SENATE DOC No. IX.
h V,
LUEiPOUlT
OF THE
SELECT COMMITTEE OF THE SENATE
RELATIVE TO
THE SIGNING OF THE BILL PROVIDING FOR THE USE OF CONVICT
LABOR ON THE JAMES RIVER AND KANAWHA CANAL.
Resolved, That a committee of three he appointed to ascertain and report whether
the bill entitled ua bill to provide for the use of convict labor on the James river
and Kanawha canal," passed by the Senate on the 11th day of December, 1877, had
been signed by the presiding officer of this body, or the Speaker of' the House of
Delegates, or enrolled and examined by the committee on enrolled bills, before it
was presented to the governor for his signature; and, if it had not been enrolled
and examined, how and why it went out of the custody of the keeper of the rolls
until it was properly prepared for the signature of the governor ; and to report any
other matter the committee may deem pertinent or proper in regard to said bill.
Such committee shall have power to send for persons and papers.
Agreed to by Senate December 14th, 1877.
SHELTON C. DAVIS,
■ Clerk of the Senate.
*
Committee—Messrs. Hurt of Pittsylvania, Murray, and Marshall.
t
Senate Doc. No. 9. 3
REPORT.
SENATE CHAMBEB,
Bichmond, Ya., December 18, 1877.
In response to the foregoing resolution, the committee reports that they have
made the enquiries directed therein and find that the hill referred to therein was
never signed by the presiding officer of the Senate or the Speaker of the House of
Delegates; that it was not enrolled or examined by the committee on enrolled bills
before the obtaining of the governor's signature, nor has it to this day ever been before
either committee on enrolled bills. The keeper of the rolls states that he handed the
bill to Major John W. Johnston, President of the James river and Kanawha canal
company before it was signed by the governor, and that Major Johnston brought it
back to him with the signature of the governor to it; and the communication made
to the Senate of Virginia on the 13th instant, by the governor, states that the said
bill was delivered to him about 10 o'clock on the morning of the 12th instant, by
Major Johnston, and approved by him at once.
We file herewith, as part of this report, exhibits "A," " B," 5< C," " D," aE,"
"F," "G-" and "H," the la«t five of which tend to show that there was no
intentional wrong upon the part of those who committed the error.
The committee recommends the adoption of such means as will prevent the recur¬
rence of such a proceeding, and especially of the adoption of an amendment to the
14th section of chapter 14 of the Code of 1873, so that the said section shall read as
follows : " The clerk of the House of Delegates shall be the keeper of the rolls. As
such he shall cause all the acts and joint resolutions of the general assembly to be
enrolled on substantial paper of uniform size, and after they shall have been exam¬
ined by the committees on enrolled bills and signed by the President of the Senate
and Speaker of the House of Delegates, and then approved by the governor, he
shall cause the same to be bound in one volume, in durable style. He shall have
the custody of the acts and resolutions of the general assembly and the records and
papers of the House of Delegates ; and, when required, shall furnish a copy of any
of them, which copy being certified by him, shall be evidence .for any purpose for
which the original would be received, and with as much effect. He shall, as soon
as practicable after the passage of every act or joint resolution, prepare the same
for publication and furnish to the superintendent of public printing the manuscript,
properly arranged for being printed ; and he shall, as soon as practicable after the
adjournment of the general assembly, furnish the index and the table required by
law, and shall superintend the publication of such acts, resolutions, tables and index,
in connection with the superintendent of public printing..
All of which is respectfully reported and submitted.
JOHN L. HUBT, Chairman.
4
Senate Doc. No. 9.
EXHIBIT "A."
✓
STATEMENT OF CHAIRMAN OF SENATE COMMITTEE ON ENROLLED
RILLS.
SENATE CHAMBER,
Richmond, Va., December 17th, 1877.
House bill No. 1, known as a bill entitled 11 a bill to provide for the use of convict
labor on the James river and Kanawha canal," passed by the Senate on the 11th of
December, 1877, was never before the committee of the Senate on enrolled bills, and
therefore could never have been examined and reported by said committee.
A. KOINER,
Chairman of the Committee on Enrolled Bills.
EXHIBIT "B."
STATEMENT OF CHAIRMAN OF THE COMMITTEE OF THE HOUSE OF
DELEGATES ON ENROLLED BILLS.
HOUSE OF DELEGATES,
Richmond, Va., December 17th, 1877.
House bill No. 1, known as a bill entitled "a bill to provide for the use of convict
labor on the James river and Kanawha canal," passed by the Senate on the 11th of
December, 1877, was never before the committee of the House of Delegates on en¬
rolled bills, and therefore could never have been examined and reported by said
committee.
P. H. McCAULL,
Chairman of Committee on Enrolled Bills for House of Delegates.
EXHIBIT "C."
STATEMENT OF CLERK OF SENATE.
At the request of the committee appointed to investigate and report upon certain
matters in connection with House bill entitled "an act to provide for the use of con¬
vict labor on the James river and Kanawha canal," I most respectfully submit the
following brief statement:
The bill referred to was brought to .the Senate on the 10th December, 1877, by
Hon. Thomas S. Bocock, special messenger from the House of Delegates, and on the
Senate Doc. No. 9.
5
following day (the 11th instant) was taken up and passed by the Senate, without
amendment.
Under the 18th rule of the Senate, House hills are required to remain under the
control of the Senate, after passage or rejection, for the space of two days, unless
otherwise ordered; and, of course, this bill came under the provisions of said rule.
On the motion of the senator from Halifax (Mr. Hurt) that rule was suspended,
in order that the fact of the passage of the bill might be forthwith communicated to
the House of Delegates, but the President of the Senate failing to designate a senator
to make said communication, it became the duty of the clerk of the Senate, after the
adjournment of the Senate that day, to make that communication in the manner
prescribed by rule of the Senate No. 53; which rule is in these words:
"53. The clerks of the Senate and House of Delegates may interchange messages
at such time between the hour of adjournment and that of meeting on the following
day as that the said messages may be read immediately after the orders of the day."
Upon the suspension of rule 18, for the purpose indicated, the President announced
that the said communication would be made by the clerk on the following day at 12
o'clock. But the mere announcement by the Chair that the fact of the passage by
the Senate of the bill would be communicated to the clerk of the House of Dele¬
gates on the following day at 12 o'clock, could not have been intended to interfere,
in any manner, with the order of the Senate, and the uniform practice in all such
communications. But even if so intended, such a direction could not confine the
clerk to that particular hour, in the face of the rule above recited, which expressly
prescribes the times within which communications between the clerks of the two
houses may be made.
My communication to the clerk of the House of Delegates, announcing the action of
the Senate on the bill referred to, was written after the adjournment of the Senate on
the 11th instant, and delivered, together with the bill itself, to the clerk of the
House of Delegates (who is also keeper of the rolls) on the morning of the following
day—I think, between the hours of 9 and 10 o'clock. On that morning (12th
instant) just before I delivered my communication to the clerk of the House of Dele¬
gates, the senator from Pittsylvania (M. Hurt) was, at his own request, shown the
bill referred to at the table of the clerk of the Senate, and the said senator then
requested me to withhold the said communication, as he desired to have the bill
recalled from the House of Delegates. This I declined to do, for the reasons, as I
informed him substantially, that to do so would not only be in violation of a rule of
the Senate and the uniform practice, but incompatible with my sense of official duty.
Kespectfully submitted,
SHELTON C. DAVIS, C. S.
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Senate Doc. No. 9.
EXHIBIT "D."
STATEMENT OF CLERK OF HOUSE OF DELEGATES.
OFFICE OF CLERK OF HOUSE OF DELEGTES,
AND KEEPER OF ROLLS OF VIRGINIA,
Richmond, December \bth, 1877.
John L. Hurt, Esq.,
Chairman, $c. :
Sir:
I understand the questions propounded to me by the committee of the
Senate, appointed to make some enquiries in regard to House bill No 1, entitled an
act to provide for the use of convict labor on the James river and Kanawha canal,
to be as follows:
1. "When did the hill pass the House of Delegates ?
Answer—The Journal of the House of Delegates shows that the bill passed the House
of Delegates on Monday, December 10th, 1877.
' 2. When was the bill communicated to the Senate ?
Answer—The bill was carried to the Senate on the same day of its passage in the
House by Mr. Bocock, by authority of the House through its Speaker.
3. When did the bill pass the Senate ?
Answer—The Journal of the Senate shows that the bill passed the Senate on Tues¬
day, 11th December, 1877.
4. When was the bill communicated to you by the clerk of the Senate ?
Answei—The bill was communicated to me in a message in -writing of the clerk
of the Senate of date Tuesday, 11th December, 1877, which message I think was
delivered in my office on Wednesday morning, December 12th, 1877. The time of
the delivery of the message of the clerk of the Senate will doubtless be confirmed by
an enquiry of the. clerk of the Senate.
5. By whom was the bill carried to the governor, and when?
Answer—I handed the bill to Major John W. Johnston, president of the James
river and Kanawha canal company, who is the official head of the company, entitled
to the use of the convict labor by the terms of the bill, at his request, on Wednesday,
December 12th, 1877, before it had been signed by the governor, and he returned
the bill to my office signed. In a commuication from the governor of date Decem¬
ber 12th, 1877, he says that the bill was brought to him by Major Johnston and that
he signed it a few minutes after its presentation to him.
Senate Doc. No. 9.
7
6. Had the bill been enrolled and examined by the committee on enrolled bills
before its presentation to the governor ?
Answer—The bill was not enrolled before its presentation to the governor, and
consequently there was nothing for the committee on enrolled bills to examine, as
they only examine the enrolled copy to see if the bill is correctly enrolled.
7. Was the hill carried to the governor at your request?
Answer—The hill was not carried to the governor at my request. If I had desired
that the hill should have been presented to the governor, I could, in the exercise of
my official duty, have been the bearer myself.
Very respectfully,
J. BELL BIGGER,
Clerk of House of Delegates and Keeper of the Rolls of Virginia.
EXHIBIT "E."
LETTER OF MR. BIGGER TO THE GOVERNOR.
RICHMOND, December 17th, 1877.
His Excellency James L. Kemper,
Governor:
Dear Sir :
I respectfully ask that you will inform me if you have during your
official term had many bills presented to you for your signature in the form in which
they passed the two houses and not in the*form of enrolled bills, and if many, if not
all of such bills that were so presented, were not signed by you in such form? I do
not write this in any official character, but ask a response as a matter of personal
courtesy.
With highest regard,
J. BELL BIGGER.
REPLY OF THE GOVERNOR.
EXECUTIVE MANSION,
Richmond, 17th December, 1877.
My Dear Sir :
Your unofficial and personal note of this date appeals to my courtesy
for information touching the practice of the executive in acting upon bills after
their passage through the general assembly. •
While I very cheerfully recognize the right of the general assembly, and each of
the honorable bodies composing it, to interrogate the executive in respect to all
official matters, I do not acknowledge that any less authority can subject this depart¬
ment to inquisition, or demand answers to questions relating to executive acts.
8
Seriate Doc. No. 9.
Under the statute, nothing less than a resolution of the Senate or the House of
Delegates can open the executive journal and cause its contents to be disclosed ; and
I am bound by the constitution to maintain the independence of the executive de¬
partment, and to preserve its co-ordinate and co-equal relations with the other de¬
partments.
Nevertheless, I have no difficulty in responding to your personal appeal. Having
no cause or desire to conceal anything, it gives me pleasure, unofficially, informally,
and without reserve, to comply with your courteous request.
Your own recollection will sustain me in saying that, in the course of my official
term, I must have approved scores of bills before their enrolment. The constitution
simply requires that bills which have passed the Senate and House of Delegates shall
be presented to the governor; and being so presented, it thereupon becomes his pro¬
vince to approve or disapprove them. If a bill is certified as having passed the two
houses, either by the presiding officers or by the respective clerks thereof, it matters
not in the least whether it is presented in the form of an engrossed or an enrolled
hill, and I act upon it as rightfully and as readily in the one form as the other. I
have approved bills of general importance, among them what is known as the
Moffett liquor law, in their engrossed form. A few days ago, an unenrolled bill was
presented to me, the object of which was to change the time for holding a court, and
to dispense with a term which the pre-existing law required to be held very shortly.
It was important to give effect to the new law immediately, so as to prevent the un¬
necessary issuing of process, and so save needless expense and inconvenience to the
people of a county. When that bill was presented to me in its engrossed form, I
incline to think the ink was not dry with which the certificate of its passage was
written. I signed it the moment I read it, and in doing so I acted in harmony with
the legislative design to put it in operation as quickly as possible.
But it is needless to multiply instances. It is well known that, ever since the con¬
stitution took effect, it has been the practice of the executive to act upon unenrolled
hills when presented to him. The practice contravenes neither the constitution nor
any provision of law, and the legislature has acquiesced in it, and at least tacitly
approved and sanctioned it.
Yery truly yours,
JAMES L. KEMPER.
John Bell Bigger, Esq.
EXHIBIT " F."
s
LETTER OF MR. HURT TO MR. HINTON.
SENATE CHAMBER, December 17, 1877.
William E. Hinton, Esq. :
The committee of the Senate appointed to make some enquiry in regard
to House bill No. 1, to provide for the use of convict labor on the James river and
Kanawha canal, at the request of Mr. J. Bell Bigger, keeper of the rolls, desire you
to state in writing, under this request, whether you, either before or since you have
been a senator, or both, ever carried a bill or bills to the governor for his signature
Senate Doc. No. 9.
9
in the form in which it had passed both houses, and not in the form of an enrolled
bill; and if so, at whose request, and did such bill or bills receive the signature of
the governor in such form ?
Respectfully, yours,
JOHN L. HURT, Chairman.
REPLY OF MR. HINTON.
John L. Hurt,
Chairman :
In response to the above questions, I have frequently obtained from the
"chairman of enrolled bills " bills in the form indicated in your questions, and taken
them to the governor, and received, upon his examination ot such bills, his promise of
approval, and I think in one case "the amendment of Petersburg charter," I ob¬
tained his approval on the hack of the bill.
Respectfully, yours,
W. E. HINTON, Jr.
EXHIBIT "GL"
LETTER OF MR. HURT TO MR. LOVENSTEIN.
SENATE CHAMBER, December 17, 1877.
"William Lovenstein, Esq. :
The committee of the Senate appointed to make some enquiries in regard
to House bill No. 1, to provide for the use of the convict labor on the James riyer
and Kanawha canal, at the request of Mr. J. Bell Bigger, keeper of the rolls, desire
you to state in writing, under this request, whether during your service as chairman
of the committee on enrolled bills of the House, did you know of any hill or bills to
have been carried to the governor for his signature in a form other than an enrolled
bill; and if so, did such hill or bills receive the signature of the governor in"such
form, and further state if any enrolled bills were ever presented by you to the gov¬
ernor for his signature before being signed by the President of the Senate, or Presi¬
dent pro tern, of the Senate, and if there was ever a termination of a session of the
general assembly before the signature of the President of the Senate, or the President
pro tern, of the Senate, could be had on the enrolled bills owing to their absence from
the city or other cause; and if so, was that the time at which the governor signed
such enrolled bills?
Very respectfully,
JOHN L. HURT, Chairman
10
Senate Doc. No. 9.
REPLY OF MR. LOVENSTEIN.
RICHMOND, VA., December 18, 1877.
John L. Hurt, Esq.,
Chairman, :
Dear Sir:
In reply to questions propounded to me by the committee of the
Senate appointed to make enquiries in regard to House bill No. 1, to provide for the
use of convict labor on the James river and Kanawha canal, which questions
were propunded at the request of Mr. J. Bell Bigger, keeper of the rolls, I have to
say, that during my services as chairman of the committee on enrolled bills of the-
House of Delegates, I do know that bills were presented to the present executive
and his predecessor in form other than enrolled bills, and that such bills did receive
their signatures in such form.
I further know, that at least on one occasion enrolled bills were presented to the
executive for his signature, signed by the Speaker of the House of Delegates, and
without being signed by the President or President pro tern, of the Senate, owing to
their absence from the city, and such enrolled bills were signed by the executive in
such form. And I do know, that on the termination of one session of the general
assembly, owing to the passage of a great number of bills on the last days of the-
session they could not be enrolled in time, the engrossed copies were presented to and
signed by the executive; and they were enrolled and signed by the presiding officers
of the two houses after the termination of the session.
Yery respectfully,.
WILLIAM LOVENSTEIN.
EXHIBIT "H."
LETTER OF MR. HURT TO MR. SPITLER.
SENATE CHAMBER, December 17th, 1877.
Mann Spitler, Esq. :
The committee of the Senate appointed to make some enquiries in
regard to House bill No. 1, to provide for the use of convict labor on the James river
and Kanawha canal, at the request of Mr. J. Bell Bigger, keeper of the rolls, desire
that you shall state in writing, under this request, whether you ever carried a bill
to the governor for his signature in a form different from an enrolled bill, and what
is known as the engrossed bill, and if so, state when such was so carried, at wbose
request, and if it received the signature of the governor in such form.
Respectfully,
JOHN L. HURT, Chairman.
Senate Doc. Wo. 9.
11
REPLY OP MR. SPITLER.
SENATE CHAMBER,
Richmond, Ya., December 18?ih, 1877.
John L. Hurt, Esq.,
Chairman, $c,:
Dear Sir :
Yours of the 17th just received. In reply to questions propounded
to me at the request of J. Bell Bigger, clerk of the House of Delegates, by the
committee of the Senate appointed to make some enquiries in regard to House bill
No. 1, to provide for the use of convict labor on the James river and Kanawha canal,
I have to say that on the 13th day of December, 1877, a bill entitled an act to amend
and re-enact the second section of an act prescribing the times for holding courts in
the twelfth and eighteenth judicial circuits, was handed me by the clerk of the
House of Delegates at my request; that I carried the bill to the governor in a form
other than an enrolled bill, and that the governor signed it in that form. My reason
for so presenting it to him for his approval, is that it was important that it^should
become a law as early as possible.
Respectfully,
MANN SPITLER.