Mr. Thom), who addressed the Convention this morning, has seen fit to criticise those representatives from the Black Belt who did not favor the understanding clause. For them he invoked the for- giveness of Almighty God, because he said they knew not what they did. As one of thos3 delegates who opposed the understanding clause and who comes from the Black Belt, I stand here in this presence and declare my thankfulness to the Almighty that I and my colleagues from the Black Belt were endowed with the> wisdom and foresight to oppose and defeat the permanent understanding clause. I believe that a permanent understanding clause would have wrought nearly as much evil in the Black Belt as it would have cured. I am here now to declare that conviction, and whatever responsi- bility is to come I am willing to take it, and take it cheerfully. I am not afraid to face my constituents and to declare that I have opposed and will continue to oppose the per- manent understanding clause, under the conditions which I have indicated. I would suggest to my distinguished friend from Norfolk that he should first pluck the beam from his own eye, and then perhaps he may see more clearly, because I be- li'9ve that the vision of my friend is defective. It seems to have become of a triple expansion multiplying kind, since he has been considering this suffrage question. A negro now looks* to him as big as an elephant. Every time he sees one negro that one is multiplied into a dozen. I believe he has wrought himself up to such a pitch, and that it is he who does not see clearly the condition of things in his own section of the State, and that every difficulty surrounding the question has become magnified tenfold. For my own part I would be willing to strike from this plan the temporary understand- ing clause and that portion extending the privileges of the old soldier to his son, and would be delighted to see both of these provisions eliminated, but I know that if they are eliminated the suffrage article as agreed upon in conference wull not stand without having inserted in it something even more distasteful to me than the provisions elimi- nated, and no man in this Convention can forsee the result which may ensue from eliminating these provisions now. We have reached an agreement in conference on this suffrage article by a compromise on every hand, every man has given up some- thing, and I shall not lift my voice or hand against that article. I believe that in so doing I would be recreant to the trust which my constituents have imposed upon me. If the gentleman from Norfolk is willing to go back home to his constituents on his record in this Convention I am willing to stand by mine, and I have nothing to fear from honest men. I believe that a permanent understanding clause could not get a majority of the thinking voters in the city of Norfolk. I prefer a poll-tax, cumulative forever; and in addition to the poll-tax would have required, as a prerequisite to voting, that a man should have paid all taxes with which he was legally assessed. In addition to that, I would have preferred a small property qualification or an educational qualifi- cation, and there I would have been willing to have rested my case. From what I know of the conditions in the Black Belt I believe that such a provision would have been alto- gether efficient, and in addition it would have been honest, simple, and easily under- stood. Now, Mr. President, with this statement and having gone on record as to my views in this matter, I am content to let the question rest. I propose to support this plan in toto, for I believe that it is the best thing we can get under the prssent condi- tions. (Applause.) Mr. Glass: Mr. Chairman, if nobody else desires to speak upon this amendment, I 100— Const. Deb. 3018 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Simply want to say to the Convention that I shall not now reply to the assaults that have been made upon this plan by certain gentlemen of the Convention of the domi- nant party and certain other gentlemen of the Convention of the minority party. So far as I am concerned, I am not restive under their attacks. Nothing has been said against this plan that has not been said a thousand times and met, answered and over- thrown. When I vote I have no apologies or explanations to make to anybody what- ever. The objections I had to any material features of this plan I stated to an audiiance that was called together in brotherly conference; and I do not propose to state them now. Th^ question having been taken, the result was announced— Ayes 21, noes 44— as follows: Ayes— Messrs. Blair, Bristow, Brooke, Crismond, Davis, Earman, Gillespie, Green, Hamilton, Hubard, Ingram, Marshall, Mcllwaine, Pedigo, Phillips, Pollard, Rives, Sum- mers, Thom, Waddill, Watson — 21. Noes — Messrs. George K. Anderson, W. A. Anderson, Ayers, Barbour, Thomas H. Barnes, Bouldin, Braxton, P. W. Campbell, Carter, Daniel, Dunav/ay, Eggleston, Fairfax, Fletcher, Garnett, Gilmore, Glass, B. T. Gordon, James W. Gordon, Hardy, Hatton, Hooker, Hunton, Claggett B. Jones, Keezell, Lawson, Lindsay, Lovell, Miller, Moncure, R. Walton Moore, O'Flaherty, Pettitt, Quarles, Smith, Stuart, Tarry, Thornton, Turn- bull, Walker, Willis, Withers, Wysor, the President — 44. The amendment was rejected. The President: The question is on the adoption of the section. Section 3 was read. The motion was agreed to. Mr. Braxton: I move to amend section 3 by inserting at the end of line 26 these words: "Who is blind or physically unable to prepare his ballot or* who shall make oath before the judges of election that he is unable to read." So that the sentence, as amended, will read as follows: Every person registered under this provision, who is not blind or otherwise phy- sically disabled shall prepare and deposit his ballot without aid from another, on such printed form as may be prescribed by law; but any voter registered prior to January 1, 1904, who . is blind or physically unable to prepare his ballot, or who shall make oath before the judges of election that he is unable to read, may be aided in the pre- paration of his ballot by such officer of election as he may himself designate. The effect of this amendment is merely to prevent a man from getting aid in the preparation of his ballot, when he is able to read. Under the provisions of this article it is probable that the great bulk of the white voters of the State, numbering in the neighborhood of 300,000, will be registered. Of that 300,000 voters I believe there are only about 36,000 who are unable to read. Those who are blind or who are physically unable to prepare their ballots are of so small a number that they need not be counted. So that there will be, in all probability, registered under the temporary provision of this section from 250,000 to 260,000 voters who are neither blind or physically unable to write their own ballots, nor illiterate; and yet every one of these men will be authorized to have their ballots fixed for them, although they may be able to read as well as you or I can. Now, Mr. President and gentlemen of the Convention, it has been said again and again that the necessity of preventing bribery and corruption in elections is almost as great as that of controling the negro vote. So far as I see there is practically nothing in here that is not in the law to-day that will tend to prevent bribery in elec- tions. As has been stated here so often and so forcibly by the gentleman from Page, the most efficient, and I may say the only efficient, method of preventing the selling of votes is to prevent the man who sells them from demonstrating the delivery of them. If a man who is neither blind nor physically disabled and who can read, asks DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX Ox VIEGIXIA. 3019 somebody to fix his ballot for him there can be but one motive, and that is to show that he votes his ballot which he has sold, in the way he agreed to vote it. When you have deprived him of that you have taken the greatest step towards preventing bribery in elections that you can possibly take. It is not proposed, by this amendment, to prevent any man who cannot read from getting assistance in fixing his ballot. When a man asks another to fix his ballot for him the only legitimate excuse he can make for asking it is that he cannot read. This amendment simply says that if he cannot read he can have assistance, and if he can read he shall not have assistance, because there is then no legitimate excuse for his having assistance. Mr. Keezell: Don't you think ihat it could sometimes happen that a man who might read very poorly, but vrho might still be a man of considerable standing in his community, would feel himself unable to prepare his ballot, and wo\ild want to vote, but yet would not be willing to come up and make oath that he could not read. Mr. Braxton: Xo, sir. I do not think that could happen, but if it did happen it would not be in one time out of fifty thousand. A man who can read can certainly read the names of the candidates on the ticket, and if, notwithstanding the fact that he can read, he has not got sense enough to understand the names he ought not to vote. But that would never happen, if he is a man such as you have mentioned, except in some very extraordinary case. I say that when a man asks another to fix his ballot there can be but one legiti- mate excuse, for it and that is that he cannot read it, or that he is blind or physically disabled from fixing it himself. By permitting a man who can read to have assistance in the preparation of his ballot you throw the door wide open to practices of fraud, and you fail to avail your- self of a well-lmown and thoroughly tried experiment that can work no hardship upon any man, by saying to him that if he is able to fix it himself you will not allow any- body else to fix his ballot for him. Xo man who is registered after 1904 is allowed to receive any assistance, whether he can read or not, unless he is blind or physically disabled from the preparation of a ballot. I propose that the only diiference betv.-een the members of the present electorate and those of the future electorate, shall be that the man of the present electorate shall have assistance if he cannot read, but if he can read, he should not have any assistance in the preparation of his ballot, any more than the members of the future electorate shall have that assistance. I^lr. Dunaway: Will the gentleman permit me to call his attention to the fact that it is prescribed here that he may get assistance from such judge of election as he may designate and that there will then be no chance of selling his vote, because you have already provided that none of the judges shall be candidates. Mr. Braxton: Z^Jy friend does not understand. A man will sell his vote for the Republican ticket and in order to show that he votes the Republican ticket, although he can read as well as you can, he will agree to call on the Republican judge to fix his ballot for him and that shall be the proof that he voted as he agreed to vote, and that he delivered the goods which he sold. I wish to limit the opportunity as far as possible, for the commission of fraud of this kind and provide that a man shall not call in assistance In the preparation of his ballot, unless he is unable to read. Then a man will not buy his vote because there is no way in which he can tell that the vote has been delivered. Mr. Blair: I would like to ask the gentleman a question for information as I want to understand his proposition. Is it your proposition that no voter who can read can have assistance simply because he can read? Mr. Braxton: The proposition is sirnply this. It is provided that those who register after 1904 shall not have assistance unless they are blind or physically unable to prepare their ballot. I propose now that those who are registered before 1904 shall have assistance if they are blind or physically imable to prepare their ballots or unable to read; but if they are neither blind nor physically unable to prepare their 3020 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. ballot nor unable to read, they shall not have assistance, because there is no legitimate excuse for giving them assistance. Mr. Blair: Do you not think there is many a man who can read who can not mark his ballot? Mr. Braxton: No, sir. I cannot agree with my friend on that point. I think it would be a very rare thing to find a man who can read his ballot and yet does not know how to vote it; and I do not think that in order to meet such a very extraordi- nary case as that we should throw open the doors to infinite corruption by permitting 250,000 voters, who may choose to sell their votes, to avail themselves of this oppor- tunity to do so. Mr. Wysor: Mr, President, I hope it will be the pleasure of the Convention to vote down the amendment of the gentleman from Augusta (Mr. Braxton). Originally I thought that every man ought to have aid in marking his ballot, but I am willing that it may be applied to the future voter only and that he may be required to mark his ballot as an educational qualification to voting. Now there are a great many men in my county who can read, but who perhaps, cannot mark their ballots. When we have a great long ballot such as the one we have in presidential elections, I want somebody to mark my own ballot. I believe the men in my county are as intelligent citizens as uny in the Commonv/ealth, and you may go there and you will find some of the best citizens in the county cannot mark their ballots properly. You take an old man, a farmer, a man who is not used to doing such things as that, his hands are- stiff, and he is not accustomed to it, and he goes into the dark booth with his spectacles on and he cannot see the names. He ought to be allowed to have somebody to show him how to mark his ballot if he wishes. We are interested in this matter of the permanent roll, and we want to have men upon it to cast their votes correctly and not in such a manner as to allow a lot of ballots to be thrown out. As to fraud, we can have laws against buying votes which will be more or less effective. The man who sells his vote wants to get his reward, and he will have to get one of the officers to mark his ballot. Fraud will soon be detected, and you will soon catch a man who is buying votes by the men he selects to mark his ballot. This is the provision the gentleman from Augusta (Mr. Braxton) has been arguing for heretofore, and I hope the Convention will vote it down unanimously. Then he can console himself with an incident which took place out West, A cowboy was killed, and the other cowboys erected a tombstone over his grave, and wrote on it " He has done his damndest. Angels could do no more." (Laughter.) Mr. Pedigo: I would like to have you explain how it could be told whether fraud had been committed or not ' by knowing who marked the ballot. I wish you would explain how you could tell whether or not there had been fraud by either one of the three judges? Mr. Wysor: Well, when I came to mark your ballot, I would mark it Democratic. (Laughter.) That would be the best vote you ever cast in your life. (Laughter.) Mr. Pedigo: I ask you how you could tell by what judge of election he was asked to mark his ballot, and whether he Vv^as bribed or not. Mr. Wysor: Well, for example, if I saw a number of Republicans coming into the election-room and selecting a Republican to mark their ballot, I v/ould conclude that some Republican on the outside was buying tlieir votes. (Laughter.J Mr. Pedigo: If he v/as a Democrat would you conclude that the Democrats were buying his vote? Mr. Wysor: They v/ouldn't do it that way. They would first select one man and then another to mark their ballots. (Laughter). Now, gentlemen of the Convention, the gentleman from Augusta (Mr. Braxton) is stuck on this provision just like the gentleman from Norfolk Vv^as stuck on his plan. It is simply another Annabel Lee v/itli the gentleman from Augusta — DEBATES OE THE COXSTITUTIOXAL COXYEXTIOX OE TIHGIXIA. 3021 For the moon never beams without bringing him dreams Of the beautiful Annabel Lee. And the stars never rise but he feels the bright eves Of the beautiful Annabel Lee. (Laughter and applause.) The Presiding Officer: The question is on the adoption of the amendment pro- posed hy the gentleman from Augusta. The question having been taken, the result was announced— ayes 13, noes 56. The amendment was rejected. Mr. Kendall: I move that in line 28, page 5, after the word '-'designate" in line 28, there be inserted the words "unless he is unable to prepare the ballot Eimself." The amendment was rejected. Mr. Waddill: I move to amend by adding after the word "years" in line 6 of this section the words " under the provisions of this Constitution or laws passed pursuant thereto." As it stands it limits the capitation tax to the tax imposed under this Con- stitution. I think this amendment will make it as it was intended to be, and it makes it conform to Section 1. Mr. Glass: Mr. Chairman, I think that is what the section provides now. It provides that the poll-tax as a prerequisite to voting shall not be required by this Constitution until after January 1st, 1904. Mr. Waddill: I do not think it makes it clear enough. By this section it says he must pay the capitation tax for the preceding three years; that is, those who have registered after 1904. He may have to pay a capitation tax for the years 1902, 1903, and 1904. This will make it clear as to what you mean. Mr. Glass: I think it is plain what is intended. The amendment was rejected. Mr. Braxton: Mr. President, I move to amend this section by inserting at the end of line 26 these words: " Who is blind, unable to read, or physically unable fo prepare a ballot." It seems to me and to a number of gentlemen who agree with me, that a man who can read ought not to have assistance, but many of them think it unwise to require him to make oath that he cannot read. The effect of this amendment is to omit the matter of taking the oath, and merely provide that those shall be entitled to assistance who are blind, unable to read, or physically unable to prepare their ballots; but if he lias none of those impediments that he shall not be entitled to assistance. The amendment was rejected, there being, on a division — ayes 18, noes 36. iMr. Gillespie: I move to strike out the words "officer of election" at the end of line 27, and insert the word "person." The clause would then read: "may be aided in the preparation of his ballot by such person as he may designate." Mr. Blair: I will state, gentlemen that I advocate this amendment, and my reasons for doing so are these: That if you accomplish what you claim this suffrage plan will do, that is. to purify the electorate, then there is no reason for the method that has obtained in the State of Virginia for so many years, of having an election officer to prepare the ballots of a voter whether he wants them to do so or not. Unless you allow the voter, when he comes to the polls, to designate who shall mark his ballot, what will be the result? The dominant political part}'- will select three judges of election, two of them coming from that party and one from the other as we have at present, and the majoritj* of the judges will select who shall mark the licket. The question having been taken, the result was announced — ayes 11, noes 59. The amendment was rejected. The Presiding Officer: The question now is upon the adoption of Section 3. Mr. R. L. Gordon: Mr. President and gentlemen of the Convention, I shall not detain you but a moment. I simply desire to offer the same amendment that I offered 3032 DEBATES OF TPIE CONSTITUTIONAL CONVENTION" OF VIRGINIA. in the Conference on this section, and that is to insert in line 23, after the word " election," the foflowing: Provided, that he, his wife, or his parent, be the bona fide owner of property assessed for taxes to the value of $200; and provided further, that this property qualification shall not apply to any soldier mentioned in Section 2, or the descendant of such soldier. Now, Mr. President, I shall not detain this honorable body but a moment. I desire only to say that, while the provision which is made here for the present voter is ample and sufficient, yet in the mind of some of us the provision which is made for the future voter is totally inadequate. I do not desire to detain this body with the arguments which I have already ad- dressed to the Conference. I simply desire to put this amendment into the record, and give it to the gentleman in this body who believes that a small property qualifica- tion so arranged as to affect the great body of colored men of this State and very few of the white race of this State will be beneficial to the future electorate of Vir- ginia, and vv^ill tend more to lift up and purify elections and the election methods than any of these little nostrums which gentlemen have provided here in the shape of plasters and other remedies such as making a man swear that he will not buy a man and making him promise to be good. Let us, Mr. President, if we really desire to purify the elections of this State, reach down to the root of the evil. Tear up the root, and the growth that we all regret, will be destroyed v/hen you destroy the root. I desire to say, further, Mr. President, that this is an amendment with which this body is entirely familiar, and it needs no explanation here. I would say for the benefit of my Republican friends who may desire to support it, that its effect is sim- ply to apply a property qualification to the future voter of Virginia, not to the man who would be put upon this permanent roll, but the future voter; and that there is exempted from its operation the soldier and his descendant. (But it will apply to all other people. 1 desire further to say, sir, that, so far as I am individually concerned, I would be perfectly willing to strike out the educational qualification for the future voter if this small property qualification were admitted. I believe that the educational qualification as to the future voter is going to affect some of rny friends from some of the counties of this State a great deal more than a small property qualification arranged as this is. Mr. Summers: Mr. President, we would like to have the views of the gentleman from Louisa on this subject. The twelve disciples of this Convention have never been posted as to his views on this question. We have plenty of time. The generosity of the Convention has given us plenty of time. Mr. R. L. Gordon: I am very much obliged to my Republican friend, and I would like very much to discuss this question if I could do so to the edification of my Repub- lican brethren without such a tremendous punishment of my Democratic brethren. But if the gentleman had been in the Democratic Conference and had seen the scrap- ping and the row that we Democrats have had before we could agree on this proposi- tion, he would not ask any Democrat to repeat his argument. Because, if those argu- ments were repeated, sir, you yourself would resign and go home before you got through with the performance. The Presiding Officer: The question is on agreeing to the amendment of the gentleman from Louisa (Mr. Gordon). The question having been taken by ayes and noes, the result was announced— ayes 14, noes 57 — as follows: Ayes— Messrs. Barbour, Thomas W. Barnes, Boaz, Brooke, Brown, Fletcher. R. L. Gordon, Green, Hardy, Hubard, Claggett B. Jones. Moncure, Watson, and Willis— 14. Noes— Messrs. George K. Anderson, W. A. Anderson, Ayers. Blair, Bouldm, Brax- ton Bristow, P. W. Campbell, Carter, Crismond, Daniel, Davis, Dunaway, Earman, Eggleston, Fairfax, Garnett, Gilmore, Gillespie, Glass, James W. Gordon, Gwyn, Han- DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF YIEGIXIA. 3023 cock, Hatton, Hooker, Hunton, Ingram, Keezell, Kendall, Lawson, Lincoln, Lindsay, Loveil, Marshall, Mcllwaine, Miller, R. Walton Moore, Munday, O'Flaherty, Pedigo, Pettit, Phillips, Pollard, Quarles, Rives, Smith, Stebbins, Stuart, Summers, Tarry, Thornton, Turnbull, Waddill, Walker, Withers, Wysor, and the President — 57. The amendment v:b.s rejected. Mr. Gillespie: I move to amend the section under consideration by striking out the words beginning in line 10, with the vrords "and shall" dovrn to and including the v\'ords "registrar of election" in line 23, as follows: And shall, unless he be physically disqualified, make application for registration in his own. handwriting, without aid or suggestion or the use of memorandum, in the presence of an ofiicer of registration of the precinct in which he resides, setting forth the names and residence of his parents, his own name, age, place, and date of birth, his occupation and place of residence at the time and for two years prior to the date of his application; and if he has previously voted, then to state in what State, county, or city, and voting precinct he last voted; and he shall answer, on oath any and all questions propounded to him by the registration ofiicer affecting his qualification as an elector, which said questions and answer shall be reduced to writing; having done which and made oath to his statement, he shall be duly listed by the registrar of elec- tion. The amendment vs-as rejected. Mr. Glass: Mr. President, it has been suggested, and if no objection is offered from any other source I shall not object, that the words " the names and residence of his parents," in line 14, page 4, in the application for registration, be stricken out. Mr. R. L. Gordon: I am not going to support this article, but I am going to support the Constitution. (Applause.) I would like to support the article, but there are too many precious things in this Constitution to allow me to vote against it just because I cannot have my own way on the suffrage matter. (Applause.) But I do think, ]Mr. Chairman, that we ought not to cut down the educational qualification one iota. :\rr. Stebbins: Mr. President, I hope the Convention will vote down this amend- ment. I think we have gone as far as we can in making the requirements for the future voter as light as possible, and that we can go no further. (" Question." " Question.") The Presiding Officer: The question is on the adoption of the amendment of the gentleman from Lynchburg. The question having been taken, the result was announced — ayes 37, noes 32, as follows : Ayes — Messrs. W. A. Andersen. Ayers, Blair. Braxton, Bristow. P. W. Campbell, Crismond, Daniel. Davis. Dunaway. Earman. Fletcher, Gilmore, Gillespie, B. T. Gordon, Gwvn, Hancock. Hooker. Hunton. Ingram. Keezell. Kendall, Loveil. ^larshall. ^loncure, Munday. O'Flaherty. Parks, Pedigo, Phillips, Quarles, Rives, Stuart, Summers, Waddill, Walker, and Wysor — 37. Xoes — Messrs. George K. Anderson, Barbour, Thomas H. Barnes, Boaz, Bouldin, Brooke, Brown, Eggleston, Fairfax, Garnett. James W. Gordon. R. L. Gordon. Green, Hardy,' Hatton, Claggett B. Jones, Lawson, Lindsay, Mcllwaine. Miller, R. Walton Moore,' Pettit, Pollard. Smith, Stebbins, TariT- Thornton, Turnbull, Watson, Willis, Withers, and 'the President— 32. The amendment was agreed to. Mr. Glass: Mr. President, there is an amendment suggested by the gentleman from Northampton, to vrhich I shall raise no objection, if nobody else does. On page 5, line 28. after word "designate," it is proposed to insert these words: "So far as consistent with the provisions of this Constitution the absolute secrecy of the ballot shall be maintained, and to this end the General Assembly may enact such laws as may be necessary." 3024 DEBATES OF THE CONSTITUTIONAL CONVENTION" OF VIRGINIA. Mr. Kendall: I will saj^ gentlemen, that there is nothing in the article, as now framed, as far as I can see, that requires that the ballot shall be secret, and there is no reason why the ballot could not be thrown on a table where the ballot-boxes are kept, and anybody could go up and prepare a ballot there. That defeats the object of a secret ballot, and it gives the fullest opportunity for fraud. Mr. Brooke: Is there anything in the article which would prevent the Legislature from passing such a law? Mr. Kendall: No, sir; but I want to make it mandatory upon them to do it. Mr. Glass: One section of the report says that the General Assembly shall pro- vide by law for the fair and orderly conduct of all elections. However, I raise no objection to the amendment. The Presiding Officer: The question is upon the adoption of the amendment offered by the gentleman from Northampton. The question having been taken, the result was announced — ayes 42, noes 26. The amendment was agreed to. Mr. Glass: I move the adoption of Section 3, as amended. The motion was agreed to. On motion of Mr. Stuart the Convention adjourned until tomorrow, Wednesday, April 2, 1902, at 10 o'clock A. M. WEDNESDAY, April 2, 1902. The Convention met at 10 o'clock A. M. Prayer by Rev. George Cooper, D. D. ELECTIVE FRANCHISE. The President: The unfinished business before the Convention this morning is the consideration of the suffrage article. Sections 4, 5 and 6 were read and adopted. The Secretary read Section 7. Mr. Gillespie: I offer the following amendment to come in at the end of Section 7: At the end of Section 7 insert the following: And a copy of the ballots to be used at anv election shall be posted by the Sheriff of the county or Sergeant of the city, for at least ten days previous to the election, at each voting precinct of the county or city where the election is to be held. Mr. President, the object of this amendment is to enable the voter before the day of the election to see the kind of ballot that he has to vote. Now, the past history of this Commonwealth shows that in certain counties ballots have been offered to the voters, that an intelligent man could scarcely prepare in five minutes, so as to vote it. The object of this amendment is to avoid that kind of a ballot. Mr. Barbour: May I ask the gentleman if he does not think the Legislature will be competent to enact that provision without constitutional authority? Mr. Gillespie: I do think they would be competent, but I do not think it will do to trust the Legislature to enact a law of this kind, because the past history of the Legislature of Virginia shows that they have no regard for fair elections. The President: The question is on agreeing to the amendment offered by the gentleman from Tazewell (Mr. Gillespie). The question having been taken, the result was announced— ayes 9, noes 53. The amendment was rejected. DEBATES OF THE CONSTITUTIOJsTAL CONVENTION OF VIRGINIA. 3025 Mr. Robertson: Mr. President, I desire to make a motion to strike out this entire section. I do not care to detain the Convention, Mr. President, but I do desire, briefly, to state why I make the motion. We have heard ever since we came here about our corrupt election laws. They say we have had them forced on us, and that there is no chance of our getting rid of them. Now they claim that we are going to have a new -electorate, and that we can have a new election law. Nothwithstandlng that fact, v/e are putting practically the Walton law into our Constitution and making it a perma- nent institution as a part of the organic law. We are not only resorting to this understanding clause, but we are keeping alive the Walton law. I think it ought be -done away with, and the Legislature ought to be left free to repeal that law, if in the •course of time it sees proper to do so. The motion to strike out was rejected. The President: The question recurs to the adoption of Section 7. Mr. O'Flaherty: I move to reconsider the last vote for that purpose, and I call the attention of the Convention to what I want to do. I do not want to change the section, and I do not v/ant to strike it out. I simply wish to add to it, so that it will be possible to vote on questions v\^hich may come up. For instance, if the question were to arise as to whether we want to issue bonds or not, or the question of liquor licenses for different men in a town, county or precinct. I have looked at this question pretty carefully and I do not think you can put anything in the ballot but the names of the officers and the office to be voted for. It does not provide for a question to be voted for, and what I wished to insert was " or the question to be voted upon." The question having been taken by yeas and noes, the result was announced — ayes 28, noes 35. The motion to reconsider was rejected. Section 7 was adopted. Sections 8 and 9 were read and adopted. The President: The Secretary will read Section 10. 10. Electors in county, town, and city elections shall possess the qualifications and "be subject to the qualifications heretofore prescribed by this article; but the General Assembly may prescribe a property qualification of not exceeding $250 for electors in any county, town, or city of the State as a prerequisite for voting in any election for officers to be wholly elected by the electors of such county, city, or* town, other than members of the General Assembly. Such action, if taken, to be had upon the initiative of the representatives in the General Assembly from the city, town, or county immedi- ately affected; provided, that the General Assembly in its discretion may make such lawful exemptions from the operation of said property qualification as shall not be in conflict with the Constitution of the United States or the State of Virginia. Mr. Davis: Mr. President, I move to amend this section by striking out in line 3, beginning with the word " but," the balance of the section, so that there v/ill be no property qualification for electors for voting for county and city officers. Mr. R. L. Gordon: Mr. President, before the motion is put, I desire to move to strike out in line 7 of Section 10, the words " other than members of the General As- sembly." I hope the Convention will give me its attention for a moment, because I think this is an important matter, and it is in line with the whole idea suggested by this section. I trust the gentleman from Lynchburg will find himself in position not to accept the amendment. The Convention will observe that this provision giving the counties which may desire to do so the right, through the Legislature, to adopt a property qualification applies only to county officers. I do not see any good reason for that. I hope, Mr. President, these gentlemen will give me their a^ttention for a moment. I shall not detain the Convention unduly, but I do desire that the body shall understand what I am saying, because I know there is a feeling here that any amendment ought to be voted down, a general feeling that we are to support this report, and that any amendment to it should be defeated; but I think it is fair and just tO' ourselves to know what an amendment is before we vote it down. 3026 DEBATES OF THE CONSTITUTIOXAL CONVENTION OF VIRGINIA. By striking out the words which I have indicated, " other than members of the General Assembly," the section will give to the people of any county, through the Legislature, the right to have such a qualification to apply to county officers and members of the General Assembly. I would like to know what good reason there can be for applying one rule to the election of county officers and excluding therefrom the members of the General Assembly. The very vote which we are seeking to get rid of in this amendment is the vote that troubles us in the election of members of the General Assembly. Whenever there is a political question involved these ignorant people that know nothing on earth about the duties of citizenship come up and vote as one man against what they believe to be the will of the majority ol the white people of their section. Mr. Dunaway: This v/as designed to apply to county officers. Mr. R. L. Gordon: Yes, sir. Mr. Dunaway: It sometimes happens that the legislative district is composed of two counties,. I just want to call your attention to that. That is the reason, I take it, for that language. Mr. R. L. Gordon: I am very much obliged to the gentleman f?om Lancaster for his suggestion. He makes the suggestion that in some cases a legislative district is composed of more than one county. My reply to that is, that in such counties the law would not apply. It would only apply to those counties where each county con- stituted a legislative district, unless they had similar action in both counties. But what I want to call to the attention of this body is that this is an effort on my part to extend this local provision so that it will be of some real and material benefit to the Black Belt of Virginia. I trust that the gentleman representing the more favored sections of the State will give us the right, if any county desires it, to apply a property qualification, with such exemptions as it may have under the United States Constitu- tion. I hope it will be the pleasure of this body to give to those unfortunate counties not only the right to apply this qualification to county officers, but that it will give them the right also to apply it to members of the General Assembly. Mr. O'Plaherty: I think I shall vote for jour amendment; but this constitutional difficulty arises in my mind. The Constitution of the United States provides that the qualifications to vote for Congressmen shall be the same as the qualifications required to vote for the most numerous branch of the State Legislature. Would not that raise a difficulty when the qualification of voting for the General Assembly in one part of the Congressional district was one thing, and in the other part it was another thing? Mr. R. L, Gordon: That is a Congressional provision with which I submit we have nothing whatever to do. Mr. O'Flaherty: I think we do have something to do with it, because the only right a man has to vote for a Congressman is the right given him to vote for members of the General Assembly, and that would apply to most of the electors in some Con- gressional districts perhaps. Mr. R. L. Gordon: I think, Mr. President, there is no real difficulty along that line, because that matter can be governed by law. There is no difficulty about provid- ing that this property qualification shall appy to people voting for members of the General Assembly, and even if it does apply to Congressmen what objection would there be to it? What objection would there be to the people of a county applying a property qualification to the voters of that county even if it cut down the vote in the Congressional election? It cannot do any materal mischief. Mr. Braxton: May I suggest to the gentleman, in that connection, that if his amendment is adopted it would appply to the county, provided only that the county alone elect the member of the Legislature? If two or more counties are in one dis- trict, it will not apply, as I understand. Mr. R. L. Gordon: Then it would not apply. Mr. Braxton: But that difficulty would not be avoided in the election of Congress- DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OE VIEGIXIA. 3027 men because in the same Congressional district, and in the same election to elect the same officers, one qualification would be applied to a part of the voters and another qualification would be applied to another part of the voters. In other v\-ords, it would not apply to the whole Congressional district while it would apply to the whole consti- tuency. It occurs to me that would make a substantial difference. Mr. R. L. Gordon: I appreciate that, and it vfould have the effect, perhaps, of cutting down the vote in that county; but I do not see what objection the Congressman would have, representing a white county and a black county, to have the electorate whitened in the black county. I do not see how it would make any difference even if one county should cut dovvm its vote both as to its representation in the Legislature and as to the Congressman. It might affect your representation in Congress, but there is some question as to that, sir, and I do not see that there is any real objection to it. Mr, Lindsay: May I suggest before the gentlemen takes his seat, that the very object sought to be obtained in this section will be largely defeated unless his amend- ment is adopted. I think that a member of the Legislature would be very slow to take the initiative in this matter, if 'his own election was at stake ; but if his election in the future depended upon the restricted electorate, he would represent the public sentiment in the matter and give control of these local officers. It seems to me he would be very slow to give the county the right to elect county officers when his elec- tion depends upon the very people he cuts off. Mr. Kendall: Mr. Chairman and gentlemen of the Convention, I trust you will give me 3^our attention in this matter, because it is a thing absolutelj^ vital to my people, and if this provision is adopted you will defeat absolutely the whole purpose for which this section was drawn. Apart from the objection which was raised by the gentleman from Warren, which it seems to me is conclusive, and which was in the mind of those who endorsed this section when it was drawn, there are other objec- tions which go to the whole question and which show that the purpose of this pro- vision from beginning to end. will be defeated if it is amended as the gentleman from Louisa desires. Now. I wish to ask you, gentlemen, to give me your ear and atten- tion upon that subject. The only reason that the members of this Convention from the western part of this State have consented to give their endorsement to this provision is that as it is now drawn the}^ know it will not by any possibility apply to the white counties. The very objection which was raised by the gentleman from Albemarle is the reason which we rely upon in appealing to the men from the white counties to give us their endorsement here. It is not desirable to restrict the electorate of Virginia in county matters except where necessity requires it. It is not desired that it shall be done in any county where the white people have control of that county, but it is desir- able in those counties where the white people do not control, where they are not going under the provision of this article to have control of their affairs. This pro- vision was concocted to meet their necessities. Now I know the facts. It has been demonstrated first in the committee and then in the conference and hy private confer- ence v/ith members of this Convention. I knovr the fact that if the provision which the gentleman from Louisa has asked to have made here shall be adopted it will result inevitably in striking out the whole section, because gentlemen will not under- take to saddle that provision upon their counties if it could be, by any possibility, thought that it could ever be placed upon them. Mr. R. L. Gordon: Does the gentleman think that any gentleman here represent- ing a white county which is not at all afflicted by this negro vote has any doubt or hesi- tation or any fear that the man elected by the white men of those counties will under- take through the Legislature to put a property qualification on these people? Mr. Kendall: It was urged again and again that it would be stated that in the western part of the State and in the white part of the State that it was the purpose of this Convention in this article to place the counties in the hands of the propertj^ 3028 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. owners of tHe county, and thereby make the Constitution unsupportable in the Valley and in the Southwest; and our reply to that was that as the member of the Legislature was to be elected from the full electorate he could by no possibility have any sympathy with any such movement, and he would not dare to do it, and -for that reason he would see to it, and the whole Legislature elected from the full electorate would see to it that no provision of that kind was placed upon any of the white counties. It had gone so far in the minds of some gentlemen that the motion of the gentleman from Lynchburg was deemed necessary, that this thing can only be done on the initiative of the member from the county. It was not what I desired but I accepted it so it might be stated to those people it could never be placed upon them under any condition except where their member was willing tO' accept it. Now, nearly all the colored counties of this State are so gerrymandered in our representation in the Leg- islature that they are elected along with the white county which gives them control, so that if a black county was in a condition as many will be in the course of time, to require them to appeal to this provision for protection, they would get it although it had to be done through the initiative of their member, for nearly all the members are elected from counties which, by being gerrymandered, have Democratic represen- tation. I do not desire that provision, I do not desire that it be done on this initative of the member. I desire it without that, so that the Legislature could have its hands united to do it without the initiative of the member from the county; but in conference that matter was discussed and it was adopted in that way, adopted to please these gentlemen who raise this objection in the white counties, and I say the result of adopting the provision as now suggested by the gentleman from Louisa will be to defeat the whole section from beginning to end. I trust, therefore, that the gentlemen will not give it their endorsement. I do not propose to discuss the merits of the provision, as I have done that in conference. Mr. R. L. Gordon: Mr. President, I am very sorry to have to take issue with my friend from Northampton. I do not think, Mr. President, that it will have the effect that he suggests, that the gentlemen from the white sections of the State will vote to strike out this article because it is made more effective for the black sections of the State. Now, it does seem to me that there is no reason in the imaginary evil which the gentleman has depicted here. Is there any gentleman here from beyond the mountains, or from any section of this State, who believes there will be a demand in a white county for the application of this rule; and does any gentleman in the white section of the State object to extending an additional protection to the black section of the State, when it does not cost him anything to do so, and does not affect his people directly or indirectly? On the contrary,»Mr. President, it strikes m.e that it would make this county provision a great deal more efficient and a great deal more acceptable to this afflicted portion of the State. If I thought for one moment that the gentleman from Northampton was correct and that the striking out of these words would endanger this provision, I would not urge it, because I do not want the provision stricken out. I was opposed to the provision originally, because I was opposed to all local provisions, but since our suffrage matter has taken the form in which it now presents itself I am thankful even for local pro- visions, and I do not want to do anything to jeopardize this local provision. I am simply seeking to strengthen that provision. Now, what is the sense of applying a property qualification to people who give comparatively little trouble in the election of county officers? There is scarcely a county in Virginia that has had any serious difficulty in controlling this vote in county elections, but the difficulty in controlling the vote is where a political question is involved. The very amendment offered by the gentleman of the opposition here shows that they want to strike down this pro- vision because they are opposing any restriction of that vote which we are seeking to restrict. I hope it will be the pleasure of this body to strike out these words so as to give the Legislature the power to make that provision apply to members of the General Assembly as well as merely to county officers. DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF TIEGIXIA. 302^ Mr. O'Flaherty: I v^'ould like very much to vote for this provision, but the ques- tion which I asked of the gentleman a while ago in regard to the constitutional phrase of the question is to my mind insuperable, and further than that it might jeopardize the whole suffrage plan. It is not worth while for me to recite constitutional law to this learned Convention, but we all know the only suffrage part of the Constitution of the United States is that which says who. shall be eligible as electors to vote for Congress- men of the United States. The Constitutional Convention of 1787 left the question of suffrage entirely with the State, except in so far as it knew it would be safe to say that a man could vote for the most numerous branch of the State Legislature. It was thought wise to leave it all with the State, knowing that they would not hurt them- selves. Now I say that for us to perscribe one qualification for electors in one leg- islative district and another qualification for electors in another would absolutely render this unconstitutional, and it would draw into discussion, and perhaps into jeopardy the whole of this suffrage law. If it is ever attacked by its enemies they are going to attack it at every weak point. I say I would like to vote for anything that the gentleman from Louisa wishes us to vote for, which he says will give him relief. I want him to be in a position so that he can say that the local offices shall be con- trolled by the white people and I mean it when I say that if I did not have these con- scientious constitutional scruples I should vote for it. There are some cases which have already decided this question. I think, and if I had time I could find them. I recollect a discussion of this matter in Tucker's Constitutional Law, and if I remem- ber aright he discusses this very question. I know it is wrong in law, and for that reason I shall vote against it. The amendment was rejected. The President: The question recurs on agreeing to the motion made by the gentleman from Franklin (]vlr. Davis) to strike out in Section 10, the entire section beginning with the word "but" in line 3. The question having been taken, the result was announced — ayes 18, noes 48. The amendment was rejected and Section 10 was adopted. The Secretary read Secfion 11. Mr. Davis: Mr. President, and gentlemen of the Convention, I should hate very much to see this election law go into the Constitution; but it seems to me to be now a foregone conclusion that it is going into the Constitution practically unchanged. It has been contended in this Convention that there is now no necessity for fraud in elections in Virginia in order to suppress the negro vote and keep the negro out of office. This is not a political Convention and it ought not to be. I desire to move an amendment to this section proA'iding for the appointm.ent of a Republican member on the electoral board in e^-ery county in this State. At present there is only one county in the State having a Republican member on the board, and that is my own county. We desire to have fair elections, and if we intend to have them both parties ought to be represented upon these boards, and the judges of election ought to be appointed upon the recommendation of the county organization in the various counties, that is, the organizations of the Republicans and Democrats. There are now, in many sections of this State, Republican judges of election so-called, appointed hy these electoral boards, all of whom are Democrats, and are not Republicans at all, and are known not to be Republicans of character when they are appointed on that board. They are appointed there for the specific purpose of carrjang on fraud. If this elec- tion law will do what its advocates claim it will do, that is, relieve the necessity of fraud in this State, why not have both parties represented on this board? My motion is to strike out the words in line 8, Section 11, beginning with the word "and" and ending with the word "votes" in line 11, and insert in lieu thereof the words " and representation on said board, as well as of said judges of election." ]\Ir. Wysov: Mr. President, I vrant to say to the Convention that I intend to vote for that amendment. I think the Republicans ought to have representation on 3030 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. that board. We do give them representation among the judges of election. We say- that the board shall appoint judges of election, and that both parties shall be repre- sented. I think they ought to have representation on the electoral board, so as to prevent fraud. Mr. Braxton:- Mr. President, I hope the amendment will not be adopted. It seems to be that what is now contained in this provision with reference to the political faith of officers ought to be stricken out. I agree with the gentlemen as a matter of fact, that in appointing an electoral board, or judges or officers of election, the appointments should be as non-partisan as possible; but I cannot agree with them that the political faith of a man ought to' be made the constitutional test of his qualification for holding office. There is no v/ay to tell vvhat a man's politics are, with absolute certainty. He claims sometimes they are one thing, and other people claim they are another. We have a law now, which says, I believe, in effect, that the Republicans shall have representation in the electoral board; and yet it is con- tended that those men who were put there to represent the Republican party do not, as a matter of fact, represent that party. Who is to determine it? My friend thinks it should be determined by political organizations. My friend must know that there are frequently rival political organizations. Are the courts to determine who is to have the right to speak for any particular party in any particular county or district? Are the courts to determine what a man's politics are? I would like to ask my friend, and also the gentleman from Lynchburg, with reference to the language used now. It says that this representation shall be given, as far as possible, to each of the two political parties which, at the general election next preceding their appointment, cast the highest and next highest number of votes. Do you mean to say the highest num- ber to votes cast in that county or in the State or where? It may be that the Repub- licans would cast the highest number of votes in the county while the Democrats would cast the highest number of votes in the State. It seems to me there is aii ambiguity there. I must say that I believe it to be a great mistake to introduce into the fundamental law of this State any question as to political affiliations. Notwithstanding that I agree with what the gentlemen say as to the propriety of making appointments in a non-partisan manner, yet I do not think the provision ought to be put into the Consti- tution. Mr. Glass: I will state to my friend that it is not only a possible thing to enforce this provision, 'but it is enforced in a number of States of the Union, and the language employed here was taken verbatim from the Constitution of the State of New York. Mr. Braxton: I understand that it is only nominally enforced, and that it is im- possible to be enforced anywhere any more than it is enforced here to-day. Mr. Pedigo: Mr. President, it has often been repeated in this Convention during the last nine or ten months, that the electoral boards in almost every precinct in the State of Virginia have been selected out of the vilest and most dishonest partisans that could be possibly found. Whenever they have given the Republicans, in my county, representation on that board, so called, they have picked the very meanest Democrat there was in the precinct, and called hini a Republican and put him on in order to get his consent to every rascally thing they have done. That has been the universal practice under this law. Now, how will the judge know, when he goes into a county, who ought to be appointed upon these boards? He probably does not live there, and is not acquainted in the county. Some gentlemen will go to the judge and ask for the appointment of the men contained on a list. They have got a state composed of partisans, and they are all party politicans. Mr. Wysor: I am very anxious to have this amendment passed; and if you don't quit speaking you will kill it. Mr. Pedigo: •! don't care if I do kill it. I would rather put myself right than DEBATES OF TPIE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. 3031 have this Convention do anything. In ansv^'er to the gentleman's question about how the judge would know, I wish to say that if a party is strong enough to have any respectability at all it has some official organization. I am willing to provide that the members shall be selected from five or ten persons who are recommended by the party organization, or that he shall be selected from five persons presented by the party organization of the county. We are willing to accept anything that has even a little tincture of honesty in it. If it has just a little tincture of honesty in it we are willing to accept it at present. But we do not want this old election law which has actually brought the State of Virginia into disgrace and humiliation to be continued. It will lead to trouble and disgrace in the State if it is continued, and we wai;t hereafter, no matter how much you may restrict the electorate, to have the elections fair and decent. We do not want to put a man in office who may be a forger or a briber or dishonest, in order to return, as elected, some man who could not honestly be elected to office in this State. That is all we ask. Mr. :\Ieredith: Mr. President and gentlemen of the Convention, I think we ought to ignore any question as to who makes this motion. I think we ought to recognize the fact, which I believe is correct, that this suggestion was made first in the Demo- cratic conference by the gentleman who represents this suffrage plan, and that there was quite a large vote in favor of it. It was defeated, according to my impression, by a very small majority. I think we ought to look at the question of what is right in this matter, without any regard as to what side it comes from or who starts it. The fact is that you are putting the appointment of these officers in the hands of the judges. I think it is our duty to remove the judges as far as possible from any political influence. I think it is our duty to prescribe, as far as we can, the course for the judges to pursue, in order that they may not be subjected to earnest partisan appeals, that will be made by party leaders to have the board selected from one political party. We must recognize the fact that the Circuit Cotirt judges will be appealed to most earnestly by the leaders of the dominant party to have the electoral board appointed from one party. I call your attention to the fact that you have pre- scribed here that, as to the judges of elections, the two political parties shall have representation; but when you come to the electoral board you make no such require- ment. I respectfully submit that that is an indication to the judges that you do not want them appointed in that way. You have prescribed that as to the judges of elec- tion the two leading political parties shall be represented, but you have made no such provision as to the electoral board, which is the real appointing power. That is an intimation to the circuit judges that they may exercise their political preferences in the appointment of members of the electoral board. If you are going to bring the judges into politics, I respectfully submit that you ought to make a provision that will relieve them, as far as possible, from the temptation of yielding to party prejudice. The motion of the gentleman from Franklin is. to my mind, perfectly proper, and it is along the lines that we ourselves thought proper at one time. It will relieve the judges as far as possible from any necessity for, and from any opportunity of, showing party preferences. None of us can deny that the electoral boards ought to have on them a represen- tative of both parties. If we recognize that fact, why not say it in the Constitution, instead of drawing a distinction between the electoral board and the officers of elec- tion? Yoti require this representation as to one and leave it out of the other. We should mark out, the path, so as to relieve the circuit judges from the temptation of yielding to party desires. The motion is a fair one. an honest one, and it is along the lines that we ourselves have been acting. Yriihout regard to party lines, we should support the amendment of the gentleman from Franklin. Mr. Cameron: I wish to say that the chief inducement operating on my mind towards participation in anything relating to our suffrage system was .based upon the hope that such results be obtained as would enable us to put into our election system 3032 DEBATES OF THE CONSTITUTIONAL CONVENTION" OF VIRGINIA, such laws as would guarantee us against the further continuance and spread of the corrupting influences that have sprung up in our midst, as a result of having in our electorate the great body of vice and ignorance which has been represented by the negro race. Such was the keynote of the cry that came from the county of Nottoway, which, spreading throughout the State, gave rise to the assent to the call of a Consti- tutional Convention. Anything done by us which would not lead to the purification of the ballot would be, to my mind, an abject failure. I do not agree at all with the stand- point of the gentleman who has just spoken. I do not believe in universal suffrage. I believe that negro suffrage has been a curse, a curse to the white people and an imminent threat to the negro. I believe that the Fifteenth Amendment was the crime of this age. I believe that the greatest evil flowing from negro suffrage has been that it has polluted the sources of governmental power, that the poison began where the evil was most accentuated and has spread into every limb of our body politic until, if allowed to go on, it would have made a mass of reeking corruption of the social and political order of this State. I believe that if the work we are now engaged on will accomplish what its advocates have claimed for it, a reformation of the electorate and the leaving of a minimum of dangerous element in that electorate, it is our bounden duty as citizens and as Democrats to lay down here the foundation rules which, so far as possible, will insure in the future a removal from Virginia of the suspicion that our people are wedded to those practices which would leave a stain and bring disaster upon any people who tolerate them, I shall, therefore, support the amendment. The gentleman from Augusta says that such provisions are not carried out. I want to say to him that I am familiar with the election operations in New York, in Illinois, in Minnesota, in Indiana and in Iowa, and I know that in those States both political parties are represented upon the election and registration boards, and that they are fairly represented. I know that it would be regarded as an outrage by the people in any of those States where both parties have a voice and a supervision of the processes of election, if such representation were not given. If our work has been well done — and I am going to support the work that has been done as to suffrage — if it does relieve us of this incubus of vice and ignorance, what earthly reason can there be why we should not throw every safeguard possible around the conduct of our elec- tions? I say I am going to show my faith in the work of this Convention, my faith in the suffrage clause that has been recommended by these distinguished gentlemen, and my faith in their assertion that it is going to work the result it was intended to accomplish by voting to make our election processes as clean as the cleanest and as pure as constitutional language can enforce. Mr. Meredith: Do I understand that the gentleman from Franklin withdraws the amendment he first offered, and now moves to amend by inserting in line 5 the words " not more than two of whom shall belong to the same political party?" Mr. R. Walton Moore: So far as I am concerned, I very much prefer the language of the amendment. just offered.. The vote having been taken, the result was announced— ayes 38, noes 32— as fol- lows: Ayes— Messrs. W. A. Anderson, Ayers, Barbour, Blair, Bristow, Cameron, Daniel, Davis, Earman. Epes, Gillespie, Glass, B. T. Gordon, James W. Gordon, Green, Gwyn, Hatton, Kendall, Lindsay, Marshall, Mcllwaine, Meredith, Moncure, R. Walton Moore, O'Flaherty, Pedigo, Pettit, Phillips, Portlock, Quarles, Rives, Thornton, Waddill, Walker, Wise, Withers, Wysor, the President— 38. Noes— Messrs. George K. Anderson, Thomas H. Barnes, Boaz, Bouldm, Braxton, Brown P. W. Campbell, Carter, Dunaway, Fairfax, Fletcher, Garnett, Gilmore, R. Gordon, Hamilton, Hancock, Hardy, Hooker, Ingram, Keezell, Lawson, Lovell, Miller, Parks, Robertson, Smith, Stebbins, Turnbull, Vincent, Willis, Yancey— 32. The amendment was agreed to. Mr. Portlock: I offer the following amendment: Strike out in lines 11, 12, 13, and 14, Section 11, the following: DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE VIEGIXIA. 3033 Xo person, nor the deputy of any person holding any elective office of profit or trust in this State, or in any county, city, or town thereof, shall he appointed as a member of the electoral board or as registrar or as judge of election. Mr. President and gentlemen of the Convention. I know how difficult it is, at this stage of the proceedings, to obtain any amendment to this plan now under considera- tion. But certain it is when a mistake has been made or a correction is necessary, that mistake should be remedied and that correction should be made. I feel that it is of the utmost importance that the amendment which I have sent to the desk should be adopted by this Convention, striking out. as it does, a provision whereby the elective officers and their deputies are not allowed to officiate on an electoral board or as judges or clerks of election. I make this motion for two reasons. The first is that it amounts to an unreason- able and unwarranted discredit upon the officers of this State. And secondly, if this provision is adopted in this Constitution, it will occur, time and again, that in a number of the precincts of this State you will find it impossible, especially in small election precincts, to secure the services of officers of election who can intelligently conduct the election. Now, gentlemen. I am not of that grovelling kind who believe that because a man is intelligent and prosperous he must, as a consequence, be decrie'd and discredited as to his honesty and integrity. This sentiment, this debased view of life, is unworthy of gentlemen who are themselves honest and who are themselves high and broad in their estimate of human nature and human conduct. Xor am I one of those who believe that when a man takes an oath of office he therefore becomes necessarily sordid and depraved and unworthy of belief and becomes a man whose actions should be viewed with suspicion. On the contrary. Mr. President. I believe that the ver^* fact that a large number of men who take the oath of office have sworn to do their duty, are thereby rendered at once, in view of the responsibility which they feel upon them in the discharge of their duty under their oath of office, more honest, if possible, by reason of the responsibilities placed upon them and by virtue of that solemn oath of office which they have taken. Therefore. I can see no reason for proscribing the officers in this manner, except it be to disparage them for no other reason than that they are officers. Surely the gentle- men of this Convention are not willing to asstime this attitude towards the office- holders of this State. I think that this is unwarranted, that it is without foundation, that it is without reason, and not based upon fact. I believe that men who have become officers and who take the oath of office, are more capable from the standpoint of honesty to perform these dtities than they were before. The men who were selected to fill these offices in this State are selected because of their capability to perform the duties of those offices. I believe that the men who are selected as the administrative officers of coun- ties must mark up to a certain degree of intelligence, and they are accustomed to per- form such clerical duties as to fit them to act as election officers. Now. :Mr. President. I ask the gentlemen of this Convention to go over their respective counties and recall to their minds certain small precincts in those counties, where it is extremely difficult to obtain a sufficient number of men to serve as judges and clerks of election, who are intelligent enotigh to perform the duties of that office, and let them recall how necessary it often becomes to enlist the ser^'ices at the polls of the officers or their deputies. That condition of affairs does not, fortunately, exist in a large majority of the precincts; but when you have a precinct in which there is but a small number of white people you are to be confronted with that condition of affairs, that is to say. it sometimes becomes exceedingly difficult to secure at such pre- cincts the requisite number of available election officers. And this would often result in proper election returns. I understand that this provision was incorporated here more with reference to the cities, it being asserted by the supporters of this provision 191 — Const. Deb. 3034 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. that the police officers in cities usually exerted considerable influence and are often employed as officers of election; and that they did not, as a rule, measure up to the standard of the officers who would be disposed to conduct fair and impartial elections where they were employed as officers of election. I say that while this may apply to certain classes of people in the cities, I believe it cannot be considered as characteriz- ing the conduct of officers generally. I know that when you come down to the prac- tical question involved in this provision, as it relates to the counties and to the small country precincts, you will find it to be often the case that you will not have officers sufficiently intelligent to conduct an election if you exclude those persons proclaimed against in this provision. I hope, Mr. President, that the Convention will use its authority of eliminating this provision in this plan. I hope the gentleman from Lynchburg, who is now assuming the fatherhood of this suffrage plan, may see proper to agree to my suggestion. I want to say that I am now supporting this plan although against my most honest and serious convictions as to the understanding clause contained therein. But neither this nor any other plan should be finally adopted until all mistakes shall have been corrected and the plan itself perfected. It is therefore for the purpose of perfecting this plan that I oifer this amendment. This plan, this old ship, has been ignominiously abandoned by its builders, its officers, and its crew, and the old wreck, while buffeted by the breakers, and pounding, humping, and grinding upon the beach, was rescued from its deserted and foundering conditions by a small band of life-savers who had always considered it an unsafe and dangerous craft, and who took no part in its construction. We have placed the gentlemen from Lynchburg again at the helm and this captain should assist us in repairing the damages. This plan should be so perfected as that the smallest pre- cincts as well as the largest should have proper and efficient election officers. Mr. Glass: Mr. President, I very much regret that I cannot yield to the sug- gestion of the gentleman from Norfolk county. This provision was insisted upon not by members of the cities alone, but by Judge Epes and others. Some of the members who wanted to put it in wanted to make it even broader than it is now. I hope the amendment of the gentlemen from Norfolk county will be voted down. Mr. Glass: Mr. President, I have an amendment suggested by the gentleman from Culpeper which I think ought to be embodied in Section 11. After the word "party"- in line 5, Section 11, add the v/ords: Of those first appointed, one shall be appointed for the term of one year, one for the term of two years, and the other for the term of three years; and thereafter their successors shall be appointed for the full term of three years. There is no provision in this section for the terms of office of the members of the electoral board. I think this amendm.ent should be adopted. The amendment was agreed to. Mr. Barbour: Mr. President, at the suggestion of some members of the Convention who voted in the negative, I now move to reconsider the vote by which the amend- m-ent offered by the gentleman from Franklin was adopted. Mr. R. L. Gordon: Mr. President, I do not want to detain this body a moment. I think, however, that I may appeal to the gentlemen of this body, not very gracefully, as I v'as one of those irreconcilable gentlemen not satisfied with the work of the con- ference, and tried my best to alter it if I could, but I think I may appeal to some of the gentlemen here to stand by the work of the Democratic conference. We have deliber- ately reversed the action of the conference on a very important matter and in my hum- ble judgment we have erred in so reversing it. We have, in the first instance, placed the appointment of this board in the bands of the judges. Why should we trammel the judges? When you have given to the judge the right to select this board, why not give him the right to put upon it the very best 4 DEBATES OE THE COXSTIIUIIOXAL COXVEXIIOX OF VIEGIXIA. 3035 men he can get, regardless of their political associations? I believe that the Judges of Virginia, in the appointment of the electoral hoards, are going to act fairly and justly. We must remember the fact, that in some sections of this State there are a great many men belonging to the Republican party that are good, honest, industrious citizens; but there are other sections of this State where the Republican party is made up of omce-seekers. There are men in some sections of this State who are Republicans for revenue only. They have united vrith the inferior race for the purpose of getting office, and they use the votes of that race to defeat the best elements in their county, to defeat the virtue and intelligence of the county. I say one of those men, although he may be a Republican, is unworthy to sit upon this board. I, Mr. President, am one who is absolutely willing to trust the judiciary of this State. I know that the partisanship that these gentlemen are now complaining of never did attach to judges of election when they were appointed by the courts. In the old days, when the courts appointed these officers, we never heard this cry of partisanry and bad action. TTe are putting this appointment back now into the hands of the judges of the Circuit Courts of the State. I want to know whether the E,epublicans in this body, and the Bemocrat-s in this body, are not willing to trust the circuit judges of Virginia to appoint the best men to these boards? In my humble judgment they will make such selection. Then why trammel them? "VThy say to the judge that he must appoint an unworthy Republican, or an unworthy Populist, or a Prohibitionist or what not on that board? VTiy not leave it to the court to appoint the very best man in the community to exercise these important functions? It seems to me that, as we have selected the courts to do this work that we ought to trust the courts with the work. If they are unworthy of confidence we ought to put responsibility elsewhere. I believe that it will greatly embarrass the judges in this State to find a suitable Republican, in some counties, to go upon that board; and yet you desire to practically compel him to select one member of that particular party. Mr. Blair: Bo I understand the gentleman to say that there is a single county In Virginia where a Circuit Court Judge could not find one Republican who would be worthy to go upon this board? :\Ir. R. L. Gordon: That is exactly what I say. I want to tell the gentleman that there are some counties in this State where there is not a white Republican who is not an office-seeker. He knows that he is flying in the face of the best sentiment in his county, and the face of the virtue and intelligence of his county when he votes for the negroes of that county to dominate the white man; and he does it from selfish motives, not from patriotic motives. Some of those men are unworthy to be placed on these boards. TVe ought not to say to our circuit judges that they shall place these men upon electoral boards vested with these gi'eat powers, when only the best and most con- servative men in the community should be intrusted with them. I hope that we will reconsider this vote. I hope that we will return to the wisdom of the conference, because I think the conference decided it wisely. I hope this motion to reconsider will prevail and that this Convention will decide not to trammel the hands of the judi- ciary in the selection of the members of the Electoral Boards. Mr. Meredith: I hope the Convention will stand by its determination of a few moments ago. VTe certainly voted for what, upon the face of it, seems to be right and fair. No man can deny that the proposition is a fair one. No man can deny that an Electoral Board ought to be composed of men of both political parties. The principle is certainly right. For what reason should we change it? Ought we to vote against a thing that is. upon its face, fair, square and honest? Mr. E.. L. Gordon: Is it not a wise and proper thing to give to different localities in this State an opportunity to get the best men in those localities. TThile, in the city of Richmond, which I fear bounds my friend's vision, you may be able to get first-class men on both sides, there are some places in the State where you could not possibly get them. 3036 DEBATES OF THE CONSTITUTIOA^AL CONVENTION OF VIRGINIA. Mr. Meredith: Mr. President, I do not know whether my vision is limited by the city of Richmond or not. I shall not retort, that the vision of the gentleman who preceded me is limited to his own county. I do not believe that he is prompted by any such motive. But I say that we must recognize that the principle is a fair and just one. The proposition I lay down, is that the man who undertakes to overturn a proposition that he, himself, recognizes as fair and square on its face, ought to give some good reason for it. The argument is that we should not hamper the judges. We are not trying to hamper the judges. We are trying to keep the judges out of temptation. We must recognize that they are all men and that they, like all other men, are subject to tempta- tion, and to being swayed by party prejudice and party appeal; and just as certainly as you allow them to be subjected to it, some one or more of them are going to yield to it, I am simply asking that you put here a principle which you must recognize as fair, so that the judges will be guided by a just rule in making these appointments. Mr. Keezell: Is it not true that the original proposition, as it came to the confer- ence, was for the judges themselves to appoint the election officers; and is it not true because of the difficulty of a judge appointing in a county like mine, for instance, 100 or more election officers, it was thought necessary to delegate that power to somebody else? And would not the judge, if he had the appointing power, belong to only one political party and therefore be subject to party prejudice? Mr. Meredith: I have never denied that proposition. I have never denied the fact that a man is but a single man, and that he can belong to only one party. Mr. Keezell: You are simply putting the electoral board in the place of the judge. Mr. Meredith: If he belongs to one party, and is liable to be swayed by party prejudice, then it is your duty to protect him. But you are putting before him this temptation, to which he may yield. The very fact that he belongs to one party is the reason why we should put him above temptation and party prejudice. Now, Mr. Presi- dent, this matter has been sufficiently discussed. I simply ask you to stand by the decision which you made a few minutes ago, because it is a fair and honest principle, and, secondly, because no good reason has been given why you should change it, and third, I appeal to you, in the name of the judges, not to subject them any further than is absolutely necessary to this matter of party dictation and party appeal. Mr. Keezell: Mr. President, I only desire to detain this Convention for one moment. I want to call the attention of the Convention to the fact that as this pro- position came into the conference it was for the judges themselves to do as they had done before we had the present system — that is, appoint the registrars and judges of election. Mr. Meredith: That was the way it first came here; it was afterwards changed, leaving the Circuit judges only the power to appoint the electoral boards. Then It was proposed that the electoral boards should be composed of not more than two of the same political party. Mr. Keezell: That was not adopted in conference. Mr. Meredith: It was taken by a very small vote. Mr. Keezell: Mr. President, the original proposition was for the Judges themselves to appoint the registrars and judges of election in the various precincts in the county. I would be perfectly willing to have that system, except for the fact that it would be impossible for a Circuit Court judge to be familiar enough with men personally in the various counties to select proper persons to be appointed election officers. Therefore it would be necessary for him to get his information from some outside source. The question was, whether it is the better plan to allow him to pick out three men that he knows in the county, in whom he has the most complete confidence, to do this work for him, rather than depend upon the chairman of the various political parties or the partisans who came before him clamoring for their friends to be ap- pointed as judges and registrars. DEBATES OE TEIE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. 3037 Mr. Keezell: I think it is, for the reason I am going to state. 1 think the power that has the appointment of these judges ought to be responsible for their appointment. When you undertake to divide that authority, by requiring that one of them shall be a Democrat and two Republicans, or vice versa, you have divided the responsibility that rests upon that board. You are going to have great trouble, in m^y opinion, in getting proper election officers under that provision. So far as my section is concerned, if you vrere to adopt that plan, I, as chairman of the Democratic party of mj county, would feel that it Vvas my duty to go before the judge and urge upon him the appointment of two partisan Democrats, representing the Democratic party upon that board. Mr. ?>Ieredith: Would you be satisfied to have the judge of Rockingham county ap- point an electoral board of three Republicans? Mr. Keezell: I say that I should feel it was incumbent upon me to go before that judge and ask him to appoint two partisan Democrats to represent the Democratic party on that board, feeling sure that the Republican authorities would demand such a Republican to represent them, and if I did not do that, I v\-ould feel that I was neglecting the interests of my party. But if he were to make the appointments himself, according to his own judgment, I v\-ould feel perfectly easy about the matter, because I believe that he would appoint three men who could be trusted to do what was right vrithout reference to their partisan feeling. I have taken this position, and I want this Convention to understand it. So far as the electoral board in my county is con- cerned, I have had elected three men of the highest character that can be found in my county, Democrats, it is true, but men who are acceptable to everybody. Having done that, as chairman of the Democratic partj^ in my county, I have refrained from making recommendations as to vs-hom they should appoint as judges of election and registrars in the various precincts. I have left the matter in their hands, believing that they would do what was right, proper, and fair between the two political parties, and in the interest of a perfectly fair administration of the election law. The very moment that you undertake to make bi-partisan boards you are going to find out that the representatives of the two political parties will come and clamor for their partisans to be put in as judges and registrars. Instead of a board of judges made up of the highest class of men that could be found, who vrill be fair and honest, you will find your election officers made up of the most violent partisans that you can get at the various precincts. That is the reason why I object to this amendment. I believe this Convention should reconsider this vote and give the judge the right to appoint these officers without restriction. If he wants to appoint three Republicans let him appoint them, and if he oppoints men of as high character as I have undertaken to appoint in my county, and men who would be as fair in the appointment of election officers, and in all the other duties as these men have been in my county, I would be perfectly satisfied with them. This is my answer to your question. Mr. Turnbull: Mr. President, I think the Convention has made a mistake in chang- ing this article in reference to this matter. My reason for voting for the Circuit Court judges to have the power of appointment of the electoral boards was that they would be perfectly independent and have the right to appoint such men as they thought proper. This action forces the selection of a bi-partisan board. I think it is very important to leave this matter untrammelled so that the judges may be left to select the best men in the county for the purpose. If j'ou adopt this amendment you will have a constant source of annoyance, and 3'ou will have a constant wrangle in every county with reference to the appointment of judges of election and registrars. I do hope that this Convention will reconsider its action. The question having been taken, the result was announced — ayes 39, noes 32. The motion to reconsider was agreed" to. The President: The question recurs on agreeing to the amendment offered by the gentleman from Franklin. The question having been taken, the result was announced — ayes 30, noes 38. The amendment was rejected. 3038 DEBATES OE THE CONSTITUTIONAL CONVENTION" OF VIRGINIA. Mr. Stuart: Mr. President and gentlemen of the Convention, I wish to offer an amendment covering a matter which I think was unintentionally omitted in this report, the purpose of which is to carry out the spirit of the report of the committee. I move to amend, beginning in line 8 with the first words in that line, in Section 11, and. to strike out all the words up to the word " representation," and insert in lieu thereof the words " and in their selection, representation, as far as possible, shall be given to each of the two political parties," etc. To make the matter clearer, I will move to amend by adding the words, " and clerks." I was one of those who voted against the amendment of the gentleman from Franklin because I thought that having vested this discretion in our Circuit Court judges, we could safely depend on them to execute that discretion in the same manner that they execute their other judicial functions. I thought that, having lodged that discretion in the very highest and most incorruptible source, to prescribe that there should be limitation in the exercise of that discretion, or something directory in the way of their making appointments, would have been, to my mind, a reflection upon their integrity. Having once lodged this discretion v/here it will be safely and honestly administered, I think the less directions accompanying it the better. The Circuit judges now stand fully empowered to appoint a Republican member of the electoral board if they choose to do so, but they are not obliged to do so. They are not forced to inquire into the politics of the men they appoint. The presumption would be that they v/ould select good citizens and men who would appoint good registrars, and good clerks. But now we come to a different branch of the subject. The power having once been exercised by the court by the appointment of three good men, be they Demo- crats or Republican, as members of the electoral board, the discretion is left in the electoral board as to who they shall appoint judges of elections and clerks. The judges and clerks are to administer this law. It is incumbent upon them to act fairly and honestly. Inasmuch as we say that the minority is entitled to representation among the judges, it can be said with equal force that they are entitled to representation among the clerks. I want to point out what good will be accomplished by it. We will say that a Republican comes to vote. Under the law he has a right to ask any one of the judges or any one of the officers to mark his ballot. Suppose there are three judges, one of whom is a Republican, and two clerks, both of whom are Democrats. The Republican asks the Republican judge to mark his ballot, and then there is no representative of the Republican party left at the ballot-box. It does seem to me that, in all fairness, if we mean what we say in providing that the judges of election shall represent both parties, we ought to provide that the clerks should represent both parties. I am in favor of throwing every safeguard around the ballot-box. In order to be consistent, and to reply to the inquiry of the gentleman from Pulaski, I want to say that I think these precautions are absolutely unnecessary in the case of the Circuit judges. Mr. Braxton: I hope the amendment will not be adopted. If I am in order I would move as an amendment to the amendment that the words beginning in line 8, and ending with the word "vote," in line 11, be stricken out. In the first place, that would make it conform mth the provision in regard to the appointment of the electoral boards. In the second place, it would eliminate the ques- tion of politics as to the matter of eligibility to office and take it out of the Constitution. It seems to me we have confused questions of legal right with mere questions of propriety. It does not amount to a row of pins for us to put all these things in this Constitution. Any electoral board or any other body that appoints officers and does not, of its- own motion, recognize the propriety of making their oppointees non-partisan, or of giving due representation to the various political parties, cannot possibly be forced to adopt them. The so-called Republican they will put on the board will prac- tically be no Republican at all. You cannot force a question of morality or propriety on electoral boards or anybody else by statutes or constitutional provisions; and you DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 3039 ought not to attempt to do it in this way. While it is not so intended, the effect of it is a mere Pharisaical pretence that you are going to be fair when you know, or you ought to know, that you cannot force it on anybody. The question as to the represen- tation that ought to be given to these various parties is a matter which, after all, must of necessity be left to the conscience of the appointing power; and if that conscience does not suggest that representation should be given to both parties, then no statute can force it upon them. I hope that all reference to the political status of men, for holding this office, will be stricken out. Mr. Stuart: Do you want to make the provisions of our new election law more lax than those now in existence? Mr. Braxton: I think those in existence are perfect dead letters and always will be. If thes,e laws are to be as bad as they are now it ought to be put in the Constitu- tion. I think you might as well say in the Constitution that a member of an electoral board should not, in making his appointment, be influenced by any improper motive. Of course, he ought not to be. But what good is it to put it in the Constitution. When you say that he is to appoint a Republican, he is the judge of the Republican who is to be put in. Does he ever put in any Republican that is satisfactory to the Republican party? He puts, in a man whom the Republicans will say is either an independent or more of a Democrat than a Republican. Mr. Stuart: Do I understand that you want to strike out the provision which requires that the judges shall represent two 'political parties? Mr. Braxton: Exactly so. Mr. Stuart: Then the provision that a voter may ask any one of the judges to mark his ballot would be a dead letter so far as the minority is concerned. Mr. Braxton: I do not know that. Mr. Wysor: Mr. President, I am not going to make a speech. I want it distinctly understood that I am in favor of the resolution offered by the gentleman from Russell. I only interrupted him to show his inconsistency. He voted against putting Repub- licans on this electoral board, but he is willing to have Republicans appointed as judges of election. I disagree altogether with the gentleman from Augusta. He seemed to intimate, and I agree with him, that you ought not to put politics info the Constitution. But they are in the Constitution. We have said that we are willing to put Republicans on the electoral board. That is putting politics into the Constitution. We have passed that once; let us pass it again. I hope the Convention will pass the resolution of the gentleman from Russell. The President: The question is on agreeing to the amendment offered by the gentleman from Russell. The question being taken, the result v/as announced — ayes 18, noes 51. The amendment was rejected The President: The question now recurs on the amendment of the gentleman from Augusta. The amendment was rejected. Sections 11, 12, 13 and 14 were adopted. The President: The Secretary v/ill read Section 15. 15. No person shall vote at any legalized primary election for the nomination of any candidate for public office unless he is at the time a registered voter and qualified to vote at the next succeeding election. Mr. Braxton: Mr. President, I move to strike out Section 15 for reasons which I have already given. I do not think we ought to undertake to regulate in a Constitu- tion the affairs of a political party. The amendment was rejected. Section 15 was adopted. The President: The Secretary will read Section 16. DEBATES OF THE CONSTITUTIOJsTAL CONVENTION OF VIRGINIA. 16. The General Assembly shall enact such laws as are necessary and proper for the purpose of securing the regularity and purity of general and primary elections and pre- venting and punishing any corrupt practices in connection therewith; and shall have power, m addition to other penalities and punishments now or hereafter prescribed by law for such offences, to provide that persons convicted of them shall lose the riarht to vote and hold office. Mr. James W. Gordon: I desire to offer an amendment. It is an amendment which I tried to have adopted in conference, and I intend to offer it now in convention for what it is worth. At the end of Section 16 add this language: ''And shall also have power to provide that no person shall be excused from testifying in prosecutions for the violation of any election law." Under one of the sections of our Bill of Rights the Legislature would not have the power, unless we confer it upon them, to pass such a law as this to stop election frauds in this State. Gentlemen have told us of the grossest kinds of frauds committed not only in the black counties but in the white counties, and yet we have stood here and consistently voted down provisions which were intended to correct those evils. I say that if the Constitutional Convention will not correct those frauds we should place it in the power of the General Assembly to do so. Mr. Turnbull: I move that the Chair be vacated until 4 o'clock. The motion was agreed to, and the Chair was vacated until 4 o'clock. AFTERNOON SESSION. The Convention reassembled at the expiration of the recess. The President: The pending question is on the amendment offered by the gentle- man from Richmond city (Mr. Gordon). Mr. James W. Gordon: Mr. President, for the benefit of the minority members on the floor I desire to state that this amendment only gives to the General Assembly the authority to provide that, in prosecutions for violations of any election law, no pers.on shall be excused from testifying. In other words, it allows the General As- sembly to say that, where a man is charged with buying votes, the person who sold them may be compelled to testify or vice versa, so as to have one of the parties to the bargain before the court in the capacity of a witness, qualified to testify, and who can be compelled to testify to the bargain with the other man. I believe this is the only way in which we shall ever reach this evil and break up the bribery and corruption that has been going on in the politics of this State. The amendment was rejected. Section 16 was adopted. Mr. Braxton: Mr. President, with the approbation of the gentleman from Lynch- burg, I desire to offer an independent section at this point, which I hope will be more lucky than some of the other amendments I have offered in this connection. I under- stand that the gentleman from Lynchburg not only does not object to it, but approves of it. It is in this language: The General Assembly may from time to time enact laws providing for the use, throughout the State at large, or in any one or more counties, cities or towns, in any election, of machines for receiving, recording and counting the ballots, cast thereat; provided, that the secrecy of the ballot be not thereby impaired, which said laws may be amended or repealed at the pleasure of the General Assembly. A good many of the members have thought that the Legislature already has the power to do this, but some think it has. not the power. This is intended to put beyond question the right of the Legislature to adopt the modern method of receiving and counting votes. It is a method that has already been adopted in a large number of the most progressive States of the Union — in Massachusetts, Connecticut, Ohio, Indiana, Michigan, Minnesota and others. This section does nothing more than confer a power DEBATES OF THE CONSTITUTIO^taL CONVENTIOIT OF VIRGINIA. 3041 upon the Legislature, which it probably already has. I hope it may be the pleasure of the Convention to adopt this section. The independent section was adopted. The President: The Secretary will read Section 17. Mr. Parks: I desire to offer -an amendment to this section. Beginning on page 10, line 24, there occurs this language: And a reasonable time before such election, the clerk shall forward to the judges of election of each precinct of the county or city a like certified copy of the list of those in the magisterial district or ward in which such precinct is located who' have paid the capitation tax for the previous year, which shall be deemed conclusive evidence of that fact for the purpose of voting. I desire to offer in lieu of that the following: After the word "and" strike out "a reasonable time before such election"; between the words "the" and "clerk" insert the word "said" and after the word "shall" insert the words "deliver or cause to be delivered with the poll books"; and after the word "to" insert the words " one of." As it reads here it says that the clerk, within a reasonable time, shall forward these lists to the judges of election. There are three judges and they do not live at the same place. You cannot forward one copy to three judges. Then it is left to the clerk to say what would be a reasonable time. The amendment I offer is to lessen the opportunity of misplacing or losing this, list, and it provides that the clerk should deliver or cause to be delivered to one of the judges of the election of each precinct this list with the poll book. The judge either comes to the clerk's office with the poll book, or it is delivered by the clerk to the secretary of the electoral board and he delivers it to one of the judges and takes his receipt for it, and with the poll book this certificate can be delivered, and it can be done a day or two before election or on the day of election. Mr. Kendall: Would it not be better to say that the clerk shall olace it in the hands of the sheriff, who shall deliver it to one of the judges of election? Mr. Parks: I use this language, "shall deliver or caused to be delivered" so as to leave it to the Legislature to say who shall deliver it. Mr, Glass: It seems to me the responsibility for having that list there ought to be upon the clerk. If he is willing to trust one of the judges to do it, the responsi- bility, at any rate, of having the list there ought to be upon the clerK. The amendment was agreed to. Mr. Barbour: I move to further amend Section 17 by striking out the w^ords " made out," in line 8, and insert the words "have printed" and after the word "ward" in line 13, to insert the words " and shall keep in his office at least ten printed copies for public inspection, and shall also cause the said list to be published in such other manner as may be prescribed by law." I will just explain briefly that the object of this amendment is to safeguard this list against fraudulent use, to require these lists to be printed and a limited number of them to be preserved in the office of the clerk for public inspection, and that they shall be published in such other manner as the Legislature may prescribe. The only objection I have heard urged is that there would be expense connected with the print- ing of these lists. I call attention to the fact that it would cost much less to have the lists printed than it would to have a dozen or so copies made by hand, as would be necessary in even the smallest county under this provision. It would also furnish every voter with an opportunity of knowing thirty days before his opportunity to register had expired whether or not his name is on the list, and therefore he can have no excuse for not having his name inserted on the list. It will also enable him to have 3042 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. his name put on the list if it has been fraudulently or by design omitted. 1 hope the amendment will commend itself to the gentleman from Lynchburg. The amendment was agreed to. Section 17 was adopted. Mr. Daniel: Mr. President, I desire to offer- as an amendment to this section,. Section 17, to come in after line 30, on page 10, the following: The production to the officers of election, by any person duly registered, of his. receipt for payment of the capitation taxes prescribed as a prerequisite to the right to vote shall be evidence of such payment. The receipt for any payment made by any debtor to his creditor in any matter of business is prime facie evidence of such payment all the world over, and is the most just and natural of all evidences of payment. It is evidence of the payment of every other tax assessed against the tax-payer by the Commonwealth, but in this case it is not made evidence to the officers- of election of payment. I do not perceive that there is any good or sufficient reason why it should not be such evidence. On the contrary, I believe that greater opportunity for fraud will arise from not making it evidence than from making it so, and will give opportunity for fraud upon a larger and more disastrous scale. As this article now stands, the treas- urer of each county or city is required to certify to the Clerk of the Circuit or Corpora- tion or County Court, as the case may be, a list of all who have paid their capitation taxes. The clerk, in turn, must, within ten days from the receipt thereof, make out and certify copies for each voting place in the magisterial district, and the Sheriff of the county or Sergeant of the city must post the list at each voting place in said dis- trict or ward. A reasonable time, also, before the election, the Clerk is to certify to the judge of the election in each precinct of his county or city a like certified copy of the list of those in the magisterial district or ward in which such precinct is located. If by any accident or miscarriage this list is lost, the people who vote at that place are disfranchised. They may go to the poll with their receipts in their pockets. They may have paid the capitation taxes for each of the three years as required by law. They may be the most honorable and the best citizens of this Commonwealth, but if any accident to the mail, or otherwise, has prevented that certified list from being in the hands of the judges of the election these citizens are to stand around the polls silent, eliminated, extinguished, and disfranchised. I do not think this is just, and I offer this amendment, hoping that the Convention will make the receipts what they naturally are — evidence of the payment of the capitation tax which corresponds to it. Mr. Davis: This section provides that the capitation tax shall be paid at least six months before the election. If the receipt was taken as evidence of its payment, would the receipt have to show that it was paid six months prior to the election? Mr. Daniel: The tax-payer has got to prove that, and the receipt ought to be dated; and it ought to carry on its face the proof. If it was not, it would be an insufficient and incomplete receipt. Mr. Lindsay: The amendment which was just adopted a few moments ago, offered by the gentleman from Culpeper (Mr. B-arbour), provided for ten additional lists, as I understood the amendment. What would be the difficulty of obtaining another copy from the clerk's office in the event that a list should be misplaced. Would not that list be prima facie evidence of the payment of the tax? Mr. Barbour: My amendment also requires an additional system of publication. Mr. Daniel: Mr. President, we do not know whether the law will prescribe any additional method or not, but I insist that if a man has paid his taxes he ought to be secured in his right to vote. The State has received the consideration it asked, and it ought to guarantee to him the consideration he is entitled to. Mr. Keezell: What would there be to prevent a treasurer who saw fit to do so,. DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF YIEGIXIA. 3043 after having sent his list to the Auditor showing all the names of those who had paid the capitation tax, from issuing receipts to all the people whom he wants to vote and hack-dating them so that they may come in on the day of election and vote without the county ever having gotten from them a single, solitary cent? Mr. Daniel: A treasurer who would do so rascally and execrable a thing as that vrould also conspire to commit fraud in other ways. Legal action ought to he taken in his case, and he should be made to answer for it. And furthermore, Mr. President, if an additional amendment such as that offered by the gentleman from Henrico is attached to this provision, requiring a daily record to be kept of the persons who have paid their capitation taxes and making any false entry in or omission from such record a felony, you would have done all that the law can do to run dovrn and to punish such a fraud. The very suggestion that the higher officers of this Commonwealth might be capable of committing such a fraud upon the public is, in itself, an argument against taking away from the citizen the right of using the evidence of the truth which he has in his pocket. Mr. William A. Anderson: I w-ish to ask w^hether under the suffrage article in operation in the State of South Carolina the receipt of the tax collector is not the only evidence required, or rather the main evidence required? Mr. Daniel: I think it is. It is in Mississippi. Mr. William A. Anderson: I understand that it is in South Carolina. Mr. Daniel: I believe in South Carolina it is the usual and general evidence. Mr. Waddill: Mr. President, I will offer this amendment as an addition to the amendment offered by the gentleman from Campbell (Mr. Daniel). The Treasurer shall keep a daily record of the persons who have paid the capita- tion taxes, shall date every receipt given for payment, and his record shall be open to public inspection. Any false entry in, fraudulent omission from or alteration of such record, or the false dating of a poll-tax receipt shall be a felony. I think, Mr. President, that when a voter has done all that the law requires of him to entitle him to vote, and he has the evidence of it in his pocket, he ought to be allowed to vote, without any reference to the question whether or not a treasurer may or may not issue fraudulent receipts. We safeguard that by making the treasurer keep a daily record of the payments made to him. If he antedates any receipt or makes a fraudulent entry, or alters the record fraudulently, he is guilty of a felony, and can be brought into court and tried for it. This remedy, which is offered by the gentleman from Campbell, is cumulative upon the right already given by this article of this Constitution. One acts as a check and . a balance upon the other. By this arrangement you put yourself In the hands of two officers — the treasurer and the clerk of the court. If the treasurer fails to furnish to the clerk a list showing all the names of those who have paid their capitation taxes, the voter is required to trot around to the voting precinct to find out whether he is on the list, and whether he is disfranchised. It may be that the treasurer, by inadvertence in keeping the list, may omit something, or the clerk by inadvertence may omit some- thing, and yet if the voter goes to the poll to cast his ballot with his tax receipt in his pocket, showing that he has done all that the law requires of him, he is deprived of the right to vote. See what a position you might put the treasurer and the clerk in simply by reason of some mere inadvertence. When a man is deprived of the right of suffrage by such inadvertence he could institute a suit Tor damages for the action of these officers in leaving him off the list. While I am on my feet, Mr. President, I will call attention to another fact connected with this article. The article says: The treasurer of each county and city of the State shall, at least five months before any election, file with the clerk of thie Circuit or Corporation Court of his county or city, lists, by magisterial districts or wards, etc. 3044 DEBATES OF THE CON-STITUTIONAL CONVENTION" OF VIRGINIA. You have made a cumulative feature in relation to the poll-tax. After this list ceases to be current the treasurer has nothing further to do with It, and he cannot collect for back years. Who is to furnish a complete list of the people who have paid their capitation taxes? I do not think he can do it. I certainly do hope that the amendment offered by the gentleman from Campbell, supplemented by the amendment which I have offered, will pass this house, because it is an act of justice, and one is a check upon the other. It makes, I think, a proper system so far as it can be made perfect. Mr. Daniel: I accept the amendment offered by the gentleman from Henrico. Mr. Waddill: It is a serious matter, gentlemen, after the voter has done all that the law requires him to do, to require him in addition, so many days before an election, to leave his home and go to the voting precinct to inspect the list to see whether his name is on it or not. And perchance, gentlemen, the list may have been taken down just as soon as it is posted, and before the opportunity is afforded him to see it. I think there is no objection hich can be urged successfully against this plan, Mr. Walker: Is it not a fact that the amendment just adopted, offered by the gentleman from Culpeper, provides for the publication of the list? Mr. Waddill: Yes but how many people in the country, I would ask the gentle- man from Westmoreland, ever see a newspaper, or ever take time to inspect the list. In addition, if he is left off the list you require him to do what? You require him to go and hunt up a Circuit judge and give the treasurer five days notice before he can have his name restored to the list, when all the time he has the proof of payment in his own pocket. If there is anything wrong, and it is the fault of the treasurer, he should be confronted with the fact and should suffer for it. He is required by this amendment to keep a daily record, and if he fails to keep it or if he antedates any receipt or otherwise commits fraud, he stands a chance of being sent to the penitentiary, and you will find that he will not do it. The ayes and noes having been taken upon the amendment, the result was announced — ayes 17, noes 48. The amendment was rejected. Section 17 was adopted. Mr. Glass: Mr. President, that finishes the article. Mr. Gilliespie: Mr. President, I move as a substitute for the article which has been perfected by the Convention, the article reported by myself to the Convention. Mr. Glass: I hope the Convention will vote upon the s.ubstitute this afternoon, and let these gentlemen, who are anxious to get into the record, satisfy their consti- tuents as to their attitude toward the Convention on the main proposition. Mr. Pedigo: That is the very point we do not wish to agree to. I want to say, in reply to that proposition, that the few remarks I want to make 1 want to address to the substitute offered by the gentleman from Tazewell, and if we permit a vote on that to be taken, there will be really nothing for us to discuss. We propose to debate that matter, but we do not want to talk against time. We are not trying to hold you here against your will. It will not take any longer to talk, if we vote after we have finished the debate, than it will if we vote before the debate. There will not be one second of time occupied by speeches that we make before the vote is taken more ihan will be occupied after the vote is taken. We want to discuss this matter. I do not know how long it will take. Our leader is sick in bed, and will not be here. Colonel Summers, the delegate from Washington, is very sick. After some discussion it was agreed that the vote should be taken at 1:30 o'clock Friday afternoon, or sooner if the debate should have terminated. Mr. Thom: On behalf of the Committee on Judiciary, and at the request of the chairman, who is not, himself, in accord with the supplemental report, I beg to present to the conference the supplemental report of that committee, and ask that it lay on the table and be printed. The supplemental report is as follows: DEBATES OE THE COXSTITUTIOXAL CONVEXTIOX OE VIRGINIA. 3045 REPORT OF THE COMMITTEE ON JUDICIARY In Reference to the Judge of the Corporation Court in Cities Having Less than Five Thousand Inhabitants. To the Convention: The Committee on Judiciary, to whom the resolution introduced by Mr. Anderson, of Rocl?:bridge, in reference to the judges of cities having less than five thousand inhabi- tants was referred, has had that matter under consideration, and begs leave to recom- mend that the following section be adopted as an independent section, to be incorporated in the Constitution by the Committee on Final Revision, in its appropriate place: Section — . The Judge of the Corporation Court of any corporation having a city charter, but less than five thousand inhabitants, may reside outside its corporate limits; and the same person may be Judge of such Corporation Court and the Judge of the Corporation Court of some other city having less than ten thousand inhabitants. (Signed) ALFRED P. THOM, For Committee. Qn motion of Mr. Wise the Convention adjourned until to-morrow, Thursday, April 3d, at 10 o'clock A. M., to meet in the hall of the House of Delegates. THURSDAY, April 3, 1902. The Convention met at 10 o'clock A. M. Prayer by Rev. W. F. Dunaway, D. D. Mr. R. Walton Moore: I make this motion: That immediately after the vote is taken on the pending Suffrage article and the proposed substitute to-morrow that the Convention proceed to consider and dispose of the pending motions to rescind. Mr. Withers: I would suggest to the gentleman from Fairfax that he leave out the word "pending" from his motion, because I do not think the rescinding resolutions contemplated should be confined to those simply which a committee sees fit to report,, and to exclude others that the committee does not see fit to report. Mr. R. Walton Moore: I will accept the suggestion of the gentleman from Danville. The President: The question is on agreeing to the motion of the gentleman from Fairfax. The motion was agreed to. Mr. Turnbull: I move tnat the resolution in reference to the rules be taken up before we take up the matter of the resolutions to rescind. The motion was agreed to. Mr. Flood: Mr. President, that proposition just means that no matter can be rescinded by this Convention unless it receives a two-third vote — that is, provided the proposition of the gentleman from Wythe prevails. If that proposition is taken up and prevails, it means that nothing can be rescinded by this body unless it receives a two-thirds vote. It seems to me that if the majority of the body wants to rescind action which it feels to be wrong, it ought to have a right to do it. The question now is whether the resolution of the gentleman from Wythe shall be taken up in preference to motions to rescind. I move to reconsider the action of the Convention on the motion of the gentleman from Brunswick. I will state my reasons for wishing to take up the matter of rescission first. We will go into a great, long discussion here as to changing the rules. I am opposed to- changing the rules. I am in favor of this body rescinding a measure if a majority of the members desire to rescind it. I am opposed to any handicap measures requiring two-thirds majority to rescind. If we are satisfied that we have made a mistake, let 3046 DEBATES OF THE CONSTITUTIOISrAL CONVENTION" OF VIRGINIA. the majority of the Convention rescind its action. A majority of the Convention has been controlling everything in this body heretofore, and if we are satisfied that there has been a mistake, and a majority of the members, of the Convention want to correct that mistake, let them do it. That is the reason I do not want to have the proposition up. I do not see any use in occupying the time of the convention, when we all want to get away in two or three days, in discussing a change of the rules that v/ill be opposed. I do not believe the majority of this convention is going to tie its hands so as to say that it will take two-thirds of the Convention to correct any mistake which has been made here. The debate is limited to fifteen minutes upon the various propositions. We can take the propositions up and dispose of most of them to-morrow in the time which it would take to discuss the matter which the gentleman from Brunswick wishes to open up. Mr. William A. Anderson: How many propositions of this sort do you suppose will be submitted. Are there more than two or three? Mr. Flood: I do not think there are more than two or three. My position is. that I am going to vote against rescinding anything passed by the Convention after due and deliberate consideration. The proposition which I submitted here I think was passed without debate and without due and deliberate consideration by this body. There may have been other propositions passed in a similar manner. I do not know of more than two or three propositions to rescind v/hich are pending, and if debate is limited to half an hour on each of them we will get through with the matter in the time it would take to discuss the proposition to amend the rules. Mr. Turnbull: Mr. President, I would like to say just a word. I do not want to go into the discussion of the question of the rules now, but the reason why I made the motion to rescind the action of the Convention on Saturday changing the rules, on the motion of the gentleman from Warren, was because the rules which we now have provide how these things shall be done. I think when that is properly understood, and I think if members will look into the matter they will find that it is a fact, there will be no change in the rules. I think in these matters we ought to proceed under the rules and reconsider any matter which the Convention thinks ought to be reconsidered. That is the position which I occupy in reference to this matter. The President: The question is on the motion of the gentleman from Appomattox to reconsider. The question having been taken, the result was announced — ayes 26, noes 44. The motion to reconsider was rejected. The President: The unfinished business this morning is the consideration of the article on Suffrage, and the matter under consideration is the substitute offered by the gentleman from Tazewell (Mr. Gillespie). Mr. Pedigo: Mr. President, the substitute we offer is simple, it Is just, it is in full accord with the Constitution of the United States. It changes the present Consti- tution but slightly. It is free from all chance of misunderstanding; it provides for a per- fectly honest election law, a law that would indicate the condition of public sentiment with all the accuracy and fidelity that a therm-ometer indicates the temperature of the atmosphere or a weather vane shows which way the wind is blowing. These are factsr that ought to be known. We offer it as a substitute for a document that, to tell the sim- ple truth, is a labyrinth of pitfalls dug artfully and ingeniously in dark places along the footpath of the unsuspecting, having unquestionably for its object to get as many of the poor and illiterate, and especially negroes, into a hole as, possible. It seems to have been aim^ed at the negroes, but it scatters so badly that lots of white people will be hurt. Such provisions, in our judgment, are unworthy of a place in the organic law of this or any other State. I feel it to be a duty I owe to my own conscience, to my constituents, to the people of the entire State, and the United States, to enter my earnest protest against any and every movement towards the disfranchisement of any of the citizens of the State, DEBATES OE THE COXSTITUTIOXAE COXVEXTIOX OE VIEGIXIA. 30-iY :as being wrong any unlawful. We have no more right, in law, to rob a man of his rights as a voter, than we have rob him of his liberty, his property, or his life. We may have the power to do it, but it will be a wrong and an outrage to do it. After many years of diligent study 1 am thoroughly convinced that universal man- hood suffrage is not only right but that it is absolutely necessary in any and all democratic governments. I cannot tolerate the thought of depriving even one of the humblest of our citi- zens of his right to vote, and to have his vote counted, and honestly weighed in making up the returns. No matter how humble, or poor, or ignorant, or black he may be, though the " emptiness of ages be in his face," and " on his back the burden of the world/' yet I would put and keep a ballot in his hand, fully satisfied that it could do me no harm and might do him some good, and that it might at least have a tendency ""to straighten up his form," and give back to him an '"upward looking and a light"; "to make right the immemorial infamies, perfidious wrongs, Immedicable woes" inflicted upon him and his ancestors by us and our ancestors for many generatioqns. I am abundantly satisfied that it is safer, easier, and more practicable to govern ignorant people as fellow-citizens than as subjects. Just so long as they feel them- selves full citizens they will render willing obedience to the laws and aid in their execu- tion. As soon as they find themselves subjects they will become discontented, and will do all in their power to hinder the execution of the laws. They will look upon the govern- ment as an enemy that is trying to injure and oppress them, and will have for it no good will. Only think for a moment of the condition of things in a democratic govern- ment, where one third of the people are in all things political the abject subjects of the other two thirds, and the one third feeling that the two thirds are their enemies, doing all they can to injure and oppress them. Such would be the. condition in Vir- ginia if the white people should disfranchise the negroes. I say the negroes, for it is notorious to all that it is not the ignorant, the vicious, or the dangerous vote that we are trying to get rid of; but the negro vote, and not because it is bad in any other respect; but because they are all Republicans, and because they are all non-purchasable. All the money in the world cannot buy them. They stick to their party allegiance with all the faith and fidelity that made the early Christians suffer martyrdom rather than renounce their religion. The votes of vast numbers of them have been stolen, but none have been bought. They are much more intelligent that they have ever had credit for being, and if we drive them to desperation, as this plan will certainly do if it gets full force, they will band themselves into secret societies, just as the people of older countries have always done, to protect themselves against their tyrants; and there will be high times in the old State yet. Our peace and our prosperity will be sacrificed on the altar of our prejudices. The lesson of one generation of freedom teaches that the negroes work far more diligently and intelligently as freemen than as slaves. The lightest crop of cotton grown in the worst season of the thirty-five years of free labor is greater than the heaviest crop made in the three best seasons by slaves. In order that I may not be misunderstood I will here state that I do not consider the negro as being equal or anything near equal to the white man in intelligence, or learning, or capacity for self-givernment. I do not believe that they, if left to them- selves, could carry on a free republican government. To say that five or six generations of slavery could take a naked savage from Africa and fit him for the high duties and responsibilities of self-government, would be to pass an encomium on slavery that I am not prepared to assume the authorship of. I am well aware tliat If Virginia is to have even a decent government, it must be. in the main, a governm^ent by the white people. But, the negro is here, he is a part of us; we cannot do him" a wrong without, at the same time, doing ourselves a wrong. We must hold him up; we must help him along; and, above all things, we must do him justice. We are in the same ship with him. If that ship sinks we will all be drowned 3048 DEBATES OF THE CONSTITUTIOIsTAL C02s^VENTI0N" OF VIRGINIA. together. Providence deals with us all alike. A few years ago when an earthquake struck the city of Charleston; shook down many of its buildings; killed some of its people; wounded and bruised many more, and greatly alarmed them all, the artificial lines that divided society into its several strata were completely obliterated; and for a time at least, the people of that stricken city were all mixed up together. The same thing again occured when the most terrible scourge ever inflicted by the angry gods upon a suffering people, a visitation of the yellow-fever, ravaged the cities and towns around the Mexican Gulf, and along the Mississippi river. Society lines were com- pletely obliterated, and all felt their helplessness, and gave up their pride. At a more recent date on one day Galveston was an opulent, proud, and flourishing city; the next, a ghastly heap of wrecked and ruined buildings. Ships and merchandise mixed and commingled with the dead, the dying, the maimed and bruised bodies of the late inhabi- tants of that city. All fared alike. We should give heed to these lessons. They teach us plainly what our duty is. To me it looks plain that we should forever abandon the thought of having a degraded and subject race amongst us. We should immediately renew the ancient convenant; we should now place in our ark of the covenant the Declaration of Independence, and the Bill of Rights, not in their mutilated and crippled form, but just as they came from the hands of their authors. We should also place in it the Constitution of the United States; the Ten Com- mandments, and the Sermon on the Mount, and try to square our conduct hereafter to the requirements of thes,e high authorities. I have no doubt there are some good Christian in this Convention and many out- side of it, who, when they get to heaven, will be grievously disappointed, and will be sure to grumble if they find that the street-cars that glide along the golden-paved streets of the New Jerusalem have no Jim Crow attachments. The difficulties that surround this Convention are considerable but trifling indeed when compared to the dan:gers that surrounded the so-called Underwood Convention. Since the time of that Convention we have had thirty-four years of experience and experiment. Then the smoke of the greatest war of modern times had hardly blown away. Then the wounds of that war were still bleeding and sore. The graves of hundreds of thousands of its victims were still fresh. Then the government as freemen consist- ing of large numbers of recently emancipated slaves was an untried experiment. That Convention met and deliberated under the authority of a military government. Con- stituted as it was, I doubt whether it could have gone through with Its work without the strong arm of an army commander to keep it in order. Nearly every member of this Convention has found occasion to fire a volley of epithets and disrespectful adjec- tives across the vista of more than a third of a century at that unfortunate gathering of statesmen, all of whom, so far as I know, have been gathered to their fathers. It appears to fall naturally to my lot to come to their defence more in the capacity of an assignee than as an employed counsel. As regards the average personel of that body of men, candor compels me to admit in the language of the Queen of Sheba, who, after viewing the splendor and magnificence of Solomon's establishment, said that verily the half has not been told. In somber truth that was the most grotesque gathering of men ever assembled for legislative purposes on this or any other continent. They divided themselves into four groups, or factions, the most pictursque of which was a group of negroes just out from under the overseer's lash. They stood bewildered, amazed and dazed at their sudden change of fortune. They had come to help make a Constitution, but they had no idea what sort of a looking thing a Constitution was, nor what people had them for, anyway. But they were ready to go to work, if anybody would show them how. Then there was a group of northern men, camp-followers, who had drifted here either in or after the army. They cared nothing about it. They came like a flock of pigeons, following up the mast; they were here for what there was in it, and nothing DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. oOiJ else. Another, and by far the most dangerous group, was composed of natives who were not wanting in talent or ability, but who were smarting under the humiliation of defeat. So far as the reconstruction of the Union was concerned, they wanted none of it. They Y/ere perfect Nihilists. They desired to make the work of the Convention so odious that it v/ould be rejected by the people. In this they would have succeeded but for the presence of the fourth group, which was made up of twenty-five or thirty wise, learned, patient, patriotic citizens, who earnestly desired to give the people of the State relief from the anomalous and distressing conditions under which they were suffering. Most of them came from the Valley and the Southwest, but some of them were from the East. They v^^orked in silence and in earnest. They v/ere not charged with the regulation of suffrage; that was handed to them by the Congress of the United States, and they were required to build upon it. Neither did they give much attention to the mere form of government, but simply compiled it from the Constitutions of other States, principally New York. They had three great problems to wrestle with. The first was to keep the negroes from being re-enslaved or greatly wronged and opposed, as it was plainly to be seen that they would be as soon as their old masters got back into power, if some effectual protection were not provided for them. What was done was to restrict poll-taxes to one dollar for the State, and fifty cents for the counties, and to provide that they should have their full share per capita of school money. And that the Constitution should never be so altered as to deprive them of their rights to vote; the last provision is also contained in the act of Congress readmitting the State to the Union. The second problem was to prevent the negroes, in their ignorance and inexperi- ence, from electing unsuitable persons to high and important officers, where they hap- pened to be in the majority, especially judges and school superintendents. This danger was guarded against by making these officers elected by the General Assembly. The third great danger was that a spirit of agrarianisni would show up in a com- munity so largely of non-property-owners. The safeguards placed around the property- holders are contained in Article X, which, so far as I know, have proved effectual. In fact, no spirit of agrarianism has ever been manifested. So the real v/orkers in that Convention, while the carpet-baggers on the one side and the Nihilists on the other were bandying epithets and insults across the hall, suc- ceeded in presenting to the people for ratification or rejection a Constitution that v/as accepted by a very large majority of the citizens of the State. One that, notwithstand- ing the fact that the number of men as compared vdth total population was much less then than now on account of casualties of war, when total population was not more than two-thirds of what it is now, received a larger affirmative vote than any candi- date or any measure has ever received from that day to this, and fully three times as many as is claimed to have voted for the calling of this Convention. Those votes were all freely and fairly given, which cannot be fruitfully said of the 77,3G2 v/ho have lately taken the sovereignty of Virginia into their custody. It is apparent to all that Virginia is now in a miserable plight. Something must be done for her. The present state of things cannot continue. The infamous election law that now disgraces our statute books must be abated. Nearly all agree to this, but a part of our people who style themselves the best people contend that they can- not concede honest elections except on condition that a very large number of the voters be disfranchised. They well know that they are in the minority. They confessed as much when they enacted a dishonest election law that intended to perpetrate fraud, for no body of intelligent men would resort to such crookedness if they could hope to succeed in a decent, straightforward way. They say the negro has caused it all, if he has not done it all; he has irritated them and caused them to sin; if he had been out of the way they would have behaved better. Perhaps this is true; let us hope it is true. I have heard the remark of late so often that the government of Virginia is a government of lawyers that I have come to fully believe it. Charles Dickens defines 192 — Const. Deb. 3050 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. and describes a lawyer as a man skilled in finding a way around the law, who makes his living by helping criminals and wrong-doers to escape the penalities of their viola- tions of the law. Hard as the confession is for me to make I can see no way to get along without them. If I argue a case according to the light of a plain, blunt man, as I am, I am sure to be met by some lawyer with a famous case that grew out of a lot of goods lost in a storm on the Persian gulf about 200 years ago and adjudicated in the Persian courts. That settles the case against me, and I have no more to say. He has taken me with what the boys of my time called a sockdolager. Not feeling able to cope with them myself, I have consulted one of the clearest-headed lawyers in the State as to the law applicable to the subject now under consideration. He has replied in a letter which appears to me to be so unanswerable that I will read it as a part of my speech, or if by unanimous consent I am permitted to have it included in the report of my speech, I will simply hand it to the stenographer and save his work and the Con- vention's patience. The Secretary read the letter referred to as follows: To the Hon. A. L. Pedigo, Member of the Constitutional Convention of Virginia: Dear Sir: As one of your constltutents I take the liberty of expressing my views on the most important question now pending before the Convention, of which you are a member — that of regulating and fixing the right of suffrage. I will say first, that your course in the Convention meets my approval, and, I believe, the approval of a majority of the people of Henry county. This question of suffrage is really of paramount importance, and should be con- sidered by the Convention as free from party and race prejudice as possible. It is by the right to vote, only, that the people can protect their natural, civil, and political rights in a republican form of government. When the Declaration of Independence declared "that all men are created equal; that they are endowed by their Creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness; that to secure these rights govern- ments are instituted among men, deriving their just powers from the consent of the governed," the immortal Jefferson, who planned these truths, and the Congress that endorsed them, did not mean that all men when created were equal physically or mentally, but they did mean in my judgment that in a state of nature, man as created by God, whether intelligent or ignorant, rich or poor, white or black, had equal rights to life, to liberty, equal right to the pursuit of happiness, and to acquire and hold property. In order to protect these natural rights, they have by the laws of nature, and should have b3^ the Constitution and laws of government, equal civil and political rights, amongst which should be included the right to vote for their agents. "When these principles of liberty and equal rights were first asserted by Jefferson and his compeers, they were not then enjoyed hy the people -of any government in exis- tence, nor Y/ere recognized in the government of the United States, or by the Consti- tutions of the several States soon thereafter adopted. Not because Jefferson and other advanced thinkers did not believe in their justice and truth, but because the ruling class, the educated and property-holders were not willing to diminish their povx-er, and to trust the masses of the people. Slavery was recognized in the Constitution of the United States by a Compromise between the friends of freedom and slavery; and the first Constitutions of all the old States restricted suffrage. The Virginia Consti- tution of 1776 confined the right to vote to freeholders. The Convention of 1829 and '30 conferred this right of franchise^, as they called it, to housekeepers and heads of families who paid a revenue tax, however small; this they did reluctantly, and many able men in and out of the Convention condemned it, and predicted that injury to the State v/ould result from it, but no harm seemed to have been the result. The friends of a freer and more liberal Constitution than that of 1829 and '30, more in accordance with the principles of freedom and equality; asserted in the Declaration of Independ- ence and the Bill of Rights, called the Convention of 1850 and '51. Tliis Convention conferred the right of suffrage upon all white men over twenty-one years of age, and made all the officers of the government, or nearly all, elective directly by the people, including legislative, executive and judical officers. The minority of the people of Virginia, then called Conservatives, predicted the most direful calamities from this radical Constitution, as they called it. The negroes of Virginia v/ere then without prop- erty, and, of course, had to vote. The officers elected under that Constitution compared favorably with those elected during any other period of our history, and for ten years the, State prospered under that Constitution. DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. 3051 In 1861 another Convention was called. It was called to consider the question of Union or Secession. A majority of that Convention was elected as Union men, pledged to the people of Virginia not to secede from the Union, but on the 17th day of April, 1861, they declared the withdrawal of Virginia from the Union and attached her destiny to that of the Confederate States. From that time until the year 1870, a period of nine years, the people of Virginia were under military rule first under that of the Confederate Government, from April the 17, 1861, to the surrender of General Lee, in April, 1865, a period of four years. This military rule from my view, was the most absolute' arbitrary, despotic and oppressive that was ever felt by the people of Virginia. Every able-bodied male citizen of Virginia, between the ages of sixteen and sixty, was finally forced into the army and compelled to fight for the right of secession and the perpetua- tion of slavery, whether willing or unwilling, and this burden was inflicted upon them without compensation, while the families of many of them suffered for fhe necessaries of life. When General Lee surrendered we passed under the military rule of the Federal Government, and whilst all military government is arbitrary and that of the United States in Virginia was vexatious and oppressive in some instances it, in my judgment, was mild indeed when compared with that inflicted upon us by the military rule of the government of the Confederate States. A large majority of the people of Virginia were anxious at this time to get back into the Union upon the best terms practicable. The government of the United States as the successful party in the late Civil War had the power to fix the terms. We were out of the Union whether rightfully or wrongfully. If the right of secession existed we were out legally and rightly. If it did not exist under the Constitution, we were out by force and wrongfully. We were in fact out, and had united ourselves to a government at war with the United States. To get back we must comply with the terms imposed by the successful party. These terms were: First, that we should acknowledge the abolition of slavery, which had been accomplished by the 13th amendment to the Constitution. Second: The further terms were that these former slaves should be recognized as citizens of the United States and of Virginia, and should possess all the civil and political rights of freemen, including the right to vote. This right of every citizen to vote whether white or black, was intended to be secured and guaranteed by the 14th and 15th amendments to the Constitution of the United States and by these amend- ments to be made perpetual. These terms were considered hard hy many of our people, especially by the leading men and politicians of the State but the'y were consented to by a large majority of the white people of Virginia who had fought and suffered heroically for the dogma of secession and to perpetuate human slavery, and for the right to carry those slaves into free territory where slavery was not wanted by the people of the territories. The question for the Convention to determine, is not now whether the terms imposed upon Virginia are hard or otherwise, or whether or not Congress should have conferred the right to vote on the negroes, but whether, under all the circumstances that surround us, the right of suffrage should now be restricted. The present Constitution of Virginia only complies with the terms imposed by the Govern- ment of the United States, by which Virginia could be restored to the Union, by giving all citizens, white or black, the right to vote and by making that right perpetual. We have lived under this Constitution thirty years, and from my view, the only injury that has resulted to our people from the provision in this Constitution, giving universal suffrage, is the violation of it, and not from the Constitution itself. It is claimed now by the Constitutional Convention, or a large part of it, that the conditions and promises by vv^hich Virginia was restored to the Union should now be disregarded, and most of the negroes disfranchised. This, I think, will be a mistake and blunder, second only to that committed by the Convention of 1861, in attempting to withdraw from the Union and attach Virginia to the Southern Confederacy. In the first place, suffrage should be free to all men, because it is in accordance with our system of free government and necessary to protect the citizen in his natural and other civil and political rights. That part of the people of Virginia whether white or black, that you deprive of this great right of franchise, and at the same time require them to perform, military service, to pay taxes, to work the public roads and streets, to obey the laws and perform all the burdensome duties of citizens, are slaves, to the ruling class, and are in no better condition than actual slaves with a good master to protect them. In the second place, to deprive negroes of the right to vote will violate the right conditions upon which Virginia was restored to the Union, and be an act of bad faith towards the Government of the United States. By an act of Congress passed January 26, 1870, reciting that Virginia having adopted a Constitution republican in form, and the Legislature elected under that Constitution having ratified the 14th and 15th amendments to the Constitution of the United States, Virginia is entitled to representation in the Congress of the United States, but upon the following conditions: 3052 DEBATES OF THE COXSTITUTIOXAL CONYe^ttioN" OF VIRGINIA. ' First, that the Constitution of Virginia shall never be so amended or changed as to deprive any citizen or class of citizens of the United States of the right to vote who are entitled to vote, by the Constitution herein recognized, except as a punishment for such crimes as .are now felonies, at common law whereof they shall have been convicted under laws equally applicable to all the inhabitants of said State." The second condition provides that the negro shall not be deprived of the right to hold office. " Third, that the Constitution of Virginia shall never be so amended or changed, so as to deprive any citizen or class of citizens of the United States of the school of rights and privileges secured by the Constitution of said State." See Code of Virginia. 1873, page 61. These conditions, whether considered hard or otherwise, were imposed by the Federal Government, which had been victorious in the fight then recently ended, and which had the power to prescribe them, and they were consented to by the people of Virginia in various ways. First, by electing members to Congress upon the prescribed terms, they were consented to by the ratifying of the 14th and 15th amendments to the Constitution of the United States, and they were consented to most positively and •emphatically when the people of Virginia by a vote of 210,585 to 9,136 ratified the Underv,-ood Constitution, which provided that the right to vote of all citizens should be perpetual. Of this 210,585 votes (conceding that the 9,136 were all whites) 115,998 white citizens of Virginia voted to ratify this Constitution, and thus consented to the terms upon which Virginia was restored to the Union. The politicians of the present day say that Virginia was forced to accept these terms, but this is disproved by the fact that 9.136 voters refused these terms by their votes against the ratification of the Underwood Constitution. The fact is that the masses of the people of Virginia accepted these terms gladly and willingly in order fo :get back into the Union from which they had been forced by the Convention of 1861. Against their will, they had felt the pressure of military government for nine or ten years, during which time they had suffered much, they had been conscripted into the army of the Confederate Government for three years during that time to fight for the right to secede from the Union willing or unwilling; a right, according to the teachings of Chief Justice Marshall, and the other most eminent jurists and statesmen of the country, which found no warrant in the Constitution of the United States, or in the principles upon which our Government was founded. They were not only compelled to fight by this military government without compensation, but to support the Confederate army. One-tenth of all that was made by the women and negroes left at home was required to be delivered to the agents of the Government, and that government claimed and exercised the right to take their horses, mules, work oxen and negroes, and this despotism was continued until nearly the entire personal property of the South was destroyed. "S^Hien the people of Virginia were relieved from this incubus, they passed under the military rule of the Government of the United States, which , though, accord- ing to my view, was much milder than that of the Confederacy, was still vexatious and annoying. This 115,978 white voters of Virginia, most of whom were Confederate veterans, and had fought in the ranks, were anxious and willing, though probably opposed to negro suffrage, to return to the Union, and voted cheerfully and in good faith, to accept the terms proposed, when the only part of these terms to which they could object, was that making the negro a citizen, with equal civil and political rights. These Virginians, were anxious to get back into the Union, where they had enjoyed the largest liberty before the days of secession. For the Constitutional Convention of Virginia, at this late day, many of whose members never fought in the Civil War or felt the hardships resulting from the folly of secession, to disregard the promises and acts of 115,978 white Virginians, would not only be an act of bad faith towards the Government of the United States, but would impute hypocrisy and bad faith in those who consented to the terms. There is anotheT- and most potent reason why your Convention should not restrict the right of suffrage. The 14th amendment of the Constitution of the United States amongst other things provides: "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial Officers of a State or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion or other crimes; the basis of representation therein shall be reduced in the proportion which such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State " and " that the Congress shall have power by appropriate legislation DEBATES OF THE COXSTITUTIOXAL CONVENTION OF VIRGINIA. 3053 to enforce this article." This is a plain provision of the Constitution of the United States, and if Virginia deprives any portion of her citizens, white or black, of the right to vote, her representation in the House of Representatives will by this article in the Constitution be reduced to that extent. If she takes from one-third of her citizens the right to vote her representation will be reduced one-third, and instead of having ten representatives in the Lower House of Congress, we v/ill only have six or seven. It may be claimed that this 14th amendment would not be enforced by Congress, and it may not for a time, but it would be a menace constantly hanging over us, which might be made effective at any time. It is true that Massachusetts and one or tv/o other States may have an educational restriction on suffrage, but these exclude so few voters that probably these States would not lose a member by enforcing the 14th amendment. South Carolina, North Carolina, Alabama, Mississippi and Louisiana have deprived large portions of their citizens of the right to vote, and if Virginia follows their example it is not to be expected that the other States who have no restriction on the right of suffrage would remain quiet and permit these States to have fifteen or twenty more representatives in Congress than they are entitled to under the Constitution. The discussion of this matter in Congress would necessarily revive sectional feel- ings and animosities, which it is to our interest to avoid. We could not reasonably expect the people of the United States to quietly remain satisfied, that a voter living in the States named should have more weight in the Congress of the United States than in other parts of the Union. And if the principle of basing representation upon popula- tion is carried out, whilst a large part of the population is excluded from any vofce in the government, it will produce injustice amongst our own people. If the negroes are deprived of the right to vote, the white voters in a county half white and half • black, would have double the representation in the House of Representatives of the United States and double the representation in the Legislature of Virginia, that the voters living in a county all white would have. This is unjust. A further and fourth reason why the Constitution which the Convention may adopt should not deprive the negro of the right to vote, is that it would be a plain and palpable violation of the Constitution of the United States. The 15th amendment of that instrument provides plainly: "1. The right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude." 2. " The Congress shall have power to enforce this article by appropriate legisla- tion." This language is plain and cannot be misunderstood by any sensible man. You cannot deprive the negro of the right to vote because he is a negro, however unfit he may be to vote. You cannot do it directly, and vfhat you cannot do directly, you can- not honestly do by indirection, and if you could it would be unmanly and unbecoming any honest Virginian to resort to such a subterfuge. If you adopt a property qualifica- tion and then except from that qualification all who fought in any war, in order to let in a large number of whites and to exclude negroes who had no chance to fight in the Civil War on either side, you violate this 15th amendment. If you adopt an educational qualifi.cation and except all who had a vote fn 1861 or before that time or whose ances- tors had such vote, it is as plainly a violation of this 15th amendment as if you pro- vided that all illiterate white men should vote, and no illiterate negro should have that right. And so with any subterfuge you may adopt to exclude the negro and let in the white man. In construing your Constitution, if it should ever come before the courts, the court will look to the intention of the Convention in enacting the article in question. It is one of the s.ettled rules of the courts in construing any law to consider the inten- tion of the law-makers, and the leading men of your Convention, and the leading men of the Democratic party in Virginia have proclaimed that the object of any restriction of the right of suffrage by the Convention will be to disfranchise the negro, without depriving any white man of the right to vote. It will be easy, therefore, for any court before which the constitutionality of your suffrage article may come, to see its inten- tion, and to brush aside the flimsy and hypocritical exceptions designed to exclude the negro from the polls, and let in the white man. Your suffrage article, giving all white men the right to vote, and depriving the great body of the negroes of that right, v,^ill be absolutely void, because in violation of the Constitution of the United States, and will be so declared by any honest and intelligent court before which it is adjudicated. Every member of your Convention has at some time taken an oath to support the Con- stitution of the United States, and I think they should hesitate long before violating that oath. Hence I think results the great delay in agreeing to a suffrage clause. Yours truly, GEORGE D. GRAVELY. 3054 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIEGINIA. The government of Virginia, as at present constituted, is a government of lawyers. I think I can trace back through more than a century of our history the causes that have led up to our present degradation. They can all be summ_ed up in one word — Slavery! For the first thirty or forty years of our independence Virginia stood at the very head of the States of the nation. In territory, in population, in agricultural and mineral resources and commercial facilities she greatly surpassed any of her sisters of the immortal thirteen. Her leading statesmen were also the leading statesmen of the nation, and they all looked upon sla,very as an evil which we had inherited and must get rid of as soon as possible. No one of them thought of making it perpetual. As late as 1850 the Legislature was evenly divided on a proposition to abolish it. It was then that the reaction set in in favor of making slavery permanent. The perfec- tion of the cotton gin and the settlement of the new cotton States opened up a great market for Virginia negroes. Then our people found out that we could make more money raising negroes for market than anything else. It was then that Virginia had her fall. It was then that we forgot the grand lessons that Patrick Henry, George Mason, Thomas Jefferson, and George Washington had taught. It was then that our conscience became paralyzed and torpid, and while they were in that condition our free thoughts were trampled upon and suppressed. Unjust and despotic laws were enacted in the interests of slavery. Our enterprising, intelligent young men were driven into exile and Virginia started on that downward course that led to the final collapse in 18G5. Carlyle, starting to write about the Slavonians, exclaims: " Slave, meaning a cap- tured Slavonian, what a long-drawn echo of bitter hate and rage lies in that simple etymology!" Macaulay, writing about slavery in America, says: "Most of the honorable and intelligent men have stood aloof in prudence or disgust from the contest. In their absence the warfare has been carried on by a race of scribblers, who like the mercenary Mohawks so often our auxiliaries in transatlantic campaigns, unite the indifference of the hireling to the ferocity of the cannibal, who takes aim from ambush and desire vic- tory only that they may have the pleasure of scalping and torturing the vanquished. The only requisite for those who desire to enlist in the cause are a front of brass and a tongue of venom. But it is neither on facts nor on arguments that slavery now depends, for protection. It neither doubles nor stands at bay. It has neither the ingenuity of the hare nor the intrepidity of the lion. It simply defends itself like the hunted pole- cat by the loathsomeness with which it taints the atmosphere around it, and hope to disgust those it can neither wrong nor subdue." Such were the defences of slavery for the last thirty years of its existence in Vir- ginia. Indeed some of the rudiments of that defence are still to be seen in the gallant but hopeless fight the rear guard is still making for the reputation of the lost cause. We have all been made familiar with the joys seen and felt around the slave-cabin doors. We have all heard the testimony of the old black mammy, who, after nursing and suckling two or more generations of white babies, has been dragged around for thirty years as a witness to prove what nobody has ever denied, that there existed kindly relations between the slave ov/ners and the slaves. It is now time this old woman was set free. There are thousands of other witnesses, scattered all over the State, who will hereafter be put upon the stand and examined. They are witnesses that will never die, lie or forget. They are the old Code of Virginia laws, the acts and resolutions of the Legislatures, the records in each of the counties of the State, the files of the newspapers of the age, and thousands of other musty documents that will be brought to light by scholars and lovers of truth, who will rise up among us. And these witnesses will all testify with one voice that slavery as it existed in Virginia was unchristian, barbarous and cruel in the extreme. Nothing we can possibly write in our local literature, our school-books, or our local histories, will have the slightest weight where they come in contact with this irresistible array of testimony. DEBATES OF THE CONSTITUTIONAL COXVEXTIOX OF VIRGINIA. 3055 It looks to me as if the best thing for us to do is to give up this hopeless con- troversy. All of the old States have been at some time defiled with, the same pitch. It was only for the brief period of thirty-five years that slavery in its worst form existed here. Massachusetts and Connecticut tried, convicted and burned old women for being witches for a much longer period. If we can now give up our prejudices and hatreds of the negro race, it will take only a few years to put our prosperity on firm ground. But some of you say, and strange as it appears to me, seem actually to believe, that the Democratic party v/ill gain by disfranchising the great majority of the negroes, and a large block of the humblest of the white men. And this in view of the well-known facts that wherever illiteracy is most prevalent the Democratic party is strongest. Wherever there are most negroes the Democratic party gets its heaviest majorities. Every Congressional district in this nation in which the negroes have a majority is and has been, for the last ten years, represented in Congress by a Democrat. Where the people are all white, and most of them educated and intelligent, the Democratic party has nearly ceased to exist. Every single issue the Democratic party has raised and advocated for the last fifty years has been settled by the American people. They have all been settled right and they have all been settled against the contention of the Democratic party. In Virginia, at least, they now have a platform for the first time in fifty years that is entirely harmless. It can be carried out without any serious detriment to the State. Truly it is rather a narrow platform, but v»ade enough for the party. They look well upon it. I hope they will stick to it. This is their platform: " Anti-Roosevelt-Booker-Was ■^viih this Quesiion. Mr. President, the eyes of the nation are upon us. Upon the wisdom of our decision in this matter depends the laudation or condemnation of the country at large. Let not the old State, that has so long been such a jevrel in Colum- bia's diadem, stoop to artifice and subterfuge. But we are told that the people demand that vre take such action. The people! The people: How many crimes are committed in their name! The deceitful shout that echoed around the palace on the day that Rienzi, the last of the Roman patriots, was assassinated was "Tivol populi,'" but with the death of Pdenzi the feeble spark of political freedom vras quenched and the sun of Rome's liberty set forever. YvTiat the people demand is a free ballot., a fair count, and to be represented by candidates of their choice. Certainly the understanding clause will never accomplish the desired end. Before you subject the dearest right of our humble citizens to the caprice and corruption of a dishonest election oScer, gentlemen of the Convention, I ask you to pause. Come with me for a moment, away from the miasma, peanuts and politics of East- ern Virginia, to the rugged mountains of the Southwest,, with its bluegrass hills and fertile valleys, watch the setting sun as he paints his gorgeous colors on the distant horizon and the blue skies turn to gold, truly the ideal home of a free and happy people. They worship nature and nature's God, and rejoice in the freedom of a re- publican form of government, and until modern election methods invaded that favored section, debauching our citizenship and corrupting our young men, my people were allowed to designate their representatives uncorrupted, undefled. They have been led to expect a betterment of existing conditions, but, alasl they are doomed to be dec-eived. Among my people are those who do not come up to your constitutional re- quirements for suffrage. They are poor, humble, but honest, but '■" Let not ambition mack their useful toil, Their homely virtues or destiny obscure; Or grandeur hear with a disdainful smile The short and simple annals of the poor." Some do not own suficient property. Some were not soldiers, and are not sons of soldiers. Many will be unable to meet the poll-tax requirement, and, lastly, hun- dreds will fail "'to understand." "Some time we'll understand," but it won't be the Republican voter who applied to a Democratic registrar of election to construe the Constitution. But I realize, Mr. President and gentlemen of the Convention, that any attempt on my part to change or modify the result will be futile. '•The hand, having written, will not return to erase the mark." I will not attempt to pass judgment on your action. Time will demonstrate the wisdom or the unwisdom of what you have accomplished. But I cannot help believ- ing that if you place this understanding clause upon the people of this old Common- v-ealth that the hand of posterity will write it§~ verdict on the walls of the Temple of Civilization in the words that appeared to Belshazzar of old: •'■ Mene, mene, tekel upharsim." Towards the members of the Convention I have only the friendliest feel- ings, but to some of their politics I am unalterably opposed. TVe are, however, Mr. President and gentlemen, all Virginians, and I know of no better rs.rting injunction than that which Shakespeare puts into the mouth of TTooles- ley to Cromwell: '"Ee just and fear not. Let all the ends thou aims't at be thy country's thy God's and truth's, and then if thou fall'st, oh, Cromvrell, thou fall'st a blessed martyr." The President: The question is on agreeing to the adoption of the suffrage plan proposed by the gentleman from Lynchburg (Mr. Glass). The question having been taken, the result vcas announced — ayes, 59; noes, 20 — as follows: 3080 DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIJs'IA. Ayes — Messrs. Allen, George K. Anderson, W. A. Anderson, Ayers, Barham, Manly H. Barnes, Thomas H. Barnes, Bouldin, Braxton, Brown, Cameron, P. W. Campbell, Carter, Cobb, Dunaway, Eggleston, Fairfax, Fletcher, Garnett, Gilmore, Glass, B. T. Gordon, James W. Gordon, Gregory, Hancock, Hardy, Hatton, Hooker, Hubard, Hunton, Ingram, Claggett B. Jones, G. W. Jones, Keezell, Kendall, Lawson, Lindsay, Lovell, Meredith, Miller, R. Walton Moore, O'Flaherty, Parks, Portlock, Quarles, Rives, Smith, Stebbins, Tarry, Thornton, Tiirnbuil, Walker, Willis, Wise, Withers, Woodhouse, Wysor, Yancey, the President — 59. Noes — Messrs. Barbour, Bristow;- Brooke, C. J. Campbell, Crismond, Davis, Earman, Green, Gwyn, Hamilton, Marshall, Mcllwaine, Moncure, Thomas L. Moore, Mundy, Phillips, Pollard, Summers, Waddill, Watson— 20. The article proposed by Mr. Glass was adopted. (Applause.) Mr. Glass: I move that the article be printed and referred to the Committee on Final Revision. The motion was agreed to. The next business in order is the consideration of the resolution offered by the gentleman from Wythe (Mr. Blair) proposing a change of the rules. The Secretary v/iil read the resolution. Before any action of the Convention can be rescinded two-thirds of the members present shall be recorded in affirmative. Mr. Ayers: I desire to state to the Convention, Mr. President, that there is no use in adopting that provision. There is no use in a majority of this Convention tying the hands of a subsequent majority. That is a proposition that cannot be denied. Rules are merely directory. They cannot, in the very nature of things, be mandatory, and being directory it is in the power of a majority of the Convention at any time to disregard them. It would be a waste of time to discuss and pass this resolution, because if a measure came up which had been passed upon, and the Chair feeling bound by the rule, should refuse to consider it, an immediate appeal from that de- cision would be decided by a majority, and the Convention would then go on as it has n right to do, and determine by a majority the question proposed. Therefore, it is idle for us to waste time in attempting to pass such a resolution. The question having been taken, the result was announced — ayes, 25; noes, 44. The resolution was rejected. The President: The Secretary will read the resolution offered by the gentleman from Brunswick. Resolved. That the action of the Convention on Saturday last in changing rale 9 be, and the same is hereby, rescinded. Mr. TurnbuU: Mr. President, I simply wish to explain in a few words what our rules are, and, as best I can, what I think the effect will be if we do not stand by those rules. If the Convention will give me its attention for a few minutes I think I can explain the matter. Tlie Convention will remember that when the Committee on Rules was appointed to fix rules for the guidance of this body, the Convention took a recess for three days, in order that opportunity might be given to the members of that committee to frame those rules. I had the honor to be a member of the commit- tee, and I spent two days, and better, in examining into rules governing bodies such as this. It was the first tim.e I had ever given attention to the subject, and I knew nothing in the world as to thia matter of rules. But I took the rules which were formulated for the government of the Convention of 1829, I took the rules which were formulated for the government of the Convention of 1850-'51; I took the rules which had been established for the government of parliamentary bodies of all kinds, and I examined them carefully. The object which the committee had in view in fixing rules for the government of this body, like the object to be reached in every other body of DEBATES OE THE COXSTITUTIOXAL COXYEXTIOX OE VIEGIXIA. 30S1 the same naiure, yras to give ample consideration to the measures presented to the Convenrion for it to pass upon. I want to state that this committee in fixing these rules went far beyond anything ever done by any other convention previously in Vir- ginia, or in any other place, to give full opportunity for the due consideration of all matters presented before it; and I want to show ihat the committee had in view the utmost care in the consideration of all measures. I want to show thai the rules estab- lished by the Convention of lSoO-"ol and by the Convention of lS29--"30, were difierent from the rules we established in so far as we gave to this Convention the power to more carefully consider all matters than either of those did. Now, what do you estab- lish rules for? It is for the government of the body in framing the measures that are before it. Every body that meets must pass rules for its government, and of necessity, the body acts under those rules in fixing the provisions of any instrument which it is to frame. Now. Air. President, what are we asked to do in this matter? We are asked, after we have framed the Constitution, article by article, and section b:. section, to frame another set of rules, to do what? To do away with what we have already done. In other words, we are asked by these gentlemen, gravely, after we have made a Constitution under our rules, to go to work and make another set of rules by which to rescind and do away with what we have already done. I say that such a proceeding has never been heard of in any parliamentary body of any sort. ]\Ir. Walker: Under the rules which the gentleman helped to make we could do that very thing, as I understand the only difference being that after we took the matter out of the Constitution we could not put anything in its place. Mr. Turnbull: That is where the gentleman is mistaken in reference to the rules, and I want to explain to this body the methods which we have provided by which measures can be reconsidered if the body thinks proper. Under general parlia- mentary law where you frame rules such as we have fram.ed. they cannot be sus- pended at all except by unanimous consent. In the Convention of 1S29 and in the Convention of 1S50. they had no such rule. We have a provision allowing the rules of the Convention to be suspended by a vote of two-thirds of the members present. In the Convention of lS50-'ol and in the Convention of 1529-'30. they had what was then known as Rule S, which read as follows: A question onoe determined must stand as the judgment of the Convention, and shall not again be drawn into debate. The committee which framed your rules thought that did not go far enough, and they added to that rule these words : " Except on a motion to reconsider or rescind." They had another clause that they added to Rule 6. which was different from that adopted under the convention herefore held in Virginia, that: All reports of standing committees relating to changes, amendments, alterations, or provisions of the Convention, shall be referred to the Committee of the Whole, with- out debate. There was no such rule as that in either the Convention of lS-s^-'30 or the Con- vention of 1S50-'51. What is the object which we had in view? It was, in the first place, to have these various provisions of this Constitution carefully considered by a committee appointed for that purpose, eacn committee consisting. I think, of eleven members, except the Committee on Suffrage. Then they c-ame to the Convention and referred the matter to the Committee of the AMiole, where they could have unlimited debate, where, after the question had been acted on. a motion to reconsider could be made, and then a second debate had upon that motion to reconsider. We went through all that procedure, and then when you came to the Convention again, you had another careful consideration of the matter, and then again an opportunity to debate on a motion to reconsider. So that we had the consideration of these matters before the committee, a consideration of these matters before the Committee of the Whole, and 194 — Const. Deb. 3082 DEBATES OE TELE CONSTITUTIONAL CONVENTION OF VIRGINIA. a consideration of these matters before the Convention itself. What then did the rule say? If the Convention thought it best to reconsider any matter which it had acted upon, what did the rule say? That it should rescind? Not a bit of it, but that the only remedy was by a motion to suspend the rules, in order to reconsider any matter that the Convention thought proper to reconsider. Was not that proper? It required another thing, that a motion to suspend the rules should require the votes of two-thirds of the members present. Now, I ask you, in justice to these gentlemen who have framed the rules in reference to this matter, and in good, sound, hard com- mon sense, is not that rule a proper one to go by to-day, and, after we have given consideration for ten months almost to these important matters, should we, upon the motion of these gentlemen, twist around what we consider a motion to rescind, and by simply twenty-six votes reconsider everything we acted upon here, or should we, where we have a bare quorum of fifty-one, as on last Saturday, require a vote of two- thirds of those present, which would be thirty-four, to reconsider? I do submit, gen- tlemen, that when you go to work as we have here, and labor day in and day out for the purpose of establishing this Constitution and of acting upon it properly, we should not reconsider the action we have taken in reference to these important matters unless we have a vote of two-thirds of those members present. In other words, we should not do this thing without a full attendance. If you do that you can reconsider any and everything, where you have a mere bare majority of a bare quorum, upon twenty- six votes, which is not a third of the members of the Convention. I lay down the proposition that in any legislative body — it is so in the House of Delegates, in the Senate, and in every body I ever heard of — where you undertake to undo what has been done after careful consideration, there must be more than a bare majority of the members present to do it. It is sound in principle; it is sound as a matter of right. If we give permission to the members of this Convention to rescind these different things which have been carefully considered and adopted, in violation of these rules, we will be here another solid month in undertaking to recon- sider different matters. This Committee on Rules put in here the words "except on a motion to reconsider or rescind." These gentlemen seem to have misunderstood what the committee meant by a motion to rescind. What is meant by that was to strike entirely out of the Constitution any matter that the Convention thought proper to strike out entirely, but when you come to change any matter, then it should require two-thirds of the members present. I do submit, gentlemen of the Convention, that we should not confound these two propositions, and that the action taken on last Satur- day by the Convention confounds the words "rescind" and "reconsider," and thus defeats the object which the committee had in framing the rules. That is wrong. The rule we established was that, after you rescind you can have the thing just as if nothing had been done and you can reinsert another law in its place, but in a case of that kind it reouired a two-thirds vote to suspend the rules in order to reconsider the matter. Is there a precedent for that? The Convention of 1850-'51 did exactly that thing On the last day of the session, a motion was made by a gentleman to sus- pend the rules and reconsider a section of the judiciary report, exactly as this Con- vention has done, and it was done, and the matter entered into. I do submit that these rules are reasonable, they are correct, they are right, and after a careful con- sideration has been given to matters under these rules we should not make a new set of rules to undo what has been done after so much careful consideration. Mr Keezell- If any other construction than the one which you have argued is to be put upon the rule, would it not be true that any question passed by a compara- tively close vote could be rescinded, and that the absence of three or four members might bring about that result so that we would be rescinding and rescinding every day in the week.. Mr Turnbull- There would be nothing in the world to prevent it. Mr. Walker: Mr. President, I do not want to discuss this question at any length. DEBATES OF THE CONSTITUTIONAL COXYEXTION OE VIKGINIA. 3083 and I shall not do so. I simply desire to call the attention of the Convention to the fact that the action taken in the adoption of the amendment to the rules proposed b'y the gentleman from Warren was taken deliberately and after full debate. I desire To call attention further to the fact that we have just now voted down the proposition offered by the gentleman from Wythe, which would have required a two-thirds vote in order to rescind any action, and if we should now adopt a proposition such as that proposed by the gentleman from Brunswick it v-ould simply put us in the position we would have been in if we had adopted the rule proposed by the gentleman from Wythe. The President: The question is on agreeing to the resolution offered by the gen- tleman from Brunswick (Mr. Turnbull). The ciuesticn being taken by the ayes and noes, the result was announced — ayes, 37; noes, 35. The resolution was agreed to. (Applause.) Mr. Walker: Mr. President, I offer the following res.olution: Resolved, That when the Convention adjourns to-day, it shall adjourn to meet again on Wednesday, the 4th day of June, 1902: That the Committee on Final Revision and Adjustment of the Various Provisions of the Constitution that may be agreed upon, and upon the Schedule, be authorized to sit during the recess, with authority to print 1,000 copies of the Constitution as finally revised by it, and its members and clerk shall receive pay during such time as its members actually attend its sessions; that the other members of the Convention and its officers and emploj^ees" shall not receive pay, but shall be entitled to mileage. Mr. Barbour: I call for the regular order. The President: The Secretary will read the section referred to in the report of the Committee on the Judiciary, which is next in order. Section — . The judge of the corporation court of any corporation having a city charter, but less than five thousand inhabitants, may reside outside its corporate limits; and the same person may be judge of such corporation court and judge of the corpora- tion court of some other city having less than ten thousand inhabitants. Mr. William A. Anderson: Mr. President, the members of the Convention will observe that this proposition does not involve the rescission of any action that has been taken, nor has the Convention expressed judgment, directly or indirectly, upon this proposition. This section, now reported by the Committee on the Judiciary, is. intended merely to supply an omission, and correct that omission, in the original report. It relates only to judges of statutory cities having less than 5,000 inhabitants and enables the General Assembly to elect as judge of one of these cities some person who is a judge of another city of the second class having not more than fen thousand inhabitants. It only applies, therefore, to the city judges of Bristol and Buena Vista. The reason for it is that, under the Constitution, as we have adopted it, these judges can no longer practice law, and it is impossible in the nature of things, to secure a compe- tent lawyer in at least two of these cities, as I am informed, at such salaries as those communities are able to pay. To enable them to secure the services of a com- petent lawyer and a competent judge, this section, if adopted, will empower the Gen- eral Assembly to elect the judge of some other small city, as the judge of one of these statutory cities. I do not think there can be any objection to the proposition, I knov- of none, and hope it will be the pl^^asure of this Convention to adopt this section. The President: The question is on agreeing to the resolution reported by the Committee on the Judiciary. The ayes and noes were ordered and being taken, the result was announced — ayes, 63; noes, 13. The resolution was agreed to. 3084 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Mr. O'Plaherty: I move to rescind the action by which sub-section 2 of section 2 of the article on suffrage was adopted. The President: The question is on agreeing to the motion made by the gentle- man from Warren to strike out sub-section 2 of section 2. The motion was rejected. Mr. R. Walton Moore: I move that the Secretary be directed to read the rescind- ing resolutions in the order in which the Convention is to act upon them, at once, except the one relating to the Legislative Department. The President: That will be taken as the sense of the Convention unless there is objection. The Secretary read: Resolved, That Section 5, article 6, of the pending Constitution, as contained in the report of the Committee on the Judiciary Department, adopted on the 8th day of Jan- uary, 1902, be and the same is hereby rescinded. Mr. Withers: . This resolution has been to committee and a vote has been taken on it. I will move that the committee be discharged from the further consideration of this matter. The motion was agreed to. The President: The question is on the motion of the gentleman from Danville (Mr. Withers) to pass by temporarily. The vote being taken by the ayes and noes, the result was announced — ayes, 41; noes, 32. The motion was agreed to. The President. The Secretary will read the report of the Committee on Executive Department on resolution 288. Resolved, That Section 13, article 4, relating to the Executive Department, adopted by the Convention on the 26th of February, 1902, be rescinded, and the following section be adopted in lieu thereof: Section 13. A State Treasurer shall be elected by the joint vote of the two houseB of the General Assembly for the term of four years. Mr. William A. Anderson: I offer as a substitute for this proposed resolution a resolution to rescind this clause of the section of the article adopted by this Con- vention. The question having been taken by the ayes and noes, the result was announced — ayes, 31; noes, 44. The resolution was rejected. Mr. Cameron: Mr. President, the Committee on the Executive Department re- ported unanimously against resolution No. 289, which I would like the Secretary to read. Resolved, That Section 12, of Article IV, relating to the Executive Department, adopted by the Convention on the 26th of February, 1902, be rescinded, and the fol- lowing section be adopted in lieu thereof: Section 12. A Secretary of the Commonwealth shall be elected by the joint vote of the two houses of the General Assembly for a term of four years. He shall be com- missioned by the Governor, and shall receive a salary to be fixed by law. He shall keep a daily record of the official acts of the Governor, which shall be signed by the Governor and attested by the Secretary, and when required, he shall lay the same and any papers, minutes and vouchers pertaining to his office, before either house of the General Assembly. He shall discharge such other duties as may be prescribed by law. All fees received by the Secretary of the Commonwealth shall be paid into the treasury monthly. Mr. Portlock: Mr. President, I move to rescind the action of the committee re- lating to the office of Secretary of the Commonwealth. DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 3085 The question is on the adoption of the substitute. The motion was rejected. The President: The question is on the resolution offered by the gentleman from Halifax, being resolution No. 282, relating to the election of the county treasurer. The motion was rejected. The President: The resolution offered by the gentleman from Norfolk county (Mr. Portlock) is now on the table, and the Secretary will read the resolution. Resolved, That Section 24 of the report of the Committee on Taxation and Finance, as adopted by the Convention, and referred to the Committee on Finance Revision, providing for the reduction of taxes on tracts of lands and lots and the improve- ments thereon and tangible personal property, etc., be rescinded. Mr. Portlock: Mr. President and gentlemen of the Convention, I know how extremely difficult it is, at this stage of our proceedings, to have this body seriously consider an attempt to make any change in the matters heretofore passed upon by the Convention. I know how anxious the members of this Convention now are to reach a termination of their labors. I am also aware, Mr. President and gentlemen, of the importance of correcting, if possible, any mistake which we may have made in the past in our deliberation and in our work in this body. I am all the more impressed with the necessity for correcting what I believe to be one of the gravest and most serious errors which this body has committed, an error which affects the credit, honor and integrity of this State; an error which reduces to an experiment and an uncertainty the ability of the State to met in the future, its governmental necessities and its ability to avail of the funds necessary to discharge the obligations incident to the growth of our public institutions and ever increasing population. I refer to the reduction of the State tax assessment from 40 to 30 cents on the $100. I know it is not a popular procedure on the part of any one to inveigh against any attempt to les- son the rate of taxation, as a general proposition. But here is a specific case v/hich, as I have said, in my opinion involves the credit, the honor and the welfare of the State of Virginia, and if we have made a mistake in a matter so serious as this I believe it would be the desire of this Convention to correct that mistake. I understand, Mr. President, that we have a limited time for debating this question and it is therefore, impossible for me to discuss it at any length, or to even attempt to go into the question of facts and figures with reference to the financial situation of the State of Virginia. I can only say that we cannot now, at this time, estimate the necessities of this State growing out of this rate of taxation by a simple reference to our present financial condition. We have been for some time past, and are now, in an extremely prosperous condition. By reason of the rate of taxation which we now have, we have been able to meet unusual obligations. For instance, we have recently paid an increased interest on the public debt of $180,000. We have paid increased pensions of $165,480 over and above the usual average expenses heretofore paid by the State. Our receipts were larger in the year 1901 than they have lj£'en for some years past and very much larger than they will be again, in my opinion, notwithstanding the efforts we have made to- wards the reduction of expenses in the State government under the provisions to be embodied in the new Constitution. I think, Mr. President and gentlemen, that it is unworthy of this body to put into this Constitution a provision which will menace the prosperity of the State of Virginia, and which will tend to bring upon us the deplorable conditions of a few years past, involving the question of readjustment or perhaps, even worse, repudiation, in order that vv^e may say to the people of the State of Virginia that we have reduced their taxes, we should resort to any such conduct as this as an argument and an excuse in calling upon the people to adopt this Constitution which we have framed for them. I say that the people of Virginia do not want this. They have not asked for it and they have no faith in it. It is merely a sop, a tub thrown to the whale, a species of 3056 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIEGINIA. political buncombe, whereby it is expected that the people will be induced to overlook, perhaps, supposed deficiencies in this Constitution. Its only object is to hold out this act of the Convention, popular as it appears on its face, as a means of popularizing our work, and as a reason for accepting and adopting the same. We have made a good Constitution without the reduction of taxesi, and I believe the people will accept it. Mr. Keezell: Is it because you want to call their attention to what you think are the deficiencies of the Constitution and so prevent them from adopting it, that you are opposing this measure? Mr. Portlock: The gentleman from Rockingham, Mr. Keezell, must not infer or argue that because I have declined to support some of his radical and populistic meas- ures, that therefore I am disposed to discredit the wisdom and work of this Convention. I will say further to the gentleman, that I give the people credit to be able to read and understand and for themselves the result of the work of this body, even though the gen- tleman may not concede their ability to do so. If the gentleman knows anything, he must know that I refer to the people themselves and to what some of the members of this Convention believe are deficiencies in the article we have framed as. the New Constitution. There is no purpose on my part to use that as an argument, as the gentleman from Rockingham must know. Nor will that gentleman be more loyal in his support of this Constitution than I myself will be. Mr. President, I regard another proposition contained in this Constitution as an indication of doubt on the part of the supporters of this provision as to the sufficiency of this rate of taxation. They seek to cover and remedy any deficiency that may be brought about by this reduction of the rate of taxation by putting upon the Lregislature the necessitj^ of in the future raising these taxes. How can they say tfiis rate is suffi- cient when at the very time of making this reduction, they provide that the rate may be increased by the Legislature. In other words, we get all the credit before the people and expect to receive their encomiums for our work in reducing taxes and when the need for more revenue becomes apparent as they obviously think it will, the Legislature will be subjected to the unpopular act of putting these taxes back again. I say that also is unworthy of our body. It is a responsibility which we ought to assume and stand up t<-; ourselves, and not leave it to the Legislature to undo, from an unpopular point of view, what we seek to do by reason of the popularity involved. As a matter of fact, this Constitution has nothing to do with this question; we could easily have left it out. We could easily have said nothing about it, as other constitutions heretofore made and adopted by this State have done. There is nothing in the present constitution and there never has been anything in any of the constitu- tions of this State, relating to the rate of assessment for taxation, and why should we come here and undertake, for the first time in our history, to assume this purely legis- lative function? Mr. Barbour: Are you aware that Section 14 of this same article contains a maxi- mum tax on corporations for a period of ten years? Mr. Portlock: I have made no reference to Section 14. I am speaking of Section 24. Mr. Barbour. It seems to me the matters are connected. Would you be willing to rescind both? Mr. Portlock: Yes, sir; I would be perfectly willing to rescind both, I will say to the gentleman from Culpeper that the tax on corporations is a maximum tax, and this section, which I am discussing, provides for a minimum tax, and it is the extreme minimum that I object to. Mr. Barbour: The article merely prescribes the maximum rate. You cannot go above it but you may go below it. Mr. Portlock: The gentleman understands that the point I make Is, that we have already gone too far below the rate now in force. I would like to call the attention of DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF YIEGIXIA. 3087 this Convention to anotlier consideration in regard to this matter. Tliis report means a serious discrimination. I am no special advocate of one special class of property- holders over another. I am disposed, on the contrary, to put them all on the same plan. I say that this section does not do it and it amounts to discrimination in the matter of taxes. In other words, it provides that the rate of taxation shall be reduced from 40 cents to 30 cents on the $100 on real estate and tangible personal property and does not seek to lower the rate on intangible property. I say that this section makes a discrimi- nation between real estate, tangible personal property, and intangible personal property. Mr. Wysor: I thank the Convention for permitting me to address it after the expiration of the time alloted to Judge Portlock's side of the question, upon which side I will speak. I want to return the favor by telling the Convention what I think it ought to do. It seems to me that it owes it to itself to rescind this tax reduction provision. You have been called the greatest body of men on earth, and it has pleased you very much. I do not believe you are the greatest body of men on earth. If 3'ou are I am satisfied you will rescind that provision. There is one thing I do believe about the Con- vention, and that is that it is one of the most independent bodies on earth; but in this article it shows a lack of independence. This tax reduction provision savors of a bid to the people to approve the Constitution. It also makes a bid to the Confederate soldier hy holding out to him the empty hope that the people might vote a levy of five cents on the one hundred dollars for his benefit. He should be provided for without resorting to the uncertainty of an election. I believe this is the only Constitution in which you will find such a provision. It shows a lack of confidence in the Legislature, and more than that, it shows a lack of confidence in the people. It takes away from the people for four years the right to fix the rate of taxation on real estate and tangible personal property. By it you show that you mistrust the people. If the Constitution is submitted to the people this provision will perhaps cause more votes to be cast against the Constitution than for it. Its tendency will be to bring about unequal taxation. The gentleman from Rock- ingham (Mr. Keezell), who just interrupted the gentleman from Norfolk county (Mr. Portlock), voted for this provision, and then tried in the Senate to increase the tax on telephone companies, which is already excessive and unjust, in order to make up a deficiency-. This tax reduction provision reaches R,ockingham farms, but there are other species of property which do not get the benefit of it. such as telephones, for example. The gentleman from Rockingham, I understand, as a member of a sub-com- mittee of the Finance Committee of the Senate, joined in a report to put in addition to the present excessive methods of taxing telephone companies a tax of two per cent, on their gross earnings, and a tax of two dollars a mile on their lines of poles. This would have been confiscation of all the independent telephone companies of the State. In redistricting the State for Senators, it was said the Legislature was about to destroy his Senatorial district. I would not have wept if it had been done, nor would I shed tears if he should be defeated the next time he runs. In these remarks about the gentleman from Rockingham I am only semi-serious, and I hope he will not take them too much to heart. Peradventure he will get straight on taxation of telephone com- panies after awhile, and not seek to tax them, as I think, so excessively. But I insist that this tax provision should be stricken from the Constitution. It is a matter that the Legislature and the people have the right to control. It is the province of the Legislature to reduce taxes and not ours. The people have the right to increase their taxes when- ever they wish, and should not be prohibited by a constitutional provision from doing so. T\'e are all willing for reduction, but let it be done by the proper tribunal. The gentleman from Culpeper asked the gentleman from Norfolk if there was not a maximum rate fixed on corporations. There is, but we have increased the tax on corporations and get $250,000 a year more money out of them than we were getting before, and this provision reduces the State tax one-fourth on real estate, which it is claimed is already assessed at much less than its value, and will in all probability 3088 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIEGINIA. continue to be assessed at much less than its value, and makes a like reduction on tangible personal property, but makes no reduction on other kindsi of property. Mr. Barbour: The gentleman speaks of real estate in Southwest Virginia, I sup- pose? Mr. Wysor: Out in Pulaski some lands are assessed at $25 and $30 an acre and more. Southwest Virginia doubtless pays her just proportion of State taxes. I don't know how it is in Culpeper, but I will make a trip through the Auditor's office some of these days and see how real estate stands in Culpeper, The gentleman from Danville seems to think that it would take a great deal of nerve to get up here and oppose the tax reduction provision. I am willing to let the people know I oppose it. The people will not condemn a man if he acts conscientiously. But I haven't got my ear to the ground. I thank the Convention for its attention. (Applause.) Mr. Keezell: Mr. President, I desire to take but a very few minutes of the time of this Convention. When this matter was up in Convention I was reluctant to speak upon it at all. The gentleman from Danville gave some figures and at the solici- tation of a number of my fellow-members of the Convention I was asked to give my opinion about the matter. I then stated I did not propose to advise any one how they should vote, but that from information I had as to the figures submitted by the gentle- man from Danville I had no doubt they were substantially correct and that I was going to vote to put this provision in the Constitution; however, I desired everybody else to vote just exactly as they pleased about the matter. I told them if they thought it was not proper matter to go into the Constitution not to vote for it, l3ut that I, as a member of the General Assembly, believed it was a wise thing to put some limit on the Legislature because it was almost impossible for the members to resist the impor- tunities that come to them from special interests, when there is a large surplus of money on hand, and that the safest condition for the State to be in was to have prac- tically an empty treasury. I stated that I had no doubt, in my own mind, that every just, reasonable and legal requirement of the State would be met under this reduction of taxation, and that it was really, in fact, only a reduction of five cents, instead of ten, because there was a provision there which allowed five cents to be levied for the payment of pension claims. A resolution was offered in the Senate of Virginia for a report from the Finance Committee of that body upon this question. A certain gen- tleman in that Finance Committee prepared a very lengthy report, undertaking to demonstrate that this reduction could not be safely made, and that the Legislature was not in a position to advocate a five-cent reduction. I want to say now that when that report, more than thirty pages of typewritten matter, dealing in figures which were said to be figures from the Auditor of Public Accounts, was brought before the Com- mittee on Finance of the Senate, it was so far from accurate, as was pointed out by me, that the gentleman who presented it withdrew it, and it never saw the light of day in the Finance Committee of the Senate. (Applause.) I say now that there is no question about the rate of taxation fixed in this Consti- tution being sufficient for every legal, reasonable and proper demand of this Common- wealth. If you want to put a rate of fifty cents on the hundred dollars into the Con- stitution, you will find a Legislature that will spend every dollar of it. Mr. Wysor: Did you not sign the Finance Committee's report, which said that this was peculiarly a matter for the Legislature? Mr. Keezell: I said that I did not intend to advise other people how to vote on this matter; but as a member of the Legislature I wanted to be relieved from the pres- sure that has been brought to bear upon that body from every section of the Common- wealth, which they could hardly withstand when they had money in the treasury. As' to the statement of the gentleman from Pulaski, I have no desire to come back to the Senate of Virginia. They did not have to abolish my Senatorial district to keep me from coming back to the Senate, but I have confidence enough in my people DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OE YIEGIXIA. 3089- to think that if I wanted to come back I could do so despite the wishes of the gentleman from Pulaski, and that his objections could not keep me from coming. So far as the taxes on telephones are concerned, I did not favor increasing the tax on any company and the tentative proposition of $2.00 per mile, etc., was only intended to apply to those companies which practically escape a transmitter's tax and was with- drawn when it was pointed out that it would affect other companies disastrously. I did not propose to reduce the taxes on the Bell Telephone Company, in the interest of that great monopoly, which was asking to be almost entirely relieved from taxation, and I did stand up for the farmers of this Commonwealth and say that they should have a just system of taxation put upon them; and I did succeed in relieving the purely mutual telephone companies of a license tax. It was never the contemplation of the law to charge them, and this was done without increasing the tax upon any other tele- phone companies — but leaving it as at present. Mr. Meredith: I hope the resolution of the gentleman from Norfolk county will not be adopted. I was in very grave doubt as to what to do about the reduction of taxation; but, inasmuch as this provision has been adopted by the Convention, I think we should stand to it and vote down the motion to make any changes. I do not think we should attack the provision of Section 14 with regard to the tax on railroads. I hope it will be the pleasure of the Convention to let the matter stand as it is. Mr. Glass: Mr. President, I was not present in the Convention when the vote upon the reduction of taxation was taken; but had I been here I should have cast my vote in favor of the reduction with the greatest pleasure. Had I been here and voted against the reduction of taxes, my observation and limited experience in the Senate within th& last six weeks w^ould make me alter my attitude, and I intend to-day to vote against this motion for rescision. I desire to remark in a perfectly friendly spirit that I am not so tender of the feelings of the General Assembly as to be afraid to exercise my constitutional right here upon this matter of reducing taxes; and if members of this Convention, however much they may deplore friction, could have read the assault upon the work of this body referred to just now by the delegate from Rockingham, they would not be so effusively deferential in dealing with questions which the General Assembly has been accustomed to handle. We are not expected to reverse our action here upon the mere expression of belief by the delegate from Norfolk county that the reduction of the tax rate by the Con- vention was. not made in a spirit of sincerity, but purely as a matter of " bun- combe." I do not believe it was done as a matter of "buncombe." I believe it was the deliberate conviction of the members of this hody that they had so performed their work as to reduce the running expenses of the government of this State and at the same time to bring a large accretion to the public revenue; having done which, it was their perfect right to challenge and repel the declaration that the Convention has been a useless and expensive luxury. It is our privilege, if not a duty which we owe ourselves, to demonstrate to the people of Virginia that the work of this Convention has been of such a substantial nature that we may safely reduce the burden of taxation. Mr. Wysor: You seem to be unwilling to trust this matter of taxation to the Senate. Do you not expect we will always have a Senate of A^irginia and a Legislature, and if you do, why don't you. take the matter away from the Legislature altogether and put it into the Constitution? Mr. Glass: Because conditions change and the tax rate must be conformed to circumstances. An investigation of the State's finances at this time, together with an examination of the expeditures and receipts of government and the available surplus, convinces me that it is perfectly safe to reduce the tax rate for a period of four years. Not only do I regard such reduction as feasible, but I think it eminently wise; moreover, I am confident that our action will not soon be undone by the General Assembly; or the increased revenues to be derived from the taxation of corporations, together with the reduction of administrative expenses made by this Convention, is going to keep the 3090 DEBATES OE THE CONSTITUTIONAL CONVENTION OE VIEGINIA. taxes of the State down to 30 cents on the one hundred dollars. Hence I repeat that the reduction of the tax rate by the Convention was not " buncombe." It was an achievement that the Convention ought to be proud of. Having accomplished such results in the face of attack and harassment, the Con- vention has a right to make its work secure and to demonstrate to the people that their representatives here have not uselessly frittered 'away their time. The outcry against tax reduction comes from the organized opposition to this Convention, and is inspired by a purpose to defeat its work before the people. (Applause.) Tangible evidences are by no means lacking of concerted effort to beat the Constitution that we have framed. I have repeatedly heard bold and emphatic threats to that effect. We ought to meet these enemies fearlessly; vv^e ought unhesitatingly to repel their attacks. We have evinced here quite as much deference to the General Assembly as that body has to the Convention. The bitter hostility of certain members of the Legislature to the work of the Convention has not been disguised. It has been openly proclaimed by some and covertly demonstrated by others; and under the leadership of these gen- tlemen the General Assembly has, in less than six weeks, expended the accumulated surplus of nearly three years. They have gone into the treasury with lavish hands. Nothing has been denied. I do not hesitate to express it as my belief that this has been largely done to discredit the work of this Convention by attempting to convince the people of Virginia that this tax reduction is a dangerous and disastrous experiment. In my opinion it is neither. It is practical and safe and right. I accept my full share of the responsibility for it, and shall vote against any rescission of the action of the Convention. The President: The question is on agreeing to the resolution offered by the gen- tleman from Norfolk county. The question being taken on ayes and noes, the result was announced — ayes, 23; noes, 56. Mr. Walker: I ask to have my resolution reported. Resolved, That when the Convention adjourns to-day it shall adjourn to meet again on Wednesday, 22d day of May, 1902, at 12 o'clock M., and that the " Committee on Pinal Revision and Adjustment of the Various Provisions of the Constitution that may be agreed upon and upon the Schedule" be authorized to sit during the recess, with authority to print one thousand copies of the Constitution as finally revised by it, together with the schedule and report of the committee, and its members and clerk shall receive pay during such time as its members actually attend its sessions, as well as mileage; that the other members of the Convention, and its officers and employees shall not receive pay, but shall be entitled to mileage. The resolution was adopted. The hour of 2 o'clock having arrived, the Chair was vacated until 4 o'clock P. M. AFTERNOON SESSION. The Convention reassembled at the expiration of the recess, Mr. Ayers in the chair. The Presiding Officer: The business before the Convention is the consideration of the two resolutions of the gentleman from Appomattox (Mr. Flood). The first resolu- tion v/ill be read. Resolved, That Section 3, of Article 5, of the pending Constitution, as contained in the report of the Committee on the Legislative Department, adopted on the 7th day of January,. 1902, be, and the same is, hereby rescinded. Mr. R. Walton Moore: Mr. President, the gentleman who introduced this resolu- tion is absent. I do not know that there is any prospect now of his return before the adjournment of the Convention, so I suppose we might as well take up this matter and dispose of it; I take it for granted there is no alternative. The Convention will recall DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIKGIXIA. 5091 the provision, as it now stands, is for the election of the entire Legislature biennially, both the members of the House of Delegates and the Senate. If the Convention should rescind that action, without some understanding being reached in advance, it is Impossi- ble to tell whether we could get a two-thirds vote to effect any substitution whatever. It has been suggested in the last hour or so, by gentlemen who have conferred with the delegate from Appomattox, that before taking a formal vote on the rescinding resolu- tion, there might be some understanding reached, to substitute for what we have done a provision that would be satisfactory to all, and which would settle the conflicting views entertained by the gentlemen of the Convention. Now, Mr. President, so far as I am concerned, I am not here in any unyielding attitude, and those who have acted with me, I am sure, are disposed to make any concessions that will relieve a situation which has become somewhat complicated. This subject has been under discussion, in one form or another, almost ever since the Con- vention convened last summer. It has been proposed by several gentlemen that it might be possible to come to an understanding, in a more or less formal way, in advance of a vote upon the motion to rescind, to the effect that all the members of the House of Delegates shall be elected biennially, and all the members of the Senate shall be elected quadriennially. This would provide for the election of the entire Legislature every four years, and an intermediate biennial election of the House of Delegates. It has seem.ed to me, gentlemen, that the arrangement suggested would give a feature of sufficient conservatism, and at the same time would facilitate the people in securing a ready expression of their opinions and wishes by the General Assembly of the State. Now, I have made this statement very frankly, because this is no time for strategy or manoeuvring; and I want to be perfectly candid with the members of the Conven- tion. I can only say that such a disposition of the subject would be very agreeable to me, and I respectfully ask the Convention to take it under consideration at once, with a view of determining whether we can come to that conclusion, and be ready for the recess, which has already been agreed upon this morning. Mr. Carter: Mr. President, I am one of the members of this Convention who was very much opposed to the change that was made in the Constitution of our State Sen- ate. I thought we made a great mistake. I thought it was done in a hurry, and without due consideration. It was the one single thing that this body has done that I was willing to vote to rescind. I will say, speaking for myself alone, that I am perfectly willing to take the olive branch held out by the gentleman from Fairfax (Mr. Moore). In the first place, I think it is exceedingly important, in these closing days of our session, that we should get together upon as many subjects as possible, in order to adjourn with as much consensus of agreement upon all important points as it is possible for us to have. I am willing to yield something of my views upon this question, as I have been upon many other questions which have come before this body. , Mr. George K. Anderson: I had the honor, Mr. President and gentlemen of the Convention, to introduce a resolution looking to the election of all the members of the General Assembly for terms of four years, with biennial sessions. In the same spirit which has actuated the chairman of the Committee on Legisla.tive Department. I feel that the time has come v/hen our extreme views, upon these questions should be toned down to some extent. I therefore give notice that I shall offer an amendment to the resolution proposed by the gentleman from . Appomattox, to strike out of his resolution all of the words contained in the lines from 5 to 8, inclusive, which will leave us in this position: That members of the House of Delegates will be elected every two years, for terms of two years, and members of the Senate will be elected every four years for terms of four years; and when the question comes up on the resolution offered by myself, I shall ask the Convention to vote it down and take this in lieu of it. Mr. Withers: Mr. President, I rise to a question of personal privilege. I do so with a feeling of regret and apology; but with a feeling that in justice to myself per- sonally three things should be corrected: 3093 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. First. It has been stated in certain newspapers in the State that this motion was offered in the interests of a certain gentleman's candidacy for a certain office and against the candidacy of a certain other gentleman for the same office. Publicity has been given to that statement. I hope the Convention will bear with me, because I want the Convention — and I care very little about the public, because I do not think it is much concerned — to know that that is not true. I offered the resolution individually, without any idea of that sort v/hatsoever, and my position in the last campaign in this, State absolutely negatives such an idea. That is correction No. 1. The same newspapers have stated that the result was revolutionary, destructive, and absolutely in defiance of all precedent. Without attempting to argue that point, I want the Convention to know, if it does not already know, that twenty of the States of the Union, and among them the best, have exactly the plan that was adopted in the legislative article. The third point to which I wish for a moment to ask your attention is, that it has been s,tated that it was offered without the knowledge of any one; that it was put through under a misapprehension, without discussion and without the knowl- edge of this Convention as to the fact that such a resolution was before it. That charge has been iterated and reiterated in the Richmond Dispatch, which publishes the official proceedings of this Convention. I do not care, Mr. President, to be put in such a position before any body of which I am a member. In the Richmond Dis- patch of January 17th, which I hold in my hand, and in the official report of the pro- ceedings of this Convention, is the notice given by me two or three times, which I will not take up your time to read, that on the next day or at such time as a certain sec- tion was reached, I would move to reconsider sections 2 and 3, for the purpose of doing away with hold-over senators. That identical language was used by me two or three times on the 16th day of January. Now, in the Dispatch of the 18th day of January is a full report of the proceedings and discussions upon the motion of which I had given notice the day prior; and there appears in this, the same newspaper, that has charged again and again that there was no opportunity given to discuss this mat- ter, all but a fraction of seven columns of debate upon the subject; showing that no trick was worked upon the Convention, that no parliamentary strategy or manoeuvre was resorted to, but that full notice was given, and that the reason assigned was the desire not to have hold-over senators, whether you had quadriennial or biennial elec- tions. I want to make this statement, Mr. President, for the reason, first, that I want the recollection of this body refreshed as to the fact that due notice was given of the amendment I proposed to offer, the meaning of it, the purpose and the intent of it; and, secondly, that no trick was resorted to, but that, as any member can see by in- specting the Dispatch of January 18, 1902, there appears there all but a fraction of seven columns of discussion, in which six or eight gentlemen took part. With that explanation, I hope I have made myself clear to the Convention, and that is the only body I care to inflict the explanation upon. Mr. R. Walton Moore: A little while ago, Mr. President, I read a resolution which I had prepared, or was in the act of preparing. Since then my friend from Northum- berland has suggested that the matter be put in a little different shape, to deal with it a little more simply than as I had prepared it. So, instead of reading again or offering the resolution which I read, I now read the resolution as prepared by him. Resolved, That the Committee on Revision be and they are hereby empowered and directed to so amend the article on the legislative department, as to provide that all the members of the Senate be elected once every four years for a term of four years, and the members of the House of Delegates be elected biennially for a term of two years, as is at present provided in the said article. DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 3093 The language "at present provided in said article" applies to the House of Dele- gates. The change is expressed in that portion of the resolution which reads: Provided, That all the members of the Senate be elected once every four years for a term of four years. Mr. Cameron: Mr. President, I will not detain the Convention further than to say that I am one of those who occupy the position of the gentleman from Hanover (Mr. Carter), on the legislative proposition, and of the gentleman from Danville, that after consultation with others, composing that element, I feel justified in saying that this compromise is one that should be accepted, and I hope we will find in this a ground of common agreement, and that with practical unanimity the Convention will agree to this resolution. (Applause.) Mr. Hatton: Mr. President, I was one of those who opposed on this floor the adoption of the clause of the Constitution relating to the election of senators, and I, of course, would logically be in favor of rescinding the action of the Convention as it now stands. But I am expected to vote for the rescinding resolution under an implied agreement that those who vote for it will accept the proposed compromise. I cannot vote for the rescinding resolution, and will not vote for it with any such under- standing. The so-called compromise measure in no wise meets my objections, and rather than join in this compromise with those who advocated such a radical departure from a fundamental principle, which has obtained in our government from its founda- tion, I prefer to let those who want it shoulder the responsibility for it without co- operation from me. I do not desire to be considered arbitrary or unyielding, but I must stand for a principle which, as I conceive, stands at the very root of the organization of the legislative branch of our State government. This is no time for a re-argument of this question, but I think my position requires this explanation. I oppose any change in the election of senators, because from the beginning of this government down, I be- lieve, to 1850, the Senate of Virginia was divided into three classes, so that the Sen- ate represented public opinion in the State at three different and distinct periods. Since 1850 the senators have been divided into two classes so that the Senate represented public opinion in the State at two different periods. The reason for this is plain. It was designed to protect the people against one of the evils of popular government, against hasty legislation incident to some great wave of public sentiment, which sometimes sweeps over a people and causes them to become unmindful of the possible consequences of their acts. It was to place in the General Assembly the leaven of conservatism and to insure as far as possible the presentation of both sides of all questions in times of public excitement. As the provision now is in the Constitution, which we have just framed, the Senate will constitute only one class. Therefore, they will represent public opinion in the State only at one period, and this so-called compromise does not change that position in any particular or in any degree, whether the senators are elected every two years, or are elected every four years. If they are elected at the same time the main object of having two houses in our General Assembly, I say, is defe?tted, and when the reason for the existence of the Senate ceases, the logical consequence is the abolition of the Senate, and, inasmuch as economy is the reason first assigned by the advocates of this measure, they should have been logical and carried their reasons to their legiti- mate conclusion and abolished the Senate. For these reasons I desire to go on record as against any such agreement. It is a one-sided compromise, and therefore, it is no compromise at all. With that explanation I wish to say that I shall vofe against it. Mr. Turnbull: Mr. President, I simply wish to say that while, as is known to all the members of the Convention, I favor quadriennial sessions of the Legislature. I think the compromise spoken of by these gentlemen is a proper one, and I shall sup- port it. 3094 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Mr. Brown: Mr. President, I have been one of those who have occupied the posi- tion from the beginning of the session in favor of biennial elections of representatives for terms of two years; for biennial sessions, and for four-year terms for senators — one-half of the Senate to be elected biennially. Under that arrangement v/e would have the exact state of affairs that we have now. The gentleman from Portsmouth has ex- pressed my views in regard to the desirability of retaining the time-honored institu- tion of a hold-over Senate, and has done it more forcibly than I could have done, and I fully endorse everything he has said as to the superiority of the plan we have al- ways had, and which those who have agreed with me throughout this whole contro- versy have consistently contended should be preserved. This Convention, however, at one time, in the Committee of the Whole, adopted a resolution which provided for quadrennial elections of senators and members of the House of Delegates, and for quadrennial sessions of the General Assembly. That was very far from my original idea, or from anything that I felt I could support. After a hard fight, tffis position was subsequently reversed in the Convention, and provision made for biennial election for terms of two years for s-enators and for members of the House of Delegates, and for biennial sessions. That is tbe present status of the matter in the Convention, and I am equally un- willing to agree that this provision should be retained. The so-called compromise plan, now proposed, provides for biennial elections of members of the House of Delegates for terms of two years, and for quadrennial elections of s,enators for terms of four years — the election of all the senators to take place at one time at each alternate election for members of the House of Delegates. It also provides for biennial sessions of the General Assembly. I conclude that the plan contemplates that the members of the House of Delegates will be elected at the same time the Governor is elected, and the senators and a new House of Delegates will be elected at the subsequent biennial election, that takes place in the middle of the Governor's term of office. It is true that under this arrangement we do not preserve in the best form the fundamental principles which the gentleman from Portsmouth has so forf^ibly shown to stand as the very essence of the organization of the legislative branch of the State government. The application of the principle is really diverted, and it now appears, in this compromise measure in a more exaggerated and different form. The position of those gentlemen who have oppo&ed the retention of the original system, and who have advocated the radical changes contemplated by the Convention in its action up to this time, have forced those of us that have contended for the reten- tion of the original status to agree to accept this so-called compromise, that really takes us beyond what we would be willing, under other circumstances, to recognize as a proper solution. We will in future, if this compromise is carried out, have a Governor and House of Delegates elected and going into ofRce together, and a hold-over Senate of forty members, instead of a Governor, House of Delegates, and one half the Senate elected and going into office at the same time, v/ith one half the Senate as hold-overs, as originally intended, to preserve the feature of conservatism in the legislative branch of the government. Then, in the middle of the Governor's term, there will be an election in which all the Senate and all the House of Delegates will come up for elec- tion, and if a wave of impulse sweeps the State, there will remain as the element of conservatism the Governor, elected two years previously, with his right to exercise his veto power, and with the temptation to yield to temporary pressure in large meas- ure relieved by reason of his ineligibility to succeed himself, though the temptation to popularize himself with the General Assembly, with a view to a possible election to the United States Senate, might furnish an offset to the conservative influence of his ineligibility to succeed himself as Governor. This is a remote contingency, I con- ceive, and one that would not weigh heavily with men of the type of those Virginia has honored and will honor by election to the high office of Governor. The balance in DEBATES OF THE CONSTITUTIONAL COXVENTION OF VIRGINIA. 3095 favor of conservatism and legislation is retained in a measure, "but not in the sj^m- metrical manner of the original system, for it vests all the power of controlling legis- lation at one session in a full holdover Senate, not immediately responsive to the last expression of the people, and at the succeeding session places the responsibility of con- servatism in legislation upon the Governor, thus making him more identified with and responsible for legislation than he should be as the direct representative of the ex- ecutive branch of the government. I cannot recognize this proposed compromise as an improvement upon the original system, as I conceive it destroys the proper balance that should obtain between the executive and the legislative branches of the govern- ment. It is, however, a compromise, in which both sides gain something. Those who stood with us and won the fight for biennial elections and sessions, as against quad- rennial elections and sessions, retain biennial elections and sessions. Those who stood originally for quadrennial elections of Senate and House and for quadrennial sessions, and consequently for the election of all the Senate at one time, and who suc- ceeded in securing, in the plan finally adopted by the Convention, the election of the whole Senate biennially for terms of two years, retain the principal feature of their contention, which is that the whole membership of the Senate shall be elected at one election at the time a House of Delegates is elected, thus giving the people the oppor- tunitj" to make an entire change in the legislative bodies at one election. Those of us who have contended for the retention of the hold-over feature of the Senate as a force for conservatism in legislation, can feel that this object is preserved to an extent in this proposed plan, though in a more objectionable manner, from our point of view, I respectfully submit, and without the proper and symmetrical balance that obtains under the original system, as. I have attempted to explain. In view of the present temper and inclination of this body, I feel that this is the best and fairest solution that can be reached, and though I cannot get my judg- ment to endorse it fully as most wise, as an original proposition, still I am glad to say that I shall support it as the best thing to do under all the circumstances. Mr. Watson: Mr. President, having undertaken to speak for the gentleman from Appomattox this morning, in his absence, I would ask the attention of the Conven- tion for a moment. I suppose in his absence his motion to rescind will have to be taken up by this body. I want to have the opportunity, myself, of showing this Con- vention that there is some compromise that Tcan agree to on some subjects (applause), and, therefore, speaking for myself, I will say that I shall vote for it. , Mr. Keezell: Mr. President, my attitude in reference to this matter, I think, is pretty generally known, as I took some part in the discussion at the time when this present article was incorporated in the Constitution. There has been but one trouble that I have recognized in connection with the action at all, and that is the difficulty which will be experienced in large senatorial districts of getting suitable candidates to make a canvass of three or four counties, in order to serve onlj^ in a sixty-day session of the Senate. That has been the only difficulty I have had with reference to the action taken by the Convention at a former time. I think this compromise pro- posed now does away with that objection in that it gives the men who stand for elec- tion to the Senate a four-year term, and will probably tend to induce different and better men to make the canvas for the Senate, from what you would get with the sixty-daj^ term. I think a great many of the objections to the hold-over senator are done away with in this provision. It gives the people an opportunity every four years, if the Senate stands in the way of their wishes, to get rid of the entire body, and to put another body there, which it cannot do under the hold-over plan, and I, for one, am perfectly willing to accept this compromise as a fair solution of the whole difficulty. Mr. Wysor: Mr. President, I wish to say that I voted originally for this very codj promise now offered. The Journal will show it. (Laughter.) And I hope it will be 3096 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. adopted. If it turns out to be a good thing, and the people are pleased with it, I will claim the authorship of it. (Laughter.) The Presiding Officer: The resolution offered is really not strictly in order, but the Chair will put it, in the absence of objection. The Chair hears none. The question having been taken, the result was announced — ayes, 54; noes, 13. The resolution was adopted. Mr. R. Walton Moore: I move that when the Convention adjourns to-day to meet on the 22d day of May, 1902, it be to meet at 12 o'clock meridian on that day, instead of 10 o'clock. The motion was agreed to. On motion of Mr. Quarles, the Convention adjourned until Thursday, May 22, 1902, at 12 o'clock M. (Cheers and applause.) THURSDAY, May 22, 1902. The Convention met at 12 o'clock meridian. Prayer by Rev. George C. Cooper, of Richmond. FINAL REVISION AND ADJUSTMENT, The President: The regular order of business is the report of the Committee on Final Revision and Adjustment. Mr. William A. Anderson: Mr. President, I am instructed by the Committee upon Final Revision and the Schedule, to submit to the Convention their report, with the draft of the Constitution as revised by the committee. I will not read the whole of the report, because it cannot well be acted upon until it has been printed, but I ask permission to read the last paragraph of the report: In the draft of the instrument referred to this committee there is no declaration as to how the Constitution shall be adopted, or when it shall go into effect. The decision of the mode by which the Constitution shall be adopted necessarily controls, largely, the determination of the question as to when it should go into operation. This is a question which the committee considers not to be within its province to pass upon. It is one which the Convention must decide before an election ordinance, or other enactment necessary to carry out its provisions can be satisfactorily formu- lated. Your committee therefore respectfully recommend that the Convention shall immediately determine in what manner the Constitution shall be adopted — whether it shall take effect after its ratification by the vote of the people or shall be ordained by the Convention — so that your committee may prepare and submit such ordinance or other declaration as may be appropriate to give effect to the will of the Conven- tion upon this subject. I move, sir, that the report and the accompanying documents may lie upon the table, and that the report be printed for the use of the Convention. The report of the Committee on Final Revision is as follows: REPORT OF THE COMMITTEE UPON FINAL REVISION AND ADJUSTMENT OF THE VARIOUS PROVISIONS OF THE CONSTITUTION, AND UPON THE SCHEDULE. To the Honorable John Goode, President of the Convention: This committee has carefully considered the various articles of the Constitution, referred to it by the Convention, and the provisions to be embodied in the Schedule, and begs leave to submit herewith the draft of the Constitution as revised, and of the Schedule as prepared by it. DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. 3097 In discharging this branch of its duty your committee has observed the rule of making no changes in the articles as they were adopted by the Convention, except such as are necessary or proper to give greater clearness and conciseness to the expression of what is believed to be the true intent and meaning of the Convention. Some changes were necessary to reconcile actual or apparent inconsistencies, to cor- rect occasional incongruities, and, in a few instances, by the introduction of sub- stantive provisions, to supply palpable omissions, in order to give full effect to the evident purpose of the Convention. In several cases provisions, which were deemed unnecessary, either because already embodied, in terms, in some other clause of the Constitution, or because they were substantially embraced in the language used in other parts of the instrument, have been eliminated. The changes your committee has made relate generally to punctuation, diction, and the arrangement and transposition of sentences, paragraphs, and sections, so as to secure greater conciseness and perspicuity. In some instances, notably in the article in reference to "The Elective Fran- chise," and that relating to "Agriculture and Immigration," the text as it was adopted by the Convention has been largely recast by the committee. In those articles, as well as in other portions of the Constitution, sections and •sentences have been transposed, rearranged, or consolidated with others relating to the same subject, so as to connect corelated subjects, and to preserve a proper asso- ciation or subordination of provisions having a common object. But no substantial change in, or addition to, the instrument has been made, except when such amend- ments were clearly necessary to the efRcient operation of the articles as they came to us from the Convention. It would be a tedious and unsatisfactory task to attempt to point out in detail the various changes made. They can be best observed, understood, and appreciated by ^ a critical comparison of the original draft with this redraft of the instrument, article by article, and we respectfully request that such comparison be made by the members of the Convention. ^ Schedule. The Schedule is designed to avoid the possibility of an interregnum in any of the essential departments of government, pending the transition from the old to the new Constitution, and to so adjust the old order of things to the new that the new organic law and the departments of the government created by it, may replace the old, and be put into prompt and efficient operation with the least possible friction. To do this it is necessary to preserve substantially all existing rights, remedies, and rights of action, and to adjust the terms of ofRce, and the operation of the various governmental agencies, as they now exist, to those established by the new Constitution, so that the new plan of government may be inaugurated with as little inconvenience and disarrangement of public or private interests, as is possible under the circumstances. In order to accomplish these results, the Schedule has been framed to continue in office the several officers abolished by this Constitution until the new officers pro- vided for as their successors can be chosen and installed, and, as a rule, to provide for the extension rather than the' abridgment of the terms of the incumbents of those offices which are preserved, or have their counterparts in the new Constitution. It was considered that this rule could not be very well applied under existing conditions, in the case of the clerks of the county and circuit courts in the counties m which there are now separate clerks for these courts, without unduly discriminat- ing m favor of one or the other of the present incumbents of these clerkships. It IS therefore provided that the people of these thirty-seven counties shall at the gen- eral election to be held in November, 1903, determine which, if either of those officers shall be retained in their service, and that the clerk so chosen shall go into office on the first of February, 1904, contemporaneously with the inauguration of the court of which he is to be ex-officio clerk. It is impossible, in the nature of things, to reorganize the departments of gov- ernment upon new and progressive lines, inaugurate radical reforms in its frame- work, and in the organic law of a free people, without occasioning some friction, some inconveniences. This is particularly true under the complex conditions of our present State gov- ernment, with the large number of offices and posts of honor or profit created under it, or variant tenures, and filled by incumbents who are doubtless generallv desirous of retaining the positions they hold Your committee has labored earnestly to make a Schedule which would minim- ize these difficulties. I'Jo — Const. I^eb. 3098 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIEGINIA. Great achievements in the better government of peoples, as In the career of individuals, are rarely, if ever, accomplished without some great sacrifice; and we trust that the important benefits which will enure to the whole people of the Com- monwealth from the instalment of the excellent and progressive system of govern- ment provided for by the new Constitution may prove a satisfactory recom-pense even to the few who may sustain actual or fancied injuries from the change. The Constitution, as revised by the committee, with the accompanying Schedule, is respectfully submitted for the careful examination and consideration of the Con- vention. In the draft of the instrument referred to this committee, there is no declara- tion as to how the Constitution shall be adopted or when it shall take effect. The decision of the mode in which the Constitution shall be adopted necessarily largely controls the determination of the question as to when it shall go into effect. This is a question which the committee considers it is not its province to pass upon. It is a question which the Convention must decide before such election ordi- nance or other enactment as may be necessary to carry out its decision can be sat- isfactorily formulated. Your committee therefore respectfully recommend that the Convention shall im- mediately determine in what manner the Constitution shall be adopted — whether it shall take effect after its ratification by a vote of the people or shall be ordained by the Convent^'on — so that your committee may prepare and submit such ordinance or other declaration as may be appropriate to give effect to the will of the Conven- tion upon the subject. Respectfully submitted. Mr. William A. Anderson, chairman of the Committee on Pinal Revision and Adjustment, moved that the report made by the committee be printed. The motion was agreed to. Mr. Daniel: I am instructed by the Committee on Final Revision to offer the following resolution: Resolved by the Convention: That the Convention do proceed forthwith to consider the following question, viz.: Shall the Constitution framed by this body be submitted to the whole electorate as now constituted for ratification or rejection? If this question be decided in the negative, then this body shall consider the question : Shall the Constitution framed by this body be submitted to the electorate pro- vided for in said Constitution for ratification or rejection? If this question be decided in the negative, then the body shall consider the question : Shall the Constitution framed by this body be ordained by this Convention? 2. That until — o'clock the — day of May, debate shall be in order upon the three questions above stated, and they shall be open to amendment; that then debate shall close and the vote be taken upon each question in the order named, until an affirmative vote in favor of one or another of the propositions before the Convention. 3. That as soon as the decision of the Convention is reached, its action upon the subject shall be referred to the Committee upon Final Revision, &c, and Schedule, which shall thereupon report as soon as practicable a proper provision of the Con- stitution, or of Ordinance, to execute the will of the Convention as indicated by such decision. Mr. President, I beg leave to state that the time for the closing of the debate in this resolution is left blank in order that suggestions may be heard from mem- bers of this body, and a time fixed for closing the debate to suit their convenience. The complete work of the Revision Committee is, to some extent, retarded by not knowing what disposition the Convention intends to make of the Constitution. They have the Constitution before them, with such immaterial changes as may possibly be made in the final revision of its language, and the body is fully apprised of the nature of the work which is to be dealt with. It was thought that the Convention might consider at once and reach a conclusion as to what should be done with the Constitution, and provide for having the debate close within a reasonable time. It would be very agreeable to me to know the wishes of the Convention as to the time for closing the debate. We thought by next Tuesday every gentleman who desired DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF YIEGIXIA. 3099 to do so would probably have had an opportunity to express his views, and that we had better close up the matter promptly. It seems to me the logical order of procedure would be to determine first whether the Constitution should be proclaimed or submitted; because if it is determined in one way the language of the preamble would be different from what it would be if it was determined in the other way. Therefore it seems to me that to determine the preamble before 3'ou determine the question of proclamation or submission would be putting the cart before the horse. I think the report of the Committee on Revi- sion and the resolution of the gentleman from Campbell is correct, and I hope the resolution of the gentleman from Campbell will be adopted. Mr. Pettit: Mr. President, I agree entirely with the views of the chairman of the Committee on the Preamble and Bill of Rights, and the gentleman from Ports- mouth (Mr. Hatton). No matter which of the preambles shall be adopted by the Convention, it is essential that the Convention shall itself first determine v^hether the Constitution is to be proclaimed or voted upon by the people. It is impossible to complete the preamble until that question is settled, and that question can only be settled by the Convention I think, therefore, that it is perfectly proper to proceed with the consideration of the resolution offered by the gentleman from Campbell. The President: The question is on agreeing to the motion submitted by the gentleman from Brunswick TMr. Tumbull) to lay upon the table the resolution offered by the gentleman from Campbell. Mr. Turnbull: I make that motion because I think this is one of the most im- portant matters connected with the Constitution, and we should not act hastily in reference to it. ]\Ir. Daniel: The resolution is a very brief one, ]\Ir. President, and there should be no difficulty in any gentleman understanding it. It is simply to the effect that the Convention proceed forthwith to consider the question, first, of submitting the Constitution to the whole electorate; second, to the restricted electorate and then as to ordaining it, if the previous questions are decided in the negative. It then provides that debate shall be in order upon the three questions just stated, for a time to be fixed by the Convention; and then debate shall close, and a vote be taken upon each question in the order named until an affirmative vote upon one or the other of the propositions before the Convention is had; that as soon as the decision of the Conven- tion is reached, its action upon the subject shall be referred to the Committee upon Final Revision, &c., and Schedule, which shall thereupon report as soon as practicable a proper provision of the Constitution, to execute the will of the Convention as indi- cated b}' its decision. If it is in order to do so I would move that the 27th day of May be inserted. I will make that motion if the motion to lay on the table is withdrawn. :\Ir. Turnbull: I move that the resolution lie on the table until to-morrow morn- ing, and be printed. The ayes and noes were ordered, and being taken, the result was announced — ayes, 29; noes, 37. The motion was rejected. The President: The question recurs on the resolution offered by the gentle- man from Campbell (:\Ir. Daniel). There are blanks to be filled in the resolution. 3Ir. Daniel: I move to insert in the first blank 1:30 o'clock, and in the second the 29th of May. The President: The question recurs on agreeing to the resolution offered by the gentleman from Campbell. The resolution was agreed to. Mr. R. Walton ^loore: I move that, beginning to-morrow, the order be that the Convention meet at 10 o'clock, to take a recess at 2 o'clock, re-convene at 4 o'clock, and continue in session until 6 o'clock. The motion was agreed to. On motion of Mr. Barbour the Convention adjourned until to-morrow, Friday, May 23, 1902, at 10 o'clock A. M. 3100 DEBATES OF THE CONSTITUTIONAL CONVENTION" OF VIKGINIA. FRIDAY, May 23, 1902. The Convention met at 10 o'clock A. M. Prayer by Rev. P. B. Price, of Richmond. The President: The order of business this morning is the consideration of the resolution offered by the gentleman from Campbell (Mr. Daniel) fixing the method of adopting the Constitution. Mr. Daniel: This Convention, Mr. President, has framed, in my opinion, a most excellent Constitution. While articles and provisions in it, here and there, might meet the dissent of every member in this body — one or more of them — I believe it is the judgment of the intelligent people of the Commonwealth that this body has labor- iously and faithfully performed its task, and that it is their earnest and anxious desire that their work should be brought to fruition and fully accomplished by the new Constitution becoming our fundamental law. Such seems to me, Mr. President, to be the predominant judgment of the people of the State, but I speak, perhaps, largely under the influence of the sentiment in the town of Lynchburg, where I was born and reared, and in which I practiced my profession, and of the county of Campbell in which I lived, and where I have had familiar opportunities to become acquainted with the opinions of its people. At the last court day of Campbell court there was a large crowd in attendance, and I found the pervasive sentiment was a desire that this Constitution should be adopted. Before I attended that court I had heard by letter, and had in conversation also heard, expressions of sentiment from many of my con- stituents. But I was surprised to find in my attendance upon court how general and how deep seated was the desire for the consummation of the work of this Conven- tion. I should say also, in perfect candor, that the larger predominant sentiment was in favor of its proclamation. I did not myself feel, Mr. President, that in justice to my own record, in justice to the record of the party to which I belonged, as I understood it, or in justice to the people of the State, of whom I have been for many years a representative, that I could personally agree with that sentiment. I, therefore, made to the people a plain and as fair a statement as I am capable of making, recited the history of the Con- stitution in its formation in this Convention, told them of the articles therein from which I had dissented, applauded those in which I agreed, and further informed them that in my judgment it was my duty to vote to submit this Constitution to the entire electoral body of this Commonwealth. While the largely predominant sentiment of my audience was in favor of its proclamation, they did me the honor to pass a reso- lution in which they gave me plenary powers to vote as I might deem right, and further did to me the greatest honor which I feel I have ever received in my life from my constituents — expressed their entire confidence in me. Grateful as I am to that noble people of Campbell for the man^*' political honors which they have conferred upon me, I was more deeply touched and feel more grateful to them for this than for any other, although it leaves me in the attitude here of voting, as I shall candidly state, against the majority sentiment of those from whom I received my commission as a representative in this body. Recognizing the fact, Mr. President, that this is a representative government, recognizing, too, that I am the servant of the people of Campbell, and they my mas- ter; recognizing, further, that I am but the agent and they the principal in this trans- action, I related to them the circumstances which made me feel that as a square, honorable man, I should cast my vote in this manner. I did not beg or ask them in my address not to instruct me, though in some of the papers it has been so stated. I simply gave them a history of the matter, and of party and personal expressions, and asked them to consider them, and do as they thought right. I am both proud and grateful for the fact that they have left me free to do as I deem right, without an- tagonism to them. DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF YIEGIXIA. 3101 I need hardly recite the circumstances, Mr. President, which brought me to this conclusion, so familiar are they to those who have followed the history of this trans- action. And I might, perhaps, say nothing upon the subject but for the fact that my own position is somewhat peculiar and exceptional. In the year 1890 the General Assembly of the State passed a resolution by which it was provided that the ques- tion should be submitted to the people of the Commonwealth, "Shall the Constitu- tion be revised and amended?" Before that question was put to the people for them to pass upon, there was a Democratic conventional assembly in the city of Xorfolk. The people of Virginia were divided upon the queston. The Convention in some degree was divided also. I had the honor in that Convention to occupy a place upon the platform committee. I did not draw that platform. Its language is not my own, but I made it mj own by voting for its adoption. Before that convention met, on my opinion being asked by constituents in various parts of the State, I wrote a letter which was widely circulated, in which I stated that I was in favor of calling the Constitutional Convention, and was also in favor of submitting its work to the people in the ordi- nary way for ratification or rejection. At the Convention I expressed myself to the like effect, and after the convention in various speeches I made in different parts of the Commonwealth, I so interpreted the action of the convention, and so announced my own conclusion. The work having been done according to the plan of that con- vention and of the General Assembly, I feel that it is not for me to unpledge myself, nor for any one else to unpledge me, and that I am bound in honor to deliver the vote in the manner that I prefigured it. I have no question of honor to raise with any gentleman who differs from me. I recognize the fact that each of us here is in the presence of his peers, I make no claim for myself. On the contrary, I disclaim that I esteem myself to be in the least degree more honorable, more honest, or more faithful, than any of the honorable gentlemen who are my associates upon the floor. It is a matter of conscience, and a matter of interpretation for each gentleman according to the dictates of his own intelligence and heart, I thus interpret my own duty, and have submitted my inter- pretation to my constituents, and I liaA'e their free accord to my utterance, and my action here in accord with it. I collected, Mr. President, the opinion which I thus express not only from my action, but from the action of the political party of which I am a member. At the convention in Norfolk they expressed themselves in this language: It is the sense of this Convention that in framing a new Constitution no effort should be made to disfranchise any citizen of Virginia who had a right to vote prior to 1861. nor the descendent of any such person. And that when such Constitution shall have been framed it shall be submitted to a vote of the people for ratification or rejection; and the Democratic party pledges that the expenses incident to a con- stitutional convention shall be kept down to the lowest possible figure. Comment has been made upon the fact that in the phrase that expresses the sense of this convention a mere opinion is put forth, and that in the latter phrase a pledge is made. I admit that critically and technically the comment is correct. It was but an opinion which the Xorfolk convention expressed; but- this, Mr. President, is the usual manner in which political bodies communicate their views to the public. It was a declaration of their conviction that the Constitution when prepared should be submitted to the people. It little matters in what phraseology that conviction was couched. It was received by the people of this Commonwealth — here, there, and everywhere — as a declaration by the Democratic party, which had paramount direc- tion and influence in the matter, that this Constitution should be submitted to the people. Both in the expression of what should be submitted, and in the expression of whom it should be submitted to, I think there is fair and necessary implication that the whole Constitution should be submitted to the whole people. 3102 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIEGINIA. What was it that the convention declared should be submitted? The Constitu- tion to be framed by this body, and not a part of the Constitution. To whom was it to be submitted? To the people, with no expression of any part or fragment of the people. Whatever may have been in the minds of the gentlemen who constituted that convention; whatever may have been said in any previous organization of a portion of those members; whatever may have been the uppermost desire and intent and pur- pose of those v/ho constituted it, this is the language which they uttered to the people of Virginia, and this is the interpretation which the people of Virginia, includ- ing myself, placed upon it. It has been said, Mr. President, that the people have changed their minds. In large degree I do not doubt that this is true. In my own section of country, I know, if I may know anything which I collect by communing with the people in their homes, upon the street, and in the public gatherings, I do know that the opinion has changed. I believe that change of opinion to have been widespread. What I say and what I do know of my own county I hear from other gentlemen here from other coun- ties like accounts, which are substantially verified as my own; and yet, Mr. Presi- dent, although the people have changed, as myself a party to this matter, as one who communicated their interpretation of this transaction to the whole people, I do not feel that I am permitted in my own conscience to change the conduct which I pre- figured as that which would be the conduct of my party and myself. I admit that this is a serious and a delicate question for any gentleman to determine. I admit that, in endeavoring to clearly analyze my own duty and to deduce there- from what was the highest standard of public conduct and personal honor that should guide me, I have not been without my perturbations of spirit in the face of the senti- ment of so many of my constituents; and yet, sir, this is my conclusion as to what is just and right; for whatever may be the appearances of public opinion, which are often misleading; whatever may be the pronunciation of public opinion in this meet- ing or in that, there is nothing more uncertain in human affairs than the verdict of a jury or the verdict of the people at the polls. I have been before elections in which I felt so confident of the result that I would have given nothing to guarantee the morrow's results, and I have seen the enunciation in the paper the next morning the other way. I have been in those contests in which I contemplated with apprehen- sion the result, and have seen the people carry the election as I had hoped with over- whelming majorities. I cannot measure my own conscience and my own judgment as to my opinions by the sentiment of the people, commanding as it is of the highest authority in a government which recognizes that all power adheres in and is derived from them. I shall not, Mr. President, pursue this matter in its intricate details. I believe the opinion of this body has been made up. I should have not felt it necessary to declare my own but for the peculiar attitude in which I find myself. As to the power of this Convention to proclaim the Constitution, in my own mind there is no doubt, and in speaking upon this subject I feel that it is not unbecoming that I should state my own opinion upon the whole of it. The Constitution of the United States, under which we live, and under which this country has gone forward and progressed as the greatest republic of all time, is a Constitution which never received the individual vote at the polls of a single one of the enormous population over which it is the fundamental law. Neither the Articles of Confederation nor the perfected Constitution of the government of the United States after the War of the Revolution, nor any amendment to that instru- ment of the fifteen which have been adopted ever received the sanction of a single suffragant directly given at the polls. This whole instrument was ordained, even as it was prepared, by conventional authority. Of the constitutions of the States of this Union, thirteen of which were adopted about the time of the Revolutionary War, nearly all of them were similarly ordained. DEBATES OF THE CONSTITUTIOISrAL CONVENTION OF VIRGINIA. 310rj It is true that Thomas Jefferson, one of the most profound constitutional lawyers who ever lived upon this earth; a man whom I have always regretted was not a member of the convention which framed the Federal Constitution; a man whom I have always regretted was not a member of the Supreme Court of the United States in the formative days of this Republic, took the ground that our first Constitution of Vir- ginia was like a mere act of the Legislature, because of the fact that it was pro- claimed and ordained without a vote of the people; but he wa^^ not sustained in that judgment. The General Court of Virginia overruled it in a case reported in 1st Va. Cases 20 — a pioneer case in v'hich the doctrine of constitutional authority to ordain a constitution is set forth. I have read somewhere tha^ George Wythe, the chancellor of renown, the tutor of Jefferson, rendered the earliest or one of the earliest decisions to the like effect. Thus early, Mr. President, in the history of this republic, both in State and in nation, the doctrine was laid down and sustained that conventional authority could ordain and proclaim a Constitution. And in Virginia, v^hatever may be the tendency of opinion in other States; whatever may be the peculiar decision of a court in any particular State, where all the facts do not run in parallel lines with our own, tnis . must be esteemed, in my judgment, to be American constitutional law. In Arkansas, in 1836, in Florida, in 1839, constitutions were proclaimed. In Mississippi, in Louis- iana, and in South Carolina we have recent illustrations of a similar authority. In our own particular constitutional history, Mr. President, we have this idea constantly illustrated and it is set forth, in my opinion, in the Constitution under which we live. The Constitutional Convention of 1830 in effect proclaimed and or- dained its suffrage law by extending the electorate to which the Constitution was submitted. What was this but ordainment? In the present Constitution of the State we have two methods for the revision or the amendment of the existing Constitution. One is by a process throno-^" which the General Assembly submits to the people a particular amendment which it has itself matured. After another session of the General Assembly that amendment goes before the body politic at the polls, and they pass upon ii. There is also another provision for the amendment of the Con- stitution, which provides that the General Assembly shall submit to the people, by a particular process therein described, the question, "Shall a convention be called to revise and amend the Constitution." That term "amend" is, to my mind, conclusive in its meaning. This Convention has revised the Constitution. "To "amend" it by the new one is to ordain it. In Federal legislation since the foundations of the government a somewhat analogous question has been presented. The House of Representatives originates tax bills. The Senate has authority to amend them. Time and again at recurring sessions of Congress, the question is raised when the Senate has framed an- entire document totally dissimilar from that which it is seeking to amend, and seeks to substitute it, that this is not an amendment in the sense of constitutional law, but undertaking to revolutionize, upset and substitute the whole matter. But in- variably Congress has decided that the term "amendment" is a broad and comprehensive term; that if you can amend one word you can amend all words, that if you can amend one line you can amend all lines, that if you can change and alter one provi- sion you can change and alter all provisions. . In this broad general parliamentary sense was that term used, in my opinion, in this Constitution. The amendment to the Constitution applies to all things in the Constitution, and the power to amend is the power to control and to adopt and to make the amendment of force and effect in its enunciation. The Kentucky case with which this body has been made familiar by frequent citation in my opinion sustains the view I have presented, and I might readily multiply authorities to the like effect if I deemed it necessary to do so. I shall not, Mr. President, for my part, prolong the discussion. I notice that gentlemen frequently deprecate the speaking so much by other people while they do 3104 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. not fail to exercise that privilege themselves. I am well aware that the people are desirous that the Convention should conclude its labors, and I apologize for breaking a good example by so long detaining the Convention from that conclusion. But before I take my seat, sir, may I be permitted to congratulate my colleagues upon the noble work which they have accomplished. While it is due to candor that I should say there are articles in this Constitution that I would have voted and spoken against had I not been, unhappily to myself, detained from full attendance upon this Convention by sickness, the Constitution as a whole is a work, in my opinion, worthy of the time- honored State for which it has been framed, and confers great credit upon the hon- orable gentlemen who have so patiently and ably worked to accomplish it. (Great applause.) Mr. Harrison: Mr. President, I had not intended to submit the few remarks I wish to make upon this question at this time, as I only reached the Convention hall this morning. But as there seems to be some indisposition upon the part of the other gentlemen who will be heard in this matter to speak at the present time, and as what I have to say will be very brief, I will not delay. I heartily agree with the gentleman from Campbell (Mr. Daniel) that this Con- vention has done a magnificent piece of work. There are some features of the pro- posed Constitution which do not meet with my hearty approval, but there are so many advantageous provisions in it that the advantage in favor of the Constitution which do not meet with my hearty approval but there are so many advantageous provisions in it that the advantage in favor of the Constitution, in my judgment, is simply overwhelming. I believe we have a Constitution under which the people of this State can live happily and under which the State will prosper. I do not, how- ever, agree v/ith the gentleman from Campbell as to the powers of this Convention. It is a matter of serious import, because if this Constitution is proclaimed without the legal right so to do, the whole work may go for naught. In case of proclama- tion the work of this body cannot be made the work of the people of Virginia without a contest before some tribunal, which will pass upon the question of whether or not we have the power, which we assume to exercise here. I am as firmly convinced as I am of any legal proposition, that, if we assume to transgress the authority that the people have put into our keeping, that the courts of this land will declare what we attempt to do absolutely nugatory. Now I ask attention first, to the proposition that no constitution has the power to place any limitation upon the power of the people to change or alter the Constitution when they so please. The very headline of the Bill of Rights in the proposed Constitution, in the old Constitution, in the Bill of Rights as drafted by George Mason originally, in the Bill of Rights which the blood of heroic ancestors has made the fundamental law of this State sets out that there are certain inherent, inalienable, and indefeasible rights, which no compact can take away from the people. Such is the language: "That all men are by nature equally free and independent, and have certain inherent rights when they enter into a state of society, of which they cannot, by any compact, deprive or divest of their pos- terity." And one of these inherent, and inalienable, and indefeasible rights is that which is contained in the provision: That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community; of all the various modes and forms of government, that is best which is capable of producing the greatest degree of happiness and is most effectually secured against the danger of maladministration; and, Vv^henever any government shall be found inadequate or contrary to these pur- poses, a majority of the community hath an indubitable, inalienable, and inde- feasible right to reform, alter and abolish it, in such a manner as shall be judged most conducive to the public weal. It is an inalienable right that cannot be alienated by any representative body DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIKGINIA. 3105 of the people. It is an inalienable and indefeasible right of which the people them- selves, cannot deprive their posterity. If the people have not the power to alter and amend their Constitution as their interests may demand, then the sceptre has de- parted from Jacob, and the government under which we live is not a government of the people, by the people, and for the people. Sovereignty resides elsewhere than in the people. It is an inalienable and indefeasible right which the people of one day and generation cannot impair or deny to their posterity. It is the birthright of liberty, of which each succeeding generation of Virginians is trustee for their posterity. Con- stitutions may prescribe the methods of amendment, and this method may be resorted to if the people will, but no constitution can deny or impair the right to alter or amend as they will. Constitutions can confer no power upon delegates to future con- stitutional conventions, nor deny to the people the right to confer such powers as they think expedient. This v^^ould be to confer powers to frame a government not founded on the consent of the governed. If such were possible, then the delegates to a constitutional convention would not be the agents of the people who elected them, but of the existing Constitution that confers the power upon them. I, therefore, do not agree v/ith the gentleman from Campbell, that Article XII, Section 2, confers or can confer any power on this Convention. Such an attempt is wholly nugatory and void, if any such attempt has been made. In the very section in which this Constitution is said to confer sovereign power upon the representatives to the Constitutional Convention is a clause which says that they shall pass no law impairing the right of suffrage. Are you going to look for the powers of the delegates to a constitutional convention which says that they shall have full powers and claim full powers from that provision in the Constitution, and yet deny that the limitation which that Constitution puts upon those powers is of any effect. Here is a clause, Section 2, Article XII., which says a constitutional convention shall be called to amend and revise the Constitution, and in the same clause says that they shall not have the power to alter certain provisions in regard to suffrage. Here is, if you please, a grant of authority, and here is a limitation of that authority. How can you say that a constitutional convention can have the power to give authority which the people cannot take from them, and yet say that the limita- tion which that Constitution itself, puts upon their powers is void and of no effect? I venture to say there is not a lawyer in this body who will say that that provision in our Constitution which says: Provided, that no amendment or revision shall be made which shall deny or in any way impair the right of suffrage, or any civil or political right as conferred by this Constitution, except for causes which apply to all persons and classes without distinction is valid and binding upon us. And yet is not that a restriction on the powers of the delegates to this Conven- tion? And if it is a restriction how can you say that the Constitution can give powers, and yet ignore the limitations which have been placed upon them by the same Consti- tution ? Gentlemen, either that Constitution has full powers or it has no powers at all. If a Constitution can prescribe the powers of the delegates to future constitutional conventions, then you must take the restrictions it imposes. I claim that it cannot confer powers nor impose restrictions, and that we cannot look at the provisions of the existing Constitution to see what powers we have here; but must look elsewhere. Now, where do we look? Where but to the act under which we were elected? That is our power of attorney. I desire, gentlemen, to call attention, before I go into my own views, upon this subject, to what some able writers and some able judges have said. I suppose that no man stands higher before the courts in this country than Judge Cooley. It is before the courts that we have got to meet this issue, and not by resolutions in this body. Judge Cooley says: 3106 DEBATES OP THE CONSTITUTIONAL CONVENTION OF VIRGINIA. In accordance with universal practice, and from the necessity of the case, amend- ments to an existing constitution or entire revisions of it, must be prepared and ma- tured by some body of representatives chosen for the purpose. It is obviously im- possible for the whole people to meet, prepare, and discuss the proposed alterations, and there seems to be no feasible mode by which an expression of their will can be obtained except by asking it upon the single point of assent or disapproval. But no body of representatives, unless specially clothed with power for that purpose by the people when choosing them, can rightfully take definite action upon amendments or revisions; they must submit the result of their deliberations to the people — who alone are competent to exercise the powers of sovereignty in framing the funda- mental law — for ratification or rejection. The Constitutional Convention is the repre- sentative of sovereignty only in a very qualified sense, and for the specific purpose, and with the restricted authority to put in proper form the questions of amendment upon which the people are to pass; but the changes in the fundamental law of the State must be enacted by the people themselves. And Mr. Cooley pronounces the highest encomiums upon Mr. Jameson's work. He says that but little has been left to be said, and he endorses emphatically all that Mr. Jameson has said. I have not Mr. Jameson's work here, but it is emphatic that the right to amend the Constitution, unless specific authority is conferred, rests with the people alone. Now, sir, the new edition of the American and English Encyclopedia of Law, in its text, says: A constitutional convention untrammelled by conditions imposed by the authority calling the convention has power to enact a new Constitution to go into effect with- . out being submitted to the people for ratification. But where the act which a con- vention derives its powers provides for the submission of the convention's work to the people in a specific manner, the convention has no power to provide for its sub- mission in a different manner, and of course where such act, or the Constitution itself, requires submission to the people, it must be so submitted, and only becomes operative upon the approval of the electors. Mr. President, there have been decisions in this matter, and if I am right in my contention that one constitution has not the power to confer power upon the dele- gates to a subsequent constitutional convention, then this case that I hold in my hand is on all fours with the situation of affairs that confronts us. It is the case of Wells vs. Bain, 75 Pa. State 39. In that case there was a preliminary act of June 2, 1871, to authorize a popular vote upon the question of call- ing a convention to amend the Constitution — using almost the identical words we have here: Section 1. That the question of calling a Convention to amend the Constitution of this Commonwealth be submitted to a vote of the people at the general election to be held on the second Tuesday of October next, the said question to be voted upon in the manner following — to-wit: And all votes cast as aforesaid shall be received, counted and returned by the proper election officers and return judges as votes for Governor are received, counted and returned under existing law. In other words, that the people of this State were to vote upon the question whether there should be a convention to amend the Constitution of the State of Pennsylvania. A subsequent act, dated April 11, 1872, was passed, to provide "for calling a con- vention to amend the Constitution." That act provided that the Constitution should be submitted to the people in a particular method. The Convention submitted its work to popular vote, but not in the prescribed method. Its right to do so was contested, and the Constitution was de- clared void. The court in that case is emphatic, and I will ask the pardon of the gentlemen of this Convention while I read, at some little length, from this opinion. It is an opinion DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF YIEGIXIA. 3107 -delivered by one of the ablest judges this country has ever produced, Chief Justice Agnew, and it is so admirably and forcibly expressed that I use the language of the Judge in preference to my own. Since the Declaration of Independence in 1776. it has been an axiom of the American people that all good government is founded in the consent of the people. This is recognized in the second section of the Declaration of Rights of the Consti- tution of Pennsylvania, which affirms that the people "have at all times an inalien- able and indefeasible right to alter, reform, or abolish their governments in such manner as they may think proper." A self-evident corollary is, that an existing law- ful government of the people cannot be altered or abolished unless by the consent of the same people, and this consent must be legally gathered or obtained. The people here meant, are the w^hole — those who constitute the entire State, male and female citizens, infants and adults. A mere majoritj^ of those persons who are qualified as electors are not the people, though when authorized to do so, they may represent the vvhole people. In other words, this is a constitutional provision for the benefit of all the people of the State, young and old, male and female, and the people who are authorized to speak for them are the lawful and qualified electors of the State. The Court goes on to say: The words 'in such manner as they may think proper,' in the Decla.ration of Rights, embrace but three known recognized modes by which the whole people, the State, can give their consent to an alteration of an existing lawful form of govern- ment — viz.: 1. The mode provided in the existing Constitution; 2. A law. as the instrumental process of raising the body for revision and con- veying to it the powers of the people. 3. A revolution. The first two are peaceful means through which the -consent of the people to alteration is obtained, and by which the existing government consents to be dis- placed without revolution. The governm.ent gives its consent, either by pursuing the mode provided in the Constitution, or by passing a law to call a convention. If consent be not so given by the existing government, the remedy of the people is in the third mode — revolution. When a law becomes the instrumental process of amendment, it is not because the Legislature possesses any inherent power to change the existing Constitution through a convention, but because it is the only means through which an authorized consent of the whole people, the entire State, can be lawfully obtained in a state of peace. Irregular action, whereby a certain number of people assume to act for the whole is evidently revolutionary. The people, that entire body called the State, can be bound, as a whole, only by an act of authority proceeding from themselves. In a state of peaceful government they have conferred this authoritv to speak for the whole only at an election authorized by law. It is only when an election K authorized by law, the electors to represent the State or whole pponle are bound to attend, and if they do not, can be bound by the expression of the^will of those who do attend. The electors v/ho can pronounce the voice of the people are those alone who possess the qualifications sanctioned by the people in order to represent theni otherwise they speak for themselves only and do not represent the people If the Legislature, possessing these powers of government, be unwilling to pass Vj'Zlli f f"'^ delegate to a convention all the powers fands tiev r.'f.T t''""'"' ^^'^ '^^1^ delegates, the remedy is still in their own ^^^""^ ''^''^ representatives at will. If their representatives are still unfaithful or the government becomes tyrannical, the right of revolution yet re- mams. This case was not called up by a convention undertaking to proclaim a constitu- tion. They did not dare to do it. But they submitted the constitution to a vote in a way that was not authorized by the Legislature of the State, and the Supreme Court said that even if the people had voted to call a convention to amend the constitution the act controlled the powers of the delegates to that convention, and they were con- cluded by it. Why, sir, how can it be said that if the Legislature has disobeved the mandate of the people, and has not called the convention in accordance with the con- 3108 DEBATES OF THE CONSTITUTIONAL CONVENTION" OF VIRGINIA. ditions under which the people commanded them to call it, that thereby the delegates of the Constitutional Convention gain an authority which the people, in electing them, did. not give to them. Mr. Robertson: I did not quite understand whether that act was passed after the calling of the convention. Mr. Harrison: Yes, sir, the first act was: Shall there be a Convention to amend the Constitution— just as it was in this State. You will find here later on, when I come to the meaning of the word "amend" that this case passed directly on that question, and held that a vote calling the Convention to amend the Constitution did not confer upon that Constitutional Convention the right to proclaim. Mr. Thom: Do I understand you to say that, at the time the Convention was called there was no power in the previous Constitution under which the Convention was assuming to act; but that they were assuming to act under a call of the Legis- lature independently of any constitutional authority? Mr. Harrison: That is true; but I have endeavored to show that the provision in our Constitution is contrary to the bill of rights, which says that it is an inalien- able right of the people to call a convention with such powers as they please to impose upon their delegates. Mr. Meredith: You have taken pains to prove as far as you can, that we can- not be bound by a constitutional provision. - Mr. Harrison: Yes, sir. Mr. Meredith: What I want to ask is this: Are you willing to admit that the language is broad enough to bind us, if we could be bound? Mr. Harrison: Oh, no. I am coming to that presently. I am going to show, by the history of the State, that such has not been the interpretation put upon that language. Mr. Thom: I do not want my friend to understand that my question was, in any way, intended as an argument against his position. I will probably reach the same conclusion that my friend does, but by an entirely different process. Mr. Harrison: I will ask you this question: If the Constitution had the power to confer upon us powers in controvention of the act of the Legislature under which we are elected, why is not that provision as to suffrage as binding upon us as the other provisions? Mr. Thom: I have very clear and distinct views upon that subject which I will undertake, in the progress of this debate, to mention, unless my friend wants me to answer now, for the purposes of his argument. Mr. Meredith: I understood the gentleman to say that he would, in the course of his argument, show that the language has been construed contrary to the giving of that power. , . ^ Mr. Harrison: Yes. Mr. Meredith: That constitutional language of that kind has been definitely con- strued otherwise. Mr. Harrison: I am going to show that the words "to amend and revise" do not, under the history of the Constitutions of this State, include the power to pro- claim. Mr. Meredith: Not even where the language is constitutional? Mr. Harrison: I do not see how words get a different meaning in the Consti- tution from what they have in any legislative act. I do not think it has ever been called into question, to my knowledge. The opinion concludes as to constitutional conventions: The convention is not a co-ordinate branch of the government. It exercises no governmental power, but is a body raised by law, in aid of the popular desire to dis- cuss and propose amendments, which have no governing force so long as they remain propositions. While it acts within the scope of its delegated powers, it is not amen- DEBATES OF THE CON'STITUTIONAL COXVEXTION" OF VIRGINIA. 3109 able for its acts, but when it assumes to legislative, to repeal and displace existing institutions before they are displaced by the adoption of its proposition, it acts with- out authority, and the citizens injured thereby are entitled, under the declaration of rights, to an open course and to redress at your hands. These, gentlemen, are the words of a great lawyer considering almost the iden- tical questions that we have submitted before us novv^. What a court has once said, may not a court say again? I beg of you, gentlemen, to consider this matter. We are preparing here for a fight before the courts, and you have to look at the authori- ties that influence courts and will have a controlling influence on the courts, and not at what we, ourselves, would like to resolve. I follow now, Mr. President, the gentleman from Campbell into the history of the constitutional conventions of this State. The case he has referred to as being de- cided by Judge Wythe I have not by me, but the General Court in Kamper vs. Hawk- ins passes upon the validity of the Constitution of 1776. Some of the ablest judges who ever wore the ermine in Virginia delivered opinions in this. I ask you to allow me to read some extracts from that opinion. Mind you, gentlemen, this is a case that went to this court to test the question whether or not the Constitution of 1776 was a binding force upon the people, because it had not been submitted to their vote. This was the first Constitution that the people of the State of Virginia ever enacted. It was enacted amidst the throes and perils of war and revolution. Seven- teen years after that Constitution had been in operation a case was carried before the court antagonizing its validity. What do these judges say? Judge Nelson says: It is confessedly the consent of the people which gives validity to a Constitu- tion. May not they, then, by a subsequent acquiescence and assent, give a Constitu- tion, under which they have acted for seventeen years, as much validity, at least, so long as they acquiesce in it, as if it had been previously expressly authorized? The people have received this as a Constitution. The magistrates and officers, down to a constable (for even the mode of his appointment is directed), have been appointed under it. The people have felt its operation and acquiesced. Therefore it is valid. Judge Roane says: This Constitution is sanctioned by the consent and acquiescence of the people for seventeen years. Judge Henry says: Accordingly a plan of government was prescribed and accepted by the people which has been uniformly acquiesced in from that day to this time. Judge Tyler said: I know it has been the opinion of some critical and speculative gentlemen of considerable merit and ability, too, that our form of government was not authorized by the people, inasmuch as no instructions were given by the people to the Con- vention at the time the Constitution was established. To investigate this subject rightly we need to go back to that awful period of our country, when we were de- clared out of the protection of the then mother country, and take a retrospective view of our situation and behold the bands of civil government cut asunder and de- stroyed — no social compact, no system of protection, and common defence against an invading tyrant — in such a state of nature, without friends, allies, or resources — in such a case what was to be done? Those eminent characters to whom so much gratitude is and forever will be due, whose names are enrolled in the annals of America, recommended a convention of delegates to be chosen for that purpose; who were to meet together for the express design of completely protecting and defending the rights, both civil and religious, of our common country. The delegates were so elected and convened. What power 3110 DEBATES OF THE CONSTITUTIOJ^AL CONVENTION" OF VIEGIAtja. had the people, therefore, that was not confided to their representatives. All their rights, all their power, all their happiness, all their hopes, and prospects of success were most indubitably entrusted to their care. They were not betrayed. The people did not say to their representatives that so far ye shall go and no further. Happy indeed for this country, that no such restraint was laid upon them. In order to pro- tect and defend the com^mon cause then a system of social duties was formed. With- out this what obedience could have been expected, how could a regular defence have been made? A great variety of departments were established and those who were to execute them had been made responsible to some regular power, and all this was: Has not this policy been sufficiently ratified by time and action? And if it w;ere possible to doubt under their circumstances, has it not been sealed with the blood of this wide-extended empire? And shall its validity be now questioned? For what purpose? To revert back to our former insignificance? It cannot be. Judge Tucker, the last one to deliver his opinion in this, the most celebrated case in the State of Virginia, bases his opinion upon the ground that, necessarily, at that time, it was impossible to confer a,ny limited power upon the delegates to- such a Convention. Our civil government had been overturned. Could they stand there and say, when they were in a state of war, that they had no further powers? He says it was a matter incident to the overturning of the former government that they should have the power to establish a new one. This, like all of Judge Tucker's opinions, is most clearly and forcibly expressed. He says: It will be remembered by all of those who are conversant with the history of the rise and progress of the late glorious revolution, that the measures which led to the final consummation of that important event, although they originated in most instances with the legal and constitutional assemblies of the different colonies, made but a small progress in that channel, particularly in this State. The dissolu- tion of the constitutional assemblies, by the Governors appointed by the Crown, obliged the people to resort to other methods of deliberating for the common good. Hence the first introduction of conventions: Bodies neither authorized by law, nor known to the then constitutional government; bodies on the contrary, which the constitutional officers of the then existing governments, considered as illegal and treated as such. Nevertheless they met, deliberated, and resolved for the common good. They were the people, assembled by their deputies; not a legal or constitu- tional assembly, or part of the' government as then organized. Hence they were not nor could be deemed the ordinary legislature, that body being composed of the Gov- ernor, Council, and Burgesses, who sat in several distinct chambers and characters; while the other was composed of a single body, having neither character of governor, council- or legitimate representative among them. They were in effect the people themselves, assembled by their delearates, to whom the care of the Commonv/ealth was especially, as well as unboundedly, confided. The power of convening the legal assemblies, or the ordinary constitutional legislatures, resided solely in the executive. They could neither be chosen without Vv^rits issued by its authority, or assemble when chosen, but under the same authority. The Convention then was not the ordinary legislature of Virginia. It was a body of the people impelled to assem.ble from a sense of common danger, consult- ing for the common good, and acting in all things for the common safety. It could not be the legitimate legislature under the then established government, since that body could only be chosen under the commission and assembled under the authority of the crown of Great Britain. Although the exercise of the authority of the exocutive government und'^r the crown of Great Britain ceased altogether with the dissolution of that assembly in June, 1775, yet a constitutional dependence on the British government was never de- nied, until the succeeding May. or dissolved until the moment of adopting the present Constitution or form of government, an event which took effect by the unanimous voice of the Convention, elected after the final dissolution of the General Assembly, as above mentioned, and assembled at Williamsburg, on the 29th of June, 1776, after six weeks deliberation thereon, and eight days before the Declaration of Independence by the Congress of the United States. This was not then the act of the ordinary legislature that dissolved the bonds of union between us. It was the voice of the people themselves, proclaiming to the world their resolution to be free; to be gov- erned only by their own laws, to institute such a government as, in their own opin- ion, was most likely to produce peace, happiness, and safety to the individual, as well as to the community. It seems to me an observation of great importance, that DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OF VIEGIXIA. 3111 the Declaration of Independence by this State first made m that instrument which establishes our Constitution. The Declaration .of Independence took eftect, and the convention proceeded no farther; the government, as formerly, exercised by tne crown of Great Britain, being thereby totallv dissolved, there would never_ have been an ordinarv legislature or anv other organized body or authority m \irginia. Everv man would have been utterly absolved from every social tie. and remitted to state of perfect nature. But a power to demolish the existing fabric of govern- ment, which no one will, I presume, at this day deny to that convention without authority to erect a new one, could never be presumed. A new organization of the fabric, and a new arrangement of the powers of government, instantly take place to prevent those evils whVh the absence of government will infallibly produce in any case; but more especially under circumstances so awful and prospects so threatening as those which surrounded the people of America at that alarming period. It would therefore have been an absurdity in the extreme, in the people of A^irginia. to author- ize the Convention to absolve them from the bonds of one government, without the power to unite them under any other, at a time when the utmost exertions of government were reouired to preserve both their liberties and their lives; but since they are both in form and effect only different clauses of the same act and necessary consequences of each other, to question the validity of the one is to deny the effect of the other. The Declaration of Independence and the Constitution, as to the acts of the people, must therefore stand or fall together. This, gentlemen, is the opinion of this high court giving the reasons why the Constitution of 1776 was valid, without submission, and the opinion is based upon the ground that the condition- of the State was revolutionary, and that the Constitu- tion had received the consent and acquiescence of the people for seventeen years without being called in question. What was the fact about the Constitution of 1S29, which was the next Constitution enacted in this State? So far. gentlemen, from drawing any authority from that Convention to pro- claim the Constitution, it seems to me that the voice of the people and the minds of the magnificent representatives of the State, then assembled in Constitutional Convention, forbids us supposing for the moment that they imagined that they had the right to proclaim a Constitution or any part thereof. In 1829 almost the identical questions found in our present Constitution were submitted to the people — shall there be a Convention called to amend the Constitution? The people voted aye. The Constitutional Convention, assembled under that call, completed their work, and did they proclaim the Constitution? Xo. They referred their Constitution to the General Assembly, with the request that they should pass a law and submit it to the people who were authorized to vote under its provisions. In accordance with that request, and in obedience to the statute of the General Assembly of Virginia, the Constitution was submitted to the people who were authorized to vote under the new Constitution. But to amend gives au- thority to proclaim. Why was it deemed necessary then to leave it to the General Assembly to sanction the submission of that Constitution, not to the people as then qualified, but to the people whom the Legislature of Virginia and Convention should qualify to vote upon it? :\Ir. Thom: May I make to the gentleman a suggestion in connection with the historical facts relating to the Convention of 1829-1830? Mr. Harrison: Yes, sir. Mr. Thom: I think the fact is that there was an act of the General Assembly of the State authorizing the submission to any electorate that the Constitutional Con- vention might select. ]\Ir. Harrison: But a subsequent act prescribes the electorate to which it should be submitted. I^.Ir. Thom: I understand that. I am only making this suggestion because of a remark which you made in the course of your argument. Mr. Harrison: What I claim is that the Constitutional Convention of 1S29-1S80 did not undertake to proclaim its work or to submit its work, but referred it to the 3112 DEBATES OF THE CONSTITUTIONAL CONVENTION" OE VIRGINIA. Legislature, calling upon them to pass enabling acts, and that it should be submitted to the people under the terms of that act, and should be submitted to the people who were authorized to vote under the new Constitution. Mr. Carter: Do you contend that the Legislature could submit this question to a different electorate; but that the Convention cannot do so? Mr. Harrison: Yes, sir; I do. I will come to that presently. I claim that the power of the General Assembly is not controlled by the suffrage clause. How often have the Legislature prescribed for the submission of different questions to a differ- ent electorate under special acts. Mr. Barbour: I understood you to say that the Legislature itself could submit this to a different electorate. Mr. Harrison: Yes, sir. Mr. Barbour: Do you also admit that the Legislature could proclaim the Constitu- tion, Mr. Harrison: No; I do not admit that, because I think the Lrgislature has the right to prescribe who are the electors, and who have the right to vote on such ques- tions, as they have done in innumerable cases under special acts, where freeholders have been authorized to vote, but of course they have no right to proclaim it. They have no right to proclaim because they are obliged io designate those who are au- thorized to speak for the whole people. But it was not, as I say, an act on the part of the Convention. It was the concurrent act of the Constitutional Convention and the Legislature. The act of the Legislature gave the assent of the existing govern- ment to be displaced by the new. Had the Constitutional Convention undertaken to displace the old government without its assent then there would be some force in the claim that the Convention had virtually proclaimed its suffrage plan. The Legis- lature was essential, as I said, to give the assent of the existing government. This assent was sought and obtained, and there was no attempt on the part of the Con- vention to set aside by proclamation the old government without its assent. I believe that if the representatives of the people ratify the act, and government is organized under the new Constitution, and all the powers are put in force by the representatives of the people, that there is no power which can call it in question because it passes from a judicial question to a political question. When we come to the Constitution of 1849, we find exactly the same situation. Under the act of 1851-52, which was prior to the completion of the work of the Con- stitutional Convention, there was no provision for proclaiming the Constitution in part or in whole. The Constitution did not confer upon the Legislature any power. The act was passsed before the Constitution had been enacted by the Constitutional Convention. In that act it was prescribed that the ratification should be by the people, who were authorized to vote under the new Constitution, as well as those who were authorized to vote un^der the old Constitution. Again there was no attempt to pro- claim the Constitution or the suffrage clause, but the old and new government joined hands again. The existing government gave its assent to the propositions of the new, and there was no attempt on the part of the Convention to remove the old order without its assent. You will observe, gentlemen, that under the Constitution of 1849, the freeholders had the right to vote, upon the election of officers, in every country in which they owned real estate; but upon the question of whether or not there should be a Con- stitutional Convention, it was always provided that they should have but one vote. Therefore, upon the question of submission to the people they restricted those v/ho should be entitled to vote. You will observe that the words in these acts were: "To amend and revise the Constitution." Why should they not have in our Constitution the same interpretation they had under those acts? It is one of the rules of inter- pretation of laws and statutes that v/here words have received a certain interpreta- tion by custom and usage they have thereby been given a legal significance. In this Constitution they have taken the very words that were in the previous acts, which DEBATES OF THE COi^STITUTIONAL CONVENTION OF VIRGINIA. 3113 were followed by the submission to the people. Why is it that they do not retain in our Constitution the significance which the people gave to them under a legis- lative act? We are all familiar with the interpretation given at the time the vote was taken. The people were assured, in the most emphatic way, by the Democratic Convention and by the press of the State, by the orators- on the stump, that the interpretation of those words was that it should be submitted to the people for ratification. That is a significant matter, which the courts will take into consideration when they come to pass upon what meaning is to be given to those words. Contemporary history and past history will show what interpretation was placed upon the words "to amend and revise." I say it is one of the canons of interpretation, that the meaning given to v/ords by contemporary history and past history, is associated with the words, when they come before the court for determination. Will the court blindly close its eyes to current and notorious facts, and say that the people meant in the vote for the call of a convention to give power to its delegates which every one knows that they were assured they M^ould not give? We now come to what this Pennsylvania case says on this question: The present inquiry is not how much power may be conferred by law, but what power was conferred on this convention? A law must be passed according to the forms of the Constitution. One of these is that no bill shall contain "more than one subject, which shall be clearly expressed and entitled." The title of the Act of June 2, 1871, is "an act to authorize a popular vote upon the question of calling a convention to amend the Constitution of Pennsylvania." The text of the act is: That the question of calling a convention to amend the Constitution of this Commonwealth be submitted to a vote of the people at the general election to be held, &c. The one subject of both title and text is the question of calling a convention. That question was authorized to be submitted to a popular vote. In that election each elector expressed his individual opinion on that question, and that alone, by voting "for a convention," or "against a convention." This question was answered in the affirma- tive by a majority of votes, and the people, answering the Legislature, said: "You may call a convention." This was all the vote expressed. Each vote expressing the opinion of the elector on that question, the majority Vv^as composed of the sum total of the votes on that side. Thus an analysis of the act, both in its title and its text, demonstrates that the vote was not a delegation of power, except to the Legislature. There is no principle of sound interpretation which can extend the voice of the elector or the sum total of those voices, beyond the question each was called to answer. The result of that vote, therefore, was that the Legislature might call a Convention. It was not in itself a call, nor did it declare when, how, or on what terms the call should be made. That, the very answer to the question proposed to the electors, necessarily left to those who asked their judgment on the propriety of making the call. It was not even a mandate, further than the moral force contained in an expressed desire of the people. It is very evident, had the matter dropped there, and the Legis- lature had made no call, no convention and no terms would ever have existed. Not a line, nor a word, nor a sj^llable in this act expressed an intent of the people to make the call themselves, or on what terms it shall be made, or what power should be con- ferred. Did the people by this act, without an expressed intent, and by mere inference intend to abdicate all their own power, their rights, their interests, and their duty to each other in favor of a body of mere agents, and to confer upon them, by a blank warrant, the absolute power to dictate their institutions, and to determine finally upon all their most cherished interests? If the argument be admitted for an in- stant that because nothing v/as said in this law on the subject of delegation, there- fore, greater powers were conferred than were granted in the subsequent act of 1872, then all power belonging to the people passed, and they did grant it by the enormous power stated. Then, by a covert intent, hidden in the folds of this act, the people delegated power to repeal all laws, abolish all institutions, and drive from 'place the Legislature, the Governor, the judges, and every officer of the Com- monwealth, without submitting the work of the delegates to the ratification of the people. This case holds that the words "to amend" confer no power to proclaim, which is the very question we now have before us. 196— Const. Deb. 3114 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. It seems to me that, when we look at this Constitution itself, it carries on its face the refutation of any claim as to the power to proclaim it. We say to men who hold their commissions from the people, "Your commissions are void; step down and out." We say to the people: "We will name the legislators for two years to come, by extending their terms." We levy heavy taxes upon important interests in this State, without representation and without a hearing in this body. We exercise all of these powers under an act, v/hich, in express terms say to us: J'You shall not do it." Now, sir, if that act is void in part why is it not void altogether? If that provision is void which says to us, "You shall submit your work to the people"; why is it not void in toto? What right have, we to be here, if the Legislature had no power to pass such an act? Then it seems to me the whole proceeding here is void; because it has been decided, again and again, in this State that an act cannot be pronounced invalid in part and valid in part, except where the various provisions of the act are so separable that they can stand alone; and how can an act which pre- scribes the duties and powers of delegates stand separately from the method of elect- ing them and the duty of electing them? Mr. President, I had no idea of taking up as much time as I have. I do not care to what electorate the Constitution is submitted, but I stand here to protest against this body undertaking to put upon the people whom I represent, a government to which they have never consented. You have no right to do it. You are violating your solemn pledges when you do it. You are violating the pledges which the party electing you proclaimed and matured. You are saying to a free white constituency: "We will ram this Constitution dovm your throat, whether you like it or not." The people of this country have fought for this principle. They have fought for the right to say what lav«^ shall govern them, and under what government they shall live. It is preposterous, that delegates vv^ith their powers limited and prescribed by the act under which they were elected, should dare to say to the people, "We will give you, not what you want, but what we think in our wisdom is for your good whether you like it or not." I, sir, protest against such an assumption of authority. Shall the men who hold their commissions from the people be told to throw their commissions up and walk out of their places when they have been elected by the people to perform certain duties? Are other men to be installed in our legislative halls when they have never been elected? Are taxes to be laid without representa- tion in this day of grace, in the twentieth century? Why, gentlemen, it seems to me that the very proposition is enough to rouse the indignation of every man who cherishes the right of free government. I, sir, will be glad to see the day come when we can see white supremacy in this State of Virginia and in every section of the State. I came here with the sincere hope that not only the Valley, which I, in part, represent, but also that section of sorrowing Virginia which has suffered so much should be relieved of its burden and enjoy the blessing of good government. I came here with the hope that the imperial race, which conquered this wilderness and established an empire in the midst of savages, should control the destinies of the dearest part of old Virginia; but I want to get at it according to the doctrines and the teaching of our fathers. I want no government that is not founded upon the consent of the people. It is a thing that will come home. It is a thing that will come home to us to plague us and that will bear its bitter fruit. This is not the only Constitutional Convention that may be called in this State. There may come a time when it will mean serious disaster to the State to have the recognized power in one hundred men to dictate to the people what is best for them. I believe that this Constitution will be ratified. I believe, as sincerely as I be- lieve anything, that when the people have its merits explained to them they will gladly accept our work, and they will say to us, "Well done, good and faithful ser- vant." But as much as I would like to see this Constitution go into effect, there is one thing that is dearer to me than that, and that is that we shall hold tight to the teachings of our fathers and see to it that no government is in existence in this DEBATES or THE COXSTITUTIOXAL CONVEXTIOX OF VIRGIXIA. 3115 country except by the consent of the governed. I say it makes no difference whether you submit it to the general electorate or to the abridged electorate. I say there is no power for us to submit it to the abridged electorate without having legislation upon the subject. We can refer this matter back to the Legislature, as was done in 1829, with instructions to submit it. We have no power to ordain here who shall be registrars and who shall be entitled to vote. I will cheerfully vote, if it is deemed essential to the success of this measure, to refer the matter to the General Assembly with instructions to submit it by law. I believe that the Legislature has that power and that it has been recognized in this State in years gone by. By pursuing such a course we would not be establishing a dangerous precedent. But if we do the act that is now in contemplation, as I understand it, by some of the delegates here, we are teaching a lesson to our children that the fundamental principles of republican insti- tutions are a farce in old Virginia. Are you going to proclaim the Constitution be- cause you fear the people will turn it down? If I thought that, gentlemen, I would, for that very reason, vote against it, because I will never be a party to giving the people of this State a government they do not want. It is for them to say; we should let them speak, and they will speak, as they have ever done in Virginia, in the inter- est of truth and of justice to the people of the State. One matter has escaped my attention, to which I desire to refer before I close my remarks. I was not here when the vote was taken upon the suffrage proposition. I was necessarily detained by attendance upon my court. If I had been here I would most cheerfully have voted for the suffrage clause. I desire to call attention in brief to what I would have said, if I had been here, in connection with a certain feature of this question. I know the capitation tax feature of this suffrage provision is an un- popular move, but, for my own part, I do not believe that any man in Virginia who is unwilling to contribute one dollar and a half to the maintenance of public schools ought to have a voice in the government. It is little enough to show his interest in popular government th?-t he should be required to sustain the public schools to that extent. In regard to the educational qualifications, vfhich applies simply to new voters, I desire to say that after thirty years of public schools it seems to me little enough to require that a man should have sufficient education to prepare his own ballot. That qualification, I understand, is made to apply without distinction of race, color or previous condition of servitude. It will probably hurt as many white men as it will negroes. Everyone is required to measure up to the standard, that they shall pay $1.50 to maintain the public schools which educated them; and that voters register- ing after January 1, 1904, shall have taken advantage of that education to the extent of being able to prepare their own ballot. I know that in regard to the present electorate certain discriminations have been made. But I desire to call attention to the fact that such discriminations have been recognized and recommended by the greatest political friends the negroes have ever had. Here is a letter written to the Convention called by the Provisional Governor of the State of Mississippi: If you could extend the elective franchise to all persons of color who can read the Constitution of the United States in English, and write their names, and to all persons of color who own real estate valued at not less than $250 and pay taxes thereon, you would completely disarm the adversary, and set an example the other States will fol- low. That is the recommendation made by President Andrew Johnson, in which he recognizes that the educational and property qualifications should be the test for the negro voter. Here is another letter written to Louisiana: I congratulate you on having fixed your name in history as the first free State 3116 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Governor in Louisiana. Now you are about to have a convention, which among other things, will define the elective franchise, I barely suggest, for your private considera- tion, whether some of the colored people may not be let in — as, for instance, the very intelligent, and especially those who fought gallantly in our ranks. In these two letters we have the property qualification, the educational test, the understanding clause, and the military requisition as a discrimination against the negro. This letter was written by Abraham Lincoln. So that so far as the present electorate is concerned, we are simply following the suggestions which have been made by two of the greatest abolitionists in this country. • On motion of Mr. Barbour, the Convention adjourned until to-morrow, Saturday, May 24, 1902, at 10 o'clock A. M. SATURDAY, May 24, 1902. The Convention met at 10 o'clock A. M., Mr. Barbour in the chair. Prayer by Rabbi E. N. Calisch, of Beth Ahaba Congregation, Richmond. Mr. Blair: Mr. President and Gentlemen of the Convention: I ask your attention and indulgence to-day while I endeavor to present to you my views on this most important question, before us now for our consideration. I have listened to • the eloquence and argument of the distinguished gentlemen who have spoken on the subject, and it is with hesitation that I venture to express myself at all in this connection. But, Mr. President, when I see the dearest rights of the people of this old Commonwealth at stake, I feel that I would be recreant to the trust placed in me by the constituency I have the honor to represent in this body should I passively submit without raising my voice in protest. We have reached the finale of a great political drama, the importance of which, few of us are able to realize. We have finished an epoch in Virginia's history and with the closing of this Constitutional Convention we will inaugurate a new regime in her affairs, which, to say the least, will be speculative and problematical. The gravity of the situa- tion should, therefore, justify care and patience on the part of the members of this body in their final consideration of this, the culminating feature of our great under- taking. Consoling myself with the maxim that "Thrice is he armed that hath his quar- rel just," I have determined to submit to you my views on this question with a col- lection of authorities to substantiate my position. But in the inception of my remarks, I wish it plainly understood that I have been, am now and ever shall be, in favor of the submission of constitutional amend- ment or revision to the people for their ratification or rejection. We have, after many weary months of labor, put in proper form the revision of our organic law and now v/e are called upon to decide "shall v/e promulgate the result of our labors or shall we allow the people to pass upon it? " In my opinion, every rule of law, every rule of justice, and every rule of honor, demands that we consult the will of the people. They voted for the calling of the Convention with that idea uppermost in their minds; under the same impression, they elected delegates to the Convention, and now they expect that impression to be verified. They were assured of it by the pledge of the political party that is responsible for its calling, that made the question of that call- ing a party issue, and announced, through its campaign speakers, that the people should pass final judgment on the work if they would only agree to allow the Convention to be called, and the Convention was convoked and convened on the express under- standing that the people were to pass finally upon its result. The gentleman from Lynchburg, in his speech in the early part of the session, on the subject, which so DEBATES OF THE CONSTITUTIONAL CONVEq,-;TION OF VIRGINIA. 3117 delighted the friends of proclamation, undertook to snow that his party had never given any assurance to the people that the new instrument, when framed, v/ould be submitted to them and that his party's platform did not contain any such promise or pledge. I quote the language of the Norfolk Convention and leave you to judge for yourselves. Listen: Hesolved, That it is the sense of this Convention that in framing a new constitu- tion, no effort should be made to disfranchise any citizen of Virginia who had a right to vote prior to 1861, nor the descendants of any such person, and that it is the sense of this Convention that when such constitution shall have been framed it shall be sub- mitted to a vote of the people for ratification or rejection. As to whether the first pledge has been kept or not, I will not undertake to dis- cuss. As to the second pledge, the gentleman undertakes to show that it was of no effect, and had no binding force on that convention. Indeed, he invades the realms of logic and etymology to show that the word "sense" does not create a pledge as used in the second resolution, but that it simply means the "opinion" or "view" of that body and does not commit them to such a policy. I confess that my mind is entirely too obtuse to grasp such reasoning. The gentleman is certainly clever with his logic, but when he tries to change the word "sense" from its accepted meaning, as used by the Norfolk Convention, into something else, he evidently assumes that the people of Virginia possess very little of whatever the word does mean. But I do not pro- pose to split airs with the gentleman as to what constitutes a pledge or promise in the platform of his political party. The platform of the Democratic party has been likened to the platform of a rail- road car — it is made for the purpose of getting aboard but not to stand on. But I must notice another assertion in the gentleman's speech. He attempts to justify a proclamation, or rather a submission of the new Constitution to an abridged electorate (they amount to the same thing), by showing that there was a great popu- lar demand for a Constitutional Convention' throughout the State; that the existing Constitution was so odious that the people pined and sighed for a change from the old to new conditions, and like Rachael mourning for her children, refused to be comforted. Here is what he says: "The demand for reformation came from the white people of Virginia.'^ Is this a fact Mr. President? Let us see. The great white section of Virginia did not want and did not vote for a Constitutional Conven- tion and they emphasized their disapproval of such a course by their ballots at the election to decide whether such Convention should be called or not. One county in my section, composed almost entirely of white voters, gave nearly one thousand ma- jority against calling such convention, although, politically speaking, this county is regarded as being Democratic. I refer to the county of Carroll. Then, where did the demand for the Convention and the voters to call it come from? I regret to be put to the necessity of saying it, but we want the true state of facts. The great popular demand referred to above came by manipulating the negro vote in Eastern Virginia, at the election held for the purpose, thereby making the negro vote to call a Constitutional Convention, the avowed object of which was to deprive him of his right of suffrage. The election returns show that a majority of the white counties were not in favor of the Convention at all. Let us look at some of the facts in connection with that election. The returns show that 77,000 votes were cast in favor of the Convention, and that 60,000 votes were cast against it, making a total of 137,000 votes. In Virginia we have, approxi- mately, 447,000 voters. Deduct 137,000 cast on the question as to holding a Constitu- tional Convention, and we have left 310,000 voters who did not go to the polls or cast their ballot in that election. How are you going to account for those voters? Did those 310,000 voters want a Constitutional Convention? I state these figures in refu- tation of the contention of the gentleman from Lynchburg that there was a great popular demand on the part of the white people for a Constitutional Convention. 3118 DEBATES OE THE CC^^TSTITUTIONAL CONVEJTTION OE VIRGINIA. Let US look further at the^< returns. In Virginia there are one hundred counties. Of that number forty-eight voted for and fifty-two voted against holding the Con- stitutional Convention. There are thirty-five counties in which there are a majority of negro voters, and sixty-five in which there are a majority of white voters. Of the sixty-five white coun- ties, thirty-five voted against and thirty in favor of holding the Constitutional Con- vention. Of the black counties seventeen voted against the Convention and eighteen for it; showing that a majority of five of the white counties opposed the holding of the Convention and a majority of one of the black counties favored it. The follow- ing black counties voted for the Convention: Cumberland, Charlotte, Brunswick, Buckingham, Dinwiddie, Gloucester, Greenville, Halifax, James City, Lunenburg, Northampton, Nottoway, Prince Edward, Prince George, Southampton, Sussex, York, and Louisa. Those voting against the Convention were Amelia, Caroline, Charles City, Essex, Goochland, King and Queen, Lancaster, Mecklenburg, Middlesex, Nanse- mond. New Kent, Norfolk, Powhatan, Surry, Warwick and Westmoreland. The ma- jority vote of these thirty-five counties against the holding of the Constitutional Con- vention was 422. These counties have a negro population in excess of the whites of 84,759, and a majority of negro voters over white voters of 16,951. Yet, in an elec- tion called for the avowed purpose of disfranchising the negro with the above men- tioned majority of 16,951 voters these counties only give 422 majority against the Convention. Let us take a few samples. The county of Southampton gave a ma- jority of 1,012 in favor of holding the Convention, yet the majority of blacks over whites in that county is 4,518. A fine illustration of political prestidigitation. The county of Prince Edward, whose representative is such an earnest advocate of procla- mation, gave it a majority of 64 for the Convention, yet this county has an excess negro population of 4,493. I wonder if the gentleman from that county is familiar v/ith the old proverb about walking into the well while looking at the stars. The county of Charlotte has 1,847 more negroes than whites, yet it gave a majority for the Convention of 476. Now, let us look at the white counties. The counties that voted in favor of the Convention were Accomac, Albemarle, Amherst, Appomattox, Augusta, Bedford, Camp- bell, Chesterfield, Clarke, Craig, Culpeper, Fauquier, Franklin, Giles, Greene, Han- over, Henrico, Henry, Isle of Wight, Loudoun, Madison, Mathews, Nelson, Orange, Prince William, Rappahannock, Roanoke, Rockingham, Warren and Pittsylvania. These thirty counties have a white population of 375,039 and a black population of 184,139, or a white majority of 190,900. The white counties voting against holding the convention were Alleghany, Alex- andria, Bath, Bland, Botetourt, Buchanan, Carroll, Dickerson, Elizabeth City, Fairfax, Floyd, Fluvanna, Frederick, Grayson, Highland, King George, Lee, Montgomery, Northampton, Page, Patrick, Princess Anne, Pulaski, Richmond, Rockbridge, Russell, Scott, Shenandoah, Smyth, Spotsylvania, Stafford, Tazewell, Washington, Wise and Wythe. These counties have a white population of 416,848, and a black population of 83,174, or an excess of whites of 333,674. Or, in other words, there are nearly three times as many white people in the thirty-five white counties voting against the Constitutional Convention, as there are in the thirty counties voting for the Convention. Still the gentleman from Lynchburg would have us believe that it was a great popular demand on the part of the white people of the State that caused the Convention to be held. The majority against holding the Convention in the sixty-five white counties, mentioned was 1,188. Of the thirty-two counties west of the Blue Ridge mountains seven voted for the Convention, as follows: Clarke, Warren, Rockingham, Augusta, Roanoke, Craig, and Giles, and twenty-five voted against it as follows: Shenandoah', Frederick, Page, Rockbridge, Botetourt, Floyd, Montgomery, Alleghany, Bath, Highland, Patrick, Pulaski, Carroll, Bland, Wythe, Grayson, Tazewell, Smyth, Buchanan, Russell, Wash- ington, Dickerson, Wise, Scott, and Lee. The number of whites in these thirty-two DEBATES OF THE CONSTITUTIOIs^AL CONVENTION" OE VIRGINIA. 3119 counties is 459,209, the number of blacks, 58,599, or an excess of whites of 400,610. Yet the majority against the Constitutional Convention in the thirty-two white counties was 7,392, showing conclusively that the great bulk of the white people of Virginia were opposed to calling this Convention. The vote in the cities caused the Convention to carry. From those premises he argued that the white people will be satisfied to see the Constitution proclaimed. The Legislature recognized the fact that the people of the State did not wish a change in the organic law when they passed the act taking the sense of the voters on the question of v/hether a Convention should be held to revise or amend the present Constitution. When you examine that act you will find that the method of voting on the question, or rather the form of the ballot by which the vote was to be taken, provided that the words "for Convention" should be printed on the ballot, but nothing was said as to putting the words "against Con- vention" thereon. So that if a voter wished to vote for the Convention all that was necessary for him to do was to deposit the printed ballot in the ballot-box and his vote was properly cast. But on the other hand, should he desire to vote against the Convention, it was necessary for him to be either able to read for himself or to con- sult the ticket marker and have the words "for Convention" erased from the ticket and substitute the words "against Convention" thereupon. Now, v^^hat could have been the object in this plainly unjust piece of legislation except to deceive the ignorant and illiterate voter and to force through the measure providing for such a Convention? They must have known that the negro would be the one affected by this unfair proviso as to the preparation of the ballots, and that it would result in a large number being counted for the Convention by the ticket-markers or unconsciously casting their ballots there for themselves. Mr. Flood: I wish to correct the gentleman as to the statement just made that the ballot as provided for by the act of the Legislature of 1899-1900 was unfair. It was not unfair. The Legislature was confronted with this condition of affairs: If, under the Underwood Constitution, there had appeared on the ballot "for a Consti- tution" and "against a Constitution," every voter who went to the polls and did not do the proper scratching would have his vote counted against the calling of a Constitu- tional Convention, and that would have given an unfair advantage, or at least some advantage, to those who were opposed to the calling of a Convention. The Legislature, therefore, which favored the calling of a Constitutional Convention, had, under the Underwood Constitution, which had been rammed dovv'n the throats of the people, either to give the advantage to those who favored a Constitutional Convention, or to those who opposed it. The Legislature did not provide for an unfair ballot, but simply gave the advantage to those who favored the calling of a Constitutional Convention. Mr. Blair: The gentleman ought to know, because he was the author of the pro- vision, and ought to be familiar with the facts. Three hundred and ten thousand voters either did not or could not vote the ballot. Mr. Flood: The reason I correct the gentleman is because he is not familiar with the facts. Mr. Blair: It, therefore, would appear that this Convention was conceived in iniquity and brought forth in sin. If the friends of proclamation are so anxious to consult the views of the people of the Commonwealth through the medium of mass- meetings, why not submit to them in a lav/ful election whether the Constitution shall be promulgated or submitted to the people? This would certainly accomplish the object. Even in the present case the result was comparatively close. It is useless, therefore, to contend that the white people of this Commonwealth demanded a Con- stitutional Convention. The proposition had been continuously agitated by the poli- ticians in this State for the last fifteen years. And if a change was wanted at that time, it was not on account of the existing law being defective. We had lived and prospered under it for the past thirty years. It vras due rather to the maladminis- 3120 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. tration of the dominant poliitical party who held the reins of government at the time. It is not always the laws that are bad, indeed very seldom, but the manner in which they are enforced and construed, as a rule, is responsible for existing evils. Pope tells us: For forms of government let fools contest, Whate'er is best administered is best. But, fortunately for the people, Mr. President, this question is not dependent upon the integrity of any political party. It is the inherent right of the people to call conventions or to otherwise change their laws. Being the repository of the State's sovereignty, they must be consulted before they can be bound. When conventions are called to revise or amend the laws of a State or nation the members of that convention are representatives of the people only in a very limited sense. It is their function to put in proper shape the questions of revision or, amendment, upon which the people are finally to pass. To contend that the Convention itself is sovereign, is to place the servant above the master, the agent above his principal, the creature above the creator. To such a proposition I cannot, I will not consent. The people have intrusted us with a sacred duty, and I, for one, will not knowingly betray that trust. They were led to believe that they should pass judgment upon the work as it came from our hands, and so far as my voice and my vote can accomplish it, they will yet realize their expectations. Upon these principles I stand. With me any other hypothesis would do violence to my conception of a democratic form of government, a government ever solicitous for the rights and privileges of its citizens and always according them a voice in all questions relating to the policies to be pursued therein. A demo- crat is supposed to favor government of the people, for the people and by the people. In fact, the etymology of the word itself embodies the same idea. Derived from the Greek demos — people — and catos — power — the word democrat has ever been, from the ideal republics of Socrates and Plato down to the present, synonymous with the right of the people to rule. In a democratic republic (I use the word in its broadest sense) the right of a majority of the members of that republic to prescribe its polity and control its affairs is its chief characteristic. The sovereignty of the people is the foundation stone which supports the entire political superstructure, and upon which the stability thereof depends. Montesquieu in his "Spirit of Laws" dif- ferentiates between a democracy and an aristocracy as follows: When the body of the people is possessed of the supreme power, it is called a demo- cracy; when the supreme power is lodged in the hands of a part of the people, it is then called an aristocracy. God knows what you would call it if the supreme power was lodged in the hands of a Constitutional Convention. The great thinkers and writers on sociology and the science of government, Vattel, Comte, Herbert Spencer, Rousseau, Hobbes, Aristotle, Fortesquieu, Grotius and others, in their three grand divisions of government into Monarchies, Aristocracies and Democracies, never contemplated government by con- stitutional convention. It remains for the Virginia Convention, in the broad glare of twentieth-century civilization, to evolve a fourth grand division of government. When the Convention convened, the sentiment, undoubtedly, was in favor of a sub- mission of our work to the people for their ratification or rejection. But a perceptible change of feeling has been gradually going on, until at the present time I fear I am fighting for a hopeless cause. In fact, gentlemen, when we look at the question, as it is to be submitted to the members of this Convention for their vote, it is easily seen that we will lose, on the proposition to submit to the people, many votes. The first proposition is: "Shall the people be allowed to vote on it?" If a voter wants to choose between that propo- DEBATES OF THE COXSTITUTIOXAL COXVEXTION OF VIRGIXIA. 3121 sitlon to submit it to a restricted electorate or rather if he favors submission to the whole people in preference to proclamation, he will not have an opportunity to vote upon that proposition. I would like to know who originated the proposition contained in the resolutions which were adopted on Thursday last. I have understood that the gentleman from Campbell (Mr. Daniel) is its author, but I cannot believe it. It looks like the hand of Esau. I cannot believe he originated it, and if he did, it is certainly a reflection upon his reputation as a political leader. It appears that we confront a cut-and-dried affair. I may be in the position of counsel arguing a case to a jury after the verdict has been determined upon, when it only needs the signature of the foreman of the jury to dispose of the controversy. But how do you account for this change? There is no more reason to proclaim the Constitution now than there v.^as one year ago. We have the same election laws and the same electorate. The change is attributable, in the main, to two causes — the misdirected zeal of the press in the matter and the unprecedented and unusual development of petticoat statesmanship, since this Con- vention adjourned for the recent recess. Those gentlemen who are shouting proclama- tion from behind the skirts of a trumped-up constituency had better beware. Their sins will surely find them out. They remind us forcibly of the ostrich, that is said to bury its head in the sand and then imagine that it is entirely concealed from its enemies. But like the ostrich, they little reckon that the most conspicuous part is still exposed. What right, forsooth, have members of this Convention to regard the so-called instructions from a handful of people gathered together, presumably as a mass-meet- ing? It is a well-known fact that such meetings never convey the will of the people unless the political leaders so desire. As a rule, three or four men can mold the sentiment of any mass-meeting. And again, on whose authority were these meetings called? Who attended, and how many. It would be interesting if we could have a roll of some of these mass-meetings before us to see who were present to instruct the representative to advocate a pro- clamation. In several instances the papers stated that only a very small number of citizens were present. There are too many seasoned politicians in this body to be deceived by such instructions. It is more than probable that any member of the Con- vention could have secured instructions to suit himself. All that was necessary was to call the mass-meeting and invite his sisters and his cousins and his uncles and his aunts and he would have been properly instructed. If you will give me one week's time I can go back to my county and get instructed to proclaim the Underwood Con- stitution and then adjourn sine die. And still my county is opposed to proclamation. No doubt if I had felt the need of any back-bone tonic I would have had no trouble in se- curing the necessary medicine in the shape of instructions. Now, at regular elections voters are compelled to attend or they will be bound thereby and will not be heard to question the result. But in these so-called mass-meetings no one is required to attend and, therefore, such instructions should have no more binding force or virtue than the infantile requests of a class of Sunday-school children. Hov/ gentlemen can ease their consciences or take comfort from such a source passes my compre- hension. The question then comes back to our right to proclaim. Would any gentle- man vote to proclaim a Constitution which, in his opinion, was vicious and bad? If not, and he favors proclaiming the new instrument, he evidently assumes that it is a good one. He may be right. But certainly that is a matter of opinion. His con- stituents may think otherwise. Then who should prevail, the representative or the represented? While I, doubtlessly, possess my share of egotism, I cannot allow it to carry me to the extent of pronouncing for the 4,000 voters I represent, the instrument in question, as being the one and the only one suited to their w^ants. I must leave that vital question to them. Should the 4,000 voters differ with me regarding this Constitution, then I would cheerfully acquiesce in their superior judgment and govern 3122 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. myself accordingly. If, as the gentlemen who favor proclamation contend, the new instrument is a good one, then more the reason why it should be submitted to the people for their ratification or rejection. If you can convince them that it is good and can demonstrate its salient features, it is more than probable that you will receive their encomiums of "Well done, thou good and faithful servant, we will accept the fruits of your labor." These gentlemen v/ould have us believe that it is the panacea that will relieve all of the ills of the body politic. It, therefore, should not prove a very disagreeable remedy. It occurs to me that a refusal to submit the Constitu- tion to the people would appear as an exhibition of moral cowardice; that we are afraid of the people. Have we, as yet, had any intimation that they will reject our work or that they were already prejudiced against it? Have we any reason to doubt that they will give it their careful consideration and judge it according to its merits and demerits? Then why should these gentlemen give way to unnecessary fears when there is no occasion for alarm? Be brave and fear not. "The wicked fieeth when no man pursueth. but the righteous are bold as a lion." As the people are the ones affected by any change in their fundamental law, surely they should be allowed to approve or disapprove of such a change. No representative body has a right to say to the people whom they represent, "We will make the laws for you, but you must accept them, good or bad." "The blessing of Judah and Issachar will never meet; that the same people should be both the lion's whelp and the ass between burdens." These are self-evident truths. Jefferson recognized them v/Iien he penned the im- mortal Declaration of Independence, that great national manifesto of human liberty. Mason recognized them when he framed his famous Bill of Rights. The writers in the Federalist never lost sight of them when they made their powerful appeals to the people to accept the Constitution intended for the United States as a whole and which had more to do with their final acceptance than any other influence. We find in the Bill of Rights, section 4 of the present and section 2 of the new Constitution, the following language: "That all power is vested in and consequently derived from the people; that magistrates are their trustees and servants, and at all times amenable to them." What has become of the doctrines enunciated by the sage of Monticello. Of what virtue is the Bill of Rights when a Constitutional Convention proposes to arrogate to itself the very rights that those instruments intended to invest absolutely in the people? To the idea of sovereignty in the Convention, I am unalterably opposed. I came here as the servant of my people. I left my sovereignty and my sovereigns at home. The doctrine of "nos sumus populi" that seems to obtain in this Convention would find few sympathizers in the section of country from whence I come. There are many citizens who are favorably disposed towards the new Constitution, but, at the same time, they believe the people) have the right and should pass upon it. The mere fact that a Constitution is a good one is not sufficient reason to authorize its enunciation, although the friends of that proposition seem to take that ground. Be- lieving as I do, in the inherent right of the people to accept or reject any law in- tended for them, and that this is their sole prerogative, I would not vote to proclaim the Ten Commandments or the Sermon on the Mount. They claim that necessity demands a proclamation and that we are accordingly justified in taking such a step. I presume they do go on the theory that "necessity knows no law." They certainly appear to know very little constitutional law. When once a man has made up his mind to do wrong how easy it is for him, from false premises, to reason out some degree of justification for his act. Gentlemen tell us that it would be folly to submit the new Constitution to those who will be disfranchised thereby; that such voters v/ould certainly cast their ballots against the adoption of it, and that they should not, for that reason be allowed any voice in the matter. Av^ay with such argument. For the same reason, when recently I refused to vote for the great apostle of free DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 3133 silver, I should not have been allowed to vote at all in this State. It is the boasted characteristic of Democratic government that the humblest citizen stands on the same footing with the rich and the mighty, when viewed from a political standpoint. He cannot be deprived of his right of citizenship, unless it be done by due process of law, that is, by a majority of the citizens who are qualified voters of the State in which he holds his citizenship. There exists a contract between each citizen and the State. The citizen on the one part agrees to obey the laws, pay tribute in the nature of taxes, when able, perform military service, and conduct himself in a proper manner. The State on the other hand guarantees him protection of life, liberty and pursuit of happiness and a voice in the affairs of government. The State, therefore, cannot arbitrarily abrogate this implied contract without impairing the obligation thereof. If, however, a majority of the citizens of the State in lawful election decide to abrogate the contract as to a portion of the citizens thereof, then, as Vattel, in his Law of Nations, tells us, there is nothing left for the minority so affected to do, but to abide therebj^, or to quietly remove from such a State or nation and seek citizen- ship under mere congenial government. This idea, of course, presupposes that they have exhausted every resource to obtain redress at the hands of their native State and have failed, and this last is the only course left for them to pursue. If, Mr. President, we are to get an intelligent solution of this most important question, we must lay aside partisanship and turn on the searchlight of reason. Reason is that faculty which God Almighty vouchsafes to mankind to enable him to discriminate right from wrong. By it he may "instruct the planets in what orbs to run, reform Old Time and regulate the Sun." Shall we submit the Constitution, and if so, to whom shall we submit it? That is the issue by which we are con- fronted to-day, and that is the issue which we, as members of this Convention, will soon be called on to decide. Upon the wisdom of our decision may depend the stability of our whole social system. Let us look at the first part of the question, namely, shall v\^e submit the Constitution to the people? In democratic government congeniality of sentiment in connection with the governmental polity is the bond of cohesion that insures the permanency of the State or nation. Destroy this political homogenity and disintegration is bound to follow. And what is the cause of this congeniality of sentiment. It comes from the security that each citizen feels as regards his political rights and privileges, as long as he retains that citizenship; that he cannot be deprived of them without the sanction of a majority of his fellow-citizens, after a legal ascer- tainment of that sanction, through the instrumentality of elections, properly held and fairly conducted, under the laws of the State or nation of which he, for the time being, is a member. The characteristic necessity of democratic government, therefore, is its abso- lute dependence upon majority rule. De Tocqueville, the illustrious French writer, when he visited this country in the early part of the last century for the purpose of studying our institutions of government, was impressed with the ease by which we governed ourselves through the will of the majority, and in his admirable treatise on the subject, "Democracy in America," he says: The very essence of democratic government consists in the absolute sovereignity of the majority, for there is nothing in democratic States Y%^hich is capable of resisting it. Most of the American Constitutions have sought to increase this natural strength of the majority by artificial means. Montesquieu says: In a democracy the people are the sovereig-n. There can be no exercise of sover- eignty but by their suffrages, which are their own will; the sovereign's will is the sovereign himself. 3124 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIEGINIA. And, Mr. President, it has ever been in democratic government that sovereignty- is one of the non-delegatable prerogatives of the people. Of course, they can and do confer the exercise of a certain portion of it upon legislative bodies, but sovereignty itself remains entirely with them. The Convention held at Annapolis in 1786, ta frame a Federal Constitution, resulted in a total failure on account of the members thereof ignoring this inherent right of the people. The Articles of Confederation could not hold together the States for a similar reason. iBut when, in 1787, the Con- stitution Convention met at Philadelphia to frame a Constitution for the United States, they had ever uppermost in their minds the constituent sovereignty of the people. The right to institute and to alter government was ascribed to the people and the ends of governments were recognized to be for the purpose of securing the natural rights of its citizens. They did not attempt to abrogate to themselves the power to foist upon the people a Constitution of their own selection, without first obtaining their consent and approval. They contented themselves with a simple proposal, which was not to take effect until it was sanctioned by the Confederation, the State Legislatures and by the people of the several States, in convention assembled for the purpose of examining and passing upon it. As a result of their wisdom and fore- sight, on the 30th day of April, 1789, was consummated the work that had its origin in the Declaration of Independence, and a system of government was instituted, such as the world had never seen. Like an impregnable rock, for more than 100 years it has withstood the storms of political upheaval and the shock of civil commotion, and to-day the land that it shelters and protects is the Mecca for oppressed humanity, a city of refuge, a haven of rest. How, then, was this mighty innovation accom- plished? By acting in the name of the people and by proceeding with their full con- sent and approval. Then, what course shall we pursue in Virginia? Shall we take the side of power or shall we take the side of right? Shall we commit ourselves to the irresponsible despotism of sovereignty in representative bodies, or shall we cast our lot with the self-evident truth of the Declaration of Independence. In consider- ing this subject we must distinguish between two kinds of conventions, namely, Revolutionary and Constitutional Conventions. I am inclined to believe that sjome gentlemen must confound the two. I fear they have confounded the rights of the citizens in time of peace with the duty of the citizens in time of war. The first,* as its name implies, is not called by authority of- law, but is convened v/hile the law is in abeyance and a state of revolution exists. In fact, a revolution is defined to be "a revolt against the constituted authority, successfully and completely accomplished." Of course, under such conditions a convention would have a right to proclaim its work. In- deed, that would be the only way by which it could become operative. They are not bound by any rule of government and are, therefore, amenable to no one but them- selves. We have only one instance of this kind of convention in Virginia, that of 1776. At that time we were in the throes of the American Revolution and promulgation was necessary and the only course open to the members of that Convention. A constitutional convention, on the other hand, as contradistinguished from a revolutionary convention, is one that is called together, by and under the existing Constitution of the State or nation in which a change is desired, for the purpose of effecting some amendment or revision to that Constitution, and until such amend- ment or revision is effected the old instrument remains in full force and virtue. The people have three ways, and only three, by which they can secure a change in their organic law. By the method prescribed by the existing Constitution. Where na method is provided, then by authority of the law-making power, and lastly, by revolu- tion. In our own case the present Constitution provides h^ow a convention shall be called. Section 2 of Article XII provides "at the general election to be held in the year 1888, and in each twentieth year thereafter, and also at 'such time as the Gen- eral Assembly may by law provide,' the question, 'Shall there be a convention to revise the Constitution and amend the same?' shall be decided by the electors quali- DEBATES OF THE CONSTITUTIOXAL COJ^"VEXTION OF VIRGINIA, 3125 fied to vote for members of the General Assembly; and in case a majority of the electors so qualified voting at such election shall decide in favor of a convention for such purpose, the General Assembly at its next session shall provide by law for the election of dele- gates t;o such Convention: provided, that no amendment or revision shall be made which shall deny or in any way impair the right of suffrage, or any civil or political right as conferred by this Constitution, except for causes which apply to all persons and classes without distinction." Was this Convention called under this section of the present Constitution? If so, we certainly cannot consider ourselves a revolutionary Convention, because we were convened by authority of law and that law, through the instrumentality of the Legislature in carrying it into effect, provides that we must submit this work to the people. All text-writers and nearly all of the decisions hold that a constitutional convention is absolutely bound by the provisions of the act calling it into being. The Constitution provided how the Legislature sh-ould call the Convention, the Legislature passed the act calling it, and another act provided that the work of the Convention, when completed, should be submitted to the people of this Common- wealth for their ratification or rejection. Is there anything revolutionary about that? On the contrary, has not everything been done according to law and order, in every instance, up to the present time. Then why depart from this time-honored course of procedure, so universally recognized in these United States? Does any member question the principle .of the inalienable rights of man, do any deny that the people are the only legitimate source of power or that all just powers of government are derived from the consent of the governed? Would any member attempt to distort this Convention, assembled in pursuance of well-established rules of government and adjudicated principles of law, into one of a revolutionary nature, dependent upon nothing except the honesty of the members who compose it; amenable to no one, recognizing no authority except the dictates of their own consciences? Surely such a proposition will not admit of serious argument. No, Mr. Presi- dent and gentlemen, we are not a revolutionary body. Peace, like a white-winged messenger, hovers over us, and happiness and contentment reign supreme. We hear it in the busy hum of industry and improvement; we see it amid scenes of pastoral elegance where the shepherd hums to his fair one liberty's beautiful song. In every Incident of life the soothing rhj^thm of peace delights the listening ear. Then how can we promulgate this Constitution without trampling upon the imprescriptible rights of man and disregarding the transcendent sovereignty of the people? And where, forsooth, shall we seek our vindication for such a course and how can we justify ourselves at the day of reckoning? I suppose the "instructed gentlemen," with affected innocence, like Macbeth, will say, "Thou canst not say I did it; never shake thy gory locks at me." But to no purpose. I confess that I am pledged to a submission of our v/ork to the people. When I offered myself as a candidate for this Convention I promised the people of my county that, if elected, I v/ould favor such a submission to them. I quote from a printed circular that I issued in connection with that candidacy: The Constitutional Convention will be the representatives of the people only in a very qualified sense, and for the specific purpose and with the restricted authority to put in proper form the questions of amendment or revision, upon which the people are to pass, but the fundam.ental law of the State must invariably be enacted by the peo- ple themselves. I should, therefore, bitterly oppose any attempt to foist a Constitution upon the citizens of this Commonwealth without an actual and fair ascertainment of the sentiment of the majority of the voters, qualified as such by the present Consti- tution. Naturally, then I can take no other position without violating this sacred pledge made by me to my people and acted upon by them. But outside of any such promises I believe that it was the only position, consistent 3126 DEBATES OE THE CONSTITUTIONAL CONVENTION OF VIRGINIA. with law and equity, that I could have taken. Before a constitutional convention can claim the right to proclaim a new organic law it must be able to show that it is possessed of sovereignty, the right to make law. Now, let us see what is sover- eignty. Bouvier defines it as being "the union and exercise of all human power pos- sessed in a State; it is a combination of all power; it is the power to do everything in a State without accountability." Abstractly, sovereignty resides in the body of the nation and belongs to the people. Mr. Tucker, in his work on Constitutional Law, defines it as "the rightful political power vested in the body politic, we call sovereignty or supremacy over men and things." I mention in this connection that Mr. Tucker is one of the few writers on constitutional law who takes the position that a constitutional convention has the right to promulgate its work. According to Judge Cooley, sovereignty, as applied to States, imports the "supreme, absolute, un- controllable power by which any State is governed." Does the Virginia Constitutional Convention possess such sovereignty? Have we the supreme, absolute, uncontrollable power to govern this State? If s/o, from whence do we obtain such power? Have we letters of attorney from the people to exercise their sovereignty? Have we any war- rant to do so? Did they clothe us with the power to make their organic law and at the same time to put it in force without any further expression from them on the sub- ject? Clearly ive have no such right. Judge Cooley, in discussing this very point, says: But no body of representatives, unless specially clothed with power for that pur- pose, by the people when choosing them, can rightfully take definite action upon amend- ments of revisions; they must submit the result of their deliberations to the people, who alone are competent to exercise the powers of sovereignty in framing the funda- mental law, for ratification or rejection. I am aware of the contention of the friends of proclamation, that because the people in calling the Convention did not expressly prohibit us from the exercise of such power, that they thereby clothed us with it. To me, such argument is exceedingly fal- lacious. The idea that silence gives consent cannot reasonably be applied to consti- tutional conventions. We are the agents or representatives of the people for a par- ticular purpose — namely, to put in proper shape the new organic law, so that the people can intelligently pass upon it. The law, as applied to principal and agent, makes a decided difference between general and special agents. Where a third party contracts Vv^ith a general agent, if the principal does not wish to be bound, he must show that the agent did not possess the authority to bind him, but in case the contract is made with a special agent, the third party must show that he possessed the authority to bind his principal. Then, if we are, as I contend, special agents of the people, before we can bind them under this organic law, we must show that we possess the authority to so bind them. But they tell us that we have precedents for such a course. They point to other conventions that have proclaimed their work and contend that, a fortiori, we have the right to do likewise. Let us examine these so-called precedents they would have us take for our guidance in the solution of this great question. In passing, however, let me observe that it is one of the characteris- tics of man's frailty that whenever he decides to deviate from the path of rectitude he begins to look for a precedent; to find some other fellow who has committed the same sin. A clear conscience and a knowledge of duty done is the only precedent we need in this case. With that we need not fear to go back to the people and by them be judged accordingly. But let us look at their precedents. The first one they point to is the Virginia Revolutionary Convention of 1776, and they tell us that that Con- vention was called when there was no law under which it could be called. It convened under the recommendations of Congress that where the Colonies had not a sufficient government to meet the exigencies of their affairs, that they meet in con- vention and "adopt such government as shall in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in par- DEBATES OE THE COXSIITUTIOXAL COXVEXTIOX OE VIEGIXIA. 3127 ticular, and America in general." Tito primary object of this ConTention, Mr. Jeffer- son tells us, was not to frame a Constitution, but to "call forth the powers of the State for the maintenance of the opposition to Great Britain. See Jefferson's Notes on Virginia. It had not the authority to enact a fundamental code, by any law or even by the wish of the people. It simply acted on its own authority and never deigned to take the sense of the people. But is ii not a little remarkable that from that time, 1776, down to the present, a period of one hundred and twenty-six years, not one other instance can be shown where a Constitution or any amendment thereto has ever been proclaimed in Virginia? I ignore the anomalous gatherings at Vheel- iag, W. Va., under the name of Constitutional Conventions during the period from 1S61 to 1864. Besides, they have no right to take as a precedent a revolutionary Con- vention to justify the actions of a Constitutional Convention. Jameson, in his work on Constituiional Conventions, gives as his reason for mak- ing such a wide distinction between revolutionary and Constitutional Conventions the following: If they are truly revolutionary bodies, they must be set down as such, in order that their action may not be drawn into precedent, as that of normal Constitutional Con- ventions. If, with reference to the Colonial establishments founded by the Crown, those conventions and the proceedings of those conventions were not revolutionary, then neither would similar conventions and proceedings, antagonistic to the now ex- isting order, be revolutionary, with respect to that order. And, Mr. President, of all the constitutional conventions held in the United States that have framed or revised the organic law, beginning with the first one, that of New Hampshire, in 1775, down to the present, one hundred and fifty-seven in num- ber, one hundred and thirteen have submitted the result of their labor to the people and forty-four have not. Now, let us analyze those fort^'-four. Among them are in- cluded such as were held during the Revolutionary period, extending from 1775 down to the establishment of the Federal Constitution in 17S9. These conventions were all revolutionary and they cannot be taken as a precedent for a Constitutional Conven- tion. During that period there were eleven such conventions held — ^namely, Delaware, Georgia. ^Maryland, New Jersey, New York, North Carolina, Pennsylvania, Virginia, New Hampshire, South Carolina, and Vermont. These should be deducted from the forty-four non-submitting conventions, leaving thirty-three. From this number we should subtract the secession conventions of South Carolina, Alabama, Arkansas, Florida, Kentucky, Louisiana, Mississippi, Missouri, and North Carolina, nine in all. These conventions were clearly of a revolutionary nature, called to overturn the ex- isting government, and they cannot, therefore, be classed as Constitutional Conven- tions. Taking these nine from the thirty-three would leave twenty-four. From this number we must take the four Reconstruction Conventions of Alabama, Florida, Mis- sissippi and South Carolina. These conventions were mostly called together under the President's proclamation. This will leave twenty. All of these conventions are in- cluded in the forty-four non-submitting conventions mentioned above. Lastly, take away the Convention held at "^Mieeling, W. Va., for the purpose of forming a new State, and we have left nineteen conventions that failed to submit their work to the people for ratification or rejection, during the history of our coun- try. Of that number only thirteen framed constitutions, the other six simply amended the existing ones. The conventions framing constitutions were those of Kentucky in 1792, Tennessee in 1796, Ohio in 1802. Louisiana in 1811, Indiana in 1816, Illinois in 1818, Alabama in 1819, Missouri in 1820, Arkansas in 1836, Florida in 1838, Mississippi in 1890, South Carolina in 1895, and Delaware in 1897. Those conventions that simply revised are Georgia in 1795, and again in 1798, Delaware in 1792, and again in 1S31, Kentucky in 1799, and New York in 1801. At the risk of prolixity I will ask a little closer examination of these nineteen conventions. Of the thirteen framing constitu- tions, all but the three recent ones of Mississippi, South Carolina, and Delaware, 3128 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. were framed to secure admission into the Union as States. They were either con- voked by the Territorial Legislatures or by direct act of Congress. Being Territories at the time the conventions met, they had no electorate to submit the constitution to, and if they had created such electorate, that very act itself would have been equival- ent to a proclamation as to that portion of it. That then leaves three revising con- ventions that have been called together in time of peace under an established gov- ernment or rather constitution, that have failed to submit their work to the people. Of these it is interesting to note that the State of Delaware has held five constitu- tional conventions, and has proclaimed all of them but one. That one, the one of 1853, submitted its work to the people, and they rejected it by a large majority. So it would seem that Delaware has no other alternative. I addressed a letter to the Attorney General of the State of Mississippi, asking whether the members of the Con- stitutional Convention in that State were under any obligations to submit the Consti- tution to the vote of th^ people, and received from him the following letter: In reply to your favor of the 5th instant, asking whether the members of the Con- stitutional Convention of 1890 were in any wise bound to submit their work to the people, or whether the act of the Legislature convening them required such sub- mission, I beg to say: The act providing for the Convention, chapter 35 of the laws of 1890, did not require the submission of the Constitution to a vote of the people for ratification or rejection, and a proposition to that effect introduced in the Convention itself was voted dov/n, and the Constitution put in force by the Convention. (Signed) MONROE McCLURY, Attorney General. I also wrote to the Attorney General of South Carolina, but received no reply. Of the conventions to amend, those of Georgia in 1795-1798, Delaware, 1792, Ken- tucky, 1799, were all properly convened as constitutional conventions, and they pro- claimed their work. But at that early day the law was not at all well settled as at present. The New York Convention of 1801 was properly called, but it simply framed five amendments to the existing Constitution, and then proclaimed them. The Dela- ware Constitutional Convention, 1792, however, was illegitimate, it having been called contrary to law; the Constitution provided that five parts in seven of the Assembly, and a like vote of seven of the nine members of the Legislative Council was neces- sary to call a convention to change the organic law, and a sufficient number were not had. See Jameson's Constitutional Conventions, sec. 225. Of the nineteen non- submitting conventions we have left of those that were regularly convened by orderly and lawful procedure, three of the framing and four of the amending conventions that failed to submit their work to the people. On the other hand, one hundred and thirteen have submitted their constitution to them. Even the much-abused Under- wood Constitution was not forced on the people — it was adopted by a popular vote. Now, Mr. President, I ask the friends of proclamation, if we are to govern our- selves by precedent, how can v/e do otherwise than to let the people pass upon the present work? Nov/, here is some more information for the precedent hunters. Since the Arkansas Constitution of 1836 to the present, a period of nearly sixty years, there appears to have been only three instances of constitutions put into effect without popular ratification. Those three are the ones mentioned above — Mississippi in 1890, South Carolina in 1895, and Delaware in 1897. The Florida Constitution of 1838, placed by Jameson among the unsubmitted constitutions, appears by Article XVII, Section 5, of the instrument itself, to have been submitted for popular ratification. Not to weary you with lengthy quotations, to show that it is almost the universal rule in the American States to submit changes in the organic law to the popular vote, I call your attention to the following authors, viz.: Jameson's Constitutional Conven- tions, Borgeaud's Adoption and Amendment of Constitutions, Oberholtzer's The Ref- erendum in America, Poore's Charters and Constitutions of America. All of these DEBATES OF THE COisTSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. 3129 take the position, to a greater or less extent, that unless the convention be one of a revolutionary nature, that the constitution framed by it should be submitted by the framers to the people for their ratification or rejection. Then where, forsooth, are the much talked of precedents, held up for us to follow. Surely in the past sixty years they should be able to cite us to a precedent worthy of our emulation. But what do we find? Mississippi, South Carolina, and Delaware. Would they have old Virginia, the mother of States and statesmen, to copy after this illustrious trio? Should the grand old mother go to these degenerate members of an exalted state- hood, to be taught lessons of justice and of right? God forbid. In this connection it is well to note that few conventions, called together in time of peace, have ever usurped the right of sovereignty without entailng trouble and discord upon the people they v/ere supposed to represent. A striking illustration of this is the Kansas Con- stitutional Convention of 1857, commonly known as the Lecompton Convention. This Convention v/as an attempt on the part of the pro-slavery population to force a Con- stitution upon the free State men without their consent. As a matter of course it resulted in a signal failure, but the agitation of the question was undoubtedly the precursor of the subsequent four years of civil strife. And it is ever thus. When the fundamental law is ignored dire results will surely follow. Without law we have anarchy and the natural concomitants of anarchy are discord, dissension and disin- tegration. Therefore, an existing lavvful government of the people cannot be altered or abolished, unless by their consent lav/fully obtained. And I could go on and name other instances similar to the Lecompton convention. In some conventions constitutions have been proclaimed by the framers thereof under authority from the people. When they were elected the people expressly conferred this power on them and under it they acted. Of course, this was perfectly legitimate. The people are supreme and they have just as much right to confer upon their representatives the right to proclaim their work as they have to adopt it when it is submitted to them. But they must first clothe the representative with this power. It cannot arise by Implication. The people cannot divest themselves of their inherent right of sovereignty, but they can delegate the exercise of it to their representatives whenever they may see fit. This, however, is equivalent to a ratification. It is like the example of a general agency mentioned above. The idea of sovereignty in a constitutional convention is repug- nant to all of our accepted ideas of government. Our idea of government implies accountability to the governed. Even in monarchial governments the fear of assassi- nation insures a certain degree of responsibility. A despotism is none the less such when dominated by fifty tyrants than when limited to one. And to contend that a Constitutional Convention is omnipotent is to contend that the people have either surrendered or have been dispossessed of their natural rights of sovereignty and that they are impotent to protect themselves against the aggressions of their self-constituted rulers. Clearly this cannot be true. Labinius tells us that at Athens, should a stranger dare venture into the Council, he was im- mediately put to death, because it was thought that he sought to usurp a portion of the sovereign rights of Athenian citizenship. The doctrine that the friends of proclamation will have to proceed upon to accomplish their object is, that might makes right. But this has long since been relegated to oblivion. It obtained with- primitive man and exists to-day in the brute creation, giving rise to the law of the surviva.l of the fittest, but since the organization of mankind into society it has ever been obsolete. We find, Mr. President, in examining the subject of constitutional development that the law of coherence and continuity has never been the field for any serious innovations. A state may secure a change in its organic law through the instru- mentality of revolutionary methods, but it invariably returns to the well-beaten track of constitutional revision by means of clearly defined rules of law and order. It is believed that no State of the American Union fails to make constitutional provision 197 — Const. Deb. 3130 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. for the final action of the people upon all questions of revision or amendment to their fundamental law. Professor Woodrow Wilson, in his work entitled "The Stat,e," says: In case a general revision of a State Constitution is sought to be effected, the Legislature is empowered to propose the calling of a popular convention, to be chosen specially for the purpose, the question whether or not such Convention shall be called must be submitted to the people; if they vote for its being summoned, it is elected by the usual suffrage; it meets and undertakes the revision, and then sub- mits the result of its labors to the popular vote, which may either accept their results or reject them, and fall back upon the old constitutional arrangemenit. Jameson on constitutional conventions, unquestionably the highest authority on all matters appertaining to such conventions, in discussing the two courses open to conventions in putting their work into effect, says: Of the two courses indicated, the first (proclamation) is wholly inadmissible in any case whatever, that alone excepted in which it should be adopted under the express authority of law. The reason is, that it would make of the Convention a sim- ple despot, and if despotic authority is desired, it would be far better to have the concentrated vigor of an absolute monarch, whose rule is commonly "tempered" if not otherwise, "by assassination," into a sort of practical responsibility to the people, or the temperate administration of a Legislature of two houses, in which passion and ambition would, by a system of checks be rendered least dangerous to the Common- wealth. The history of liberty has shown, that the most direct road to ruin of a free State is to make a single popular assembly the dissenser of its ordinary statute law. But to intrust sucli a body, without check, with the enactment of its fundamental law, would be but to discount the national life — to antedate their final overthrow, which history shows to be in store for all nations. Rather strong language, but exceptionally good authority. Those who desire to go further into detail in the matter will find some admirable discussions in the following, in addition to those just quoted: "The Rise of the Republic of the United States," by Frothingham; "History of the Origin, Formation, and Adoption of the Constitution of the United States," by Curtis; "Development of Constitutional Liberty in the English Colonies in America," by Scott; "The Critical Period of American History," by Fiske; Schouler's "History of the United States Under the Constitution"; Van Hoist's "The Constitutional and Politi- cal History of the United States," Mason's translation; Johnson's History of Ameri- can Politics"; Thomas H. Benton's "Thirty Years' Review"; "The Theory of Our National Existence," by J. C. Hurd; "The Federalist"; Story's Com-mentaries on the Constitution"; De Tocqueville's "Democracy in America"; "The American Common- wealth," by James Bryce. Also the following adjudicated cases: Parkei* vs. Commonwealth, 6 Barr, 509; Wells vs. Bain, 15 American State Re- ports, 562; Kamper vs. Hawkins, 1 Virginia Cases, 28; Manly vs. State, 7 Maryland, 135; Brittle vs. People, 2 Nebraska, 198; Luther vs. Borden, 7 Howard (U. S.) 1; In re Deckert, 2 Hughes, 183; Schall vs. Bowman, 62 Illinois, 321; State vs. Morgan City, 32 Lawyers' Reports Annotated, 81. These citations, Mr. President, might be indefinitely multiplied, for this principle is as true in the law as any physical fact in the exact sciences. I must not overlook calling your attention to the two able articles, written by our distinguished young member from Augusta, Mr. Braxton, in Vol. 7 of the Virginia Law Register, in which he proves conclusively to my mind the necessity of a submission to the people of the fruits of our labor, in the present instance. The argument that the new instrument Vv^ill meet the wants of the people and relieve their troubles is not sufficient. While it may be very commendable as an act of political philanthrophy, still the people have a right to determine whether they will be the object of it or not. Let me illustrate. My neighbor, whom I love, is pros- trated on a bed of sickness, where he languishes unable to obtain relief. I have com- passion on him and seek a remedy to effect his cure. I believe that I have discovered that remedy and go to him with it. Now, if he agrees to take my medicine and by DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE VIEGIXIA. 3131 it is relieved or cured, then we are the subjects for mutual felicitation. I have gained his consent to prescribe for him and have effected his cure. But, on the other hand, when I go to him should he say to me, "Your good offices are appreciated, but I don't care to take your medicine," then I must stop. I certainly have no right to force him to take it, and if he sees fit to throw away a remedy that will relieve his pain no one has the right to prevent him. Exactly the same rule applies to us. The new instru- ment may be the acme of perfection, yet if the people do not wish it the same can- not be forced upon them without their consent. Should you undertake it in this State the much-talked-of "water cure" by the American army in the Philippines will sink into insignificance. The above argument and authorities cited apply to those cases where constitutional conventions are called together and nothing is said as to how the instrument should be put into operation. But in the present instance we have additional reasons for allowing the people to pass finally upon it. The act of the Legislature, at its extra session of 1901, approved February 16, 1901, provided, among other things, first in its title — An act to provide for the selection of delegates to the Constitutional Convention, for the convening of said delegates, the organization of the said convention and for the submitting of the revised and amended Constitution to the people of the State of Virginia for ratification or rejection. This act provided for the districts, the number of delegates, their per diem, method of voting and time for voting for such members, mode of publication, etc. It also provided in Section 12: If said Convention shall agree upon a revised and amended Constitution on or before the 5th day of October, 1901, the said revised and amended Constitution shall be submitted to the qualified voters of the Commonwealth as a whole, or by separate articles or sections, as the Convention may determine, for ratification or rejection, at the general election, to be held on the o'th day of November, 1901. Section 17 further provided: But if said Convention shall not propose a revised and amended Constitution on or before the 5th day of October, 1901. it shall remain for the next General Assem- bly to enact such measures as it may deem proper for submitting the said revised and amended Constitution to the people of this Comjnonwealth for ratification or rejection. I am familiar with the argument of gentlemen on the other side that the Legisla- ture does not possess the power to bind a Constitutional Convention. I answer that argument and say that in this case that the Constitutional Convention has never possessed the power to proclaim the Constitution and that the Legislature was simply defining the course for the Convention in a matter that said Convention could not have done for himself. For example, the Convention could not provide for the number of members or the districts from vv^hich they should come, because it did not then exist. Nor could it have provided for the time of convening. It did not have the power to do these things. Neither did it nor does it have the power to proclaim its work. Therefore, the Legislature did not undertake to bind the Convention by the Act of February 16, 1901; it was simply performing a necessary ministerial function for the Convention and the Convention must follow these lines as defined by the Legislature and accepted by the people. This is not a novel question by any means. We find it ably discussed by Judge Jameson in his Constitutional Conventions, Section 414, as follows : As a practical question, the right of a Legislature to require a Convention to submit its recommendations to a vote bt the people has been several times discussed aDd intimations have been thrown out that the latter body might disregard the re- 3132 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIEGINIA. quirement, but no attemiDt lias ever been made, so far as I am aware, to carry that supposed right into effect. In the Illinois conventions of 1847 and 1862, it was con- tended by a few members that the Convention was, for the purposes for which it was assembled, sovereign, and that, although an act of legislation was doubtless needful to bring the body into existence, yet, when once born, its sovereignty at- tached, and it could disregard all the provisions of the act at its pleasure. Hence it was concluded, that those bodies might or might not submit the result of their labors to the people, notwithstanding the positive injunctions of the Legislature, as their own viev^^s of expediency should dictate. In reply to these arguments, I do not deem it necessary to adduce any considerations other than those so often urged in preceding pages, to refute their fundamental principle — that of conventional sov- ereignty. Those arguments seem to have had little effect upon either of the bodies to which they were addressed, and possibly were propounded merely to pave the way for certain aberrations in the mode of submission to the people, which will be here- after discussed; for the constitutions framed by those conventions were each sub- mitted to the people in substantial compliance with the acts under which they were assembled, except a few sections, which, for special reasons, and contrary to the spirit, if not to the letter, of those acts, were withheld from submission, or submitted in an unusual and exceptional manner. So, Mr. President, we again come back to the question of sovereignty in the Con- vention. If we possess it we are not bound by the act of the Virginia Legislature of February 16, 1901; if we do not possess it, then most certainly are we bound. And according to nearly all of the text-v/riters and most of the decisions of the courts, we do not possess the required sovereignty. John Randolph, in the Virginia Constitutional Convention of 1829, likened the Convention to "a State physician, to propose remedies for the State's diseases." Of course it rests with the patient whether the remedy shall be taken or not. The Legislature selected the physicians to heal the diseases of the body politic, the physicians select the remedy, but the patient, that is the people, must decide as to the advisability of its taking. The people undoubtedly had in mind the provisions of this act when they voted for the members of the Convention. They thought they were to receive the same per diem as members of the General Assembly; they were to meet on the 12th day of June of that year; that the districts to furnish delegates were to conform to those of the House of Delegates and lastly that they were to vote on the result of the work of the Convention when that body should complete its duties. It is rather late in the day to say to them now that the Legislature had no power to prescribe conditions for the regulation of the Convention. It should have been said at such time to give the people an opportunity to act with that understanding before them. And had it been said at that time, the Virginia Constitutional Convention of 1901, instead of a reality, would have remained the same political ignis fatuus as of old and theorizing politicians would have been forced to seek a betterment of conditions in the enforcement and not in the change of the existing organic law. Mr. President, we are making history. Can we afford to establish as a precedent in this State the sovereignty of Constitutional Convention? Think of the consequences, perhaps inimical to our dearest rights. I had rather old Virginia should shine an untarnished jewel in liberty's crown than that she should blaze in dazzling magnificence in the diadem of despotism and oppression. I had rather that her government be characterized by its justice and equality than that she should revel in opulence and ease. I had rather that she bequeath to posterity a legacy of freedom and independence than a gift of riches and power. Remove not the ancient landmarks thy fathers have set up in the land. The next question, Mr. President, is, " if YTIA. and whether it may he exercised to abolish a convention already in session, by re- pealing the act calling it and ordering the members of the Convention to disperse, is one that has never arisen practically, and upon which, therefore, it may be useless to speculate. Now, if the Convention refuses to comply with the act of February 16, 1901, why could not the next Legislature repeal such act, it never having been complied with, and thereby put an end to this high-handed attempt to ride rough-shod over the con- stitutional rights of the people? I do not believe that a Constitution proclaimed under such circumstances will have any binding effect I do not believe the people will be required to submit to it, and I do not believe that it will be sustained when fairly tested before the proper tribunal, I do not believe the members of the Convention will be entitled to retain the per diem that they received as a compensation for per- forming their duties, as prescribed by law. The Legislature defined the work for them to do; that is, to meet on the 12th day of June, 1901, to revise and amend the exist- ing Constitution, and when so revised and amended to submit the same to the people for their ratification or rejection, and until they do this they have not complied with the law and they are not entitled to the remuneration which that law provides, and if they do not comply with the law I believe a right of action will accrue to the Commonwealth of Virginia, to demand and recover from each member of this Con- vention every single dollar that he has so unlawfully received. In that event, instead of crowned heads and sceptred hands, we would present the pitiful spectacle of a vain and abortive attempt to infringe the people's dearest rights, and would go down to posterity as an example to deter other constitution- makers from such unwarrantable violations of the organic law. The conditions that confronted Virginia when Patrick Henry gave utterance to his immortal alternative of "liberty or death" were caused from a desire to shake off the galling chains of tyrannical oppression. But to-day, surrounded by the civiliza- tion and experience of more than one hundred years since that eventful period, we are confronted by conditions that give rise to an alternative almost as bad. Shall V7e have constitutional liberty or shall we have political death. Proclaim this in- strument and in the language of Mr. Justice Wilson, in Chisholm vs. Georgia: What then, or where, a/e the people? Nothing; nov\^here: They are not so much as even the baseless fabric of a vision. From legal contemplation they totally dis- appear. But, Mr. President, this can never be. The people demand and will have absolute security in their jural and forensic rights. It needs no Constitution to insure to them the right to govern themselves. It is found in the lex non scripta of the Anglo-Saxon race. It had its origin at Runnymede, where more than 800 years ago, the feudal bar- ons extorted from King John the provisions of Magna Charta. It was brought by the Pilgrims as an exotic when they sought more congenial climes for its transplanta- tion, and it prospered and flourished until now it is regarded as an indigenous growth. With it our forefathers kindled the fires of liberty in the Western World. It per- meates our i?nstitutions; it characterizes our national life, founded on justice, like immortality, "shall flourish in immortal youth, unhurt amidst the war of elements, the wreck of matter, and the crash of worlds." Mr. President, the world's history is replete with examples of republics that have waxed and waned. From the days of the Amphictyonic Councils to the present, none have been able to withstand the disintegrating influences, caused by a usurpation of the people's rights. Rome, Greece, Sparta, Venice, and the rest have gone. Like meteors, they flashed for a moment across the political horizon and then disappeared forever. Standing on the lofty tower of civilization we can look across the tempestuous waters of time and see the wrecks of ages and of empires. The Eternal City, who DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF YiRGIXIA. 3139 from her seven hills waived her sceptre over the subjugated nations of earth, has been torn asunder by faction, and where once Virgil turned his lyre to sing Aeneas's fame, to-day the rude shout of the Italian rabble awake the echoes in the morning sun. And behold lovely Greece, who stood like a beacon light amid the gloom and superstition and ignorance. The night bird keeps vigil over the melancholy ruins of her former grandeur, and the wild beast roams unheeded where once her refulgent lamps of learning illuminated the world. And so with all. Their bones lie whitening in obliv- ion's sepulchre, their pristine glory has vanished av/ay. History, with a fanciful hand, has written their epitaphs in indelible characters and posterity wonders at their pre- mature decay. Mr. President, v/e have reached the parting of the roads, but experience, that uner- ring teacher, has erected a signboard for our guidance so that we need not go astray. On the one side is written, "The Road of Power," on the other, "The Road of Right." One is the straight and narrow path of duty that leads upward to that high plain of governmental perfection to which all nations aspire. The other is the broad road of usurpation. It winds along the precipice of despotism and finally disappears in the swamps of tyranny and oppression. Mr. President, I love old Virginia. I love her for what she has been, I love her for what she is. Her people are my people, her govern- ment is my own. I long to see her shake off the lethargy of reminiscence in which she has been enwrapped for so long, and, rejuvenated and refreshed, take her place in the vanguard of civilization, and reform. But I cannot see her committed to this measure vs^ithout sorrow and regret. If you will submit to the people of this Commonv/ealth the question as to whether this new organic law shall be voted upon or proclaimed and a majority of the quali- fied voters give their assent thereto, then and not until then will I agree to such a proclamation. (Applause.) Mr. Wise: Mr. President, I v/ould like to state that I have just handed to the reporter my remarks on the suffrage question, which the Convention has already given me permission to have printed. The Presiding Officer: The Chair understands that the permission of the Con- vention has already been given to members to print their remarks on the suffrage question in the record. The remarks of the gentleman from Richmond city (Mr. Wise) on suffrage are as follows: Mr. Wise: Mr. President, it is with unfeigned diffidence that I trespass upon the attention and patience of the Convention, but find suffi-cient excuse for so doing in the importance of the subject. The elective franchise is the question in v/hich the people of Virginia are more deeply interested than in any other, and upon its proper solution depend largely the welfare and prosperity of the State. As our work here v/ill receive the closest scrutiny, not only of our own constitu- ents, but of the citizens of all the States of our Union, it behooves that we should act with great circumspection and deliberation. In the discussion of this paramount question, let us endeavor to divest ourselves of all unworthy prejudices and partisan feelings, and strive to reach such conclusions as are in conformity to the rules of right in principle and practice. Men misled by prejudice and passion, may be honest, but are not generally wise in counsel or prudent in action. In the performance of the important duty and sacred trust devolved upon us, we should be inspired only by a desire to establish the happi- ness and advance the interests of all the people of Virginia; to perpetuate their rights and liberties; to guard our institutions from danger, and to transmit the bless- ings of good government to our children. . . The theory of our political system is, that the people are sovereign, and that they are the source of all legitimate authority. In the Bill of Rights, drawn by George 3140 DEBATES OE THE CONSTITUTIONAL CONVENTION OF VIEGINIA. Mason in 1776, and which was appended to the first Constitution of Virginia, this doc- trine was proclaimed in these words: That all power is vested in, and consequently derived from, the people; that mag- istrates are their trustees and servants, and at all times amenable to them. In this basic principle is the distinctive and vital characteristic of our American governmental institutions. In no part of our wide domain have the people been more earnest and emphatic in the assertion of this theory, or more active in its de- fence, than those of Virginia. But in all of the State constitutions, at the time of and subsequent to the Revolution, restrictions upon suffrage existed, and they still exist, al- though greatly changed and modified. In every State some have always been excluded from participation in the government. The political maxim, that government rests upon the consent of the governed, has always in practice been subject to many excep- tions. In each of the States, the electors constitute only a limited number of its in- habitants. By the organic law, they are made the governing class, and sovereignty iF practically vested in them. When we speak of the people, all persons are intended to be included, women as well as men, minors as well as adults. There are more females than males in this State, more persons under than over the age of 21 years. They are as deeply interested in this government as we are, and many of them own property and pay taxes. They are all our constituents, and as much entitled to the broad segis of protection, as are those who have been, or shall be, designated to select whomsoever they please to rule over and shape the destinies of the Commonwealth, within the limitations of the organic law. They are all covered by the bill of rights^ in the enjoyment of life, liberty and property, and yet they are voiceless, powerless, and defenceless. Their interests are involved in the regulation of suffrage, and the maintenance of the purity of the ballot-box. It thus appears that a large number of persons are subject to laws, in the enactment of which they have no voice; that a very large majority of the people of this and the other States have never been clothed with the power of the ballot. Some are excluded from the privilege because they lack the liberty of action essential to its exercise, others because lacking in intelli- gence and virtue. The principle of restrictions upon suffrage is not new, and was recognized as proper and necessary from the very inception of constitutional government in America. The right to vote is a derivative or conventional, and not a natural right; strictly speaking it should be designated a privilege or trust. When we come to determine who shall have political power over himself and others, the safety of the State and the general welfare must be considered. It is undeniable that those, who are en- trusted with the power to make, interpret and execute the laws, ought to be placed under salutary restraints and be made amenable^to the people. Men are so constituted, that self-interest or ambition will prompt them to use authority for their own ag- grandizeme-nt, and to disregard and trample upon the rights and interests of others. Experience has shown that when the rulers are without a sense of accountability to some power in the State, the tendency is towards aggression and usurpation. With whatever care their powers and duties may be limited and defined, it is certain that abuses will sometimes arise and wrongs be committed. The only corrective of such evils in administration can, in my opinion, be found in the establishment of an intelli- gent and virtuous electorate; and in that is the best guarantee of a stable and con- servative government. "The responsibility of the rulers to the ruled, through the right of suffrage, is the indispensable and primary principle in the foundation of a constitutional government." But this is not to be understood as an endorsement of the doctrine of universal suffrage. I believe that the admission of that principle into our institutions would prove alike dangerous to all regular government, and destructive of popular rights. Its condemnation is sanctioned both by reason and experience, and such perilous experiments ought to be avofded especially in view of existing conditions. DEBATES OE THE COXSTITUTIOXAL COXTEXTIOX OE VIEGIXIA. 3141 \Miile the elective franchise is essential to make the rulers sensible of their re- sponsibility to the people, to restrain them from oppression, and to make them faithful and efficient in the discharge of their duties. I cannot give my assent to the proposi- tion that all the citizens of a State ought to participate in their selection. Suffrage is a great and controlling poTver for good, vrhen exercised by intelligent citizens; it is a dangerous power, in the hands of the ignorant, the depraved and the vicious. The vords of that noble and gifted Virginian, who was descended from a long line of illustrious ancestors, and who was worthy of his high lineage (I refer to Hon. Jchn Randolph Tucker), are so appropriate that I will take the liberty to insert them here: Yv^ho shall have man-right is a question settled by the divine title; but who shall have political power over himself and others must be a matter of agreement and con- vention. The question is whether the man is fitted by intelligence to perform the function, for if not, he cannot claim to have the right to do it, the second, has he such interests in the matters ccntrolled through his suffrage as to check the misuse of power which self-interest always prompts? If he lacks intelligence, it is the greatest absurdity to give him suffrage, and the greatest wrong to the community. If he lacks 'Community of interest in the laws which are to govern the community, it is not only a serious danger, but a false principle to give it to him, for thus you give power to thp hand which is alien to the right of others which it controls. Right and its power of self-defence should co-exist, unless its power through ignorance or want of inter- est would be impotent for self-defence and potent for self-destruction, and the ruin of society. I assume that it will be conceded by all thoughtful men, who have studied the luestion, that the right of suffrage should be both properly limited and safely guarded; that in conferring it, the interests of the whole community ought to be considered, ra.ther than those of individuals. The strictest professors of reason have added the sanction of their testimony to the necessity for the exercise of this caution. I submit that it should only be conferred upon those who have a proper appreciation of their own rights, and of the interests of the community, and who duly appreciate the mo- tives and conduct of the rulers. If an efficient educational qualification can be de- vised, without opening wide the door for the admission of frauds, I will give it my most hearty support. The only objection to such a test lies in the difficulty of its ap- plication in practice. It is hard to so fix the qualifications as to conserve the best . interests of the State and at the same time to avoid injustice to some, and the task becomes more arduous when we attempt to enact such administrative provisions, as will wholly exclude fraud and corruption. Permit me, Mr. President, to pause right here to impress upon this Convention and upon all our constituents, the truth that safety lies in, ana progress must come from, the education and elevation of all the peuyic, white and black. I commend to your serious consideration these words written by a distinguished southern student, Professor Dabney: If the people of the South would compete in production with those of other States and of the -^orld — and they must do so whether they will or not — they must educate all their children, not only their white children, but their black, and they must educate them all. not poorly for a few months in the year, and a few years In their lives, but « thoroughly through a long series of years. If history teaches anything it is the solidar- ity of all mankind, that "no man liveth unto himself." and "no man dieth unto himself," but that each is his brother's keeper. 'Mr. President, history teaches no fact more clearly and distinctly than this, that the productivity, or wealth producing power of a State is dependent upon the educa- tion and training of its people. It is' easier and better to eliminate illiteracy, than it is to formulate just rules for disfranchisement; and we must concede that there is profound wisdom in the declaration of James Russell Lowell that "it is cheaper in 3142 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. the long run to lift men up than to hold them down, and that the ballot in their hands is less dangerous to society than a sense of wrong in their heads." As to the kind and character of education to be provided, that is a subject for the considera- tion of the Legislative Department, and not of .the Convention. With an electoral sys- tem based upon intelligence, supplemented by proper provisions for education, there will be no cause for tear. In the elevation of the standard of citizenship is the safety of the State. He commits a serious error, in my opinion, who endeavors to formulate general fundamental principles concerning the elective franchise, to be applicable to all communities, without regard to circumstances and conditions. Such rules and regulations as might be proper for one community, would be altogether unsuited to another. Restraints and restrictions, which might be necessary in one State, would in another produce the spirit of discontent and cause disorders. The men who pro- claimed the immortal principles contained in the Bill of Rights, in resistance to British tyranny and usurpation, placed therein a safe and wise rule for our guidance. They declared ''that all elections ought to be free; and that all men, having sufli- cient evidence of permanent common interest with, and attachment to, the com- munity, have tne right of suffrage, and cannot be taxed or deprived of their property for public uses, without their own consent, or that of their representatives so elected, nor bound by any law to which they have not, in like manner, assented, for the public good." That doctrine, announced amidst the thunders of the revolution, was hailed with the shouts and plaudits of freemen all over our glorious republic, and has remained ever since a cardinal maxim in our political system. The path to the ballot-box should ever be kept open, and that receptacle of the sovereign will should be guarded from corruption and fraud as we guard our lives and sacred honor. Our fathers held, that the protection of life, liberty and property is the chief object to be accomplished by the establishment of government, and that suffrage is the indispensable privilege to be imbedded in its foundation, but when they came to fix the rule they held that the electorate ought to be composed only of land-owners. Those who pay tte taxes cer- tainly ought to have a voice in laying them. It will not be denied, that in the acqui- sition of property, there is not only evidence of community of interest in the affairs of the State, but of intelligence, thrift, and frugality. It gives assurance not only of attachment to the community, but of conservative action. Representation and taxa- tion should stand together, and not be divorced. The principle enunciated in the Bill of Rights, is sound, and in consonance with reason, but in its practical application the fathers were too narrow and contracted. For more than seventy years we lived, flourished, and expanded under a Consti- tution containing a property qualification, but those who were excluded were restless, and never ceased to utter their dissatisfaction with the condition in which they were placed. They claimed that in their exclusion an unjust and an unnecessary stigma had been put upon them. Then new leaders of the people stepped upon the stage of action, brave and brilliant as the men of yore. They contended that the rights of persons are as sacred as those of property; that liberty is more precious than gold, and demanded that the dollar should not be accounted as of greater value than the man. The people gathered with enthusiasm to their standard, and the conservat- ism of the past perished under the blows of progressive Democracy. It must be conceded that there was force and wisdom in the demand for an en- largement of the basis of suffrage, and it is certain that the men, who accomplished it, v/ere sustained in their course by the sentiments of a large majority of the people. But it must not be forgotten that the changes proposed by them were made applicable to white men, many of whom were the descendants^^of those, who were the founders of our republican institutions. The privilege conferred was to be enjoyed alone by the Caucasian race, which had furnished indubitable proof of its predominance, and of its DEBATES OF THE COXSTITUTIOXAL CONVEXTIOX OE VIKGIXIA. 3143 ability to maintain and enjoy civil and political liberty. All of the inhabitants of the State, who were considered in the regulation of suffrage, were of one homogeneous race, and the dangers which now confront us were not then apparent. From 1776 to 1850 the contest was maintained, always with vigor, and at times with bitterness, for the extension of the elective franchise to all white male citizens of the Ccmmonv/ealth, above the age of twenty-one years, who were not paupers, and who had not been convicted of bribery in an election, or of any infamous offence. The long struggle culminated in complete victory for the advocates of the liberal policy, and thus the murmurs of discontent heard in certain sections of our State were hushed, the bonds of amity were strengthened and tranquility assured. Whether or not we are prepared to endorse as wise and wholesome the changes then made in the organic law, no evil consequences appeared, and the administration of public affairs proceeded without friction and without disorders. Then came the Civil War, which drenched our land with fraternal blood, and en- veloped our homes in consuming flames. The dark and angry v^aves of the fearful strife swept over us, and we heard the cry of Miserere uttered by the lips of wounded heroes stretched upon every bloody field. "The fruits of industry perished on the spot v/here they were produced, or were consumed by the foe"; and there was not a roe left in the wilderness to tefl where the garden had been. Amid the thunders and smoke of artillery, and the clash of arms there came the dawn of the day of freedom for the slave. The President proclaimed his emancipa- tion, and the result of the war was its accomplishment. Mr. President, I do not allude to that gigantic conflict, which shook this continent from centre to circumference, and upon which the nations gazed in awe and with trembling, with any purpose to invite criminations and recriminations — "Let the dead past bury its dead." I rejoice that — Now is the winter our discontent Made glorious Summer; And all the clouds that lour'd upon our house In the deep bosom of the ocean buried. And discord, disunion and faction in the deep bosom of the ocean buried. I allude to it only to bring us, in the sequence of events, to the contemplation of the present situation. The former slave became a freeman, as I have said. His emancipation was a blessing, no less to his master than to him, but who will deny that a great mistake was committed in conferring upon him the right to suffrage, as it was done? Mr. President, I cannot think that the expression will be considered too harsh if I characterize the act as an outrage. We make no complaint against the enactment of the Thirteenth Amendment to the Constitution, by which it was provided that "neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." We will go farther and say that it was right to prohibit slavery and all classes of involuntary servitude not imposed as a punishment — neither is there any ground for complaint against that clause in the Fourteenth Amendment, wherein it is de- clared that "no State shall deprive any person of life, liberty or property without due process of law, nor deny unto any person within its jurisdiction the equal protection of the laws." We may even admit that there was necessity for placing in the funda- mental law the provision quoted. R was just to protect the emancipated slave in his rights as a free man. But we must denounce as an outrage, without a parallel in the political history of our country, except that committed in the dismemberment of Vir- ginia, the Fourteenth and Fifteenth Amendments, so far as they operated in conjunc- tion with acts of Congress, to enfranchise the whole negro race. They were without 3144 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIEGINIA. education, without the requisite intelligence, and unfitted by training and experience for the exercise of that function. They were unable to govern themselves wisely and well, and hence ought not to have been clothed v/ith the power to govern others, es- pecially the superior race. In all the Southern States they constitute a large propor- tion of the population, and in some of them the numerical majority. Mr. Tucker, in his work on the "Constitution," in speaking of the exercise of political power by diverse peoples, says: If the external civil power must limit the liberty of a savage to conserve social order, for a stronger reason the Constitution of a people should abridge the power of such savage in the exercise of political functions. If he cannot control himself, and therefore, must be controlled by others, why should he have equal power to govern the State with those Vv^ho have perfect power of self-control? It may be safe to give suffrage to a perfectly moral man when it would be wholly wrong to give it to a savage in ignorance or a savage in brutality. The attempt to make tv/o such essentially distinct and different races equal in the government was certain to be followed by such consequences as v*^e have witnessed. The elective franchise ought to be under the complete control of the people of each State, to be so adjusted as to suit the varying conditions. The founders of the Re- public displayed the highest wisdom in leaving that question to their management. In taking from the States absolute power over that subject, their strength and dignity were impaired, and in forcing upon them ignorant and, in many instances, vicious suf- fragists, disorders, collisions, and at times even violence, were inevitable. "In the safety of the States is the safety of the Union." In their preservation in all their original strength and vigor is the glory of the unity. In thus speaking of the action of the government in conferring suffrage upon the negro, I do not wish to be undersood as entertaining unfriendly feelings and sentiments towards that race. T think that they ought to be the objects of the most humane consideration; that our treatment of them ought not only to be fair but generous. In view of the constitutional provision that there shall be no discrimination in the rule of suffrage on account of race, color or previous condition of servitude, I favor only the exclusion of those vv^ho are ignorant and debased, and who are without a proper appreciation of the duties and responsibilities of citizenship, and disposi- tion to perform them conscientiously. I am actuated only by a regard for the best interests of our State, rather than for those of individuals; by a desire to preserve public order, and perpetuate the protection of individual rights. I recognize it as a sacred duty resting upon the superior race to lead him to a higher civilization, and t-^ bestow such benefits that will make him a ~goo6. and useful citizen. I have no fear of negro domination; that is impossible anywhere in the South. The Caucasian, v/hen brought into contact with any of the inferior races, always has ruled, and always will. Let us exhibit our superiority in the development of our intellectual and moral faculties, and in the cultivation of tl^e graces and virtues v/hich marked the perfect man. In our conduct towards the negro there is no occasion for the display of hate or prejudice; for the practice of injustice and oppression. Both duty and policy prompt us to do all in our power to elevate him, and teach him that license is not liberty, and that freedom is not secure unless regulated by law. There are two erroneous opinions entertained by a large number of the members of this Convention. One is, that we can exclude from the right of suffrage all the negroes, or a majority of them, without at the same time disfranchising some white men; the other is — and I think this the most important — that the negro problem — mark my words — that the negro problem will be settled when we have reached a satisfac- tory solution of the suffrage question. As to the first — the disfranchisement of all or a majority of the negroes, without including some white men in the exclusion from the privilege of suffrage — that can- not be accomplished, in my humble opinion, without a violation of the Fifteenth Amendment to the United States Constitution. DEBATES OF THE CONSTITUTIONAL CONVENTION- OF VIRGINIA. 3145 We may denounce it as we will. I have already denounced it. It was obtained by fraud. I could utter no words of denunciation against it and the reconstruction acts of Congress more bitter than those uttered by an eloquent and able gentleman, who bore upon his person many wounds received in defence of the flag and the Union. I refer to General Francis P. Blair, who served during the Civil War with great dis- tinction m the Union army. The Senate having under consideration the joint resolution of the Legislature of Indiana withdrawing its assent to the ratification of the Fifteenth Article of Amend- ment to the Constitution, he said, in reply to the senator from that State (Mr. Mor- ton) that — The two senators who sat here, from my own State, neither of whom sit here now, voted for this amendment after the people of Missouri, in the election immediately preceding, had voted down negro suffrage by thirty thousand majority, and the Legis- lature elected by that very vote ratified the amendment, in defiance of this over- Vvhelming expression of public sentiment. A similar state of facts occurred in Kansas, where, in the election preceding, negro suffrage had been defeated by fiftteen thousand majority. In the State of Ohio the ma- jority against negro suffrage was fifty thousand, and yet her Republican senators and representatives and her Republican Legislature promptly disregarded the public will by proposing and ratifying this amendment. In the State of Michigan the people refused to give suffrage to the negroes by a majority of thirty-four thousand. Her senators and representatives were equally re- gardless of the wishes of their people and hastened to fasten upon them an organic law for which they had proclaimed their detestation. I could go on and enumerate many more of the Northern States in which the people had expressed their will with equal emphasis, and were treated with equal contempt by their Republican senators and representatives. Among the number were the States of New York, Connecticut and New Jersey; and indeed, I think that none of the Northern States can be ex- cepted — not one. * * * If adopted at all, we have seen that it was adopted against the remonstrance of all the people of the North, and simply by coercion in the States of the South; and yet that amendment is now to be considered as one of those sacred things upon which no man must lay his hands. And in speaking of the reconstruction acts of Congress, he said: You can hardly put your hand on a single sentence of these abominations — mark the word — these abominations — without encountering some violation of the Constitu- tion, in its letter or principle, of the United States; and the difficulty is to find any one of its articles which they do not violate. These gentlemen themselves knew these acts to be in violation of the Constitution. I do not hesitate to say that the conduct of Congress betrayed their own knowledge of the fact that they were violating the Constitution. I have thus briefly called attention to the Fifteenth Amendment, and recited some 'historical facts in connection with its adoption as a part of the Constitution. The truth should be known, and these facts be kept fresh in the memories of our people. While I admit, that in the discussion of this question it is to be accepted as a part of the organic law of the Republic, I am free to make the confession that it is not regarded by me with any feeling of reverence. In considering the question who shall vote, we are forbidden by that amendment to discriminate on account of race, color or previous condition of servitude. It must be observed and obeyed, as our acts may be reviewed by the courts. There is no rule, as I have already said — no rule of which I have any knowledge — by which all the negroes, or a majority of them, can be disqualified, w^hile all the whites are permitted to vote, without coming in conflict with that Fifteenth Amendment. The second error into which many have fallen, is, that the negro problem will be settled when we have reached a satisfactory solution of the suffrage question. There are here in our midst two essentially distinct races, differing in color, physical 198 — Const. Deb. 3146 DEBATES OF THE CONSTITUTIOJ^AL CONVENTION OF VIRGINIA. conformation, characteristics, habits, disposition, aspirations and tendencies. The honorable and eloquent gentleman from Norfolk, who opened the discussion upon this question, told you, and he told you truly, that two such essentially distinct races can- not exist together in peace and happiness, in the enjoyment of equal civil and political rights. I not only endorse what he said, but go further. They cannot stay together at all. It is useless to speak upon that subject to-night. It is no part of our business to settle the problem, but as sure as there is a God in heaven the African will have to go. The law of the survival of the fittest will prevail, and when the competition shall become fierce and sharp, the white man will not only rule, but wril drive out the inferior race. That must be and will be the inevitable result. Race prejudices always have and always will exist. Between the old time negro and the white man there existed not only the feeling of friendship, but of love. When he shall have dis- appeared, then collisions and disorders will be more frequent and violent. Now, gentlemen, to show you that I am not uttering new sentiments, permit me to read to you the words of one of the most gifted Republicans in America — a man whose fame has spread not only throughout our own country, but the world — vigorous in his prejudices, strong in his denunciations. The man whose words I am going to read to you was foremost among those who fastened upon the people of the South the Fourteenth and Fifteenth Amendments, and all the reconstruction acts of Con- gress. I allude to the Hon. George E. Edmunds, who recently represented the State of Vermont in the Senate of the United States. He said: I doubt whether the people of Massachusetts, whom you, Mr. President (Mr. Dawes in the chair), and your colleague so honorably represent, would desire that im- migration of the people of Africa to that great and noble old Commonwealth should be encouraged. The people of Massachusetts — I speak of them ab extra, although as a senator of the United States I ha:ve a right to speak of them, if not for them — I do not think would be hungry for an irruption of a million of the inhabitants of the continent of Africa to-day. or to-morrow, or next year, not because th'e people of Mas- sachusetts have any hostility to the African; not because they do not desire his devel- opment, his growth, his education, every amelioration that may belong to him, but because they believe by instinct or by education that it is not good for two races to be brought into that kind of contact in that place. Perhaps, I overstate it; perhaps my honorable friend from Massachusetts, speak- ing for that great Commonwealth, will say that after providing for the war premium men, the one thing v^hich the people of Massachusetts are hungering for, is a very large African immigration. I do not think that can be so. Speaking in part for the people of Vermont, I am sure it is not so as to them. It is not based, I repeat, on any hostility to the African; it is not based on any want of good will to the African. It is based upon belief that nations and races, as they have been constituted by the God of Nature and by political and geogranhical divisions and arrangements, get on better as separate families, with their separate independence and their separate in- stitutions, than they do am.algamated together, unless their origin, their race, their tendency, their nature, is such, that being together, they assimilate and become one perfect, homogeneous and prosperous mass. I do not need to call the attention of senators to that fundamental principle of domestic government, that in order to success, that just success which produces hap- piness to its people, no republic can succeed that has not a homogeneous population. That was what was for so long a time the curse of our Southern sister States. It was the want of homogeneity that they thought v/as mitigated and helped out by the fact that the different races occupied different positions, one dominant, and the other servile. It did not accomplish it then, as they will all tell you now, Mr. President, and the one great evil there now is, not that the white man is better than the black man, or the black man better than or equal to the white man, but it is that there has not yet been time enough, if ever there may be, that in the real and best sense of a homogeneous order in a republic, these two peonies can assimilate and coalesce so as to make such a democratic state as I am speaking of. All this, Mr. President, is fundamental in the long reaches of historic observation everywhere. My learned friends from Massachusetts may begin with Aristotle and come down to Webster, and they will find everywhere over that long reach of human experience, that the fundamental idea of a prosperous republic must be the homo- geneity of its people. DEBATES OF THE COXSTITUTIOXAL COXVEXTION OF VIEGIXIA. 3147 Yes! there has not yet been time enough, and there never will he, when these two peoples can assimilate and coalesce, so as to make such a democratic state as the gifted senator was speaking of. Such a consummation is impossible. He cannot fi.nd in the long reaches of human experience everywhere any justification for the expectation, if he entertains it, that such a wild dream will ever be realized. These two races will remain distinct, as they have been constituted by the God of Nature, and will not become one perfect, homogeneous and prosperous mass. No republic can succeed, no State can be prosperous and happy, with two such essentially distinct races, in the enjoyment of equal civil and political rights and privileges. Settle the suffrage question as you will, the negro problem will still confront you. [ have already detained you too long, but permit me briefly, before concluding, to com- pare and criticise the two plans of suffrage submitted for your consideration by the Committee on the Elective Franchise, one signed by the majority, and another signed by the minority of its members. Before undertaking that task, I will give utterance to a sentiment, already made prominent, that we do not want an irruption of negroes from other sections of our country. The Southern States have, within recent years, taken such action as is cal- culated to cause many of their negroes to come to dwell within our borders. If we do not raise high, and make strong, the dykes, we will be submerged by the waves of ignorance and vice flowing from that quarter. Something must be done for the protection of our people against this evil, and our preparations for it should be such as the condition demands. No temporary makeshift, no temporizing policy will satisfy our constituents. We will first consider the minority report, which has been changed since its intro- duction, and is now known as the Glass plan. After the usual provision as to citizen- ship, age, the duration of residence in the State, county or city, the requirement of registration, and of the payment of a poll tax of one dollar and fifty cents ($1.50) to the State for the preceding year, it provides that there shall be two general regis- trations of voters during the year 19132, at which No person shall be listed as a voter unless, when he offers to register he shall be able to read any section of this Constitution, which may be submitted to him by the registrars, and give a reasonable explanation of the same; or, being a person who can- not for himself, read such section of the Constitution, shall be able to understand and give a reasonable explanation thereof when read to him by the officers of registration; provided that these requirements shall not apply in the case of any person or the law- ful descendant of any person vvho has served in time of war in the army or navy of the United States, or of the Confederate States, or of any State of the United States, nor to any person who shall have paid to the State for 1901 taxes amounting to as much as one dollar ($1.00) on property owned by and assessed against him. All per- sons properly registered under this provision shall remain permanently enrolled as electors, unless subsequently disqualified by some other provision of this article. The right of appeal is reserved to every person denied registration under this section, to the Circuit Court of the count}'', or the Corporation Court of the city, or to the judge thereof in vacation. The payment of a poll tax, as a prerequisite to voting shall not be required at any election held prior to January 1, 1903, after which time the voter shall be required to pay as a prerequisite to the right of suffrage the poll tax of every year for which such tax shall have become due and payable; but the collection of said poll tax shall not be enforced by distress or otherwise until it shall have become two years past due. But persons who have served in time of war in the army or navy of the United States, of the Confederate States, or of any State of the United States are exempted from the payment of a poll tax as a prerequisite to voting. I have given the salient and principal features of the plan, so as to enable the members of the conference to have them under observation, while considering them. The gentleman from Augusta (Mr, Braxton) endeavored to show that that clause in which each of the plans, which is commonly denominated the understanding clause, is in conflict with the Fifteenth Amendment to the Constitution of the United States. 3148 DEBATES OP THE CONSTITUTIONAL CONVENTION" OF VIRGINIA. It is not, in my opinion, necessary to waste many words upon that proposition. In making this declaration, I do not wish to be understood as wanting in respect for that gentleman. I have the highest admiration for him, and listened to him with :niuch pleasure and interest. He is always able and eloquent. The understanding 'Clause of the Mississippi Constitution, which is almost the same as that contained in the Glass plan, has already been before the Supreme Court of the United States, and received its unanimous endorsement in the case of Williams vs. Mississippi, 170 U. S. Reports, p. 218. Mr. Justice McKenna, in delivering the opinion of the court in that case, said: They (the Constitution of Mississippi and its statutes) do not, on their face, dis- criminate between the races, and it has not been shown that their actual administra- tion was evil, only that evil was possible under them. It will be conceded, I take for granted, that the right of citizens of the United State to vote is not denied or abridged by our understanding clause, on account of race, color or previous condition of servitude, and the Fifteenth Amendment to the Constitution gives to negroes no more than impartial consideration in the law of suf- frage. If this provision, fair on its face, shall be embodied in the organic law of Vir- ginia, and then afterwards shall be so applied by public authority as to amount prac- tically to prohibited discrimination or the denial of equal justice, the person thereby in- jured, in my opinion, would have the right of appeal to the courts, and I doubt not that in a proper case redress would be afforded. But it is not likely — I cannot conceive to be possible — that the understanding clause, as it is called, which has been pro- nounced not to be repugnant to the Constitution, will be declared to be in conflict with that instrument. After an earnest appeal to the members of the conference not to adopt any report containing the understanding clause, because he considered that it mJght be held unconstitutional, the gentleman from Augusta gravely proposed that we should insert in the organic law of Virginia a provision for the registration of all persons, who were entitled to vote or own property on the first day of January, 1850, or at any time prior thereto, under the laws of any State of the United States wherein they then resided, and the legitimate lineal descendants of such persons. It will not, I think, be seriously denied that such a clause might be applied and administered with an evil eye and an unequal hand. Here we have the "Grandfather Clause," with all its most hideous features. Gentlemen, I am not going to insult your intelligence by de- bating the question whether it is constitutional. Its purpose, to take away from the negro the privilege of the franchise, on account of race, color, or previous condition of servitude, is written in the largest letters right upon its face. But its most objectionable feature is the proposition to establish the hereditary qualification for the suffrage, and the same feature appears in the Glass plan, v/herein soldiers and their lawful descendants are exempted from the requirement imposed upon other applicants for registration, that they shall be able to read any section of the Constitution submitted to them by the registrars, and give a reasonable explanation of the same; or being unable to read, shall be able to understand and give a reasonable explanation thereof, when read to them by the officers of registration. Political rights and privileges are not inherited in America. When the colonies inaugurated the revolution, and established free govern- ment here upon the North American Continent, it was done in resistance to the odious doctrine that offices and privileges should descend from father to son. The Democratic party has denounced in unmeasured terms the imperialistic tendencies in this country, manifested in territorial extension as a consequence of the war with Spain, and in the manner of governing the provinces thus acquired; but here we are asked in the proposition to revive hereditary privileges, to violate an essential principle of our Democratic Republic. I have a letter here from Hon. John Morgan, Senator from Alabama, one of the strongest, bravest and most eloquent representatives of the South. It was written to a member of the Constitutional Convention of this State, in reference to a provision similar to that which I am considering. DEBxiTES OF THE CONSTITUTIOJ^AL COJfVEKTION OF. VIRGINIA. 3149 Dear Captam Wise: The American Revolution was not so much a redress of' grievances as it was a struggle to abolish heredity in government. That was the real line of division between Democratic and regal government and the Church established by law. Heredity disappeared, with its associated rights of perpetuity in the owner- ship of lands, and many minor hereditaments of feudalism, such as titles and tenures and servitudes, when our new Democratic scheme of government was instituted. Political heredity, and all its appurtenances, such as prerogative and titular no- bility and primogeniture, and all its protecting lav'S, such as corruption of blood, pre- munire and excommunication, perished and were placed under the heel of prohibition by our Constitution. Whoever would restore any of these, to that extent discredits the cause of the Revolution. Without suffrage the new system had no possible means of expressing the sov- ereign will of the people in laws and their enforcement by executive and judicial authority. These necessary agents of the government by and for the people can only be chosen by voters; and voters could only be created by law, not by inheritance. These voters are chosen representa^tives to perform the single function of electing the lawful officers of government. The trust confided in them is personal, and can neither be sold nor delegated, transmitted by inheritance or by will to any other person. It is this quality of non transmissibility that distinguishes it from the regal form of inher- itable power and marks the line of the impassable gulf between regal government and democratic government: The voters, as a class, or body, have certain physical conditions, such as age and sex, that are necessary qualifications and certain moral and political qualifications that are personal and independent of inheritable blood. To make blood the medium of transmitting the electoral power from father to son is to uproot from its foundations the whole system of Democratic government and to reinstate the system and the form of regal government. The Fourteenth and Fifteenth Amendments have no more to do with this subject than any other part of the organic law. The transmission of the electoral power by the blood of inheritance from father to son would destroy all distinction between regal governm.ent and Democracy, and would throw the door wide open for a return to the system that the American Revolu- tion abolished. The steps would be few and would be rapidly taken, to the complete restoration of monarchy, so soon as we give to any class of voters the power to qualify their sons as voters by inheritance. In this case, it is the first step that tells with fatal and irrevocable effect. The argument is irresistable, that offices should follow the blood if the power that creates them is the blood of inheritance; and this is all that is meant in the British system of titled nobility which alone legislation in the House of Lords and of regal blood and prerogative which upholds the throne, and the power of appointment to office, which is an appanage of the throne, and the pardon- ing power over which the people have no control. * * * When such a titled class of voters is created by the organic law it will soon occur to them that no other class should be allowed to vote, and they will usurp all power. It is far from being a comfort to me that some negroes are included, and many white men are left out. by the ordinance reported by the majority of the Committee on Suf- frage in this ordinance of inheritable blood. With great respect, JOHN T. MORGAN. Warm Springs, Va., July 6. Mr. Glass: May I interrupt my friend right there to ask a question? Is it not a fact that notwithstanding that letter from Senator Morgan, the Alabama Constitutional Convention, with great unanimity, rejected his advice and adopted this clause? Mr. Wise: Conventions very frequently do such foolish things. It is true that the Alabama Convention adopted this clause. I do not know by what majority it was done, but do know that four of its ablest members denounced it as un-Democratic, un- Republican and un-American, as their gifted senator had done. I had the honor to serve with one of them on the floor of the House of Representatives in Washing- ton, and he was afterwards the Governor of Alabama. He wears an empty sleeve as the result of his devotion to the South, the Hon. William C. Oates. I will briefly quote the language of the protest of the four gentlemen to whom I allude: It (the clause in question) establishing a permanent hereditary governing class, which is un-Democratic, un-Republlcan and un-American. It is not in keeping with the dignity of a progressive, just and enlightened State. It insults — I ask the special 3150 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. attention of the able and eloquent gentleman from Lynchburg to this — it insults the v.^hite men of Alabama and proclaims their inferiority to the negro, by requiring of them as suffragists a lower standard of capacity and intelligence than that required of the negro. It is impracticable of administration. Mr. Glass: Just there I would say to my friend, that the white men of Alabama went to the polls — those white men who were insulted — and endorsed that very clause. Mr. Wise: Oh! yes, sir; but it has not yet been under the inspection of the Su- preme Court of the United States. The question as to the validity of a provision in the organic law cannot be determined by a popular election. "It is impracticable of ad- ministration, owing to the impossibility of tracing with any certainty descent from remote ancestors." But I have another serious objection to the understanding clause contained in the minority plan. It gives to the registrars the right to select the section of the Constitu- tion, of which the applicant for registration must be able to give a reasonable explana- tion. Mr. Glass: Does not the understanding clause of the majority plan give absolutely to the Board of Registration the right to decide the duties of what office shall be de- fined? Mr. Wise: I will say to my friend that it does, and I expected that that question would be asked. But permit me right here to say that when I signed the majority re- port, I announced that I did not approve of that clause as it stands, and reserved the right to offer an amendment at the proper time. Before concluding, I propose to say more in answer to the question propounded by my friend, but prefer to finish what 1 have to say concerning the understanding clause contained in the minority plan. It clothes the registrar with the absolute power to determine what clause of the Constitution shall be submitted to the applicant for registration. Let us take an illus- tration — not a negro — discard, if you please, the negro from your minds. Suppose that in the midst of political excitement, when passion runs high and partisan zeal is with- out proper restraint, a white man should apply to the registrar tO' have his name put upon the rolls. The registrar could submit to him — it is absolutely within his power, under the provisions of this plan, to submit to him — a clause in the Constitution, which the most learned and able lav/yer might find it difficult to understand and give a rea- sonable explanation thereof. The registrar might submit to an unlettered white man, for explanation, a clause Avhich the judges of the Supreme Court of the United States, or of the Court of Appeals of Virginia, might not be able to agree upon. It will not do to say that an appeal is given from the decision of the registrar to the circuit judge, because in that event it would be only within the competence of the judge to decide whether he had given a satisfactory explanation of the clause submitted to him. In this way, gentlemen of the conference, not only the negro, but the white men of this Commonwealth, would be put in the power of ignorant and depraved registrars, so that one applicant for registration might be subjected to a test entirely different from that to which another might be required to conform. The doors are left wide open for discrimination, and for corruption and fraud. It is true that these require- ments as to registration are only temporary, but all persons, properly registered under them, are to remain permanently enrolled, unless subsequently disqualified. It is ad- mitted that nearly, if not quite, all the white citizens of the State v/ould thus be made suffragists, but what then will remain for our protection against an ignorant negro elec- torate? My friend, a few nights ago, made a beautiful appeal to us for the erection of dykes to preserve us from the dark floods of ignorance and vice, but those dykes are to come down at the end of one short year. What provision has he made for the safety and welfare of the Commonwealth after they shall have been removed? Why, gentlemen of the conference, after January 1, 1903, the foregoing requirements as to registration are to be void and no longer applied, and then every male citizen of the United States, who shall have acquired residence in this State, as hereinbefore speci- DEBATES OF THE COXSTITUTIOXAL COXTEXIIOX OF TIEGIXIA. 3151 fied, and who shall, as a condition precedent to registration have paid a poll-tax of one dollar and fifty cents ($1.50 J, and shall, unless physically disqualified, make application for registration in his own handwriting, without aid or suggestion or the use of a mem- orandum, in accordance with a prescribed form, is to be enrolled as a voter. And every person thus registered, if not blind or otherwise physically disabled, is to pre- pare and deposit his own ballot without aid from another. Nothing will then remain for the security of our people, except the conditions that the applicant for registration shall pay a small poU-tax, and be able to read and write, in view of the educational facilities furnished by the State. I do not believe that the plan will accomplish the object intended. I do not think that it will prove to be effi- cient. When you come to reading and writing, the negro is almost, if not quite, as apt as the white man. The acauisiticn of the ability to read depends principally upon the exercise of the faculty of memory, and writing is purely mechanical. These are not such fences as will, in my opinion, prove efficacious. The plan of the majority of the Committte on the Elective Franchise contains the same requirements as to citizenship, age, residence, registration, and the payment to the State of a poll-tax of one dollar and fifty cents (SI. 50) for the preceding year, as the qualifications of a voter; provided, he be a person who has served in time of war in the army or navy of the United States, or of the Confederate States, or of any State of the United States; or, he be a person who, or whose wife, shall have paid to the Srate taxes, for the year preceding that in which he offers to vote, amounting to as much as one dollar (S'l.OO) on property ov\-ned by, and assessed against, him or his wife; or, he be a person not embraced in either of the two foregoing alternatives, who, when he offers to register, shall be able to give a reasonable explanation of the general nature of the duties of the various officers for whom he may, at any time, under the laws then existing, be entitled to vote. And. provided further, that the provision here- inbefore contained as to the payment of the poll-tax, as a prerequisite to voting, shall not apply to any election held prior to the first day of January. 1903, and that no person who has served in time of v\-ar in the army or navy of the United States, or of the Confederate States, or of any State of the United States, shall, at any time, be required to pay a poll-tax as a prerequisite to voting. These two last-mentioned provisions are similar to those contained in the Glass plan. I think that the committee exercised a vvise discretion in admitting to the privi- lege of suffrage not only those who have performed conspicuous public service in time of war, but also those, who, or whose wives, shall have paid to the State taxes on prop- erty owned by, and assessed against, them or their wives. Those provisions are, in my judgment, just and based on sound principles. All agree that the soldiers, who have fought for their State and country, ought to be in- cluded in the electorate. Our fathers placed it, as a fundamental principle in their declaration of rights, that "all men having sufficient evidence of permanent common interest with, and attachment to, the community, ought to have the right of suffrage." and the people of Virginia have always held, that they have furnished sufficient evi- dence of permanent and substantial identification with the State, vcho participate in the public burdens, through ownership of property, subject to taxation. Taxation and representation ought to go together. Senator Daniel, in submitting to the Convention the report of the minority, for which the plan of my friend from Lynchburg has been accepted as a substitute, used language, which I will quote in substantiation of this position, but before doing so permit me to express the deep regret I feel that his chair is now vacant; that our distinguished and honored senator is detained at home by sickness, and thereby we are deprived of his wisdom and counsel. I shall never forget when we first became acquainted. It was on a warm and bright day in June, some thirty years ago. Two young fellows were marching under the command of that noble old soldier, Joseph E. Johnston, from Harper's Ferry to Winchester, the beginning oi the movement which culminated in glorious victory on the plains of Manassas: both 3152 DEBATES OF THE CONSTITUTIONAL CONVENTION" OF VIRGINIA. bearing arms upon their shoulders; both tired and weary, and covered with the dust of the march. Our eyes were brighter then; our steps more elastic. Thus, Mr. Chairman, we met by accident, and formed the friendship which has bound us together thus far in the journey of life, and will continue until death. He said in his report that Jefferson on one occasion expressed the opinion that "the right to vote should be given to those who pay and those who fight." Both the soldiers and the tax-payers are represented in the basis of suffrage we have recom- mended. It is certain that under these two provisions a very large proportion of our \^hite citizens would be enrolled as suffragists, but I call the attention of the confer- ence to the fact that the hereditary feature is absent; that the privilege is not, as in the substitute, extended to the descendants of soldiers. But we do not confine the right to vote to those two classes, but confer it also upon those who shall be able to give a reasonable explanation of the general nature of the duties of the various offi- cers for whom they may, at any time, under the laws then existing, be entitled to vote. In the basis of suffrage proposed by the majority you find no servile imitation of that adopted by Mississippi or Alabama, as in that offered as a substitute by the hon- orable gentleman from Lynchburg. I do not wish to see Virginia trailing in the rear of other States of the Union. She was foremost in proclaiming the fundamental prin- ciples upon which government ought to be founded, and has alvv^ays marked the way v/liich leads to the safety, welfare, and happiness of her people. The majority plan, in my judgment, is the best that has been proposed, and I pause to make the acknowledgment, that the honor of its authorship belongs to the very able and eloquent gentleman from Norfolk city. Mr. Thom: Mr. Chairman, I appreciate most highly the encomium which my friend has passed upon my connection with this majority suffrage plan, and while my name has become associated with it, I feel that it is but just for me to say that I am by no means the only author of it, but that the other members of the committee are entitled to the same credit, if there is credit, that I am entitled to for it. Mr. Wise: Our understanding clause requires that the applicant for registration shall be able to give a reasonable explanation of the general nature of the duties of the officers, for whom he may, at any time, be entitled to vote. He cannot be called upon to interpret a clause of the Constitution, which the highest judicial tribunal of the State, or nation, might find difficulty in explaining, as provided in the Glass plan, and we give him an appeal from the decision of the registrar to his circuit court. We only require that he shall possess that degree of intelligence and education which will enable him to discharge properly the duties of citizenship; in the exer- cise of the elective franchise. Mr. Glass: If it would not interrupt my ;tfriend too much, I would like to ask him to address his remarks for a little while to^ the distinction between the plan of the minority, which I desire to take occasion to say, as Mr. Thom did, with reference to the majority plan, is not my plan; it has the best features, I think, of all the other plans combined, to this distinction; when a man would seek to be registered under the minority plan, the election officer would be required to submit to him a section of the Constitution to read. Would not every voter in Virginia, who seeks to be regis- tered under j^our plan, have to provide himself with a Code of Virginia, and a copy of the Constitution of the United States? Mr. Wise: In answer to a former question, propounded by my friend, I admitted that the understanding clause contained in the majority plan gives to the registrar the right to require that the applicant for registration shall define the duties of any officer he may, at any time, be entitled to vote for, under the then existing laws. As it stands at present, I confess that it is subject to the objection, which I urged against the majority plan, that the registrar is clothed with the power to make it easy for one man, and difficult for another, to become enrolled. I then indicated that I would, at DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 3153 the proper time, offer an amendment, which, in my opinion, if adopted, will obviate that objection, and make it an educational, instead of an understanding clause. My proposed amendment is, that when a person shall offer to register, if not embraced in the clause relating to soldiers, or in that relating to tax-payers, he shall be able to give a reasonable explanation of the duties of the various officers for whom he may be entitled to vote at the next general election succeeding the date of his registration. The chief distinction between the two plans is this, that of the majority is not marred by the hereditary feature which exists in that of the minority, by which the descendants of soldiers are exempted from submission to the understanding clause. That our understanding clause is not so severe, so unreasonable, and so drastic as that of the proposed substitute, and if amended, as suggested, that the registrar will not have the povv^er to require of one person to exhibit a different degree of intelligence and education from that required of another. But the chief objection to the plan of my friend, as already pointed out, is that after the 1st of Januarj^ 1903, there will be no protection for our people" against the registration of ignorant negroes, except the capitation tax and their ability to ma,ke application therefor in their own handwriting, and to prepare their ov/n ballots. Yv^e provide that in addition to those requirements, they shall be able to give a reasonable explanation of the duties of the officers they may be entitled to vote for. So far as the ability to read and write is concerned, we have little advantage over the negroes, as I have already said, but when you caii for the exercise of that degree of intelligence, which is required in this clause, then the superi- ority of the Anglo-Saxon becomes at once apparent. I do not think that the plan of my friend is efficient, while I do think that that of the majority will secure an intelli- gent electorate, and will preserve us from those dangers, vrhich have caused the as- sembling of this Convention. But, Mr. Chairman, I v/ish to exhibit to my friend from Lynchburg, and to the dele gates from the v^-hite counties of this State, by reference to the figures furnished by the Census Bureau at Washington, what is the true condition in the black counties of Virginia. In the county of Brunswick there are 1,874 white male citizens over the age of twenty-one years, and 2,136 negroes; the male negroes under the age of twent>"-one years, who soon will make application for the right of suffrage, aggregate 3,171; the whites, 1,837. In the county of Norfolk there are 5,492 v/hites over the age of twenty- one years, and 8,432 negroes; 3,419 whites under the age of twenty-one years, and 7,607 negroes. In the county of Northampton, so ably represented by my friend, Judge Kendall, the Vvhite males over tv;enty-one years of age exceed the negroes by only twenty-Dine majority. Mr. Glass: Are you avv-are of the fact that 1,014 of those negroes did not pay their poll-tax last year. Mr. Wise: The gentleman will find a large number of the white men delinquent also. When you make the poll-tax a condition precedent to the right to vote, my experi- ence is that the negro will pay as readily as the white man. But I had not finished the figures with reference to the county of Northampton; there are 1,493 white males under the age of twenty-one, and 2,195 negroes. There are twenty-five counties, one-fourth of the whole number, in which the negroes largely predominate, and fifteen or twenty in addition, in w^hich they constitute nearly half of the population. W^hen you take into consideration the figures, w^hich show how the two races will stand," when those now under twenty-one years of age shall have passed that mark, you will discover that there are at least fifty of the counties of the Commonwealth, which Vvill soon be dominated by the African, unless something shall be done to prevent it. Are you pre- pared for it? Gentlemen of the Valley and of the Southwest, are you v/illing that your brethren of the black belt shall be left in that position? I appeal to you, and to the delegates from the Piedmont and trans-Alleghany regions, Vvith all the earnestness of my nature, to save us from that affliction. I feel sure that the brave men who followed in the thick- 3154 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. est of the fight, with such steadfast devotion and courage, the proud standards of Lee and Jackson, will not forsake us in the hour of our trial. God save the Commonwealth; God bless Virginia, our mother. On motion of Mr. P. W. Campbell, the Convention adjourned until Monday, May 2G, 1902, at 12 o'clock M. iVlONDAY, May 26, 1802. The Convention met at 12 o'clock meridian. Prayer by Rev. W. P. Dunaway, D. D. METHOD OF ADOPTING CONSTITUTION. The President: The unfinished business before the Convention is the further con- sideration of the resolution offered by the gentleman from Campbell (Mr. Daniel) re- garding the method of adopting the Constitution. The gentleman from Richmond city (Mr. Wise) is recognized. Mr. Wise: Mr. President, I dislike very much to trespass, even for a moment, upon the attention of the members of the Convention. I know that all are anxious to dispose of the work for which we were convened, and to return to their homes, but in my judgment, this is the most important question that has been submitted for our decision, and our action in reference to it will hereafter be quoted as a precedent. When the gentleman from Prince Edward (Mr. Mcllwaine) the other day announced that everybody had made up his mind on this question, except the gentleman from Rich- mond, he was laboring under a mistake. He will find out before the gentleman from Fvichmond concludes, that his mind is as fully made up as that of the gentleman from Prince Edward. It is true that he had, as a justification for that remark, the statement that T made, in answer to the delegate from Nansemond (Mr. Barnes), that I was not then prepared to vote, by which I meant that I desired to give the members of the Convention, and especially my own constituents, the reasons which would control my action. It has been from the beginning an axiom of the American people, that all just gov- ernment rests in the consent of the people, and I hope, Mr. President, that the mem- bers of this Convention will do nothing to weaken or diminish the respect in v/hich that fundamental principle has always been held. Before beginning the discussion of the question which has been submitted to us by the resolution offered by the delegate from Cam.pbell, I wish to say that I am in favor of the Constitution framed by this body, and that if it shall be submitted to the people, I will not only vote for its adoption, but will do all in my power to accomplish that result. I believe, Mr. President, that ft is the best Constitution ever framed for the Commonwealth of "Vlirginia. There are, it is true, some few of its provisions to which I am opposed, and against which I voted, but, taking it all in all, I think that it will promote the happiness and best interests of our people. I make this statement because I desire that no one who hears me shall think that my advocacy for submis- sion grows out of any opposition in my heart, or in my mind, to the instrument we have formed. Now, the first question I shall submit to you is: Whether there is any moral obli- gation resting upon us, to constrain us to reject the proposition to proclaim this Con- stitution, as the organic law of Virginia, and to give my answer to it. I must recur to the facts. What are they? On the 5th day of March, 1900, an act v/as passed by the General Assembly, pro- viding for submitting to the qualified voters of the State, at an election to be held on DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIKGINIA. 3155 the fourth Thursday in May, 1900, the question, "Shall there be a convention to revise the Constitution and amend the same?" That question, and that only, was submitted to the electors. The act was silent as to the terms upon which the call should be made, and the answer of the suffragists in the affirmative can be interpreted to mean no more than that the General Assembly might convene a convention for the purpose indicated. It certainly cannot be so extended as to include the intent of an abdication by the people of all their powers, their rights, their interests, and their duty to each other in favor of a body of mere agents. But prior to that election, the Democratic Convention, representing nearly all the white citizens of this State, and authorized to speak for them, met in the city of Nor- folk, and there made the solemn pledge that the Constitutional Convention, if called, should submit its work for ratification or rejection. Some gentlemen upon this floor liave endeavored to excuse themselves from observance of that pledge by the state- ment that the Norfolk Convention was not called for that purpose, and had no right to bind us in that manner. I will show that those who take that position are mis- taken. I call their attention, and especially that of my colleagues from the city of Richmond to the fact, that the people in some of the cities and counties, when as- sembled in mass-meetings to choose their delegates to the Norfolk Convention, both spoke and acted upon the question we are now considering. Before showing that, permit me to allude to a meeting held in Richmond, a week ago, called by some of the newspapers, whose managers seem to take a great deal of interest in this subject. It was not the result of a spontaneous movement on the part of the people. It was liberally advertised, and the announcement was made that there was to be an outpouring of the masses to dem.and proclamation, and to relieve the representatives of this city from their obligations and pledges. Being thus heralded in the press, I expected to meet there a large gathering of my constituents, but was greeted by empty benches. Mr. Meredith: Is the gentleman not mistaken as to facts? Is it not true that there was no call made by any newspaper of Richmond, and no call made by any out- pouring of the people, but a distinct announcement that the meeting was called by a single Democratic club for the voters of the ward to vote on the question? Is not that the fact? Mr. Wise: You may be right. Mr. Meredith; I know I am, so I call your attention to it. Mr. Wise: I do not desire that there shall be any dispute between us as to how it was called. I only know that it was liberally advertised, and that every induce- ment to get the people together there was employed. I know also, that the effort to assemble a mass-meeting was a miserable failure. It matters not how it was called, I here assert, without the fear of contradiction, that it was not such an assemblage as was authorized to express the will of the people, whom I have the honor to represent. There were only fifty-five citizens in that meeting — I counted them. Of the fifty-five, at least twenty belonged to other wards, and some were Republicans, who were told that they could not vote. When I departed ten of them went with me. I do not mean to say that I left as a rebuke, but having given, as requested, an explanation of the suffrage clause of the proposed Constitution, and seen all that I cared to see, I concluded that it was not necessary for me to remain longer. It was late at night, and I was satisfied to await the glad tidings of proclamation, which I knev/ would appear in the morning papers. I am told by a gentleman who remained that fourteen persons attempted to repre- sent the Democrats of Clay Ward. But, gentlemen, I have only alluded to the meet- ing in order to make it plain that there has been no such expression of sentiment in Richmond as I feel should control my action here. But the gentleman who inter- rupted me a moment ago told the Convention that it was a proceeding by a single club, to give the Democrats of the banner ward of Richmond an opportunity to express their 3156 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. opinions and sentiments. I hold in my hand, and will read to him, the resolutions of the active and energetic Democrats of that ward, passed before the assembling of the Norfolk Convention, before the calling of a Constitutional Convention was made a party question, and before the pledge to submit the result of our deliberations was given. They were drawn by a distinguished representative of Richmond in the Gen- eral Assembly, and I see that he is present. He is a Democrat without a spot on his record. The Honorable George Wayne Anderson offered them, and they were adopted: Resolved, by the Democrats of Clay Ward, in mass-meeting assembled, That the Underwood Constitution, framed by aliens and enemies of the Commonwealth at a time when Virginians were either almost or altogether excluded from the exercise of the rights of freedmen, is inadequate to the requirements of the present social and poli- tical life, and should be revised. Resolved, further. That to that end the Democracy of Clay Ward favors a Con- stitutional Convention, to be composed of Virginians chosen by their fellow citizens to revise our organic law in the fear of God and for the benefit of posterity. Resolved, further, That the delegates to the Democratic State Convention, to be held at Norfolk, chosen by this meeting be, and they are hereby directed to vote and use their influence in favor of making the question of holding a Constitutional Conven- tion a party question in accordance with the earnest recommendation of the joint cau- cus of the Democratic members of the General Assembly. They are also instructed to vote and to urge that the convention at Norfolk shall bind the party by formal resolution to submit the Constitution created by the Conven- tion, should one be held, to the good people of this Commonwealth for ratification or rejection in accordance with immemorial usage. So it seems, that the proceedings at Norfolk were taken in obedience to the will of these people, fully and clearly expressed, before the delegates to that Convention were elected and in compliance with the earnest recommendation of the joint caucus of the Democratic members of the General Assembly. Who here will rise in his seat, and declare, in view of these facts, that v^'hen the people voted for the call of a Con- stitutional Convention, they did not do so with the understanding that the Constitution to be formed by us v/as to be submitted to them for ratification or rejection? Mr. President, with such facts staring us in the face, have we the moral right to adopt the resolution in favor of proclamation? Can we justly make the claim that we are clothed with the power to do so? When this question was first debated, in the be- ginning of our sessions here, I understood the distinguished gentleman from Peters- burg — I hope that he is in his seat — to say that the Convention was sovereign. Will that gentleman, or any other, tell me when and by whom were we invested with sov- ereignty. A convention must derive its power from the people. As I have already said, it is an axiom, written in your bill of rights, that the people are the source of all power, and that their government cannot be reformed, altered, or abolished with- out their consent. Where (I ask for information; gentlemen) is the act which conferred upon you sovereign power? Speaking for myself alone, and declaring it as my sincere wish that my language shall not be construed as involving censure of any member upon this floor, I feel that, in view of all the surrounding facts and circumstances, I should be guilty of an act of perfidy and treachery, if I voted for proclamation. That is my feeling, and I will not do it. I believe that a moral obligation rests upon me to keep the pledges made when I was a candidate, and in pursuing that course, and clinging to that de- termination, I am actuated only by the desire to advance the interests of my people, and to preserve their rights and liberties. After a large majority of the qualified electors of the State had voted in favor of a Constitutional Convention, and after positive declarations had been made by the people or their authorized agents on the question, that its action should not be definitive, the General Assembly, representing the people of this Commonv^ealth, passed, on February IG, 1901, the act to provide for the election of delegates to this Convention, for its or- DEBATES OF THE COJs^STITUTIOJs'AL COI^VENTIOX, OF VIRGINIA. 3157 .ganization, and for submission of the revised and amended Constitution, should one be agreed upon, to the qualified voters of Virginia, for ratification or rejection. Had the Legislature the right to pass that act? If its members did not exceed the scope of their authority and jurisdiction, then we are at the end of the argument, and JIG one will dare say that he is not bound to obey the mandate contained in the act under which we are sitting. I unhesitatingly give it as my opinion that the General Assembly had not only the right, but that it was its duty, to prescribe such restrictions as were placed upon us. The popular will had, as I have said, been fully and distinctly manifested, and in requiring submission the Legislature followed the precedents in this and a large ma- jority of the other States of our Union. There is not a man in this Commonwealth, who, when he voted that a Convention should be called to revise and amend the exist- ing Constitution, did not do so with the understanding that our work was to be sub- mitted for adoption or rejection, I voted for a Convention with that distinct under- standing, but, so help me God, I would never have given my consent if I had believed that you would undertake to impose upon the people of this State a Constitution with- out regard to their wishes. I\o man is more anxious than I that the work of the Un- derwood Convention shall speedily be removed from sight, but so long as I live, so long as I revere the immortal principles embodied in the bill of rights, I will never ■consent that any body of men, however able, pure and patriotic they may be, shall bo invested with the absolute power to dictate 'the organic law for this State. That power must be clearly conferred. The sacred fire from the altar of the people's authority cannot be snatched by unhallowed hands. Before citing judicial authority in support of my contention that the legislative department of our government had the right to impose such restrictions, as are con- tained in the act by which we were convened, I remind you that no constitutional con- vention ever held in this State was clothed with the power to proclaim the Constitution framed by it. It will be conceded that the Convention of 1776 was a revolutionary body, and sat in defiance of the then existing government, while we are proceeding under the law by which we were originated and the powers of the people conveyed to us. I repeat that no convention hitherto assembled in Virginia, in a state of peace, was authorized to act definitely. In 1828 the General Assembly submitted to the quali- fied voters the question whether a Convention should be called, and the answer being in the affirmative, it then provided for the election of delegates to that Convention, and the submission of their work to whomsoever they might please to declare qualified to vote for m.embers of the General Assembly. John Randolph, of Roanoke, denied the right of the Legislature to provide that the amended Constitution adopted by that Convention should be submitted to any other persons than those qualified to vote under the then existing Constftution, and submitted a resolution to that effect, which was defeated, both Chief Justice Marshall and James Madison voting in the negative. He did not make the claim that that body possessed the power to ordain, nor did any one of its members assert that the General Assembly had not the authority to require submission to the people for their approval or disapproval. Their action was in ac- cordance with the law under which they were elected. Substantially the same course was pursued in reference to the Convention held in 1850. Submission was required by the act which called it into being, and they obeyed it. As to the Underwood Convention, to which I am going to refer directly, it was not assembled in obedience to the voice of our people, by any legislative act which had their sanction. It received its authority, if any it had, from the Congress of the United States. In Wells vs. Bain, 75th Penn. St., p. 39, you will find the doctrine I am contending for clearly enunciated by the Supreme Court of that great State, in the following words: It is not pretended that the late Convention (in Pennsylvania), sat as a Revolu- S158 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. tionary body, or in defiance of the existing government, and it did not proceed in the mode provided for amendment in the Constitution, that being a legislative proceeding, only. It was, therefore, the offspring of law. It had no other source of existence. This Convention, like that in Pennsylvania, is the offspring of law, and has no other source of existence. By the law, the breath of life was breathed into its nos- trils. The will of our people has been expressed in no other form, and our powers as delegates, therefore, come in no other wise. The people having adopted a proceeding by law as the means of executing their will, having acted under it and chosen their delegates by virtue of its authority, sub- mitted themselves to it, as their own selected and approved means of carrying out peacefully their purpose of amendment. * * * it will not do to assert that the whole original power of the people was conferred by the election. This election itself was a part of the instrumental process of the law, the means provided by this very law, of selecting the delegates. This law was the warrant for their election, and expressed the very terms chosen and adopted by the people under which they delegated their power to these agents. These words describe the situation in Virginia. You were selected as delegates, and are sitting here and acting, under a statute, which is your letter of attorney from the people themselves. No! Gentlemen, it will not do for you to make the claim, that the whole original power of the people was conferred by your election to this Constitutional Convention. T denounce, as false and dangerous, the doctrine that you are invested with sovereign power. But in another clause of this able opinion, delivered by Judge Agnew, of the supreme bench of Pennsylvania, a man of the highest character, and a jurist of pro- found learning, honored and revered by all his people, and whose decisions are recog- nized as sound everywhere in the American Union, the declarations are even more distinct and pointed. It follows, therefore, that in a state of peace, a law is the only means by which the will of the whole people can be collected in an authorized form, and the powers of the people can be delegated to the agents who compose the convention. That was the only means by which the powers of the people could have been con- veyed to us, and they w^re so conveyed. It may be a law to confer general authority or one to confer special authority. It may be an invitation in the first place, as was the act of 1789, under which the Con- vention of 1790 was convened, and an authority to the people to meet in primary as- semblies to select delegates and confer cn them unrestricted powers; or it may be a law to take the sense of the people on the question of calling a convention, and then a law to make the call and confer the powers the people iiitendi to confer upon their agents. The pov/er to pass the law carries with it of necessity that to frame and de- clare the terms of the law. The power of our General Assembly to pass the law which convened you here, car- ried with it of necessity the power to prescribe the terms under which you should act. But, to the same effect, and fuller and more complete, if possible, is Jameson on Constitutional Conventions: "That a Legislature may always prescribe .that a conven- tion shall content itself with proposing, and that to its propositions there shall be com- municated the force of law only by the fiat of the people. If I have not misconceived, then, the considerations bearing upon the question, it is the duty of conventions, in all cases, not even excepting that in which they are authorized to act definitely, to submit the constitution they frame to the people; certainly to do so whenever submission is not dispensed with by the constitution, or by the convention act." See Jameson on Con- stitutional Conventions, pages 495-'96. This idea prevades the whole American political system, that those, through whom the people act, are under the solemn obligation to obey their will, and to keep them- DEBATES OE THE COXSTITETIOXAL COXYEXTIOX OF TIEGIXIA. 3159 selves constantly in a condition of perfect responsibility to them, save in the single case where a discretion has been in terms given. I challenge any member, vho is an advocate of the doctrine of proclamation, I chal- lenge any one of you, to give me an authority in support of your position. Mr. Kendall: You hold that the Legislature would have such power if the existing constitution prescribes to the contrary? Mr. Wise: I am glad you asked that question. I was coming to that in a moment. You, it seems, depend for your authority not upon the decisions of the courts, but upon the Underwood Constitution. I will come to that directly. I will endeavor to show that it does not prescribe to the contrary. I am glad that my challenge has solicited one answer. I asked for authority, and the honorable gentleman from Northumberland points me to the Underwood Constitution. Before giving my answer, I will quote what Judge Cooley says in his work on Constitutional Limitations. His text books are recog- nized as of the highest authority in all the courts, both State and Federal. In accordance with universal practice, and from the very necessity of the case, amendments to an existing constitution, or entire revisions of it, must be prepared and matured by some body of representatives chosen for the purpose. * * * But no body of representatives, unless specially clothed with power for that pur- pose by the people when choosing them, can rightfullj' take definitive action upon amend- ments or revisions; they must submit the result of their deliberations to the people — who alone are competent to exercise the powers of sovereignty in framing the funda- mental lavv — for ratification or rejection. Unless you can show that the power was expressly conferred, says this distinguished judge, you have no right to proclaim, and are bound to submit the result of your deliberations to the people for ratification or re- jection. So far from the power having been conferred upon you, to proclaim this in- strument as the organic law of this Commonwealth, you are expressly forbidden to do so in the act of your creation. Judge Cooley also said in his work on "The Principles of Constitutional Law'" that The people, having adopted a proceeding by law as the means of executing their will, haA'ing acted under it and chosen their delegates by virtue of its authority, submitted themselves to it as their ovrn selected and approved means of carrying out peacefully their purpose of amendment. The delegates elected under the law possess no inherent power, and when convened under it, they act under the law as their letter of authority from the people themselves. Now, what has been urged in opposition to these positive and emphatic declarations by learned judges and constitutional lawyers? My honorable friend from Northampton was the only one who answered the question, where is your authorit^^? None of the others ansv-ered. He pointed me to the Underwood Constitution. Gentlemen are hard-pressed, indeed, when they must appeal to that instrument for their vindication. The Congress of the United States ordered an election in Virginia. Many of our wisest and best men were excluded from participation in it, because they had been guilty of rebellion. Under the order of Congress, the Underwood Convention vas assembled in this capital. In the Convention of 1829-'30, John jlarshall. Chief- Jus- tice of the United States, and Nicholas, another very able and learned man, sat as the representatives of the character and intelligence of the citizens of Richmond. When that body, to whose work reference has been made hj my friend from Northampton, came by authority of Congress to dictate the law to freemen, Louis Lindsay and Joseph Cox, two ignorant negroes, who could not write their names, or read the Lord's Prayer, occupied the seats of Marshall and Nicholas. It was a sad spectacle. He appeals to the instrument framed by them, as settling constitutional questions for Virginia. I have little or no respect. I want him to know, for the Underwood Constitution. It does not bind me much. It will never furnish a reason for my action. But let us examine it, and see if it confers the authority for proclamation. In the second section of the 12th article — which I believe is the one referred to by my friend, and if I am wrong I hope h€ will correct me — 3160 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Mr. Kendall: I do not remember which article it is. It is the last article of the Constitution, which prescribed that the Convention shall be called to revise the Consti- tution and amend the same. Mr. Wise: Well, I will read it, and then if I am wrong, or if there is any other section to which you wish to refer, I will be pleased if you will let me know: At the general election to be held in the year 1888, and in each twentieth year thereafter, and also at such time as the General Assembly may by law provide, the question, "Shall there be a convention to revise the Constitution and amend the same?" shall be decided by the electors qualified to vote for members of the General Assembly. Is that the section? Mr. Kendall: Yes, sir, Mr. Wise: The gentleman says I am right. Mr. Kendall: I will say this to the gentleman; that at the time I interrupted him he was arguing that there could be no power which could control the convention except that which called it into being, to-wit, the Legislature that called it into being; and he was laying that down as a universal proposition. I then called his attention to the ques- tion whether or not that would be true notwithstanding the provisions of any existing Constitution. Mr. Wise: I will say to my friend that if I used the language he imputes to me — which I will not now deny — I stated it more broadly than I intended, and will take the liberty of correcting the notes. Mr. Kendall: Very well. Mr. Wise: My contention is that the people are the source of all power, and that they have conferred upon us only the right to propose for their consideration a revised Constitution, and that that pov/er was conferred by the law which called us into being, and that we are bound to observe and obey that law. But I am now devoting attention to that section in the Constitution, to which you referred me, and which I was reading when interrupted. And in case a majority of the electors so qualified, voting at such election, shall decide in favor of a convention for such purpose, the General Assembly, at its next session, shall provide by law for the election of delegates to such convention. I have not yet read the whole section, and I ask every member of the Convention to give me his attention. I asked my friend from Northampton to say if he is bound by this part of it: Provided, that uo amendm^ent or revision shall be made which shall deny, or in any way impair, the right of suffrage or any civil or political right as conferred by this Constitution, except for causes which apply to all persons and classes v/ithout dis- tinction. If that clause binds us, if the entire section which I have read, binds us, by what authority did you attempt, or did this convention attempt, to change the suffrage clause that was provided by the Underwood Constitution? You have violated the very section of that instrument which I have just read, in the adoption of the suffrage clause in the new Constitution. You are attempting not only to deny to a part of the electorate created by it the right to vote on the question of ratification or rejection of your propo- sitions, but to deny to them the right to vote at all, now or at any time. But does the section, which I have read, and which simply provides that at stated periods, or at such times as the Legislature may deem proper, the question shall be submitted to the people, " shall there be a convention to revise the Constitution and amend the same?" confer upon the convention, thus originated, the power to act definitely? Does it take away from the people the right to require submission? DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIEGIXIA. 3161 That convention had no right to insert in the organic law a provision that the delegates in any future convention should have the power to ordain or decree; that power can only be conferred upon said delegates by the sovereign people at the time of their selection. I deny emphatically that Vv'e can reach the conclusion that the sec- tion in question has such a meaning, except a juggle of vrords to cozen the people. Such quirks and . quibbles are weak, such logic is vain and impotent. But where in the section under consideration is the power conferred upon you to refuse to submit your propositions? Now, I will call you attention to a provision in another article in the Constitution, which did not originate with that Convention. It came to us from the fathers of the republic, and was proclaimed by the noblest and best representatives of Virginia in her past history, by that splendid galaxy of patriots, who inaugurated the revolution, and established upon the North American Continent free government, "that when any government shall be found inadequate or contrary to the purposes (before specined) a majority of the community hath an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it in such manner as shall be judged most conducive to the public weal." In such manner as the people shall deem proper. I here to-day reiterate the sentiment of that Bill of E.ights, which was proclaimed by those vrho proclaimed the independence of America; that only a majority of our com- munity or State have a right to alter, abolish, or amend the Constitution. The Under- wood Convention had no right to put in the Constitution of Virginia any declaration in conflict with that provision of the Bill of Rights, a.nd it did not do it. If you want to be satisfied that the intent was not in the minds of its members to disregard that fundamental principle, that the fiat of the people is necessary to give validity to any alteration or amendment of the organic law, you have only to read the first section of the Article XII. of our Constitution, where it is provided that amendments may be proposed in the General Assembly, and if the same shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendments shall be entered on their journals, with the ayes and noes taken thereon, and referred to the General Assembly to be elected at the next general election, and shall be published for three m.onths previous to the time of making such choice. And if in that next Gen- eral Assembly, such proposed amendments shall be agreed to as before, then it shall be the duty of the General A_ssembly to submit such proposed amendments to the people, and if the people shall approve and ratify them, they shall become a part of the Con- stitution. In this connection I will recur again to the decision of the Supreme Court of Penn- sylvania, pronounced by Justice Agnew, where he declares that the doctrine that govern- ment must have the consent of the people "is recognized in the second section of the Declaration of Rights of the Constitution of Pennsylvania, v/hich affirms that the people have at all times an inalienable and an indefeasible right to alter, reform, or abolish their government in such manner as they think proper." The language of this declara- tion is almost the same as that in which ours was made. NoYv^ listen to his interpretation of it. A self-evident corallary is that an existing lawful government of the people cannot be altered or abolished unless by the consent of the same people, and this consent must be legally gathered or obtained. These are fundamental propositions that the Federal Constitution contains a grant of power to the Federal government, and that all power not granted is reserved to the States or to the people; that prohibitions contained in it are limitations upon The gov- ernment created by it, unless expressly made applicable to the States. The State constitutions do not contain grants of power to the State, but they are the instruments through which governmental authority is apportioned and distributed, and by which restraints are imposed upon governmental action, for the protection of in- 199 — Const. Deb. 3162 DEBATES OF TPIE CONSTITUTIOJ^AL CO^^VENTIOX OF VIRGINIA. dividuals or for the welfare of the people. And the legislative department is pos- sessed of all legislative power not prohibited by the Constitution expressly or implied, or by the restrictions contained in the Federal Constitution. The calling of a Con- stitutional Convention, and the imposing of the requirement that its acts shall only be advisory, is clearly a legislative power. It is a familiar rule of construction, that the whole instrument must be examined, to determine the meaning of each part. You cannot place upon one section such a construction as will make another section useless and valueless. The whole of a Constitution must be read and so construed as to give effect to all its sections and clauses, and make them consistent and harmonious. If this rule be followed in construing the second section of the Article XII| of the Con- stitution of Virginia, no such meaning can be given to it as has been attempted. In those dark days when Virginia was governed by a military dictator, surrounded by armed soldiers, the fundamental principle, that the people shall not be deprived of the inalienable right to pass upon any proposed Constitution, saved a large number of our best v/hite citizens from disiranchisement, and the whole State from the horror and humiliation of negro domination. The Congress in the reconstruction acts violated the Constitution of the Union in all its sections and clauses, and sent here aliens and enemies to make our organic law, but paused when the question was whether it should be imposed without our consent. It was submitted for acceptance or rejection, and its disfranchising clause was separately submitted. The recollection of this fact, so in- delibly impressed upon my memory, should cause you to pause, and hesitate before set- ting a precedent whi^h in the future may rise up to plague you. Gentlemen, I have much to my own inconvenience, this very warm day, detained you longer than I intended. I feel so deeply on this question, I am so anxious tha": you shall nnake no mistake, that I felt it to be my duty to call your attention to this subject, and to beg you not to commit an error. Have you read the last clause of the act under which you are assembled? What does it contain? But if said Convention shall not propose a revised and amended Constitution on or before the 5th day of October, 1901, it shall remain for the next General Assembly to enact such measures as it may deem proper for submitting the said revised and amended Constitution to the people of this Commonwealth for ratification or rejection. You did not complete your labors before the 5th day of October, 1901. Under the conditions of the clause, which I have just read, the Legislature has conferred upon the succeeding General Assembly the right to provide such measures as it may deem to be proper for submitting your revised and amended Constitution to the people of this Commonwealth for ratification or rejection. Suppose, in defiance of the opinions of the best judges in America, you. undertake to proclaim this instrument as the organic law of this State. When next winter the representatives of the people of this Commonwealth shall meet here, suppose they shall declare your action to be null and void! The condition, in v/hich we shall in that event find ourselves, will be pitiable, in- deed. Serious conflicts and collisions may arise out of it. What caused the trouble in Pennsylvania? What brought that case, from which I have quoted so liberally, before the Supreme Court of that Commonwealth? The Legislature had provided, in its act convening the convention, for the submission of the result of its labors to the people. It had also provided the day on which the election should be held, and the method of holding it. The Convention undertook by an ordinance to disregard the provisions of the act, and the result was the decision of the Supreme Court of Pennsylvania that the Legislature had not exceeded its authority, and that the ordinance of the Convention was null and void. We may have the same experience in Virginia, and we will have it, unless our people are ready and willing to surrender their rights and liberties to the keepmg of this Convention. DEBATES OE THE COXSTITUTIOXAL COXYEXTIOX OE YIEGIXIA. 3163 I thank you, gentlemen, for your courteous attention. (Great applause.) :^.Ir. Walker: I move that the chair be vacated until 4 o'clock this afternoon. The motion vs-as agreed to, and the Convention took a recess until 4 o'clock P. M. AFTERNOON SESSION. The Convention met at the expiration of the recess. The President: The regular order is the consideration of the resolution offered hy the gentleman from Campbell. ■ :\Ir. Bouldin: Mr. President and gentlemen of the Convention, the county v,-hich [ have the honor, in part, to represent, has not seen fit to give an}* instructions to its delegates in regard to the important question vhich is novr engaging the attention of the whole State, but have left to their delegates the povrer of voting as they deem btst for the interests of the State. But the sentiment of that people, gathered in various vrays, is overwhelminglj' in favor of proclaiming the vork of this body, and so far as T am concerned, unless some difnculties are hereafter presented vhich I have not yet foreseen, which satisfy me that this body has not the power to proclaim, I shall cast my vote in favor of proclaiming the work of the Convention. I believe, sir, that it is the right and privilege of tne people of the respective counties and cities of the State to have our work submitted or proclaimed, as the:r may desire; and thus believing, I shall so vote as to carry out the will of my people, unless I shall become convinced that the good of the Commonwealth requires that this instrument which we have nearly com- pleted shall receive some other disposition. Mr. President, the theory of our political system that the people are the source and fountain of all power,, and that ultimate sovereignty rests with them has become a maxim of universal application in the States of the American Union; and in no State has that doctrine been more uniformly accepted and acted on than in Virginia. While, however, this is theoretically true, it is also true that as a practical fact the exercise of sovereignty is limited to those who are clothed with the right of suf- frage — the voters of the Commonwealth — who alone are authorized to give expression to the voice of the people as a body politic. Assuming the soundness of these political axioms, we come to consider the ques- tion at what time and in what manner and under what conditions can the people as a body politic, in the exercise of their reserved sovereign power, revise their constitu- tions and amend the same — exercise the right to '"reform, alter, or abolish" their form of government, which the Bill of Rights declares to be the "indubitable, inalienable, and Indefeasible right of a majority of the community.'' With the exception of the right of revolution, with which fortunately we need give ourselves no concern, there are but tv-o known methods whereby the whole people — the State — can exercise its reserved power of reviewing and amending its Constitution, of reforming, altering, or abolishing its form of government. These methods are: 1st. The modes of amendment prescribed by the Constitution sought to be amended, which are exclusive of all other methods; and, 2nd. In the absence of a constitutional provision for revision and amendment, an act of the General Assembly, v.-hich in that event would alone be authorized to give expression to the will of the people as a body politic. This. Mr. President, I understand to be the limit that is put upon the power of the people as to calling conventions. :\Ir. Thom: Is it, in your opinion, necessary that there should be no provision in the organic law, in order that the people may set on foot, through the instrumentality of a statute, a method of amending their Constitution? or, in other words, is it neces- sary that the Constitution should be silent in order that they may proceed otherwise? 3164 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Mr. Bouldin: I think that the weight of authority is that when the Constitution provides a method of its own amendment, or revision, that method is an exclusive and not a cumulative remedy, and in that event it must be the controlling and only mode of peaceable amendment. If the Constitution itself is silent on the subject of amend- ment then the legislature, being the body representing the people, the only body legally authorized to speak for the people, can call a convention. I trust that I have made myself clear. Mr. Thorn: Yes, sir; I merely wanted your judgment on 'that point, because I think it is an interesting one. Mr. Bouldin: That, I think, is perhaps, one of the pivotal points in the determina- tion of this matter, and let me here say that in my judgment, the whole question now under discussion is one of the greatest importance; its consideration is reduced to a narrow compass; although it is the most important question we have been called upon to consider, yet the scope of our investigation is necessarily a narrow one. It is well established by the authorities that v/hen the Constitution provides its own method of amendment, that method must be strictly pursued. In the celebrated case of Luther vs. Borden (7th Howard, 1), the Supreme Court of the United States, amongst other things, decided that there v/ere but three methods of amending a constitution, saying in substance that "All political power originated with the people; but the voice of the people acting in their sovereign capacity, can only be expressed under conditions they have prescribed in their constitutions, or pointed out in statutes consistently v/ith the Constitution, or by revolution." That is the announcement of the highest tribunal of the land, in a well considered case growing out of Dorr's rebellion in the State of Rhode Island, and the principles announced in it have never been controverted to this day. The next case of importance in which this subject has been treated by the courts arose in the State of Massachusetts, justly considered one of the foremost States of the Union on all matters pertaining to a constitutional government, in which there is a bill of rights almost identical with our own. In the celebrated case of the "Opinion of the Justices" (6th Cushing, 575), in which Chief Justice Shaw delivered the judg- ment of the court, the doctrine is laid down that when the constitution prescribes the mode of amendment, it is the only method of peaceable revision and amendment. I read from the syllabus of the case: Under and pursuant to the existing Constitution, there is no authority by any reasonable construction or necessary implication, by which any specific amendment or amendments of the Constitution can be made, in any other manner than that pre- scribed in' the 9th article of the amendments adopted in 1820. If the Legislature should submit to the people the expediency of calling a con- vention of delegates, for the purpose of revising or altering the Constitution of the Comm^onwealth, in any specified part thereof, the people should, by the terms of their vote, decide to call a convention of delegates to consider the expediency of so alter- ing the Constitution, the delegates would derive their whole authority and commis- sion from such vote, and would have no right, under the same, to act upon and pro- pose amendments in other parts of the Constitution not so specified. Mr. Harrison: Is it not a fact that, in spite of that opinion, a Constitutional Con- vention was held in Massachusetts, in which they completely ignored that decision, adopted the Constitution, and submitted it to the people for ratification or rejection? Mr. Bouldin: I do not know that I can answer that question. I could not get hold of the valuable book of Jameson which has been so much in demand, and which I be- lieve contains a suggestion to that effect; but I will state that the case of Wells vs. Bain, so much relied on by my friend for the contrary opinion, was utterly ignored by the Convention and government of Pennsylvania, and ceased to be operative in the State, as stated in the case of Wood's appeal. I am inclined to think the gentleman has that case in mind rafther than the Massachusetts case. Mr. Harrison: No, sir; I am thinking about the Massachusetts case. DEBATES OE THE COXSTITUTIOXAL COXYEXTIOX OF YIEGIXIA. 3165 Mr. Eouldin: In the Pennsyivania case, which is the only authority of high re- spectability asserting a contrary doctrine, to that laid down by Chief Justice Shaw, the court announced the doctrine asserted by my friend from Winchester; but in the very next reported case, that of Wood's appeal, the court said, speaking by Judge Agnew, that the government, having adopted the Constitution, the question in Wells vs. Bain ceased to be a judicial question, and the court could have nothing to do with it. So that, in spite of the decision in Wells vs. Bain, the Constitution was adopted. Mr. Harrison: I think you are mistaken about the Pennsylvania case. What hap- pened in regard to that case was this: That the Legislature, after the decision of the case, gave validity to the Constitution, recognized it, and made it a de facto government, jiist as was done in Kentucky. Mr. Bouldin: I think I have stated the entire history of the doctrine of Wells vs. Bain, as stated by Justice Agnew. The doctrine that the voice of the people as a body politic must be expressed in the manner prescribed in its Constitution vras announced in Rhode Island when the opinion of the judges of that State was asked by the Convention. The Constitution provided its ovN-n mode of correction, and the court held that no other means whatever could be resorted to for the purpose of obtaining an expression of the will of the people as to revision and amendment. The court held that the ex- pression of the one mode of amendment was the exclusion of the other, and cited the opinion of Justice Shaw in the Massachusetts case, that I have just called your atten- tion to. The announcement of this doctrine is not confined to the States of Massachusetts and Rhode Island. In Nevada the same doctrine has been announced, and the same reasoning relied on, and the same ruling has occurred in Iowa. Indeed, Mr. Presi- dent, I believe that you v\-ill search the books in vain for any well-considered decision in which it is held that a Constitutional Convention for revision and amendment can be called in any other way than that provided by itself. The cases on this subject are few, but I have yet to find any in which it has been decided that any other peaceable mode of calling a convention for revision and amend- ment can be resorted to when the Constitution itself prescribes the mode of ascer- taining the popular will for that purpose. Jly able friend from Richmond this morning objected very earnestly to any pro- vision of the Underwood Constitution as furnishing a rule for our guidance here, and demands higher and better authority. I gave him the authority of Judge Cooley, easily one of the ablest men of his day, and an acknowledged authority on all questions of constitutional law. Hear what that eminent jurist says on this subject: In the original States, and all others subsequently admitted to the Union, the power to amend or revise their constitutions resides in the great body of the people as an organized body politic, who being vested with ultimate sovereignty, and the source of all State authority, have power to control and alter at will the law which they have made. But the people in the legal sense must be understood to be those who, by the existing Constitution, are clothed with political rights, and who, while that instrument remains, will be the sole organs through which the will of the body politic can be expressed. But the will of the people to this end can only be expressed in the legitimate mode by which such a body politic can act, and which must either be prescribed by the Constitution, whose revision or amendment is sought, or by an act of the legislative department of the State, which alone would be authorized to speak for the people upon this subject, and to point out a mode for the expression of their will in the ab- sence of any provision for amendment contained in the Constitution itself. Again, on page 747, the same distinguished author says: Although, by their constitutions, the people have delegated the exercise of sov- ereign power to the several departments, they have not thereby divested themselves of the sovereignty. They retain in their own hands, so far as they have thought it 3166 DEBATES OF THE COJTSTITUTIONAL CONVENTrOK OF TIRGINIA. needful to do so, the power to control the governments they create, and the three de- partments are responsible to and subject to be ordered, directed, changed, or abolished by them. But this control and direction must be exercised in the legitimate mode pre- viously agreed upon. The voice of the people, acting in their sovereign capacity, can be of legal force only when expressed at the times and under the conditions which they themselves have prescribed and pointed out by the Constitution, or v/hich, consistently with the Constitution, have been prescribed and pointed out to them by statute. Now, Mr. President, need I go further in the line of authority for the position that when the people speak, through their constitutions, as to the mode of amend- ment and revision that mode alone can be resorted to in the exercise of peaceable re- vision and amendment? I assume the doctrine on this subject as laid down by Judge Ccoley to be true at this day, and that this Convention called pursuant to the terms of the Constitution, was called in the only legal manner. I come now to the consideration of the extent of the powers of revision and amendment conferred on this Convention, and especially with reference to their power to proclaim the Constitution. I do not understand, Mr. President, that the Convention possesses, of itself, inher- ent powers, but that it exercises only delegated authority in the nature of sovereign power. I state this position with diffidence, for I am aware that there are able and distinguished gentlemen on this floor who hold that the Convention does possess in- herent powers and that when lawfully assembled it is "the incorporate representative -of the real body politic, the sovereign people." Such are the views held by that emi- nent constitutional lawyer and writer, the late John Randolph Tucker, who was uni- versally recognized as one of the foremost constitutional lawyers of his day. From the best information, however, that I have been able to gather from the authorities, I believe it to be the accepted opinion that "the Constitutional Convention is the representative of sovereignty only in a very qualified sense," and for the spe- cific purpose for which it is called by the people. The powers of the Convention are delegated powers, and its members must be able to point to the authority under which they act, their letter of attorney defining their powers. The authority given to this Convention by the sovereign people is to revise the existing Constitution and amend the same, and it was conferred by the people them- selves when they gave their affirmative answer to the question "Shall there be a Con- vention to revise the Constitution and amend the same," submitted to them in the manner ordained by them in their own Constitution. What are the scope and extent of the powers conferred on the Convention by our commission, our letter of attorney from the people? In my judgment, it conveys to us all the power of the State for the specific purpose for which we are assembled. It is broad enough to authorize submission to the present electorate, the new electorate, or proclamation of the Constitution, the result of our work. The power of the people to confer this authority in advance is as ample and com- plete as their power of ratification of the work when finished. The important consid- eration to be justly determined is the extent of the powers delegated, and it is immate- rial whether those powers are given to the Convention in advance of its work or trans- mitted by ratification of the Constitution when framed. Judge Cooley, in speaking of the universal practice growing out of the necessity of the case of some body of representatives chosen for the purpose framing and matur- ing amendments, says: No body of representatives, unless specially called for that P^^P°^^ P^^^" Pie when choosing them, can rightfully take definitive action upon amendments or ?evisTonTthey muft submit the result of their deliberations _ to the Pf^^ple-who alo^ I^I competent to exercise the powers of sovereignty m framing the fundamental law for ratification or rejection. But if they are specifically clothed with the power of revision and amendment by the people in choosing them, their powers can only be limited by a just interpretation DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OE VIRGIXIA. 3167 of the meaning of the words "revise and amend." If they carry with them the idea of enactment also, then the power to proclaim is as thoroughly established as the duty to submit when no such power of enactment is granted. Xovr, sir, what are the powers given to this body by the people speaking as a body politic in the mode authorized by their Constitution? For the purpose of revision and amendment the General Assembly is authorized by the Constitution to submit to the people this question and no other: ''Shall there be a Convention to revise the Constitution and to amend the same?" Xot shall there be a Convention to discuss and propose amendments, and to advise the same, as was the case in the call of the Convention of 1850-1S51: Not to revise and amend the Consti- tution and submit the same to the qualified voters of the State, but the mandate is simply to submit the question, "Shall there be a Convention to revise the Constitution and to amend the same?" The general Assembly, as it was its obvious duty to do, sub- mitted the questions to the people as prescribed by the Constitution. Is it possible to take from the meaning of the words '"revise" and "amend" the idea of "enactment"? The accepted meaning of the word revise is "to look at again for detection of errors," to "look with care for correction," to "review, alter, and amend, as to review statutes." The word "amend" means to change or modify in any way for the better as by simply removing what is erroneous, corrupt, superfluous, faulty, and the like, by supplying de- ficiencies, by stibstituting something else in the place of what is removed; to rectify. The qtiestion submitted to the people was not to call a Convention to propose revi- sion and amendment, but to make it. The Constitution next provides the duty of the General Assembly In case the elec- tors shall decide in favor of calling a Convention. It requires that the General As- sembly shall at its next session provide by law for the election of delegates to such Convention. The mandate of the Constitution is peremptory, and leaves no discretion- ary powers in the General Assembly; that body can neither extend nor diminish to the peremptory mandate of the Constitution. It can provide for the assembling of the Convention and when this duty is discharged, the powers of the General Assembly in this particular are at an end. The Pennsylvania doctrine leaves the exercise of the power of calling the Convention discretionary with the General Assembly; the Virginia Constitution makes it mandatory on that body to provide by law for the meeting of the Convention. y^v. Harrison: Do you contend that the Constitutional Convention of IS 69 could confer powers upon the delegates to this Convention? Mr. Bouldin: I do not, sir. I answer that question more fully by adopting the position taken by Judge Cooley, by Chief Justice Shaw, by the Nevada court, by the Iowa court, and by the courts in almost every case in which that question has been presented, that when a Constitution prescribes the mode of expressing the voice of the people on the question of the Convention or no Convention, that method is the only peaceable mode by which the people as a body politic can lawfully speak. I contend that the Constitution has prescribed the peaceable mode in which the great voice of the people can be heard to call into being a Convention; and the mo- ment that that Convention, legally called by the people, in the mode prescribed by their organic law, assembles and organizes, it is clothed with the powers of the whole people, and is not bound by anything that was done by a preceding Convention. That is my attitude on that point. I do not contend that the Convention derives any power from the existing Constitution; its power comes neither from the Constitution nor the Gen- eral Assembly, but from the people, the source and fountain of all State power. In 1829 Judge Thompson, who, like my friend from Winchester, was a strong advo- cate under the existing conditions, of the Pennsylvania doctrine, said the claim that the Convention derived its power from the General Assembly was one of supereroga- tion; and I think the same can be said of any such claim in behalf of a former Con- vention or any General Assembly at this time. 3168 DEBATES OE THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Mr. Chapman Johnson, when speaking of this same Pennsylvania idea (which, in my judgment, would never have been suggested had the existing Constitution contained any provision for its revision and amendment), admitted that the Legislature had no inherent power to direct to what electorate the Constitution should be submitted, but that such powder could come only from the people, who, he claimed, directed such sub- mission by ratifying and endorsing the act of the General Assembly providing for the election of members of the Convention, which also contained a provision prescribing to whom the Constitution should be submitted. When the Convention of the people assembled, the delegates were clothed with all of the powers of the principals and masters, the people, for the purpose of vfhich they were assembled, which were delegated to them by the people, and which can be neither restricted nor enlarged, nor in anywise affected by the provisions of a former Constitution or General Assembly. They were invested with quasi-sovereign povv^ers directly deputed to them by the people. Mr. Harrison: If the people v/anted to call a Constitutional Convention with re- stricted powers, how Vv^ould they do it? Mr. Bouldin: They would call the Convention in the manner the Constitution pro- vides, to revise and amend; and if the restricted amendments came within the provi- sion of "revision and amendment" the Convention would have full power to act on them. Mr. Harrison: Will you allow me to ask you one more question? If the Constitu- tional Convention of 1869 had the right to confer power on the delegates to this Con- vention, is not the restriction they put upon the powers of the delegates here as bind- ing as the powers they have conferred? Mr. Bouldin: I am going to give my attention to that matter later, and will deal with it fully in two aspects; first, as showing the intention and meaning of the Con- vention by the use of these vt^ords, "revise and amend," and, secondly, as to their power to make such a provision. I w^as about to say, when diverted by the last ques- tion, that the power exercised by the people when, by their affirmative vote, they de- termined that a Convention should be called, was not the moral power which, in the Pennsylvania case, according to Judge Agnew, alone existed. Judge Agnew said, in the Pennsylvania case, that the first vote of the people simply put on the Legislature such a moral obligation to call a Convention as the expressed wish of the people would create; but that there was no mandatory direction to them to call a Convention; it re- mained perfectly discretionary with that body to call the Convention or not. Here, gentlemen, is the great difference betvv^een this r*ennsylvania doctrine and the Virginia doctrine. Our Constitution provides that in case the electors shall decide in favor of a Convention the General Assembly, at its next session, shall provide by law for the election of delegates to said Convention; not that they may provide by law for such Convention. The language is clear-cut, direct and mandatory, that it shall call. Is there any authority under the provision to direct the delegates to assemble at the Capitol in general Convention "to consider, discuss, and propose a new Constitu- tion, or alterations and amendments to the existing Constitution," and to direct that the result of the labors shall be submitted for ratification or rejection to the people? If any gentleman here feels that this Pennsylvania doctrine gives him trouble, I beg of him to draw the distinction, and carry it clearly with him all the time, that according to the ruling of Judge Agnew, in the Pennsylvania case, there was no man- datory direction to the Legislature to call a Convention. The whole matter was left discretionary with the General Assembly. It could either call it or not, as it saw fit. The Virginia Constitution leaves no such discretion vfith the General Assembly; that body is bound by the mandate of the Constitution as long as it exists, and that mandate is that that body shall provide by law for the election of delegates to such Convention, and nothing more. That is the full scope and power of the letter of attorney addressed to the Legislature by the sovereign people, their masters, and when it un- DEBATES or THE COXSTITUTIOXAL COXYEXTIOX OF YIRGIXIA. 3169 dertakes to take from or add to the terms of that command it transcends its power; and so much of their act as modifies or changes the mandate of the Constitution is, in my judgment, absolutely null and void. I recall here that it was argued on this floor by the able gentleman from Win- chester that if one provision of the act of the General Assembly for the election of delegates to the Convention is void, necessarily all the remaining provisions of the act must fall. I do not so understand the law. I understand it to be a canon of construc- tion, universally recognized and admitted that if the provisions of a statute are separate and distinct, and are not interdependent the one upon the other that the legal pro- visions will stand, the illegal fall, the good will be maintained, and the bad will be rejected. When you look to our Constitution for the right and power of the Legislature to act, you will see that it is limited to providing by law for the assembling of the Convention. When they have done that they have exhausted their whole power, and there is nothing left for them to do; as to this matter they are "functus officio." No further provisions on this subject by the Legislature will legally bind any human •being in the Commonwealth. If the Legislature can direct the submission of the Constitution they can exercise any and all other duties of the Convention, and that body will become a mere com- mission to register the will of the General Assembly. No other power on earth, save that from which this Convention derived its authority, can direct the disposition to be made of the Constitution by this body. My attention has been called by my friend from Winchester to a point which I had previously carefully determined should not escape me. It is one that is very significant in its bearing on the Question under discussion. Llr. Kendall: Llay I ask the gentleman if he thinks we have put anything into this Constitution which violates that proviso? Mr. Bouldin: No, sir; we have not. Mr. Harrison: Hovr about the military exemption, and the capitation tax not applying to soldiers? Mr. Bouldin: That proviso, gentlemen, is a very significant part of the provision for amendment. The provision engrafts the only limitation that the former Conven- tion attempted to impose upon the power of the delegates to future conventions, and the proviso is as follows: No amendment or revision shall be made which shall deny, or in any way impair the right of suffrage or any civil or political right conferred by the Constitution, except for causes which apply to all persons alike. Now, sir, this proviso goes a long way to show what the framers of the Constitu- tion understood by the words, "revise and amend." The only limitation attempted to be placed upon the power of the conventions thereafter called in the manner pre- scribed by the Constitution was what? It was against making any revision or amend- ment that would impair the right' of suffrage, or any civil, political right conferred by the Constitution, not considering, nor discussing, nor proposing such revision or amendment. In no other respecf did that body attempt to restrain future conven- tions, but left them the untrammelled right to exercise all the power that might be delegated to them by the people. Had the Convention intended to provide for the submission of future constitutions to the people for ratification or rejection, they would have said so in plain words, and not left so important a. matter to be determined by the meaning of the words revise and amend. I beg you, gentlemen, to bear this proA'iso in mind when considering this important question of the extent of povrers delegated by the words "revise" and "amend." 3170 DEBATES OP THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Not that the Convention of 1869 had any power to place such restrictions on future conventions, for it had no such power, but for the purpose of throwing light on the in- tention and meaning of the Convention in the use of these words. As to whether we have not already violated this provision as suggested by the dis- tinguished gentleman from Richmond, by the adoption of the suffrage act, I under- stand that as far as the suffrage act is concerned, it was the intention of this body, that its provisions must apply equally to people of all races and all colors. Mr. Harrison: It doesn't say "races," it says "all classes." Mr. Thorn: The language is, "Except for causes which apply to all persons and classes." Mr. Bouldin: It may be in this latter that the suffrage article violates the proviso contained in the Constitution of 1869, but if so this body representing the people to-day had the right to adopt any suffrage article without reference to the provisions of the Constitution of 1869, for I suppose it would not be seriously contended by any one that the provisions of a former Constitution could bind the people assembled in Convention to-day. That position, I believe, is held by no one. I come now to further consideration of the main proposition — the theory of revision and amendment in the time of profound peace. As I understand the theory of this quasi-revolutionary and purely American doctrine of revision and amendment it is this: If the Constitution prescribes its own mode of amendment that mode must be pur- sued in all cases of amendment; if no method of amendment and provision is pre- scribed, the Legislature, as the body legally authorized to speak for the people, can submit any proposition of revision and amendment to the people for its action. In either event the whole function of the constitutional provision on the legislative enactment is merely to ask and obtain the decision of the people on the question of con- vention or no convention; and when a convention is assembled under either process it derives its whole power from the vote of the people, and not the act of the Legislature or the ordinance of the convention. The whole scope, purpose, and object of the legis- lative act and the constitutional provision is to provide the means by v/hich the people may legally express their views, as a body politic, and not enable the Legislature or the convention to control, in any particular, the rights and powers of the people in any future conventions assembled; I understand it, sir, to be acknowledged and recognized law that one General Assembly cannot bind another by any enactments except in cases of contracts controlled by the provisions of the Constitution of the United States. I also understand that one constitutional convention cannot control the subsequent action of any other convention, and that the whole extent to which this system of peaceable revo- lution, which has sprung up in recent days, goes, is that the people, acting in one in- stance under the provision of the Constitution and in the other under a legislative enact- ment can determine the question of convention or no convention, and provide the means ^ by which the delegates may be assembled in convention, and when once assembled, they as a convention exercise the delegated power of the people, the sovereign power of the people, quoad the purposes for which they were called together. Let us look awhile to the precedents in Virginia on this subject. There was no con- stitutional provision for calling the Convention of 1829-'30. The previous Constitution was (1776) the work of revolution, and was proclaimed; nevertheless it was a lawful and binding Constitution, and was so declared by the General Courts about seventeen years after its proclamation. The Legislature in 1829 was the only body legally author- ized to give expression of the will of the people, and it called the Convention of 1829-'30. Had there been in the Constitution of 1776 any provision for its own amendment, this provision would doubtless have been followed in 1829. But notwithstanding the fact that there was no other body legally authorized to express the voice of the people, ex- cept the Legislature, the power of that body to submit the question of revision and amendment was bitterly controverted in the Convention of 1829, John Randolph, of Roanoke leading the assault. DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIEGIXIA. 3in The Convention of 1S29 did not submit its work to the electorate by whom they were chosen, but to the new^ electorate created by it, thus practically proclaiming their Con- stitution with respect to the suffrage article — then, as now, the most important part of the Constitution. This power was exercised under a grant from the people, couched in these same words, "revise" and "amend." If the Convention possessed the power to proclaim the suffrage act, what hindered it from proclaiming the article with reference to the apportionment of representation as was asked in that body? Nay, more; if the Convention had the power to proclaim one article, why, I ask, could it not proclaim every article of the instrument? That Convention did what we claim it is our right to do — it proclaimed the most important article of its Constitution — the suffrage act. When that was done, the principle was acknovrledged. ;Mr. Thorn: Does not my friend know that was done under the very terms of the act of 1S29? Does he not know that the extended electorate was mentioned in the terms cf the act of 1S29? Mr. Bouldin: i know that there was not an advocate in the Convention of 1S29 — neither Thompson, nor Johnson, nor Mason — that ever claimed it was the purpose of the Legislature to decide the question to whom it should be submitted. I refer especially to Mr. Mason, who said that he was a member of the Senate when that act vras passed, and that it did not enter the conception of that body that they were declaring to whom the Constitution should be submitted; but that they did mean to declare, and did declare, that in the event the Convention did not prescribe the electorate to which it should be submitted, it should go to the then existing electorate. That was the understanding of those great men who controlled that convention. The only difference between this Con- vention and that of 1829-'30, as to the power of amendment and revision, is, the one was called by the Legislature, when there was no constitutional provision for amendment, and the other was called under a constitutional provision. Mr. Wise: You are referring to the action of the Convention of lS29-'30, and you are speaking about the speech of 3,Ir. Mason. The resolution of Randolph, of Roanoke, was that the question of the ratification of the Constitution of the Convention of lS29-'30 should be submitted to the voters then existing under the Constitution. Mr. Bouldin: The voters who sent them to the Convention; yes, sir. ^^Iv. Wise: Mr. Thompson, of Amherst, and Air. Chapman Johnson, of Augusta, both of them among the ablest of the members of this State, took the position that the Legis- lature had no right to provide for submission to any other people than those who were electors under the Constitution then existing; but chey both took — Mr. Bouldin: That vras ^Iv. Randolph's position. Mr. Wise: That was Mr. R,andolph's position. But both Johnson, of Augusta, and Thompson, of Amherst, contended that the people of Virginia, having elected the mem- bers of the Convention of lS29-'30 under the act of the Legislature, endorsed the act of the Legislature, and that the Convention of lS29-'30, assembled under the provisions of that act, and was bound by the provisions of the act imder which they were assembled. Mr. Bouldin: My friend is right when he says that 'Mr. Johnson and Judge Thomp- son did not claim that the Legislature had a right to prescribe the electorate to which the Constitution should be submitted, and he might haA'e added that there was not one man in that Convention, so far as its records will show, who did assert such a claim. He is also correct in saying that they claimed that, by the subsequent act providing for an election of members, all the provisions of that act regulating the powers of the dele- gates, when they came into convention, were ratified by the people. It v^sls on that point that the dissension sprung up. There v«-as not a single man who claimed the inherent power of the Legislature, where the Constitution provided a different means, to override that of the Constitution. The claim for legislative power was based on the fact that there was no other legal mode of ascertaining the will of the people — no constitutional provision. The advocates of submission to-day are driven to the same position held in 1829 by those who favored submission to the enlarged electorate — to-wit: That the elec- 3172 DEBATES OE THE CONSTITUTIONAL CONVENTION OP VIRGINIA. tion of delegates by the people was a ratification by the people of all of the other pro- visions of the act providing for the election of delegates to the Convention. They for- get that the conditions in 1901 are very different from those in 1829-'30. In 1829-'30 the Legislature had power to pass any act on the subject that it chose; in 1903 its powers are limited by the existing Constitution to providing by law for the assembling of the Convention. But can there be any force in the argument that the election of delegates by the people was an adoption and ratification by them of all the provisions of the act, consti- tutional or otherwise? The proposition seems to me to be remarkable indeed. The unconstitutional por- tions of the act were absolutely null and void. To borrow the argument used in 1829, what else could the people do when the elec- tion came? Were they not "se defendentis" compelled to elect their delegates to the Convention, or, as the alternative allow a part only of the Commonwealth to frame the Constitution? Suppose the people from the western part of the State sent their delegates and those from the eastern part did not, or vice versa, how could the people of the whole State secure protection? If it be true that an election held under a legislative act, partly legal and partly illegal, is an adoption and ratification by the people of the illegal por- tions of the act, then it would be in the power of the Legislature, after the people had determined to call a convention, to defeat their will by engrafting on the act for assem- bling the convention illegal or objectionable measures, and thus compelling the people to accept these obnoxious provisions or drive them from the polls. Surely such results cannot legally follow the simple act of the voter of voting for his representative. I undertake to say that the people who went to the polls and elected delegates to this Convention had no idea whatever that they v/ere not binding themselves to submission or proclamation; or that they were doing anything save sending their members to the Convention to exercise the powers conferred upon them. I believe there was a sentiment in Virginia at the time of the election which has always been largely held in the State, that a Constitutional Convention possessed un- limited powers, and that, so far as the practical understanding of the people is con- cerned, v/hen they voted for their delegates, their belief v/as that they were sending their representatives here clothed with the entire power of the State to do whatever they chose v/ith respect to the work before them. It was generally believed the Convention represented the sovereign power of the State. The people of this State hold the doctrine announced by Mr. John Randolph Tucker, that the Convention v/hen assembled is the incorporate representative of the real body politic, the sovereign people, and that their powers are unlimited. I do not think that modern authorities go to that extent; they are to the effect that the Convention exercises delegated powers, but sovereign for the purposes for which they were delegated, and that there rests upon the Convention the obligation to show the commission under which it acts and to demonstrate that it car- ries the pov/er which we claim. That commission is, "to revise and to amend," vi^hich, in my judgment, means to enact and proclaim. I come nov/ to the convention of 1851. There can be no comfort gained by my friends who favor submission from its action. The act prescribing the power of the Convention and the manner of submitting the Constitution to the people was the initial step for the revision and amendment of the existing Constitution. The act required the Constitution, when framed, to be submitted to the people, who should be declared elec- tors by the proposed Constitution, and the powers of the Convention were limited by the legislative act, or a.ttempted to be limited to considering, discussing, and proposing a new Constitution, or alterations and amendments, to the existing Constitution. The section defining the powers of the Convention is as follows: The persons who shall be elected in pursuance of this act shall, on the second Monday in October next, meet and assemble at the Capitol, in the city of Richmond, DZBATZS OF lEE COXSIIirilOXAL COXTEyilOy OF VIEGIXIA. 31:3 In general convention, to consider, discuss, and propose a new Consiiiution, or altera- tions and amendments to the existing Constitution. Conseauentlv the Constitution of 1S51 vras submitted to the people, and as in 1529- 'SO, the suffrage act was declared or proclaimed by referring the Constitution to its en- larged electorate. As late as 1S51 there was no provision in our Constitution for peace- able amendment. But in the next Constitution, the ITndervrood Constitution, a provision was engrafted upon it for its own amendment. The provision was taken. I believe, from the Xew York Constitution, and was similar to that existing in almost all of the States of the ITnion. It was a provision which has the sanction of the Supreme Court of the United States, as being the proper method of giving expression to the voice of the peo- ple as to peaceable revision and amendment of their own Constitutions. Xow, Mr. President and gentlemen of the Convention, we come again to the consid- eration of the powers of the Convention. What are they? They are: To revise and amend. It is claimed that the power does not authorize the exercise of the power of proclaiming the Constitution — ^that the Legislature has stepped in between the people and the Convention, and placed restrictions and trammels upon t£e action of the people and reqrdred the Constitution to be submitted. This extraordinary claim is based on the alleged ground that the bill 01 rights retain in the people certain inherent rights that they cannot divest themselves of except through the act of the Legislarure submitting to the people the Question of changing their government. For this doctrine the Pennsyl- ^ ania case of "Wells vs. Bain is referred to, forgetful of the lact that that very case de- clares, in terms, that the only known means of revising and amending a constitution is by a provision contained in the instrument, or by legislative act, or by revolution, and that in Peimsylvania, at that time, there was no constitutional provision for calling a convention to revise and amend the Constitution, and that every line and syllable of that opinion is limited to a case where the Legislature exercised its power 01 amendment, there being no other provision for exercising such powers. But in every case that I have been able to find on this subject, where there is a con- stitutional provision for amendment, it has always been held to be binding. If there be no such constitutional provision the legislative enactment comes into effect. And, as my friend from Richmond thinks that under the Pennsylvania case revision and amendment of rights secured by the Bill 01 Rights can only be effected by authority of a legislative act, I beg to read the language of Judge Agnew on that point. The Bill of Rights of Pennsylvania, as he so well stated, is almost identically the same as our own. There may, perhaps, be a little diSerence in phraseology, but not a particle in meaning. Referring to the rights secured in the Bill of Rights, the Judge says: "The words 'in such manner as they may think proper,' in the Declaration of Plights, embrace but three known recognized modes by which the whole people, the State, can give their consent to an alteration of an existing lawful frame of government." The first mode he mentions is that foimd in the Underwood Constitution: "The mode provided in the existing constitution." The second, "A law, as the instrumental process of raising the body for revision and conveying to it the powers of the people." Third. '"'A revolution." Mr. Thorn: I merely wish to get the exact position of my friend on one subject, Mr. President-, As I understand, he does not claim that this convention is identical with the people? Mr. Bouldin: I think they exercise delegated powers conferred by the people. Mr. Thorn: I was about to follow that with a further question. You admit that the powers of this convention are delegated powers, and that we are the mere agents of the people? Mr. Meredith: T\"liat is the extent of the delegation? It is not the supreme power of the people. Mr. Bouldin: The power given us is the power to revise and amend; which, in my 3174 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. judgment, is to enact, and to this end we possess all the power held by the people. The delegation to the convention is the fullest and amplest power to frame a Constitution, and to submit or proclaim the same, as the Convention may deem best. As before stated, such is the opinion of Mr. Tucker, and he holds the further view (which I think generally prevails in the State) that the convention, legally called into being by the in- strumentality through which alone the body politic can speak, becomes possessed of all the powers of the people themselves. If that be the correct view (and it is maintained, I understand, by eminent gentlemen on this floor), it does not militate against anything that I have said, but strengthens my position, that we have the power to proclaim the Constitution. My friend from Richmond defies us to point to any instance of proclamation of a Constitution. In recent times, in Arkansas, in Mississippi, in Florida, in South Caro- lina, and in Delaware, constitutions have been proclaimed, and in the earlier days of the republic the constitutions of all of the original States were proclaimed; and the Constitution of the United States was proclaimed after it was ratified by the Legisla- tures of the States. Mr. Wise: You say you will name three States in which proclamation was made? Mr. Bouldin: Pour or five, I think I have named. Mr. Wise: In 113 instances, in opposition to that, they have voted that proclama- tion could not be made. Mr. Bouldin: All of the original States of this Union proclaimed their constitutions. Mr. Blair: In reference to the Delaware Constitution, I wish to call the gentleman's attention to the fact that it has been the custom in Delaware to proclaim the Constitu- tions, and it is a fact that in Virginia laws are made by custom. Therefore, if it were the custom to proclaim the Constitution in this State we would be justified in doing so now; but that is not the case. I wish the gentleman to state it has been the custom in Delaware to proclaim their Constitutions. Custom makes law just as much as it does a written Constitution. Mr. Bouldin: The Constitution was proclaimed; there never was any objection made to it, and its validity is as undoubted as is the validity of the constitutions of other States that were submitted to and ratified "by the people. In this connection I beg to again cite the opinion of Mr. Tucker when referring to the fact that in the early history of the country nearly all, and certainly all the original States, proclaimed their Constitutions. Mr. Tucker says there is no fixed rule as to whether the Constitution must be submitted or proclaimed, but that the practice varies in different States, and he concludes with this: But the practice has had exceptions, and it may be safely stated that the validity of a Constitution will not be held to depend upon its final ratification by popular vote. This is the opinion of a very eminent man, who stood, perhaps, as high as any con- stitutional writer in the United States, and he says the validity of a Constitution does not depend upon its ratification. In the early history of the country the Constitutions were proclaimed. Latterly the custom has changed; why it has changed I do not know, sir, but it has occurred to me that it has been the result of governmental rather than judicial considerations. The admission of new territories, and difficulties that have arisen in this connection, as to rival constitutions, such as the Le Compton trouble in Kansas, referred to by the gentleman from Wythe, may have caused a steady increase in growth of the sentiment in favor of submission, which during the last half century has been the prevailing rule rather as a governmental than a judicial consideration. But after all, behind and underlying, in my judgment, the question of the power of the con- vention is the scope and extent of their commission. Their commission is to revise and amend. That revision and amendment may apply to one clause or it may apply to every clause, and every line in the Constitution, and carries with it the power of enactment The power of enactment can be delegated as well In advance as by the adoption and DEBATES OF THE COXSTITUTIOXAL COXVENTIOX OE VIRGINIA. 3175 ratification of our work, as said by Judge Cooley, and in my opinion the whole power of the State to make a new Constitution and to proclaim it as the organic law of the land has been delegated to us by the people. How, gentlemen, are the powders of this Con- vention sought to be limited and confined and that body required to submit its Consti- tution? By an act of the Legislature which was never submitted to the people, and is contrary to the provisions of the Constitution, and which legally could provide only for the election of the delegates. Now, sir, if there be a conflict between the method pre- scribed by the Constitution and the provisions of the legislative act providing for the election of the members, I ask this Convention: Which is to prevail? Shall the con- stitutional provision be set aside and the legislative provision take its place? or shall the legislative provision, in so far as it is in conflict with the Constitution, give way? Does the Convention derive its powers from the people? or from the illegal legislative enactment? The authorities are not silent on this point. In West Virginia, just across the border, it has been held that a constitutional convention lawfully convened does not derive its powers from the Legislature, but from the people — that these powers are in the nature of sovereign powers — and that the Legislature can neither limit nor restrict the convention in the exercise of those powers. The same doctrine was announced in Mississippi, and I believe it prevails in all of the States where it has been brought into question. Mr. Pedigo: Do you contend that this Convention could reduce the suffrage to one- fourth of v/hat it now is, then proclaim the Constitution and compel the three-fourths of the people of Virginia either to go into revolution, to get their rights, or give them no way at all to get their rights except by the votes of the one-fourth? Mr. Bouldin: I had not expressed any opinion in that event, but I said, and now say that in my opinion the Convention has a right to make the Constitution and proclaim it, and that if the people object to it, either in the proportion of one-fourth or of three- fourths, they have their remedy in calling another convention. Mr. Pedigo: How can they call another convention, if they cannot vote? (Laughter). Mr. Bouldin: In the manner provided by the Constitution, if there be any provision for that purpose, and in the absence of such provision, by the Legislature or by revolu- tionary proceedings. W^hat I do say is, that, in my judgment, the Convention has the right to make and proclaim the Constitution. In a recent case in Mississippi, the judge, in delivering the opinion of the court, said among other things: The act of the Legislature which provided for the assembling of the Constitu- tional Convention of 1890, declared that the end sought to be attained, the work to be done, was the revision and amendment of the Constitution of 1869, or the enact- ment ot a new Constitution; it did not attempt to limit the powers of the Convention by imposing, or seeking to impose, upon that sovereign tribunal the mere legislative will that the Constitution should be submitted to the people for ratification. And in speaking of the character and nature of the powers of Constitutional Con- ventions he further said: We have spoken of the Constitutional Convention as a sovereign body, and that characterization perfectly defines the correct view, in our opinion, of the real nature of that august assembly. It is the Iiighest legislative body known to freemen in a representative government. It is supreme in its sphere. It waelds the powers of sovereignty, specially delegated to it for the purpose and the occasion by the w^hole electoral body, for the good of the whole Commonwealth. The sole limitation upon its power is, that no change in the form of government shall be done or attempted. The spirit of republicanism must breathe through every part of the framework, but the particular fashioning of the parts of this frame work is confided to the wisdom, the faithfulness, and the patriotism of this great convocation representing the people in their sovereignty. The theorizing of the political essayist and the legal doctrinaire, by which it is 3176 DEBATES OE TELE CONSTITUTIONAL CONVENTION OE VIRGINIA. sought to be established that the expression of the will of the Legislature shall fetter and control the Constitution-making body, or, in the absence of such attempted legis- lative direction, which seeks to teach that the Constitutional Convention can only pre- pare the frame of a Constitution and recommend it to the people for adoption, v/ill be found to degrade this sovereign body below the level of the lowest tribunal clothed with ordinary legislative powers. This theorizing will reduce that great body, which, in our own State, at least, since the beginning of its existence, except for a single brief interval in an exceptional period by custom and the universal consent of the people, has been regarded as the repository and executor of the powers of sovereignty, to a mere commission, stripped of all power, and authorized only to make a recommenda- tion. To the same effect was the decision in West Virginia before referred to. Now, Mr. President, this brings me to the last point to vvhich I will invite your attention in considering the conflict between the constitutional provision for amendment and the legislative provision. The constitutional provision requires the Legislature to provide for the election of members to the Convention, and nothing else. The Legisla- ture of Virginia undertook to provide not only for the assembling of the Convention, which they were commanded to do by the Constitution, but also to limit the power of the Convention to the right to consider, discuss, and propose a new Constitution, or alterations and amendments to the existing Constitution. Now, sir, here is a direct conflict between the mandate of the Constitution and the provision of the act of the General Assembly. Which shall prevail? Which shall gov- ern the people? Which shall define and declare the powers of this body? The Consti- tution, which created the Legislature, or the Legislature which is the creature of the Constitution. There can be, sir, under the universal rules of interpretation, but one answer to that question. That is, that the provisions of the legislative enactment is void, in so far, and to the full extent of its conflict with the Constitution, and must yield to the constitutional requirement. The relative pov/ers of tlie two bodies have been so well stated in an early Pennsylvania case that I cannot refrain from quoting to some extent of the able Judge Patterson, who delivered the opinion of the court, defining the comparative difference between a Constitutional Convention and a Legislature. What is a Constitution? asks the Judge. It is the form of the government delin- eated by the mighty hand of the people in which certain first principles of fundamental law are delineated. The Constitution is certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the Legislature, and can be revoked or altered only by the authority that made it. The life-giving principle and the death-dealing stroke must proceed from the same hand. Yvhat are legislatures? Creatures of the Constitution; they ov/e their existence to the Constitution; they derive their powers from the Constitution; it is their com- mission, and therefore all their acts must be conformable to it, or else they will be void. The Constitution is the wov^ of the vv^ill of the people themselves, in their original, sovereign, and unlimited capacity. Law is the work or will of the Legislature in their derivative and subordinate capacity. The one is the work of the creator, and the other of the creature. The Constitu- tion fixes limits to the exercise of legislative authority, and prescribes the orbit within which it must move. In short, gentlemen, the Constitution is the sun of the political system, around which all legislative, executive, and judicial bodies must revolve. ¥7hatever be the case in other countries, yet in this there can be no dcJubt that every act of the Legislature repugnant to the Constitution is absolutely void. The legislative act must give away and be rejected on the score of repugnance. Now, gentlemen, such being the relative situation of these two bodies, which is to control in providing for the assembling of this Convention? The principles laid down in that early Pennsylvania case are as strong to-day as when they were uttered. When- ever it can be ascertained that there is conflict between a legislative enactment and a constitutional provision, the legislative enactment must go to the ground, and the con- stitutional provision must prevail. Mr. President, I conclude where I began — that the DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE TIEGIXIA. 3177 vrhole question involTed in this discussion is, vrhettier our commission, our letter of attorney is broad enough to embrace the poorer we claim for it, irrespective of the illegal requirement engrafted by the Legislature on the act providing for the assembling of the Convention — vrhether to "revise and amend" is equivalent to a povrer to revise, amend, and proclaim. After the most earnest consideration that I have been able to give to this subject, and with an equally earnest desire to reach the truth, I have come to the conclusion that we have the right to proclaim the Constitution. I recognize, gentlemen of the Convention, the great importance of this matter, and I have formed this conclusion after careful investigation and with much dilEculty, and I am, however, open to convic- tion as to the correctness of my opinion. It is my present intention, when this ques- tion comes up, to vote for proclamation, cut if those gentlemen who advocate other views can show me that the interests of the people will be jeopardized by such pro- clamation, no man could more promptly change his views than I. If we were a homo- geneous people, if there was not such a marked and distinct difference in the people to be affected by this Constitution, I would, in the exercise of that custom that habitually controls my actions in matters of importance, vote for submission; but I believe that the welfare of our Commonwealth requires that we should avoid the cost and agitation of a heated contest over the adoption of the Constitution, and it is our highest duty tc recognize the wishes of the people of the State and proclaim the Constitution. AVe have the power to do so. We are throwing off, I trust, the last shackles of our unsuccessful revolution and entering upon a better era of our country's career, I do not wish to hazard unnecessarily the hopes of our people by risking the loss of our Constitution, which is a good instrument and will meet the growing wants of the people. Believing that the best interest of the State requires the adoption of the Constitution we have framed, I shall, in the exercise of the power that I believe we have received directly from the people, that no legislature can fetter, vote to declare the supreme law of the State. I thank you. gentlemen of the Convention, for your kind attention to this disjointed and rather rambling discourse. (Great applause.) On motion of Mr. Thom the Convention adjourned until to-morrow, Tuesday, May 27, 1902, at 10 o'clock A. M. TUESDAY, May 27, 1902. The Convention met at 10 o'clock A. IM. Prayer by Rev. Richard Mcllwaine, D. D. PETITIONS AND RESOLUTIONS. Mr. Thornton: Mr. President, I offer the following resolution and ask its imme- diate consideration. The President: The Secretary vrill read the resolution. Resolved. That the Supreme Court of Appeals of Virginia be. and is, hereby re- quested to give its opinion in writing, at the earliest time practical, as to the au- thority of the Constitutional Convention to proclaim the proposed Constitution. IMr. President, in offering that resolution I desire to state that I find, in discussing the question from a legal standpoint, great diversity of opinion. Gentlemen who possess equal ability seem to differ widely as to the legal right of this Convention to proclaim the Constitution, and it seems to me, sir, that where such diversity of opinion exists there must be some uncertainty. The sooner that uncertainty is disposed of the better. I 200 — Const. Deb. 3178 DEBATES OE THE CON"STITUTIONAL CONVENTION OF VIRGINIA. imagine that the Court of Appeals will very cheerfully comply with the request of the Convention for its opinion. I presumie that the matter would ultimately come before that court, anyhow, and it seems to me it would be better to have the matter settled finally now rather than to wait until it may be too late. Mr. Wescott: Will the gentleman give some information on the subject as to what reason he has for making that request, and what authority the court has to decide a moot question. Mr. Thornton: I will answer that with pleasure. I do not think, In the first place, that this is a moot question. If it is, this convention has been discussing a moot ques- tion for some time. Secondly, as I stated, I do not believe the Court of Appeals under the circumstances would refuse a request of this Convention if this matter should be submitted to it. After this Convention adjourns it will become a very serious matter, indeed, Jf the court should decide the Convention had not the right to proclaim the Con- stitution. I think now would be the proper time to submit that question, and I do not believe the Court of Appeals would refuse the request, even if they had the right to do so, when it is made by a resolution passed by this Convention. Ordinarily, I know the Court of Appeals would act, and that they would prefer to act now rather than wait until after this Convention has adjourned. That is the reason I offer it. Mr. Pedigo: I move that the resolution lie on the table and be printed. The President: It will be so ordered in the absence of objection. METHOD OF ADOPTING CONSTITUTION. The President: The unfinished business this morning is the resolution offered by the gentleman from Campbell (Mr. Daniel) as to the disposition to be made of the Con stitution. Mr. Pedigo: Mr. President and gentlemen of the Convention, I have been asso- ciated with the members of this Convention for so long a time, and have become so y^ell acquainted with them, and have found them to be such genial, good fellows, that I do not harbor a doubt that each and every one of them is actuated by motives of honor and patriotism in all their acts and votes. I have learned to honor them all. And, while owing to my party affiliation, I have been separated from the great majority of them in their most exacting, trying, and painful work, still I have at no time envied them either their exalted power or the distinction, fame, glory, and honor they have gained, or are likely yet to win, by the skilful manner in which they have handled the vexed problems it has fallen to their lot to grapple with. I beg you all to bear in mind that any seeming want of due respect and reverence that may slip out in my renjarks will be intended and directed at the structure, and not at the builders. I have never regarded the pov^ers of this Convention to be god-like or even imperial, but, on the contrary, as being in strict subordination to the Constitution of the United States, the Constitution and laws of Virginia, and the will of a majority of the people of Virginia. If we submit the work of this convention to a fair and honest vote of the people, and they ratify it, it will cure all the defects in our title and authority to act for them; it will then be the voice of the people, and the voice of the people is the voice of God. If we attempt to proclaim it, it will have all the appearance and all the elements of a conspiracy to deprive the people of their right of self-government — a right conferred on them by God, and secured to them by the Virginia Bill of Rights, the Constitution of the United States, the Constitution and laws of Virginia, as well as by the Ten Commandments, and the Sermon on the Mount, and every other authority on law and morality that is known to us. The right to vote is so well secured to every law-abiding citizen of the State that they cannot be deprived of it, except by fraud or by revolution. Fraud is lawless, contemptible, and altogether unworthy of any people who claim to be decent and respectable. Revolution is dangerous and DEBATES OE THE COXSTITUTIOXAL COXVEXTION OF VIEGIXIA, 3179 uncertain, but nobody doubts the right of any people to resort to it, whenever their safety demands it. Nothing in the situation in Virginia can be urged in justification of either the one or the other. We are at peace, our business is going 'on in a fairly prosperous condition, our courts are abundantly able to preserve order and to dispense justice. It would be wanton wickedness to start a revolution. If we are clothed with sufficient power to lawfully deprive 100,000 negroes of their right to vote, we also have the power to take from 200,000 white men their right to vote; or we have the right to restrict suffrage just as far as we please, even to owners of $5,000 worth of real estate. Simply, we have no such right or povrer, and its attempted exercise would be a gross usurpation of power; it would be looked upon as revolutionary and void, and would lead directly and immediately to discontentment, strife, litigation, and riot, and probably to bloodshed. The so-called temporary understanding clause is such that I cannot define it in ■words that would adequately express my opinion of it without transgressing the rule of this body, that requires us to use moderate, discreet, and respectful language in all our speeches on this floor. However, I will go so far as to say that it is bad, that it is wicked, that it is un-Democratic, that it is un-American — an exotic brought to the State from the swamps of Mississippi, where the tree of liberty never took root, or from South Carolina, where that tree has long since perished. It clothes a registrar who is to be appointed by a board, who are to be appointed by a judge, who is to be appointed by the Legislature, with powers greater than any monarch on earth can now exercise. He is given authority to disfranchise as many of the freemen of Virginia as his party's interest requires. If he happens to be an ignorant or vulgar man, as he will quite likely be, many citizens will avoid him in disgust — as they would not touch pitch lest they be defiled. If he be a violent partisan, as he is almost sure to be, he will discriminate in favor of his own party, and against its opponents. As no one is will- ing to play against loaded dice, or to bet with a juggler at his own tricks, it is but reasonable to expect that the number of voters will be reduced to a mere fraction of what it now is— a consummation, if we can judge by appearances — that is, by many of the members of this Convention, devoutly wished for. In fact, the desire to reduce the number of voters has overreached the bounds of prudence. This Constitution holds out substantial inducements to men to refrain from registering and voting. It offers a bribe of $1.50 to every man in the State who will stay away from the elections, and it takes $1 of it out of the children's money. If this scheme succeeds, as well as it can reasonably be counted on, it will hold off 200,000 voters, and bleed the school fund to the tune of $200,000 annually. But some of you say it will only last for three years, and then we will skin them. We will make them pay up in full, but not let them vote. But such persons have not taken into consideration the provisions of Section 173, Article XIII., which provides: But said State capitation tax shall not be a lien upon, nor collected by legal process from the personal property vvhich may be exempt from levy or distress under the poor debtor's law. So that nearly all of this consideration is secured to them permanently. And the folly and crime of depleting the revenue and recruiting and augumenting by a bounty the discontented and vicious class will be indelibly fixed upon this Convention. In regard to other changes, all I have to say is that the long, carefully-prepared article on corporations may or may not be a good thing. It was prepared- with great care. It is experim.ental at best; and good or bad it is in the wrong place. All of it, except the skeleton, should be among the Acts of Assembly, where it could be easily amended if it should require amendment. Another encroachment upon the rightful domain of the Legislature is that which fixes for four years a rate of taxation. 3180 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. This was most certainly designed as a sort of sugar coating to a bitter pill — just a little sweetening for a nauseousness. It is altogether out of place in the Constitu- tion, and is also unworthy of a place on any statute book; for every session of the Legislature should have full power to fix the tax rate so as to meet the wants of the treasury. But from another and entirely different standpoint, it is unworthy of a place in this Constitution. It was intended to be used also as a withys to bolster up the weak pretense that the new Constitution would be less expensive than the old. At a time when there was $700,000 or $800,000 surplus in the treasury, it was deemed practicable to reduce the revenue slightly and to draw from the surplus to make up for the deficiency in current income. This plan has been pretty well thv/arted by the last Legislature cleaning out the treasury. The gentleman from Norfolk (Mr. Thorn), in one of the most carefully-prepared, pa- triotic, and scholarly speeches that has been delivered on the floor of this Convention, speaks in sad and mournful words and tones of the decadence of Virginia's people in the councils of the nation. If he does not say it in so many words, he leaves us to infer that in his opfnion, the fault lies with the masses, the irresponsible eleciorat(». I am quite sure that in this he is mistaken. The shortcoming is at the top, and not at the bottom. The foundation of the old edifice is still sound, but the spire is rotten. The sober truth is that in Virginia there is a rising generation of statesmen. Those who were intended by God to be the leaders of this and the immediate past generation, and by Him endowed with the requisite qualities, were cut off in the bloom of their youth by the ravages of war, and we have been compelled to select our repre- sentatives from among the people who were designed by their Creator for equally use- ful, but less conspicuous and less exacting places in society. We have not yet, nor will we for several years to come, if ever, recover from their loss. But there is another cause for our weakness in the nation's councils of far greater magnitude. Our representatives go there with credentials stained and tainted with fraud. If one of our representatives essay to v/in glory and renown for himself and his State he is met by the derisive shout from the street urchins, "Look out! the old Virginia ticket-markers are coming to the front again." I can assure you all that just as long as the Virginia elections are carried by fraud as they now notoriously are carried, Virginia will neither have or deserve to have any weight in the nation's coun- cils. We m.ust reform. We must purify our politics. We must amend our election law in such a way that the returns of an election will indicate public sentiment and not continue this disgraceful farce. The excuse for all of this is that it is necessary in order to get rid of the negro \ote, and some have gone so far as to say that no white man will be disfranchised. This is simply to say that the very first thing to be done under and in pursuance of this Constitution is to violate it in its m.ost vital part. No intelligent member of this body will contend that there are no white men in this State who would be found unable to give a reasonably clear explanation of the meaning of any of the clauses of this document. It has been asserted by several lawyers on this floor, and denied by none that I have noticed, as a principle of law: That we cannot do by indirection or in a round- about way what it is unlawful for us to do directly and openly. If this is law I am sure it ought to be the law. This whole suffrage article is in direct conflict with the Con- stitution of the United States. As to the facts in the case there will be no conflict in the testimony. Every member of this Convention, and every employee and every page, if placed on the witness stand and questioned, would say that it has been the aim and purpose of this Convention to disfranchise as many negroes and as few white people as possible, and that it was in pursuance of that purpose that the military clause, the father clause, and the understanding clause were put in. It will not be pretended that any of these things were aimed at the white voters of the State, but on the contrary, they were all aimed at the negroes, and that the killing of white voters was an un- DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OF TIEGIXIA. 3181 avoidable incident to the elimination of negro supremacy and domination. The doctrine laid dovrn by Chief Justice Tawney fifty years ago, that threw the whole country into an uproar, and consigned its author to everlasting fame, and as many conscientious people still believe, to everlasting fire — that the negroes have no rights that the white people are bound to respect, seems to be still in full force in Virginia. If this Con- stitution withstands the test of the Supreme Court, to which it will most certainly be carried, then the Fifteenth Amendment to the Constitution will be dead and gone into "'innocuous desuetude," but the Fourteenth Amendment will still stand to vex us, and as it vitally affects the rights of all the people of the United States, it will not be given up. It will never be conceded by the representatives of the Dakotas or Michigan that one man in South Carolina shall have as much weight as three or four men in the Northwest. Party discipline has never been strong enough to control men's voices on the basic question — that questicn that in bygone days shook this old Commonwealth to its very foundation, and started a cleft that finally tore it in tvrain. was not a divi- sion on party line, but directh' across party lines. We are laying the foundation for the renewal of the same old quarrel, and making the United States a party to it. As a result v:e are just as sure to fail as the indiscreet animal that attacked the locomo- tive — we will be caught on the cow-catcher. The title of each and everj^ member of this Convention to sit and vote is clear and unquestionable. We v-ere elected by the people to represent them in a Convention they neither called nor wanted. The title of this Convention to exist is shabby in the extreme, it is illegitimate; it was conceived in fraud and iniquity; the Legislature that initiated it well knew that the people of the State did not want a Constitutional Convention, for they had so voted only three years before for the third time. They also knew that they could not be persuaded to change their views. They knew that the only way they could succeed was by fratid and chicanery. They, therefore, fixed the election at a time when only a few people attended elections, and they provided a shamelessly fraudulent ballot, which was deliberately intended to swindle the illiter- ate negroes of the eastern counties into voting for the calling of a Convention, the avowed object of which was to disfranchise them. By the use of this infamously, dis- honest and fraudulent ballot they got an affirmative vote of 77,261 — if I recollect cor- rectly — out of a total vote or registration of about 447,000 or less than one-fifth, and but slightly over one-sixth, and fully two-thirds of them from the black belt, and pre- sumably composed largely of fraudulentl3'-obtalned negro votes. It would have been a sorry day's work for the ticket markers if they reversed less than 9,000 votes, and that number would account for the plurality of 17.000 returned for the Convention — 310,000 did not vote. These figures have so often been spread before this Convention that I will not repeat them here, but they prove conclusively, that the calling of this Convention was a fraud perpetrated upon the people of the State. The act of the Legislature was most disgraceful. As to the Democratic party platform pledges, I rate them but lightly. I have been too long acquainted vrith them to be deceived. The Virginia Democratic party is im- mune to dishonor or disgrace; it has no character to loose. But that is not the case with this Convention. We have reputations and character at stake. My hope is we will preserve both. V^e have fallen into a pit, and there is one and only one safe way or practicable way out. We can submit our work to a fair, free, untrammelled vote of the Virginia people, and if they ratify it, it will be the supreme law of the land; if they re- ject it, the present Constitution, which has alwa^'s been popular with them, will remain in full force and virtue, and we. though turned down, will still retain our .self-respect and the respect of our constituents, and of all the world. I thank you, gentlemen, for your kind attention. (Applause.) Mr. R. Walton :\Ioore: Mr. President: It is not necessary for me to assure the Convention that I shall certainly refrain from assailing the Constitution which we have framed, and that I shall venture no criticism of my brethren who differ from me on 3182 DEBATES OE THE CONSTITUTIONAL CONVENTION OF VIRGINIA. the important question which is now being considered. I would not delay the work of the Convention to any extent whatever by saying a single word, except that it seems to me the proposition which is offered here — the proposition which, according to the public press is likely to carry — the proposition that the new instrument shall be pro- claimed instead of being submitted, is an extraordinary one, against precedent, against promises, and of doubtful legality. I affirm that it is against precedent, and this I do with great respect for the opin- ions of other gentlemen, and particularly for the opinions of the gentleman from Campbell (Mr. Daniel) who opened this debate. I understood him to say that prece- dent overwhelmingly sanctions proclamation. In that connection he went to the point of citing the Federal Constitution, and what occurred in putting it into operation. Mr. President, what a mistake is this! The Constitution was framed by a Convention made up of delegates from the thir- teen States. Their constituents were the States. There was never any thought of proclaiming. The instrument was sent back to the constituent bodies, and by every one of them it was passed upon deliberately. What occurred in Virginia? The Legis- lature met and provided that the people in their cities and counties should elect a con- vention to say whether it should be ratified or rejected. That convention was elected and met in this city, on Shockoe Hill, and a great debate took place, developing a great diversity of sentiment. Madison and Marshall led upon the one side, and Mason and Henry upon the other side. The delegates from Campbell voted against the Consti- tution, and the delegates from Fairfax in favor of the Constitution, and finally, after a lapse of some twenty-five days, by a narrow majority of less than ten, it was rati- fied with amendments. That, Mr. President, is a mighty precedent against the submis- sion view. In this State the precedents are in the same line, except in 1776, when the first Constitution was adopted. That was on the verge of revolution, when men were arming for a memorable struggle, and there was no opportunity for the people to say whether they approved or disapproved. But since 1776, without variableness or shadow of turning, there has been submission of the State Constitutions. During the last sixty 3^ears numberless Constitutions have been framed by the States of the "Union, and not more than six proclaimed, including those recently adopted in the States south of us. Il seems to me that not the proclaimers, but we, the submissionists, are standing by the precedents. How has this question been regarded by statesmen and by the students of our system of government? The other day it was confessed here in the outset of the de- bate, that upon our side is the authority of Jefferson. Upon the same side Judge Cooley was placed. All the foremost American writers were placed on the same side, and upon that side -must be placed the foreigners who have investigated and applauded our institutions. Bryce, in his American Commonwealth, describes a Constitutional Convention as an advisory rather than a sovereign body, and then proceeds to say: A State Constitution is really nothing but a law made directly by the people, voting at the polls on a draft submitted to them. That is the impression universally received in England. Cross the channel and that is found to be the impression received in continental Europe. I have examined the recently-published works of Charles Bourgeand, a member of the law faculty of the University of Paris, on the adoption and amendment of constitu- tions in Europe and America, in which he discusses the matter elaborately. He and Bryce would be astonished that proclamation should be contemplated in a State rank- ing like Virginia. But gentlemen will say that this is an unusual and critical juncture, and that prece- dents and opinions must be discarded. They say we will blaze a new course and we will proclaim, whatever precedents may dictate and whatever men may think. To DEBATES or THE COXSTITrTIOXAL COXYEXTIOX OF TIEGIXIA. 31S3 those gentlemen the legal right should be clear. Are they sure thai -^hen they have proclaimed this Constitution, the State courts will uphold their action? I lay this down as a principle which I believe to be sound and as a principle which I believe the courts will adopt, when this matter is presented to them. If there has been a valid act of the General Assembly of Virginia providing for submission, that act must be obeyed. I state what I believe cannot be controverted: That when the Legislature of a State has directed that the instrument be submitted, the instrument must be sub- mitted; and if it be not submitted, the action of the Convention cannot stand. Says Oberholtzer in his treatise on the referendum: All the constitutions have not been referred to the people, but there seems to be no instance in which the Constitution was not so referred vrhen the Legislature's direc- tions to the Convention have been imperative. In the case of Quinlan vs. the Houston and Texas Central Railroad Company, in 89th Texas, the court said: We are of opinion that when the Convention is called to frame a Constitution, which is to be submitted to the popular vote for adoption, it cannot pass ordinances and give them validity without submitting them to the people for ratification as a part of the Constitution. That is good and so-'ond doctrine. It would be monstrous, Mr. President, if a valid legislative act reciuiring submis- sion should be or could be disregarded. But gentlemen contend that the act of February 16,. 1901, which provides for the stibmission to the people of Virginia of this instrument vrhich we have framed, is not a valid legislative act. Let us see. Vhat is the General Assembly of Virginia? The gentlemen have argued this matter as if you could set the General Assembly of Virginia in antagonism to the people of Virginia. You cannot do it. The people of Virginia, in their legislative capacity, are present in the General Assembly when it is in session here in this Capitol. The General Assembly passed this act. It passed the act back of that of I^.Iarch 5th. 1900, proposing to the people for their vote the Qtiestion whether there should be a Convention '"to revise the Constitution and to amend the same." That vote was taken, and there was a majority in the affirmative. Then what? The General Assembly then had many courses open to it. As was said by the Pennsylvania court of a similar situation, in Wells vs. Bain, (75 Pa.) it had the right or the power to decline to take one step further. Somebody suggests that inaction would have been revolution. But can the people revolt against themselves? Can there be any revolution of that character. Yes, Mr. President, the Legislature could have folded its arms like the white-clad figure in the picture which hangs in the great hall at the ITniversity, looking neither to the right nor the left, and remained indifferent and inactive. Mr. Meredith: VTould not such an act as that be revolutionary, and if not, how would you characterize it? Mr. R. Walton Moore: I would characterize it as the expression of the people of Virginia in their legislative capacity. There might be various reasons why the Legis- lature would deem it best to decline to act. I believe the Governor, in his proclamation, calling the Legislature into extra ses- sion, the very session which adopted the act of February, 1901, said that he believed that it was the wish of the majority of the people of Virginia that an extra session should be held. He indicated simply his belief, despite the fact that a vote had been had. Suppose the General Assembly had been of the opinion that there was not a real majority of votes cast in favor of the Convention, or suppose it had been of the opin- 3184 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. ion that the vote was too slight to justify a Convention, or suppose conditions had changed so as to justify inaction, and to make a convention undesirable, who will claim that a refusal to provide for convention would have been revolutionary? Mr. Meredith: I did not refer to exceptional instances, such as you mention. But suppose a convention is called by the people, do you claim that the Legislature can say: "V/e will not call it" — and not be revolutionary? Mr. R. Walton Moore: Yes, sir; and the Pennsylvania court says so. Judge Agnew , in his opinion in the case of Wells vs. Bain, as I understand, says that, with- out limitation or reservation. Mr. Meredith: Would you say, then, that one department was revolutionary in its acts towards the people? Mr. R. Walton Moore: I can imagine such a case, but to fail or refuse to provide for a Convention would not, in my judgment, be such a case. Mr. President, the Legislature might have done what was done in Louisiana, and in terms directed that the Constitution, when framed, should be proclaimed. Or it might have done what was done in Delav/are, and contented itself with the expression of a desire that there should be submission. Or it might have done v/hat was done in Mississippi and in South Carolina and left the entire matter to the discre- tion of the Convention. But it took none of these courses. It is said by statute, that this Constitution, when framed should be submitted to the people of Virginia for rati- fication or rejection. Mr. Meredith: Suppose it had said nothing upon the subject, what would have been the power of the Convention? Mr. R. Walton Moore: If it had said nothing, I am not arguing that the Con- vention would be without the legal power to proclaim. But my proposition is that if you have a legislative act, and if it be a valid legislative act, you are bound to follow it, Mr. Green: Will the gentleman allow me to ask him whether, under the act of 1901, this Convention would have the right to submit? Does not the act provide that we shall leave it to the Legislature to determine how and when it shall be submitted? Mr. R. Walton Moore: I suggest to the gentleman from Danville, with the greatest respect and deference, that he sticks in the bark. The substantial thing is that it shall be submitted. It is not so important what tribunal orders the submission. Mr. Green: You say we are bound by the acts of the Legislature? Mr. R. Walton Moore: Yes, we are bound by the substantial provisions of the act of the Legislature. Mr. Greene: One of the substantial provisions of that act is that we shall not submit it at all, but shall leave it to the Legislature to determine when and where it shall be submitted. Mr. R. Walton Moore: That is only in case the Constitution is not ready for sub- mission at a certain date. Mr. Green: But it was not ready by that date. Mr. R. Walton Moore: After that date, according to the act, it shall be sub- mitted at a time and place to be determined by the General Assembly; but there is no court on earth that would say it was not properly submitted if the people were al- lowed to vote upon it, whether the order of submission were made by the Convention or made by the General Assembly. Whether that be a good position or not, it is the position I must take in replying to the question of my honored friend from Danville. Now, Mr. President, the submission act of 1901 was in accordance with Virginia precedents. The act which preceded the Convention of 1829 proposed to the people that they should vote upon the question as to whether the Constitution of 1776 should be amended or not. My distinguished friend from Campbell (Mr. Daniel) the other day argued from the language of the question that was propounded by the act of 1900, that you must necessarily conclude that the instrument was to be proclaimed, because the ques- DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF YIKGIXIA. 3185 tion was, "Shall a Convention be called to revise the Constiiution and amend the same." He said the word "amend" or proclamation. And yet the act of lS27-'28 pro- pounded to the people of Virginia the question whether they should have a Conven- tion to amend the Constitution, and when they said yes, the Legislature did not assume that amendment meant proclamation, but passed another act calling the Convention together, and providing that when the Constitution vv-as framed by that Convention it should be submitted to the people for ratification or rejection. We are not concerned about the question that was propounded in 1900. Our main concern is about the submission clause in the act of the following year. Was it within the competency of the General Assembly to write submission into the latter act? If it was not, then the Convention is free. If it was a valid act, then, I repeat, we must obey it, and send this instrument which we have framed back to our constituents. Vv^hy was it not a valid act? Was it restrained by any provision of the Underwood Constitution? W^hy, neither in 1900 nor in 1901, did the General Assembly in dealing with this subject make any allusion to the Underwood Constitution? I deny that the General Assembly, in arranging for a Convention, was confined to the methods provided by that Constitution. I deny that those methods were exclusive and exhaustive. But if this is incorrect, and if the General Assembly was observing that Constitu- tion strictly, yet it retained all the powers not prohibited. It retained the right to direct submission. Mr. Wysor: Was not the act of the General Assembly exactly in pursuance of the provision of the Constitution? Mr. R. Walton Moore: I am arguing that even if the Legislature was bound by and strictly followed the Underwood Constitution, there is not one line in that in- strument which prevented the Legislature from ordering submission to the people of Virginia. Mr. Meredith: I understood you to say just now that if the act of the General As- sembly had said nothing about submission, this Convention could have exercised its discretion? Mr. R. Walton Moore: Yes, sir. Mr. Meredith: The Constitution says nothing about submission. ^Miy cannot we exercise the same discretion? Mr. R. Walton Moore: Because the General Assembly, in which the people speak, possesses the constitutional authority to order submission, and did order it, and there is no escape from it. The people sent you here under that act. The people sent you here under the act of the Legislature, v;hich, if it , be valid, compels us to submit this Constitution. Xow, Mr, President, I was about to remark that there is some authority upon this point. There is a very interesting case in Kentucky — the case of Miller vs, Johnson, 15 L, R, A, 524, In that State the act required submission. There were amendments framed and proclaimed, and as a case was carried to the highest Kentucky court. That court was composed of four judges. Not a single one of them held that the legislative act was nugatory, and could be disregarded. No judge in this country has ever said anything of that sort. Three of the judges of that court said this: It is a case where a new Constitution has been formed and promulgated accord- ing to the forms of the other. Great interests have already arisen under it; impor- tant rights exist by virtue of it; persons have been convicted of the highest crimes knovcn to law, according to its provisions; the political power of the government has in many wa:rs recognized it; and under such circumstances it is our duty to treat and regard it as a valid Constitution, and not the organic law of our Commonwealth. Incidentally, let me remark that I cannot understand the logic of the gentlemen who tell us, if they rest upon that decision, that the subsequent conduct of the political branch of the government can validate a Constitution, and yet that we are not bound by an antecedent act of the political branch. 3186 DEBATES OF THE CONSTITUTIONAL CONVENTION" OF VIKGINIA. Mr. Meredith: Is it not a principle of law that after a Constitution has been recognized by the political body, it ceases to be a judicial question, and becomes a political question? Mr. R. Walton Moore: Yes, sir; and that shows the weight attaching to the action of the legislative department in our system of government. Mr. Walker: Was it necessary in order for the court to render that decision, to say whether the Constitution was valid or not? Mr. R. Walton Moore: No; but I will say to my friend that while there was not a judge who thought the submission act should have been ignored, the Chief Justice of that court, Judge Bennet, delivered a dissenting opinion, in which he states the views for which I contend. After adverting to the fact that the old Constitution contained no provision giving the Legislature the power to require submission of its work to the people, he goes on to say: The fact that the instrument is silent upon that subject means that the people did not surrender their right. It is upon the principle that the right of the people is in- herent, inalienable, indestructible, except as they may surrender that right in forming their government; that when the Constitution is silent upon any subject their right has not been surrendered, and the power of the Legislature is supreme in reference thereto. And as said, the question as to whether or not right has been surrendered should not be made to depend upon construction or uncertain sound, but it should be expressed in unequivocal terms. By the silence of the Constitution the right of the people to require the submission was not surrendered, but was reserved by them as their inherent and inalienable right which they could exercise directly by approving or rejecting the instrument or by conferring that right upon their delegates as agents. The Constitution being silent upon the subject of submission, the povs^er of the Legislature as the people's agents, is supreme upon that subject; and they had a per- fect right to provide as they did, that the Convention must submit their work to the people for ratification or rejection, or they might have provided that they should have the absolute power upon that subject. They could do this as said, because their power was supreme upon that subject. Now, if the submission act of 1901 was valid — and I challenge authority to the contrary — are not gentlemen gravely doubtful, whether the courts of the State will sustain them in proclaiming the Constitution? Are not your apprehensions aroused by the attitude of able and eminent lawyers? A circuit judge of learning and experience has risen here, and upon his responsibility as a member of this body, declared that he considers proclamation illegal. A most capable lawyer, who recently occupied a place in the Supreme Court of Appeals, has uttered a warning through the newspapers. There are, I believe, delegates in this Convention — accomplished lawyers — who in- tend to vote for proclamation under the stress of what is claimed to be a public de- mand, who are oppressed with doubt. Are we going to take a step that may prove fatal? My friend from Prince William this morning proposed — and he is a proclamation- ist — a resolution here to obtain a decision of the highest court of the State upon the pending question. If gentlemen are bent on proclaiming, that might be the safest and wisest course to take. I said in the outset that I should indulge in no unfriendly criticism of individuals. There are men here, the latchets of whose shoes I am not worthy to unloose. I can only speak for myself. I must admit candidly, that even if the highest court of the State held proclamation to be legal, I could not vote that way. Was it not Edmund Burke, Mr. President, who said in substance in his great speech on "Affairs in America:" "It is not what a lawyer tells me that I may do; but it is what my conscience tells me I must do?" In this matter my conscience is bound. DEBATES OP THE COXSTITUTIOXAL COXYEXTIOX OF VIKGIXIA. 3187 In the "^^-inter of 1900 there ^as agitation for a Constitutional Convention, the Gen- eral Assembly being in session. This is a goTernment party. The General As- sembly v^"as controlled by the Democratic party, and a caucus of the members be- longing to that party was held in this hall, and the Convention movement approved. Except for that caucus we would not be here novs*. A little later on, when it was still doubtful how the people stood, the Democratic party, embracing a great majority of the white men of Virginia, owning a great part of the substance of Virginia, met in Norfolk and adopted a platform. At Norfolk, so far as I then knew, there was no such construction placed upon the platform as has since been attempted. The plat- form, as interpreted by the rank and file of the delegates to that Convention, and by the people of the State generally, promised that if the people would vote for a Con- stitutional Convention, the instrument framed by it should be submitted. Away with your delicate, refined and attenuated construction of that platform! It was a solemn promise. It was a vital and necessary promise. You could not have come here to this Capitol and worked your splendid will upon the structure of our government if that promise had not been made. It was a general promise. It was a promise made either to the State of Virginia, or to the Democrats of Virginia, and I respectfully urge that a general promise to the State cannot be released except by the general action of the people of the State, and that a general promise to the Demo- crats of the State is incapable of being released except by the general action of the Democratic party. I suppose no man is more fortunate in enjoying good relations with his friends and his neighbors of his home county than I am. Xo man, certainly, is more be- " holden to those among whom he lives, and no man has more respect and affection for his cotmty people than I have; but when some of them, within the last few weeks advised they thought of requesting me, in a formal wa^', to vote to proclaim. I said to them: I cannot consent that local action shall release me from such general obli- gations as I have assumed. It is impossible that the people of Fairfax shall release me from the promise I made to the people of Virginia, or at least to the Democrats of Virginia. Mr. Quarles: If the Norfolk Convention had promised to proclaim the Constitu- tion, would you vote to proclaim, believing it to be unlawful? Mr. R. Valton Moore: Entertaining the legal doubts I have upon that subject, I could not vote for it. :\Ir. Wysor: Do you think there would be a Constitutional Convention if the Nor- folk Convention had not made that promise? Mr. R. Walton Moore: No, sir. Everybody knows there would have been no Con- vention. Upon the banner of the Convention movement was stamped the promise that was made at Norfolk, and except for that promise the banner would have long ago have fallen from the hands of those who were carrying it. Mr. Walker: The gentleman says that the Democratic party has made this a party issue. If they had said nothing about proclamation or submission, in the legis- lative act. would it not still have been a party issue? Mr. R. Walton :\Ioore: I do not think there would have been any Convention. I know many men in my own section, after the Norfolk Convention was held, voted for this Convention upon my statement that we had resolved in favor of submission, and that they would have an opportunity to pass upon the Constitution. Mr. Thorn: Could the resolution making it a party question have been carried through the Norfolk Convention without a pledge of submission? Mr. R. Walton ^Moore: It was supposed not. Mr. Zvleredith: Do I tmderstand you to contend that where there has been a party resolution of a party caucus that the Convention is bound to follow that as the best assurance from the people that they do not want it carried out? Mr. R. Walton Moore: No, sir; but what legal method have you taken to get the assurance of the people that they want you to proclaim? 3188 DEBATES OE TELE CONSTITUTIONAL CONVENTION OF VIRGINIA. Mr. Meredith: Do you say we are bound by the caucus? Whether I am satisfied as to what my people want, and whether you are satisfied ic another question. But do you contend that the Convention is bound by a party caucus when the people have asked them not to follow the resolution of the caucus? Mr. R. Walton Moore: If the people are interrogated, and answer so as to avoid all possible doubt or misunderstandings, I cannot say that I would assert that we are still bound. But you have not asked the people, and you cannot, in a government like this, invite an expression of the people except in one way. You can only get the sense of the people by sending this Constitution to them. There have been small meetings in Richmond. There have been larger meetings in some other sections of the State, but most of them have been very small. The people do not knov/ what we have done, and yet it is assumed that they have risen up in solid phalanx, and ap- proved of the Constitution to the extent of clamoring for proclamation. Now, Mr. President, I have gone" further than I had intended. I hope it is not neces- sary for me to assure anybody that I am the friend of the Constitution, and deeply interested in its becoming operative. It has cost us too much to be allowed to fail. It has involved too much outlay of the public treasure; it has involved personal sacri- fices of too serious a nature; we have spent here almost a solid year; we have em- ployed upon this work "many a grim and haggard day, many a night of starless skies." The new Constitution is the coinage of our energies and our aspirations. It is the product of our best abilities and of our profoundest hopes. I, for one, as its friend and its advocate, will v/eep to witness its defeat in any forum; but as its friend and its advocate, I will submit it without any misgivings to the present electorate. That electorate is not ideal, it is not satisfactory; we are here to reform it; and yet it is the electorate of a long period of years. It has given to us a body of policies that have repaired the ravages and wreck of a great civil war. It has given to us a long line of legislatures and governors, and senators and judges, measuring up to the highest standards. Even the present electorate is ready, if this Constitution is submitted by the overwhelming voice of its white members — Democratic and Republicans — to yield it their willing approval. Mr. President, personally, it would be much more agreeable, indeed it would be a sort of personal luxury, if we could proclaim it. It would save a great deal of anxiety, trouble and effort, but we belong to a race which has never shirked anxiety or labor — to a race that has developed by contest upon all the battle-fields of human experience. Thus it has been in Virginia. And now, if need be, let there be another strenuous con- test in Virginia. Let it come, and let us win, as we will surely win, a victory which, Mr. President and gentlemen of the Convention, will be unattended by any criticism or dis- credit, and unattended by any intimation or trace of dishonor. (Great applause.) Mr. Carter: Mr. President and gentlemen of the Convention: In the earlier days of this Convention I took occasion to give my views at some length upon the main question now at issue before us, that is, upon the power and legal right of this body to proclaim its work, without further reference to the people. I do not know that I could add anything fo what I then said, if I were to try. I simply want to say, along that line, that since then, in all that I have heard and in all that I have read on the subject, I have heard and read nothing to cause the slightest doubt in my mind as to the correctness of the position I then took. I do not think that this is a case in which it is necessary for those who think as I do, that we have the right to proclaim, to fortify themselves by precedents. I do not think it necessary to go back to what has been done by other conventions at other times, and under different conditions. I think the path that is blazed for us, in the light of the act under which we are called together, is a plain one, and that the power conferred upon us is so clear and so plain that it, of itself, contains all of the authority we need. I say this without conceding that these authorities and examples which the gentleman have cited here are against us. I do not mean to differ from the gentleman from Campbell, who states that the prece- DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF VIEGIXIA. 3189 dents in Virginia show that a convention has the right to proclaim. We are upon dif- ferent sides of this question, and yet he who leads in the discussion of submission con- cedes the legal power of this Convention to proclaim. The gentleman from Fairfax (Mr. ]},Ioore), who has just closed his elociuent and able address, brings himself up to the point of doubting that povver; that is all. He does not say, sound lawyer that he is, that the power is not ours, but he says there are grave doubts about it, because, among other things, a distinguished judge in our State claims it does not exist. The gentleman from TCinchester (Mr. Harrison) is, I believe, the only man having at heart the desire to see ihis Constitution adopted, who has come here and said that we have not the power* to proclaim it. He makes that statement, and so far as my recollection goes, he is the only one who does make it, except those v.ho think it is a work of in- iquity, and ought to be submitted. The gentleman from Winchester reads from the English Encyclopedia of Law the authority upon vrhich he relies in this case: A Constitutional Convention untrammelled by conditions imposed by authority call- ing the Convention has power to enact a nev," Constitution to go into effect, without being submitted to the people for ratification. But where the act from which a Con- vention derives its powers provides for the submission of the Convention's work to the people in the specific manner, the Convention has no power to provide for its submis- sion in a different manner, and, of course, where such act, where the Constitution itself requires submission to the people, it must be so submitted, and only becomes operative upon, the approval of the electors. He then, Mr. President, plants himself squarely and fairly upon the proposition that unless the powers of the Convention are restricted by the act that called the Con- vention into being, it has plenary and full authority. That is more than I need claim iu,,this controversy. There is the gentleman who first and foremost, and almost alone in this debate, takes the ground that this Convention has not the legal right to amend and revise the Constitution, admitting that it had the right unless that right was taken from it hy the act which called the Convention, and reading authorities to sus- tain his position. The Constitution of Virginia, now in existence — the Underwood Constitution — provides two methods for changing the Constitution. One method is for the Legislature to propose amendments in two consecutive sessions to the people, and those amendments become a part of the Constitution upon being voted for by the people. The other — I want to read from the Constitution: At the general election to be held in the year 1888, and in each twentieth year thereafter, and also at such time as the General Assembly may, by law provide, the question, "Shall there be a Convention to revise the Constitution and amend the same?" shall be decided by the electors qualified to vote for members of the General Assembly; and in case a majority of the electors so qualified voting at such election shall decide in favor of a Convention for such purpose, the General Assembly at its next session, Now, see the language there — shall provide — It is mandatory — ■ ' by law for the election of delegates to such Convention. Those are the Constitutional provisions which bound the Legislature in Virginia at the time the initial acts were taken in this case. "But," says my friend from Fair- fax, "no allusion is made in the act calling this Convention to the Constitution"; and he would have you take the ground that this act was not passed in pursuance of that 3190 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. power and under the provisions of the Constitution. Let us see. If called under the constitutional provision the Constitution would have to be submitted. Let us see, Mr. Chairman and gentlemen of the Convention, whether or not there is internal evidence in this act that It did follow the Constitution. At the general election to be held in 1888, and in each twentieth (20) year there- after, and also at such time as the General Assembly may by law provide, the question, "Shall there be a Convention to revise the Constitution and amend the same?" That was the language used. Now let us see what the language of the act was. This is the act of March 15, 1900, which called us into being: Be it enacted by the General Assembly of Virginia, that at an election to be held on the fourth Thursday in May, 1900, there shall be submitted to the electors qualified to vote for members of the General Assembly. The very electorate that the Constitution points out — What? The question, "Shall there be a Convention to revise the Constitution and amend the same? " Was it, "the question whether there shall be a Convention," as was submitted in the Pennsylvania case? Not a bit of it. It is in quotation the very language contained in the Constitution, "Shall there be a Convention to revise the Constitution and amend the same?" Why this coincidence? Why this remarkable similiarly in language, if the one did not follow the other? Why the words in quotation, if that was not the case? The gentleman from Charlotte yesterday cited authorities to sustain his position, which have not been answered, that where there was a constitutional method pointed out for the calling of a Convention, the Legislature had no legal right or power to take any other method. I need not resort here to the question of whether or not they had the legal right. I have heard no answer to those authorities or that argument. The fact is that they did follow the very language, in quotation marks, used in the Constitution under which they were acting. How then can you say it is to be presumed, or how could any court presume that their action was not taken under that act? But, what difference would it make, Mr. President, whether they were acting under the constitu- tional provision or not? What difference does it make? What is it that gives this Con- vention pov/er? What confers upon it authority? It is the will of the people, expressed not by its legislature, but by the people themselves in their direct action on the powers of this Convention. Nov/, v^^hat did the people vote on, when they voted? Did they vote that there should be a Convention? Was the question submitted to them, "Shall there be a Convention; yes or no?" Not a bit of it — but, " Shall there be a Convention to revise and amend the Constitution?" Was it to be a Convention to submit its amendments to the people? No, sir. The Legislature could do that without calling a Convention. But the language v/as, "Shall there be a Convention" — it did not stop there — but goes on, "to amend and revise the Constitution." I say, Mr. President, that if there v/ere not a line of constitutional authority on the subject, that if we claim our power not from the Constitution but from the Legislature alone, supplemented by the vote of the people, it would give us sufhcient authority. It is not a general authority, which would be enough, says the gentleman from Winchester, but an express, special, and clear authority. This Convention shall be called to revise and amend the Constitution. Have you done it? Have you done what you were sent here to do? Have you ful- filled your duty when you adjourn without revising and without amending the Constitu- DEBATES OE TSE COXSTITrXIOXAL COXTEXTIOX OE VIEGIXIA. 3191 tion, leaTmg it to somebody else to say ^hettier it should be done or not? If you "sub- mit this to the people and they ratify it by their vote, it ^ill be valid, not because the people voted for it, but because you have enacted it and made it the la^- subject to their approval. Even then it does not get its authority so much from the vote of the people as it does from your acts here. Mr. Robertson: I do not understand vrhether or not you mean to say that we have no right to submit it. Suppose we decide to submit the Constitution and the people vote against it, will it still be the Constitution? Mr. Carter: I think not, because in that case we would not have enacted it. We would enact it provisionally. We will have said that this shall become the law if the people approve of it, and then when the people approve of it what we did provisionally would become the law. Mr. Wysor: May I interrupt the gentleman before he goes on to another point? I promise not to interrupt him again. You have argued that the Legislature could not submit any other question than that found in the Constitution. Is that your position? Mr. Carter: I do not take that ground. I do not know that it is necessary for the purpose of this discussion from my standpoint, to decide that question one way or the other, ^"hat I said was that Judge Bouldin argued that yesterday, and that he cited authority to show you were bound to pursue that method. I have heard no answer to that proposition; but for the purposes of this discussion, and so far as I am concerned I am willing to rest the authority either upon the Underwood Constitution and the act and vote of the people together, or, leaving out the Constitution, rest it upon the act of the Legislature, voted on by the people in 1900. Mr. Thom: I would like the gentleman to state, if he will, his individual position on the question which has just been asked: Whether or not when there is a method of amending the Constitution contained in the existing Constitution, that is exclusive of all other methods except that of revolution? Mr. Carter: That is a question I would not like to answer without having made fulier examination of the matter than I have made. It is entirely unnecessary, however, in this case; for whether we rest upon the Underwood Constitution and the act of the Legislature and the vote of the people, or whether the foundation of this Convention be- gins with the act of 1900, it all comes back to the same point: What did the people do? What was their mandate to this body when they called the Constitutional Convention into existence? What did they decide? They decided in the affirmative the question, "Shall there be a convention to revise the Constitution and to amend the same?" But it is said that the act passed afterwards destroyed and eliminated the power that the people had given us by their direct vote. It cannot be so. After the people have called a Constitutional Convention by their direct vote, and have by their vote said that "there shall be a convention to revise the Constitution and amend the same," it cannot be that then, without any new reference to the people, without any submission to them for their vote on the question and without any question being submitted to them, the Legislature, whose sole duty under the Constitution then in force was to provide for the assembling of the Convention, can overstep their duties and their powers, and put a re- striction in the call that the people have made, which would destroy its purpose. ' Mr. Robertson: Is not that argument based on the idea that the Legislature was compelled to provide only for the election of the delegates; and is it not after all your idea that that is the exclusive method the Legislature intended to follow? Mr. Carter: Not at all. I say that we have the living power, and that we have it from the direct vote of the people. Whether it comes from the fountainhead of the Con- stitution or whether it comes from that first act of the Legislature is immaterial. The power comes from the direct vote of the people. Mr. R. Walton Moore: The gentleman talks about pursuing the constitutional method in order to call a convention, and that you must pursue that method rigidly, as I understand. Will you tell me then, how it can be possible, under the Underwood Con- 319,2 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. stitution, to bring about a convention which would be bound to submit the Constitution? Is it in the power of the people, if your argument is correct, to bring about a convention which they could compel to submit the Constitution to them? Mr. Carter: There are a great many moot questions that may be asked on this subject, and I think that is one of them. I do not think it has anything to do with this discussion. However, I will answer it. If that act in 1900 had on its face, and by its. terms, required this body to submit the Constitution which it should frame, I think it would have been bound to do it. Mr. R. Walton Moore: Upon the theory that the people were present in the Gene- ral Assembly when the act was passed? Mr. Carter: No; but upon the theory that the people voted on it; not because they were present in the Legislature, but that the people themselves voted on the question. Mr. Thom: I would like to know whether, if the Constitution on its face provides no method for submission, and the Legislature may submit to the people the question of whether a convention should be called, and coupled with it a condition that the Con- stitution should be submitted, and if you admit that by voting in favor of that there would be an obligation to submit, do you not necessarily admit that the constitutional method is not the exclusive method of amending the Constitution? Mr. Carter: On that question I will have to be like my friend Moore on the ques- tion of power to proclaim and reply I have grave doubts. (Laughter.) But that ques- tion has no place in this case at all, because whether the source of our power be the Underwood Constitution, or whether it be the act of 1900, the living, vivifying principle of that power was the vote of the people, and the people voted that we should come here and revise and amend this Constitution. Mr. R. ¥7alton Moore: You say that if the act of the Legislature was the source of power and there was no constitutional provision in operation at the time, and the people voted upon that question, that would be the finale? Mr. Carter: I think so. Mr. R. Walton Moore: Do you mean to say that a subsequent legislature could hot change or amend the act of the prior legislature? Do you mean to say that it would not be competent by subsequent legislation to wipe out all that had been done by the legis- lative act of the General Assembly? Mr. Carter: Yes, sir. That is what I say. I say that when a legislature has sub- mitted to the sovereign people the question whether or not there shall be a Constitu- tional Convention, and the people have voted that there shall be a convention, and have slated what the powers of that convention are to be, no subsequent legislature can change those powers without another referendum. Mr. Robertson: Suppose the Legislature acted on the proposition and the people acquiesced in the action of the Legislature, and voted for it: would that not be decisive? Mr. Carter: Can a man acquiesce when he has no chance to do so. How could the people have done anything else but vote for members of this body? Was there any way in which they could express their desire as to whether we should come here untram- melled or not? Mr. R. Walton Moore: One further question, and I promise not to interrupt the gentleman further. The gentleman takes the position, as I understand, that where there has been a referendum, and the people have voted, it is not competent for a subsequent legislature to destroy the effect of that vote. Suppose, to use an illustration, the legis- lature passed a local option law, and referred the question of license to the people of Hanover county, the people in that county voting that under that law they shall not have liquor licenses. Do you mean to say there has got to be another vote by the people of Hanover before you could change the status there, or will you admit that the subse- quent Legislature has the right to destroy that status, without a reference to the people? Mr. Carter: There is a difference betwen liquor licenses and Constitutional Con- ventions. DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 3193 But, Mr. President and gentlemen of the Convention, suppose the gentlemen were right; suppose it was the law that after this Convention had been called, after its power had been fixed by the direct vote of the people, another legislature could come in and without any authority from the people except the power which a legislature ordinarily has, should assume to change and take away the powers conferred upon that Conven- tion? Suppose that after this Convention had been at enormous expense and cost and labor, after the people had voted that it should come here, the Legislature which pro- vided for the election of the members had enacted a provision which would have shorn us of all power; and suppose they had said: "All right, come, gather in the capitol of Virginia to perfect the fundamental law of the State, because the people by direct vote have said you must come; but when you get there confine yourselves to the question: How long shall a country constable hold office." Did they have that power? Is it claimed that they had. And yet, if they could limit us in one respect, they could limit us in all. I think, Mr. President, and gentlemen of the Convention, that this Pennsylvania case, which has been so much relied upon by gentlemen on the other side, illustrates the difference between the conditions that then existed and the conditions that existed when this Convention was called. The text of the act of the Pennsylvania case was "that the question of calling a Convention to amend the Constitution of this Commonwealth, be submitted to a vote of the people at the general election to be held on the second Tuesday of October next." Was that the text of the act of 1900, here, that the question of calling a Convention be submitted to the people? Not a bit of it. The text of the act here was: "Shall there be a Convention to revise the Constitution and amend the same?" Does that distinction cut any figure in this decision. I think so. The question in the Pennsylvania case was authorized to be submitted. What question? Now it tells us: This question was ansv/ered in the affirmative by a majority of the votes, and the people, answering the Legislature, said: "You may call a Convention," and the Legis- lature asked for authority. The Legislature evidently asked, "May we do it, or not?" This was all the vote expressed: Each vote expressing the opinion of the elector on that question, the majority ex- pressed no more, for the majority was composed of the sum total of the votes on that side. Thus an analysis of the act, both in its title and its text, demonstrates that the vote was not a delegation of pov/er, except to the Legislature. The Legislature was the creator and not the people. The Legislature got from the people authority which they could exercise or not as they pleased, under v^^hich they might or might not call a convention. Here the Legislature is commanded by the Constitution, by the vote of the people following the act of 1900, in terms as clear and as explicit as the English language could make it, to call a Convention to revise and amend the Constitution. Mr. Meredith: May I call the gentleman's attention to this: Under the language of the Constitution all the Legislature has to do is to provide for an election of mem- bers to the Convention, recognizing the fact that the Convention must be called? Mr. Carter: Undoubtedly; and the act of 1900 makes no further provision. This Pennsylvania case rests upon the authority demonstrating that the vote was not a dele- gation of poY>^er except to the Legislature. Here, in the Pennsylvania case, the Legis- lature was given, by the people, the power to call that Convention or not, as they pleased. No such power was given here. Again, on the next page: The result of the vote on this question declared the sense of the greater number of electors, that a Convention might be called. 201 — Const. Deb. 3194 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Here the vote was not that the Convention should be called. That is not all. In the Pennsylvania case "it vv^as not itself a call. It left that" — that is, the calling of the Convention — "to those invested with the powers of government." So that every word of this decision, which is relied on by gentlemen here, goes to show that the Legislature in Pennsylvania received from the people an authority which they could exercise or not as they pleased, to call the Convention. That was all. And having the authority, they had the right to annex such conditions as they saw fit. Mr. Thom: I would like to ask this question, so that I may understand whether or not I am mistaken in what I thought I heard the gentleman say a moment ago: As I understand the Pennsylvania act, the title of the act was: An act to authorize a popu- lar vote upon the question of calling a Convention to amend the Constitution of Penn- sylvania, and the text of the act is: That the question of calling a Convention to amend the Constitution of this Com- monwealth be submitted to a vote of trhe people. I understood my friend to say that the text of the act of the State of Pennsylvania did not define the power of the Convention to amend the Constitution; but merely gave them the right to call a Convention. Am I mistaken in my understanding of what the gentleman said? You did not claim that, did you? Mr. Carter: I did not intend to do so. Mr. Thom: I thought you did omit them. That is the reason I asked the question. Those words are in both the title and the text of the act. Mr. Carter: But in the act itself there was no expression mandatory on the Legis- lature. It was simply power that the Legislature sought, and they had the right to call the Convention or not, after they received their power; and having that right, they had a right to annex conditions to it. They did not undertake to do more, and you will see that the Court there says this "was not a delegation of power, except to the Legisla- ture." Do you mean to say that the people by the vote under the act of 1900, delegated to the Legislature the power to determine what should be the powers of this Constitutional Convention? If so, how inapt was the language v/hich says, "Shall there be a Conven- tion to revise or amend the Constitution?" You interpret it, "Shall there be a Conven- tion to propose amendments and submit them to the people?" Mr. Thom: No; what I v/ant to call attention to is this, if my friend will permit me. If you are acting under the Constitution in calling this Convention, then the pro- visions of the Constitution making it mandatory apply. But in order to assert that you are necessarily acting under the powers of the Constitution you must again find yourself in the position of contending that that is the exclusive method. Mr. Carter: Not necessarily. There may be power to act under the Constitution, That is not all. As is frequently the case in the matter of titles to land, the tenant in possession may acquire two titles to land, with every element of strength in both. We may base this proceeding under both the Constitution and the act, independently of the Constitution. Why not? I do not know, Mr. President, that there is anything else that I can say on this question. I do not mean to say that there is not something else that can be said. I have not gone into the question of the past precedents, but it does seem to me that upon the question of power, upon the question of legal right, there ought not to be any doubt, even in the mind of my friend from Fairfax, who is anxious because he feels in duty bound to build up barriers, legal as well as moral, against the proclamation of this Con- stitution. I do not think that the positions of these gentlemen here tally with each other. We find gentlemen here arguing for submission, some of them admitting the legal power, others denying it, others doubting it. But I take it, that whether the gentleman from Halifax be right, that there is no other method than that which the Constitution pro- vides, or whether there might be another method, the Legislature chose, in 1900, to sub- DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OE YIEGIXIA. 3195 mit to the people of Virginia the question: "Shall there be a Conyention to revise and amend this Constitution," and that is your authority under the Constitution, under the legislative act, and under the direct vote of the people. Now, what takes away that power? After this Convention had been called into being, after it had been solemnly resolved and enacted that there should be a Conven- tion for that purpose, the Legislature in undert-aking to provide for their assembly and their number, which was all the Constitution gave them the right to do, went further and undertook to say what? That when you get here you must not revise and amend the Constitution, but you must submit your work to the people. That is not all this act says, and that is not all that follows if you take that view of the power. It provides that if the convention shall not propose a revised and amended Constitution on or be- fore the 5th day of October, 1901 — and that time has come — it shall remain for the next General Assembly to enact such measures as it may deem proper for submitting the said revised and amended Constitution to the people of this Commonwealth for ratification or rejection. If these gentlemen are right in their view of the question of power, see where it lands us. One election by the people to decide this thing? Not a bit of it; not a bit of it. It is submitted to the next Legislature, in 1904. Mr. Robertson: Does that mean the Legislature elected at the coming election? Could not this present Legislature call an extra session to consider the matter? Mr. Carter: No, sir; it says the next General Assembly. Mr. Brooke: Does not that mean the General Assembly elected immediately after that act was enacted — the one now in power? Mr. Carter: It may mean that. I do not know what it means. Mr. Brooke: Because it provides that unless we get through with our work in time we must submit it to the next General Assembly. I\Ir. Carter: There cannot be any next General Assembly unless you make it by the Constitution. Your power to do anything is null and void until acted on as pro- vided for. How can there be a next General Assembly under this Constitution until it goes into force? Mr. Robertson: The members of the General Assembly were elected last fall, and they could be called in extra session upon this matter. Mr. Carter: It may be so, and it may not be so. Nobody knows what that lan- guage means: "The next General Assembly is to enact such measure as it may deem proper." That is not all. YiTiat does it leave to the General Assembly? To leave it to the people? No; but to enact such measures as it may deem proper to leave it to the people. It seems to me it gives the next General Assembly — and whether it is the pres- ent one or one to be next elected is a question about which I am not free from doubt — power to enact such provisions as it may deem proper. My friend from Winchester says they have the right to say what electorate shall vote, and they may choose to put in a provision that will leave it altogether to the colored voters. It might be argued that in following this we give them that authority. Mr. Harrison: I think the gentleman from Hanover has been misled somewhat by the report in the Dispatch. I misunderstood his question when he asked it the other day. I understood that he was speaking of the electorate to which the preliminary ques- tion, whether we should have a Convention or not, should be submitted, and it was principally on that line that I was directing my answer to his question. I did not mean, I do not contend, and I do not think it is necessary to contend, that the Legislature has a right to prescribe the electorate to which the Constitution shall be submitted when adopted by this body. Mr. Carter: I am glad the gentleman is not as far from the right there as I thought he was; but it struck me that was the position he took in answer to my question, and that he took that position in answering the question of the gentleman from Culpeper (Mr. Barbour). 3196 DEBATES OF THE CONSTITUTIOJTAL CONVENTION' OF VIRGINIA. Mr. Harrison: When the gentleman from Culpeper asked the question, I under stood the force of it, and I said that the legislative act was necessary to give the assent of the existing government to the proposal of the new government, and that would make it simply a political question, which could not be called in question in the courts. Mr. Carter: Mr. President, on the other question, in this case, I feel some little delicacy in speaking, and I am not going to say much on it, that is the moral question. T do not like to be advising people, especially about morals, but so much has been said . toy gentlemen on the other side, that I think I may speak with propriety. I remember that the gentleman from Wythe stated he did not believe there was a noember in this body who cam^e here with any idea, or v/hose constituents had any idea, that he could do aught but submit this question for their vote. He surely was not pres- ent when the gentleman from Lynchburg argued this question. Why, the canvass was made in that city on this very point. I know of another man in this Convention who was asked the question by his constituents before his election, and before his nomina- tion, as to what his position would be on this point. He said to them that if this Con- vention framed a Constitution that he thought was good and right and proper for the people, he would vote to proclaim it; and if he did not approve of it, he would try and get it referred back to the people and help them to defeat it. Is there a man here who pledged himself to his people to submit this matter? If so, he must keep that pledge, unless he has been released from it. How can he be released? If I thought the people to whom I promised desired me to do something else, would not I be false to my duty to them not to do as they desired? It is a matter that I ought to he careful about; it is a matter I ought to be cautious about; but I say that if a delegate came here under a promise to do something that would bring injury and ruin on his people, it is a bad promise, and it ought to be broken. But much more ought it to be broken, if he is satisfied that the very people he promised desire him to do something else. I do not want to criticise anybody. I am not in a position to criticise anybody. So far as I, myself, am concerned, I made no promise but a promise to vote to proclaim this Constitution, if I thought it ought to be proclaimed. But if I had not done it, know- ing as I know, the sentiment of my people, I would not hesitate to do so. That is a question, as the gentleman said who opened this debate, for submission, that each man must decide for himself. The gentleman who opened this case for submission admitted, and his admission is entitled to great weight in this discussion, that but for his personal appeal to the people in this section, he would have been instructed to vote for the proclamation of the Con- stitution, and I take it he would not have dared disobey those instructions. He also admitted that the sentiment in the State — and he is in a position to hear and see much more than I can, or some others of you — was in favor of proclamation. I do not put much value upon my judgment as to the sentiment in the State, but I see from the papers, and I think it is true, that the sentiment is in favor of proclama- tion. I do know that in my section that sentiment is almost unanimous, and I feel that I would be recreant to the duty I owe my constituents, and recreant to the duty I owe myself, if I did not vote to proclaim it, because I think it is best to do so, be- cause my people desire it, and because that was the purpose for which we were sent here by the people when they voted for a Constitutional Convention "to revise and amend the Constitution." (Great applause.) Mr. Dunaway: Mr. President, I move that the Chair be vacated until 4 o'clock this afternoon. The motion was agreed to, and the Chair was vacated until 4 o'clock P. M. DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 319T AFTERNOON SESSION. The Convention reassembled at the expiration of the recess, the President in the chair. The President: The pending question is as to the disposition to be made of th® Constitution. Mr. Dunaway: Mr. President, this Convention seems to be unwilling to deter- mine anything until the time of taking the vote arises, and in the meantime there seems to be a great hesitation upon the part of the members of the Convention to take the floor. I rather suspect that there are some gentlemen here who desire t& be heard upon this question, but are waiting for others to speak. I will confess that was my ov/n case. I have been waiting, not that I might answer the arguments of any particular gentleman, but for some one upon this floor to give reasons similar to those that move me to give the vote which I shall give, in favor of proclaiming this Constitution. I did not desire to speak upon this subject, first, because I am not fond of public speaking, and, secondly, because this particular question is one of such grave import, and is compassed with so much diflicult3^ But since no one, here- tofore, has stated the grounds upon which I shall cast my vote, I ask the attention of the members of the Convention for a short time, while I give the reasons that move me in reaching my decision. I desire to sp.y, first of all, that submission to the people is the customary way of disposing of Constitutions in the various Commonwealth of America. If there was not something unusual in the present case I should certainly give my vote for com- pliance with the ordinary method of framing Constitutions in America. All the Con- stitutions we have had in Virginia were submitted to the popular vote, except the first one. The Constitution under which we live was submitted to a vote, not by an aet of the Legislature, not by the Convention itself, but by the act of the Congress of t&e United States. I believe that it was the intention of the framers of that Constituticss® that future Constitutions should be submitted, and that they did not have a thought t® the contrary. Argument has been m.ade here, mere verbal argument, upon a phrase used in the last article of the Constitution about calling a Convention "to revise aiiS amend." While nothing is said there about submission, it may be read in the lines, and was the intention, I have no doubt. It surely was the intention of the act of the General Assembly under which this body was called, that the new Constitution should be submitted to the vote of the people. Tt appears very plain from several sectiosi;^ of that act. In the 6th section, for instance, the following language is used: The persons who shall be elected in pursuance of this act shall, on Wednesday, the 12th day of June, 1901, at 12 o'clock, meet and assemble in the hall of the House of Delegates, at the Capitol, in the city of Richmond, in general convention, to consider, discuss, and propose the new Constitution, or alterations, or amendments to the exist- ing Constitution. The 12th section provides that it shall be submitted. The last section, to whic^ I call the attention of the gentleman from Fairfax particularly, provides: If said Convention shall not propose a revised and amended Constitution on or he- fore the 5th day of October, 1901, it shall remain for the next General Assembly — evi- dently the one that is now in existence — to enact such measures as it may deem proper, for submitting the said revised or amended Constitution to the people of this CoiiS;^ monwealth for ratification or rejection. The gentleman from Fairfax laid down the proposition that if this act fs a vaBidf one, this Convention is bound by it. I do not agree with that proposition at all; but If I did, I should certainly answer that this Constitution has neither the power to 3198 DEBATES OE THE CONSTITUTIONAL CONVENTION OF VIRGINIA. proclaim nor the power to submit. I ask the attention of those who lay so much stress upon this act, under which we were elected, to the language of the act: If said Convention shall not propose a revised or amended Constitution on or be- fore the 5th day of October — just what did not happen — it shall remain for the next General Assembly to enact such measures as it may deem proper for submitting the said revised or amended Constitution to the people of this Commonwealth for ratifica- tion or rejection. Since we have failed to comply with that condition, and are to consider ourselves bound by all the terms of this act, there is nothing this Convention can do except to give a certified copy of it to the Legislature of Virginia, and allow them to enact such measures as they see fit, for submitting this revised and amended Constitution to the people of this Commonwealth. I make these remarks for the consideration of those gentlemen who feel bound by all of the terms of this act of the General Assembly. I, for one, do not feel bound by the terms of this act. The General Assembly of Virginia, when there is no Constitutional Convention in session, is the direct repre- sentative of the will and sovereignty of the people of Virginia; but when a Constitu- tional Convention, under an act passed by them, has come into existence, it is not sub- ordinate to the Legislature of Virginia, and is not bound by it. It is a subsequent ex- pression of the sovereign will of the people; the last reflection and exponent of that will, and it cannot be bound by what has been done before, any more than the Legis- lature can be bound by the acts of a preceding Legislature. Mr. President, there is one great fact in the present history of Virginia upon which this whole question hinges, in my judgment, and it has not been mentioned by any gentleman speaking in favor of either of the propositions that are now before this body. That great fact, to which I call attention, and to which I bow submis- sively, is the altered will of the people of this State. It was "the sense" of a certain convention of Virginians, about two years ago, that this Constitution should be sub- mitted to the people, but it does not follow that they have not obtained better sense by this time. It never did seem to me to be first-class sense that a body of white men should say that there should be no Constitution for the white people of Virginia unless it was ratified by the negroes of the State. It never did seem to me to be first- class sense that a body of Democrats should say that there should not be a Constitu- tion framed by them — although they made it a party question — until they had first asked the consent of the Republican party. But whatever may have been the opinion of Democrats and Republicans two years ago, or whatever may have been the opinion of our people twelve months ago, I stand here to say that a great political revolution has swept over the Commonwealth of Virginia, and that the mind of the dominating class of Virginians has changed within the last twelve months. I shall not cast my vote to reflect what was the opinion and sense of my people twelve months ago, but to reflect what is the sense, the opinion, and the wish of my people at the present time. Why do I say so, A great daily paper, established in this city, has been of that opinion for a long time, and has advocated it. The one paper in the Commonwealth which may be called — if any paper in the Commonwealth may be called — the organ of the Democratic party in Virginia, has swung into line, and the old Dispatch stands side by side with the Times in advocacy of the proposition of proclamation. Why so? Because it is simply reflecting, through its editorial staff, the will of the people of Virginia at the present time, as they believe it to be. So far as I have heard expressions myself, so far as I have information derived from gentlemen who have come but recently from their constituencies, that sentiment has grown, and it has not yet reached its highest mark. It is still gathering force in the Commonwealth of Virginia. I may be mistaken in my belief, but I believe I reflect the will of the people of intelligence, of social worth in the Commonwealth, by deliv- DEBATES OE THE COXSTITUTIOXAL COXTEXTIOX OE YIEGIMA. 3199 ering my voie for the proclamation of this instrument, ^hich has "been devised after so many vreary months of labor, after taxing the patience and the vrisdom and the patriotism of this body, one of the finest bodies of men that ever gathered to form a Constitution for Virginia. Mr. Thom: I only Tvanted to know from the gentleman what view he takes of this moral proposition, because I have great confidence in his views on all questions, especially those relating to right and wrong. As I understand it, the pledge of the Democratic party was to obtain the votes of the people of Virginia in favor of the Constitutional Convention. You will probably agree with me on that proposition. Mr. Dunaway: I am hardly prepared to ansv-er that question because I am en- tirely out of politics myself, and know nothing as to what was the purpose of the Demo- cratic Convention, or what its aim was in doing that; but I will say this to the gen- tleman: The people of Virginia, in voting that there should be a Constitutional Con- vention, did believe that the Constitution would be submitted to them. Mr. Thom: What other object could the Democratic party have had, in making the pledge, except to prevail upon the people of the State to vote in favor of holding a Convention? Mr. Dimaway: I do not know. Will the gentleman suggest one? Mr. Thom: I cannot suggest any, because I think that was their object. I think it was their object to obtain the votes of the people of Virginia in favor of holding a Convention. Granting, now, that there vrere votes in the State of Virginia obtained by that pledge, how can a change of sentiment on the part of the people of Virginia, after that time, be a sufficient cause for violating the pledge to the people who were prevailed upon to vote for the Convention by that pledge? Mr. Dunaway: The term, '"people," is a very indefinitive expression. Mr. Thom: Then, vrere not pledges offered to persons, and if so, how can a change of sentiment on the part of the people of Virginia relieve the party from the obligation of keeping faith with those persons whose votes were thus secured? Mr. Dunaway: It is the majority in America that makes alterations in Constitu- tions. Mr. Thom: But it is not a majority that justifies the breaking of pledges. Mr. Dimaway: I believe that a majority of the people of Virginia have changed, and they do not. to-day. care about anything that you said in Norfolk, or about any- thing that is said in the act of the General Assembly under which we are elected. T believe that the people of Virginia are utterly indifferent to both of those things. Mr. Thom: Suppose they do not care; suppose, on the contrary, that they are absolutely determined that the thing now to do is to violate the pledge, my question is how can that violation be justified to the persons whose suffrages were secured by mak- ing the pledge? Mr. Dunaway: If I make a pledge to my friend from Norfolk, I am in honor bound to keep it, of course; but if he should say that he does not wish me to keep the pledge, then I would not have violated my promise to him. Mr. Thom: Would not that require every man, whose vote was thus secured, to come to the Democratic party and release them? Is it a question of majority, when you give a pledge, or is it a question of the obligation of the pledge? Mr. Dunaway: I am satisfied to deal with all the obligation there ever was upon me, by the reflection that the Commonwealth of Virginia is represented by a majority of her best citizens, and does not care anything at all for your Norfolk pledges, or for specific statements in the act of the General Assembly, and I believe that the ma- jority of those citizens think that this Constitution should be proclaimed. Mr. Brooke : May I ask the gentleman how he gets the information that a majority of the people do not care to have the Constitution submitted to them? Mr. Dunaway: I say that it is my opinion, and it is a firm conviction from read- ing the papers and from talking with the people. It is a conviction that is forced upon me by talking with very many members of this Convention. 3200 DEBATES or THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Mr. Brooke: Then do you not put yourself in this position: That if you have made a pledge to me and you have obtained an impression, somehow, or somewhere, in some indefinite way, that I do not care for it to be kept, you need not keep it? Mr. Dunaway: No, sir; I will not admit anything of the kind. I must get my release from you. Mr. Brooke: I ask you how to get this release from the people whose suffrages have been obtained by the pledge, and who do not personally release you. Mr. Dunaway: I have endeavored to answer that question by saying that I do not think we are bound to all of the individuals of the State, but to the majority, repre- senting the sovereignty of the State. I never considered that I, for one, was bound by that pledge. We are discussing now questions of moral obligation, and I feel that in all good conscience, I could give my vote in this way. If other gentlemen have more tender and better, and more honest consciences than I have, they must vote according to their consciences, and leave me free to go by the dictates of my own. I say I believe this is the sentiment of our people. I do not claim that any man can be relieved from the obligation by a vote taken in his own county, because it might be the only county in which the senti- ment was in that way. The honorable gentleman from Fairfax says that if the people of Fairfax voted to relieve him, he could not consider that he was relieved. Neither could I, if the people of my own county were the only ones of that opinion, I should not feel that I was relieved in that case. I will say this, however, that to the best of my knowledge and belief, the particular constituency which I represent here is in favor, by a large majority, of proclaiming this instrument; and I owe some deference, at least, to those particular men who gave me a seat in this Convention. A great deal has been said here about what was the opinion of men of seventy years ago — about what Mr. Thompson said, and what Mr, Johnson said, and what other men said in 1829. What does that weigh with me? I have the greatest venera- tion for the men who sat in that Convention, but the opinions they had then cannot be quoted in favor of anything that is existing in the present condition of things. If any man could be wise enough to tell me what Mr. Johnson and Mr. Thompson would say, now that the twentieth century has come, when we are assembled in Constitutional Con- vention, I would hear what they had to say. But they were speaking in the midst of circumstances that are totally different from those with which we are encompassed. This discussion has been hinging around technical and fine drawn distinctions, the Pennsylvania idea, the Delaware idea, the opinion of Mr. Justice Agnew, and other opinions of learned judges. We are discussing what the word "amend" means. We have been, so far, all the time sticking in the bark, and have not gotten to the heart of this matter. It is a grave question, not a mere legal question, depending upon the con- struction of words. It is a great political question in the history of a great people, and cannot be decided by verbal discriminations or distinctions. Neither am I careful as to what were the precedents in the past. There is nothing in the past history of Virginia that is a precedent for the present condition of this State. Like things should be done in deference to the past, when similar circumstances arise. We are under dissimilar circumstances from any that ever confronted the people of Virginia or a Constitutional Convention assembled in Virginia for the purpose of making a new Constitution. The gentleman from Henry asked what there was in the present condition of affairs that justified a departure from the ordinary rules of submission. He said that he did not see anything that would justify it, and I hardly expected that he would. It is not far to seek, perhaps, why it is the honorable gentleman desired that this Con- stitution should be submitted to the people of Virginia, if he is like a good many others. It has been said, I know not with what truth — and I refer to no particular man upon this floor — that there may be a few of the members of this Convention who desire this instrument to be submitted to the people in the hope, at least, that it will be voted down. There is a great deal in the present condition of Virginia that can DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIKGINIA. 3201 be well met in no other way, than hy the proclamation of this Constitution. What have we now that we never had before? What have we now that our fathers of 1829 and 1850 did not have? In the first place, we have negro suffrage. We have negro suffrage that was forced upon the Commonwealth of Virginia at the point of the Fed- eral bayonets. They did not have that. Where is the precedent in the past history of Virginia for dealing with a great question of this kind? I answer that there is none. Now, let me give you a few figures. The white voting population of Virginia is 301,379. The negro voting population is 146,122; making a grand total of 447,551. One- half of that number of 223,750. If you take 146,000 from that one-half— 223,750— you have a remainder of 77,628. What does that mean? It means that 77,000 Virginians can join with 146,000 negroes and deprive 223,000 of the white voters of Virginia of a Constitution they desire, and one that is necessary for the altered conditions of the Commonv/ealth. Now, you who favor submission, you who cannot adopt a Constitution without ask- ing the consent of the 146,000 negroes of Virginia, may go and do that if you will; and that is just v/hat you will do when you vote to submit the Constitution to the entire present electorate. I stand here in opposition to that, reflecting as I believe, the sovereign will and desire of the white voting population of Virginia. There sat in this hall some years ago twenty-four negroes, in company with native scallawags and carpetbaggers, who came from across the Potomac, to make a Constitution that was to bind you and me and our children, and now that I have the opportunity, I will endeavor to correct that action. You may call it if you please, counter revolution; if it be revolu- tion, make the most of it. Revolution cannot be met, except by revolution. There is no disgrace in the term. It is simply the great necessity of the present condition of the Commonwealth of Virginia, and I feel bound by that necessity. A man owes his highest allegiance somewhere, and while I have never cast any vote in my life that was not for a Democratic ticket, and never expect to, yet there is a bigger name than Democracy with me, and that is the name of Virginia. I confess an allegiance to the Democratic party. I have considered that the success of that party coincided with the welfare of my State; but when it seems to me that the party is going in a different way from what the welfare of the Commonwealth requires, I give my allegiance to the State before the party. I do not believe the gravity of the present situation of our people has been prop- erly appreciated by those who are in favor of submitting the new Constitution, which I believe to be a good one, to all of the voters of this Commonwealth. I believe that we can make a good Constitution for the colored people of Virginia; I had rather that these one hundred men, assembled here in the Capitol, should say what is to be the organic law under which I and my children are to live, than to submit the question to an alien, hostile, ignorant, and prejudiced race. I do not believe that those who have hitherto spoken upon this subject have properly considered the gravity of this question and all that is involved in it. I feel that incasting my vote, as I intend to do, I am really carrying out the wishes of the Democratic party and the wishes of the people of Virginia, better than are those gentlemen who wish to submit this in- strument to all the voters of the Commonwealth. Why did you have a Constitutional Convention? What was the uppermost question before the people of Virginia at the time the Convention was called? A reformation of the suffrage article. But for that I venture to say, you would not have had this present Convention called. And now, that this new article has been adopted, you would run the risk of having the chief purpose for which you came here thwarted, and your work made null and void, by requiring submission to all the voters of the Commonwealth. I cannot consent to do that. The time has come in the history of Virginia when we need a great change in our political methods. The gentleman from Henry says: Let all the negroes keep on voting. He says: Submit the Constitution to the present electorate. And he says in 3202 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. the same breath, with a perfectly honest intention and purpose, I have not a particle of doubt, that our election methods ought to be purified. No man here will take issue with him upon the subject that the election methods ought to be purified. But I stand here in my place and tell the gentleman from Henry that the election methods in Vir- ginia will not be purified so long as there is no abridgment of the present electorate, for the decree has gone forth; this is a white man's State, and shall be dominated by the white man. (Applause.) However the white man hates it in his soul, he will use fraud to carry an election before he will be dominated by the negro. You can never get purity of election until you have first changed the electorate, and, in my judgment, you will never get the altered electorate unless you proclaim this Constitution. But these gentlemen will say: "We will sweep the Commonwealth with this new instru- ment." I say, no. Why do I say so? In the first place, is there a man who hears me, who supposes that a single one of the 146,000 negro voters in Virginia will vote for the new Constitution that disfranchises him, perhaps, or if it does not, disfranchises one of his own color? Is there any man who supposes that there will be a single one of them on election day who will stay away from the polls? They have been indif- ferent about elections heretofore perhaps, but if you submit this Constitution to the full electorate, while I am not a prophet, I can tell you of some people who are going to be at the polls very early in the morning, and who will insist upon the depositing and the counting of their ballots. Then, again, since the Democrats (unwisely, in my opinion) made this a party question, I am not at all surprised that the Republican party in Virginia has made it a party question also; and while I think there are some gentlemen of that party in this Convention who so admire this Constitution that they will vote for it, and work for it; yet I do not believe that is true of the majority of the white Republicans of Virginia. I have reason to think that the masses of the white Republicans of Virginia will vote against your new Constitution, Have they not given you warning of their purpose? I have not a copy of the platform that was adopted in their State Convention last year, when they nominated a Governor, but I think I remember reading in the papers, at the time, that the party in its platform de- clared against this Convention and against the new Constitution. If I am in error about that I will thank any gentleman upon the floor, be he Republican or Democrat, to correct me. In other words, the party in the State is committed against it. Then you must remember that there are a good many apathetic Democrats in the State of Virginia who will not go to the polls; and you must remember, also, that there are a great many who, while they are not apathetic, will work against this Constitution and endeavor to vote it down. I have not a doubt about that. Mr. Davis: If I understand you, you want to proclaim the Constitution because the people of Virginia do not want it. Mr. Dunaway: I want to proclaim the Constitution because the majority of the -White men of Virginia want it. (Applause.) My friend from Winchester seemed really to be suffering the other day. (Laugh- ter.) A spasm came over his face when he talked about ramming the Constitution down the throats of an unwilling people. My friend from Wythe said the people of Virginia did not want it. He harrowed our sympathies by telling us of a sick neighbor, who seemed to be just on the point of being forced to take some very disagreeable medicine that he did not want, and that his neighbor thought he ought to have. In regard to forcing, I want to say this: It is not in the power of 100 men to force the Commonwealth of Virginia. It took a great many more men than 100 to force the old Commonwealth, and the Commonwealth of Virginia cannot be forced by this Con- vention. I love my State too well to think of the exercise of force in this matter. I am neither so wicked or so foolish as to attempt to force anything upon the people I love, the sovereign people of Virginia. There is no such thought as that on the part of the proclamationists in this Convention. The figure that was used by the gentle- man from Wythe was not a very appropriate one. I, too, might be allowed to suppose a case. I might come to the gentleman from Wythe without his invitation, with a \ DEBATES OF THE COIs^STITUTIOIs^AL CONVENTION OF VIRGINIA. 3203 beautiful and luscious strawberry, covered over with sugar, in a silver spoon, with a gold bowl, and he might say, " I did not tell you to bring me that." I would say, " No, you did not; but here I am. Open your mouth." And open his mouth flies, and he takes it down. I did not force him to do it. He opens his mouth wide because he wants it. That is just about the way it is with the old Commonwealth of Virginia. She will accept the Constitution, when proclaimed, just because it is what she desires. (Laughter.) While you cannot force the people, there are more ways to obtain the assent of the people than by a popular vote. That is not always a sure index of the best wishes of the people. Silence gives consent. Assent gives validity to an instrument. You saw how it was in 1776. The people just organized under it. I will tell you what will happen if you proclaim this Constitution. You will have the schedule under which the General Assembly will meet here in November — they will not wait until December; they are just ready to come. They will come and proceed to put the new instrument into effect, provide for the election of officers, and all that sort of thing, and the old State will move off under her new regime. The great bulk of the better class of the people will take it, and give it validity by their acquiescence. That is the only way you can bind the people. The people of Virginia to-morrow might vote to a single man, white and black, and they would have this Constitution. Are they bound by it. No longer than they wish. To change it they can call a convention the very next week, saying: "I have changed my mind. I do not want it." So, in regard to laws and constitutions, it is the assent of the people alone that gives validity to the instruments, and they can change them whenever they will, but so long as they acquiesce in them they are valid. I propose to give them this Constitution because I think they want it, and because I believe they will go to work under it, and prosper. They will have under it a degree of material prosperity such as has never been known heretofore in the Commonwealth of Virginia. Mr. Thom: Do you base your idea of the validity of the Constitution on the idea of the acceptance of the people through the Legislature, or upon the power of this Convention ? Mr. Dunaway: Neither one. The bare fact of their acceptance of it and organ- izing under it gives it as much validity as if every man, Vv'oman and child in the Com- monwealth voted for it. Mr. Thom: But, do you claim it would be valid without the acceptance by the Legislature, or the political arm of the government? Mr. Dunaway: If the gentleman from Norfolk supposes that the present General Assembly of Virginia, if we proclaim this Constitution, will refuse to assemble under the schedule adopted by this Constitution, of course, the Constitution could not go into effect without legislative enactment; but I make no such supposition. Mr. Thom: Suppose that prior to the time of the assembling of the General As- sembly the question was properly raised in court. Do you contend the court would decide that this Constitution was valid by the mere act of proclaiming, or are you relying for the validity of the Constitution upon its subsequent acceptance by the political arm of the government? Mr. Dunaway: The argument I was making requires that I should say, I was relying upon the acceptance and acquiescence of the people. Upon the other question, that it would be valid upon a mere promulgation by this body, I have not expressed an opinion. Mr. Thom: Do you object to giving it? Mr. Dunaway: I studied law under an old lawyer, years ago, who had a way of saying, when he was not positive, 'T incline to think." I incline to think it would be valid. I thank you, gentlemen. (Applause.) On motion of Mr. P. W. Campbell the Convention adjourned until to-morrow (Wed- nesday), May 28th, at 10 o'clock A. M. 3204 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. WEDNESDAY, May 28, 1902. The Convention met at 10 o'clock A. M. Prayer by Rev. Richard Mcllwaine, D. D, METHOD OF ADOPTING THE CONSTITUTION. The President: The unfinished business before the Convention this morning is the further consideration of the resolution offered by the gentleman from Campbell (Mr. Daniel) as to the disposition to be made of the Constitution. Mr. Robertson: Mr. President, I have no intention of making an argument with reference to the pending question, but as the time is drawing near v/hen, under the resolution offered by the gentleman from Campbell, v/e will have to vote on this ques- tion, I consider it due to myself and to my constituents that I should state the reasons why I intend to vote' for the submission of the Constitution which we have framed to the entire electorate of this State. I do not propose to argue either the legal or the moral aspect of this matter. My experience in life has taught me that it is of no use to argue questions of this sort before people who have to vote upon them. If two men differ as to a moral proposition to start v/ith, the more they talk about it the more they differ. If two lawyers differ about a legal proposition in v/hich they have an in- terest, and where they have already made up their minds, the more they talk about it, the more they differ. I, for one, do not believe that any argument from any man in this body, whatever may be his intellect, whatever may be his pov/ers as an orator, will have the slightest effect upon the determination of this question. But I do think that it is due to the people of Virginia, and it is due to ourselves, not to decide this question without letting the people know why it is we do it. I, for one, am unwilling for the people who live in Virginia now, and for those who come after us, to see just the naked act of our voting, one way or the other, and not knov/ why we so voted. So far as I am concerned, I will state frankly to this Con- vention that I have not followed the example of my legal brethren in this body, and undertaken to search up authorities of law to determine a judicial question, which we cannot possibly determine. As I understand the proposition before us, it makes no difference how we determine this judicial question, our decision will have no finality. We do not sit here as judges of law. We sit here as law-makers, making the highest kind of law, making fundamental and governmental law for this people; and it makes no difference how we decide as to our rights, because our decision can have no bind- ing effect before the court before which this question will have to be decided. But this debate has developed the fact, and I believe every man reasoning with reference to this thing has developed the fact in his own mind, that it is a question about which there can be an honest difference of opinion amongst the lawyers in this body. I be- lieve this body contains some of the best lawyers in the State of Virginia. They are on opposing sides of this question. Both sides are heated by the controversy that has been developed by this debate. They differ honestly, and the fact is evident that there is necessarily a doubt as to how this question v/ill be determined by the court, if it ever should come into court. The distinguished gentleman from Hanover (Mr. Carter), a gentleman for whose legal opinion I have the highest regard, for there is no man in this State whom I would be more willing to consult in reference to my pri- vate interests and as to my legal rights, is thoroughly convinced, in his own mind, that we have a right to proclaim this Constitution. But the gentleman from Hanover knows, and all of us know, that he has been thoroughly convinced many times in his life that he was right about a legal proposition, and yet the Court of Appeals has de- cided that he was wrong. I do not suppose the gentleman will claim that he is infal- lible. I am not attempting to throw bouquets to my friends here in this last speech DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OF YIEGIXIA. 3205 that I shall make, but I say in all earnestness that the gentleman from Winchester, who is considered by everybody that knows him, as one of the best circuit judges in this State, a man who has one of the finest legal minds I know, a man whose con- science is as clear and whose head is as clear "'as that of the gentleman from Han- over, differs radically from him. The gentleman from Fairfax differs from him. Now, it has been stated on this floor by the gentleman from Fairfax that one gentleman who has presided over our Court of Appeals has expressed an opinion about this mat- ter, and some of these gentlemen say that fact makes no difference. I say that is an important matter for us to consider here, that a man who has been considered worthy to sit upon the Court of Appeals has expressed an opinion adverse to that held by the gentleman from Hanover. I am going to be perfectly frank with this Convention. I do not believe in a man not being frank, because this is too grave a matter for us not to be frank with each other in this debate, either by parliamentary tactics or other- wise, because this is a matter the people of Virginia are deeply interested in, and there can be no question we have to consider which is more important than this. I say I will be perfectly frank about it. When I first came to this Convention, and when this matter first came up here, I was thoroughly convinced that the position taken by the gentleman from Campbell (Mr. Daniel), who opened this debate, vras the correct one. Mr. Brooke: I think the expression used by the gentleman just now ma^^ have created an erroneous impression on members of the Convention, I think I know what the gentleman meant. I am referring to what you just said in regard to the expres- sion of opinion of a judge of the Court of Appeals. You spoke of him as being a judge who presided upon the bench of the Supreme Court, and in such a way that the im- pression may have been made that he was one of the present judges of the Court of Appeals. I think you did not intend to give that impression. Mr. Robertson: No, sir. I will correct that. I did not like to mention the gen- tleman's name, because I did not know v^hether or not it would be agreeable to him. However, I do not believe that he v/ould object to it. I refer to the Hon. A. A. Phle- gar, of Christiansburg. I talked with him the other day. As I started to say, when I first heard the matter discussed I frankly admit that r thought the powers of this Convention v\-ere complete as those claimed for it by the gentleman from Campbell. I thought that vre had a right to proclaim, or a right to submit to a restricted electorate, or a right to submit to the present electorate. I am not prepared to say what my opinion is now, because I must confess the argu- ments that have been made here have shaken me very much in regard to that matter. I recognize, and this Convention ought to recognize, that the opinions of these gentle- men are entitled to weight; and the arguments presented by them have made me doubtful about my judgment on this point. There are very few cases to be found bear- ing upon this subject. It is a matter that goes dov,m into the fundamental principles of government. I speak of this because it does seem to me that we ought to consider the question from this standpoint. There is a doubt as to our legal right to proclaim this Constitution. I do not believe any man can controvert that. I do not care what he may say about there being no doubt in his own mind, there is a doubt in the minds of other members of the Convention, and there is doubt in the minds of the people of Virginia. No man can claim that he knows how the Court of Appeals will decide this question. Now, gentlemen, should not that make us pause? Is not that a legiti- mate argument to address to this Convention? There can be no doubt that if this Constitution is submitted to the people, and they ratify it, it will then be a valid Con- stitution, which no court can disregard; but if there be a doubt as to how the courts will decide this question, is it not a proper matter for consideration even to a man w^ho is most deeply bent upon proclaiming? Is it not a matter that should make him pause and consider whether he may not be throwing away, as the gentleman from Fairfax so eloquently portrayed, the work that we have been engaged in here for 3306 DEBATES OP THE CONSTITUTIONAL CONVENTION OF VIRGINIA. nearly a year? Gentlemen, I believe the people of Virginia desire to have this Con- stitution go into effect. If we can judge by the press, there seems to be a universal sentiment in favor of it. Nobody has heard of any organized body of the people op- posing it. Nobody has heard, so far as I know, of many individuals opposing it. The proposition I make is that we ought to trust the people in reference to this thing. Do the safe thing. Do not let us do a doubtful thing, and lose the benefit of all our labors. If we have a Constitution ratified by the people it is certainly valid. If we proclaim it no man on this floor can say that he knows it is certainly valid. Now, that is the first reason, but by no means the only reason, that actuates me in opposing the pro- clamation of the Constitution. If I did not have the slightest doubt about this matter, if I was absolutely sure, if I knew the opinion of every judge upon the bench of the Supreme Court of Appeals in regard to this matter, and knew that we had the legal right to proclaim this Constitution, I, for one, would feel that I was doing an injury to my beloved State if I voted to do what the gentlemen in favor of proclamation are asking us to do. Mr. President, I said in the beginning that I would not make an argument. I am just stating my own position. I am not going to undertake to tell the gentleman in this Convention what they should do from a moral standpoint; but so far as I am con- cerned, I have been brought up In the belief, and I cannot get rid of it — the matter is as deep in my nature as anything that is in any nature — that honor and honesty ought to obtain in politics just as much as in private life. In private I have been laughed at by men for whom I have the highest regard, for uttering these sentiments; but I believe if we wish the people of Virginia to continue to prosper, if we wish to lift up our people and keep them on a high plane for the future, it is our duty to try to introduce into our politics as high a standard of morality as we already conform to in our private lives. There are no people in the world who have a higher standard in private life than Vir- ginians, and I hope to God the day will never come when in our political life we will think we have a right to do things we would not do in private life. I have been brought up to the view that that cannot rightfully be done. I believe (if we care to take a low viev/ of it) that it is the best policy in the long run; but apart from the matter of policy, we ought to do it anyhow, because it is right. To my mind, we have made a solemn pledge. I cannot qualify that pledge, as some gentlemen have, by saying it was made to any particular part of the people. The Democratic Convention in Norfolk adopted a platform. A platform, if it means anything, is a pledge that if the party prevails and comes into power it will do cer- tain things. For gentlemen, who ran for this Convention in Democratic primaries, and who did not state to the people that they would not stand upon the platform, to get up here, and say that they do not care a snap of their fingers for what that con- vention did, is something, I confess, I cannot understand. I do not impugn the motives of those gentlemen. We look at it from a dilTerent moral standpoint — that is all. But as for ifiyself, I would consider, if I had never said a word about this question, that if I ran in a Democratic primary and kept silent about it, the people would have a right to think that I believed in the party platform upon which I ran. Now, gentle- men, how about this matter of being released from the party pledge? While a man may feel under the deepest obligations to his constituents, I do not consider that he can be released from a previous pledge made to the whole people of Virginia by the political party to which he owns allegiance. I say here, and I say it openly, that while it would embarrass me to the greatest extent, and while I would hate to be put in that embarrassing position, no constituency that I represent, would, in my opinion, be able to release me from a pledge that I had solemnly engaged to fulfill before I was elected. Gentlemen have overlooked the fact, too, I think, that this pledge is not sim- ply a question of our election to this body. The pledge goes back further. It was not Bimply a pledge to this, that and the other constituency in Virginia. Every member of this body remembers that the question of calling a Constitutional Convention in Vir- DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE TIEGIXIA. 3207 ginia has been three times before our Legislature within recent years. In the year 1888, the question was submitted to the people, and the people overwhelmingly de- feated the calling of a Constitutional Convention. If I recollect aright, there was not as many votes cast for it. I think 3,000 and some odd votes were cast for the calling of the Convention, Time went on, and in the year 1897 the Legislature of Virginia again submitted to the people of Virginia the question, shall we call a Constitutional Convention? and it was again overwhelmingly defeated — though by not quite so large a majority. In the Legislature of 1900, the question was again submitted, and I do not believe that there is any man in Virginia who knows anything about the political conditions then, who can honestly say that this Convention would have been called by the people, if the Democratic party at Norfolk had not taken it up, and made it a party issne. It is a matter of current knowledge of the times, and everybody knows about it. My recollection is — I did not have the misfortune to be even remotely connected with poli- tics in those days, and I wish to God I had not gotten aiij nearer since — that the distinguished gentleman from Campbell (Mr. Daniel) who, by his splendid talents and by his great and honorable services to the people of Virginia ever since the close of the civil war deserved to be, and was the leader of Democratic thought in Virginia at that time, and still is to-day, espoused the cause of calling this Constitutional Conven- tion, and that it was on account of his doing so, largely, that the people of A^irginia in that Democratic Convention, decided to make it a party issue. There was a difference of opinion among the people at that time. There was a large section of the Demo- cratic party that thought it was unwise to call this Convention. They thought that having lived under the Underwood Constitution — much as it has been abused on ac- count of the personnel of the Convention that framed it — for thirty years, we could live under it probably for a few more years. Virginia had prospered under it. The people of Virginia had previously shown that they were opposed to holding a Consti- tutional Convention, and there was still a great difference of opinion as to whether this Convention should be called or not. It was only by the Democratic party making it a party issue, and hedging it around with provisos as to what would be done by the party that this Convention, in which we are sitting to-day, came into being. I do not believe any man on this floor can deny that. I do not deny that there are individuals here who, when they ran, distinctly stated before the people that they did not stand on the Democratic platform. I believe the gentleman from Hanover is one, and there are a number of gentlemen who ran on that understanding. Those gentlemen may vote, of course, as they think right. In my opinion, they are at perfect liberty to vote as they wish; but I submit to this Con- vention that the vast majority of its members either said nothing on that subject, or told the people they would vote for submission to the people. How, gentlemen, can we be released from the obligations assumed to the people of Virginia in that Nor- folk Convention? By somebody afterward finding, as they imagine, that they have sworn to their own hurt, as the gentleman from Lancaster says, and that they have a right to change? I have been brought up, gentlemen, to believe in the noble sen- timent expressed in the Psalms, that man who "sweareth to his own hurt and changeth not" shall never be moved. No argument ought to be produced here to drive us into proclaiming this Constitution out of our fears that the people of Virginia will vote it down, if it is submitted to them. Gentlemen, that is the strongest argument, to my mind, why we should submit the Constitution to the people. Are we afraid of our own people? Are we, one hundred men here, so wise and great and mighty that we will arrogate to ourselves all the wisdom and good in this State, and say that the Democratic voters, and the great mass of the white people of Virginia, are unable to understand the good that we have done for them? But, gentlemen, even if the argu- ment that there is danger of its being defeated were true — and I absolutely deny it, for the sentiment for proclamation throughout the State shows that the people are in 3208 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. favor of it — but even if there was a danger, even suppose that the hopes of these gen- tlemen who have worked and labored here to get this Constitution together, should be doomed at the polls, is that any argument, in a body of Virginias, why we should go back on a solemn pledge? The Democrats in Virginia are not the only people in Virginia. We have no right to make any such assertion as that a party platform Is only good for the people M^ho are going to vote for it. It is nonsense. We would not have any platform if we were not appealing to everybody. We are trying to make friends, we are trying to get people into our party, and to say that we made a platform for the purpose of getting Democrats to vote for Democrats is the most remarkable proposition I ever heard. No party can arrogate to itself that, "We are the people." There are white Republicans in this State. Some of the gentlemen argue that we did not make this pledge to the great horde of black voters that we have upon us, but that we made it to the white people of Virginia. Gentlemen, there are some very re- spectable white Republicans in this State. There are a great many white Republicans in this State just as good as any Democrat in this Convention, morally, whether they be so politically or not. Did we not make the pledge to those people as much as we did our own people? Were we not trying to get all those people to vote to hold this Convention? Why, in my ov/n city, and throughout Southwest Virginia, which, I thank God, is beginning to prosper, the whole country is filling up with people from the North. There are Northern Republicans in my city, that vote the Democratic ticket on local matters at every election, and yet in national matters they are Republicans. Numbers of them voted for this Convention, as I have reason to believe. Can we get together here, and say that we, the Democratic party, as a political party, constitute the people of Virginia? Most of us here are Democrats, it is true; still, there are a large number of people not in our party. Did we not make the pledge to them? Did we make it to any par- ticular county in the State? Did v/e not make it to the State at large, and was not the question submitted to the people as an entirety? How can we get out of that pledge. That is the question I v/ant gentlemen to consider before they vote on this question. I do not intend to make the slightest attack on any man who differs with me. I would not think of doing it, because I knov/ we are all fallible, that we are all governed by what we believe to be right, but what we believe to be right is governed and colored by our own Constitution's temperaments to start with, by our surround- ing circumstances, and alas! also often by our self-interests. I know I am subject to the same weaknesses that other men are; but I do consider it my right to appeal to the gentlemen of this Convention who have said they have made up their minds about this matter, to gravely weigh this question, and see if they cannot reconsider it. I do not intend, as I said, to argue the legal question involved. I want, further, to state (and that is what I got up for mainly, but v/hen I get on my feet I sometimes talk more than I intend) that when I became a candidate for this Convention, I ran in a Democratic primary, where v/e had one of the hottest little fights we have ever had in that hot little town of Roanoke. The people of that city called on me for my views in regard to certain matters, and I frankly answered them. One of the first questions they addressed to me was: Are you in favor of standing upon the Norfolk platform with regard to submitting this question to the people? I said then, because I felt that the Norfolk platform was right, that I unquestionably stood upon it. Now, no man can release me from that pledge. I submit that if I had said noth- ing of the kind, I would stand in the same position, because when a party has adopted a platform, if a man keeps silent about it and gets the benefit of it by keeping silent, he cannot afterwards get somebody else to release him. I do not know of anybody that can release me from an engagement that I have made whereby I get something, after I have gotten it. That is not good, either in law or morals. It will not do for you to be released after you have gotten what you vv^ant. We did not hear anything of this particular question when we first came here; DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF YIEGINIA. 3209 and you, gentlemen, know that we did not. The question then was between the forces who were discussing whether we should submit this question to the present electorate or whether we should submit it to the restricted electorate. You Y^'ill remember that notable discussion. Able men took part in it. The dis- tinguished gentleman from Pulaski (Mr. Wysor), and the distinguished gentleman from Appomattox (Mr. Flood) were among the most notable and able speakers on the side of submission to the entire electorate. The distinguished gentleman from Lynch- burg (Mr. Glass) made one of the ablest speeches that has been made in this body, and, as I understood him, he was for submitting it to a restricted electorate. At that time I never heard, and I do not believe anyone ever heard any discussion about pro- claiming this Constitution. I will do the gentleman from Hanover (Mr. Carter) the justice to say that he did argue the legal right to proclaim, but no one spoke in favor of doing so. I remember that the distinguished gentleman from Lancaster re- fused to answer a question asked him by the gentleman from Pulaski, and said that he would not tell, and that no man knew how he was going to vote. We have found out how he wanted to vote, since we have framed this Constitution. Does the character of the instrument which we have framed cut any figure upon the question of the moral obligation of this Convention? For my part I would be ashamed of Virginia if I thought it did. I hope to God that one hundred men will never get together in Virginia who think that they can be released from a moral obli- gation because they find that it may hurt them, or that they may not get through some set scheme which they think ver^' important, if they carry it out. We have had bitter discussions and rivalries in this Convention. When I say bitter discussions I do not mean that they have been unfriendly, but that they have been heated and earnest. We have differed widely. We have had to make all sorts of compromises. Some things have been gotten through VN^hich some of us deemed to be fraught with danger to the interests of this State. This Convention of Democratic members has differed in regard to some of the matters contained in the Constitution. On a large percentage of the questions we have been almost equally divided; and yet, on questions as to which we have gravelj^ differed, these gentlemen say we ought to be willing to thrust it upon the people of Virginia without giving them any opportunity to judge of the effect of it. I, for one, apart from all moral considerations, have not the courage to thrust upon the people this Constitution, even if I thought everything in it was for their good. I have heard it said that the people of Virginia are incapable of understanding the work we have done. I deny that proposition. The people of Virginia, as a whole, have got more sense than this Convention has. We are a great people. We have been talking constitutional law ever since that little battle at Lexington, where was fired the shot that vvas heard around the world. Our people know more about constitutional law than any other people upon the face of God's earth. The English people talk about constitutions, but they really have none. With them Parliament is supreme. Our people know that their rights are dependent on constitutional law. It is discussed in every forum. It is discussed on every hustings. This, I submit, is a matter of the greatest moment. It goes down to the very frame-work of our government, and apart from pledges and apart from everj^thing else, we ought to have the courage and the manhood to trust our own people. We ought to go on the stump, with the old Consti- tution in one hand, and the new in the other, and explain to our people what we have done for them. It is not hard to understand. There are many members in this Con- vention who have been telling us that they are not lawyers — some of them are preach- ers, some of them are farmers — but they seem to have understood every question that has come up here. Some of them, who are not lawyers, understood the legal ques- tions better than the lawyers did. I submit that the people of Virginia can under- stand this Constitution; and if the members of this Convention will have the courage and the manhood, and will continue to serve their State a while longer, we can discuss this matter before the people and guide them in the way they should go. I differ, as 202 — Const. Deb. 3210 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. widely as the poles, from the most of the positions taken by the gentleman from Henry. I am not a Republican, as he is. I do not rejoice in the prossession of the Fifth- teenth Amendment, and I would not vote for it if it was in the issue to-day. But there is a good deal of truth, in my opinion, in v/hat he says. I say that the trouble with our politics in this State is, that instead of our politicians being leaders, and going out, and courageously telling the people the truth, they wait to find out what the people say they want, and then they follow the people. If there is trouble amongst our people, the trouble is at the top and not at the bottom. Down in their hearts the people of Virginia are sound as a dollar, and I believe that if any man has the ability, the courage and the nerve to tell the people the truth, they will recognize it and fol- low him. And, gentlemen, for that reason, if for no other, I would vote to submit this Constitution to the people. What are we doing? We are not passing an act of the Legislature. What is a Constitution? The Constitution is the law which the people themselves make, in order to put a limitation upon their own power. It is, in a large measure, a limitation on the power of the Legislature. The Legislature represents the people, and without a Constitution it would, like the Parliament of England, have supreme power, so far as the making of laws are concerned. Our people have found that written Constitutions, which should be Constitutions of the entire people so far as they can be, are better than leaving these matters to be determined by custom, as they do in England. It was our forefathers who, practically, discovered the good of written Constitutions. There had been some in existence in the past, but none had succeeded. In this country we have adopted written Constitutions, and the whole theory upon which they are based is that the people themselves make them. I say that Virginia is a Democratic State. Upon her soil was bom the great leader and fou.nder of the Democratic party. Virginia has always been Democratic. The leaders in Virginia have always trusted the people, and the result has shown that they were right. Is the Democratic party, whose very name implies that it is the party of the people, going to proclaim to the world, in this twentieth century, that the government founded by our fathers, and the principles on which our government was founded by those fathers, have both been wrong? Is the Democratic party going to proclaim to the world that it is a party of reaction, and that it will trust not the people on the question of whether they shall limit their own powers or not? There was no general discussion of this subject before we were elected. We were not elected here like the Convention of 1829-'30, when a great issue had been made, and speeches had been made on the hustings in regard to it. This thing happened almost in the dark. We had an overwhelming majority in the Democratic party in this State; but the people did not take much interest in the election. The question of proclaiming this Constitution v/as never considered then except by a few men who may have told the people they were in favor of it. Are we going to assume that we ought to do a thing which we never have been willing to do but once in the whole history of Virginia? If the Democratic Convention had never met, and if I had never made any personal pledge, I, for one, v/ould say that our duty, our fealty to the princi- ples of the party to which we belong, and to the highest future interests of this State require that this Constitution should be submitted to the people, because I sincerely believe, in my heart, that if we proclaim this Constitution the people of Virginia are going to find out sooner or later, that there are many things in it they did not know anything about and there will be dissatisfaction and discontent. When a man is talking about proclamation he is apt to talk about those things which he knows are popular with the people, and not about those which are not. I do not believe that any man has thoroughly explained the workings of this Constitution. There is going to be tremendous dissatisfaction, there is going to be an organized attack upon the Democratic party. We will be on the defensive in every campaign for the next ten or fifteen years, and I think we will have a pretty tough time answering some of the orators those people have. I know I would not like to try to answer them, and I DEBATES OF THE COKSTITUTIOjSTAL CONVENTION OF VIRGINIA. 3211 would not try to do it. I v/ould just say, "You will have to go after those other fellows who voted that way; I can't answer j-ou." I would not take the stump against one of those men. I would hate to have one of them get after me when I was running for some ofnce. I tell you, gentlemen, if yon want to keep Democratic supremacy in this State you had better pause. That is a political argument, but it is a legitimate one. The gentleman from Fairfax has depleted more eloquently than I can do what the Democratic party has done for Virginia since the war. There may be some men in this Convention who are getting tired of that party, and who would like to split things wide open, and go over to the other side; but I do not think there are many who want to do that. I say that those who think Democratic supremacy in this State is a good thing^ had better pause before w^e put a weapon into the hands of our worst enemies — the people who have tried to annihilate the civilization of this State, to disfranchise the white people, and put our slaves in possession of the right to vote. And I say that if you put the Vv'-eapon into the hands of those same people they will use the weapon. Gentlemen, the argument presented by some of the delegates who represent the minority party in this chamber are worth listening to. It will not do to disregard them because we differ with them on political questions. Some of those speeches will be pretty good campaign literature hereafter. I think Vv^e had better pause, on that ground, if no higher one can appeal to us. Now, gentlemen, I may have been beating the air and making myself hoarse and tired for nothing, but I wish this Convention, I wash my people, my children, hereafter to know how I stand on this subject. I felt it my duty to myself to say something about it^ although I really felt scarcely in condition to speak at all. Thanking you for your attention, I will resume m.y seat. (Grea,t applause.) On motion of Mr. James W. Gordon the Convention adjourned until to-morrow, Thursday, May 29, 1902, at 10 o'clock A,. M. THURSDAY, May 29, 1902. The Convention met at 10 o'clock A. M. Prayer by Rev. W. F. Dunaway, D. D. Mr. Thom: T\Ir. President, I send a resolution to the Clerk's desk and ask that it be considered in connection with the question fixed for determination to-day. The President: The secretary will read the resolution. Resolved, That when the Constitution shall have been completely revised and amended by this Convention, it shall, in its revised and amended form, be certified, under the hand of the President of this Convention, attested by the Secretary, to the General Assembly, in order that the General Assembly may enact such measures as it may deem proper for submitting the said revised and amended Constitution to the peo- ple of this Commonwealth for ratification or rejection. The President: The unfinished business before the Convention is the further con- sideration of the resolution offered by the gentleman from Campbell (Mr. Daniel) as to the disposition of the Constitution when completed. The gentleman from Pulaski (Mr. Wysor) has the floor. Mr. Wysor: Mr. President and gentlemen of the Convention, I desire to say a few words on the subject under discussion before this body. I fear that a sore throat will prevent me from doing justice to myself, to my audience and to the cause. There has been an intimation that the discussion of the question under consideration was perhaps prolonged cn account of my absence from the Convention. I did not ask that this should be done, but if my absence had any weight with the Convention in prolong'ng the discussion, I desire here and now^ to express my deep appreciation of 3212 DEBATES OF TPIE CONSTITUTIONAL CONVENTION OF VIEGINIA. the courtesy extended to me. I do not wish to detain the Convention very long. This is not a time for speech-making. The time for final action has arrived. The subject has been worn thread-bare. It begins to sound like a thrice-told tale in the dull ear of a drowsy man. I do not like to speak to people who are impatient, and who are unwilling to listen. I do not like to impose upon persons by speech or otherwise. I do not know that speaking can do much good. I would just as soon sing Psalms to a dead horse as to try to convince a man who has pronounced himself in favor of proclamation of the error of his way. The singing of the Psalms would be all right, but the dead horse is all wrong. The argument in favor of submission is all right, but the gentlemen who are for proclamation are all wrong. There are none so blind as those who will not see, and none so deaf as those who will not hear. But we are told that there are some doubting Thomases here. Peradventure we might have some effect upon them by argument. I had hoped that the gentleman from Richmond and Lancaster was a doubting Thomas, and that I could catch him by the hands and put his whole fist in the great rents in the side of the rights of the people inflicted by the members of the Convention who are for proclamation. Now, I have a great deal of respect for the gentlemen who favor proclamation. I believe they are sincere, that they have good motives. I want to say that by their arguments they have created a great big rational doubt in my mind. I will tell you what that rational doubt is in a few moments, and if you think that I have not it, I am perfectly willing that the X-ray may be put upon my brain, and if it can discover a rational doubt, that it be discovered and exhibited to you. I once heard a story of two judges, a lower and upper judge. The lower judge decided that you couldn't commit a trespass upon a dog; that a dog was property. The upper judge reversed him, holding that as the law then stood, a dog was not property. When the lower judge came to comment upon that decision he spoke of the circuit judge in this way: "I have very great res- pect for him; he is a fine gentleman; he is an able lawyer; he is a profound jurist; but, law me, he hasn't got any dog sense." Now, I do not mean to say that you have dog sense, or that I have any rational doubt as to whether you have dog sense. I mean to say that I have the utmost respect for you and for your opinions; that you are able; that you are patriotic men, that some of you are able lawyers and profound judges ; but I v^ish to say that I have a rational doubt, and cannot help it, and am frank to acknowledge it as to whether you have any constitutional sense. The question before this body is whether we shall ordain or propose the Consti- tution. I offered a resolution last summer to put in the preamble the word "propose" in lieu of the word "ordain," as reported by the committee. That brought up the whole question as to whether we should ordain or propose the Constitution, and there was no necessity for any other resolution. I noticed in the paper that the gentleman from Culpeper (Mr. Barbour) said that we should have a resolution, and that then the preamble could conform to the schedule. That would be a proper way to dispose of it, but if we had disposed of the resolution which I offered v/e could have had the sched- ule to conform to the preamble, because there v/ould have been a vote then as to whether we should ordain or propose the Constitution. That is the very quesMoa we are discussing now: ."Shall we ordain or shall we propose?" If that question had been decided last summer when it ought to have been decided, v/e would not be here discussing it now, because this Convention would have decided in favor of submitting the Constitution to the people. I said last summer that these gentlemen who are going contrary to w^hat we think are the fundamental rights of the people would grow in strength. We have lost man after man; we have lost the gentleman from Scott; we have lost the gentleman from Lee; we have lost the gentleman from Prince William, and numbers of others, every one of whom was for submission of the Constitution to DEBATES OF THE COI^STITUTIONAL CONVENTION OF VIRGINIA. 3213 the people for ratification or rejection last summer. Why, the gentleman from Scott used to become bellicose on the subject, not on the floor of the Convention, but off of it. He would declare that we would submit it or have war. Now, he is back here, any says his people have instructed him for proclamation. What is the argument of the gentleman who want to proclaim the Constitution? I want to go over their argu- ments a little while. Here is their first, and perhaps their best argument: "We want to proclaim the Constitution, and we will be darned if we don't do it." Their next argument is: "If we don't proclaim the Constitution, and submit it to the people, we are afraid that it will be beaten." In other words, we frame a Constitution and we are afraid to submit it to anybody but ourselves. They stand here m a Republican form of government, in which the people are the rulers, and from which they derive all their powers and say, "If we submit this Constitution to the people who sent us jfiere, of v/hom we are the agents, it will be beaten." And then they occupy the posi- tion of standing here as usurpers and crowding down the throats of a brave and free people an instrument which, if they were allowed a voice upon, ihey would reject. That is their argument. I do not say that the people would reject the Constitution. They would carry it by an overwhelming majority, but that is the argument made by the men who are in favor of proclamation — that they are afraid the people would beat it. Their next argument — and I want to show you their consistency — their next argu- ment is that nine people out of ten are for it. W^hy, the papers, which are advocating proclamation, say that. Talk to one of these proclamationists, and he will tell you that everybody he meets is for it, that three-fourths of the people at his home are for it. They say they can vvalk down the streets of Richmond and shake man after man by the hand by the thousands v/ho are in favor of proclamation. All the people are for it. Nine out of ten are for it. And yet they are unwilling to submit it to the people when they say the people are for it. The next argument is: "We knew v/e did not have any power to proclaim it, but we went home during the recess and got the power." And some of these proclama- tionists are parading around as if they were the only men who had any backbone. They say: "You submissionists want it proclaimed yourselves, but you are afraid to say so. You want it proclaimed, but you want somebody else to do the job." Why, they claim to have all the backbone in the country. Sometimes a man has too much backbone. I would suggest to them that they take some of the starch out of their spinal columns. But let us see about this question of backbone. Why didn't they have the backbone before the recess to say that they wanted to proclaim the Constitu- tion? Who ever heard one of them say it? During the discussion last summer what one of them dared to say it? There is one man, I believe, I did hear say he was for proclamation when the Convention first convened. It was Judge Green, of Danville, who has always been a proclamationist, and his argument for it was that he had been a good man in his youth and a conservative, peaceable, upright man ail his life, and he Yv^as grov^ing old, and wanted to do something wild and foolish and reckless before he died. (Laughter and applause.) I will show you directly about their backbone, and that they v\^ould really make good contortionists. There T\^ere a great many of them for the abridged electorate last summer, and some for the unabridged electorate. Now they are for proclamation. They say they have gone home and got the power. They have got the power from mass-meetings. What an uncertain source of power is a mass-meeting. Why, they had the biggest mass-meeting in Richmond here last night that they ever had in this city. They had the father of the Convention there, and he made a speech. The meet- ing was duly advertised by The Richmond Times. They had thirty-six men there, and sixteen of them were for submission and twenty for proclamation. (Laughter.) The argument of some of the proclamationists is that the politicians are for submission and the statesmen are for proclamation. Well, I stand here to say that the politicians 3214 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. have some rights which ought to be respected. Let us see how fickle is this source of power that the proclamationists make profert of here. Many of you were for an abridged electorate last summer. None of you said you were in favor of proclamation. What has become of the abridged electorate? Where is the abridged electorate? Who has got that thing? Where is it? Mr. Glass made a speech here last summer, and he said that the Norfolk Convention declared in favor of the abridged electorate. Every- body admitted that the Norfolk Convention — there is a big mass-meeting for you — made a pledge. I am not talking now particularly about the party pledge; I am talking about what a fickle source of poY^-'er you have. The Norfolk Convention declared in favor of submission, did it not? I contend that it declared in favor of submission to the present electorate. The gentleman from Campbell says so, and he v/as down there. There is a policeman about this building by the name of Jenkins, and Jenkins was there, as a member of the Convention, and he says he knows positively that they did declare for submitting it to the whole of the present electorate, and I believe Jenkins knows what he is talking about. (Laughter.) But to come back to your source of power. You say you had mass-meetings of the people. You had a big mass-meeting at Norfolk in 1900 in the shape of a Democratic Convention, and it declared for submission. The same party had another convention in 1901, after Mr. Glass had made a speech here in favor of submission to the abridged electorate. I admired the speech, and I admired Mr. Glass for his ability, and espe- cially for his purity of purpose. He made a fine speech, and that speech was scattered all over the State, and the papers, tl\e Dispatch, and other papers, declared for an abridged electorate. Mr. Glass went to the Norfolk Convention of 1901 to get some inspiration, and called the attention of the Convention to his construction of the pledge m you what great jurists thought it meant. The great Democratic party came forvrard, and took charge of the matter and said: "We are going to submit it to the people." The Legis- lature of 1900 passed an act saying it should be submitted. Now, the people were parting with their power. Under what conditions were they parting with it? You may quibble about this language as much as you please. What did they think about it when they were voting? They had been unmistakably told that it would be submitted. Then when they came to part with their power, they were parting with it, and giving it to you under fhe express declaration that it was a limited power. How are you going to get cut of that now? See if you can g^t out of it fairly and squarely. You come and say, "I don't care what the people thought. The language means so and so. I don't care what the people thought. I don't care what they w^ere trying to do. We don't intend to obey." There are not more than one or tvro men in the Convention, certainly not more than three or four, who said anything about proclaiming the Constitution until re- cently. No one but Judge Green said anything about it at the first assembling of the Convention. I believe J. Thompson "Album" Brown (laughter) did say he was for submission to an abridged electorate. But I am talking about the promises generally held out by the party, and otherwise. The party said submit. The delegates elected by the Legislature said submit. Three-fourths or more of the delegates who ever said anything about the question at all, said they were going to submit, and the great masses of the voters of this State were led into the belief that they intended to submit the Constitution, before they cast their votes for a Convention. We w^ould not now b<; sitting in the hall as a Convention if 3'ou had said you were for proclamation, if you had put such a construction upon those words before you were elected as you put upon them now. The people would not have elected you. They w^ouid not have given you any povrer at all. You would not have had any Convention. But you went before the people under all these promises, under all these pledges, under this law making it your duty to submit, to obtain their votes. You knew at the time that they expected you to submit it. Then you come into a Convention, and you picked up words in the Constitution, and begin to quibble and to construe away the dearest rights of the people. That is what you are trying to do. You ought not to do it. If you do, it may turn out for the best. I do not know. But when you do it, you usurp a power which was never given you, and which you are bound to know you do not have. You have not got it. You have not a particle of power to proclaim. Mr. Meredith is to speak on this subject presently. I call upon him to answer the point I have just made. I tell him that the people of this Commonv\'ealth were led to believe before they cast their votes that this Convention would submit its work to them. Having been led to believe that, and we having received our commissions under 3220 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIKGINIA. that state of affairs, we are bound as patriots, we are bound as honorable men, to comply with our contract. How are you going to get around it? Here is the way. You say you had a recess, and you went home during the recess, and had a littleJ mass-meeting, and the mass-meeting told you to proclaim the Constitution; therefore I am going to vote contrary to the will of the people as expressed at the polls; I am going to violate my commission; I am going to exercise a pov^^er never given to me. The people have already given you power to come here and frame the Constitution, and they have required you to submit it. They did that in a legal way, in the only Vv'ay in which they could do it. During the recess you go home, and you fish around through the air, and you say, "What is the public sentiment; what is it?" Well, it is for proclaiming. And you get up a little mass-meeting. You go to two or three men of influence, and you ask them about it, and they say, "It is all right; just go on, and knock the thing winding." (Laughter.) "It doesn't matter whether you have got the power or not. Put on your boots and spread yourself in Richmond. Take the power. Take it. Assume it. Assert it. Pro- claim the new Constitution." Are you going to establish a precedent to the effect that after the people have cast their votes and have given you certain powers, that you will go back home and have a little bit of a mass-meeting, and do away with those pov/ers? I have not been arguing very much on the matter of the pledge of the party. I am arguing to show you what power you have. I was not in the Norfolk Convention, but as long as I remain a votary of the Democratic party I will try to keep its solemn pledges. Certainly every man who did attend that Convention is required to do so. But I am not arguing particularly that you should submit the Constitution because the Democratic party promised to submit it. I say you ought to submit it. The gen- tleman from Prince Edward says the Democratic party had no jurisdiction. In other words, the gentleman from Prince Edward charges the Democratic party with exer- cising a jurisdiction that it did not have. Well, it exercised it whether it had it or not. It made the promise, whether it had it or not. I frankly admit that I do not very much expect political parties to be overly exact keeping their promises. But I am arguing about what the people thought v/hen they elected you. What power did they give you? They thought they were giving you a limited power; they thought you v/ould submit the Constitution to them. When men came to cast their votes for me they might have argued this way: Everybody says the Constitution is to be submitted to us. Wysor himself says so. This is what Vv^e understood when we voted for the Convention. So they cast their votes for me. Do you reckon I am going back on that sort of a promise? I acted under it. They acted under it. That is the kind of power they gave me, and that is all the power they have given me; and I am not going to take any more. Now, gentlemen, let us pursue the argument a little further. That is all the power the people intended to give- you, and as a m^atter of fact, that is all that was given to you. Let us take up the act of the Legislature for a little while. The language in the Constitution being that you shall propose, is perfectly valid. The people can put in their Constitution such a provision as that, because it leaves the people full power to act in the matter. That being a valid provision in the Constitution, if the Legisla- ture acted in pursuance of it, then the act of the Legislature is valid. What did the Legislature in 1900 do? It passed an act submitting the question, following the lan- guage of the Constitution. Vv^hat did the Legislature of 1901 do? It provided for the election of delegates, and said they should submit the Constitution to the people. The Legislature of 1901 was within the constitutional limits. It was doing what the Constitution authorized it to do, and doing it in pursuance of the Constitution. I want to call your attention to this point. The Constitution says that the Legis- lature shall provide for the election of delegates. You say the Legislature could not limit your powers. Who decided how many of you there should be here? DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OE VIRGIXIA. 3221 The Legislature could have a Constitutional Convention of twenty members. They could have have had a Constitutional Convention of fifty. They could have ar- ranged it so that my district would have been so large that some more prominent man would have been elected, and I Y»^ould not be here at all. The Constitution gives them the power to fix the number of delegates. They are acting within the Constitution, and in pursuance of the Constitution when they tell you that you shall submit it to the people for ratification or rejection. That is the law. I am shov/ing you v/hat you promised the people, and shovs^ing you what the law requires you to do. Yet you come here and you want to violate all constitutional precedent, and when a Demo- cratic Legislature of good men, representing all the people of this State, tell you that you must submit the Constitution to the people, you are going to tell them they have nothing to do with it, and that the people behind them have nothing to do with it. That is the position you have taken. So, then, you are bound to submit it if you follow the law. When I speak of power I speak of rightful power. You may exercise the power to proclaim it, and perhaps you will do it, but that does not give you the power. When I say you have no power to proclaim it, I mean that you have no rightful power. You may go ahead and do it, anyhow. You may do it honestly; but if you have not got the power you are usurping the power. To whom are you going to submit it? The law re- quires you to submit it to the electorate. You will have to submit to the only elect- orate that you have got, and that is the present one. Mr. Meredith: Before you begin to discuss the question as to what electorate it is to be submitted to, will you state whether you agree with the motion made by the gen- tleman from Norfolk this morning, that it shall not be submitted to the electorate by the Legislature? What is your position on that? Mr. Wysor: I have not examined that resolution carefully, and I would not like to answer that question without a full examination. Mr. Meredith: Do you propose to argue for submission without knowing whether you have got the power to submit? Mr. Wysor: I know we have got it under the Constitution, and under the vote, and under the legislative act. Mr. Meredith: Did not the legislative act say that if you did not submit the Con- stitution by a certain day in October, you should not submit it, but should send it to the Legislature. That is in the act of the General Assembly. Mr. Wysor: It may be that is v/hat we ought to do with it. Mr. Thom: I will say that my friend unintentionally misstates, or does not fully state, the resolution. The resolution was not to provide for sending it back to the Legislature, but v^-as to send it back to the Legislature in order that they might pass such laws as were necessary and proper for its submission to the people. Mr. Meredith: That is the same thing. You have got to send it back to the Leg- islature. Mr. Wysor: I do not think that it would be improper. Mr. Meredith: That is what I am asking you. I want to know if you believe that would be necessary, and if you advocate it? Mr. Wysor: I do not knovv^ that it would be necessary. I think that the Conven- tion could submit it and ignore that provision of the act, because when they do submit it, they would do exactly the same thing the Legislature would do when it reached it, and there could be no complaint about it. The Legislature has already said that the Constitution must be submitted to the people. It also said that if you did not get through by a certain time and submit it, you should refer it to another Legisla- ture to deal w^ith the question of its submission. I believe that is the language of the act. But whenever you submit to the people, whenever you go back to the source of power, whenever you send the Constitution where it ought to go, and where it must go, it dees not matter whether it goes through you or through the Legislature. 3222 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Ycu have done what you ought to do, and you have done what the law requires you to do. The language of the act to which the gentleman from Richmond refers reads: But if said Convention shall not propose a revised and amended Constitution on or before the 5th day of October, 1901, it shall remain for the next General Assembly to enact such measures as it may deem proper for submitting the said revised and amended Constitution to the people of this Commonwealth for ratification or rejection. That provision was no doubt passed as a matter of convenience. A Legislature would meet soon after October, and they thought it might be necessary to have an act passed to submit it. The same act provided for all the machinery for submission up to a certain time, and it provided if you did not submit it during that time that you should refer it to the Legislature to do what? Why, to submit it. It says: But if such Convention shall not propose the revised and amended Constitution on or before the 5th day of October, 1901, it shall remain for the next General Assembly to enact such measures as it may deem proper for submitting the said revised and amended Constitution to the people of this Commonwealth. Mr. Flood: May I call attention to the fact that, if the Constitution is completed by the 5th day of October, the act provides all the machinery for the submission of it to the people, but being doubtful as to whether or not it could be completed by that date this provision was put in, directing the next General Assembly to provide the machinery for submitting the Consf.tution to the people? It was done only in order to save space and to provide the machinery for submitting the Constitution to the people, if the Constitution was not completed by the 5th of October. Mr. Wysor: I thought it was passed under some such circumstances and with some such view. Now, I will answer the gentleman as to what I think about this matter. I am rather inclined to think we should follow the act of the Legislature and carry it out T do not say it is illegal not to do it. I do not say it is illegal for you to submit the Constitution to the people, because you are accomplishing exactly what the Legis- lature will accomplish if it was referred to them. There may be reasons why we our- selves should provide for its submission, and I believe the Legislature would approve of your doing so; but neither the Legislature nor the people will ever approve of your violating the Constitution, violating the legislative act, and violating your prom- ise, and assuming power that has not been given to you by proclaiming the Constitu- tion. I will come now to the question as to the electorate to which it should be sub- mitted. Do you want to violate all legal, moral and constitutional principles .because there are 146,000 negro voters^ in the State? Is there a man in this Commonwealth who will say that if ours were entirely white he would be willing to proclaim this Constitution? If so, I want him_ to arise right now and say so, and I will pause a few seconds to give him an opportunity to do it. Suppose it was an entire w^hite electorate, without any negroes, would you proclaim it? None of you answer that, and you had better not. If you answer that question in the affirmative it Vv^ould stick to you and burn you like the shirt of Nessus. You v/ould not dare to say proclaim unless you had negroes in your electorate. The Fifteenth Amendment may be bad; but it is a part of the Constitution of the United States, and the negroes are a part of the elect- orate. In order to submit the Constitution you have got to submit to the whole elect- orate. If you can take out 146,000 negroes, you can take away some of the white fel- lows, some coopers who make barrels, and you can say, "We don't want them; they make barrels, and whiskey is put into the barrels, and one thing and another, and w-e won't let them vote." You can exclude all of them. You can cut out the doctors, and you can say you would exclude the lawyers, and you would exclude everybody but a few and submit the Constitution to them. DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 3223 But you must submit it to the people, and by the people is meant the entire pres- ent electorate. It cannot mean anything else. You cannot submit it to anything else. It has been argued here that you can submit it to a restricted electorate, and that Virginia has heretofore submitted her Constitutions to a restricted electorate. I deny it. I not only deny it, but I know that there is not a word of truth in it. Virginia has never submitted any Constitution to a restricted electorate. The Constitution of 1829-'30 was submitted to an enlarged electorate. The Constitution of 1850 was sub- mitted to an enlarged electorate. The Underwood Constitution of 1869 was submitted to an enlarged electorate. Take the Constitution of 1850, and what does it say about that? Then the enlarged electorate took in every man that was twenty-one years of age, while, previous to that time, the freeholders only had the right to vote. When the electorate was enlarged gentlemen say it was a restricted electorate, because it restricted the rights of the freeholders. I sometimes get mad when I talk to a man privately, and he argues to me that an enlarged electorate is a restricted electorate, when he says to go backward is the same thing as to go forward. The freeholders in the Convention of 1850 were undertaking to give their brethren the right of suf- frage which had been improperly denied to them. The freehold right of suffrage had been crammed down the throats of the people at the point of the bayonet. Honorable men had been excluded from taking part in their country's government because they did not own a little piece of land. They could fight their country's battles. They could charge the breastworks and die on the battlefield, but they could not vote. The Constitutional Convention of 1850 was enlarging, it was progressing, it was advancing, it was reaching out and taking within the fold of the sovereign people a greater num- ber. Ah, but they say you restricted the right of the freeholder. Well, the vote may have cut down his power to a certain extent, but it was not taken from him alto- gether. He was still left to exercise the right and privilege of suffrage, in common with his brethren. But let us come down to that argument a little closer. Mr. Randolph, when he said, in the Convention of 1829-'30, you must refer the Constitution to the freehold- ers — to the electorate that sent you to the Convention — was exactly right, and he was not held to be wrong by the Convention in that particular, as I will show you in a few moments. The freeholders were the electorate; there is where he got his power. He could refer it back to nobody else, without he had authority to do it from the freeholders. I want to pause here for a moment and let you take that argument in. The present electorate is my electorate, and it is your electorate. It is composed of both whites and negroes. From that electorate we are supposed to derive our power, and ihat is the only electorate to which we can submit this Constitution. Mr. Ran- dolph was right. He got up in the Convention of 1829-'30 and said: "Submit this Constitution back to the freeholders, because they elected you, and from them you derive your power. There is your source of power." How was the argument an- swered by Chief Justice Marshall and others? It was not answered on the ground that it was not sound argument, but was answered in this v/ay: Here is an act passed by the representatives of the freeholders, which says: "Submit this Constitution to the enlarged electorate." That is the way that question was decided. They had an act passed by the freeholders themselves, saying that the Constitution was not to be submitted to them, but was to be submitted to the enlarged electorate, and that is how it was done. The same thing was done in 1850. And yet now, in the face of these facts, gentlemen will stand up in this Convention and argue that Constitutions of Vir- ginia have been submitted to abridged electorates. It is not so. They have been sub- mitted to enlarged electorates. Take Mr. Randolph's position, which some of you have invoked here. What is it? We have Mr. Randolph's position stated by him, that we must refer it back to the electorate, and that is the present electorate. You do not know the new electorate. It does not know you. It had nothing to do with you. You never got any power from it. You should submit it back to the electorate that gave you the power. The Constitution says so, the act of the Legislature under which 3224 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. you were elected says so. And yet you come here, and without any real excuse, in my judgment, you want to violate the law, you want to violate constitutional principles, you want to violate promises and pledges made to the people, and proclaim this Con- stitution. What do you think about dealing in that way with a sovereign people? You f-ay one hundred men know more about it than the people. As a scientific question I expect that is so. But as a political question it is not so. The people rule, and the people have the right to pass upon their fundamental law. We have as intelligent an electorate in Virginia, if you will exclude the colored race, as you ever had, and perhaps a more intelligent electorate than you ever had. Are you going to stand here and say they have not got sense enough to ratify a good Constitution? All of the people may not even read the Constitution, and many of them will not; but they will vote, as a rule, very intelligently on the subject. There are many un- educated men who would do it. I have seen ignorant men working in a corn-field that have more sense about constitutional government than men who were in banking I'ooms, and more than some educated men. As a rule, that class of men are more jealous of their rights than the more intelligent. They are afraid you are going to do what Mr. Moncure says, "clap a trap over them"; and before you put the trap over them they want a little time to look at the trap. They will find out whether the Constitution is a good one or not. You need not be afraid of them. I certainly am not afraid of them. But look at the inconsistency of these proclaimers. If it was a bad Constitution in your judgment, and would bring ruin upon the State, would you proclaim it? No; you know you wouldn't do it. You would submit it to the very people that you are afraid to submit a good one to. Suppose then they should pass a bad one, what sort of a fix would you be in? If it were bad, you say you could submit it in order that the people may say whether it is bad or not. You give them credit for sense enough to reject a bad Constitution, but say that they haven't sense enough to adopt a good one. That is the position you occupy here in this discussion. I, my- self, think we can always trust the people. I say if you are going to trust them at all you should trust them on this fundamental law. They have got to live under the Constitution, and that is the one thing of al] things that they ought to be allowed to vote upon. This may be a good Constitution. I believe it is an excellent Constitution. I do not believe that anybody would be hurt if it is proclaimed, just because you proclaim it. But you set a bad precedent. You take away from the people the right to vote upon the fundamental law. Take the case of the gentleman from Richmond and Lan- caster (Mr. Dunaway). He got up here the other day and described the provisions of the Constitution as great big, luscious, juicy strawberries, with nice sugar on them, and pure, sweet cream on them, and said they are the things we give to the people out of silver spoons. Nov/, I like strawberries, and I like cream;' I like sugar, and I like to eat out of a silver spoon if I can; but I don't want any man to cram straw- berries down my throat. (Laughter.) Now, gentlemen, I v/ill conclude in a few moments. I see that my throat is in such condition that it will not allow me to occupy much more of your time. I want to say to this Convention that wfe should be careful how we violate the fundamental principles of law, and promises and pledges. It will be brought up against you for generations. This is one of the finest Constitutional Conventions, take it on the aver- age, that ever organized on earth. (Laughter.) I mean that in good faith. The Con- vention of 1829 had bigger men in it. It had men of bigger brains. It had bigger orators, and greater constitutional lawyers. History shows it and will continue to show it; but there were only a few of them, and they dominated the balance of the Convention. I am speaking of this Convention as an average. I do not believe that the Convention of 1829 and 1850 were equal to it. You have made a good Constitu- tion. It is being met with approval everywhere. You are being complimented. But DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF YIKGIXIA. 3225 now, right at the end of the matter, you are going to put a blot on your escutcheon. We cannot afford to violate our pledges and the law because a few people say so; or a great number, for that matter. Take the little meetings they have had in Rich- mond for the purpose of giving to this Convention the power to proclaim. The first meeting in Richmond was held in the Clay Ward. This meeting was a frost. The newspapers say that 3.1r. Meredith was asked by a member of the Revi- sion Committee what George D. Vrise would do if all the wards of the city should endorse proclamation, and he replied that if the other v/ards were no better at- tended than the meeting in Clay Ward, that Mr. Wise could do as he pleased. The next meeting was held in Jefferson Ward, and the vote stood 7 to 7, and the chair- man cast the deciding vote in favor of proclamation. Then came Fulton Ward with thirty votes for submission. A representative of The Times said that Madison Ward would make a respectable shovung. It seems that he took this ward particularly in charge. The Hon. Eugene Withers addressed the meeting, and he was introduced as the father of the Convention movement. The result was a vote of 20 for proclamation and 16 for submission. Less than 200 people voted, pro and con, in the meetings in the city cf Richmond, with a population of 85,000 people. And yet Richmond is claimed to be overvrhelmingly for proclamation. That is the way they get their au- thority to trample on constitutional principles, to ignore the solemn acts of the Legis- lature, and to violate party promises and pledges. I used to think the gentleman from Danville (Mr. Withers) was a great people's m.an. He would get up and vrant this officer to be elected by the people, and that officer to be elected by the people. You could hear him crying aloud, "The people, the people, the people," and I thought he was the biggest people's man in the whole country. I said "Hurrah for father! " (Laughter.) Kow, what do we find father doing? We find him in this matter in v^hich the people are deeply interested, which concerns their right to pass upon the fundamental law, a right they have always exercised, we find father out here speaking to twenty men, telling them that they must vote for pro- clamation. VrtLj, old man, you are a little off your base. (Laughter.) Now, gentlemen, in conclusion, I want to say that I believe this is a good Con- stitution, and everybody knows it. I think if you submit it to the people their voice in its approval will be like the sound of many waters. Virginia has waited for nearly a third of a century for this blessed time of deliverance from the bondage resulting from internecine strife. "SATien brother fights brother, ,oh, how long it takes the wounds to heal! Oh, dear brother of the North, stretch forth thy hand half-way across the bloody chasm, and grasp the warm hand of the Sunny South extended unto thee, and let her warm blood pulse through all the regions of thy heart, and youv blood through her's, and cement a union that will be indissolvable forever, and let the benediction come down from heaven: Whom God hath joined together, let no man put asunder! (Applause.) This great country is our common country. Our ancestors braved the seas to find it. Their blood defended it. They have established a temple of liberty', the like of which the world has never seen. In this great work Virginia became the mother of States and of statesmen. Arise, dear Virginia, and weep no more for thy fallen braves. Thy loyal sons and daughters will defend your cause. Look abroad into the great world to the character. Those two great mountain peaks, towering far above the plain, with cr^'stal streams laving their bases and the sunlight on their summits like benedictions from heaven, are thy Jackson and thy Lee. Those white-tented fields, stretching far and wide, are the legions of Lee and Jackson, who have pitched their tents on Fame's eternal camping ground. Arise, Virginia, and take thy former place as the brightest jewel in the great constellation of States. This great Union is like thy mighty son, first in war, first in peace, and first in the hearts of its citizens. May it endure until the milky way shall fade and the heavens be wrapped as a scroll. We often look at Virginia as our mother. This is a beautiful and tender figure of speech, but there is one that is to me more beautiful. Virginia is still our Virgin 203 — Const. Deb. 3226 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Queen. No prince or potentate can win her hand. I would like to pay her the com- pliment that the great poet of England paid to Queen Elizabeth, when, with his eye in a fine frenzy rolling, he saw — Plying between the cold moon and the earth, Cupid, all arm'd: a certain aim he took At a fair vestal throned by the west, And loosed his love shaft smartly from his bow. As it should piece a hundred thousand hearts; But I might see young Cupid's fiery shaft Quench'd in the chaste beams of the watery moon, And the imperial votaress passed on, In maiden meditation, fancy free. I thank you, gentlemen, for your attention. (Applause.) Mr. Lindsay: I move that the time for taking the vote be extended from half- past 1 o'clock until half-past 5 o'clock this afternoon. The ayes and noes were ordered, and being taken, the result vfas announced — ayes, 52; noes, 30. The motion was agreed to. . Mr. Meredith: Mr. President, I shall not undertake to follow the line of thought that has been indulged in by the gentleman from Pulaski. I could not do so if I de- sired. I have no ability to tell anecdotes, nor have I, on this occasion, any desire to do so. I feel, Mr. President, that this is certainly one of the most important, if not the most important question that has been before this body. I believe that because of its importance some members shrink from coming to a conclusion. I can readily appreciate, from my own experience, the hesitancy that men might have in making up their minds upon the momentous question, whether they shall vote to put upon the people the organic law of the country. On the other hand, Mr. President, I know of no circumstance more injurious to calm thought, and to a wise judgment than fear. And, surely, it is the duty of each one of us not to let a sense of fear affect us so greatly, as to make us shrink from a judgment or conclusion at which w^e would otherwise arrive. I appreciate, however positive my views may be upon this subject, as much as any man the importance of this question; but while the importance of the question justifies the most careful, the most prudent and the most patient considera- tion of it, its importance equally demands that an opinion and a judgment should be form^ed, if some conclusion is demanded by the circumstances that surround us. I believe that the circumstances existing in this State demand a decision as to the power of proclamation. It is my purpose this morning to attempt to justify my con- clusion. Mr. President, it is a little difficult to follow the arguments that have been offered by those who are the opponents of proclamation. We have heard it stated that the Legislature has this power, and that the Legislature has that power. But no one m.ember who opposes proclamation can tell us what is the extent and limit of this legislative power, which is claimed by them. On the other hand, we declare that a Constitutional Convention is an assemblage of the people in the persons of their repre- sentatives, and that we have every power, every sovereign power, that the people, In their might, have, and which they have not expressly retained or prohibited us from exercising. You will find it, sir, absolutely impossible to say what is the exact extent of the contention of those gentlemen who advocate submission, under the theory thai we are governed by legislative acts. The gentleman who opened this debate for sub- mission announced two propositions: First, that a Constitutional Convention is not the political embodiment of the people, that it is not the gathering of the representatives of the people clothed with their power. Second, that^the Legislature has the power to restrict, proscribe, or enlarge the powers of such a Convention. DEBATES OF TSE COIN STITUTIOXAL COXVEXTIOX OF VIEGIXIA. 3227 ]\Ir. President, even the friends of the gentlemen, who advocate submission, were shocked when he said that he believed that the Legislature could authorize a Consti- tutional Convention to enlarge the electorate. But, gentlemen, when we look at the authorities upon this question, many of which have been produced here, the gentle- men are forced to that position or to admit sovereign power in a convention. They cannot simply say that the Legislature can restrain, but they are driven to the posi- tion that the Legislature can give. Gentlemen, you must take the whole proposition. You must define the character of this body. You must let the people, who come after us, know, when they elect a Constitutional Convention, how far it can be re- strained b3' a Legislature, and how far it can be endowed with the power of the people. Mr. President, in the language of the gentleman from Roanoke, it has been a surprise to most of us to be told, that a Constitutional Convention is subordinate to legislative restriction. It, sir, was a shock not only to the gentleman from P^oan- oke, but I believe it was a shock to every intelligent man in this Commonwealth, who has read the history of his native State. Sir. we are told that the judiciary can con- strue this question; that they can say as to what is the limitation of power, and what is the extent of it. But, sir, this is rather a governmental Question, than a legal one. There is no written statement as to what power a Constitutional Convention has. There never has been a written statement as to what is the reserved power of the people. It is a gi-eat. silent, reserved power that they keep unwritten and undefined. You can only get an insight into it through the history of your country. You cannot take it and read it like you can a legal document, and construe its language. You cannot take the clauses of it, like you can a contract, and apply rules of construc- tion to its language. You have got to arrive at it by the history of your State, be- cause it exists only in that history. If that be so, then when I am told by the gentle- men tipon the other side, that the Supreme Court of Pennsylvania has announced that the people never meant so and so, I have a right to ask whence did that court get its information? It did not get it out of any written law. It has never yet been written, except by the hand of history. And so, to-day, how can you find out what was meant by the people, when it called tli:"s Con^-i-lTutional Convention? Will some judge, unsurp- ing power, undertake to say that the people meant this or that, unless he tries to find out what he believes to be the views of the people now existing, and those that ex- isted in the past? '^'hat vrere the views of our fellow-citizens when we were called together? Did not the gentleman from Roanoke express what has been almost the unanimous view of this State, when he said that there had been a belief upon the part of the people that a constitutional convention comes clothed with the povrer of the people, and cannol be restricted by legislative enactment? If you want history contemporaneous witl7 the time of the call of this Convention, look at what is said in the Democratic plat- form, which has been referred to, and in the act of the Legislature, which has been cited as the chart of our powers, and see if the idea did not exist in the minds of the people that a convention, unless expressly restricted, would have the power to proclaim a Constitution. Tell me why that great party saw fit to say that it should be submitted, if the power to proclaim did not exist? I ask, I demand, that you shall get at the opinion and belief of the people as to their reserved rights, by their action and by their history. I say that present history teaches us that the great white party of this State, embodying, as it does, the intelligence, the men of wealth, the men of integrity, and the men of power, saw that it was necessary to put in its platform, in order to give some assurance to the people, a declaration that the Constitution should be submitted. Why, Mr. President, was it necessary that the Legisture should de- clare, in an act of the General Assembly, that this Constitution should be submitted if it was not generally recognized you would have the power to proclaim? Are you to take the expression of the opinion of the great mass of the intelligent white people 3238 DEBATES OF THE CONSTITUTIONAL CONVENTION OP VIKGINIA. of this state, in Democratic convention assembled, and say that they did not "recog- nize that it was necessary to declare for submission, in order to restrict the natural power to proclaim? Can you take the solemn enactment of your Legislature, which declared that the Constitution should be submitted to the people, and then say that the people did not believe that we had the power to proclaim it? Why enact in a legislat- ive statute that we should not proclaim? I demand again, that you shall get the belief and opinions and views of the people as to their great reserved power, from their actions and from their history, and that no man, judge or layman, shall say that he thinks that the people did not so believe, without looking back at the past and construing it in the light of history, and in the light of contemporaneous evidence at the time of our election. Who can say that there was not an almost unanimous belief that, unless restricted, we would have the power to proclaim? The gentleman from Roanoke was right. It was a startling idea to us, that we came here "cribbed and cabined and confined" by legislative restrictions. Sir, we have been taught that a Constitutional Convention was one of an extra- ordinary nature, infrequent in its meetings, having paramount powers; having power to separate the different departments of the government, and to say to one, "This you shall do," and to another "that you shall do"; and having power to say to the Legis- lature itself "this you shall do, and this you shall not do." I say it was startling when they, in the next breath, told us that the Legislature, which is restricted and restrained by our power, has the power to restrain and restrict us. I cannot take any such con- struction. I insist that there shall be some plain path marked out. I must see ex- actly to what extent a legislature has the power to restrict a Constitutional Conven- tion, which, itself, has the power to say to the Legislature, "Thus far thou shalt go and no farther." Are we at one time the creator, and at another the creature? First, the Legislature is the creator and the Constitution the creature, and then the Con- stitution becomes the creator and the Legislature the creature. I cannot appreciate such an anomaly. My mind becomes entangled in the confusion that arises from such conflicting and c ntradictory powers. But, Mr. President, these gentlemen, I repeat, were forced to lake the position that a Legislature can both restrict and en- large our powers, because their only hope and their only anchor of safety was one single decision from the Supreme Court of the State of Pennsylvania. Upon that they banked their hopes, and upon that alone they claimed that the Constitutional Con- vention of Virginia can be restrained and restricted by legislative enactment. What, sir, is the substance of that decision? It is this: That after the people have spoken and said that they want a Constitutional Convention to revise and amend the Con- stitution- -that is, the entire Constitution — the Supreme Court of Pennsylvania says that the Legislature can step in and say, "No, you shall not touch that part of it, or this part of it; and you shall proceed in this way, and you shall submit your work in this manner." That, sir, is the substance of that opinion, briefly stated. Are we pre- pared to accept it? Are we prepared to accept the doctrine that, after the people have spoken and said that they want a Constitutional Convention, without indicating any desire for restriction upon that body, the Legislature can step in and say, "I will restrict you?" Sir, the history of that case is a curious one. The Pennsylvania Consti- tutional Convention, as I gather from the report made by the Judiciary Committee of the New York Convention, was in session at the time the decision was delivered. As the Judiciary Committee of the New York State Convention said, it was composed of some of the ablest lawyers in the State of Pennsylvania. They brought in a report holding that such a decision of the court was an infringement of the rights of the people, and an attempt to violate the powers of the Constitutional Convention of Penn- sylvania; and, to a certain extent, that Constitutional Convention had the courage of its convictions, ignored the decision of the Supreme Court of Pennsylvania in that case, and adopted the Constitution in violation of certain legislative restrictions. The result was the subsequent case of Wood's appeal, where the lower court sustained the Pennsylvania Convention, while the Supreme Court, after having had its opinion DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIEGIXIA. 3229 in Wells vs. Bain rejected by the Pennsylvania Convention, indulged in what is the longest obiter dictum that vras ever delivered from a bench, while recognizing that they could not pass upon the case, yet ventilates its views and enters into a long dissertation upon the power of the Legislature to restrict a Constitutional Conven- tion. That, Mr. President, is the substance of the case and its history. Is it suffi- cient? Is it strong enough to make us doubt our powers. Does it commend itself to us sufficiently to justify us in giving up the belief which we received from our fathers? Yet, that is what we are asked to do upon this single decision. I do not mean to allude to the text VN'riters. They get, or ought to get, their opinions from the courts. I am speaking now only of decisions. Upon that single decision, we are asked to give up the views we have held so dear to us and so sacred through all these years of our constitutional government. Sir, is the reasoning, which is given by the judge in the opinion in that case, sufficient to justify a change of belief? In substance, the reason given by the court was this: That although the Legislature had asked the people to say whether or not, they wished a convention called to amend and revise the Constitution, and although the people had voted that they desired one to be called, yet the Legislature was not obliged to call it — that it could ignore the declaration of the people — and that as it had that power it also had the power to limit the powers of the conven- tion, if called. In other words, it failed to recognize that the Legislature would be revolutionary, if it refused to obey the demand of the people, and it failed to recog- nize that it was putting the Legislature over and above the people. It looked upon the Legislature as a Lady Bountiful, giving of its own graciousness, and not out of the powers vdiich had been confided to it, as a matter of trust. It looked upon the Legislature as giving to the people not what belonged to the people, but what be- longed to the Legislature, and that, as it was giving out of its own "bounty, it could limit its graciouEness, and call a restricted and limited convention. Mr. Thom: I would like to ask the gentleman from Richmond, during the course of his argument, to state whether he considered a convention to be an assembly of the delegates of the people or fhe people themselves. Mr. Meredith: I shall not hesitate to state exactly my views about a Constitu- tional Convention. I would state them now, but I think it will come Tn better a little later. I am now stating the position taken by jou gentlemen, and discussing the only case which has been cited to sustain your contention as to the power of the Legislature. I say that the whole basis and the whole argument and all of the reasoning of the opinions of the Supreme Court of Pennsylvania was, that the Legislature had the right to say to the people: "You shall have this thing that you have asked for, but you must take only what I will give you as an act of grace." Sir, if the opinion as to the power of the Legislature was startling, how much more shocking is the reason given for that opinion. If the principle announced that the Legislature can restrict and restrain a Constitutional Convention is shocking to us, I ask 3'ou how much more shocking to the sense of ever3^ man who is living in this State, are rea- sons given by that court, when it said, in substance, that as the Legislature was not obliged to give it all, that being an act of grace, the people could only take what should be given to them, and subject to the restrictions which the Legislature might impose. Now, Mr. President, I do not believe that I can conceive of any man raised under the teachings of our forefathers who can accept such a doctrine as that, however his vote may be cast upon this question. There will be votes given here which will seemingly support the doctrine that a Legislature can restrict and restrain, when, in actual fact, they will be given because the members do not think it wise to proclaim. I say that is the whole of that case, and those are the reasons, in substance, that were given by the court. I know it is not put in the language of the court, but, Mr. 3330 DEBATES OF THE CONSTITUTIONAL CONVENTION" OF VIRGINIA. President, I do not propose to cover sophistry with soft and selected syllables. The question is too great and momentous. The matter is too important. The issues are too grave for us not to look at it in its naked ungliness, and we ought thus to look at it, in order that we may see it clearly and unmistakably. I say that is the decision that those were the reasons that were given for it, and that it holds that the people, when they are called in Constitutional Convention, can be limited and restricted and restrained by legislature enactments imposed after the people have au- thorized the call of a Constitutional Convention. Mr. President, it is hard for me to conceive, that a court could justify the exer- cise of an alleged power by the Legislature because a Legislature had violated its duty; and yet that was the only basis of the claim for the power exercised by the Pennsylvania Legislature. But my friends on the other side cannot stop there. They must not only claim that the Legislature has the pov/er to restrain and limit the powers of a Constitutional Convention, but they must go one step further, and say that the Legislature can en- large the powers of the Constitutional Convention, in order to keep themselves v/ithin the authorities that have been cited upon this floor. Gentlemen, you have got to allege, not only that the Legislature can restrict and restrain us, but that we are such a creature of its hands, that it can give, as well as take away, power. Upon what theory, Mr. President, do they explain the action of the Constitutional Conven- tion held in this State in 1829-'30? Certain it is that that Constitution was submitted to an electorate different from that which was existing at the time the Convention was called. Mr. R. Walton Moore: Was not that done in pursuance of the act of the Legis- lature? Mr. Meredith: No, sir; that was the Convention of 1850. Mr. R. Walton Moore: You will find that the act of 1827-'28 propounds a ques- tion and then it provides for the election of delegates. Mr. Meredith: I am not speaking of the time v/hen the Convention was author- ized to be called. That is the Pennsylvania doctrine, that after the Legislature had gotten the power which the people had given them, the only source of power in them to call a Constitutional Convention, they can then turn around and say to its master: "I will only give it to you to this extent." Mr. R. Walton Moore: I think my friend misunderstands me. Is it not a fact that the submission of the Constitution to the enlarged electorate by the Convention of 1829-1830 was in pursuance of the legislative act that directly and distinctly gave that power, which act was passed when the election of delegates was provided for? Mr. Meredith: But that was passed after the people had said that they wanted a convention to revise and amend the Constitution. I am not denying that fact. I say that you are driven to claim that by reason of the course of procedure in the Convention of 1829, the Legislature can enlarge the powers of a constitutional con- vention. Don't you claim that? You are forced to claim by reason of the action of the Convention of 1829,- either that that Convention did itself proclaim the suffrage article, or that it had the power, given it by a dictum of the Legislature, to submit the Constitution to an electorate different from that under the then existing Consti- tution. Am I not right? Now. gentlemen, which horn of that dilemma will you take? I care not vrhich. I state it again: By the action of the Convention of 1829, it appears, either, that the Convention had the power, in itself, to alter the electorate, or that it got that pov/er by reason of the legislative act. Upon which alternative will you stand? I care not which. If you undertake to embrace the Pennsylvania idea of legislative power, you must claim for the Legislature, not only the power to restrict and restrain, but power to enlarge and magnify the powers of a constitutional con- vention; that a legislature can give v/hat it never possessed; that the creature can give to the creator; that the body whose hands are tied can give strength and might DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF VIRGIXIA. Q O 1 o4o± to the body ^'ho stands free in every limb, endowed by the people with all power to be exercised in its behalf. :\Ir. President, along what path are we wandering? I assert that these gentle- men may be willing to say that the Legislature can do this and the Legislature can do that; but I cannot be satisfied with a declaration of power in piecemeal. I wish to know the full extent of this power claimed for the Legislature. I want to know the principle by which I am to be guided. I am not willing to take now the decision of one man and to-morrow the decision of another, to-day the decision of one court and to-morrow the decision of another. I want some path marked out for me, the boundaries of which I can see. Mr. R. Walton Moore: Ywll you please state how, under the existing Constitu- tion in Virginia, a Constitutional Conyention could be brought about and provision made for submitting the new instrument to the people for ratification or rejection? :\Ir. Meredith: I propose to explain that, v\'hen I discuss the language of the present Constitution. I desire now to discuss this question upon general principles, and then I will take up the question of powers under the present Constitution. I have said, Mr. President, that these gentlemen are willing to say, that this power and that power is in the Legislature — this power to restrain and this power of enlargement; but that we ought not to be satisfied with such statements. Particu- lar instances do not furnish general principles. A body, such as th's is, a great body of the people, called to create its organic law, ought to know hj what fetters we are bound, as well as what powers v.'e have the right to exercise; and vre can only know it when we are told accurately to what extent the Legislature can go. I call upon my friend from Norfolk, who v\-ill follow me, to tell us exactly what is the limit to this power, which he claims for the Legislature. Sir, he indicated this morning how broad he considered that power, when he offered the resolution which said that this Convention did not even have the power to ask directly for the appro- bation of the people upon this Constitution; but that it had to send it to the Legis- lature for the Legislature to submit it. Step by step the old doctrine Is being taken away from us. Encroachment is being allov\'ed to take place upon the power of the people. Mr. President, the height of usurpation was never reached at one step. What i? the utmost height in the opinion of one man is but the first stepping-stone to an- other man, more ambitious or more tyrannical. Gradually it comes, step by step — not in some shocking tornado — not in some violent eruption destroying the people at one fell blast, but by insiduous creeping until at last the foundations are sapped. It began, at first, with the doctrine that you cotild limit it as to whether it could inter- fere with the Bill of Rights; secondlrr, as to the manner of submission to the people, and then it comes to the point, that you have no power as to what electorate 3^ou shall submit, but that the Legislature shall determine that. One other step comes, which says that you shall not submit it at all, but shall return it to the Legislature, who will have, as claimed, power to do with it as it may see fit. Sir, my Lady Bountiful might not be gracious to the people, but might smother the nev\--born infant. Sir, is there any greater instance of the danger of insiduous and gradual encroachment, upon the power of the people than the doctrine advo- cated by those, who deny the right to proclaim. I stop here to say that no man has the right to claim that he is maintaining the rights of the people, as do those, who have spoken for submission. Upon one side of their banner they have written: "The rights of the people." But if you turn it you will find on the other side: ''Subject to legislative restrictions." Gentlemen, put your entire battle-cry upon one side, and let us fight it out upon the full issue. Do not undertake to flaunt your banner to the breeze, as if it was simply for the "Rights of the people," when there is hidden behind it a danger far greater than ever existed in a Constitutional Convention. Mr. President, I am departing a little from the line of argument I started to pur- 3232 DEBATES OF THE CONSTITUTIONAL CONVENTION" OF VIRGINIA. sue. These gentlemen must take one horn or the other of the dilemma, presented by the action of the Convention of 1829. They must either admit that that Convention had the power of itself to proclaim, or they must admit that the Legislature had the right to say to what electorate that Constitution should be submitted — the one or the other. Surely you are not prepared to say that the Convention had the power to determine the electorate itself. If you do, you give your whole contention away. No man of any prudence will stand in a body of men like this, and undertake to say to them that a Convention can submit one part of a Constitution, but cannot submit any other part. We know that the right of suflrage has been declared to be the right preservative of all rights. We know that there is nothing about which the people are more sensitive. If you once admit that a Constitutional Convention has the power to proclaim the article upon suffrage, surely, you will not deny that it has the right to proclaim the article upon taxation and things of minor importance. So you are driven to claim what? To claim that the Convention of 1829, derived the power to submit the Constitution to an altered electorate, from the act of the General Assembly authorizing the election of its delegates. How will you justify such a position? You may claim it in the extremity of your position, but I ask you to name any man who would justify such a contention. I do not mean Mr. Jameson's, but I mean, of those great men who composed that great body. Which one of them ever intimated that the act was valid or ever suggested that the act was binding upon the Constitutional Convention? Which one of them ever thought, for one moment, that the act gave that Constitutional Convention one iota of power? There were but few who spoke upon the subject, so far as we have the records in the present abridged form. You recall that John Randolph of Roanoke opened the debate, and insisted that the Con- stitution had to be submitted to the then electorate. You will recall that Mr. Thomp- son followed him, and stated clearly and distinctly his views as to that act. He de- clared it a work of supererogation. What did he mean? That it was a needless work. Why? Because the Convention had the power of itself. That is what he meant by supererogation. Are you, gentlemen, at this late date, to put a construction upon the statute under which the Convention of 1829 acted, different from that put upon it by the great men who sat in that Convention, and discussed it? You know that Mr. Thompson declared it to be a work of supererogation. You know that Mr. Mason said the Legislature never intended to give any such power. You know that Chapman Johnson stated in substance that he had said before, and that he would say again, that he believed that the act was void. Then, gentlemen, where is the justification for the claim that the procedure of the Convention of 1829-'30 was because the Legis- lature had the power to pass an act enlarging the electorate at that time? You do not find one word in these books that will justify it. You do not find one thought there to intimate that this Convention recognized any such power in the Legislature. Sir, it was too near to the birth of constitutional freedom. It remains for our day to entertain such ideas as that. On the other hand, you find that even the men who were insisting that the Con- stitution should be submitted to the altered electorate based their position upon the grounds that we believe to be the only true ones, that the Convention had the power. Instead of having the support of that Convention upon your proposition, you will find that the only men who held the right to submit the Constitution to that electorate, declaimed against the power of the Legislature to confer it. Are you not, then, driven to the conclusion that the submission by the Convention of 1829 was an act within the power of the Convention? Mr. Blair: I would like to ask you whether you see any difference between an act of the Legislature and an act of a Constitutional Convention, one conferring a right, and the other taking away a right; in other words, when the Constitutional Convention of 1829 enlarged the electorate it conferred a right, but when this Con- vention abridges the electorate it takes away a vested right? Mr. Meredith: That is a confusion of ideas. It arises from the use of the word DEBATES OE THE COXSTITUTIOXAL COXYEXTIOX OF YIRGIXIA. 3233 "right." I am using the word right in the sense of power. I am speaking of the right of the Legislature, as distinguished from the right of the people. And therefore whether it enlarges or abridges the right of the people is not the question. The ques- tion is whether the Legislature had the power — that is the word I should have used, and I would not have misled you. We see that these gentlemen have been driven to maintain two propositions. First, that this Convention is one of limited powers, and that it does not represent the people in their sovereignty; and, second, that the Legislature can restrict, limit, enlarge, abridge and extend its powers. Mr. President, I expect there are others who will find themselves very much at sea as to what would be their position, if it be true that the Legislature has the right to confer these powers. Surely, we will not give up that which has been taught us as a general principle, that power comes from the people, that the members of the Convention are delegates of the people, and as such, clothed with the powers of the people. To admit the theory that the Legislature can also give and take away our powers, puts us in the position advised against in the Bible, that "a man cannot serve two masters." Let us recognize, one or the other. I prefer the people; but for the future guidance do not let us use this confusing and contradictory idea that we get power from one source, and also get it from another. Let us have it defined so that we will know our future rights. I have sho^m, Mr= President,, that the Convention of 1829-'30 does not support the claim that has been made upon this floor, that the Legislature has the right to give any power to a Constitutional Convention. Are there authorities needed upon such a subject as that? Is it possible that with our ideas of the power of the Legislature that we can need any authority to show that the Legislature cannot restrain or restrict the powers of a Constitutional Convention? I know that my friend who will follow me in this debate will claim that w^hen I assert this Convention has the full power of the people, that I must point to express authoritj^ for that claim. I have an equal right to ask him v^'hen he an- nounces that fact, as he must, that the Legislature has the right to restrict or to en- large the powers of a Constitutional Convention called by the people, that he should put his hand upon the authorities that would justifj^ such a proposition. Surely, we do not find it in the Constitution of Virginia. Surel3% there is not one line, or one word, or even a suggestion of a court, outside of the Pennsylvania decision, that the Legislature ever had such a power. I respectfully submit that the obligation is on our opponents to show that the Legislature has been given this power expressly, rather than upon us to prove our power by showing an express mandate for it. Is not the Legislature of Virginia prohibited from touching the Constitution? Does not our Constitution declare that it restrains and restricts the Legislature? Does it not declare that no one Legislature that comes into existence in the State of Virginia shall even have the power to submit an amendment to the Constitution, but that it shall take two General Assemblies to take such a step? So careful were the people as to legislative power that they put into the Constitution a requirement that two General Assemblies should speak before they would even accept from its hands the suggestion of an amendment. Is it not incongruous that a body without power can be more powerful than the body vrhich defines and limits its power? What body, Mr. President, can delegate prohibited powers? What principle of law declares that a bodj^ having been pro- hibited from altering or amending a Constitution, has the right to delegate power to a Constitutional Convention to frame and make a new one? Does not such an anomaly- in the law demand express language? Is it not unnatural? Is it not unheard of as to all other matters? If so, have I not the right to say that its anomalous nature demands, at the hands of its friends, express authority in clear and indisputable lan- guage ? 3234 DEBATES OF THE CONSTITUTIOJTAL CONVENTION OF VIRGINIA. The power of the Legislature, Mr. President, is confined to statute law. It has no power beyond that. One of the needs, one of the great needs of a Constitution is to restrain the Legislature. Otherwise it would be like the English Parliament, with- out restraint except by general and unwritten principles. But we do not desire that our legislative body should have such power, and we have made these Constitutions more for the purpose of restraining, controlling, and prohibiting the Legislative action. Imagine, Mr. President, a Constitutional Convention called into being at the de- mand of the people, and yet when it gets here it finds its hands tied by legislative restrictions. Would such a body represent the people? Could such a body be claimed to be representing the people in their sovereign power, for the purpose of amending and revising the v/hole Constitution, if the Legislature has the right to say that you shall not touch this provision of it, or that provision of it? Sir, the power to limit, as was said by Chief Justice Marshall, carries within it the power to destroy. I do not believe, Mr. President, that the Legislature can have such a power to re- strain a Constitutional Convention, because it would be power grov/ing out of weak- ness, might out of nothingness, sovereign power out of constitutional imbecility. Since the Legislature is prohibited from touching the Constitution, it has no power over it, and yet, suddenly, when a Constitutional Convention is called, it is claimed to suddenly spring into power, as if it had been released from all restraint, and given authority to restrain the Convention. I submit, Mr. President, that whatever restraint there be upon us, whatever limitation there may be, however small our powers may be, our power does not come from the Legislature, but it must come from some other source. I have explained, as far as I was able, the case upon which these gentlemen depend for the doctrine that they are so earnestly advocating, the Pennsylvania case. I have shown you the history of that case. I have shown you, as far as I am able, the reasons upon which it was based. I now respectfully submit, that if you will give them due consideration, you will refuse and reject them as absolutely antagonistic to your views as to the power of the people, and as to the festriction of power put upon the Legislature. I do not believe that we could ever get the Supreme Court of this State to tie itself to a doctrine that is so abhorrent to all of the views and ideas of the people of Virginia. To my mind, this idea of danger from the courts is one that we ought to give the least consideration to, if we are able to satisfy ourselves that we are right. The doctrine that has been announced here by these gentlemen is one that is contradictory to the beliefs of the Virginia people, to their history, their teach- ings, their conduct, and their Constitutions. I come, then, to insist that, if the theory of implied power in the Legislature is in- defensible, then history, precedents, and the decisions show that the members of a Constitutional Convention, authorized to be called by unrestricted language, are the people, present in the persons of their representatives. My position is that there can be no justification for the doctrine of implied powers in the Legislature to restrain and restrict a Constitutional Convention; that history, precedents, and the decisions all hold that when a Constitutional Convention is called without express restrictions upon it, it comes clothed with all the power of the people. I hold that, if the call of the people is silent as to what shall be the powers to be exercised by that Constitu- tional Convention, and simply authorizes them to amend and revise the Constitution, that language gives them all the power that the people would have. Mr. Thorn: Do I understand my friend that this would not be dependent upon the constitutional provision, but that if there was no constitutional provision the power would still exist in a convention, called under the act of a General Assembly? Mr. Meredith: I claim this to be the nature of a Constitutional Convention — that if it is called by the people, without language restricting it at the time the Con- vention was authorized, it comes clothed with all the power of the people, no matter whether it is called under constitutional authority or legislative enactment. I do not contend, Mr. President, that the people cannot limit this power. I hold that they can. T hold that the people have the right to say to a Constitutional Convention, at the DEBATES OE THE COXSTIIUTIOXAL COXVEVTIOX OE VIBGIXIA. 3235 proper time: •■Thus far you may go and no farther," that ■•! will give you this power, but you shall not have that." I believe in the power of the people to restrain; but it must be by the express language of the people, and under circumstances allowing them specifically to express themselves. It must be like the act of 1S49, where the Legislature submitted to the people the question as to whether a convention should be called,, and to draft a Constitution, and to submit the same to the people for accept- ance or rejection. It was expressed at the time when the people were called upon to say whether they wanted a Constitutional Convention. It was said at the time when the people w^ere to decide the question as to the expediency of a Constitutional Convention. They had the right, at that time, to say: We will call you into assembly; but we call you with the distinct understanding that you are to come here with this restriction, and this limitation put upon you — that you must refer it back to us. I say the people have that power, but I say it must be exercised at the proper time. It must be exer- cised at the time the people express their views as to the necessity for a Constitu- tional Convention, at the time they declare what kind of convention they wish to be called, and that it cannot be afterwards put upon the convention by any power. Mr. President, I understand from the debate here, and from the language of the Pennsylvania decision, that it is insisted that if the convention did claim the right to proclaim or ordain the Constitution, it must show express authority. I understand that to be the doctrine of the Pennsylvania decision. I understand it to be the doc- trine of those gentlemen who have argued for submission. Is that true? If it can be shown that it is virtually universally recognized, that when a convention is called without restriction, it has the power of the people, then it must be admitted that I nped not show express authority. If it is recognized by authority, by precedent, by history, and by Constitutional Conventions, that when a convention is called without express limitation or restric- tion put tipon it by the people, it then has that power, I submit that there can be no burden upon us to show any power by express language: but that the burden is transferred to those gentlemen opposing us. and that they must show express limita- tion, in order for us not to have that power. I want to make that idea clear. I say that if it be generally recognized that a Constitutional Convention, called without ex- press restrictions put upon it by the people, comes naturally clothed with sovereign powers, then there is no necessity for me to shovs- any express atithority in this con- vention; but, on the other hand, that the burden is shifted to the other side to show that there has been an express restriction. I think that proposition a fair one to both sides. When I say '■recognized,'' ^.Iv. President. I do not mean to refer to sreculative writers, with a good or with a bad object; whether they had the reputation of Mr. Jameson, who is spoken of in the report of the Judiciary Committee of the Xew York Constitutional Convention as a man who wrote his book "with an object," and who has been denounced on this floor as a man who wrote it with an evil object. I care not whether his object is good or bad. When I say recognized. I do not mean hy specti- lative theorists, but I mean recognized by court decisions, recognized by historic prece- dents, recognized by the statements, beliefs, and doctrines held by those men from whose brains constitutions sprung. Sir, I have said that this question is more of a governmental than a legal one. and that it must depend for its solution, not upon the construction that a court may arbitrarily put upon it, because it believes so and so. It is a governmental question, a question of fact, which depends on historic prece- dence alone, and its truth or its error can only be determined by the facts of history. If any court from Pennsylvania or elsewhere undertook to declare as to what was meant by the people in the call of the Constitutional Convention without recognizing the history of the past. I submit that there would be a failure of duty in not recog- nizing the only source of truth upon the question. 3236 DEBATES OE THE CONSTITUTIONAL CONVENTION OE VIRGINIA. In order then, Mr. President, to show that a Constitutional Convenfion has, in- herently or naturally these powers, as soon as created, unless it is expressly re- stricted, I will try to ascertain what is the nature of a constitutional convention. Bear with me if I undertake to trace the history of them. The magnitude of the ques- tion justifies any length of time that you may devote to it. In looking at the history of a matter of that kind is it prudent or fair, to take modern text writers, or shall we go back to the sources of constitutional government? Is it not wiser that we should go back to the language of those who created constitutions, than to take the lan- guage of theorizers of the present day, who wrote with or without a good purpose, biased one way or the other, and declare from them what is the purpose and power of a Constitutional Convention? I prefer, sir, the other course. I prefer to go back and trace, as far as I can, what were the original ideas, how they have been modified, to what extent have they been adopted, how they have been recognized by our State. If I can satisfy myself that I stand with the fathers of this Republic, I prefer to be v\'ith them along the lines of constitutional liberty than to follow the dictates of any speculative writer of a modern text-book. Now, Mr. President, I call your attention to the case of Kamper vs. Hawkins, which was referred to by the gentleman from Frederick; but I respectfully submit that it was referred to by him with unfortunate failure to present it in its fullness. This case, Mr. President, was decided in 1792. The first Constitutional Convention of this Union practically sprang into existence on this soil in 1776. The language and the voices of the judges who decided this case were so close to the first Virginia Constitutional Convention that they may be almost claimed to be the' echoes of the Convention itself. So closely connected with it in point of time that they could fully appreciate the views of the men who made that Constitution, and could speak with authority in describing its powers. Surely, they speak with higher authority than any modern writer, because they spoke near the very birth of constitutional liberty. I know, Mr. President, what has been said, and the idea comes from this text writer, Mr. Jameson, that we must discard these old Constitutions; that they were made in times of excitement; that they were the out- bursts of popular agitation; that the people did not have time for thought, and they had to accept what they could get; that they took them without undertaking to ascer- tain what were the rights and powers of the body that framed them. Sir, the mem- ber who is acquainted with the history of his own State, v/ill find that that is not true as to Virginia. We know that there had been a convention in this State as early as 1774, when there was an English Governor sitting at Williamsburg, shortly after he dissolved the Plouse of Burgesses, because it passed resolutions in regard to the power of England to tax. There was then called a convention of the people of this State, which met in 1774, and they appointed one of its members, with power to call that convention into existence whenever he saw fit. We know that there was a sub- sequent convention held in 1775, just before the time that Lord Dunmore left Wil- liamsburg to take refuge on board of a man-of-war. We know that fighting in this State began as early as the fall of 1775, and that there was hardly a foot of soil in this State that was occupied by British soldiery, except the extreme eastern portion of it. Virginia vv^as in the hands of her own people. She had two conventions before that of May, 1776. Therefore, I submit, no man can explain away the weight of this precedent upon the theory of haste as to this one. It was not born prematurely. It was born after due and intelligent consideration, and was accepted with full confi- dence, because it met the will of the people. Mr. President, this idea of casting aside the precedents of 1776, upon the theory of haste, is one of the main arguments sug- gested by these modern text writers. Let us see what is the description of a Consti- tutional Convention given by Virginia judges as early as 1792. I ask you once more to let me stop and say that, in this case, there was no question, as the gentleman from Frederick seemed to think, as to whether the promulgation of the Constitution by the Convention was within its powers. No such question as that was ever raised. DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE VIEGIXIA. 3237 The only question in the case was whether the third convention, which met in 1776, was an ordinary Legislature, or vchether it was called with the power to be a Consti- tutional Convention. That is the only question in this case. Mr. President, the statement, to which reference has been made, that Thomas Jef- ferson held that a Constitutional Convention cannot proclaim a Constitution, is an error. All that Mr. Jefferson claimed was that the Constitution of 1776 could not be regarded as a Constitution, because it was enacted by a body of the nature of a legis- lative assembly, and not by a Constitutional Convention. That is the extent to which he ever went, and that is the extent of the question in this case. Now, what is the language of the Virginia judges who stood at the cradle of constitutional governments in this State? Let us see v-hat they regarded as the powers of a Constitutional Con- vention. Judge Roane said: But admitting for a moment that the old government was not then at an end, I assert that the people have a right, by a convention or otherwise, to change the ex- isting government, while such existing government is in actual operation for the ordi- nary purposes thereof. This Convention was not chosen under the sanction of a former government; it was not limited in its powers by it, if indeed it existed; but may be considered as a spontaneous assemblage of the people of Virginia, under a recommendation of a former convention, to consult for the good of themselves and their posterity. That is the .description given by Judge Roane of a Constitutional Convention. I now. ask your consideration of the language of Judge Henry: The deputies seem to have been complete representatives of the people, and vested with the most imlimited authority. * * * The people in convention have ordered that a Legislature shall be chosen, a Gov- ernor and Council shall be chosen, judges shall be appointed — all these different char- acters are servants of the people, have different duties, and are amenable to them. Let me also read to you the language of Judge Tyler: Vhat power had the people, therefore, that was not confided to their representa- tives? All their rights, all their power, all their happiness, all their hopes and pros- pects of success, were most indubitably entrusted to their care. Where can I get stronger language than I have read to 3'ou? The men who ex- pressed those views ought to know what they are speaking of. Let me read to you from the same case the language of Judge Tucker: The Convention then was not the ordinary Legislature of Virginia, it was the body of the people, impelled to assemble from a sense of common danger, consulting for the common good, and acting in all things for the common safety. Thus you see that wherever you put your hand upon an expression of opinion by one of those who created the Constitutions of the early days you have a declaration that a convention is an assemblage of the people in the person of their representa- tives, and that the people entrust to it all their power. That they came with unlimited authority is the language of construction, almost contemporaneous with the Convention. It is simply the expression of the same idea in different words, but all recognize the Convention as being an assemblage of the people. Sir, if you will let me step outside of our own State. I will read you the language of some of the great men of other States. In the New York Convention of 1S21, Mr. Livingstone said: 3238 DEBATES OF THE CONSTITUTIOXAL CONVENTION OF VIKGINIA. They are here themselves, they are here by their delegates. No restriction limits our proceedings. We are standing upon the foundations of society. In 1836 George M. Dallas, a Vice-President of the United States, declared a Con- stitutional Convention to be: The provided machinery for peaceful revolution. When ours shall assemble it will possess, within the territory of Pennsylvania, every attribute of absolute sover- eignty, except such as may have been jaelded and are embraced in the Constitution of the United States. What may it not do? It may reorganize our entire system of social existence, terminating and prescribing what is deemed injurious and establish- ing what is preferred. In the Illinois Convention of 1847 Mr. Peter said: We are the sovereignty of the State. We are what the people of the State would be, if they were congregated in our stead. Are these unanimous views to be cast aside for modern thought because a text- writer and a texv judges wish to take from the people the power that they have in every Constitutional Assemblj^ and to put it, as Mr. Jameson, the pioneer of this mod- ern idea, wants to put it, in the Legislature. These are the unanimous expressions of men who built Constitutions. I ask for some reason why we should discard them — or some reason why we should be forced to give them up. Show me a greater danger in such power being in a Constitutional Convention, than would be in those claimed , for the Legislature, and I v/ill agree with you. On the other hand, if a Legislature can restrain a Constitutional Convention, then by delay, long drawn out and other devices, it can defeat its v/ork. If we do VN^hat has been suggested by the gentleman from Norfolk, turn over this Constitution to the Legis- lature of Virginia, we will put it in the power of the Legislature to say it will not submit our work to the people. Who can tell then what they will do? It may remain a mere broken promise to the people. Mr. President, the man who asks us to give up the view so clearly expressed in the opinions I have just read, views so patriotic and high as to the rights of the people, should offer strong reason for the request. Are we, sir, justified in throwing aside these early expressions and views? I call your attention to the fact that it v/ill not do to say these Constitutions were first promulgated in the early period of our revolutionary history. South Carolina pro- claimed her Constitution in 1790. There was no revolutionary war then. Her first Constitution had been rejected by the Supreme Court of that State upon the ground that the body which passed it was not a Constitutional Convention. A Constitutional Convention was called, it proclaimed the Constitution, and it was accepted. In 1792 and as late as 1831 Delaware spoke along the same lines that these old fathers spoke; Tennessee in 1796; Indiana in 1816. Sir, I do not know where the era of modern thought begins. Tell me what year marks it. When shall I say I v/ill accept this thought be- cause it belongs to modern times, and reject that because it is ancient. Indiana pro- mulgated her Constitution in 1816, Missouri in 1820, New York in 1801. Not in haste- not in revolution — there v/as no emergency, but it was simply an exercise in times of peace of the power admitted to be possessed at the time. Georgia in 1798, Ohio in 1802, Illinois in 1818, Arkansas in 1836— surely, we are stepping near to the boundary of mod- ern times. Pennsylvania in 1790, Kentucky in 1792 and 1799, Louisiana in 1812, Ala- bama in 1819, Florida in 1839. Is nothing modern that occurs before the Civil War? I presume not, because the gentleman from Wythe, who discussed this question a day or two ago, cast aside the Secession Conventions of the Southern States as though they were unworthy of con- sideration. Will the gentleman who will follow me adopt such a line of evasion as that? DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF VIEGIXIA. Sir, Avere not those conventions called by as high a class of men as ever lived in any portion of our country? Did they not know constitutional law as well as we do? Were they not moved by as high and patriotic motives as 3'ou and I? Did they not feel that the question before them was one of the most momentous that had ever been presented to the consideration of a body of men — certainly as momentous as the one you are noxv deciding? Mr. R. Walton Moore: The gentleman has cited a great many cases in which Con- stitutions have been proclaimed. I want to ask him if, in any one of those cases, the proclamation was in disregard of a legislative act, or if there Vvas a legislative act in any of those cases providing for proclamation? Mr. Meredith: So far as I recall, it is possible that some of them were in contra- vention of the act of Congress which declared that Constitutions should be submitted, but I am not certain about that, and I will not assert it. I will simply say that I have come across none that acted in contravention of a legislative act. Mr. R. Walton Moore: Can you cite a single case in which a legislative act pro- vided for submission and was disregarded? Mr. Meredith: I can recall one in this State, a little before your time, when a man stood upon the floor of a Constitutional Convention of this State, and said that an act of the Legislature undertaking to give power to a Constitutional Convention was supererogatory. I refer to Mr. Thompson in the Convention of 1829. Mr. R. Walton Moore: Is that not begging the question? Did not that very Con- vention follow the language of that act and comply with its provisions? Mr. Meredith: Certainly; because it had the power in itself. After declaring that the act was supererogatory, it followed the line suggested by the act, and did what it wanted to do, because it claimed the power to do it, of itself. That, sir, is a better precedent than I could get from other States. I prefer the teachings of our own people. Mr. R. Walton Moore: Was there a resolution in that Convention declaring that the act of the Legislature was surplusage? Mr. ]\ieredith: You are as familiar with that ConstitutionaL Convention as I am. There was no such resolution. Mr. President, I was discussing the fact, that it had been said here that the seces- sion conventions are to be disregarded. The members of those conventions were able and patriotic men. They were doing a great work, having a momentous question to settle. If they v/ere, why should they be disregarded, cast aside, as of no weight? Is It because of the failure of their v.^ork? No other excuse can be given. That excuse may do for the gentleman from Wythe, but I respectfully submit it will not receive approbation from the body of this Convention. Why, Mr. President, if there ever was a time v^hen a Constitutional Convention should have submitted its work, it was when the people of the Southern States were about to step beyond the limits of the Union, v/hen they were severing the national ties, and stepping into a fraternal war — a civil war — with all the horrors that came with it. And yet those men, as high and as hon- orable men as ever lived, claimed that they had the power, even upon so momentous a question, to proclaim, and they did proclaim their work. In Louisiana, South Caro- lina, Mississippi, North Carolina, Alabama, Arkansas, and Florida the works of the seces- sion conventions proclaimed. Were they proclaimed in the days of revolution? The doctrine of secession did not admit of the idea of revolution. Was there war along the borders of an^' of those States? It is true that upon the seacoast of South Carolina lay Fort Sumter: but within the limits of her own State peace reigned. Amidst their ovvn people there was peace. Yet, upon a momentous question like that of secession, without any excuse that it was necessary, because the people coLild not be consulted, those conventions exercised this power. Hence, when we come down to a time as late even as 1861, we find that this power was exercised by men who were as able and as patriotic as we are, and who knew that they risked all upon the die they cast. T come down now to a still later time, and call 3^our attention to the conventions 3240 DEBATES OF THE CONSTITUTIOlvrAL CONVENTION" OF VIRGINIA. of Mississippi and South Carolina, which in the last ten years proclaimed their con- stitutions. Let me step hack once more to the Dark Ages, the days of men who were ignor- ant, as is claimed, of the safeguards necessary for the people, and ask your consid- eration of the language of Chief Justice Marshall. He surely stands, even in the eyes of the opponents of this measure, as high as Judge Agnew, who decided the Pennsyl- vania case. In the case of McCulloch vs. Maryland, 4th Wheaton, on page 403, Chief Justice Marshall, speaking of the adoption of the Constitution of the United States, said that that "instrument was submitted to the people." He then added: They acted upon it in the only manner in which they can act safely, effectively, and wisely on such a subject, by assembling in convention. Thus we see what that eminent jurist thought was the nature of a convention. Here is one of the old Constitution-making patriarchs, who tells you that a Consti- tutional Convention is a gathering of the people, and that convention the only way in which it is safe and wise to adopt a Constitution. Sir, if these gentlemen will not be persuaded by the views, upon constitutional ques- tions, of so great an expounder of the Constitution, whose anniversary was celebrated from one end of this land to the other a fev/ months ago, I fear that whatever I may say will fall upon deaf ears. But was he not right? Sir, this Constitution consists of many abstract principles. It doesn't pertain to one subject. It is not a mere question of the referendum of a statute. But it consists of the many subjects that are comprised in the Constitution, with all their subdivisions. What would the people be allowed to do? They will not vote on each pro- position or on each article. They could not vote for the article for taxation, or the article on corporations, or the article on suffrage, or the article on city government, or the article on county government, or public institutions; but they would only be allowed to vote for it as a whole, or they would have to vote against all of it. That is the proposition that'is contained in the theory that they can exercise no choice as to the subjects, but that they are simply to say that they will take the whole or refuse the whole. The reason you would vote against it, might be the very reason which would induce me to vote for it. Why I should vote for it might be the very reason which would induce you to vote against it. And so we are asked to give the people, under the circum- stances which exist around us now, an opportunity to say: I will take the whole Con- stitution, or I will not take any of it. I respectfully submit that Chief Justice Mar- shall, no matter how far back in the past he may have lived, was right vfhen he said that the only safe and wise way for a people to adopt a Constitution was by assembling in convention. Now, Mr. President, I desire to call your attention to a few authorities which I sub- mit to support the proposition that a convention can proclaim a Constitution. In Mis- souri vs. Neal, 42 Mo., on page 123, the Supreme Court said: The Convention might (if it had been deemed proper to do so) have declared the Constitution framed by it in full force and effect without making provision for its sub- mission. The only ground upon which they attempt to get rid of that language is that it is obiter dictum. What is obiter dictum depends very much on what you want it to be. One man will say that a statement is a decision upon a material question at issue, if he wants it to be, while another man will pay that it has nothing to do with the ques- tion, and Vv^as not in the case. Here v/as a question before the Missouri court as to whether the line of procedure that had been taken by the Constitutional Convention was within its power, and the Supreme Court of Missouri said it could have proclaimed the Constitution if it had wanted to. I now v/ant to call your attention to the decision of the Supreme Court of West Virginia in the case of Williams vs. Jackson. DEBATES OE THE COXSTITUTIOXAL COXTEXTIOX OF TIEGIXIA. 3241 Mr. Harrison: Will you allovr me to call your attention to the fact tliat that was not a decision of the Supreme Court of West Virginia. It was simply a contested elec- tion case before a special court. Mr. Meredith: I will take your statement. It appears in the West Virginia re- ports, and I took it for granted it was a decision of the Supreme Court. But whatever may have been the composition of the court, here is its language: I have had no difficulty in reaching the following conclusions upon the constitu- tional questions presented in this specification, viz.: First. That a Constitutional Com'ention, lawfully convened does not derive its powers from the Legislature, but from the people. Second. That the powers of a Constitutional Convention are in the nature of sov- ereign powers. Third. That the Legislature can neither limit nor restrict them m the exercise of these powers. You, gentlemen, are aware of the decision in Sproule vs. Fredericks, 69th Missis- sippi, 898. I know what has been said about that, that it was a case where there was no legislative statute. But look at the language of the court in that case: In support of this view of the invalidity of the Constitution two propositions are asserted: First. That a Constiiutonal Convention has power only to prepare or frame the body of a Constitution, and that, when prepared or framed, the instrument is of no force or effect until ratified by a popular vote of the people, and the Constitution of 1890, having never been- submitted to, or ratified by, the people, is invalid. Second. That the changes made by the Constitution in the basis of suffrage are violative of the act of Congress readmitting the State of Mississippi into the Union in the year 1870, and invalidate that instrument. With confidence we reject both propositions as unsound. * * * We have spoken of the Constitutional Convention as a sovereign body, and that characterization perfectly defines the correct view, in our opinion, of the real nature of that august assembly. It is the highest legislative body known to freemen in a representative government. It is supreme in its sphere. It wields the powers of sov- ereignty speciallj^ delegated to it for the purpose and the occasion by the whole elec- toral body, for the good of the whole Commonwealth. The sole limitation upon its powers is, that no change in the form of government shall be done or attempted. I want also to call your attention to the case of Quinlan vs. Railroad Co., 89 Texas, on page 377, where the Supreme Court said: The Convention which passed the ordinance which was held valid in Grigsby vs. Peak, was called by virtue of the proclamation of President Johnson. This proclama- tion did not require an:' part of the work of the Convention to be submitted to the vote of the people, and in our opinion that Convention, therefore, had the power to pass ordinances without submitting them for adoption to a popular vote. I will call your attention to one other case, and then I shall leave this branch of the subject. My friend from Fairfax (a day or two ago) referred to the decision in :^Jiller vs. Johnson, 92 Kentucky 5S9, and contended that the language of the dissent- ing judge in that case ought to have a great influence with us, because of its strong and forcible reasoning. I submit to my friend that there is a part of that decision which he omitted to consider. It is the part of the decision, where the judge said this: But it is said that the Convention of lS49-'50, after submitting their work to the people, made material amendments to that Constitution as ratified by the people. The judge then added: That is true, but the Convention of 1849-'o0 had that power because their agency was unlimited; the people did not restrict them in their agency. 204 — Const. Deb. 3242 DEBATES OF THE CONSTITUTIONAL CONVENTION" OF VIRGINIA. It is worthy of notice that he did not say that it had express power given to it, but that it was elected without restriction upon it. When you come to examine the Ken- tucky act under which the Convention of 1849-'50 was called, you will find that the act never submitted to the people the question of calling a convention, but simply sub- mitted to them the election of delegates. It was when commenting upon that act that the dissenting judge, who was holding that the proclamation of the additions to the last Kentucky Constitution was void, because the Convention had been required by the act calling it to submit the Constitution, said that the same line of conduct had been pursued in 1849-'50, but declared those additions to the Constitution of 1849-,50 were valid upon the ground that there had been no express restriction put upon the former Convention. In the light of the above decisions, I submit that we have a right to insist that the courts recognize that a convention called without restriction has a right to pro- claim a Constitution. I come now to our own Constitution. I shall have but little to say upon the language of that instrument. That has been thoroughly discussed. My friend from Hanover, upon two occasions, has shown you so clearly what is meant by the provisions of our Constitution that I submit that what I shall say will be almost repetition. I will not take up the time of this Convention to read to it the two sec- tions of the Constitution bearing upon this question. You are all familiar with them. But I want to say this: Upon what theory can it be claimed that a Constitutional Con- vention of this State has not the power to proclaim a Constitution, but is obliged to submit it, when you look at those two provisions of the Constitution, and see how they widely differ in their requirements? How one, as to specific amendments, goes into detail as to the method of proceedure; how it labors to protect the ^ate against legis- lative acts; how it requires that the amendments be spread upon the journal; how the votes shall be recorded, and how two Legislatures shall act before an amendment shall be submitted for approval. It seems to struggle to prevent anything from being left to implication. As Mr. Justice Cooley said in his work on "Constitutional Limitations": We impute to the people a want of due appreciation of the purpose and proper province of such an instrument, when we infer that such directions are given to any other end; especially when, as has been already said, it is fair to presume that the people in their Constitution have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, and with a view to leave as little as possible to implication. In our present Constitution w^e find that as to specific amendments the action of two Legislatures is required, but that when it comes to speak of a convention, although its mind has been drawn to the subject of submission, and although it has expressed itself as to the necessity of submission, of specific amendments, not one single word is said about it, when it specifies what action is to be taken to revise and amend the entire Constitution. If, as Mr. Justice Cooley says, we are to regard these instruments, as drawn so carefully, and in such measured terms as to correspond with the immense powers delegated by the people, as evidently intended to leave as little as possible to implication, then tell us what it is in our Constitution that justifies you in saying that an implication from its language that we cannot proclaim, but must submit, the Consti- tution for ratification. Are you not denied the right to support your contention by im- plication? Can you draw an implication as to so great and important a matter when the Constitution particularizes as to specific amendments, when the Constitution pro- vides that there shall be submission of specific amendments, but is silent when the entire instrument is to be revised and amended. Mr. President, it was said by the gentleman from Frederick that one Constitu- tional Convention could not bind another, and that such a provision as is contained in our Constitution must be void. Mr. President, there is undoujbtedly a difference between a restriction of the pow- ers of the people and the specification as to the manner of exercising them. You must DEBATES OP THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 3243 have some form of government; you cannot live in chaos. You must prescribe some manner in which a thing shall be done — not that you are restrained from doing the thing; not that any power is taken; not that the exercise of the power is prevented; but that you must prescribe some way of exercising the power, in order that there may not be confusion, in order that we may have, as Dallas said, "The machinery of peace- able revolution." If you do not prescribe a method of procedure you have to resort to dangerous revolution, to revolution without order and to revolution without control, for the people will demand the right to change and alter their form of government, as an indefeasible and inalienable right. So, I call my friend's attention to the fact that this is simply a wise provision as to the exercise of power, and not a single restric- tion upon the power itself to alter and amend this Constitution or form of government. When my friend refers to the fact that in the same section of the Constitution there is a restricticn upon us as to a change in the article on suffrage, I respectfully submit to him that that was an attempt to abridge the power of the people, and that therefore it was void. I call his attention to the fact that where the language of the Constitu* tion is that the Legislature may provide for the election of delegates to a Convention, tut does not give it any other power, then upon the principle of "expressio unius exclu- sio alterius," the Legislature is not authorized to exercise any power of putting any restriction upon the Convention so called by the people. My friend from Fairfax asked me how the people could exercise the right of call- ing a Constitutional Convention, subject to the restraint of submission. Sir, it has ample power. It has the power of submitting a specific amendment to the Constitu- tion authorizing such a submission. But until the Constitution should be so amended, I do not believe it would have the power to submit any proposal except in the man- ner prescribed by this Constitution. Along that line the member from Halifax cited a number of authorities holding that where there is, in the Constitution, a prescribed method of procedure for amendment of the Constitution that the prescribed method be followed, and the court had the power to declare amendments void if that method was not properly followed. I desire simply to add a few additional and later authori- ties to those cited by him, as some of the members seem to believe only in modern cases. I ask their attention to the doctrine announced in the case of State vs. Foraker, 46 Ohio, p. 681, in v^^hich the court said: Constitutions are solemn instruments. They are not to be altered, changed, re- vised, or amended, except in strict compliance with the method wiiich the instru- ment itself suggests. I alEO call their attention to the case of Edwards vs. Lesueur, 132d Missouri, on p. 433, where it is said: It is true that the General Assembly can only propose amendments under the pov/er delegated to it by the people. This power must be construed according to the general principles that govern courts in the construction of delegated powers. In the exercise of such power every substantial requirement must be observed, and followed, or there can be no valid amendment. In respect to the mode of proposal and submission, the provisions of the Constitution must be regarded as absolute. The courts should not hesitate to see that the Constitution is obeyed in these particulars. Along the same line of thought I ask permission to read an extract from the deci- sion in Inre Denny, 156 Indiana, where the principle is thus stated: It is only by virtue of the Constitution's command to that body that the proposed amendment may be submitted by a legislative act. Prior to the time designated there is no constitutional power in any General Assembly to speak authoritatively on the subject of the submission of proposed amendments. I refer you also to the case of Livermore vs. Waite, in 102d California, on p. 117, where the court said: It can be neither revised nor amended except in the manner prescribed by itself. 3244 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. and ihe power which it has conferred upon the Legislature in reference to proposed amendments, as well as to calling a Convention, must be strictly pursued. Under the vention i^ethods the entire sovereignty of the people is represented in the Con- Mr. Thom: Will my friend state whether he regards the constitutional method, the one which is inserted in the old Constitution, as the exclusive method for the amendment of the Constitution? Mr. Meredith: I do, until the present Constitution be amended, as I have already suggested. I believe that where there has been prescribed a method of procedure, all they have got to demand is that their Legislature shall offer appropriate and specific amendment, amending that provision of the Constitution. They can thus change it, if they so desire. The people are not bound, any longer than they are willing to be bound. They have an ample remedy in that method described as peaceable revolu- tion. The Legislature might submit a call, asking the people if they desire a Conven- tion in a method different from that prescribed in the Constitution, and I believe that if the people act upon it, the call would become valid, because of the action of the people. But before the people acted, the call would be invalid. It would be the action of the people, which would put life in it. Outside of that I say the people have a rem- edy, because they have the right, under the provisions of the Constitution, to have sub- mitted an amendment of the specific nature desired. Why, sir, if you look at the modern Constitutions you will find, in many of them, a statement made that a convention called to amend and revise the Constitution shall submit said Constitution to the people. Were their hands tied? Can you tie them one way and not tie them the other? Had they thereby surrendered power, or merely prescribed a method of procedure — which they can change at any time in the proper manner. Mr. Thom: If the constitutional method of amendment is exclusive, and the Con- stitution contained an unlimited power in the Constitutional Convention, how can the people, if they desire to, limit a Constitutional Convention. Mr. Meredith: I have already answered that. I have stated that they can do it by specific amendment. They could change that very feature, as they can change any other feature of the Constitution by specific amendment. It was wise to have these two lines of procedure, because they could get rid of the necessity of a Constitu- tional Convention, and would have specific amendments made. If they wanted a Con- stitutional Convention they could first, by specific amendment, provide what should be the nature of the Convention. But in this State they have never intimated, except hy the act of 1849, that it was necessary that a Constitution should be submitted to the people. That act not only asked the people whether they desired a Convention, but also specified that the Convention, if called, should submit the Constitution. The language in our present Constitution as to the calling of a convention, is almost v/ord for word that contained in the Iowa Constitution. The Supreme Court of Iowa has declared what would be the nature of a convention called under the pro- vision of the Constitution of that State. In the case of Koehler et al. vs. Hill, 69 Iowa, on page 555, the court said: We deem it sufiicient to say that if there is any provision of the Constitution which should be regarded as mandatory, it is where the Constitution provides for its own amendment otherwise than by means of a convention called for that purpose. The powers of a convention are, of course, unlimited. The members thereof are the repre- sentatives of the people, called together for that purpose. Hence we have a construction of the language of a Constitution similar to our own. Mr. President, the hour for adjournment has nearly arrived. I wish to thank this body for its kind attention to my remarks. I have felt earnestly - on this subject, be- cause I have appreciated the gravity of the question. I believe that a Constitutional DEBATES OF THE COXSTITUTIOXAL CONVENTION OE VIRGINIA. 3245 Convention, called without any express restriction of its power, is the gathering of the people, and with sovereign power. But, Mr. President, the having of a power and the exercising of it, are two different things. I am like the gentleman from Lancaster in that regard. I should unhesitatingly submit any and every Constitution, unless I thought that the circumstances that surrounded me justiSed a different course of procedure. We are told that the constitutions of the Revolutionary period were not submitted, because of the emergency then pressing upon the people. Sir, have we not equal justification? What brought us here? What brought us here but a desire to get relief, as far as we lawfully can, from the provisions of the Constitution of the United States as to negro suffrage? What called us here, I say, except that we should lift from our people the burden of that wrong? Who more eloquently depicted those wrongs than my friend from Norfolk, when he said that we were living in mental restriction and moral degredation? And he begged that, to the uttermost limit of our power, Vv^e should act so that we could keep future generations, at least, from similar sin and shame. Sir, can any emergency be greater than that that now presses upon this State? Is an emergency that was created by a three pence tax on a pound of tea, although it may involve a great question of taxation, as great as the circum- stances that tend to produce the moral degradation of a people, and which press down upon us the mental restraint and lack of freedom of thought under which we have struggled and suffered. Is the great question of States' rights a higher one than a man's moral character and the character of the children that will come after him? Shall we take any risk under such circumstances? The people of South Carolina and Louisiana and Mississippi could have carried their secessional constitutions before the people, if they had not thought that there should be immediate action. My friend from Pulaski said that he would vote to proclaim if it was necessary. Sir, let the question be decided by those of us who have struggled under it, and who have suffered. We tell you that we know the danger of submitting this instrument to 148,000 negroes, backed and encouraged by the power of the v^^hite men of this Stare, organized and unorganized, who may be affected by it. We know that if it is defeated we must re- main in the slavery that comes from being prevented to exercise freedom of thought. Is not the emergency sufficient? Can there be anything that could more fully justify men to take any" risk in order to be relieved from the conditions under which we now live, the desire to save our people from fraud by which they have been surrounded for years, and lift up this old State to a condition of mental freedom which once made it the vanguard of the nation? Sir, I ask for our children's sake that we take no risk. Sir, for years Vv^e have been saying to the people that we were struggling under a Constitution forced upon us by the Underwood Convention. For years we have been justifying everything by the plea of the fear of negro supremacy. The people sent us here to work out our salvation — to relieve this State of all chance of such an evil. What shall we say to them if we now fail? In proclamation lies absolute safety. Any other cburse will be surrounded by danger. We can bring relief, if we will, to the old State. The people, appreciating the necessity, vs^ill justify our course. For these rea- sons I am for proclamation. (Great applause.) Mr. Flood: Mr. President, I send to the Clerk's desk a resolution which I desire to have read. The Secretary read as follovv's: That the Constitution framed by this body be submitted to such electorate as this body may determine for ratification or rejection. If this question is decided in the affirmative, then this body shall consider the question : "Shall the Constitution framed by this body be submitted to the whole electorate as now constituted for ratification or rejection?" If this last qT:iestion is decided in the negative, then this body shall consider the question: "Shall the Constitution framed this body be submitted to the electorate pro- vided for in said Constitution for ratification or rejection?" 3246 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. If the first question is decided in the negative, then this body shall consider the question: "Shall the Constitution framed by this body be ordained by this Convention?" Mr. Keezell: Mr. President, I offer the following resolution. The President: The Secretary will report the resolution. The Secretary read as follows: Resolved, That the roll shall be called, and as each member's name is called he shall announce his vote either for submission to the present electorate, for submission to the electorate provided under the proposed new Constitution, or for proclamation, as he may elect. If at the conclusion of the roll call neither of these propositions receive the voies of a majority of all the members elected to the Convention, then the proposition re- ceiving the least number of votes shall be dropped, and the vote shall be taken as be- tween the remaining two propositions, the one receiving the votes of a majority of all elected to prevail. The President: The resolutions will lie on the table and be considered in con- nection with the resolution offered by the gentleman from Campbell. The Chair was thereupon vacated until 4 o'clock. The Convention reassembled at the expiration of the recess, the President in the Chair. The President: The pending question is as to the disposition to be made of the Constitution after it has been completed, and the gentleman from Norfolk city toas the floor. Mr. Thorn: Mr. President and gentlemen of the Convention, I make my most s-ncere acknowledgement for the courtesy of a hearing upon this question. I realize that I had no right to expect that the time allotted for debate would be extended, and I would not now accept the concession were it not for my profound interest in the question and my profound appreciation of its far-reaching importance. As many and as great as have been the problems v/e have considered and determined, I regard the one that is to be decided to-day as transcending them all in importance, and as by far the mightiest in its influence upon the destinies of Virginia. The principles vv^hich we have engrafted upon the Constitution of the State may be retained or omitted from fu- ture Constitutions; but what we do to-day upon this question will furnish an endur- tng precedent upon the question of the power of conventions, and v/ill project its light or its shadow upon all the future. I trust I approach its consideration v/ith a due appreciation of its miportance and Vfith a true rsalization of my own solemn responsibilities, as one of the representa- tives of my people. I shall discuss first, the legal power; second, the moral right, and third, the political expediency of proclamation. I shall not make large reference to authority. I have not the time at my disposal, nor do I consider this a favorable forum for the critical examination of authorities and the careful exposition of them. I shall attempt to refer back the conclusion at vv^hich I have arrived to a few certain and simple principles, which I hope will address themselves to the approval of this Convention and easily meet with its acceptance. At the very threshhold of the discussion, I must pause to express my dissent from the conclusion reached by the gentleman who just preceded me, whose splendid pre- sentation of his side of this question challenges the admiration of every man in this Convention. But the apparition which has such terrors to his mind possesses no dread for me. He founded his argument upon the proposition that the liberties of the people are in greater danger from the legislative branch of this government, hemmed about as it is, by strict limitations, that they are from the unrestricted and unre- strained power which he asserts belong to this Convention. I cannot bring my mind to the acceptance of any such proposition. To me danger lurks in unrestrained power. It is not to be found to the same extent in the restricted power of the Legislature. DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OP VIEGIXIA. 3247 If we are able here to work our own will unrestrained by any limitation upon the form of our government for all time, or during the life of the Constitution, then truly we are in the presence of the greatest power which could work good as well as of the greatest power that could work evil upon our people. If we are here, able to make a good Constitution, and to put it, without limitation, upon the people, we are here able to make a bad Constitution and likewise enforce it upon an unwilling people. If we are here able to enlarge the charter of our people's liberties, we are likewise here with the power to destroj^ them. If we are able to find new principles which shall make for our people's welfare, we likewise possess the power to abolish the ancient charter of their freedom. If we possess any such power as is claimed for us by the gentleman from the city of Richmond (Mr. Meredith), then, by one stroke of our pen, we are able to abolish trial by jury and to wipe out the Bill of Rights of Virginia. If he be right, we have no limit to our power, except such as is established by the Constitution of the United States. The apparition then, if there are apparitions In this case, which makes me pause, is not the power of the Legislature, which says that we shall submit our work to our masters for approval or rejection; but it is the power that claims for us the right to put manacles upon the people who sent us into this hall. If it be true, as I think, that danger to our people is most to be feared from un- restrained power, then every intendment must be made in favor of the restricted power of this Convention. That intendment would then be in favor of the liberties of the people, and not in favor of the power of this Convention to oppress and destroy. This brings me to say to the gentleman from Hanover that I could not appreciate the an^aignment which he made here, in the argument he presented on day before 3'esterday, of the position taken by the gentleman from Fairfax. He said that the gentleman from Fairfax had worked himself up to the position of claiming that there v»"as no doubt upon the question of the powers of this Convention, and he assumed he had destroyed the argument which the gentleman from Fairfax presented, because the latter had not been willing to go beyond the assertion of a doubt as to the power of this Convention. If the power of this Convention to put a new government upon the people of Virginia is doubtful, then the fight of the submissionists is won, because it Is impossible to reconcile to any conscientious mind upon this floor the exercise of a doubtful power to put a new government upon the people of our State. The man who asserts conventional omnipotence has the burden upon him, not only of establishing the power, but of removing all reasonable doubts as to its exercises, because I take it to be true that no patriotic and no wise statesman in this body will, for an instant, con- sent to the exercise of a doubtful power in putting a new fundamental law upon the people of Virginia. Once teach me that our power is doubtful, and you have made it my conscientious duty to withhold my hand from its exercise. In order to persuade me to change, by our own unratified act, the ancient institutions of the State, to thus create conditions here that shall make or mar the future of our people, you must show me that I am exercising no doubtful povver, but that my charter to exercise it is writ- ten strong and clear in the authority which I get from my people. That being the principle which addresses itself to the conscientious acceptance of my ovrn mind, it marks the parting of the ways between myself and those who agree with me on the one side, and the gentleman from Richmond and those who agree with him on the other. I shall walk along the pathway pointed out to me by a certain commission from my people, and will not walk along the pathway that may lead me into a tyrran- rous exercise of power the people of Virginia never intended to grant. I will accept no doubtful commission to put a new form of government upon the people of the State. The gentleman from Richmond finds terrors only in that provision of the statute of Virginia which says that before a new government is put upon the State the people of Virginia must say vrhether or not they will adopt or reject it. Before we go into the discussion of the legal principles of this case, let me invite your minds to reflect upon the question which is the most patriotic attitude, that of the gentlemen in this Con- 3248 DEBATES OE THE CONSTITUTIONAL CONVENTION OF VIRGINIA. vention who would put the work of their own hands upon the people whether they will it or not, or that policy of the Legislature of this State which says: When you have made a new form of government for Virginia you shall submit it to the people to say whether or not it pleases them, I have not been able to agree with many of the gentlemen upon this floor upon what they call the recognition of the rights of the people. To them the all-important matter for the people was the question whether or not the people should have the right to elect justices of the peace or a judge of a court, or a corporation commissioner. To me these are small considerations in com- parison with the question whether the people shall have the right to say what shall be the form of government under which they shall live for thirty years. I give way to no man in my respect for the just rights of the people. I yield to no one in my purpose to retain a republican form of government in all its sense and all its power in Virginia; and I am willing to put the record of saying that the people shall speak as to what shall be their fundamental law against the record of those gentlemen who deny the people the right tO' say what shall be their fundamental law, and yet make a bitter fight upon this floor in order to obtain for them the right to elect their justices of the peace. Now, gentlemen, for a few moments I ask your consideration of the legal propositions bearing upon this question. What is the attitude in which we stand to the people of Virginia. Are we the people or are we the representatives of the people? Is the sovereignty of the people resident in us, or are we merely the agents of the people of Virginia, to whom we must look for the source and for the scope of our power? Gentlemen will, I presume, endorse the proposition that if we possess all the power of the people, the man who asserts it must feel it incumbent upon him to show that such is the fact. The man who contends that the members of this Convention have confided to them all the powers of the people of Virg'inia has the burden on him to point to the authority for that most exceptional condition of affairs. The people of Vir- ginia can confer upon us all their sovereignty, or they can confer upon us only a lim- ited portion of their sovereignty, I see in this hall to-day members of the General Assembly of Virginia. They stand before you as living illustrations of the fact that .the people may confer upon their agents only a part of their sovereignty, for the Legis- lature of this State enjoys only a limited sovereignty. I see before me a distinguished Senator of the United States from the State of Virginia. He stands before you as another embodiment of the proposition that the people may confer a limited portion only of their sovereignty. All of the illustrations known to us in government are illustra- tions of the limited authority in the agents of the people. If this Convention is omnipo- tent, it is the only instance in which the whole power of the people is surrendered and put into the hands of their agents. In that condition of affairs, I say that I lay it down as an incontrovertable propo- sition that the man who asserts that we have all the power of the people has placed upon him the burden of showing the chart under which we obtain it. The whole trend of scientific thought is against any such propositions. All the best considered deliv- erances of the judiciary of the country is against any such proposition. The critical text writers who have written upon this subject condemn any such proposition, and the whole legislative history of Virginia is against it. Mr. Cooley, in his work on Constitutional Limitations, repudiates it. He says: But no body of representatives, unless specially clothed with power for that pur- pose by the people when choosing them, can rightfully take definite action upon amendment or revision; they must submit the result of their deliberations to the peo- ple — who alone are competent to exercise the powers of sovereignty in framing the fundamental laTv — for ratification or rejection. When Mr. Cooley penned that passage, in a work which received this morning at the hands of the gentleman from Richmond an enconium, and which v/as quoted by him as authority, he had before him all the range of judicial utterances in this country from the beginning of our history until now, and his critical mind standing not in DEBATES OE THE COXSTITUTIOXAL COXVEXTIOX OE VIEGIXIA. 3249 the llerce conflict upon this floor where povrer is to be seized and exercised, but in the serenity of calm and non-partisan surroundings in commenting on them all, sums them up in the proposition that a Constitutional Convention brought together for the purpose for which we have been brought together, stands not in the position of abso- lute sovereignty, able to work its will for good or ill upon the whole people of the State during generations; but that it consists of men with limited authority, whose pov/er is to formulate and propose to the people what they think should be the funda- mental law, and then submit the v%-ork to the people for their ratification or rejection. I say, gentlemen, that it is necessary for us to look at our letter of attorney. It is necessary for us to examine the source of the authority that has been committed to us. It is necessary for us to look at the commission which we bear, from the people. We must examine the title deeds under which we exercise this great power which has been entrusted to us. Yv'e must see what the limitations are that they have placed upon us. There can be but two sources of lawful power. Some gentlemen say that there can be but one. My friend from Richmond Olr. Meredith) argued this morning that the only source of legal authorit:-- to change a Constitution of a people, when the in- strument to be changed has in it a power for its own amendment, is that instrument itself, and that every other power of amendment finds its sanction only in revolution. In that he disagrees with the great weight of authority. In that he repudiates a great principle v^■hich lies at the foundation of our State government — to-wit: that every power not surrendered in a State Constitution by a people, is reserved to them, and may be exercised through their Legislature. If there be a power in a Constitution for its ovrn amendment, then that must be only one, and not the exclusive method of amendment. For example: Suppose the Constitution of Virginia contained a power that a Convention assembled under an act of assembly, should have the power to make a new Constitution and should have the power to proclaim it; that it need not be submitted back to the people for their ratifi- cation or rejection. Suppose it provided further, that that povrer of amendment went to the extent of power to change the whole instrument. Is it possible for us to hold for a moment that the people of this State would not still have the power to send a convention of limited powers into this hall, which should not possess the power of proclamation, which should not possess the povrer of destroying the Bill of Rights; which should not possess the power of abolishing trial by jurj', but which should be bound by such limitations as the Legislature of Virginia should propose and the people of the State should, by their vote, endorse? I say is it possible to conclude that, because a Constitution contains unlimited power, that thereby it is for all time, bind- ing upon the people and upon their children and their children's children forever, that there is no peaceful right, that there is no legal power for the people in a peace- ful and legal way, assemble a convention with limited power to make certain and restricted change in their Constitution? My friend this morning, when he was brought face to face with that proposition, said: There is a power to make limited changes in the previous section of this Constitution. That is merely begging this question. For my supposition is this: Suppose there is a Constitution containing nothing but unrestricted power? Would it be possible for a moment to contend that there resides nowhere in the people a legal right to put a restriction upon the agency, the men who are to change their Constitution? Suppose, on the other hand, that the only power contained in a Constitution is a ver^* limited and inadequate one. Would there be still no power in the people by a peaceful and legal method, to assemble a Constitutional Convention with powers large enough for the needs that might develop in the judg- ment of these people? I say in the nature of things the power contained in a Consti- tution for its own amendment must be only one of the methods by which the people may act. It is not the exclusive method by which they must do so. It is not neces- sary to relegate them to revolution in order that the?' may make, under the reserved powers which they have, any changes in the fundamental law which they may find necessary for their interest and welfare. 3250 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIEGINIA. If that be so, then let us see what those two methods are. In the first place, there Is the method which is contained in their Constitution. The people always have a right to adopt that method. Any effort on the part of the Legislature to abridge it or to destroy it is unquestionably null and void. That power is preserved to them as one of the covenants which they make with each other, and is available to them for all the time that the Constitution lasts. From a for- getfulness of that proposition, from a failure to realize exactly the position in which we stand, seems to me to grow much of the confusion of thought which has been apparent, at least to my mind, in the discussion of this question. If the people undertake to exercise a constitutional method of amendment, then it is beyond the legislative competency to limit or destroy the constitutional method. But suppose' they do not do that. Suppose, that for some reason in coming generations, that power is objectionable to the people; suppose in their changed condition it is necessary for them to exercise an enlarged or a restricted power of constitutional amendment. How do they do that? They do that by raising, through a law proposed by the Legis- lature, acquiesced in and ratified by the people, a convention or some other method of constitutional amendment and revision. Mr. Meredith: I do not know that I exactly understand you. I think I do, but I wish to make certain. Do I understand you to contend that while there may be in a Constitution a prescribed method of procedure of amendment or revision by a Con- stitution, that that does not limit the Legislature as to its method of procedure; but simply that if it does take that method it must meet the prescribed form? Is that your argument? If so, I v/ould like to ask this: Do you contend that under the pres- ent Constitution, that as the Legislature has rights outside of that Constitution to take such methods as it may see fit, that any Legislature can submit an amendment to a Constitution, and if that effort is made,- could it not be enjoined previous to its adoption? I do not mean after its adoption, but previous to its adoption. Mr. Thorn: I do contend, Mr. President, that notwithstanding the power in a Constitution for its ov/n amendment, the Legislature may inaugurate steps for an amendment by another method. Avxd I am glad to be reminded by the question of tli8 gentleman, of a fallacy v/liich it seems to me, exists in his argument to-daj^ and which, if he had not interrupted me, I might have overlooked. Mr. Meredith: Before you go on v.'ith that point, v/ould you mind answering that part of the question which I put. Do you contend that the Legislature of Vir- ginia can submit an amendment to the Constitution when it is only recommended by one Legislature, and not by two? Mr. Thorn: I thought I had answered that. I will say that I think they could. The fallacy, which seems to me, exists in the gentleman's position is this: He speaks of what the Legislature may do. He speaks as if it were a question of legis- lative interference. The question is not what the Legislature may do, but what the people may do through their Legislature. When the question arises between the Convention on the one hand and the Legislature on the other, the tendency of my friend's mind is always to array together the Convention and the people, with the Legislature alone on the other side. Mr. Glass: Does he mean to contend that the people may do anything the people please to do through the Legislature, notwithstanding the fact that it may be in con- travention of the express terms of the Constitution? Mr. Thom: No, sir; not anything they may please to do, but anything they may please to do about the making of their Constitution; and I will say to my friend that the most striking argument I have heard to show that fact, is one which he presented in the first two days in this Convention on that very subject, and on this very line. My friend here, aroused to the finest of his frenzy, read that clause in the Under- wood Constitution, which says: Provided, that no amendment or revision shall be made which shall deny or in DEBATES OE TELE COXSTITUTIOXAL COXYEXTIOX OE VIEGIXIA. 3251 any way impair the right of suffrage or any civil or political right as conferred by this Constitution, except for causes which apply to all persons and classes without distinction. And my friend said that he stood here upon this floor superior to that provision, and if he was hound to accept it and it should he carried out, that he would resign his commission, and go back to his people. Mr. Glass: My friend will allow me to interrupt him. The point I made there was that one Constitutional Convention should not bind another Constitutional Con- vention, and not that a Constitutional Convention could not bind the action of a Legislature. They are two very different and distinct propositions. Mr. Thorn: It is not a Constitutional Convention; it is a Constitution, and every act of a people in one generation or at one time, which attempts to fetter or destroy the power of a people to change their government in eluj way they see fit, is ultra vires and void. If the gentlemen accepts as binding the provision of the Constitution to which he alludes, he must give up a provision of the Bill of Rights. The Bill of Rights declares that it is an inalienable right of the people to alter or amend or change their government in any way they see fit. Mr. R. Walton 3.Ioore: May I say to the gentleman that the proposition he is now announcing is a proposition laid down with great emphasis by the Mississippi cotirt in the authority relied on this morning by the gentleman from Richmond. Mr. Thorn: Yes, sir. It is not only laid down by the court of Mississippi, but laid down by other courts in the best-considered cases in this country. Mr. President, I promised not to refer much to authorties; therefore, I am not wearying you by doing so. The authorities exist for these propositions I am announc- ing, but they are so deeply set upon the bedrock foundation of truth and justice and the rights and just powers of the people, that it is unnecessary to adduce any authority in their support. I claim, Mr. President, that no one Constitution has a right lo fetter, to impair, or to destroy the power of the people to change their constitutional government in any way they see proper. If that be not true, then it is time to abolish your Bill of Rights, and to abandon the great foundation principles of our government. We then may look for the letter of attorney of this Convention, to one of two sources. Either to the Constitution which, in this case, contains a power of its own amendment, or if that be not applicable, then we may look to the other possible source of attornerv — • an act of the General Assembly ratified by the people. It is not because it is an act of the General Assembly, but because the people have voted for it and ratified it — it is an act of the people and no longer an act of the General Assembly — we must forget the idea that the statute which the people have voted on and approved finds its only ratification and authority in the act of the General Assembly; it becomes as soon as voted on and approved the act of the people, as powerful and as supreme, as the Con- stitution of the State, which springs only from the same great source. Now, let us look at those two possible sources of pov>-er, and see what our au- thority is. First, the Constitution. The Constitution provides that the General Assembly shall submit to the people of this State the question, "Shall there be a Convention to revise the Constitution and amend the same?" What does that mean? What au- thority does it confer, if any? I, at one time, was of the opinion that that language conferred definite povrer to deal with the Constitution and make it the completed instrument and binding upon the people. In that position, I have been shaken hj study and reflection. The argu- ment in favor of it is that in the preceding section a method is created which is re- quired to be submitted to the people, and this section of the Constitution is silent as to whether the Constitution shall be submitted or not. That is the argument in favor of it. The argument against it is that it has been construed to the contrary during 3252 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. the whole legislative history of the State of Virginia. It has been twice in the history of this State, and at four different terms of the Legislature, construed to have no such meaning. In the General Assembly which met in 1827-'28, the question was sub- mitted to the qualified voters of the State: "Shall there be a Convention to amend the Constitution of this Commonwealth?" If the language in our Constitution — "Shall there be a Convention to revise the Constitution and amend the same" — confers the power of completing the instrument and making it the final act of the people, then that question submitted in 1828 vt^as just as final and confers the power to amend the Constitution and make th© amendment the completed instrument. But what was done? At the very next session of the Legislature it was pro- vided that the Convention which v^^as to assemble should consider, discuss, and propose a new Constitution, and that the Constitution that vv^as so adopted should be submitted to the people for ratification or rejection. And what did the Constitu- tional Convention do? Mr. Robertson: Will the gentleman please sta.te Vv^hether that was done after the election had been held? Mr. Thorn: At that time it vv^as after the election authorizing the call of a con- vention, but before the actual call was made. I am speaking of the Convention of 1829 novf. Mr. Robertson: The second act was passed after the Convention had been called, as I understand. Mr. Thorn: What did that Constitutional Convention do? Its final act was to resolve: That the President of this Convention do certify a true copy of the amended Constitution to the General Assembly now in session, and that the General Assembly be, and they hereby are, requested to make any additional provisions by law which may be necessary and proper for submitting the same to the voters thereby quali- fied to vote for members of the General Assembly. The very act v/hich required the submission, authorized the submission to the extended electorate. And what was done in 1849-'50? Mr. Glass: Do you contend that the act was binding upon the Constitutional Convention. Mr. Thorn: The point I am arguing now is that there has been twice in the his- tory of this State a legislative interpretation of whether the power to amend was a final and definite power to complete the amended instrument and not submit it to the people. And I say that it is again interpreted in the act of 1850, which provided that "the question shall be submitted, 'Shall there be a Convention to amend the Consti- tution of the Commonwealth? ' " and in the very same act which submitted that question, it is provided that "the persons who shall be elected shall meet in conven- tion" to "consider, discuss, and propose a new Constitution," and that the work of that Convention should be submitted to the people. So that tv/ice in the legislative history of this State that power to amend has been construed as not conferring final and definitive power, but as being equivalent merely to the pov/er to propose and submit. I will borrow, for this occasion, an argu- ment presented by the distinguished member of this Convention from Staunton, in giving an illustration of what these words mean when there is a commission ap- pointed to revise and amend the Code. Such language, in the connection just referred to, is never construed to give to the commission appointed, the power to act finally upon the revision and amendment, but merely to submit their work back to the Gen- eral Assembly. Mr. Barbour: In the case just cited is not that true because the Legislature has no pov\^er to delegate its legislative authority? Mr. Them: But that does not create the meaning of the words "to revise and amend." It is a question of definition of terms, and not a question of power. Why DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 3253 are these same words used in the statute appointing a commission to revise and amend? What do they mean? They meant a restricted power when applied to a commission from the Legislature. They meant a restricted power in 1829, when they were applied to a convention of the State, and they meant a restricted power in 1850, when likewise applied to a convention of the State. Mr. Meredith: Is it not a rule of construction that the language used as confer- ring power in the Constitution would be construed differently with the Legislature conferring it upon a subordinate body? Mr. Thorn: I do not think so. Mr. Meredith: I can give you references on that subject. Mr. Thom: I do not believe in the authority of your references. I think that language, whether used in a statute or in a Constitution, means the same thing, and that it will, if there is any difference, be construed more strictly in the Constitution, which is intended to confer the great power of life and death of the people's govern- ment, than it would be as used in the Legislature of a State, which is a mere tem- porary expedient, and can be easily changed by the people. But this very language has been interpreted by one of the highest courts in this country, where there was one act submitting to the people the question of "whether there should be a Convention to amend their Constitution," and after that question had been answered in the affirmative, in the next act, providing for the election of members a requirement that the work of the Convention should be submitted. The language in this first act was held to confer, not a definite and final power, but simply a power to "propose." Now, that being the case, is there not a doubt, a rational and a reasonable doubt, as to whether our Constitution confers a power to finally act upon these amendments which we shall propose. But, irrespective of that, I contend that we have cut ourselves off from following the power contained in the Constitution by the fact that we have solemnly determined not to qualify under this Constitution by taking the oath. The gentleman from Danville (Mr. Green), for whose acute mind every man in this Convention has the highest respect and admiration, stated that there was no escape from the obligation to take that oath, but to repudiate the au- thority of the Constitution, rise above it, and to rely simply upon the reserved rights of the people. I shall not elaborate that point. I simply throw it out, as it has been already argued upon this floor. But I say to you that in my judgment the refusal of this Convention to take the oath when they came here, and to qualify under this in- strument, cut us off from the right to use any of the powers of this Constitution, and make us look elsewhere for the legal powers which we may exercise. Where does that put us? It throws us back upon the action of the people in ratifying the action of the General Assembly, and the limits of that action of the people is found in the act w^hich originated this Convention. The first of these acts sub- mitted the question: Whether there should be a Convention to revise the Constitution and amend the same, and as that, if my argument is sound, does not confer the power to definitely act upon the Constitution, we must also consider the next act, which lim- ited the powers which we might exercise. The people accepted and ratified that act, with its limitations upon it. When we look, then, to the source of our authority and find that there has been put into the series of acts upon which as a whole, we have to rely for our presence in this chamber, and for our power, a restriction upon our pov/- ers. I claim that it is a most doubtful question whether we possess the power of life and death to all the highest rights of the people and the power by our own arbitrary will, to destroy the form of government of the state. But I must hurry on. There is another point which I want to discuss. I have merely had an oppor- tunity of throwing out a general line of thought on the question of this legal power. I come now to Tvhat is, to me, a more solemn and a more imperative considera- tion than any question of la,w. I come now to whether or not we have the moral right to proclaim this Constitution. Gentlemen, large powers have been claimed by this body as the representatives of Virginia. We have been told that we represent 3254 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. her sovereignty. I cannot acquiesce in that proposition except to a limited degree. But there can be no question that we represent, on this proposition, the morality of the State. Our conception of moral principle is going to be the measure of the public standard of morality in the State of Virginia. The morality of our State should reach its high-water mark in this Convention. If we have a low conception of what our moral duty is, then we cannot expect a high moral standard from those people that look up to us, and will follow in our footsteps. We find that out of the one hundred members there are eighty-eight Democrats in this Convention. We find that we not only have the power, but the responsibility, of the work of this Convention. How were we sent into this chamber? Did we accept the Democratic nomination? Did we accept the Democratic help in our election? If we did, and if the Democratic party has made a pledge, through whom is that pledge to be kept or broken? In whose hands is it. Whatever pledge the Democratic party has made, to whom is it at last confided. Who can keep that pledge if we violate it? Who can violate it, if we keep it? A solemn responsibility rests upon us. Let me see whether one was made, and what that pledge is. In Convention at Norfolk, after two unsuccessful attempts to secure from the people of Virginia a Constitutional Convention, these resolutions were adopted: Whereas, the General Assembly of Virginia has submitted to a vote of the people the question of the calling of a Constitutional Convention, and whereas, it is the evident desire of the white people of Virginia to amend and revise the present Constitution. Resolved, That the Democratic party in Virginia, in Convention assembled, en- dorses the action of the General Assembly, and earnestly urges the people of Vir- ginia to vote on the fourth Thursday in May for calling a Constitutional Convention. Resolved, That it is the sense of this Convention that in framing a new Constitu- tion no effort should be made to disfranchise any citizen of Virginia who had a right to vote prior to 1861, nor the descendant of any such person, and that when such Constitution shall have been framed it shall be submitted to a vote of the people for ratification or rejection, and the Democratic party pledges that the expenses incident to a Constitutional Convention shall be kept down to the lowest possible figures. The language "the people" is used four times in these resolutions. In the first place, it recites that the General Assembly of Virginia has submitted to a vote of "the people" the question of calling a Constitutional Convention. To what people was that vote submitted? To the whole people. And in the very next clause there is a distinction drawn between "the people" to whom it was then submitted, and the "white people" of this State, by reciting that "it is the evident desire of the white people of Virginia to amend and revise the present Constitution." In other words, "the people had been defined once as those who had the right to vote on the question of calling a Convention, and that is immediately contrasted in the very same sentence with the "whit© people," who are thus defined as being different from the people who were then entitled to' vote. Then the resolution goes on to urge "the people" of Virginia to vote for the call- ing of this Convention, meaning all the people of Virginia, and finally pledges that the Constitution, when framed, shall be submitted to a vote of "the people" for ratifi- cation or rejection — meaning, at least technically, the people to whom the call had been submitted, the people who were invited to vote for a Convention, and the people who were contradistinguished from the white people of the State. So that, technically, I claim the pledge is to submit this Constitution to the whole people; but I can well understand the argument made here by the gentleman from Lynchburg, that it was not intended to submit that to the 146,000 negroes. I have no quarrel with people who take the other view from myself on that question. But I say this: The pledge was to submit the Constitution to some people, whether they be white people, or all the people of Virginia, and the pledge was that it should not be proclaimed. Whatever may be the difference of opinion between us as to the con- DEBATES OP THE COXSTITUTIOXAL COXVEXTIOX OF VIEGimA. 3255 stituency to whom it was to be submitted, it is certain that there was a pledge to submit it to somebody, and that it should not be proclaimed. There was then a dis- tinct pledge made by the Democratic party against proclamation. We may differ as to the constituency to whom the Constitution is to be submitted, but we cannot differ on the question that there was a pledge against proclamation. Now, gentlemen, what was the object of that pledge? What Y\^as the object of put- ting it into the resolution? It was to obtain the votes of the people of this State in favor of holding a Constitutional Convention. It was put into the platform under which the Democrats of Virginia went into that campaign, and it was put there for the purpose of securing the votes of the' people of Virginia in favor of holding a Con- stitutional Convention. And not only that. It was not put there by chance. It was not put there by a Convention called for some other purpose. In this connection I invite attention to the language of the call under which that convention was assembled. I quote from a speech delivered on this floor by the gentleman from Lynchburg (Mr. Glass) : The chairman of the Democratic party in Virginia issued his official call, author- ized by the State Central Commttee, for a convention to assemble at Norfolk, and in that call he set out two distinct propositions. That that convention was called: for what purpose? For the purpose, first, of sending delegates to the National Demo- cratic Convention at Kansas City; next, to determine whether or not the Democratic party should make the call for a Constitutional Convention a party issue, and that was all; and that was all the authority that Convention had when it assembled at Norfolk, Therefore, it is impossible to claim that what was done in that Convention was a matter beyond its power. It was called for the purpose of making this Convention a party issue, and when it was called for that purpose, the Democratic party had a right to say upon what terms it would make it a party issue. The terms were that after the Convention assembled and completed its work, that work should be sub- mitted to somebody — either the abridged or the unabridged electorate — but that it should be submitted to somebody for ratification or rejection. Now, gentlemen, let me put to you this proposition in morals: Many men in your State, perhaps many Republicans, were persuaded to vote for the calling of this Con- vention by the fact that that promise had been made by the Democratic party. Vv^e have got the goods. We have got the power which we asked at the hands of the people of Virginia. We are in this Convention by virtue of this pledge. We have had delivered to us the authority v\^hich we asked upon condition, and if we now break that pledge, we can find no justification in the forums of morals or of right. (Ap- plause.) Where is the power to release us from that pledge? Individuals all over the State of Virginia were persuaded to deliver their voice in favor of a Constitutional Convention by that promise — not only individuals, but communities v/ere persuaded to cast their votes to put this power. in our hands. Where is the power to release us from our pledge to those individuals and communities? Gentlemen claim that they can have their constituents meet in their separate localities and that those constitu- ents can release them. Let us examine that proposition. Suppose the county of Mecklenburg (represented here by my friend sitting near me) and the city of Norfolk constituted the whole of the State of Virginia. Suppose that the city of Norfolk had been consistently trying to have a Constitutional Convention, and that the county of Mecklenburg had been consistently opposing it, because it feared the power that harm might be done by the Convention when assembled. Sup- pose, under these circumstances, that Norfolk and Mecklenburg should meet, and Nor- folk should say to the county of Mecklenburg: "If you will vote for a Constitutional Convention, I pledge you that the result of its work shall be submitted to our joint vote for ratification or rejection. Suppose then, that the county of Mecklenburg did vote, under that pledge, for a Constitutional Convention, and after the Convention 3256 DEBATES OF THE CONSTITUTIONAL CONVENTION" OF VIRGINIA. was held the city of Norfolk were to meet and attempt to violate its pledge. I ask you if the city of Norfolk does not, under these circumstances, have an obligation to the county of Mecklenburg which the city of Norfolk cannot relieve itself of without the consent of the county of Mecklenburg_ I go further than that. I say there are individuals all over the State of Virginia whose votes were obtained by that promise. Men in the county of Prince William, men in the county of Fairfax, men in the county of Appomattox, and everywhere, were persuaded to vote for this Constitutional Con- vention in reliance on that pledge. I say further, gentlemen, that there is no political power resident in any part of, or in the whole party, after obtaining votes under that pledge to meet and repudiate it, and after they have gotten the goods to decline to pay the price they promised. Gentlemen, this is a solemn pledge, and neither a man nor a party, nor a people, can do anything but one, with a pledge, and that is to keep it. (Great applause.) Mr. Meredith: Since you have undertaken to discuss the moral question I would like to say this: It was stated by the gentleman from Pulaski when we were in the building across the way that he had on several occasions asked you as to whether you were in favor of submitting or proclaiming the Constitution, and that you de- clined to answer until after the passage of one of the articles of the Constitution — I forget which article it was — and that then for the first time, you expressed your views that it was wrong to submit it. Is that correct? Mr. Thom: You had better ask the gentleman from Pulaski for the explanation he gave me. He said that I went to him and consistently said from the beginning that there was neither a legal nor a moral right to proclaim. I do not remember the details of the conversations at all; .but I do remember this: That I said in the early part of the sessions of this Convention when there was a question between the two electorates, that I was not ready to consider or determine the question at that time, and that I would not take up or consider the powers of the Convention until I had seen the Constitution. I would not be willing to proclaim except under one condition — under the condition that would justify me, in my opinion, in taking my musket on my shoulder, raising a new flag, and making a revolution in this country. (Applause.) Mr, Meredith: But what I wish to know is whether there has been a change of view on your part in regard to submission, as stated by the gentleman from Pulaski. Mr. Thom: Not at all. There has been no change. Mr, Glass: Would the gentleman be kind enough to tell me what he meant by this language which he employed in discussing the oath question in the early stages of the Convention: When the members have qualified the Convention is a competent body without restriction on its powers to change the present Constitution, Mr. Thom: That is just what I explained a few moments ago when I said that at one time I thought the Constitution conferred the power to proclaim; but that sub- sequent investigation and consideration led me to believe that it did not. I explained that a moment ago. Mr, Glass: I beg the gentleman's pardon. I knew that in the early stages of the Convention he took the contrary view, and I went to the records just now to get his exact language. I was out of the hall v/hen he made his explanation, Mr. Westcott: I v/ish to ask the gentleman a question, and as interruptions have taken up so much of his time, I will move to grant him an extension of his time. Mr. Thom: I will soon be through, and I will be glad to hear your question. Now, gentlemen, I have nearly finished. I want it to be understood that I have arraigned no man who differs from me on this moral question, I do not undertake to be the keeper of my brother's conscience, I have lived with the members of this Convention now for more than ten months. I know that they are high-minded men. I know that they have high and patriotic purposes. There are men on the other side DEBATES OF THE COXSTITrTIOXAL COXTEXTIOX OE YIEGIXIA. 3257 of this moral question for Tvhose honor I would stake my life. I may illustrate by one man particularly, a man near vrhom I ^ras bom, who was the companion and friend of my childhood and my early manhood, and my friend to-day, and who has never had a dishonest thought. He thinks differently on this question from the views which I entertain. I bow before his splendid character, and do not arraign him for that difference. But, gentlemen, this is a question so plain to me, so absolutely within the region of plain morality, so far as I am concerned, that I cannot help being actuated by the considerations which I have expressed. I cannot, for myself, accept that view of morality, which, at any time or anywhere, will result in the violation of a sacred pledge, and one for which, as in this case, a valuable consideration has been given. I want to warn this Convention that the time may come when other people than ourselves, and with less high purposes than ours, may assemble in constitutional con- vention in this State. The very fact that we have made a wlolation of this pledge may be used as an argument by others who may one day be in power. They may claim that they have the right, which we are now claiming for ourselves, to proclaim a Constitution ruinous to our civilization. TVhat answer shall we make to them when they exercise that power, and they say to us, ■■You not only exercised that power, but you wiolated a sacred pledge in order to do it." Lei us remember, gentlemen, that we must set a high example to the young men in this State in the matter of our morality, in the matter of sacred regard for our pledges. Let us not for one moment violate them. Let us not go out of this hall with what some of us believe, the blight and curse of broken pledges on us, but when we come to vote, as we are now about to do, let us reflect that righteousness exalteth a nation, but that the sin of wiolated faith is a reproach to any people. f.Great applause.) Mr. Glass: Mr. President, I know it is the order of this Convention that we shall proceed to take a vote upon this question at half after five o'clock, and if the members of the Convention insist upon the observance of that order I shall not interrupt at this stage. But if I may be permitted for the space of five minutes to indicate to this Convention briefly what my attitude is upon this- question, I would be obliged to the Convention for the courtesy. 'Mt. President, it was not my purpose to say one word upon this question, as I have stated my views fully some months ago, when the subject was first brought to the attention of the Convention. I would not now say anything except that within the last few days gentlemen have risen here and, while disclaiming any purpose to be critical in what they should say, have, as a matter of fact, arraigned those of us who differ with them from a moral standpoint. Gentlemen who now see so plainly their line of duty that they stand amazed that anybody here may differ from their conception of morality, said months ago: """^ait until I can see your Constitution before I determine whether I shall vote for proclamation or submission." (Applause.) So far as I am concerned, it will be recalled that I stated in the very beginning that I did not want to see your Constitution in order to determine my attitude on the question of submission. I declared then that no body of Virginia gentlemen could frame a Constitution so obnoxious to my sense of right and morality that I would be willing to submit its fate to 146,000 ignorant negro voters (great applause) whose capacity for self-government we have been challenging for thirty years past. I said, furthermore, that I would never frame a Constitution that any Virginian might rea- sonably desire to submit to the arbitrament of such an electorate. Now, Mr. President, when I was elected a member of this Convention there was no mistake about the issue. My able, distinguished and popular competitor stated his position. He gave to the Xorfolk pledge, so-called, the same interpretation that my friend Rere (Mr. Thoml now gives it. I took issue with him squarely, and telegraphed from my bed of sickness in the State of Xew York, that I would not desire to represent a constituency which would commission me to come to Richmond for the avowed pur- pose of disfranchising a people whose enfranchisement we had denoiinced as the 20.5 — Const. Deb. 3258 DEBATES OF THE CONSTITUTIOiSrAL CONVENTION OF VIRGINIA. crime of the century for thirty years, and then require me to submit the work of this body to their arbitrament. Mr. Thom: My friend is referring to me as putting an interpretation on this pledge. Did he hear me say that I had no quarrel with any man who chose either one of the electorates, but that I was opposed to the views of anybody who* supposed when we said "submit" to the people we meant proclaim? Mr, Glass: I did not hear my friend when he made that statement. Mr. President, my five minutes have expired. ("Go on! Go on! ") The President: The Secretary will read the amendment offered by the gentle- man from Rockingham. Resolved, That the roll shall be called, and as each member's name is called, he shall announce his vote, either for submission to the present electorate, for submis- sion to the electorate provided under the proposed new Constitution, or for proclama- tion, as he may elect. If at the conclusion of the roll call, neither of these propositions receive the votes of a majority of all the members elected to the Convention, then the proposi- tion receiving the least number of votes shall be dropped, and the vote shall be taken as between the remaining two propositions, the one receiving the votes of a majority of all, elected to prevail. The President: The question is on agreeing to the amendment offered by the gentleman from Rockingham (Mr. Keezell.) Mr. Flood: I accept the amendment offered by the gentleman from Rockingham as a substitute for my own, and withdraw mine. The President: The question is on agreeing to the amendment offered by the gentleman from Rockingham (Mr. Keezell). The question having been taken, the result was announced — ayes, 41; noes, 47 — as follows: Ayes — Messrs. Allen, Anderson, Manly H. Barnes, Blair, Bolen, Braxton, Bristow^ Brooke, Cameron, Campbell, C. J.; Campbell, *P. W.; Chapman, Davis, Earman, Eggles- ton, Flood, Gilmore, Gwyn, Hancock, Harrison, Ingram, Keezell, Lincoln, Marshall, Moncure, Moore, R. Walton; Moore, Thomas L.; O'Flaherty, Pedigo, Pettit, Phillips, Richmond, Rives, Robertson, Smith, Summers, Thom, Thornton, Waddill, Wise, and Wysor — 41. Noes — Ayers, Barbour, Barliam, Thos. H. Barnes, Boaz, Brown, Carter, Cobb, Cris- mond, Dunavv^ay, Epes, Fletcher, Garnett, Glass, Gordon, B. T.; Gordon, James W.; Gor- don, R. L.; Green, Gregory, Hardy, Hatton, Hooker, Jones, Clagget B.; Jones, G. Wj Kendall, Lawson, Lindsay, Lovell, Mcllwaine, Meredith, Mundy, Orr, Parks, Pollard, Portlock, Quarles, Stebbins, Tarry, Turnbull, Walker, Walters, Watson, Willis, Withers, Woodhouse, Yancey, and the President — 47. The following pairs v/ere announced: Mr. George K. Anderson with Mr. Miller; Mr. Hamilton with Mr. Westcott. The first-named gentleman in each instance v/ould have voted in the affirmative. Mr. Gillespie: On the main question under consideration I am paired with the gentleman from Russell (Mr. Stuart). I voted, and I ask leave to withdraw my vote under the circumstances. Mr. Daniel: I have a general pair with the gentleman from Fauquier (Mr. Hun- ton) ; and I withdraw my vote for similar reasons to those given by the gentleman from Tazewell (Mr. Gillespie). The amendment was rejected. The President: The question recurs on the first proposition stated in the resolu- tion offered by the gentleman from Campbell (Mr. Daniel), which the Secretary v/ill read. ^ Shall the Constitution, framed by this body, be submitted to the whole elect- orate, as now constituted, for ratification or rejection. The following pairs were announced: DZBAIZ5 or THE COXSIIirilOXAL COXVZXIIOX or YIECtIXIA. 3259 :Mr. Daniel vith. Mr. Hunton; Mr. R. WalTon Moore with Mr. Fairfax; Mr. TVaddill with Mr. Bouldin; Mr. Hooker with Mr. Vincent; Mr. George K. Anderson with Mr. Miller; Mr. Gillespie with Mr. Stuart; Mr. Hamilton with Mr. Westcott. The first-named gentleman in each instance would have voted in the affirmative. The question having been taken, the result was annotmced — ayes, 33; noes, 52 — as follows: Ayes— Allen. Anderson, W. A.; Blair. Bolen, Bristow, Brooke, Campbell, C. J.; Campbell, P. W.; Chapman, Crismond, Davis, Earman, Flood, Gilmore, Gwyn, Hancock, Harrison, Keezell, Lincoln, Marshall, Moore, Thomas L.; O'Flaherty, Pedigo, Pettit, Phillips, Portlock, Rives. Robertson. Smith, Summers, Thom, Y^ise, Wysor — 33. Xoes — ^Ayers, Barbour, Barham, Barnes, Manly H.; Barnes, Thomas H.; Boaz, Braxton, Brown, Cameron, Carter, Cobb, Dunaway, Eggleston, Epes, Fletcher, Gar- nett, Glass. Gordon, B. T.; Gordon, James Vr.; Gordon. R. L.; Green, Gregory, Hardy, Hatton, Ingram, Claggett B. Jones, G. W. Jones, Kendall. Lawson, Lindsay, Lovell, Mcllwaine, Meredith, Moncure, Mundy, Orr. Parks. Pollard. Quarles. Richmond. Steb- bins, Tarry, Thornton, Turnbull, Walker, TTalter, TVaison, Willis, Withers, Woodhouse, Yancey, and the President — 52. The first branch of the resolution was rejected. The President: The question is now on the second proposition contained in the resolution. Shall the Constitution, framed by this body, be submitted to the electorate pro- vided for in said Constitution for ratification or rejection. The Question hawing been taken, the result was annoimced — ayes, 24; noes, 5S — as follows: Ayes — Manly H. Barnes. Bolen. Brooke, Cameron. C. J. Campbell. Chapman, Epes, Glass. Gwyn, Hancock, Harrison. Hooker, Ingram, Lovell. Moncure, Pettit, Pollard, Portlock, Rives. Smith. Thom. Thornton. Watson, and Wise — 2-i. Xoes — Allen, George K. Anderson, W. A. Anderson, Ayers, Barham. Thomas H. Barnes. Blair, Boaz, Braxton. Bristow, Brown. Campbell, P. W.: Carter. Cobb, Cris- mond. Davis, Dunaway, Eggleston. Fletcher. Flood, Garnett, Gilmore, B. T. Gordon, James W. Gordon, R. L. Gordon, Green. Hattcn. Claggett B. Jones. G. W. Jones. Kee- zell, Kendall. Lawson, Lincoln. Lindsay. Marshall, Mcllwaine. Meredith, Thomas L. Moore, Mundy, O'Flaherty. Orr, Parks. Phillips, Quarles, Richmond. Robertson. Steb- bins. Tarry, Turnbull. Waddlll. Walker, Walter, Willis. Withers, Woodhouse, Wysor, Yancey, and the President — 5S. The following pairs were announced: Mr. Barbour with Z\Ir. Vincent: :Mr. Hunton with Mr. Daniel; Mr. Gregory with Mr. Bouldin; Mr. R. Walton Moore with Mr. Fairfax; Mr. Hamilton with Mr. Westcott. The first-named gentleman in each instance would have voted in the affirmative. Mr. Gillespie: I desire to say that upon this question, if Mr. Stuart were pres- ent, he would vote ''nay." He is paired with me. but I decline to vote upon the ques- tion at all. Therefore, I suppose neither vote should be counted. The second proposition of Mr. Daniel's resolution was rejected. The President: The vote wiU now be taken upon the third proposition contained in the resolution, which the Secretary will read. Shall the Constitution, framed by this body, be ordained by this Convention? The question having been taken, the result was annotmced — ayes, 47; noes, 3S — as follovrs: Ayes — Ayers. Barbour, Barham. Thomas H. Barnes, Boaz. Braxton. Brown. Camp- bell. P. W. : Carter, Cobb, Dunaway, Eggleston. Fletcher, Garnett. Gordon, B. T.; Gor- don. James W. : Gordon. R. L.: Green, Gregory. Hardy. Hatton. Ingram. Jones, Clag- gett B,: Jones, G. W.; Kendall. Lawson, Lindsay, Lovell, Mcllwaine, Meredith, Mundy, 3260 DEBATES OE THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Orr, Parks, Pollard, Quarles, Richmond, Stebbins, Tarry, Thornton, Turnbull, Walker, Walter, Willis, Withers, Woodhouse, Yancey, and the President — 47. Noes — Allen, W. A. Anderson, Manly H. Barnes, Blair, Bolen, Bristow, Brooke, Cameron, Campbell, C. J.; Chapman, Crismond, Davis, Earman, Epes, Flood, Gilmore, Gwyn, Hancock, Harrison, Hooker, Keezell, Lincoln, Marshall, Moncure, Moore, Thomas L; O'Flaherty, Pedigo, Pettit, Phillips, Portlock, Rives, Robertson, Smith, Summers, Thorn, Watson, Wise and Wysor — 38. The following pairs were announced: Mr. George K. Anderson with Mr. Miller; Mr. Hun ton with Mr. Daniel; Mr. Stuart with Mr. Gillespie; Mr. Fairfax with Mr. R. Walton Moore; Mr, Bouldin with Mr. Waddill; Mr. V/estcott with Mr. Hamilton. The first-named gentleman in each instance would have voted in the aflSirmative. The third proposition of Mr. Daniel's resolution was agreed to. Mr. R. Walton Moore offered the following resolution which was referred to the Committee on Final Revision: Resolved, That as it has been determined to proclaim the Constitution, provision should be made for its recognition, when adopted, by the political departments of the government, and to that end the General Assembly should be convened at an early date. On motion of Mr. Withers, the Convention adjourned until to-morrow. May 30, 1902, at 10 o'clock A. M. FRIDAY, May 30, 1902. The Convention met at 10 o'clock A. M. Prayer by Rev. Jere Witherspoon, D. D. ' LIMITATION OF DEBATE. Mr. Barbour: Mr. President, I offer the following resolution, and ask its immedi- ate consideration: Resolved, That in considering the draft of the new Constitution as reported from the Committee on Revision and Schedule, speeches be limited to three minutes. The resolution was agreed to. FINAL REVISION AND ADJUSTMENT. Mr. William A. Anderson: Mr. President, T move that the report of the Commit- tee on Final Revision and Adjustment of the Various Provisions of the Constitution, and upon the Schedule, with the accompanying redraft of the Constitution reported by that committee, be taken from the table and considered by the Convention, section by section, and article by article. (At this point Mr. Walker took the Chair.) The Presiding Officer: The Chair understands that the report of the Committee on Final Revision, being a report of one of the standing committees, would, under the rules, go before the Committee of the Whole. Does the gentleman move to sus- pend that rule? Mr. William A. Anderson: Yes, sir; for this purpose I move to suspend the rules. The motion was agreed to. Mr. William A. Anderson: Mr. President, I have but a few Vv^ords to say in pre- senting this report to the Convention. The Convention has wisely adopted an order limiting the debate, and I shall endeavor not to transcend the limJts prescribed in that resolution. DEBATES or THE COXSTITL'TIOXAL COXVEXTIOX OF VIEGIXIA. 3261 The vrork v>-hicli was devolved upon the Committee on Revision by the Conven- tion involved careful, painstaking and exhaustive examination of the text of the Con- stitution as adopted by the Convention. I may say for that committee that with the utmost diligence and earnestness it devoted itself to that duty and that its work, I hope, will speak for the fidelity and carefulness of the examination which they gave to the language of the Constitution as adopted by the Convention. It proved to be a much more serious and laborious undertaking than was supposed by any member of the committee, or perhaps by any member of the Convention. Xo more valuable service can well be done, in connection with formulating ordi- nary legislation, and still more in connection with the formulation of the organic law for a Commonwealth than that which is devolved upon a Committee upon Har- mony. Revision and Adjustment. The proper, the clear, the concise expression of the will of the Convention is what is to be desired, and what can rarely ever be accomplished by any deliberative body where the different propositions are amended, perhaps, in the heat of debate without due consideration as to the language of the provision, and sometimes by reason of the want of such consideration the harmony of the instrument is disturbed and ic fails to express the real sentiment of the body that adopted it. In the discharge of its duty the committee had presented to them as a model that wonderful achievement of the human intellect and human genius, the Constitu- tion of the United States, perhaps, not only in its substance but in its form, the most admirable instrument that ever came from finite minds. We could not hope to achieve any such great success in the discharge of the duty devolved upon us as was accomplished by the Committee on Revision and on Harmony, appointed by the Convention which sat in Philadelphia, and framed the Constitution of the United States. Many of us supposed, and I supposed until comparatively recently, that James Madison, Alexander Hamilton. John Jay. and James Wilson, and other great jurists and statesmen and lawyers in that Convention formulated that instrument. But while it was largely the product of the minds of those great men, its language and style are largely the work of Gouverneur ]\Iorris. When you take the original draft of the Constitution as it went to that Com- mittee upon Revision, and compare it with the draft as it came from that commit- tee, at a glance you can realize the enormous service that has been done to the States of this Union and to the world by the faithful and able discharge of its duty by the Committee on Revision, of which Gouverneur ]\Iorris was the most efficient member. Your committee had this illustrious example before them, as an incentive to earnest efforts to accomplish similar results. They could not hope to attain any such degree of perfection as was achieved by their distinguished exemplars, but my colleagues on the committee, to whom we are indebted for whatever of improve- ment has been accomplished in the text or style of the instrument, have labored sedulously to make its language as clear, as concise and as truly expressive of the purposes of the Convention as possible. Without further words of introduction. Mr. President, I beg leave to submit the report of the committee and revised draft of the Constitution to the Convention, which I ask may now be read, article by article and section by section. The Bill of Rights was then taken up and read section by section by the Secre- tary. The sections down to and including Section 38 were read. Slight verbal changes were made, and unimportant amendments adopted, in certain instances without mate- rially changing the report of the committee. PERSONAL PRIVILEGE. 'Mr. Thom: ^.Ir. President, I rise to a question of personal privilege. I under- stand that in the remarks I made on yesterday, I woimded the sensibilities of some 3262 DEBATES OE THE CONSTITUTIONAL CONVENTION" OF VIRGINIA. of the gentlemen upon this floor. I greatly regret that any such impressions have arisen from anything I said. Certainly it was not my intention. I attempted to im- press upon my fellow-members the fact that I intended to neither question or to arraign anybody's motives, character nor patriotism. I was presenting the views which were controlling on me, and expressly stated that I did not intend to reflect on those who differed from me. While adhering to my own views of the question, so far as it affects and relates to myself and my action, I wish to emphasize the fact that I did not intend to im- peach the morality or high character of any one of my fellow-members, or to ques- tion the sincerity or honesty of his conclusions. I have reviewed the stenographic notes of my remarks, and while I think they fully exculpate me from any invidious criticism of my fellow-members, I have taken the liberty of modifying some of the language so as to remove any possibility of a construction that might be personally offensive to any one. My feelings towards the members of this Convention are those of great personal cordiality and high personal regard, and I shall be greatly pained if I have wounded them, or any of them, in any way. (Applause.) Mr. Glass: Mr. President, on yesterday, when the final vote upon the question of proclaiming or submitting the Constitution was taken, owing to a misunderstand- ing with a member of the Convention as to how he and I should vote upon that question, I asked and was granted leave to withdraw my vote. After a subsequent conference with that member I am at liberty to, and do now ask that my name be recorded upon the official record as having voted in favor of proclamation. (Ap- plause.) The hour of 2 o'clock having arrived, the Chair was vacated until 4 o'clock P. M. AFTERNOON SESSION. The Convention reassembled at the expiration of the recess, Mr. Walker in the Chair. When the hour for adjournment came, the various sections down to Section 55 had been considered. The Convention then adjourned until to-morrow. May 31, 1902, at 10 o'clock A. M. SATURDAY, May 31, 1902. The Convention met at 10 o'clock A. M. Prayer by Rev. W. T. Derieux, D. D. The Secretary called the roll and sixty-one delegates answered to their names. HOUR OF MEETING. Mr. Barbour: I move that when the Convention adjourn to-day at 2 o'clock, it adjourn to meet at 12 o'clock on Monday. The motion was agreed to. The remainder of the day's session was taken up with a consideration of the report of the Committee on Pinal Revision and the discussion of immaterial amend- ments to the various sections. The hour of adjournment having come, the Convention adjourned until Monday, June 2, 1902, at 12 o'clock M. The report of the Committee on Final Revision and Adjustment was considered in DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIKGINIA. 3263 Convention June 2, 3, 4, 5 and 6, and various amendments to the report were discussed and adopted. The Committee on Printing and Reporting v/ere authorized to revise and print the debates of the Convention. The Constitution, as revised, was adopted as the organic law of the State, June 6, by the following vote: Ayes — Messrs. Allen, George K. Anderson, W. A. Anderson, Ayers, Barbour, Bar- ham, Manly H. Barnes, Thomas H. Barnes, Boaz, Bolen, Bouldin, Braxton, Brooke, Brown, Cameron, C. J. Campbell, P. W. Campbell, Carter, Chapman, Cobb, Crismond, Daniel, Dunaway, Eggleston, Epes, Fairfax, Fletcher, Flood, Garnett, Gilmore, Glass, B. T. Gordon, James W. Gordon, R. L. Gordon, Green, Gregory, Gv/yn, Hamilton, Han- cock, Hardy, Harrison, Hatton, Hooker, Hubbard, Hun ton, Ingram, Claggett B. Jones, G. W. Jones, Keezell, Kendall, Lawson, Lindsay, Lovell, Marshall, Mcllwaine, Meredith, Miller, Moncure, R. Walton Moore, Mundy, O 'Flaherty, Orr, Parks, Pettit, Pollajd, Portlock, Quarles, Richmond, Rives, Robertson, Smith, Stebbins, Stuart, Tarry, Thorn, Thornton, Turnbull, Vincent, Waddill, Walker, Walter, Watson, Wescott, Willis, Wise, ¥/ithers, Woodhouse, Wysor, Yancey and the President — 90. Noes — Messrs. Blair, Bristow, Davis, Earman, Gillespie, Lincoln, Thomas L. Moore, Pedigo, Phillips and Summers — 10. Mr. Lindsay: Mr. President, I desire to offer the following resolution. Resolved, That a copy of the specially bound Constitution, and also a copy of the debates of the Convention, should they be printed by the Convention, be presented to each of the newspaper reporters who have regularly reported, for their respective papers, the proceedings of the Convention. The resolution was agreed to. Mr. Quarles: I move that the Constitution, as adopted, be referred to the Com- mittee on Enrollment. The schedule Vv^as completed and adopted, after which the Convention adjourned until June 7. r At the session, June 7, the Convention considered the ordinance providing for registration of voters under the new Constitution, and prior to 1904. After consider- able discussion it was adopted, when the Convention adjourned until June 25, 1902. WEDNESDAY, June 25, 1902. The Convention met at 12 o'clock, meridian. Prayer by Rev. W. R. L. Smith, D. D. Mr. Hunton: Mr. President, I offer the following resolution. Resolved, That the members of the Committee on Printing and Reporting are hereby appointed as revisers of the proceedings of the Convention and are empowered to hereafter take such steps as may be necessary to carry out such revision as was authorized by the resolution of the Convention adopted on Thursday, June 5th, and to make such contracts as are therein authorized. 2d. That the Treasurer of the State is hereby instructed and required to pay such warrants as may be drawn upon him for the payment of the work so authorized. The resolution was agreed to. TESTIMONIAL TO PRESIDENT. Mr. Cameron: Mr. President, I desire to ask that you vacate the chair for a few moments, and invite the gentleman from Rockbridge to assume your functions. (Laughter.) 3264 DEBATES OP THE CONSTITUTIONAL CONVENTION OF VIRGINIA. Mr. Cameron: I take great pleaure in offering the following resolution, which I desire may be read from the clerk's desk. The Secretary read as follows: Resolved, That the thanks of the Convention are hereby extended to the Honorable John Goode, president of this body, for the great ability, fairness, and efficiency which he has exhibited in the discharge of his duties, with our hearty good wishes for his health, happiness, and prosperity. Mr. Daniel: Mr. President, there is no need for any individual member of the con- vention to second the resolution which has just been offered, for I am quite sure that it truly interprets the sense of every member of this body, to whatever party he may belong. This is probably the last time that I shall have the honor to address the Chair during the continuance of the session of the Constitutional Convention, and in doing so, it is very grateful to me to recognize the pleasing part I have to perform, and for which I take this to be a suitable opportunity. I rise, sir, on behalf of my colleagues of this body to present to the president of this Convention a token, which I hold in my hand. It is a gold watch and chain. Upon the watch is inscribed. " To the Honorable John Goode, President of the Constitutional Convention of Virginia, of 1901-'2; With the Affection and Esteem of His Colleagues." The decorum of this convention, Mr. President, has not been exceeded by that of any legislative body that ever assembled in this Commonwealth. No stings have been implanted here in any heart which were not instantly withdrawn. Whatever untimely word may have been uttered by any member in the heat of debate, has long since been like the clouds which pass over us, and are remembered no more. While xMz- result is due, and must be attributed to the high character of the gentlemen who are members of this body, we must also recognize the reinforcement which we have had in our happy choice of a presiding officer; and in paying my poor tribute to the ability, the fairness, the courtesy and the unfailing sense of duty which has characterized him,, I know that I express not only the thought of his colleagues, but that of the people of this State, who have witnessed their labors. Mr. Goode, it is my privilege, sir, to hand you that token of esteem and affection of your colleagues. You have been our timekeeper while we have been here, and we hope that this type of our regard may long be yours. You have had a long life, in which you have borne the character which Virginia most esteems — that of an honest man who sought only to do his duty. (Great applause.) We are glad to know and to receive the assurance in your own vigorous form and pleasing countenance, that your labors may be yet extended for many years; certainly it is the devout wish of those who have shared them here that such may be the case. And vv^hen the years have more and more thickened upon you, we trust that your re- ference to this token may revive sweet memories of your service here, and that you ,may then find an old age serene and bright and lovely as an arctic night. (Great ap- plause.) The Acting President: The Question is on agreeing to the resolution offered by the gentleman from Petersburg. The resolution was unanimously agreed to. Mr. Goode: Gentlemen of the Convention, I am unable to find words with which adequately to express my sincere and unaffected thanks for the resolution of com- mendation and approval which you have just been pleased to adopt. Nothing should be more gratifying to any public officer in any capacity than to receive the approbation of those whom he has been called upon to serve. When I had the honor to be chosen to preside over your deliberations it was my highest ambition to meet all your just expectations and to measure up fully to all the requirements of the responsible position. In the administration of the duties of the Chair, I am fully ^ware that I have committed errors; but you have kindly overlooked them all, and if I have achieved any measure of success as your presiding officer it has DEBATES OF THE COXSTITUTIOXAL COXVEXTIOX OF YIEGIXIA. 3265 been due more to your generous support than to any merit of my own. From the commencement of your sessions to the present hour I have received nothing but kind- ness and courtesy at your hands. To have presided acceptably over a body like this is an honorable distinction of which I am very proud, and I shall cherish it until memory shall cease . to perform its functions. In the discharge of the delicate and responsible duties devolved upon you by a confiding people, you have encountered many difficult problems, but you have addressed yourself to the task of their solution with a resolute spirit, a patriotic purpose, and an eye single to the prosperity and welfare of the State. While engaged in the discussion of great questions involving the most momentous interests, well calculated to call into action the highest energies of human nature and the noblest powers of the human intellect, you have not only exhibited extraordinary research and consummate ability, but you have uniformly extended to your adversaries in debate the most knightly courtesy. As I have not participated in the debates, I may be permitted to say, without violating the proprieties of the oc- casion, that in learning, ability, and eloquence, I have never known them to be sur- passed in any deliberative assembly with which I have been acquainted. It is true that you have not escaped altogether from adverse criticism (laughter) — nor was that to be expected. In a country like ours and under institutions such as we enjoy, the freest and fullest discussion of public men and public measures always exerts a wholesome and salutary influence. But unawed by threats and unseduced by blandishments, you have moved forward fearlessly, courageously^ and faithfully in the path of duty, and the people of Virginia, always just, fair-minded, and tolerant, will make the due allowances for the Intrinsic difficulties of the situation, and Vvill not be swift to condemn their own chosen representatives, who have shown a willingness to make personal sacrifices in their behalf. And now, gentlemen, permit me to congratulate 3'ou most cordially upon the suc- cessful termination of your long and arduous labors, and the accomplishment of a great work, not only for yourselves, but for your children and your children's children. Under our revised and amended Constitution I confidently believe that this ancient and re- nowned Commonwealth will enter upon a new career of prosperity and glory — that not unmindful of the traditions of the past she will turn her face toward the morning of a new existence, a morning that betokens a dSLj of strenuous life, of industrial growth, of material development, of commercial greatness, of political purity, and peace and happiness, now and forever. (Great applause.) And now, gentlemen, what shall I say'' What can I say in appropriate recognition of the beautiful gift just presented to me? I prize it nor only on account of its intrinsic value, but for the kindly sentiment it represents, and, permit me to say, that I am especially gratified by the gracious words that have fallen from the lips of the spokes- man, the gifted and patriotic delegate from Campbell, the silver-tongued orator of Vir- ginia, the idol of his people, and an ornament to his State, which he has served so long in peace and war. (Great applause.) Approbation from Sir Hubert Stanley is praise indeed. (Applause.) And now, gentlemen, in taking leaA'e of you (the time has not yet come, but it will soon come when we must part for a time at least, it may be forever) , in taking my leave, I desire to express the sincere prayer and heartfelt wish that 3'ou may one and all return in safety to your homes and your customary avocations; that the remainder of your lives upon earth may be attended with health and happiness; and, finally, that you may enjoy that perfect peace vrhich remaineth for the people of God. (Great applause.) The President here resumed the chair. RESOLUTION OF THANKS. l\lv. Thorn: Mr. President, I ask leave to offer the following resolution, which I will take the liberty to read: Resolved. That the thanks of this Convention be, and the same hereby are, tendered to Colonel Joseph Button, the Secretary of the Convention, for his uniform courtesy 3266 DEBATES OF THE CONSTITUTIONAL CONVENTION" OF VIRGINIA. and for bis fidelity and ability in the performance of his exacting and honorable duties,' with the request that he receive from the Convention its assurance of the affectionate regard and esteem of all its members. The resolution was unanimously agreed to. The Committee on Enrollment made its report, which was amended slightly and agreed to. On motion of Mr. Lindsay the members of the Convention were requested to sign the engrossed copy of the Constitution. On motion of Mr. Fairfax the Convention adjourned until to-morrow, Thursday, June 26, 1902, at 10 o'clock A. M. THURSDAY, June 26, 1802. The Convention met at 10 o'clock, A. M. Mr. Turnbull: I offer the following resolution: Resolved, That the thanks of the Convention be and they are hereby tendered to F. B. Watkins, the Sergeant-at-Arms, and A. O. Sullivan and P. E. Lipscomb, Door- keepers of the Convention, for the efficient manner in which they have discharged the duties of theiir res°pective positions. The resolution was adopted. Mr. Meredith: Mr. President, it will be remembered that before the adjournment of the Convention for the purpose of having the Constitution enrolled, I offered a reso- lution in reference to the adjournment of the Convention. Owing to the change of circumstances, I ask that the following resolution may be substituted for the resolution which I offered at that time, and I ask for its immediate consideration. Resolved, That when the Convention adjourns to-day it shall adjourn subject to the call of the President of the Convention, or in case of his inability, subject to the call of the President pro tempore, or in case of the inp^bility of both, the President and the President pro tempore, subject to the call of the Governor of the State of Virginia, if in the opinion of the officer making such call the reassembling of the Convention be necessary in order to put in more perfect operation the Constitution proclaimed by this Convention as of the 10th day of July, 1902, or for any other important matter which may arise thereunder; provided, however, that if no such call be made prior to the first day of January, 1903, this Convention shall then stand adjourned sine die. Mr. President, it may be recalled that when the first draft of that resolution was offered it was just a few hours before the adjournment of the Convention for its recess. I stated then that I would call it up at the proper time. I further stated that while I was aware that such a resolution as that might be liable to criticism by some, who would undertake to say that we were expressing a doubt or intimating a fear that our views as to our power of proclamation were not very confident, we did not think that we should be guided by views of that kind, and that a thing so immaterial as that ought not to affect our determination in voting upon a question of so much importance. I will say merely a word or two, Mr. President, in regard to the resolution. 1 think it is extremely desirable that we should do everything possible to carry out the object for which we were called here. Many of us have absolute confidence in the views that we expressed as to our power to proclaim the Constitution. Mr. T. L. Moore: Will the gentleman permit me to interrupt him? I would like 'to offer a substitute for his resolution, so that he can discuss them both at the same time. The President: The Secretary will read the proposed substitute. Resolved, That when the Convention adjourn to-day it adjourn sine die. DEBATES OF THE COXSTITrTIOXAL COXVEXTIOX OE VERGIXIA. 326; Mr. iMerediili: That states the issue, ]\Ir. President. The question is \vhether or not it is v."ise for us to do as I suggest. We certainly have precedents set us by the conventions of another State at least, if not more than one. We know that Kentucky, in its last two conventions, took exactly the course now suggested of keeping the Convention assembled until the people had voted on the Constitution. ^Ir. Wise: In the case of Kentucky, did not the act of the Legislature provide that it might do that? ]\Ir. Meredith: That may be so. sir. It is* perfectly immaterial to me what the act of the Legislature provided. My colleague from Richmond seems to give ver^- great force to the act of the Legislature in regard to the powers of a Constitutional Convention. I differ with him so widely upon that point that it seems to me I need not be affected by that question whether it be answered yes or no. I do not believe it would be necessary for the Legislature to pass any act in relation to the powers of a Constitutional Convention. I say that it does not make any difference whether the Legislattire or the Convention saw the wisdom of that course. As a matter of prac- tical v>-isdom. the last two conventions of the State of Kentucky were kept in existence and being until the people had voted upon and ratified the Constitution, and after that the Convention, seeing that there had been some omission or some error committed, saw fit to modify and change that Constitution in both instances. It may not be necessary for us to do that: it may not be necessary for us to reconvene; but I respectfully submit that, as we are taking a course as to our powers of proclamation, which has been so earnestly combated here by able men, that it is simply a practical view to take of it. that we should still keep onrselves in position to do what we were sent here to do — to give a Constitution to the people of this State. I do not myself fear the result of any litigation of that kind. but. Mr. President, there is no telling what difficulty we may find otirselves in. There is no telling what view the L'nited States conrts may take about the matter, and therefore I say that simply, as a matter of wisdom, we should take such a course as will protect the people of the State. Mr. 0 "Flaherty: Do you not think if the Republican, or any one inimical to this Constitution, saw fit to test the validity of the ordinance or provision as to the suffrage law, knowing that we will be adjourned by limitation on the 1st day of January, 1903, will simply defer action until that time? ]\Ir. Meredith: I do not. I think aftei a Constitution has been in force and effect, and in operation, recognized by all the departments of the State Government for six months, and under the operation of which members of Congress shall have been elected, it will be a little too late for any effort to be made to upset that Constitution. Therefore, I think, in fixing the 1st of January, 1903, as the day, we have given ourselves sufficient time to afford an opportunity to see whether any difficulty will grow out of it. or whether any eft'ort will be made to defeat it. I fixed that date for the reason that I did not think it wise that we should go too far into the future, but that we should fix a reasonable time within which we should declare ourselves adjourned sine die. I think six months will give us ample time to ascertain what is going to be done. At the same time, i^.Ir. President, if it should turn out that in the mind of yourself, or in the mind of the officer who should see fit to call the Convention together again, any danger should be seen lurking in the future, we could be reconvened and adjourn after another six months, and if we thought necessary, we should have the power to remain longer in session. The mere fact that I have fixed the 1st day of January, 1903, does not prevent us from continuing our existence for another six. or another twelve, months, if necessity shotild arise. I do not think it wise that we should now fix the date so far in the future as to render ourselves liable to comment as existing too long. I think the date is a reasonable one. because it gives sufficient time to ascertain whether an effort to defeat the Constitution will be made, and at the same time we will have the opportunity to continue in existence, so that if in the future any such danger should arise we can remedy it. 3268 DEBATES OF TPIE CONSTITUTIONAL CONVENTION OF VIRGINIA. I wish to say one word more, Mr. President, and then I shall have finished. I do not believe there is a lawyer within the sound of my voice who in the practice of his profession would hesitate to follow just this line of conduct in order to protect a private client. A lawyer would never risk an important action simply upon one line of defence, however confident he might be as to the facts, or, in his opinion, of the law. If he had an opportunity to pursue a course that would render doubly certain the chances of success of his client, he would unhesitatingly pursue it. I respectfully submit, Mr. President, in a matter of this importance it is even more our duty to pursue such a line of conduct than it would be in private affairs. It is our duty to see that under no circumstances shall this Constitution be defeated, and' we should take any course to avoid that, no matter what sneers others may indulge in upon the theory that we are afraid of what we have done. We should take such a course as will render absolutely certain that the people will get this Constitution one way or another. Mr. Dunaway: Let me ask you whether you are contemplating danger coming to the Constitution on account of its proclamation or from some other source? Mr. Meredith: In any way, sir. There may be something that may arise and be apparent in the operation of it, that would be bad. There may be something that would arise in the mean time. The suffrage clause might be declared unconstitutional by the United States courts, and you would then have an opportunity of framing another clause. I believe it to be our duty to remain in session here, so that we could take what action might become necessary. Mr. Dunaway: Mr. President, in regard to this matter, there are just two or three things I wish to say. In the first place, I believe that the instrument that has been framed by this body is an impregnable one, and that if this resolution should be adopted we will ourselves be expressing an unnecessary fear in regard to the soundness of the instrument itself, and in regard to the action of the Convention in proclaiming the Constitution. I feel perfectly satisfied that the Constitution which we have adopted is not obnoxious to any provision of the Constitution of the United States. I will not discuss that question at large. It is unnecessary. I believe there was full power in this body to proclaim this Constitution, and I have no fear from either one of these sources. Therefore, I feel that the proposed action is unnecessary. Then, again, in regard to the time that is fixed — the 1st of next January — I submit, if we are to pass this resolution at all it ought to be for a longer time. If I were an enemy of this Constitution (as I am a friend of it) I would put off any attack that I desired to make against this Constitution, provided this resolution is adopted, until after that time had expired. If this body is to perpetuate its own existence in order that it may continue to look after the well-being of the Constitution, the time ought to be extended, not simply to next January, but for a term of years. But my chief objection to the resolution is this: I do not believe that this Convention has the legal rights and authority to adopt the resolution, and I cannot vote for it unless some gentleman here can remove the legal objection that is in my mind. That objection is this: The Constitution is to go into effect on the 19th day of next month. When it is gone into effect it is a per- fected instrument, and it binds the members of this Convention as much as it does any other citizen in the Commonwealth. We have the authority to amend and revise the old Constitution, but I submit that we cannot put a new instrument into effect, place it beyond our powers by so doing, and still attempt to retain a power that has never been given us by the people of Virginia — the power to revise and amend a Constitu- tion that has already gone into effect. If this does go into effect, then whatever may come of it, it will be for the people of Virginia, by calling another convention, to repair any wrongs or to resist any attacks that may be made upon it. But this is just as if you should attempt to launch a new-made vessel, and still retain it on the stocks. It gets beyond our power, I submit, just as soon as it goes into full effect arid virtue, DEBATES OF THE COXSTITUTTOXAL COXTEXTIOX OE VLRGIXIA. and we have no further control over it. I will not attempt to amplify my remarks upon this subject, and to go fully into the discussion of it, but that is the legal objec- tion in my mind, and I cannot vote for this resolution unless some gentleman will kindly remove it from my mind. Mr. Wise: Mr. President, I care very little whether the resolution offered by my colleague shall be adopted or not. I do not propose to detain the Convention in the discussion of the question, but simply to state that I shall vote against the resolution, because I th-nk we have no right to perpetuate our existence as a Constitutional Con- vention. The gentleman has made the statement that there was a precedent for such action. I call his attention to the fact that the States to which he referred had pro- vided that the conventions in those States might do that very thing. There is no such provision in the act which called us into existence. But this is not the reason why I oppose this resolution. The gentleman from Richmond stated it himself, and that is that we were called here for a specific purpose, which purpose was to irf.me a Constitution for Virginia. We have framed it and we liave proclaimed it. Our work is done, and we are functus officio. Mr. Meredith: Suppose it should be held that the suffrage clause was unconsti- tutional, have we done our vrork then? Suppose it should be held that we had no power to proclaim, would we have done our work? 3.1r. Wise: I do not think, sir, you have a right, after proclaiming the Constitution, to make another Constitution for Virginia, whatever may be the decisions of the courts in the future. Mr. Meredith: My question was, whether we had done our work in that event? Mr. Vise: You have not done it. You have done it improperly. You have made a mistake and that is exactly the difficulty here. The gentlemen who proclaimed the Con- stittition are doubtful a? to whether they had the power to do so. and now they vrant to wait and see what will be the action of the court. But as I say I do not want to go into the discussion of this question. I vrish simply to say that I shall vote against the resoltition. because in my opinion this Com-ention has no right to perpetuate itself. As said by the gentleman from Richmond himself, although he had specified the 1st of January. 1903. it did not necessarily follow that there was to be an adjournment sine die on that day. He said we might prolong ourselves six months after that. Yes, and after that you might prolong yourselves for six months more. Yoti may prolong your- selves for ten years or twenty years. Where is your right to do that? You have performed the work for which you were commissioned to act for the people of this Commonwealth and it is your dtity now to adjourn sine die. Mr. Wescott: Mr. President, it is with unfeigned diffidence and reluctance, which I could ill conceal, that I prestime to differ with the distingtiished lawyer who is the patron of the resolution tmder consideration. But I am unalterably opposed to that resoltition, and feel that I would be recreant- to myself, recreant to the obligations which I owe to my constituency and to the people of Virginia were I to withhold an expression of my A^iews upon this question. Let me ask the patron of this resolution for what purpose were we segregated from the great mass of Virginia's people, and commissioned to assemble in this city June 12, 1901, if it were not to revise and amend our Constitution, and when that shall have been answered then let me further say we ought to propound to ourselves and to give an answer satisfactory, not only to ourselves, but to the people of this State, as to whether or not we have fulfilled the purpose for which we were convoked in Constitu- tional Convention? If so, then why this proposed adjournment? Have we revised and amended the Constitution? Have we consummated the work for which we were convoked m convention? Are our labors finished? If so, I ask. what need is there of a hundred guardian angels over the work of this Conven- tion for another eighteen months? Have we done the work for which v\-e were assembled? If we have, then there is no excuse, there is no justification, there is no reason for our remaining in session. 3270 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. If we have written a Constitution and have assumed the power of the sovereign people of the State to promulgate that Constitution and to breathe into it vitality and thereby to supersede the hitherto fundamental law of this land, by what stretch of reason can we arrogate unto ourselves the power after the tenth day of July, 1902, when we say that that instrument shall become the fundamental law of this State of ours, to alter, amend or revise in the slightest any provision of that finished and completed work? Is there any analogy in the Kentucky cases? I deny it. The gentleman has well said that the purpose for which we were assembled v^^as to revise and amend the Con- stitution. I claim we have assumed, we have arrogated unto ourselves, and, whether correctly or incorrectly, it has been the dominant sentiment of this body that we have the power, when we have agreed upon v^^hat that fundamental law should be, to put it into operation; and we have acted upon that assumption. And I submit to you, gen- tlemen, that to hold this Convention in session for any length of time after the tenth day of July, 1902, would be, of the righteousness of our course, a confession of doubt. It throws suspicion upon our own confidence in what we have said to the people of the State. It would show that we question the right and authority to do what we have assumed the power and authority to do, and that, in my opinion, would be greatly to be deprecated. I say, there is no analogy in the cases of the Constitutional Conventions of Ken- tucky. And why? Says the gentleman who proposes this resolution. "Were we not assembled here to give the people a Constitution?" When the people of Kentucky who wrote their Constitution answered that question they did not presume to consum- mate that work and to proclaim it, but submitted it; and until after the people had passed upon it and accepted it their work was not complete, because they had not given their people a complete vitalized fundamental law. We assumed the contrary — that we had the right to promulgate it, and we have promulgated it. Now, by what authority, by what course of reasoning, by what stretch of the sovereign power we have arrogated unto ourselves, can we at any day after the 10th day of July next, when this fundamental law, by our vote, shall super- sede the old Underwood Constitution, undertake to alter one jot or tittle of the work we have done. There must be some limit to our delegated powers. Have we not provided how amendments shall be made? Have we not said that this Constitution which we have given to the people as an entity, as a completed task, shall be altered or amended in the future by either of two well-defined and well- recognized methods? And dO' we not now undertake to say, should we adopt this reso- lution, that that which we in another breath say is the fundamental law of this land, providing how and how only it shall be amended or altered, can be amended and altered by another method — to-wit, by its authors themselves? I wish to propound this question: If we have the power to perpetuate our guar- dianship over the work of this body for eighteen months more, why have we not equal power to continue that guardianship for five years, and if for five, why not for twenty- five years further? Why have not v/e the right to assume that any mistakes, any oversights, any blunders, which may henceforth be discovered in the result of our deliberations shall be corrected as well five years or twenty-five years hence by this Convention, as within eighteen months? How are you to draw any such distinctions? Where is the limit of the sovereign power of these hundred men to be fixed? When are we to attain the end of it? When, I ask you, if not on the 10th day of July, 1902, shall these one hundred delegates go back, shorn of the extraordinary power conferred upon them, into that body whence they were drawn, and, thenceforth, renounce and cease to assume or to exercise any powers whatsoever other than those which, as private indi- viduals, they possessed and exercised prior to their selection to discharge this most important work? Gentlemen, there must be a finality to our labors and our authority. Aside from that, gentlemen, let me offer you another practical suggestion. Much has been said upon the floor of this body upon the question whether or not we have DEBATES OE THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 3271 a legal right to proclaim the fundamental law of Virginia. I have never doubted the possession of that right; and whatever doubts may exist in the mind of any man who has ever given to its investigation the experience of a trained lawyer must assuredly be swept away when in the near future, as v/e have provided, the Governor and the General Assembly shall have recognized it. It unquestionably becomes, then, not a judicial, but a political question under all the authorities. But assuming that that is incorrect, would not the adoption of this resolution be an invitation to attack by the enemies of the new Constitution? Suppose the question of the right to exercise power we have arrogated to ourselves shall arise in appropriate proceedings before the court of last resort of this State? Is there a gentleman here who will not admit that when that tribunal whatsoever may be its views upon this question, shall come to pass upon it, if we vote for this resolution of the gentleman from Richmond and adjourn this body over and say thereby that vv^e have not yet completed our work, but still have the power to submit it, if that court shall be inclined to say we ought to have submitted it, we will by this step have taken from their shoulders more than half of the responsibility they will be conscious of being under to the people of Virginia, in passing upon that momen- tous question? If there were no other reason, gentlemen; if the question were purely of ex- pediency (and I cannot view it in that light at all) instead of being rather one of power or authority, it seems to me that objection should outweigh every possible consideration in its favor. Not wishing to detain you longer, gentlemen, permit me to say, in conclusion, that after mature reflection I cannot see how it is possible to reconcile our action in proclaiming the new Constitution with the course proposed by the resolution under consideration, we cannot "blow hot and cold;" we cannot "play fast and loose" with the people of this great Commonwealth. By our action in proclaiming the Constitution have we not said to the sovereign people of Virginia: "We have accepted your commission to revise and amend your Constitution, our labors, though arduous and protracted, have at length terminated, we have finished our task; take this as your new fundamental law as an entity, a symmetri- cal whole, providing two methods as the only ones by which it can be amended or al- tered in the slightest degree, and shall we now say, by adopting this resolution, that not- withstanding all this we arrogate unto ourselves the extraordinary and illogical povv^er for eighteen months longer, to remain here in session for the purpose of correcting and set- ting right any mistakes, blunders, oversights, or omissions which the future may develop in our work, in defiance and disregard of the very provisions of that instrument itself? No, gentlemen, let us adjourn sine die; our labors and our responsibilities have ended; leave the issue with the people of this proud old Commonwealth to be met and dealt with by them, whensoever they may arise and whatsoever form they may assume as they in their aggregate wisdom deem best. Mr. Hancock: Mr. President and members of the Convention, I am in favor of this resolution. We were sent here by the people of Virginia to frame a new Consti- tution, to amend and revise it, and to proclaim it as the law of the land, or to have it ratified by the people. In the early sessions of this Convention I took the position that proclamation was within the power of this Convention, but that it was contrary to good policy and good faith to exercise such a power. But we have proclaimed it; and I believe the power this Constitution has exercised is a power that it possesses, and I have no fear for the Constitution in the courts, either State or Federal. But there is a large minority in this Convention that does not believe in proclama- tion; and there are a great many people in the State of Virginia and a great many lawyers who do not believe that the power of proclamation exists. Now, if the povv^er of proclamation does not exist, when we proclaimed the Constitution we did a vain 3272 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. thing; we did a void thing; we have not accomplished the work for which we were sent here, and, therefore, we owe it to the people never to adjourn until we have accomplished the work that they imposed upon us. I say that we have two plain, simple propositions before us. It was our duty to come here and to revise and amend the Constitution and to submit it to a vote of the people, or it was our duty to proclaim it. I have always advocated the former course, and have voted to submit to the people. But a large majority of the Convention decided otherwise, and I submit to their superior judgment, and I am now heartily in favor of the admirable instrument that has been made by this Convention, notwithstanding it has been proclaimed. If we had the right to proclaim, then we have accomplished our work, and the new Constitution will be in effect on the 10th day of July. But suppose we do not possess this power of proclamation. Suppose the minority on this floor is right, and we do not possess it? If the courts of the land say that proclamation is not within the power of the Convention, then her action in proclaiming it has been null and void. All the oaths taken by the Supreme Court of Appeals and other judges, all the oaths taken by the members of the General Assembly, and all the oaths taken by all the other officers in the Commonwealth to support it are void, and the people are left without any Constitution, except our present Constitution. But if this power to reassemble is reserved, then if the courts say, "You have no power to proclaim," we will still have power to reconvene, and can fulfill the trust and perform the duty which the people imposed upon us — to-wit, to revise and amend the Constitution, and to submit it to a vote of the people. I am not, however, in favor of coming back here, and amending and revising this Constitution; but I am in favor, if the courts decide we had no right to proclaim it, of coming back here and saying, "We will submit it to the people and let them vote upon it." This Constitution will be of great value to the State of Virginia if it shall become the supreme law of the land. Let us place safeguards about it. It is a pearl of great price to the people of this Commonwealth. It is the result of over twelve months' labor of a hundred of the best nien of the Commonwealth, and it has cost hundreds of thousands of dollars to the State of Virginia. Let us reserve the great power which has been given us, and retain possession of it until the State has a Constitution about which there is no doubt. If proclamation is legal, then the power of this Convention ends to-day, and the resolution is of no value, and is void. If proclamation is not legal, then, by retaining the power to reassemble, the Convention will be able to reconvene and submit this Constitution to the people for ratification. The simple question presents itself: Will you take this Constitution and say that proclamation is all right, and place no safeguards around it? When we hear threats that there is going to be an effort to test this question of proclamation, when there is doubt in the minds of lawyers in regard to it, when you have the power to protect the people, when you have the power to save the Constitution, when you have the power to come back here and submit it to the people, will you be so forgetful and so unmindful of your duty as to adjourn sine die, and leave it possible for our labor of more than one year to be declared null and void by the Supreme Court of the United States? Mr. Wysor: Mr. President, the gentleman who has just addressed the Conven- tion said he was heartily in favor of the resolution. I desire to say to the Conven- tion that I am heartily opposed to it. In the first place, the resolution will accomplish no good purpose whatever. It provides for the reconvening of the Convention in January, 1903; and no question relative to the proclamation of the Constitution or any other important question con- cerning it could be finally settled by that time. So that there will be no necessity for then reconvening the Convention. It also gives to the president a power which I am unwilling to give to him. It DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 3273 transfers all the powers of the Convention to the president, and allows him to judge of the exigency of the occasion, and to determine whether or not this body that has been declared to be sovereign shall be called together again. I like the president very much; and I appreciate very much the beautiful com- pliments paid him the other day by the gentleman from Campbell (Mr. Daniel). The President reminds me of Moses (laughter), at threescore and ten, with his eye un- dimmed and his natural force unabated. If you put the power in the president to de- termine whether you shall reconvene or not, in three or four months, he will begin to think about the trip down the James; he will begin to think about the delightful occasions, the delightful times he has had here in Richmond. (Laughter.) He will think of the divine light of your countenances; and he will perhaps say, "The exigency has arisen (laughter) ; the occasion has come to pass," and he will reconvene the Convention and bring you all back here again. So, I am opposed to putting that power in the president. If v/e come back here in January, I do not w^ant to come back upon the call of the president. If you are going to adjourn until January, why, adjourn until January, and let the Convention then come back and adjourn sine die. If you cannot all get back, certainly a quorum can come back. I think we ought not to look at this Constitution as an old hen looks at one chicken. You know how a hen is with one chicken. She is the biggest fool about it in the world. She will raise up that chicken until it is nearly grown, and ready to lay eggs and hatch chickens of its own (laughter), and yet will run out and pick up a worm and call the chicken, "Cluck, cluck! " This is not the only Constitution that has ever been made. It is a good Constitu- tion. It is a Constitution that I say is now full grown, and does not need our fos- tering care. The gentlemen favoring this resolution want to hold the Constitution in terrorem over somebody, like an old scarecrow. When I was a boy I used to put a scarecrow in a corn-field to keep off the crows. It would do all right for a while, but the crows would finally get familiar with it. (Laughter.) After a while they would light on it (laughter), and then they would roost on it at night. (Laughter.) That is just the way with your Constitution. If you undertake to hold it in terrorem over anybody, it will scare them for a while, and then the people will roost on it and, like birds of prey, will pick its eyes out. You cannot hold it in terrorem over the people; it would amount to nothing. You have no power, I think, to adjourn until January. It is, therefore, very clear to me, as said by the gentleman from Accomac, and by the gentleman from Lancaster, and also by the gentleman from Richmond city, that when you proclaim the Constitution to go into effect on July 10th, and it does go into effect the very fact of its going into effect of itself dissolves this body. You have no further power to recon- vene. You go back among the people; you become part of the people; you live under the organic law, and are as much controlled by it as anybody else, without any power on your part to amend it or to change it. What power will you have? Do 3^ou expect to sit here, to be still in Convention, and allow the Supreme Court of the land to pass upon the Constitution, and then come back, and say, "Well, we will correct it? " If you have no right to proclaim it, if that is the question that is to be litigated, and your act is null and void, and the Supreme Court should so hold, that would be the end of it; but it would not give you any power to reconvene and adopt a new Constitution. The gentleman from Accomac (Mr. Westcott) made a strong point when he said, "If you can adjourn until January, 1903, after you have completed your Constitution, and put it into operation, you can adjourn for two years, you can adjourn for three years, you can adjourn for twenty years, and, under a republican form of govern- ment, absolutely perpetuate yourselves forever." Would you not be usurpers? Undertake it once, and if there were no other way 206 — Const. Deb. 3374 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. to stop you the people would come here with cords and whip you out of the capitol. It is contrary to a republican form of government; it is contrary to republican in- stitutions. You cannot do it. You have proclaimed the Constitution. I did not believe in that; but I am per- fectly willing- to submit to the majority of the Convention, and to take that as the rule; because that is the only way we can settle questions about which there is an honest difference of opinion. Mr. Robertson: I simply wish to call your attention to the question— I do not want to discuss the matter, but I would be glad if you would consider it — whether or not we can have any Constitution at all unless we adjourn sine die? In other words, as long as we are a body constituted as a convention have we not a right to change it? Mr. Wysor: I think so. Mr. Robertson: And is it not necessary that we should adjourn in order that this Constitution shall take effect? Mr. Wysor: Certainly it is; it is necessary that we should adjourn in order to give finality to our work. Have you a Constitution, as the gentleman suggests, as long as you are in Convention, as long as it is a matter still under your considera- tion, a matter which you may at any time change? A Constitution is something that is firm; it is something that is stable; it is something that is established to be enduring, and something that is final. And yet we are told that we can proclaim it; that we can put it into effect on July 10th; that we can convene the Legislature in extraordinary session to adopt and to ratify it, and still that we are here to be guardians over it, with power to reconvene here and make any changes in the or- ganic law that we please! You have a provision in this very Constitution that every twenty years the people can call another Constitutional Convention, and submit to it any questions of amend- ment that may arise. How can they call another one if you are going to remain in session forever? If you can adjourn one year, you can adjourn twenty, and this could be the only Constitutional body that Virginia could ever have; and the only way to get rid of it would be by death or by banishment of its members. That is the only way you could get rid of the Convention, according to the argument of the gen- tlemen on the other side. Whatever may be the decision of the courts, we must adjourn, we must com- plete our work, or we have no Constitution. Why, take the franchise clause; you will have people registering under the new Constitution. You will be disfranchising people under the new Constitution before it has been enacted into a finality, while the Con- vention is still in session, and still has power to deal with the instrument. We have played a good part here. We have enacted a good Constitution. Let us not end up with a miserable farce. I like to see a fine play on the stage, and I like a good farce at the end of it; but this would be a miserable farce, and would make us lose much of our reputation as law-makers among the citizens of the State, and among people all over the Union. The new Constitution is a good one; and I hope it will stand any test to which it may be subjected. Now, I hate to leave. If you give me what I prefer, personally, I would like to meet with., you always. There would be no end of it. I would just keep coming back, and I would lengthen our lives; none of us should ever die. We would meet and debate and enjoy one another's society. But it is an old song that "I've got to leave you, my honey; good-bye, my honey, I've got to leave you." (Laughter.) Now, gentlemen, I think we ought to adjourn. While it is a , hard thing to say farewell, we have to say it; and "if forever, still forever, fare thee well! " (Great laughter and applause.) Mr. Green: Mr. President, I hardly feel physically able to address the Conven- tion, and I certainly would not undergo the labor myself, or impose upon the Con- vention, except for my serious conviction that to adopt the resolution proposed by DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. 3275 the distinguished gentleman from Richmond would be a very great mistake. I know, sir, this is a resolution that relies for its strength in the doubts which afflict man. I know that from the days of the Apostles to the present time, you could not possibly assemble twelve men together that you would not find some fellow who would say, "I doubt about that now, and you had better take care." But, sir, I know also, as well as I know anything under the sun, that the Con- vention which has framed this Constitution has not exceeded its powers in any re- spect, and I know as well as I know anything that I could possibly undertake to argue that they have not only not exceeded their powers, but that every provision in this Constitution will be sustained and maintained by the courts. Of that, sir, I feel convinced. I would not have voted for this Constitution if I had not felt convinced that every single line contained in it was not only strictly within the power, but within the just and legal power of this Convention. I would not, under any cir- cumstances, condemn myself and my vote by saying that I would adjourn over and let somebody else examine our v/ork, and if they expressed any doubts about it that it should be considered. Sir, we have done our work. We have made a Constitution against which the gates of hell cannot prevail. (Laughter.) I am not afraid of any court. I cannot help ■ it that certain gentlemen are afflicted with doubts on this question. I cannot help it that certain gentlemen in this body have a constitutional disposition to fear, to shrink from responsibility. I wish to say that in using that language I do not refer to the gentleman from Richmond, because the only objection I have to him is that he assumes too much responsibility. (Laughter.) He is daring and aggressive. I do not refer to him. But I know that his resolution appeals to certain minds in this Convention, (and you cannot get one hundred men together without finding those minds), that are afflicted with fears and doubts and trembling, and who never trust their own work until somebody else has put their imprimatur upon it. Now, sir, I ask this Convention to go straight forward. It has accomplished its work. I agree with the suggestion of the gentleman from Roanoke, accepted by the gentleman from Pulaski, that there must be a finality even to this Convention, and that we must necessarily surrender in the end. I believe personally, that we have not a legal right to continue ourselves after the day when the Constitution goes into effect under our proclamation, and that the Convention is then functus officio. It Is a body of delegated powers. Its purpose has been accomplished; the end for which it was assembled has been reached, and I believe that if it undertakes to go a step beyond that, its act is without authority, and null and void. I, therefore, think, sir, that our duty to ourselves, our duty under the directions which the people gave us when we were sent to fill these places; our duty to the State, and above all, our duty to the Constitution which we have framed, requires us to stand by it now, and send it out, and say to these men, who are going to oppose and resist it, if any such men there are, "Do your worst. This is our work. Fight it as best you can." One other word, sir. This is a Constitution of the people. Even those gentle- men who oppose proclamation, even those among us who believe that there are many things in the Constitution which are objectionable, will admit when they think a minute, that the people of Virginia are behind this Constitution. They are in favor of it. Every man, whether for the Constitution or opposed to it, knows well enough in his heart and mind that the great body of the people of Virginia, the men whose government if is, stand behind it and intend to try it and enforce it The gentlemen who hold office, and whose probable opinions are held up as bugbears and scarecrows to us, know that as well as I do and as you do. Every representative man in Virginia feels that the people of his county and the people of the entire State desire at least, to try this Constitution, and to see whether it is going to benefit them. No man will dare— I do not care now whether he is a legis- lator or a judge— to array himself against the people, and to attempt to defeat, by any 3276 DEBATES or THE CONSTITUTIONAL CONVENTION OF VIRGINIA. means m the world, their right to try the Constitution in which they believe Men are guided to a great extent by selfish interests, and those men will realize if they think a minute that the man who obstructs this Constitution, if he succeeds will be everlastingly damned in the opinion of the people of Virginia. Why should he not be? Whether it be a good Constitution or a bad Constitution, if it is obstructed and defeated by citizens of Virginia holding office in this State, the people will always believe that they would have prospered, and if these people defeat it, they will be condemned as enemies of the State to eternal ignominy. Mr. O'Flaherty: Mr. President, I never have spoken with so much reluctance because I know very well the time has come when we ought to adjourn. I have not arisen to-day to speak without the greatest reluctance. I have been giving this sub- ject much thought and much of my attention for the last few weeks, that I might know how to vote intelligently. We have not cast a vote in the last year that was more important than is the one we are called upon to cast to-day. I voted for the submission of the Constitution to the people. I did not raise my voice on any ques- tion in that last debate, because I did not agree with the gentlemen who voted with me, who thought we did not have the power to proclaim. I agreed with the gentle- man from Richmond in his learned argument, and I believe he was legally correct when he said this Convention had the legal power to proclaim the Constitution;, but he based it, and so did all these gentlemen — and they were right — upon the fact that the civil authorities of the State would afterwards recognize it; that it would have recognition by the executive, by the judicial department, and by the Legislature. Now, when the Legislature comes here on the 15th day of July, let us look at this in a practical way, and see what will occur. Vv'hen a member of the Legislature is re- pleasure and honor of signing — he takes an oath to support that Constitution. And yet he knows that this body is in existence, and that whatever we have done is in fieri, and what we have done is not certain to be the finality of it, and he may be taking an oath to support a Constitution the last of which he does not know. Let us take an example. Suppose the Legislature comes here, and enacts laws to carry into effect our suffrage law, and suppose voters register under our ordinance, and before the election this fall the Convention comes in and changes the suffrage plan, and makes a man eligible to vote under the registration act ineligible to vote. You would have the power to do that if the Convention should have the power to meet. What an inconsistent position we would be in! I do not presume to speak for all the lawyers of this Convention, but from a legal standpoint, it looks to me as if the sug- gestion of the gentleman from Lancaster was right, and that on the 10th day of July, 1902, when this Constitution goes into effect, it is an entirety, and that we are functus officio, and we cannot meet in Convention any more. Let us see now, if that is not right? Suppose the Legislature, after this Con- stitution goes into effect, calls a new Convention, as it will have the power to do, on the 11th, and submits it to the people of Virginia, and they should vote to call an- other Constitutional Convention of Virginia, and they should say, "Y^e are the Con- stitutional Convention of Virginia." Which one of those bodies would be the legal body? Now, I say, gentlemen, this is a matter of great and momentous importance. The effect upon the people of Virginia is going to be bad. Every time I go home the people say, "When are you going to adjourn?" and I wouldn't answer all the ques- tions I would have to answer between now and January for any amount of money. The people would say, "Are you a Convention, or are you not a Convention? Are you going back? " and you would have to explain what you are going back for. We say, "We are going back lest the Federal court decide our suffrage law is not a good one and a legal one." Suppose that some Republican comes to me, and advises with me, or with any lawyer, as to what he should do? I would simply say, "Hold off until January, 1903." Suppose you have a case in court. You cannot get any decision of the Supreme Court of the United States before 1903. Everybody knows the United Dii3A_zs Ox i^z co^~siimi02^Ai. coxTTviio^' or tiegixia. States Supreme Court is congested -wiih cases, and it is a Repubiican court, ix tiiere are any politics in the "Cnited States Supreme Court. Tken, do you Thitils, "^ould they rusii a decision througli in order tliat you mighi be called into existence, and come here and correct your "vrork? Tliey would not do it. The lasers — r"ld hold it back. They vrotild wait with patience until the time when you have v.: _ri sizie die. The effect would be bad, Mr. President, "z:- Lrr:=".?,t^ire. They -rcild say: '"You are holding this as a threat over us, z: :;l_i;v' i; vilars, to take the oath to support this Constirution." Once they take the oath they take the oath to support the present Constitution, and if they do not take the oath they have not any right to come into this hall, because they come here by vlme of the Constitution. There will be no trouble about their taking the oath. I want to say, in regard to the case in Kentucky, that my distinguished friend referred to, and I submit with the greatest deference and humility my views, in contradiction to his, that they took the view that they had to follow the legislative act which called them into existence, and which reauired them to submit the Constitution back to the people, and required them to stay in existence until they had a determination of that matter. We. in Virginia, do not take that view ci it, TVe take the view that we have a right, once we get in existence, to do whatever we please, regardless of the enaohng act of the Legislature of Tirginia. I think we are right, but our school of political economy diSers from that of Kentucky, in that particular. Their court has taken that view of it- The gentleman from Richmond repudiated that idea long ago, and he was right in doing it. Now, you fall back upon it, and adjure it to assist you in this matter. My distinguished friend from Chesterfield, with whom I generally agree, says that if the courts were to say that we had not the power to proclaim, that then we could submit it to the people. Let me tell you, if the courts of this land ever decide that we have not the power to proclaim, the people of Virginia will never ratify any Constitution we might make. They would say, "You did not have sense enotigh to make a Constitution that was legal, and we are going to repudiate it," It will have a bad efcect upon the people. As far as I am concerned, I would never rev-irn here if the courts decide that this is xmcensti: ::i:n?J cn the grotmd of proclamation, which I say they will not do. I would not c iiiir l.Tte to help to make a Constitution to sub- mit to the people, because I would stand before a cotirt, and the highest tribunal of the State — ^the people — condemned. I would resign my position, and, I believe, my term as a member of this Constitutional Conventim - exp'ire by Kmitatim :n :he very day we have fixed for this Constitution to enect. Then, gentlemen, I am willing to stand by this Constitution, I am willing to do all I can to sustain it in the court and in the forum, for I love the people of Virginia, and I love the men here who made this Constitution. I am willing to say to you people as was said in that meadow by the mystic margin of the sea 3,000 years ago, by Ruth to Xaomi, that • 'Whithersoever thou goest, I will go; wheresoever thou lodgest I will lodge: thy people shall be my people, and thy God my God." But, gentlemen, let us have an end of this thing, p.ni let := have a finality. We have finished our work. Let us quit the scene, and tl.^ : ' :: Virginia will think more of us for it. I thank you for your attention. Mr. T, K Moore: Mr. President as I offered the substitute to the resolution oSered by the gentleman from Richmond, to perpetuate this Convention for a term of months, I desire to be heard, however, briefly, upon the subject. I would say first, that it occurs to me the splendid legal arguments made by the gentleman from Accomac. the gentleman ; ? nlaski. and the gentleman from Dan- viUe, are unanswerable. But there are other reasons why I think this Convention should now adjourn. Mr. President, the people of Virginia were told th:.- :: '.lis Convention should be called together here to make a Constitution, it would ni.tite :ne. They did not antici- pate that we would perpetually continue ourselves in session. It will be a disap- 3278 DEBATES OF THE CONSTITUTIONAL CONVENTION OE VIRGINIA. pointment to the people of Virginia if we now adopt a resolution by which we may perpetuate ourselves indefinitely in power as a Constitutional Convention. In order that no man may be deceived, I will say that other and stronger rea- sons influence me. Gentlemen, I am opposed to the Constitution that has been made by this Convention. I believe that a majority of the people of Virginia are opposed to it. I want this Convention to adjourn sine die, so that in the event this Consti- tution is declared null and void in the courts of the land, a Constitutional Convention may then be assembled, if it shall be deemed necessary, that will make a Constitution more nearly in accordance with the sentiments of the majority of the people of Vir- ginia. The gentleman from Richmond, who proposes my resolution, may use that as an argument in support of his resolution. I am here to say, Mr. President, that it is my fondest hope that should this instrument be carried to the courts, and especially into the Federal courts, that they will hold that this Constitution is in contravention of the Constitution of the United States, and it will declare that it is null and void. I want this Convention out of the way, so that in the event such a decision as that may be rendered, there may be in the future a fair expression by the people of Vir- ginia upon this subject. Now, I say this Convention is not a representative body of the people of Virginia, because such a small number of the people of Virginia called it into being. I agree to everything the gentleman from Pulaski has said about the hen and one chicken, and about its being necessary to feed it on worms, and all that kind of thing. My opinion is that it will be necessary to feed and to support this Constitution on some- thing. Why, the gentleman from Danville says the gates of hell cannot prevail against this Constitution. Mr. President, this Constitution, having been made, as in my opin- ion, it has been made, by filching from the people their dearest rights, the principal of self-government, if it should knock at the gates of hell they would swing wide open to receive it. Of course, they would not prevail against it. It has not been made according to republican principles, and I hope and trust that when the courts come to pass upon it they will so declare, according to the dis- senting opinion in the Kentucky case. If that decision be reached, if this body is out of the way, and if a majority of the people of Virginia should then be of the opinion that a Constitutional Convention is necessary, let us call together then another Con- vention that can and will make a Constitution in accordance with the laws of this land. So, Mr. President, I believe, when we adjourn to-day, we should adjourn sine die, and launch this work for all it is worth, and if it is worthless, let us know it. Mr. Watson: Mr. President and gentlemen of the Convention, the gentleman from Danville has characterized the resolution of the gentleman from Richmond as appealing to the fears and doubts of this Convention. He might have added, sir, that it also appeals to the vanity of the Convention. From the very earliest times the longing of the soul of man to be immortal has been one of the strongest character- istics of his nature, and I would not sir, at this late day, find it my heart to con- demn members of a Constitutional Convention if they were afflicted by that disease oi which so many of mankind have always borne the burden. It is a most flattering thing to suggest to the members of this body that on the 26th day of June, 1902, in- stead of retiring from the seats of the mighty, and returning again to the body of the people, they shall, by an act of power, and by an exercise of their authority, make themselves perpetual and immortal in the annals of this Commonwealth. Now, Mr. Chairman, if there were any sound, practical reason for this proposi- tion, if I could get myself to believe that this Constitution hung in the balance, and that it needed some such prop from outside authority not inherent in its merits, then rather than give up all, sir, I should be willing to try the experiment, and to put the Constitution in a plaster of Paris cast, and not subject it to time and fate to past upon its good or its evil effects. There are but two sources from which I can apprehend any danger to this DEBATES OF THE COXSTITUTIOXAL COXTEXTIOX OF VIRGIXIA. 3279 instrument, and I must say for myself there is but one from which I apprehend any danger. We all realize that if we can run the gauntlet of the State courts, and the gauntlet of the Federal courts, there are none to stay our hands or to make us afraid. Gentlemen must have discounted and discredited the work of their own hands to a large extent if they think that in the situation in which we find ourselves there is any danger to be apprehended from the State au- authorities of this Commonwealth. By the fifteenth day of June, sir, they will all have sworn allegiance to the Constitution under which we are to live. When the General Assembly of this Commonwealth shall have recognized this Constitution, representing, as they do, the political arm of its government, so good a lawyer as my friend from the city of Richmond v>'ill not maintain that there is any longer any judicial question to be settled on this subject. I would say to him in that connection that if the recognition of the work of this body by the General Assembly of this State be an important or essential matter, that we should proceed slowly along the line of putting ourselves in the attitude of undertaking to coerce that recognition, and to compel it whether it be given willingly or not. Mr. President, I undertake to say that the General Assemblj^ of this Common- wealth, representative as they are of the great body of the people, will not willingly or readily put themselves in antagonism to what is so manifestly the public senti- ment of the State, and we may reasonably expect that upon their assembling they vrill recognize this instrument as the organic law of the State, and put it beyond the question by the State courts. But, sir, I fear the action of the Federal courts. It has, to my mind, been pointed out absolutely and conclusively that there is no twelve months' limitation to be put upon the Supreme Court of the United States. Xobody could suppose that the Republican elements of this Commonwealth, com- posed in part of able men, and ably led, would go to work immediately to test the legality of this question in the Federal courts, when there stands in their faces the knowledge that you could reassemble here in twelve months and undo your work. Why, Mr. President, if a case were put upon the docket now, within all human proba- bility, there would be no adjudication of it before the expiration of these twelve months. But, Mr. President, assuming that the Federal courts will undertake to undo what we have done here, assuming that there are articles in our Constitution which contravene the Federal authority, what hope have we, sir, that by reassembling here we will remedy that matter, and bring about the solution of our difficulties? Suppose a Federal court says the understanding clause of your suffrage article is unconstitu- tional? Does am'body within the sound of my voice believe that this Constitution is going to disfranchise 36,000 white people of this State who cannot read and write, and who can be put upon your registration books only by virtue of some such device, as the understanding clause? Then, sir, if the Federal coarts knock that out, what is there left in our hands, what weapon, what instrumentality, by which we can deal ef- fectively with the situation? Suppose, sir, that they should saj- that your "son of a sol- dier," who is invested with the right of suffrage, is a proposition against the Federal Constitution. Is there any other device that occurs to this Convention by which we can meet that situation? Or, suppose they say that the exemption of the Confederate soldier from the poll tax is unconstitutional. Would there be any disposition in this body to put the poll tax upon the Confederate soldiers of this Commonwealth? So, I say, Mr. President, after mature reflection, that we have done the best we can; and if the Federal courts shall decide that what we have done is unconstitutional, we will have reached the end of our rope, and it will be beyond the power of this b>ody to deal with the situation that will confront it. The proposition of the gentleman from Richmond (i\Ir. Meredith) is practically to confer dictatorial powers upon him who hath presided with so much impartiality and dignity over the deliberations of this body. If the public emergency required 3280 DEBATES OE TEIE CONSTITUTIONAL CONVENTION OE VIRGINIA. that there should be a dictator within this Commonwealth, I know none at whose feet I would place the insignia of office with more confidence than the honorable gentle- man who is designated by this resolution. His public services date back to times beyond memory — to times when the law was silent, when he represented the rights of the people, and when the public sanction came from the cannon's mouth; and he has never yet betrayed a public trust. But it has been remarked, sir, by a wise student of human nature that unlim- ited power is a thing that no woman and very few men are fit for. That was the philosophy of an olden time which, I think, might be revised in the light of modern experience with the proposition that unlimited power is a thing that nobody is fit for. Why, sir, in the darkest days of the Revolution, when our people trembled in the balance to know whether they should be a new nation or British subjects, when the proposition was made in this Commonwealth to confer upon a governor the power to suspend the rights of the people, it was from the county of Chesterfield, repre- sented by my friend who has just spoken, that a noble patriot by the name of Archi- bald Cary sent the Governor of the State Avord that the moment he assumed such authority a dagger would be buried in his heart. But now, sir, in a time of profound peace, when no emergency exists, we pro- pose that this body shall continue in potential existence, and discretion shall be vested in the hands of a single man to determine what, Mr. President? To deter- mine, sir, whether every function of the State government shall cease. To determine whether the Governor and the executive officers of this Commonwealth shall ad- minister the laws. To determine whether the Legislature, the representatives of the public authority, shall exercise its functions. To determine whether the judges upon the bench shall longer sit in judgment and construe the laws of the Commonwealth. I say, sir, that there is no emergency which justifies the vesting of such power in the hands of any single individual. Mr. President, this is no new proposition. This is not the first time that men have thought that the work of their hands required extraordinary propping, and should be made immortal by extraneous means. Why, away back yonder, in one of the early republics, a law-giver, after swearing all the people that they would main- tain the Constitution until his return, went into voluntary exile and never returned, in order to fie up the hands of the people forever. The perpetuation of unlimited authority in the hands of any one man, or any set of men comes, I think, sir, with exceedingly poor grace from this Commonwealth of Virginia, where the liberty of the citizen has always been regarded as a cardinal doctrine of political faith, and where no usurpation has heretofore stained the annals of our public history. I say, gentlemen, that this resolution ought not to pass, in view of the fact that it is an unprecedented thing to vest in the hands of a single man an unlimited dis- cretion like this; in view of the fact that the time selected is too brief to accomplish the object these gentlemen have in view, and in view of the additional fact that, if you pass it, no matter who exercises or wields the authority, whenever differences arise as to this instrument which you have promulgated, whenever anything gets into court, and the people of the Commonwealth become dissatisfied with this instrument, they will be beseeching the presiding officer of this body to call this Convention back into existence in order to amend and revise it, so as to suit the passing whim or the popular idea of the moment. Mr. President, I am willing to have the work of this body stand upon its merits. I am willing that this Convention should deal fairly and sincerely with the people of this State, and that its members should go back and tell their constituents that they have done the best they could for them; that they have drafted an instrument which, in their judgment, fulfils the legal requirements, and that after having done that, they are unwilling to put themselves in the undignified and ungracious attitude (if I may DEBATES OE THE COXSTITUTIOXAL COXVEXIIOX OE VIEGIXIA. 3281 be permitted to say it) of extending their brief authority for a period beyond that which they were commissioned to exercise it, and of adding to the history of this State an attempt on the part of the representatives of the people to continue them- selves in authority beyond the public expectation — and I believe, sir, beyond the pub- lic good. Mr. Meredith: Mr. President, if no one else desires to speak on the resolution I have offered, I am prepared to make my remarks at this time. Of course, if any- one else desires to oppose it, I think I should be granted the privilege of replying. Mr. Chairman, the pending resolution has been characterized by the gentleman from Danville (Mr. Green) as having been bom in doubt. It may be so, Mr. Chair- man; but the question is as to whether it is a wise doubt. But whether that be true or not, surely, it is very evident that the opposition that comes to it has been born in fear. You have had portrayed before you the possibilities of a permanent convention. The extremity of such an idea must show you its fantastic nature. You have had sug- gested to you here, as one of the reasons why you should not vote for this resolution, the possibility that the President of this Convention may exercise the power given him for personal reasons. Xeed I reply to such an argument? And yet does it not show the extremity of the gentlemen who propose to antagonize this resolution when they are willing to offer that as a reason why it should be defeated? Why, if this were true, if it were possible that such a thing should happen, is it not evident that it would be a useless and a vain effort on the part of the presiding officer to please himself, when we all know that if he should call us into convention uselessly, and against our wishes, we would immediately adjourn? So, what could be the effect of such an idle effort on the part of the President? And yet that has been gravely suggested here by two gentlemen as one of the reasons why we should not pass this resolution. I have said, Mr. Chairman, that in addition to that, fears have been offered as reasons why we should not pass this resolution. It has been said that there is a possibility of our making ourselves a permanent power. Does any one for one moment believe that there is any possibility of such a thing? Then why should we consider that as a reason against taking a step that appeals simply to our common sense, in- stead of our wisest fears? Why, Mr. Chairman, we must all recognize the nature of a Constitutional Conven- tion. It is, in my opinion, a body of supreme power of command, but virtually of no power of putting into operation. And if it should ever come to pass that we should remain in existence so long that the people of this State should become tired of us, and the Legislature should call another convention, and we should undertake to antag- onize it, do vre not all know that otir efforts would be useless and vain, and without power, and that simply by the order of the Governor we would have to leave this hall, and that we could not protect ourselves, because we would have behind us none of the power of the State? We are, as I repeat, simply a body to command, and not to enforce; and the result of all our efforts depends entirely upon the power of the other departments of the State in carrying into effect our commands. Do we not know that that was the result of the convention that met in Rhode Island, which gave rise to what is called Dorr's rebellion? As to its having behind it at one time the majority of the people there was no doubt. But it did not have behind it the power of the government, the recognition of the government, and there- fore, it was without power to exist, or to carry into effect any of its commands. So I say to my friend from Warren (i\Ir. O'Flaherty) that if this thing should come to pass (which he must admit is purely a dream, and nothing in the world but a fanciful fear) it would result simply in our being turned out at the hands of tbe executive power of the State, because we could not protect ourselves. 3282 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. I therefore say, Mr. Chairman, that when we look at a question of this kind we ought not to meet it with extreme boldness, as my friend from Danville is inclined to do; because I want to say to him that the man who deliberately goes farther than is necessary is not bold, but is rash. All we ought to do is to go as far as neces- sary to secure what we believe to be the rights of the people, and the benefits we propose to confer upon them by this Constitution. Is there any reason why we should not take every step to carry into effect what we believe to be a good Constitution for this people? Are we to say, sir, because, in our opinion, whether as members of the legal profession, or as laymen, we have the power of proclamation, that therefore, we can count on what other people be- lieve? Have you not had raised in this body the voice of warning, when the gentle- man from Montgomery told you that he had not only altered his resolution because he did not believe this thing ought to be done, but that he did it in the hope that the Federal power in this country, through its judiciary, would be exercised to de- clare its works null and void? Mr. Chairman, I might make use of the remarks of the gentleman from Mont- gomery to stir your fears; but I do not propose to do it. If you do not yourselves appreciate the danger that lies in the wishes of the party the gentleman from Mont- gomery represents, it would be useless for me, and I should regard it as beneath my dignity, to undertake to influence you by your fears. I shall, in this case, appeal only to your judgment and to your common sense. Sir, there is no man in this body, I care not who he be, who believes more earn- estly than I do, in the power of this Convention to proclaim its work. I earnestly urged it, and I voted for it. But I am not so conceited as to believe that in that as in other things, I may not be grievously mistaken; and recognizing the possibility of mistake, recognizing the possibility that my judgment in that matter may be wrong, propose to take every step that I can that common sense dictates to protect the people from the evil effect of a mistake that I may have made. And I believe it to be the duty of every one of us to take the same line of action. What harm can be done by this resolution? Where can we do any injury to the State by passing this resolution? There is but one suggestion that has been made, and that was made in response to an inquiry made by the gentleman from Roanoke (Mr. Robertson) as to whether our work would not be so incomplete that the Con- stitution would not be in effect until we do adjourn. I respectfully submit that the gentleman can ask a question of that kind, but he will find it extremely difficult to support the affirmative of it. Can it be that this body is obliged to adjourn before the Constitution can go into effect? Upon what principle? Upon what authority? Where is the reason a Con- stitution cannot go into effect while the Constitutional Convention is in existence? If it has the power to declare what shall be, if it has the power to proclaim, where is the limit, except the limit of common sense, of justice and of fairness? Mr. O'Plaherty: Did you take the position that the legality of this Constitution would depend upon its recognition by the political department of this government? Mr. Meredith: Yes, sir. Mr. O'Plaherty: If that is the case, then, how can they recognize a thing when they do not know what it is going to be in full? That is my point about it. Mr. Meredith: That is not the question. Cannot the gentleman see the distinc- tion between changing a Constitution and the present existence of a Constitution? If we tell them that this is the Constitution now, do they not know that is the Con- stitution that is to be obeyed and to be recognized? Mr. O'Plaherty: Just take the example I gave a while ago. Suppose we change the suffrage article after the Legislature has convened, and after its members have sworn to support the Constitution with the article as it is now. Will they be swear- ing to support the Constitution which we may make hereafter, when we come back here, at some indefinite period, or the one that we have now? DEBATES or THE COXSIITUTIOXAL COXVEXTIOX OP YIRGIXIA. 3283 Mr. Meredith: I presume no man swears to support what is going to happen In the future. But that does not prevent the power of changing. The gentleman seems to think that inconvenience is a proof of lack of power. I respectfully submit that it is not. Mr. James AV. Gordon: As I understand, this Convention was called to revise and amend the Underwood Constitution. We have already provided that this Con- stitution which has been framed, and which is a new and amended and revised Constitution, shall go into effect on the 10th of July, If this Convention were to re- main in session, and come back here in the fall and attempt to exercise any powers, what Constitution would its members then be amending and revising? Mr. Meredith: They would be carrying out the power that was given them when they were called of amending the Constitution that they had suggested as an amend- ment, but which they deemed it necessary to further amend. That would be the result, in my opinion. It is contended here that because the power of amendment in the future exists, as we claim, therefore the Governor and the departments of the State could not recognize and carry out the Constitution as it has now been promulgated. Why, Mr. Chairman, do v:e not know that acts of Assembly are passed at every session and put in force and effect, although they may be. and sometimes are. repealed during the session? And yet, is there any difficulty in recognizing that as long as they are in existence they are to be obeyed, but that there is a power in the Legislature to change them when they see fit? I call attention, Mr. President, to the fact that all these fears of the gentlemen are of the fantastic nature that I have portrayed; that they are not apt to take place, that they are the extreme instances and illustrations that these gentlemen take, and that they are of such a nature that they ought not for one moment to affect us, if we believe we are pursuing a wise and a safe course. Xow. are we doing this? Is this a wise measure? It is certain, Mr. Chairman, that there is a great diversity of opinion in this State as to the power of the proclamation. It is certain, Mr. Chairman, that the Re- publican party of this State proposes to make a fight to have this Constitution de- clared null and void. It is certain, Mr. Chairman, that one of the grounds upon which they will make that fight will be that the Convention had no power to proclaim the Constitution. You are aware of that. You have been warned as to that. You have been told here deliberately that the fight will be made; and one of the grounds of the fight will be that yoti have no power to proclaim. What do you propose to do? To disband ourselves? That is what you are asked to do. You are asked to deliberately put yourselves in a position where yoti cannot meet that new situation. What do we ask you to do? We say that having been warned, we say that having been told, we say that believing without having been told that a fight may be made upon that ground, it is simply the wise course to pursue to keep yourselves in a posi- tion to meet the new issue. Xow. what appeals to your common-sense — not to your fears, not to your dreams, not to your extreme views of illustrations, but what appeals to your common-sense as lawyers or laymen as the proper course to pursue? I respectfully submit that you ought to keep yourselves in a situation where you can remedy the evil if you have done the evil; and 1. for one, no matter what argu- ments may be offered (as they have been offered here) that we are doubting what we said we believed, propose to pursue the path of safety for my people without regard to the sneers that may be thrown at my personal judgment or wisdom; and I propose to take that course which will give my people safety if I am able to do so. Sir, suppose we have this power; what is the result? When we adjourn we ad- journ. When the Constitution was proclaimed it became the Constitution; and we cannot meet again. The extent of the evil is that we have passed a resolution that vre cannot carry into effect. 3284 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIEGINIA. On the other hand, suppose it should turn out that we did not have the power of proclamation. Have we done the work the people called us to do? Have we ex- ercised the power that was given us? Have we become functus officio because we have done our work, when the fact is that we have not don© it? Why, gentlemen,, are you to reason in a circle? Are you to say that you are disbanded because you have done your work, when it may be directed by the decree of a court that you have not done it? Why, Mr. Chairman, one of the most remarkable things in this Convention is to see gentlemen like my friend from Pulaski (Mr. Wysor), who argued against pro- clamation, and denied the power to proclaim, and, I believe, my friend from Not- toway (Mr. Watson), who voted against proclamation, stand here on this floor and say that we have exercised our power along the strict lines of our authority, and that our work is complete. When did they come over to such a faith? Mr. Watson: The gentleman has stated correctly my attitude on the question of proclamation. I voted against proclamation, not because I ever doubted the power to proclaim, but merely the wisdom and the good faith of the exercise of that power. Mr. Meredith: Then I am glad that the gentleman is not of the new-born in the faith. But as to my friend from Pulaski (and I presume there are others here), let us notice the vote that is cast in this Convention, and see how many votes will be cast against the resolution by men who stood on this floor and said we did not have the power to proclaim. And yet when we are trying to protect ourselves from the possible danger that may come from an error of judgment, these gentlemen are the men who are now arising and telling us that we are perfectly safe, that we have only pursued the lines of authority that were given us, that the Constitution has been adopted in a proper way, and that there is no necessity for this resolution! On the other hand, Mr. Chairman, we who have fought for proclamation, we who have fought believing in proclamation, stand here to-day and say to you that while that may be the earnest belief and the strong faith on our part, yet we believe it to be only wise that we should protect the people from a possible error of judgment. Mr. Watson: Will the gentleman have any apprehension on the question of pro- clamation when the General Assembly of this Commonwealth shall have recognized the instrument as proclaimed? Mr. Meredith: I have no fears as to the power of a Constitutional Convention to proclaim. I believe that it has the power to proclaim, and that recognition by the Legislature and the executive departments simply makes assurance doubly sure as to that power; and having been recognized by them it ought not to be a judicial question. But who can tell what will be done by the court to which my friend will appeal, when the United States Court attempted to prevent the Constitutional Con- vention of South Carolina from even meeting? How can you tell what will be the exercise of the power of those courts. Right or wrong, it makes no difference; if it has the power, having once taken the step of trying to enjoin a Constitutional Con- vention from even meeting, do you not presume that by some reason it can get up an opinion in which it can say that this action on our part is void? It may under- take to put itself behind the constitutional provision that there must be a republican form of government, and maj say that under that provision the people must vote upon the Constitution. I say it is a wild dream; but who can tell to what extent the court may go, espec- ially on a question that involves a party measure? Now, Mr. Chairman, you have had the warning. This body has been told what it is proposed to do. This body has an opportunity to prevent the evil that may result from it. It is simply a question of the exercise of your common-sense to protect your- selves from a possible danger. It is along that line alone, sir, not designing to be over-bold, but simply to be wisely cautious, that I have offered this resolution, so as to protect us as far as possible from an error of judgment; and I earnestly hope that this resolution will be adopted. DEBATES OE THE CONSTITUTIONAL CONVENTION" OE VIRGINIA. 3285 Before I take my seat, Mr. President, I want to say that it was at the request of several members of this Convention that I asked that the change be made in the resolution so that it would read "the first day of January, 1903." I want to say, Mr. Chairman, that I put it at the first day of January, 1903, for the purpose of meeting, as far as I could, the arguments made here by gentlemen who claim that we want to perpetuate ourselves. My friend from Nottoway went so far as to intimate that it would flatter the vanity of this body to think that it was a permanent institution. Surely, he was joking. He could not have so bad an opinion of his associates as to think they for one moment would be ready to vote for a resolu- tion of this kind through any such motive. He must feel that the men who vote for it do so simply in the interests of the State, men who do not want to come back again, men who have suffered by reason of being here, but who are willing to suffer. Mr. Watson: I will say to my friend that I do not have so bad an opinion of my associates in this body, because I do not believe they are going to vote for it. Mr. Meredith: It is not a question of voting, but as to whether you think they will be influenced by the motives you have ascribed to them. I have said all I wish to say on this measure. I have offered it in the interests of the State, as a wise policy to pursue. In doing so I have pursued the same line I would pursue as a lawyer for a private client. I would not risk any man's case simply upon one line of de- fense, when I have two before me, and I do not propose in this case to risk the in- terests of the State simply upon my judgment, which may be in error. The President: The question is on agreeing to the adoption of the resolution offered by the gentleman from Richmond city. The question having been taken, the result was announced — ayes, 20; noes, 45 — as follows: Ayes — Messrs. Allen, W. A. Anderson, Manly H. Barnes, Thomas H. Barnes, Bris- tow, Brown, Cobb, Crismond, Epes, Fairfax, B. T. Gordon, Gregory, Hancock, Hardy, Mcllwaine, Meredith, Mundy, Parks, Richmond, Tarry — 20. Noes — Messrs. George K. Anderson, Barbour, Barham, Blair, Boaz, Bouldin, Brooke, C. J. Campbell, P. W. Campbell, Davis, Dunaway, Eggleston, Fletcher, Gilmore, James W. Gordon, Green, Gwyn, Hunton, Ingram, Claggett B. Jones, G. W. Jones, Keezell, Kendall, Lawson, Lincoln, Lindsay, Lovell, Marshall, Miller, Moncure, Thomas L. Moore, O'Flaherty, Pettit, Phillips, Pollard, Portlock, Quarles, Rives, Robertson, Smith, Stebbins, Stuart, Thorn, Thornton, Turnbull, Vincent, Waddill, Watson, Westcott, Willis, Wise, Withers, Woodhouse, Wysor — 54. The following pairs were announced: Mr. Daniel with Mr. Flood; Mr. Garnett with Mr. Hubard; Mr. R. Walton Moore with Mr. Harrison; Mr. Boaz with Mr. Hatton; Mr. R. L. Gordon with Mr. Carter. The first-named gentlemen in each instance would have voted in the affirmative. The resolution was rejected. Mr. Withers: Mr. President, I offer the following resolution: Resolved, That this Convention desires to express and put on record its apprecia- tion of and thanks for the hospitality, courtesy, and kindness of the citizens of Rfch- mond, so cordially and universally extended to this body and every member thereof. The resolution was agreed to unanimously. Mr. Waddill: I offer the following resolution: Resolved, That the thanks of this Convention be and the same are hereby tendered to the stenographers and pages of the Convention for their faithful and efficient ser- vices. The resolution was adopted. Mr. Thom: Mr. President, yesterday, by the unanimous voice of this Convention, a vote of thanks was tendered to our Secretary for his most courteous attention and 3286 DEBATES OE THE CONSTITUTIOi^AL CONVENTION OF VIRGINIA. efficient service. It was our purpose then, and it is our pleasure now, to confer upon him a somewhat more substantial token of our respect and esteem. For more than one year he has performed the duties of the recording officer of this Convention. During the whole of that period he has impressed himself upon us by his fine capacity and his great executive ability in dealing with his exacting duties. His official administration has been above criticism and beyond praise. But it is not on that side alone or chiefly, if I may be permitted to say so, that he presents himself to us. By his courtesy, by his kindness, by his sincerity, and by all those qualities that go to make up a lovable man, he has appealed to the tender side of this Convention, and has made each member of it his life-long friend. Each one of us, Mr. President, within the realm of friendship between man and man, has his John Anderson, his Joe John, and we hereafter will realize that for us, our John Anderson is "Our Joe." (Applause.) We beg that he will accept at our hands this token of our respect and esteem for him as an officer, and of our friendship and affection for him as a man. (Great ap- plause.) Colonel Button: Mr. President, officers, and members of the Convention: Your draft upon my gratitude has bankrupted my vocabulary. (Laughter.) How shall I express my gratification that this long personal and official fellowship should be crowned at its close with this expression of appreciation and kindly feeling. I have not words adequate to disclose the emotions that swell in my bosom. The kind and cour- teous treatment that I have received at the hands of the members and officers of this Convention, the pleasant associations and the delightful friendships formed will ever remain green and unfaded in my grateful memory. The sincere sentiment of my heart for each one of you, gentlemen, is that your pathway through life may be strewn with flowers, flowers that are ever fresh and fragrant. (Great applause.) PERSONAL EXPLANATION. Mr. Lincoln: Mr. President, may I be allowed just a word of personal explanation? The President: The gentleman may proceed. Mr. Lincoln: It seems to me, Mr. President, that I differ in my views from the gentleman who voted with me on the final vote on the adoption of this Constitution, as to the propriety of signing the Constitution as adopted. I simply wish to say that I consider the signing of the Constitution the equivalent of the vote that was cast this morning on the resolution of the gentleman from Fairfax, a resolution against which 1 heard no negative vote, and which was that the enrolled and signed copy of this Constitution be certified as the result of the work of this Convention, whether each member who signed it endorsed all that was in that instrument or not. I wish to say that originally, when the election was held for the purpose of calling a Constitutional Convention to revise and amend the Constitution of this State, I voted against the proposition. I did it not because I did not feel that in many respects the Constitution needed amendment, but because of certain pledges and Issues made in the Convention of a certain political party in this State, I feared that it was called with a partisan purpose in view, and for that reason I voted against the calling of the Convention. I was beaten in that vote, the result of which was that the people of Virginia called this Convention; afterward the people in the county which I represent called on me to represent them in this Convention. They elected me to this body, and I came here as a part of this Convention. I came, hoping that a Constitution would be adopted that would be an improvement on the present Constitution. I took part in the delib- erations — a small part, I must sslj — but I was present, and cast my vote on the various propositions that have come up, voting against a great many of them, not for the pur- pose of preventing the adoption of a new Constitution, but in getting a new one that we might have a better one. I did not vote for the propositions for the purpose of DEBATES OF THE CONSTITUTIONAL COXYEXTIOX OF YIEGIXIA. 3287 loading down or making odious the instrument that was adopted, so that the people would vote it dow^n when it was submitted to them. When I voted against a proposi- tion I did so because I hoped something better would be submitted. When the final vote was taken, along with a number of others, I voted no, not be- cause I wanted to defeat the adoption of a new Constitution for the State, but because I thought that if that Constitution, as proposed, were defeated, this Convention would pass in its stead other sections, and another Constitution that would be more satis- factory to myself and those I represent. I voted with that hope, Mr. President — a faint hope, it may seem, when the result of the vote is remembered, ninety to ten. But the principle is just the same. If there had been forty to sixty, as forty-nine to fifty-one, my vote would have been just the same, in the hope that if it was defeated there would be another Constitution adopted in its stead. I believe I may say that my votes in this Convention have not been cast according to the tally sheets — that is, for or against the proposition as the majority or the minority seemed to be voting for or against it. Whatever may have been the majority against the Constitution, I voted in the minority lor the purpose of preventing the adoption of the instrument that w^as adopted, in the hope that another would be sub- stituted in its stead, and that the State would have an improved and better Constitu- tion. The question of casting my vote here against the Constitution is a very differ- ent question from casting a vote against it for submission to the people. That was a bridge I did not attempt to cross until we came to it, and as I was prevented from coming to that bridge, I have not been bothering myself as to whether if we had come to it, I should have crossed it, swam the river, or decided that it made no difference which side of the river I was on. And now, in saying that I did not vote for or against the various propositions to make the Constitution odious and to weigh it down, I do not wish to say that any of the nine members who voted with me against the Constitution or voted against the various provisions, ever voted with that purpose in view, but I have heard it charged that some of them did so; and, in fact, have heard the same charge made against some of the most eminent members of the majority of the Convention. I voted against it; but, Mr. President, I think I know when I am beaten. This Convention has adopted a Constitution. I, this morning, exercised my privilege of signing it. I signed it to cer- tify it as the result of the work of this Convention; and I would say, that if I am con- vinced hereafter that it is unconstitutional — if I may apply such a term to a Constitu- tion — or if it contravenes the Constitution of the United States, which, I think, we all acknowledge is the higher authority; I say if I am convinced in the future that any section or the whole of it contravenes that Constitution I shall not consider that the fact of my having signed my name to this instrument precludes me from doing what I can to establish that fact. I deem it proper to myself that I should make this explanation of my vote against the final adoption of the Constitution, and of my signing the instrument as adopted. Mr, Stebbins: Mr. President, I desire to make a few remarks of a personal na- ture, and I deem this to be the best time I shall have to do so. I suppose in a very short time the gavel will fall, declaring the Constitutional Convention adjourned sine die. We should feel profoundly grateful to a kind Provi- dence which has mercifully spared the lives of all of us to see the completion of our labors. I am sure I voice the sentiments of every member of this body when I say that we are extremely gratified that our long and arduous labors are at an end; the im- portant mission which called us together has been accomplished; and we leave to the tribunal of public opinion to decide whether our work measures up to the hopes and expectations of those by whose partiality and kindness we were sent here. "When w-e assembled here on that bright June day, now more than a year ago, \ 3288 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. none of us realized the difficulties which lay before us, or the magnitude of the work we had undertaken. Only as we progressed in our work did it dawn upon us that outside of the difficult and perplexing subject of suffrage, to adjust the State in her organic law to present economic conditions was a task the magnitude of which the people of Virginia had never before undertaken. Speaking for my colleagues, I can say that never was responsibility met in a more patriotic and courageous way. Pri- vate interests have been subordinated to a supreme desire to promote only the wel- fare and glory of the Commonwealth, and the happiness and prosperity of her people. The personal sacrifice of each member cannot be computed. That we have made mis- takes no one will deny, for imperfection is written on everything that is human; but v/e can return to our homes with an approving conscience, realizing that we have done our duty to the full measure of the ability with which we are endowed, and believing an enlightened public sentiment will approve what we have done. Before we disperse to our homes and resume our ordinary vocations I wish to bear my humble testimony to the absolute fairness and impartiality which has character- ized the rulings of our distinguished President, and the dignity and propriety with which he has presided over the deliberations of this body. When I came here my personal acquaintance with him was but slight. I knew of him as one who, for half a century, had been prominent in the councils of the State, and in shaping her policy in some of the most critical periods of her history. A Vir- ginian by birth, imbued in his very nature with her history and traditions, a loyal, de- voted son, he brought as an equipment for this position exalted character, mature judgment, ripe experience, reverence for the past, a firm and intelligent grasp of the present and a hopeful outlook for the future. Although the frosts of many winters adorn his brow, his eye is undimmed, his natural strength is unabated, and within his bosom beats a heart as warm and as tender as when in young manhood's prime. I know of no more appropriate title to ascribe to him than that which has been applied to England's great premier and untitled lord; and I hail him as Virginia's "grand old man." In honoring him for this position we have honored ourselves. I cannot let this opportunity pass without saying something of the courtesy and kindness that has characterized the conduct of all the members during these delibera- tions, the patience and kindness which the older and more experienced have exhibited toward those who were novices in a deliberative body, the mutual helpfulness extended each other, and the deference and respect shown for each other's opinions. While the debates have been marked by earnestness and, at times, with warmth, the uniform courtesy displayed has obliterated all personal feeling, and left no scars; and each one leaves here feeling that each of his colleagues is his personal friend. I should be remiss in my duty if I should omit to bear testimony to the fidelity and efficiency of the clerks of the Convention, and of the various committees, and the pages, and other employees of the Convention, whose labors have added greatly to our comfort and convenience. A realization of mutual trials shared and mutual burdens borne in a common work has created in our breasts a spirit of fellowship and comradeship, and ties of friend- ship have been formed which only death can sever. Often in our quiet hours will our minds revert to those with whom we have been so pleasantly associated in the Conven- tion of 1901-1902, and in after years as we may meet, we will delight to recall the days passed here together. I shall carrj'- with me from this hall feelings of the most profound respect and af- fectionate regard for each one of you. We part; each one will take up the thread of his daily life; some of us will never meet again in this world. God grant that all of us may meet in "the general assembly and church of the first-bom in heaven." (Great applause.) Mr. Waddill: Mr. President, I beg leave to offer the following resolution: DEBATES OF THE COXSTITUTIOXAL COXYEXTIOX OF YIEGIXIA. 3289 Resolved, That the thanks of this Convention be and they are herebj' tendered the assistant secretaries, Messrs. George Lindsaj^ and J. N. Brennaman, and other offi- cers and employees of the Convention not embraced in the resolutions heretofore offered, for the faithful manner in which they have discharged their respective duties. The resolution vras adopted. Mr. Garnett: Mr. Chairman, I offer the following resolution: Resolved, That the thanks of this Convention be tendered to the ministers of the Gospel who have opened the sessions of this Convention with prayer. The resolution was adopted. On motion of Mr. Westcott a recess was taken until 4 o'clock P. AFTER RECESS. The Convention reassembled at the expiration of the recess, Mr. Thom in the chair. The Acting Chairman: The Chair understands that the gentleman from Roanoke (Mr. Robertson) has the floor. Mr. Robertson: The Chair insists upon the gentleman from Roanoke getting on the floor. As I do not know of any way of disobeying the Chair, I will have to take the floor. I suppose this is as good a time as any to rise to a question of personal privilege. It seems that nearly every member here desires to have expunged from the record anything that is disagreeable to other people, and I therefore desire to ask this Con- vention, if in any of the few arguments that I have had the honor and pleasure of making before this body I have said anything disagreeable to any gentleman upon this floor, that it be expunged from the record. (Laughter.) I am not conscious myself of having said anything of the kind; but people's tastes differ about what is agreeable and what is disagreeable. Very often a joke is very agreeable to the joker when it is very disagreeable to the jokee. (Laughter.) I desire that if any gentleman upon this floor feels that he has been aggrieved by anything I have said, either by way of pleasantry, or by serious condemnation, or appeal to conscience, or anything of that ki.nd, he will consider it not in the record, because I desire to part from this Convention with a feeling of love and respect in my heart for every member of it. I can say, in all seriousness, I have never been with a body of men who appealed more to my heart than the gentlemen who constitute this Convention. I have not only renewed the friendships of my youth, but I have formed new ties here that I will consider the most valuable possessions of my life. If I have accomplished nothing else — and you gentlemen know that I have occa- sionally been in the minority in this body (laughter) — I have formed friendships here that I know will do me good, whether we have done the State of Virginia any good or not. (Laughter.) I believe though, gentlemen, in all seriousness, that we have done the State a great deal of good. We have discussed everything on the face of the earth, on the face of the waters under the earth, and everything above the earth. (Laughter.) We have turned everything upside down, discussed it and rediscussed it and considered it. And if there be any wrong in the Commonwealth, the people, who will certainly read the reports of our speeches as soon as we get them thoroughly edited and pub- lished, will find out about it, and I have no doubt they will call another Constitutional Convention inside of a very few years to discuss the few matters that we have not disposed of in this body. (Greai daughter and applause.) ' Mr. O'Flaherty: Mr. President, I have a resolution here which I wish to offer: Resolved, That the thanks of the Convention be tendered to C. A. Boyce, Andrew Joyner, Horace A. Hawkins, A. H. Taylor, Walter E. Harris, E. D. Chesterman, and E. 207 — Const. Deb. 3290 DEBATES OF THE CONSTITUTIONAL CONVENTION OF VIRGINIA. G. Walker, of the Washington Post, the fair and gentlemanly correspondents, who have so faithfully and ably reported the proceedings of this Convention; and that a copy of this resolution be furnished each of these gentlemen by the Secretary of the Convention. Mr. President, I think it is not necessary to say anything in reference to that resolution. I believe every gentleman here will very gladly vote for it, as a just compliment to the gentlemen who have so ably reported the proceedings of the Con- vention. The resolution was adopted. Mr. R. Walton Moore: I move that the unfinished business be now taken up, and :hat we dispense with the reading of the ordinance. I understand the only changes that have been made are in respect to some names of members of the registration boards of some of the counties. I do not conceive that it is necessary to have the ordi- nance read at length. I move that the ordinance as now reported be adopted. The ordinance was adopted. Mr. R, Walton Moore: I move that the Convention do now adjourn sine die. Mr. Lindsay: One moment. Ordinance No. 2 has not been adopted by the Con- vention. That ordinance was referred to the Committee on Enrollment. It is in refer- ence to the charters. I move the adoption of that ordinance without reading. The ordinance was adopted. Mr. R. Walton Moore: Mr. President, unless there is some other business which the Convention desires to transact, I wish to have the honor of making the motion that the Convention adjourn sine die. Of course, if there is other business that ought to be attended to, the motion will be withdrawn for that purpose. Mr. T. L. Moore: Mr. President, I would like to suggest to the g!entleman from Fairfax that I think that is my motion. (Laughter.) I think I am entitled to the privilege of now having that resolution taken from the desk. (Laughter.) The President: The gentleman from Fairfax (Mr. Moore) — and he is reinforced by the gentleman from Montgomery (Mr. Moore) — moves that the Convention do now adjourn sine die. The motion was agreed to. The President: Gentlemen of the Convention, it only remains now for me to de- clare this Convention adjourned sine die. (Cheers and applause.) The Convention thereupon (at 4 o'clock and 45 minutes P. M.) adjourned sine die. I N 13 X A Adjournment: To what time, debate, 3266-85; sine die, 3290. Adoption of Constitution: Method of, 3100-3260. Agriculture and Immigration: Report of committee. 2040; amendments and debate, 2040-96. Allen, Otway S.: Election to succeed Virginius Newton, 1425. Amendments to Constitution: How may be proposed, 2610-24, 2752-9. Amendment to rules, 2931-6. Anderson, George K.: On oath, 16; ma- jority verdict, 420-28, 908; judiciary, 1474-6; judges' salaries, 1731-5; cor- porations, 2846-8. Anderson, William A.: Majority verdict, 419-20; superintendent of public in- struction, 1114-6; judiciary, 1522-4; corporations, 2392-4, 2395-2403,2805-6. Appeal: Right of, 393-6, 917. Appropriations: To sectarian institu- tions, 783-818; schools, 1244-8; Uni- versity of Virginia, 1712-21. Assassination of President McKinley: Remarks by W. E. Cameron, John W. Daniel and R. W. Blair, 318-9; resolutions of respect, 415; commit- tees under resolutions, 435; memorial exercises, 471-87; resolutions acknow- ledged, 687. Auditor of public accounts, 2741-3. Ayers, Rufus A.: On oath, 29; bill of rights, 243-55; quadrennial sessions, 513-5; abolishing treasurers, 876-8; executive department, 1044-6; peni- tentiary, 1249-53, 1263-6; state hospi- tal boards, 1289-90; corporations, 2813-4, 2829-31. B Barbour, John S.: Bill of rights, 174- 83; smaller juries, 364-5, 898; ma- jority verdict, 431-5; trial without jury, 890-91; executive department, 1039-40; judiciary, 1358, 1419-21; intoxicating liquors, 2137-9, 2578-86. Barnes, M. H.: Quadrennial sessions, 556-9; abolishing treasurers, 877-8; commissioners of revenue, 958-61; State hospital boards, 1294. Barbour-Quarles Resolution: (See "In- toxicating Liquors.") Blair, R.W.: Assassination of McKinley, 319; McKinley memorial, 485-7; board of education, 1095-6; corporations. 2404-6; suffrage, 3077-9; method of adopting constitution, 3116-39. L Board of Education: Composition, 1791- 1815; powers and duties, 1815-27. Board of Public Works: Abolition of, 2501. (See "Corporation Commis- sion.") Board of Supervisors: Their duties, 982- 1010, 1786-90; power to create bonded debt, 2891-2. Boaz, William A.: Quadrennial sessions of legislature, 491-3, 561-2; commis- sioners of revenue, 925-27; board of supervisors, 997, 1003; Univ. of Va. appropriation, 1713. Bouldin, Wood: Majority verdict, 906-7; board of supervisors, 991-3; judiciary, 1607-9; board of education 1801-2; method of adopting constitution, 3163-77. Braxton, A. C: Against taking oath, 4, 7, 56-71; trial without jury, 381-9; majority verdict, 396-404, 446-55; abolish committee of whole, 831-35; term of treasurers, 840-44; trial with- out jury, 880-82, 895; majority ver- dict, 900-904; freedom of speech, 910- 16; board of education, 1065-66; judi- ciary, 1458-66, 1477-9, 1583-6; muni- cipal franchises, 1974-7; corporations, majority report, 2140-71, 2228-34, 2419- 53, 2487-9, 2559-63; taxation, 2696- 2700; suffrage, 3008-10. Brooke, D. Tucker: Trial without jury, 884-6; board of education, 1165-6; judiciary, 1415-19; municipal corpora- tions, 1888-99; franchises, 2038-40; corporations, 2209-19. Brown, J. Thompson: Quadrennial ses- sions, 578-80; special legislation, 658, 669, 676; abolish committee of whole, 827-29; board of education, 1074-5, 1125-8; state penitentiary, 1273-5; judiciary, 1652-5; agriculture and im- migration, 2056-62. C Cameron, William E.: On oath 71-78; bill of rights, 194-204; personal state- ment, 205; assassination of McKinley, 318; executive department report, 1025, 1030; judiciary, 1421-25, 1629-31. Campbell, C. J.: Bill of rights, 256-259; board of super^'isors, 1005-6; board of education, 1073-4, 1087-8; judiciary, 1492-1503. Campbell, P. W.: Personal explanation, 230; judiciary, 1476-7; Univ. of Va. appropriation, 1718-9; intoxicating liquors, 2605. Cardwell, Richard H.: McKinley memo- rial, 476-7. 3291 1 3292 INDEX Carter, Hill: Bill of rights, 164-173; condemning property, 707-11; judi- ciary, 1376-80; intoxicating liquors, 2114-6; method of adopting constitu- tion, 3188-97. Commissioners of the Revenue: How ap- pointed and term of office, 924-73; re-election, 1780-6. Compulsory Education, 1232-7, 1835-8. Commonwealth Attorney, 1772-8. County Officers: See specific heads, as "Board of Supervisors;" Treasur- ers;" etc.; mode of election., 1769-82. County Organization: Report of commit- tee, 683-4; minority report, 684-5; consideration of majority report, 818-825, 835-1010, 1013, 1024; county officers, 1764-90; adoption of report, 1790. Committee of Whole: Discussion of, 319, 825-35; votes to abolish, 458-9, 835. Committees: On organization, 25; privi- leges and elections, 25; rules, 25; re- porting and publishing, 25; standing committees, 26-27, 89; death of Presi- dent McKinley, 435; on auditing, 641- 51. Common Carriers: Control of, 2196-2219; rates, 2219-43, 2257-2512; statistics, 2257-66, 2274-2305, 2383-92; negligence of, 2358-9; charters, 2505-8; right of way, conflict with telegraph and tele- phone companies, 2513-32; abolition of free pass, 2532-3; abridgment of state's right to control, 2534; lia- bility of employee of, 2572-3. (See "Corporation Commission;" "Cor- porations;" "Telegraph and Tele- phones.") Constitution of United States: Supre- macy of, 310-16. Contested Election Case: Argued, 683, 686; vote on same, 686. Corporation Commission: Need of, 2270; power of convention to create, 2315- 20, 2329-33; how appointed, 2337-39, 2340-48; powers in general, 2376-82, 2429-35, 2436-44; sec. 4, A. B., 2454-5, 2459-2571; power to fix rates, 2459-71; -relation to supreme court, 2468; ap- peal from action of, 2471-2, 2475-84; right of individual to present suit to, 2484-98; recommendations to gover- nor, 2500-1; power of general assem- bly to amend sections governing authority of, 2501-2; annual reports of 2534; sections governing, 2536-65; political affiliation of members of, 2565-7; salaries and terms, 2567-9, 2780-93; members of convention ineli- gible, 2854-6. Corporation Courts: Abolition of, 1722-4. Corporations: Reports and debates, 2140- 2579; majority report, 2140-71; minority views, 2172-96; control of common carriers, 2196-2209; regula- tion of rates, 2219-43; state's power, 2221; state's duty, 2227; fixing of rate a legislative function, 2233; review by supreme court, 2234; railway passes, 2253; rate statistics, 2257-66; Baxter's defense of, 2268; corpora- tion commission, 2270; rate discrimi- nation, 2274-2305; Hotchkiss' state- ment, 2311-13; power of convention to create commission, 2315-20, 2329- 33; carriers and telegraph companies, 2357-9; negligence of carriers, 2358-9; demand for legislation regarding, 2365-8; powers of corporation com- mission in general, 2376-82; Lums- den's statement, 2383-5; general de- bate, 2386; sec. 4 of report, 2454; sec. 4, subsec. B, 2454-5; amend- ments adopted, 2455; further amend- ments and debate, 2456-65; sub- sec. C, 2466-71; subsec. D, 2471-5; subsec. E, 2475-6; subsec. F, 247^-9; subsec. G, 2479-84; subsec. H, 2484- 2500; subsecs. I, J, K, L, 2500-5; sec. 5, 2505-8; sees. 6-20, 2508-34, sees. 2, 3, 2534-69; sec. 18, 2570-1; sec. 11, 2572-8; legislature's power to amend sections named, 2501-2; foreign cor- porations, 2533-4; revocation of charters of domestic corpora- tions, 2534; extension and amend- ment of charters, 2534-6; issue of stocks and bonds by, 2570-1; lia- bility of employees of, 2572-3; defini- tion of, 2573-7; report as amended, 2578; common carriers, 2775-6; con- sideration of various subsections, 2794-2835; fellow servants, 2835; con- tributory negligence, 2835-54; mem- bers of convention not eligible to cor- poration commission, 2854-6; report referred to committee on final adjust- ment, 2856. D Daniel, John W.: On oath, 9, 43-47; as- sassination of McKinley, 318; ma- jority verdict, 418-19; quadrennial sessions, 517-22; suffrage, 2943-57; ■iiethod of adopting constitution, 3100-4. Davis, B. A.: On oath, 84; judiciary, ] 557-8; suffrage, 3058-61. Debate: Limiting, 615, 879; vote on same, 924. Division of govermental powers, 2097. (See "Preamble and Bill of Rights.") Dunaway, W. F.: Bill of rights, 160-164; special legislation, 666-7 ; to incorpor- ate churches, 744-55; appropriations to sectarian institutions, 795-806; term of sheriffs, 820-21; compulsory education, 1232; state penitentiary, 1253, 1278-9; judiciary, 1405-8, 1428- 31, 1504-7; school bonds, 2021-3, in- toxic-ating liquors, 2602-5; suffrage, 3014-6; method of adopting consti- tution, 3197-3203; adjournment, 3268-9. INDEX 3293 E Education: Report of committee, 1018-9, 1050-1195, 1197-1248, 16G2-1704; main- tenance of University of Virginia, 1712-21, 1751-64; state board of educa- tion, 1791-1827; school trustees, 1828- 30; election of superintendent of pub- lic instruction, 1830-2; literary funds, 1832-3; free text-books, 1834-5; com- pulsory education, 1835-8; state in- stitutions. 1838-42; boards of visitors, 1842-4; Univ. of Va. appropriation, 1995; school bonds, 2005-2024; adop- tion of report, 2024. Eggleston, D. Q. : Quadrennial sessions, 586-98; commissioners of revenue, 936-7, 957; board of supervisors, 1009; board of education, 1202; state hospi- tal boards, 1295-7; judiciary, 1598- 1601, 1631-4; school funds. 1663-5; board of education, 1791-93, 1806-9. Elective Franchise: Report of commit- tee, 599-603; minority report, 603-6, 620-8; the suffrage article, 2937-40; proposed amendments and debate on suffrage article, 2940-3080. Employer's Liability: Section govern- ing, 2572-3. Executive Department: Report of com- mittee, 1011-13, 1025, 1050; election of governor, 1872-3; duties of gover- nor, 1873-4; governor's veto, 1874-9; lieutenant-governor, 1879-81; secre- tary of the commonvi^ealth, 1881-7, 2727-33; public printer, 2734-7; state treasurer, 2739-41; auditor of ac- counts, 2741-3, 2744. F Fairfax, Henry: Commissioners of re- venue, 929-30; Univ. of Va. appropria- tion, 1760. Final revision and adjustment, 3096-9; schedule, 3097-8, 3260-1. Flood, H. D.: Bill of rights, 278-290; parliamentary rules, 546, 549; board of education, 1210-12; state peniten- tiary, 1269-70; corporations, 2785-9. Foreign corporations: Powers in Vir- ginia, 2533-4. (See "Corporations.") Franchise tax, 2641-3, 2856-60. Freedom of speech, 910-16. Free Pass: Abolition of, 2532-3. (See "Common Carriers.") G Garnett, G. T.: Board of education, 1139- 40; intoxicating liquors, 2116-9. Gillespie, A. P.: Taxation and finance, 2651-2; suffrage, 3010-4. Glass, Carter: On oath, 13; bill of rights, 291-307; to incorporate churches, 767- 71; board of education, 1081-3, 1101-3, n40-4; school funds, 1218-21; judi- ciary, 1540-2; education, 1677-8; Univ. of Va appropriation, 1715-7, 1761-2; method of adopting constitu- tion, 3257-8. Goode, John: Address as president, 19- 22; McKinley memorial, 471-3; appro- priations to sectarian institutions, 787-9; acceptance of testimonial, 3264-5. Gordon, James W.. Bill, of rights, 231-3; majority verdict, 444-6, board of education, 1174-6; judiciary, 1533-4, 1740-1, 1743-4; cit^ treasurers, 1931-3. Gordon, R. Lindsay: Abolishing treasur- ers, 859-61; commissioners of re- venue, 935-6; state charities, 1236; agriculture and immigration, 2048-9, 2076-8; suffrage, 3021-2, 3061-5. Governor: Election of, 1872-3; duties, 1873-4; veto power, 1874-9. Green, Berryman: On oath, 7; bill ot rights, 100-107; smaller juries, 373-5; trial without juries, 889-90; corpora- tions, 2812-3; adjournment, 3274-6. Gregory, Roger: University of Virginia appropriation, 1717-8. H Hamilton, Alexander: On oath, 5; quad- lennial sessions, 536-40; auditing com- mittee, 641-2; appropriations to sec- tarian institutions, 789-91; term of treasurer, 977-8; board of education, 1130-1, 1802-4 ; j u d i ci a r y, 1655-6 ; school bonds, 2016-21; corporations, 2329-59, 2513-6; taxation, 2625-8; suf- frage, 3066. Hancock, B. A.: Bill of rights, 234-242; committee of whole. 326-328; smaller juries, 368-73; quadrennial sessions, 567-78; special legislation, 663-5; abolishing treasurers, 863-7 ; commis- sioners of revenue, 937-44, 970-3; term of treasurers, 978; board of supervisors, 997-9; board of educa- tion, 1149-50; state hospital boards, 1297-8; judiciary, 1356-8; school funds, 1678-81; corporations, 2521-3; suf- fraa-e, 3006-7; 3073 6; adjournment, 3271-2. Hardy, L. A.: State penitentiary, 1272-3; state hospital boards, 1297. Harrison, T. W.: Bill of rights, 155-160; quadrennial election house of dele- gates, 459-60, 488-91; commissioners of revenue, 965-6; term of treasurers, 979; board of education, 1077-9; judi- ciary, 1403-1405, 1641-4; city councils, 1934; corporations, 2314-20; how amendments to constitution to be proposed, 2611-3; method of adopting constitution, 3104-16. Hatton, Goodrich: Bill of rights, 113- 6; quadrennial sessions, 583-6; con- demning property, 720-22; judiciary, 1525-7; taxation, 2628-32; suffrage, 3016-7. Heirs of property, slaves, etc., 2108. (See "Preamble Bill of Rights.") Hospitals for the Insane: Board of directors of, 1288-1304. 3294 INDE X House of Delegates: Who are eligible, 616; pay of members, 618; time of meeting, 618; powers and privileges, 618-19. Hubard, E. W.: Agriculture and immi- gration, 2063-4; intoxicating liquors, 2593-4. Hunton, Eppa: Right of appeal, 393-5; majority verdict, 436-44; county offi- cers, 1008; state penitentiary, 1261-2, 1270-2; judiciary, 1306-12, 1362-4, 1432-9, 1534-40, 1723-4,1735-6; corpora- tions, minority report, 2171-2196; cor- porations, 2311-4. Impeachment: Proceedings, 634; what officers liable to, 637-641. Inauguration: State officers, 1707; ad- dress of President, 1708-9; inaugural address, 1709-11. Industrial and Manufacturing Interests: (See "Agriculture and Immigration.") Ingram, J. H.: On oath, 47-50; McKinley memorial, 482-4; condemning prop- erty, 714-20; judiciary, 1390-93; legis- lative department, 1845-8; corpora- tions, 2196-2209; suffrage, 3072-3. Interstate Commerce Act: Corporation committee's minority report based upon, 2217; interstate commerce com- mission, 2218, 2228-30, 2235-7, 2241-2, 2252, 2274-6, 2295-8, 2315. (Seq "Com- mon Carriers;" "Corporation Commis- t3ion;" "Corporations.") Intoxicating Liquors: Sale of, 2108-39; dispensary, amendment proposing, 2137; debate on same, 2137-9, 2578- 2610; motion to strike out dispensary clause, 2598, 2748-52. J Judiciary: Debate on report, 1306-1662; system of courts, 1306-1450; com- position of circuits, 1451-1543; selec- tion of judge, 1543-73; salaries of judges, 1573-1612, 1725-39; supreme court jurisdiction, 1613-35; arrange- ment of circuits, 1635-62, 1721; cor- poration court, 1722-4; justices of the peace, 1740-7; adoption of report, 1750; supreme court judges, 1888; additional section reported, 3045; corporation court judges, 3082. Judicial Circuits: Composition, 1504, 1721. Jury: Trial without, 331-54, 879-97, 381- 393; number to compose, 355, 456-7, 899; majority verdict, 396-455, 900- 909. Justices of the Peace: Statutory pro- visions, 1740-6. K Keezell, George B.: Bill of rights, 183- 188; auditing committee, 647-9; spe- cial legislation, 662-3, 681-2; term of treasurers, 838-40; abolishing treas- urers, 861-63; commissioners of revenue, 930-32; board of supervisors, 9S7-S, 1009-10; term of treasurer, 1019-22; board of education, 1067-71, 1088-93, 1134-5, 1180-1; state peniten- tiary, 1275-7 ; judiciary, 1468-74, 1520-2; Univ. of Va. appropriation, 1714-5, 1755-7; re-election of treasur- ers, 1767-9; school bonds. 2008-15; suffrage, 3007-8. Kendall, Gilmor S.: Quadrennial ses- sions, 507-9; special legislation, 676-7; abolishing treasurers, 875-6; com- missioners of revenue, 957-8; board of education, 1136-7; corporations, 2219- 28, 2234-43; intoxicating liquors, 2599-2600; corporations, 2783-4. L Legislative Department: Report of com- mittee, 188-194; minority reports, 204, 355; quadrennial sessions, 459-71, 488-615; members free from arrest, 628; how committees are discharged, 629; how laws are enacted, 629-30; standing committee, 631; title of laws, 631; when laws take etfect, 634; method of impeachment, 634-5; ap- portionment for members of con- gress, 635; private laws, 651; biennial sessions, 1845-55; adoption of report, 1871. Lieutenant-Governor: Election, 1879-80; duties, 1880-1. Lindsay, J. H.: Term of treasurers, 844-45; board of education, 1057-8, 1702-3; agriculture and immigration, 2093; intoxicating liquors, 2110-1, 2597-8. Local Option: (See "Intoxicating Li- quors ; " "Preamble and Bill of Rights.") M Marshall, James W.: Bill of rights, 259; quadrennial sessions, 493-5; board of education, 1113-4; judiciary, 1481-3; Univ. of Va. appropriation, 1720-1. Mason Law (Corporations) : Compared with corporation committee's minor- ity report, 2204-7, 2249; ineffective- ness of, 2271; history of, 2435-6. (See "Common Carriers;" "Corpora- tion Commission;" "Corporations.") Members of Convention, 1-3. Memorial Exercises: Death of President McKinley, 471-87. Meredith, Charles V.: Smaller juries, 456-7; quadrennial elections, 540-5; condemning property, 725-31; appro- priations to sectarian institutions, 806-13; executive department, 1046-7, superintendent of public instruction, 1105-9, 1119-21; board of education, 1214-16; compulsory education, 1234-6; state penitentiary, 1266-8, 1284-5; judiciary, 1351-6, 1393-7, INDEX 3i:95 14SS-91, 1594-6, 1624-6; Univ. of Ya. appropriation, 1712-3; board of educa- tion, 1795-7. 1804-5; municipal cor- porations, 1952-7; municipal fran- chises, 1992-4; agriculture and immi- gration, 20S2-5; corporations, 23 60-52"; taxation, 2632-40, 2661-6; corpora- tions, 2S3S-41; method of adop^^ng constitution.. 3226-45; adjournment, 3266-S, 32S1-5. Moore. R. TValton: On oath, 11, S5-S7; against committee of whole, 319; for smaller juries, 355; quadrennial elec- tions, 460-71; parliamentary rule, 548; auditing committee, 643; special legislation, 679-Sl; condemning prop- erty, 724; to incorporate churches, 771-7; term of treasurers, 845-6; county accountant. 1024; board of education. 1098-1101; judiciary, 1359-62. 1527-32; method of adopting constitution. 31S1-S. Moore, Thomas L.: Bill of rights. 226- 230; McKinlev memorial. 42S-5; board of education 10S3-7; adjourn- ment. 3277-S. Montague. A, J.: Inaugural address, 1709-11. Municipal Corporations: Organization and government, 1888-99; charters, 1899-1903; corporation court judge, 1903-9; clerk of court, 1909-1910; commissioner of revenue, 1910-17; treasurer. 1917-34; city councils, 1934-52. 2024-32: mayor, power of veto. 1952-60; franchises, 1960-85, 1991-5. 2002-5. 2032-40: form of government, 2760-75. Mcllwaine. Richard: Bill of rights. 242; McKinlev memorial, 479-S2; limiting debate, 615; special legislation. 673; to incorporate churches, 755-9; public instruction, 1050-6, 1071-3; board of education. 1181-4; compulsory educa- tion. 1333-4; judiciary, 1431-32; school funds, 1667-70; Univ. of Va. appropria- tion. 1713-4. 1719-20: city treasurers, 1921-3; suffrage, 29^6-3006. N Xewion. Virgirius: Quadrennial session, 550-6, 562-3, 606-12; commissioners of revenue, 928-29; resignation of, 956. O Oath: The debate thereon, 3-17, 29-87; vote on question. 17, 88. Oyster Legislation: Retention of beds by state, 2SS0-1. (See "Taxation and Finance.'") OTlaherty, D. C: Bill of rights. 132- 142; against smaller juries, 359-362; i majority verdict, 428-31; quadrennial ; sessions, 529-36; auditing committee. 644-5; special legislation, 677-9; right of appeal. 917-19; commissioners of revenue, 963-5; board of supervisors, 1007; board of education, 106D-64, 1128-30, 1697-1702; judiciary, 1380-90; 1544-8; Univ. of Ya. appropriation, ' 1751-3; agriculture and immigration, 2074-5; intoxicating liquors, 2108-11, 2119-20; corporations, 2540-2; ad- journment, 3276-7. P Parks, R. S.: Bill of rights. 142-151; smaller juries, 457; eligibility for legislator, 616-17; special legislation, 653-4; condemning property, 711-14; board of supervisors. 1006; judiciary 1556-7; agriculture and immigration, 2047-S; corporations, 2516-20; intoxi- cating liquors. 2600-2; Parliamentary Rules: Discussion of. 546- 550; change of, 687. Fedigo. A. L.: Bill of rights, 210-213; suffrage, 3046-58; method of adopting constitution, 3178-81. Pensions: Special tax for, 2913-31. Pettit, William B.: Temporary chair- man, 1; bill of rights. 10S-il3; ma- jority verdict, 404-10. 907-08; abolish- ing treasurers, 876-7; trial without jury. 8S2-4: commissioners of revenue. 932-34; board of education, 112S. 1145-7. Pollard. John Garland: On omitting word '■■Christian" from bill of rights, S2S-30: judiciary, 1426-S. Portlock, Y'illiam X.: Special legisla- tion, 659-60. 670-3; term of sheriffs, 822-23; abolishing treasurers, 868-72; commissioners of revenue, 961-63; executive department, 1047-8; board of education. 1176-9; , state peniten- tiary, 1257-61; state hospital boards, 1298-1300; judiciary. 1507. 1517; judges' salaries. 1737-9; agriculture and immiarration. 2049-50; stiffrage, 3032-4. Preamble and Bill of Rights: Report of committee, 91; amendments pro- posed. 95-97. 99; debate on. 100-188, 194-307; motion to strike out art. 11. 310; speeches on same. 311-316; home- stead exemption. 2098.2107; stay laws. 2107; heirs of property. 2108; sale of intoxicating liquors, 2108-2139; sec. 1 and amendment proposed, 2108-ll; debate on, 2112-2139; licensing saloons. 2578-2610; amendments to constitution, how proposed. 2610- 2624; exemptions from execution and attachment, 2745-8; local option laws, 2748-52: changes in constitution, 2752-9. Preamble: Amendments to. 95. 99: dis- cussion of. 100-188. 194-307. Proclamation: Right of, 117-307. 3100- 3260. Property: Condemning for public use, 687-732; right of churches to hold, 732-782; heirs of. 2108; exempt from execution or attachment. 26S1-2700. 2860-80, 2882-9; assessments of, 2902-7. 3296 INDE X Public debt of Virginia, 2892-2902; litiga- tion withi West Virginia over, 2892- 2901; sec. 22 of taxation committee's report withdrawn, 2902. (See "Taxa tion and Finance.") Public Institutions and Prisons: Report of committee, 1196-7; state peniten- tiary, 1249-1288; adoption of report, 1871. Public Instruction: (See "Education.") Q Quarles, J. M.: On oath, 78-84; commit- tee of whole, 821-326; majority ver- dict, 410-14; term of treasurers, 837-8; board of education, 1058-60, 1157-62; judiciary, 1408-15, 1451, 1458, 1466-8, 1517-9, 1723; intoxicating liquors, 2586-93. R Railroads: (See "Common Carriers;" "Corporations.") Railroad Commissioners: Abolition of, 2501. (See "Corporation Commis- sion.") Recess of Convention, 2465. Reduction of Expenses: Reports of com- mittee, 94, 98, 108, 116, 131, 255-256. Resignation of Mr. Newton, 956. Richmond, J. B.: Bill of rights, 205-210; smaller juries, 375-9; quadrennial sessions, 509-13, 559-61; board of education, 1147-9; judiciary, 1601-3. Roads: Public, appropriation for, 2889-92. (See "Taxation and Fi- nance.") Robertson, W. Gordon: Smaller juries, 366-8; trial without jury, 391-3; majority verdict, 415-18; quadrennial sessions, 522-28; special legislation, 651-3; condemning private property, 687-96, 722-24; to incorporate churches, 733-44; appropriations to sectarian institutions, 792-4; board of super- visors, 988-91; county treasurers, 1016-8; state hospital boards, 1302; judiciary, 1313-28, 1343-6; county offi- cers, 1765-7; city councils, 1934-6; corporations, 2243-54; amending con- stitution, 2614-6, 2619-21; method of adopting constitution, 3204-11. S Salaries: Judges, 1725-39. Schedule, 3097-8. School Trustees: Election and term, 1828-30. ■ Secretary of the Commonwealth: Elec- tion, 1881; duties, 1882-7; how elected, 2727-33. Senate: Election of members, 3093-6. Sheriff: Term of, 818; do work of treas- urer, 846-878, 1778. Smith, Francis L.: Special legislation, 654; bill of rights, 920-23; V. M. I. appropriation, 1986-91. State Charities, 1237-1244, 1304-5. State Library: Management, 1186-93. State Treasurer: How elected, 2739-41 2744. Stebbins, Joseph: Bill of rights, 151-155; quadrennial sessions, 580-3; to incor- porate churches, 759-67; board of education, 1173; corporations, 2254-69, 2382-92; personal privilege, 3287-8. Stuart, Henry C: Special legislation, 669-70; abolishing treasurers, 875; board of supervisors, 994-5; board of education, 1168-70; agriculture and immigration, 2040-7, 2064-6; personal privilege, 2453-4. Suffrage: Right of, 2937-3080; the suff- rage article. 2937-40; method of con- sideration, 2940-3; presentation of re- port and general discussion, 2943-57; sec. 1 and amendnrents, 2957-8; sec. 2, temporary understanding clause, 2958-3018; sec. 3, preparation of bal- lot, 3018-24; sees. 4, 5, 6, adopted, 3024; sec. 7, kind of ballot, 3024-5; sees. 8, 9, adopted, 3025; sec. 10, elec- tors, 3025-9, sec. 11, electoral board, 3029-39; sees. 12 to 16 inclusive, adopted, 3039-40; independent section, balloting machines, 3040-1; sec 17, lists, 3041-4; substitute for suffrage article, 3044-77; adoption of article and reference to committee on final revision, 3080. Summers, John C: Bill of rights, 213- 226; smaller juries, 379-81; judiciary, 1347-8, 1548-56, 1574-6; intoxicating liquors, 2594-7; taxation, 2649-51. Superintendent of Public Instruction: (See "Education.") Supreme Court: Jurisdiction, 1613-35, 1721; election of judges, 1888; power over corporation commission, 2468. T Taxation and Finance: Report of com- mittee, 2624; discussion and amend- ments, 2624-2727 ; taxation in general, 2625-30; reassessment of real estate and special assessment, 2630-41, 2643-6; . income tax, and licenses, franchises, etc., 2641-3 ; capitar tion tax, 2646-53; running of statute of limitations against taxa- tion, 2653-60; com.mon carriers, 2661-70; franchise tax on carriers, 2670-1; report of state (corporation commission of property liable to tax, 2671; mode of relief, 2672-3; fran- chise tax, 2673-82; property exempt from taxation, 2681-2700; contracting of state debt, 2701-2; collection and disbursement, 2702-4; amendment to and discussion of miscellaneous sec- tions, 2704-27; sec. 3, 2856-60; sees. 4, 5, 6, 7, 2860-80; sees. 8 lo 15, 2880-2; sees. 16 to 23, 2882-92; reconsideration of sec. 22, 2892-2902; reversiofi to sec. 2, assessments of real estate, 2902-7; INDEX 3297 independent sections, 2907-31; ref- erence to committee on final adjust- ment, 2931. (See "Pensions;" "Pub- lic Debt;" "Property;" "Oysters;" "Roads.") Telegraplis and Telephones: Regula- tions, 2513-32; conflict with common carriers, 2515-32; rights of cities and towns in regard to, 2520-25; fixtures, 2525-7; negligence, 2530-2. (See "Cor- porations.") Testimonial to President, 3263-5. Thorn, A. P.: On oath, 15, 30-42; to incorpo- rate churches, 777-82; appropriations to sectarian institutions, 794-5; com- missioners of revenue, 925; board of education, 1094-5; judiciary, 1348-50, 1397-1402; municipal franchises, 1964-9; corporations, 2406-19, 2459-62, 2794-8, 2841-5; suffrage, 2958-93; method of adopting constitution, 3246-57; personal privilege, 3261-2. Thornton, J. B. T.: Auditing committee, G49-50; term of sheriffs, 821-22; abolishing treasurers, 855-59; board of education, 1136-9, 1152-3. Treasurers: Term of, 836; to abolish office of, 846-878; vote to abolish, 878; ineligibility after second term, 973-81, 1019-23; re-election, 1767-9. Tudor, Rev. W. V., D. D.: Praj^er and address McKinley memorial, 473-5. Turnbull, Robert: Quadrennial sessions, 495-507; parliamentary rule, 547; auditing committee, 642; special legislation, 655-6. 660-61, 673-6; appro- priations to sectarian institutions, 813-15; trial without jury, 886-9; board of supervisors, 982-7, 999-1003; e.vecutive department, 1031-2, 1036-8; state hospital boards, 1295, 1300-1; judiciary, 1613-15; school funds, 1671-7; intoxicating liquors, 2111-4, 2122-4. Tyler, .J. Hoge: Address, 23-24; McKinley memorial, 475-6. U University of Virginia: Appropriation for, 1712-21, 1751-64, 1838-42. V Virginia Military Institute: Appropria- tion for, 1751-64, 1838-42, 1986-91. Waddill, S. P.: Personal statement, 233; trial without jury, 389-91, 892-95; special legislation, 661; board of su- pervisors, 9096; state hospital boards, i 1302-3; board of education, 1681-9. Walker, C. Harding: Right of appeal, 917-18; state penitentiary. 1280-2; judiciary, 1439-40. Watson, Walter A.: Term of treasurers, I 836-7, 973-7; board of education, 1131- I 34, 1198-1200, 1798-1800; school funds, I 1221-8; state hospital board, 1291-2; ■ agriculture and immigration, 2070-3; I suffrage, 3066-72 ; adjournment, I 3278-81. j West Virginia and Virginia: So-called j "public debt," 2892-2902. I Westcott, N. B.: Against smaller juries, 362-364; condemning property, 696- 707; board of education, 1809-10: in- toxicating liquors, 2126-37, 2605-10; adjournment, 3269-71. Wicidiam, Henry T.: McKinley memo- rail, 477-9. Wise, George D.: Smaller juries, 365-6; j quadrennial sessions, 612-14; eligible for legislator, 617-18; abolish commit- tee of whole, 829-31; superintendent of public instruction, 1110-1; suffrage, 3065-6; method of adopting constitu- tion, 3139-63. I Withers, Eugene: Quadrennial sessions, I 515-17, 563-7; to abolish committee i of whole, 825-27; to abolish office of i treasurers, 846-55, 872-74; commission- ers of the revenue, 944-55, 966-70; term of treasurer, 1023; board of education, 1097-8; judiciary. 1328- 1340, 1371-6, 1440-50, i485-7; executive department, 1882-85; corporations, 2269-2311. Wysor, J. C: On oath. 6. 50-56; bill of rights, 117-130, 260-277; term of sheriffs. 818-19; compulsory educa- tion, 1234; city treasurers, 1925-8; corporations, 2320-9; amendments to constitution, 2618-9; taxation. 2706-13; corporation, 2836-8; suffrage. 2993-6; method of adopting constitution, 3210-26; adjournment, 3272-4. V1 rgtnla. Const 1 tu t 1 o n al Convention, 1901, Report of the proGeedlng.q and debates. . . . vol . 2 ^ DATE I ISSUED TO 1 lo -4- u, \ \ ^ - ■ - t'^"'^ f